4/30/2020 5:08 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 42673494
By: T Reed
Filed: 4/30/2020 5:08 PM

Cause No. 1223792-B

JAMES BOYD HARRIS

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IN THE 232ND CRIMINAL

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DISTRICT COURT OF

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HARRIS COUNTY, TEXAS

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EX PARTE

AGREED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW
Pursuant to Article 11.07 of the Texas Code of Criminal Procedure, the Court
hereby enters the following Findings of Fact & Conclusions of Law:

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FINDINGS OF FACT

On April 9, 2010, a jury found Applicant guilty of the offense of
Manufacturing/Delivering Cocaine over 400 grams. His punishment was
assessed at confinement in the Texas Department of Criminal Justice-Institutional Division for twenty-five years.

2.

James Harris is currently on parole; therefore, under confinement due to this
conviction.

3.

In his amended writ application, Applicant raises the claim that he was denied
due process of law by the unknowing use of false testimony, and that he is
actually innocent based on newly discovered evidence.

4.

The relevant trial testimony is:

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a. The State called Houston Police Officers Chris Aranda (“Aranda”) and
Emmanuel Pierson (“Pierson”) to testify at trial. (3RR 12, 90).
Officer Chris Aranda

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b. Officer Aranda and his partner, Pierson, were in the DRT – Differential
Response Team – in 2009. (3RR 13). Their duties were to locate
unsanitary yards, try to speak with the property owner, and remedy the
situation. (3RR 13).
c. On June 17, 2009, around 2:30 p.m., they were on duty near the 2300
block of Kirk Street, in Harris County, Texas. (3RR 14-15).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 1 of 28

 d. They observed Lisa Evans (“Evans”) walking to an area they possibly
knew was an area of illegal activity. (3RR 15-16). Pierson exited the
patrol vehicle and followed Evans to the back of a house. (3RR 16).

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e. Aranda went to the front of the home to the right of the front door,
approximately 10 yards away. (3RR 20-21, 50). Aranda then observed
two males at the front door. (3RR 21). At trial he testified their physical
descriptions were:

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i. Skinny black, male about 160, 5’9”-5’10”, and had tattoos on his
chest. He wore blue shorts and a white tank top. (3RR 21, 23,
86).
ii. Heavier black, male. He wore red shorts, a white shirt, and a red
cap. (3RR 25, 84, 86).

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f. Aranda testified the skinny male stepped outside the door first, then
larger male. The three of them looked at one another for 10-15 seconds,
and then the skinny male took off on foot, and the larger male went
back into the house. (3RR 21, 24).

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g. Aranda identified State’s Exhibit 16, a booking photo of James Harris
wearing a tank top, as the skinny male in the blue shorts and white tank
top. (3RR 22-24).

h. Aranda identified James Harris in court as the skinny male in the blue
shorts and white tank top. (3RR 22).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 2 of 28

 i. Aranda pursued the skinny male for approximately 25-30 yards, but he
was unable to apprehend him. (3RR 26).
j. The male in the red shorts also was not apprehended. (3RR26-27).

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k. Aranda observed a significant amount of marijuana, some crack
cocaine, powdered cocaine, three weapons, and scales in the home.
(3RR 28).

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l. Aranda spoke with Ronald Manning (“Manning”), the husband of Lisa
Evans (“Evans”). (3RR 34-35). Manning was informed that his wife
was going to be arrested for possession of all the narcotics in the home,
so they needed his cooperation to find out who “stays” at the house.
(3RR 35). Manning then got on his cell phone, and he began calling
“people.” (3RR 35). Manning “eventually came up with a name,” and
he informed Aranda the name of the individual was “Man.” (3RR 26).

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m. Aranda testified that “Man” is James Harris’s nickname. (3RR 36, 57).

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n. After the scene was cleared, Aranda took a statement from Evans, and
Aranda testified that she provided him a description of James Harris.
(3RR 26). The statement was typed by Aranda’s partner. (3RR 77).

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o. Aranda testified that Lisa Evans and Lashanda Cambric told him that
“Man” is James Harris. (3RR 58).

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p. About “8 hours or so” later, Aranda viewed a photograph of James
Harris, and identified him from the photo. (3RR 37). Aranda did not
know when the photo of James Harris he observed was taken. (3RR
54).
q. Aranda believes the suspect in the red shorts is Ernest Modeste, who
was arrested the following day.1 (3RR 58).

Ernest Modeste’s name is spelled several different ways in various places. For clarification
purposes, in these agreed findings of fact and conclusions of law his last name is spelled
“Modeste.”
1

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 3 of 28

 r. Based on witness statements, the phones recovered in the house
belonged to “Man” and “E.” (3RR 57).

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s. Aranda was asked if he had “any question or doubt or hesitation in your
mind that the photograph of James Harris that you viewed is the same
person that you saw run out of that house that day?” To which Aranda
responded, “There’s no doubt.” (3RR 37).
t. Aranda is the only witness who observed the skinny male run out of the
house. (3RR 54).

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u. Aranda’s identification of James Harris is the only thing that ties him
to the property. (3RR 55).

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v. No photo spread with a photo of James Harris was shown to either Lisa
Evans nor Lashanda Cambric. (3RR 74).

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w. Two vehicles were at the scene of the house. (3RR 59). Ernest Modeste
was arrested in one of them the following day. (3RR 59).

