EX PARTE RODNEY REED (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-50,961-04 & -05

EX PARTE RODNEY REED, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

IN CAUSE NUMBER 8701 IN THE 21ST DISTRICT COURT

OF BASTROP COUNTY

Per curiam.

O R D E R

Rodney Reed was convicted of capital murder and sentenced to death for the murder of Stacey Lee Stites. We affirmed his conviction and sentence on direct appeal. (1) Reed filed his initial application for a writ of habeas corpus in November 1999, and we denied relief in a written order in February 2002. (2) In February 2001, while his initial application was pending, Reed filed a "Supplemental Claim for Relief on Application for a Writ of Habeas Corpus." We construed that filing as a successive application and dismissed it because Reed's claim did not meet the dictates of Texas Code of Criminal Procedure, Article 11.071, Section 5. (3) Reed then sought federal habeas corpus relief, filing a petition for a writ of habeas corpus under Title 28, United States Code, Section 2254. Finding that Reed failed to exhaust all of his claims in this Court, the district court entered a stay in March 2004. (4) Reed filed a second subsequent state application for a writ of habeas corpus in March 2005. We dismissed some of the claims raised in that application under Article 11.071, Section 5 and remanded two of Reed's claims raised under Brady v. Maryland (5) to the district court so that it could hold a live evidentiary hearing. (6) After the case was returned to us, we filed and set it for submission. After an exhaustive review of Reed's Brady claims and gateway-actual-innocence claims under Article 11.071, Section 5(a)(2), we denied relief last month in a published opinion in light of the evidence properly before us. (7)

Taking a piecemeal approach, Reed filed two more subsequent applications while his second subsequent application was pending. (8) In the first of these later applications, Reed contends that the State suppressed evidence that Jimmy Fennell abused his ex-girlfriend, Pamela Duncan. In support of this claim, Reed attached an affidavit from Duncan, sworn to on April 6, 2006, which we considered a part of Reed's gateway-actual-innocence claim on his second subsequent application. As observed in our recent opinion: "Duncan describes Fennell as abusive, possessive, controlling, and extremely prejudiced toward African-Americans. When Duncan broke up with Fennell, he stalked her until he left Giddings; she was afraid for her safety and that of her children." In her affidavit Duncan states, in part:

My friends were not comfortable with Jimmy and they stopped hanging around us, all except for one. He was not very friendly, and made my friends feel unwelcome. My friends also didn't think that he treated me very well. He was very verbally hostile to me, called me some really unpleasant, mean names (describing me, my parents, and the fact that I had kids at a younger age), and would scream at me in public.

Jimmy was extremely prejudiced. Before we started dating, I used to get my hair cut by a black woman. After we started dating, he wouldn't let me go to her anymore, because her salon 'was across the tracks' and 'white women don't go there.' At one point I was considering hiring a black woman to work at the store and Jimmy got really angry. He told me everything he thought about black people (he didn't say 'black people;' he used the N-word) -- that they were all bad, all on drugs, all crocks -- and why I shouldn't hire her. I ended up hiring her and that was a big problem between us for a couple months.

I broke up with Jimmy in September of 1997. Jimmy stalked me for months after that -- until he left Giddings altogether. He would drive by my house, night after night, and shine a spotlight into the house. It got so bad that I finally put tin foil up in my windows, to reflect the light. He would stand outside my house at night, screaming at me, calling me a 'bitch' and other obscenities. He would come by my job at the Circle K, and just sit parked out front, with the headlights shining into the store. He would stay there, sitting in his car and watching me, for anywhere from two minutes to two hours . . . Once he came into the store and wouldn't let me out of the office--we had to call the police to get someone to escort him out, so I could leave. He would hassle any guy I tried to date until it scared them away. For instance, I dated one guy who delivered beer in town. After we started dating, Jimmy sta[r]ted pulling him over and giving him tickets. He got so many tickets he couldn't keep his job anymore.

What Jimmy did after I broke up with him really scared me. It made me feel like I knew what he was capable of, and that made me afraid for me and my kids. It made my parents afraid for my safety. The fact that he was a police officer made it much more difficult. I felt like I was being constantly harassed and threatened, and there was nowhere to go. I finally filed a report with the police, and another officer came and told me that they would make sure he left me alone. A friend of mine later went down to the police station looking for the report I filed, and they couldn't find it. Things got better after I filed the report, and the officer came and talked to me, but the harassment didn't stop altogether until Jimmy moved away from Giddings.

Reed asserts that Duncan's account of her relationship with Fennell is exculpatory for two reasons. First, it supports his theory that Fennell murdered Stacey because it confirms other evidence of Fennell's violent and abusive character and gives an additional explanation of Fennell's motive to kill Stacey--Reed's affair with Stacey coupled with racial discrimination. Second, Reed asserts that Duncan's account would have been valuable impeachment evidence at trial because Fennell testified that he did not have a controlling relationship with Stacey.