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x. One vehicle, a Cadillac, was registered to Patricia Harris, James
Harris’s sister. (3RR 60, 80-82). The other was a Dodge Charger
registered to James Noble. (3RR 60).

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y. At the time of trial, Aranda did not know who James Noble was. (3RR
88).

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z. The familial relationship between Patricia Harris and James Harris
indicated to Aranda that James Harris was at the house, and he drove
the vehicle registered to her. (3RR 62).
aa. Aranda identified Ernest Modeste as “resembling” the second male at
the house, but he was unable to say “for sure” it was him. (3RR 83-84).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 4 of 28

 Officer Emmanuel Pierson

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bb.Emmanuel Pierson (“Pierson”), is partners with Officer Chris Aranda.
(3RR 91). He was on duty with Aranda on June 17, 2009. (3RR 92).
cc. Pierson followed Lisa Evans to the back of the house, where he
observed the back door to the house open. (3RR 96). He observed two
black males in the kitchen. (3RR 97). The male closest to him was
wearing a white muscle or “wife beater” shirt and blue shorts, and the
other male was wearing a white t-shirt, red shorts, and a red cap. (3RR
98).

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dd.The male in the muscle shirt was thinner than the male in the red, and
he had multiple tattoos on his chest and arms. (3RR 98).

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ee. Pierson was unable to identify James Harris’s face, but he testified that
his body type and tattoos were similar to the person he observed. (3RR
98-99, 112-13).

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ff. Pierson briefly pursued the males through the home, but then stopped
to detain Lisa Evans. (3EE 102).

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gg.While officers were processing the scene a female, identified as
Lashanda Cambrick, came to the house and knocked on the front door.
(3RR 107).

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hh.According to Pierson’s trial testimony, the phones in the house showed
one number going to “E” and one going to “Man.” (3RR 120).

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ii. Pierson testified that they found out that “Man” was James Harris from
“information on the street.” (3RR 120).
jj. Lisa Evans was the first person to mention the name “Man.” (3RR 121).
They then spoke with her boyfriend who made a phone call and said
“yes, definitely” the man known as “Man” is James Harris. (3RR 121).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 5 of 28

 kk.Pierson typed the statements of Lisa Evans and Lashanda Cambrick,
but they did not sign them because there was not a place to do so. (3RR
126-27, 129). He dictated the statements word for word. (3RR 127).

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ll. Petitioner called Patricia Harris, Iris Williams, Lisa Evans, and Arbrae
Hutchinson to testify at trial. (3RR 140, 142, 144, 162).
Patricia Harris

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Patricia Harris is Applicant’s sister. (3RR 140). She purchased a
Cadillac about four years prior to trial (3RR 140). About a year and a
half prior to trial, she sold the vehicle to “Ernest,” who she knows as
“Big E.” (3RR 140-41).

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nn.In June of 2009, Ernest was driving the vehicle. (3RR 141). Patricia
Harris identified State’s Exhibit 30, a photo of Ernest Modeste as the
Ernest she sold her vehicle to. (3RR 141).

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oo.Patricia Harris was not cross-examined by the State. (3RR 142).
Iris Williams

pp.Iris Williams testified that she has lived at 2212 Kirk Street for 32 years.
She knows James Harris because he used to live at 2213 Kirk Street
about 12 years ago. (3RR 142-143).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 6 of 28

 Lisa Evans

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qq.Lisa Evans went to the house on Kirk Street to purchase crack cocaine.
(3RR 15). She observed “Man” and another man in the house. (3RR
146). She purchases crack from “Man,” but she does not know his true
name. (3RR 147).
rr. “Man” is not James Harris. (3RR 146). James Harris was not one of the
two men in the house. (3RR 146).
ss. The other man she observed in the house was a big heavy-set guy, who
goes by “E.” (3RR 146-47).

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tt. The State’s cross-examination of Evans was to impeach her with her
prior criminal convictions, to point out that she was a drug-addict, who
knew “Man” as her drug dealer, who she worked for on six occasions
according to a statement the police typed for her. (3RR 152-54, 157).

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uu.In her description of “Man” to the police she described him as five foot
ten, goatee, and many tattoos. (3RR 158).

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vv.She knows James Harris because she sees in him the neighborhood
when he visits his children. (3RR 160-61).

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Arbrae Hutchinson

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Arbrae Hutchinson testified as an alibi witness for James Harris.
(3RR 162). Hutchinson is the next-door neighbor of James Harris. (3RR
163). On June 17, 2009, they were doing chores around the house –
cleaned grass off the fence, gave dogs worm medication, threw sulfur
for fleas, washed cars, worked on the car breaks. (3RR 165-64). They
also bar-be-qued. (3RR 166).
xx.Cross-examination of Hutchinson consisted of establishing Hutchinson
and Harris were friends, and that Hutchinson had not come forward to
law enforcement prior to the trial date to inform them of the alibi. (3RR
167-68).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 7 of 28

 5. The State’s closing argument consisted of:
a. The description of “a five foot ten black male, thin with a goatee, and
tattoos on his chest” were given by the witnesses for “Man.” (3RR 186).

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b. “Man” is James Harris. (3RR 186). “Man” is the individual sitting in
front of you right now. (3RR 186).
c. Aranda “is a hard-working member of the Houston Police Department.
He’s not up here making this up.” (3RR 186). “He has no motive and
no reason to lie.” (3RR 187).

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d. The defense witnesses are “all biased and they all have reasons to lie.”
(3RR 187).

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e. It is a “pretty darn big coincidence that James Harris’ sister’s car is right
outside that drug house.” (3RR 187).

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f. “Man” and “E” were both in that house. “E” is Ernest and “Man” is
James Harris. Not complicated.” (3RR 188).

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g. James Harris owns a pit bull, and there was a pit bull in the house. (3RR
189).

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h. “[E]verybody has the right to a fair trial.” “James Harris has had that
right.” (3RR 189).

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6. James Harris’ conviction was appealed. The First Court of Appeals found the
evidence legally and factually sufficient to support the jury’s verdict. See
James Boyd Harris v. Texas, 2011 WL 2089684 (Tex. App.--Houston [1st
Dist.] May 19, 2011), pet. ref'd.

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7. James Harris filed a pro se writ of habeas corpus under Code of Criminal
Procedure, article 11.07 on March 20, 2012. He raised the following grounds:
a. Ineffective assistance of counsel – “Harris attends that he has been
denied affirming (sic) assistance of counsel. Performance so prejudicial
that it deprived him of a fair trial.”
b. No evidence to support conviction – “Credibility of evidence to
establish other crimes or act is not a proper inquiry for trial court in
ruling on exclusion of relevant evidence under unfair prejudice.”
Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 8 of 28

 c. Due process – “Appellant contends that the court of appeals premised
it’s opinion on the witness testimony without regarding the evidence
which would allow rational trier facts to find appellant not guilty.”

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d. Misidentification – “An in-court identification is inadmissible when it
has been tainted by an impermissibly-suggestive pre-trial photographic
identification.”
8. James Harris is not an attorney.

9. No attorney was appointed to assist James Harris with his writ application in
2012.

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10.No evidentiary hearing was held on the writ application, and the trial court
adopted the State’s Findings of Fact and Conclusions of Law on May 18,
2012. The findings held, in relevant parts:

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a. The Applicant’s allegation of ineffective assistance of counsel failed to
state a claim that entitles him to relief.

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b. The Applicant’s allegations challenging the sufficiency of the evidence
do not state a claim for relief in habeas corpus.

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c. The Applicant’s allegations that the trial court erred by excluding
relevant evidence and allowing an in-court identification that was
tainted by a pre-trial photo lineup should have been litigated and raised
on direct appeal.

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11.The trial court recommended the writ application be dismissed or denied.

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12.On August 8, 2012, the Texas Court of Criminal Appeals denied, without
written order, the application for writ of habeas corpus on the findings of the
trial court without a hearing.

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13.At the time of the filing of the pro se “A writ,” the June 13, 2019, hearing had
not yet occurred.
14.During the June 13, 2019, hearing newly discovered evidence was developed
regarding Aranda’s confidence in his identification of James Harris.
15.After the filing of the “A writ,” newly discovered evidence was developed of
the HPD Gang Tracker database, which includes identifiers of Orlando Noble.
Specifically, tattoos similar to those of James Harris and the listing of a middle
Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 9 of 28

 name for Orlando Noble of “Mann.” (WRR 78, 83, 85; Defense Exhibit 7).
The printout is dated June 7, 2013.

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16.On October 11, 2012, James Harris filed a pro se “Motion for Forensic D.N.A.
Testing of Items Containing Biological Material Pursuant to Code of Criminal
Procedure art. 64.” On the same date, he filed a motion requesting the
appointment of counsel to assist him in the motion.
17.The trial court granted his motion for the appointment of an attorney on
October 15, 2012, and Celeste Blackburn was appointed for the purpose of a
motion for forensic DNA testing.

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18.On February 27, 2014, Celeste Blackburn filed a Motion for Forensic DNA
Testing of Evidence Containing Biological Material that complied with the
requirements of the Texas Code of Criminal Procedure.

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19.The trial court signed an “Agreed Order for DNA Testing Pursuant to Tex.
Code Crim. Proc. 64.03” on March 31, 2014. Over the course of the following
years DNA testing was eventually completed in the case, with reports being
issued on February 4, 2015; September 9, 2015; and October 26, 2016.

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20.Josh Somers was the Harris County Assistant District Attorney in the trial of
James Harris.

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21.According to the February 4, 2015, lab report, the testing resulted in DNA
profiles on two of the items submitted:

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a. AMW-Blade 600 digital scale (State trial exhibit 21).

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i. “The partial DNA profile is consistent with a mixture. The
unknown profile can be compared to possible sources. James
Boyd Harris and Josh Somers are each excluded as a contributor
to the profile.”

b. Professional digital mini-scale model FXL-150 (State trial exhibit 24).
i. “The DNA profile is consistent with a mixture. The unknown
profile can be compared to possible sources. James Boyd Harris
and Josh Somers are each excluded as the contributor to the
profile.”

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 10 of 28

 22.The October 26, 2016, Texas Department of Public Safety DNA Laboratory
Report, which reflects new DNA technology – STR PCR analysis, resulted in
DNA profiles on three of the items submitted:

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a. DNA extract from the swab of pink plastic baggie (State trial exhibit
21)
i. “The previously obtained partial DNA profile is interpreted as a
mixture of two individuals. Based on the likelihood ratio results
it is inconclusive whether Josh Somers or James Harris are
contributors to this profile.”

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b. DNA extract from swab of AMW-Blade 600 digital scale (State trial
exhibit 21)

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i. “The previously obtained DNA profile is interpreted as a mixture
of two individuals. Josh Somers and James Harris are each
excluded as a contributor to this profile.”

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c. Professional digital mini-scale model FXL-150 (State trial exhibit 24).

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i. “The previously obtained DNA profile is interpreted as a mixture
of four individuals. Josh Somers and James Harris are each
excluded as a contributor to this profile.”

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23.Two SDIS CODIS Offender Reports have been issued regarding the DNA
samples obtained from the testing. Specifically,

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a. February 22, 2015 – Jeff Baschall Ellis on the swab-digital mini scale

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b. January 11, 2016 – Charlotte Maxine Hill on the AMW-Blade scale
swab

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24.The Motion for Forensic DNA Testing of Evidence Containing Biological
Material is currently still pending before this court.
25.Around January of 2009, the Harris County District Attorney’s Office created
a Conviction Integrity Unit (“CIU”).
26.Around April of 2013, the CIU opened an investigation regarding James
Harris’ case, pursuant to the request of James Harris’ family and his continued

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 11 of 28

 assertion that he is innocent in this case. (WRR 7-8).2 As part of their
investigation, the CIU interviewed various individuals. They stated, in
relevant portions, in their interviews:

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a. Ernest Modeste – “Man” is not James Harris. He denies being at the
house at the time of the incident.
b. Orlando Noble - People call him “Man.” It is not his given name,
rather, his mother called him “little man” when he was growing up. It
was shortened to “Man” later. In 2009, James Harris drove a black
Infinity. “E” drove a Cadillac, and Noble drove a Dodge Charger. He
denies being at the house at the time of the incident.

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27. James Harris has consistently maintained his innocence in this case since
before his arrest, during his trial, and over the past 11 years.

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28.Subsequently, on July 11, 2017, the trial court appointed Celeste Blackburn
for purposes of representation of James Harris under the Texas Code of
Criminal Procedure Chapter 11.

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29.On October 11, 2018, Celeste Blackburn filed an application of a writ of
habeas corpus seeking relief from final felony conviction under Code of
Criminal Procedure, article 11.07. The “B Writ” contained the following
grounds.

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30.On June 13, 2019, a live hearing was held in the trial court on Applicant’s “B
Writ.” (WRR 2-4).

Officer Christopher Aranda

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31.The relevant writ hearing testimony is:

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a. Officer Christopher Aranda and his partner, Emmanuel Pierson,
decided to see where Lisa Evans was going because she was in a
narcotics area. (WRR 11-12).
b. Pierson exited the vehicle and followed her behind a house. (WRR 12).
c. Aranda observed two males come out of the front door of the house.
(WRR 14). They had the following descriptions:

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“WRR” designates the reporter’s record for the June 13, 2019, writ hearing.
Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 12 of 28

 i. First Male Out – Black, about 5’10”, about 160 pounds; wearing
a white tank top and blue shorts, with tattoos on him. (WRR 1416).
ii. Second Male Out – Black, larger than then first male; heavy set

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d. The photograph he identified as the person he saw run out of the house
first had what appears to be a rosary tattoo around his neck and other
tattoos on his arms and chest. (WRR 16).
e. When the first male took off running, Aranda was not able to catch him
because the male had such a large lead, of at least 10 yards. (WRR 19).

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f. No links to James Harris were found in the house. (WRR 21).

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g. Lisa Evans was under arrest for all of the narcotics found in the house.
(WRR 22).

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h. Two vehicles were found at the scene – a Cadillac and a Dodge
Charger. (WRR 22). The Cadillac was registered to Patricia Harris, and
the Dodge Charger was registered to James Noble. (WRR 22; Writ
Exhibit 5, page 2.014).

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i. Another female arrived at the house during the police investigation, and
she was placed under arrest. (WRR 23).

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j. Aranda first testified both the females told him James Harris lived there,
and that “Man” was James Harris. (WRR 23-24).
k. Aranda then refreshed his memory with the typed statements he took
from the females, and recalled the females told him “Man” and “E”
lived at the house. (WRR 24; Defense Exhibits 3, 4). Neither female
specifically stated a name for “Man,” nor did either identify the person
as James Harris.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 13 of 28

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l. Aranda then testified that Lisa Evans told him James Harris was “Man.”
(WRR 25-26). He eventually corrected his testimony to reflect that Lisa
Evans’s husband, Ronald Manning, was at the scene, and he is the
individual who called an unknown individual, who stated “Man” was
James Harris. (WRR 25-26).

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m. Aranda was unable to remember when either female told him that
“Man” was James Harris. (WRR 27).

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n. Aranda acknowledged he testified at trial that both women told him
James Harris was “Man,” but he did not recall when it occurred, did not
document it in his report, did not document it in their written
statements; but rather, he documented in his report that it was the lead
provided by Ronald Manning that led their investigation to James
Harris. (WRR 28).
o. Based on the testimony, this Court finds that Aranda’s trial testimony
that either woman – Lisa Evans or Cambrick – told him that James
Harris was “Man” is not reliable.
p. Based on the name provided to Aranda by an unknown individual to
Ronald Manning, eight hours later, Aranda pulled up a photo of James
Harris. (WRR 27). He believes he pulled the photo from the “Gang
Tracker Database.” (WRR 27).
Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 14 of 28

 q. Aranda does not recall speaking with Josh Somers, the trial prosecutor
on November 19, 2009, prior to the trial. He also does not recall telling
Somers the following:
i. That he was 15 yards away at the time he observed the males;

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ii. That he had viewed a photo of Orlando Noble, and he was not
the person he saw. (WRR 29-30).
r. Prior to the writ hearing, Aranda testified he did not remember being
aware of the name Orlando Noble. (WRR 30).

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i. “Orlando Mann Noble” is documented in the HPD Gang
Database. (WRR 31; Defense Exhibit 7). He has the following
physical descriptions: Black male; 5’10”; 180 pounds; a rosary
tattoo that is similar to the individual Aranda identified, and
tattoos on his arms and chest. (WRR 31-32; Defense Exhibit 7).

ii. At the time of this case, Orlando Noble’s photo reflects the rosary
tattoo; short haircut; goatee; black, male, same height, and same
weight. (WRR 32-33; Defense Exhibit 7).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 15 of 28

 s. Aranda testified that in observing the photo of James Harris and
Orlando Mann Noble, he could see how one could misidentify one of
them. (WRR 33).

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t. Aranda asserted that other than his identification of James Harris’
photo, the information he gathered during his investigation made him
believe he saw James Harris. (WRR 33).
u. During his investigation he was unaware that:

i. Orlando Noble was known by the street name of “Man;” (WRR
33-34)

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ii. That Patricia Harris had sold her vehicle to “E;” (WRR 34)

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iii. Of the height, weight, tattoos, and booking photos of Orlando
Noble; (WRR 43)

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iv. Orlando Noble and James Noble were brothers. (WRR 35-36,
44).

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v. Aranda acknowledged that the vehicle registered to James Noble could
have belonged to Orlando Noble. (WRR 34).

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w. The fact that James Harris drove a black Infinity in 2009 was known
and documented by the Houston Police Department. (Writ Exhibit 2,
page 2.025; 2.037)

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x. The identification of tattoos in the photograph was part of Aranda’s
identification of James Harris. (WRR 37). He also acknowledged it
would have been helpful to know about Orlando Noble’s tattoos at the
time. (WRR 37). But that “based on my investigation I still think it’s
possible he could be James Harris.” (emphasis added)(WRR 37).

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y. Aranda acknowledged that it could have been Orlando Man Noble.
(WRR 37). He also acknowledged that the person they were looking for
is “Man.” (WRR 37).
z. The day of, but prior to the writ hearing, Aranda stated that he “thought
he identified the right guy.” (emphasis added)(WRR 39).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 16 of 28

 aa. When questioned whether he was as sure in his identification of James
Harris, he responded, “Like I said anything is possible. Maybe I was
mistaken.” (emphasis added)(WRR 39).

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bb.Aranda testified that at the time of trial he believed the male to be James
Harris; and upon questioning at the writ hearing, in response to the new
information he did not have at the time of the trial, whether or not his
identification was called into question he responded, “Beyond that the
only thing I can say is anything is possible. Anything is possible.”
(WRR 44).

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cc. Ronald Manning was actually at the scene because patrol officers went
to a motel, picked him up, and brought him to the scene. (WRR 40).
Manning is the individual who mentioned James Harris’ name. (WRR
41). Manning did not testify at trial, nor did the unidentified person he
called.

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32.Joshua Somers, the trial prosecutor, testified at the writ hearing. He has been
a prosecutor since 2008 in various Texas counties. (WRR 46). His testimony,
in relevant parts is:

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a. Somers was informed by James Harris’ attorneys that James Harris was
not the individual known as “Man,” but, rather, it was an individual
named Orlando Noble. (WRR 47).

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b. Somers believed this case to be a “true one witness case that hinged on
Officer Aranda’s testimony and identification.” (WRR 48). Lisa Evans
and Deshanda Cambric stated one of the individuals inside the house
was “Man,” and then Ronald Manning provided James Harris as the
true name of “Man.” (WRR 49).

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c. Somers was aware that while the case as pending James Harris made
attempts to contact law enforcement to speak with them and explain
that he was not the person known as “Man.” (WRR 50).
d. During the pending case, James Harris’ attorneys brought Lisa Evans
and Ronald Manning to court to speak with Somers to explain James
Harris was not “Man,” and that “Man” was actually Orlando Noble.
(WRR 51).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 17 of 28

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e. Lisa Evans never wavered in her dealings with law enforcement or at
trial that one of the individuals in the home was “Man.” (WRR 52).
However, during the meeting where Evans and Manning informed
Somers James Harris was not “Man,” he believed it significant that
neither of them told the officers at the scene “Man” was not James
Harris, or told them that “Man” was Orlando Noble. (WRR 52).
f. According to Somers, he contacted Officer Lopez, a narcotics officer
that worked with the DRT. (WRR 56). During these conversations,
Lopez stated that the “word on the street was that “Man” was James
Harris,” and that Aranda was confident in his identification. (WRR 57).

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g. According to Somers, at some point he requested Aranda to view a
photo of “E” and Orlando Noble. (WRR 57). Somers believed that
Aranda was unable to identify “E,” and he did not recognize Orlando
Noble as the individual in the house. (WRR 57). Somers did not recall
whether he showed a photo to Aranda, requested him to view one, or
emailed one to him. (WRR 61, 64).

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h. Somers wrote notes reflecting that Aranda told him he viewed a photo
of Orlando Noble, and Orlando Noble was not the individual. He also
noted that Aranda told him Lisa Evans gave a written statement saying
that “Man” was James Harris. (WRR 61-63).

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65, 72).

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j. Somers was unaware at the time of trial that Officer Lopez swore in his
probable cause statement that both Aranda and Pierson positively
identified James Harris as being in the house. (WRR 65-66).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 18 of 28

 k. Somers’ notes reflect that he spoke with Aranda, who told him he
viewed the males from about 15 yards away. (WRR 60-61, 64).

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l. During the trial, Somers remembers Aranda testifying he observed the
males for 10 to 15 seconds. (WRR 113). Somers’ recollection was that
included the entire incident. (WRR 113). During the trial, the testimony
was reenacted, and it was a wide-eyed officer looking at the jury for a
“brief moment.” (WRR 113). It was not a 10-15 second staring at a
suspect. (WRR 115).
m. As part of his trial preparation and investigation, Somers obtained
“criminal history printouts, JIM’s printouts” for various individuals
involved in the case. (WRR 66). They are as follows:

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i. Ernest Modeste & the Cadillac – printed because it was important
that he was stopped by police in the vehicle that was registered
to Patricia Harris day after the incident at the house. (WRR 67;
Writ Exhibit 5, page 2.09).

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1. Somers learned that on a later date the vehicle’s title was
transferred to Jason Modeste, the brother of Ernest
Modeste. (WRR 69)(Defense Exhibit 11 & 12).

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ii. James Noble & Dodge Charger – printed because the Dodge
Charger was registered to him, and he had the same last name as
Orlando Noble. (WRR 72).

n. At the time of trial, Somers did not have in his possession the HPD
Gang Database printout of Orlando Mann Noble. (WRR 78, 83;
Defense Exhibit 7). The printout in the State’s file is dated June 7, 2013,
which was after the trial. (WRR 79, 83). The document reflects the
name Orlando Mann Noble. (WRR 83)(emphasis added). Had Somers

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 19 of 28

 had this information at the time the case was pending the document
would have been important to him. (WRR 83, 85).

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o. The JIMS printout for Orlando Mann Noble currently reflects the
middle name of “Mann,” however, at the time of the trial it did not.
(WRR 83-85).
p. It would have been important to Somers to see a document in the HPD
Database that reflected Orlando Noble’s middle name as “Mann.”
(WRR 85).

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q. At the time Somers viewed a photo of Orlando Noble, he was wearing
a shirt. (WRR85). The gang document he did not have access to at the
time, shows a photo of Orlando Noble in a tank top and displays photos
of his torso, arms, tattoos. (WRR 85; Defense Exhibit 7).

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r. Prior to trial Somers had concerns about the identification of James
Harris, the process that was done, and was concerned there had not been
a photo array conducted. (WRR 89). Because this was a “one witness
case,” Somers made many attempts to confirm Aranda’s certainty in
identification. (WRR 89-90).

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s. Knowing the middle name of Orlando Noble is reflected as “Mann,”
seeing that Orlando Noble has similar tattoos and the same physical
characteristics as James Harris, Somers would not have felt as
comfortable arguing James Harris is “Man.” (WRR 90-94). Further,
given the new information Somers would have requested an in-person
meeting with Aranda prior to trial to review all the information. (WRR
95).

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t. James Harris was offered a plea bargain of 25 years, then 12 years, then
5 years, and then 2 years. (WRR 98). James Harris was facing a
minimum sentence at trial of 25 years. (WRR 98). When James Harris
rejected the 2-year offer, the case proceeded to trial because
“unfortunately [you’re] going to have to try this case because to say it,
to do otherwise would say we don’t believe our officer.” (WRR 99).
u. When speaking with Aranda, he told Somers he was “positive,” and “a
hundred percent sure.” (WRR 100).

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 20 of 28

 v. Somers’ belief was that the vehicle registered to Patricia Harris was the
“only other significant link in the case.” Aranda’s identification was by
far the most important piece of evidence. (WRR 104).

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w. Somers “cannot stress enough for the record, for the Court, for Mr.
Harris and his attorney that this case was contingent on Officer
Aranda’s credibility and his identification and his certainty of James
Harris as being one of the people he saw inside of that house.” (WRR
109).

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x. Had Somers shown Aranda photograph of Orlando Noble and Aranda
told him that “maybe I was mistaken,” he would have never prosecuted
the case. (WRR 109). He would have dismissed the case, because it was
the right thing to do, and what justice would require. (WRR 110). If
Aranda had told him that, he would have gone against his supervisor or
anyone else who told him to continue prosecuting the case. (WRR 110).

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y. On the day of, but prior to the writ hearing, Aranda and Somers spoke
briefly. (WRR 111). During that conversation Somers, asked “Are you
Officer Aranda? You know you’re the officer that identified James
Harris.” (WRR 111). Aranda responded, “Well, I think I did.” (WRR
111).

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z. Had Aranda stated “Well, I think I did” to Somers in prior to or during
trial regarding his identification of James Harris, he would have never
prosecuted this case, and he would have dismissed it instantly. (WRR
111). If it was stated during the trial, Somers would have dismissed it
mid-trial. (WRR 111).

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33.Based on the credible testimony and physical evidence, the trial court makes
the following factual findings:

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a. There is newly discovered evidence that was not available at the time
of Applicant’s “A writ.” Specifically,
i. Testimony and statements made by Officer Aranda regarding his
identification of James Harris that are inconsistent with this trial
testimony.

ii. The HPD Gang Tracker Database printout reflecting tattoos of
Orlando Noble and a middle name of “Mann.”
Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 21 of 28

 b. James Harris is not “Man.”
c. Identifying and arguing to the jury that James Harris is “Man,” was
flatly and clearly incorrect.

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d. Orlando Noble has been called by the nickname of “Man” since he was
a child.
e. In 2009, James Harris and Orlando Noble had a similar body build,
similar height and weight, similar haircuts, similar goatees, and similar
tattoos. This includes a similar “rosary” type tattoo around their neck
and chest.

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f. The females at the house both stated that the males in the house were
“Man” and “E.” Neither of them identified James Harris as “Man,” and
neither of them stated that James Harris was inside the house.

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g. James Harris became a suspect after the police went to a motel, brought
Lisa Evans’s husband to the house, and informed him that his wife was
going to be arrested for all the narcotics found in the house. He then
made a phone call to an unidentified person who allegedly told him that
“Man” was James Harris.

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h. There were two vehicles parked near the house. One was registered to
Patricia Harris, and the other to James Noble. Patricia Harris is James
Harris’ sister, and James Noble is Orlando Noble’s brother. Patricia
Harris’ trial testimony that she sold her vehicle to Ernest Modeste is
credible because Ernest Modeste was cited for driving the Cadillac the
next day after the incident, and later the vehicle was registered to his
brother, Jason Modeste.

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i. The credible evidence supports that Ernest Modeste, “E,” was driving
the Cadillac registered to Patricia Harris, and Orlando Mann Noble was
driving the Dodge Charger registered to his brother, James Noble.
j. Aranda misidentified James Harris based on the physical similarities,
including tattoos, between James Harris and Orlando Noble.
k. Aranda’s identification of James Harris as “Man” was flatly incorrect.
l. Aranda’s identification of James Harris is material to the conviction.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 22 of 28

 m. When presented with information showing the misidentification,
Aranda waivered in his identification, and acknowledged he was maybe
mistaken.

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n. Had Aranda acknowledged he may have been mistaken in his
identification of James Harris, had the prosecutor had the gang printout
reflecting Orlando Noble as having a middle name of “Mann,” and had
the information regarding the similarities between James Harris and
Orlando Noble been known to the prosecutor at the time of trial, the
case would have been dismissed.

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o. In light of the evidence presented in the writ hearing and the totality of
the circumstances, Aranda’s testimony at trial regarding his
identification of James Harris is not reliable.

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p. The evidence presented during the writ hearing establishes by clear and
convincing evidence that, despite the evidence of guilt that supports the
conviction, no reasonable juror could have found James Harris guilty
in light of the new evidence.

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q. The evidence of Aranda’s statements made on the day of and during the
writ hearing were not known to James Harris at the time of trial or the
“A Writ.”

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r. The evidence of Aranda’s statements made on the day of and during the
writ hearing could not have been known to James Harris even with the
exercise of due diligence because the statements had not yet been made.

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s. The statements made by Aranda on the day of and during the writ
hearing are affirmative evidence of Applicant’s innocence.

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t. The evidence of the HPD Gang Tracker Database for Orlando Mann
Noble was not known to James Harris at the time of trial or prior to the
“A writ.”
u. The evidence of the HPD Gang Tracker Database for Orlando Mann
Noble could not have been known to James Harris even with the
exercise of due diligence because the information was not available to
the prosecution or defense at the time of trial or prior to the “A writ.”
v. The evidence in the HPD Gang Tracker Database regarding Orlando
Mann Noble is affirmative evidence of Applicant’s innocence.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 23 of 28

 CONCLUSIONS OF LAW
Due process is violated by the State’s use of material false evidence to secure
a conviction. Giglio v. United States, 405 U.S. 155 (1972). 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 Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App.
2011).

2.

To prevail upon a post-conviction petition for writ of habeas corpus in a false
evidence claim, the evidence must be both false and material. Ex parte
Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).

3.

To evaluate falseness, the Court examines whether the testimony taken as a
whole gave the jury a false impression. Weinstein, 421 S.W.3d at 666.
Definitive or highly persuasive evidence introduced in a post-conviction
habeas proceeding may show by a preponderance of the evidence that
testimony used to obtain a conviction was false. Ex parte De La Cruz, 466
S.W.3d 855, 867 (Tex. Crim. App. 2015).

4.

If the State unknowingly presented false evidence at trial, a habeas applicant
must show by a preponderance of the evidence that the false evidence
contributed to his conviction. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex.
Crim. App. 2009).

5.

To succeed in an actual-innocence claim, the applicant must show by clear
and convincing evidence that, despite the evidence of guilt that supports the
conviction, no reasonable juror could have found the applicant guilty in light
of the new evidence. Ex parte Mayhugh, 512 S.W.3d 285, 295 (Tex. Crim.
App. 2016).

6.

An applicant must prove that the evidence he relies on was not known to him
at the time of trial and could not be known to him even with the exercise of
due diligence. Id.

7.

The newly discovered evidence must be affirmative evidence. Id. at 296.

8.

Multiple pieces of newly discovered evidence can together make a
meritorious case for relief. Id. at 295.

9.

The totality of the new evidence of innocence must establish that a jury would
not have found the applicant guilty in light of the new evidence when
weighted against the old evidence establishing guilt. Id.

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1.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 24 of 28

 The State’s evidence to link James Harris to the drugs in this case consisted
of Aranda’s identification of Applicant, and the presence of a vehicle
registered to Patricia Harris parked near the house.

11.

The hearsay statement from an unidentified person to Ronald Manning is
insufficient to support an identification of James Harris linking him to the
items found in the home.

12.

The presence of a vehicle registered to Patricia Harris is insufficient to link
James Harris to the items found in the home. Definitive and highly persuasive
evidence was presented during the writ hearing that Patricia Harris’s vehicle
was being driven by Ernest Modeste, not James Harris, on June 17, 2009.

13.

The State’s trial theory was that James Harris was “Man.” This theory was the
primary focus of the State’s closing argument. This trial theory was flatly
incorrect.

14.

Definitive and highly persuasive evidence was presented during the writ
hearing that James Harris is not “Man,” and he is not known by the
nickname/“street name” of “Man.”

15.

Aranda’s trial testimony, taken as a whole, was that there was “no doubt” he
correctly identified James Harris as the individual known as “Man,” who was
inside the house.

16.

Aranda’s statements during the writ hearing and the day of the writ hearing
are inconsistent with the trial testimony that he had “no doubt” in his
identification.

17.

Definitive and highly persuasive evidence was presented during the writ
hearing that Aranda misidentified Orlando “Man” Noble as James Harris.

18.

Definitive and highly persuasive evidence was presented during the writ
hearing that in 2009 James Harris and Orlando Noble had the same physical
characteristics, including similar tattoos.

19.

The evidence, both testimony and physical evidence, admitted during the writ
hearing established definitively and highly persuasively that Aranda is
mistaken in his identification of Applicant. His identification of Applicant as
“Man” and the individual who fled the house is flatly incorrect.

20.

The identification of James Harris by Aranda at trial was material to the
conviction of James Harris.

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10.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 25 of 28

 There is no evidence to demonstrate that the mistaken identity of Applicant as
“Man” and as one of the two men in the house was intentional, or that the state
knowingly used false evidence as to the identification of James Harris.

22.

The State unknowingly presented false evidence at the trial.

23.

Applicant has demonstrated by a preponderance of the evidence that the false
evidence of Aranda’s identification of James Harris contributed to his
conviction.

24.

Applicant has demonstrated by a preponderance of the evidence that if the
evidence presented during the writ hearing had been presented during the
Applicant’s trial he would not have been convicted.

25.

The identification of Applicant by Aranda is the only direct evidence of
Applicant’s possession of the items found in the house on Kirk Street, and
because the State predicated its theory of the case on the false identification
testimony of Aranda, and new evidence demonstrates that Aranda was not as
confident in his identification as he testified to at trial, the false evidence is
material.

26.

Applicant has presented affirmative new evidence that he is actually innocent
in this case. Specifically, and in combination with:

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21.

Evidence of Orlando Mann Noble’s physical characteristics, tattoos,
and personal identifiers being similar to James Harris, in the HPD Gang
Tracker Database printout,

b.

The HPD Gang Tracker Database printout reflecting a middle name of
“Mann” for Orlando Noble,

c.

Aranda’s statements and testimony on the day of the writ hearing
regarding his identification of Applicant. Specifically, and in
combination:

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a.

Aranda believes “it’s still possible he could be James Harris;”
(WRR 37)(emphasis added)

ii.

Aranda’s testimony that the male could have been Orlando Man
Noble; (WRR 37)(emphasis added)

iii.

Aranda’s statement prior to the hearing that he “thought he
identified the right guy;” (WRR 39)(emphasis added)

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i.

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 26 of 28

 Aranda’s testimony that “maybe I was mistaken” when asked if
he was sure in his identification of James Harris; and (WRR
39)(emphasis added)

v.

Aranda’s testimony that “anything is possible” regarding his
identification of James Harris. (WRR 44).

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iv.

James Harris has proven by clear and convincing evidence that, despite the
evidence of guilt supporting his conviction, no reasonable juror could have
found the applicant guilty in light of the new evidence.

28.

Accordingly, this court recommends to the Texas Court of Criminal Appeals
that relief be GRANTED in cause number 1223792-B.

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_________________________
Honorable Josh Hill
232nd District Court

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 27 of 28

 AGREED AS TO FORM AND SUBSTANCE:

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/s/ Kim Ogg
Kim Ogg
District Attorney
Harris County, Texas
Texas State Bar No. 15230200
500 Jefferson, Suite 600
Houston, Texas 77002
Phone: 713-274-5800
ogg_kim@dao.hctx.net

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Celeste Blackburn
Attorney for Applicant
Texas State Bar No. 24038803
10655 Six Pines, Suite 230
The Woodlands, Texas 77380
Phone: 936-703-5000
Fax: 877-900-2822
celesteblackburn@gmail.com

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/s/ Josh Reiss
Josh Reiss
Assistant District Attorney
Harris Co. District Attorney’s Office
Texas State Bar No. 24053738
500 Jefferson, Suite 600
Houston, Texas 77002
Phone: 713-274-5800
reiss_josh@dao.hctx.net

Agreed Proposed Findings of Fact and Conclusions of Law, #1223792B; Page 28 of 28