Reed maintains that Duncan's account was suppressed by the State because Duncan reported Fennell's abusive conduct to the Giddings Police Department. Reed states that, while the Giddings Police Department was not the primary agency involved in investigating Stacey's murder, it participated in the investigation and should therefore be regarded as part of the prosecution team. Reed further argues that his claim meets the standards of Section 5 because the factual basis was previously unavailable. We disagree. Assuming that the information qualifies as Brady material, (9) Reed has failed to show that, through exercise of due diligence, the information contained in Duncan's affidavit was not available during Reed's trial in 1998 and when he filed his initial application. (10) Therefore, we dismiss Reed's third subsequent application as an abuse of the writ.

In his fourth subsequent application, Reed claims that he is entitled to relief based on newly discovered evidence of actual innocence. (11) He also contends that he is entitled to have the merits of his Brady and ineffective assistance of counsel claims reviewed because he has made a threshold showing of actual innocence under Article 11.071, Section 5(a)(2). Finally, Reed asserts that he is entitled to relief under Brady.

Reed first presents evidence that Fennell has, in recent years, performed sexual acts of misconduct as a police officer. In December 2007, the State charged Fennell in Williamson County, Texas with aggravated sexual assault with a deadly weapon, aggravated kidnaping, improper sexual activity with a person in custody, and official oppression. An officer with the Williamson County Sheriff's Department set out the factual allegations underlying the charges in an affidavit for a search warrant signed by that is attached to Reed's application:

On October 26, 2007, Affiant was asked to assist in an investigation of an allegation that Jimmy Lewis Fennell, Jr., sexually assaulted an adult female. The female victim has elected to use . . . the pseudonym name of 'Amanda Smith.' Jimmy Lewis Fennell, Jr. is a peace officer employed as a patrol sergeant with the Georgetown Police Department. Ms. Smith reported at approximately 1:50 a.m. on October 26, 2007 to the Williamson County Sheriff's Department that she had been sexually assaulted by a police officer, who has now been identified as Jimmy Lewis Fennell, Jr., at a location in Williamson County which she believed to be a park.

Ms. Smith told Affiant that the Georgetown Police Department had sent officers to a scene at an apartment complex in Georgetown where she was fighting with her boyfriend, and that while the officers were there an officer had her in his patrol car. Ms. Smith's boyfriend was arrested and taken from the location, and an 'Officer Fennell' had taken her from the apartment in his patrol car. Prior to being taken from the scene, Ms. Smith had been vomiting due to intoxication. Ms. Smith was handcuffed and allowed to ride in the front seat of the patrol car. Ms. Smith believed that the officer was going to take her to a hotel so that she would have a place to stay, since the people she had been staying with were friends of her boyfriend and would not answer the door at the apartment complex. 'Officer Fennell' drove her to a location which she believed to be a park, stopped the patrol unit, and got her out of the car. Fennell unhandcuffed her and asked her to dance for him outside of his patrol unit, pulled down her pants, and penetrated her vaginally from behind with his penis. The defendant asked her if she liked it[;] she said no and asked him to stop, and he did not. When the officer was finished, he drove her back to the original apartment complex and dropped her off. The victim immediately reported the sexual assault by calling 911.

The affidavit also states that the victim positively identified Fennell in a photo spread as the assailant. The affidavit further noted that the Georgetown Police Department was cooperating in the investigation by providing Fennell's patrol car and the relevant dispatch logs to the Sheriff's Department. A review of the dispatch logs showed that Fennell could not be accounted for just after midnight to 1:52 a.m. The victim's prints were found on the trunk of the patrol car, "which is consistent with the location where the victim reported the sexual assault occurred in relation to the vehicle."

John Bradley, the District Attorney for Williamson County, entered into a plea-bargain agreement with Fennell. Waiving some of the charges, the District Attorney and Fennell entered into an agreement relating to only the charges of improper sexual activity with a person in custody and kidnapping. On the former, Fennell agreed to plead guilty in exchange for a two-year state jail sentence. And on the latter, Fennell agreed to plead guilty in exchange for a ten-year probated sentence, to be served concurrently with the two-year state jail term, and a $500 fine. Fennell also agreed to permanently surrender his peace officer's license. On May 20, 2008, Fennell appeared before District Judge Burt Carnes and pled guilty to the charges. Judge Carnes reset the case for June 24th for sentencing. The record before us goes no further; therefore, we have no official documentation concerning the final resolution of this case.

Next, Reed submits an incident report for the Travis County Sheriff's Department. The report documents an incident that occurred in May 2004 between Fennell and a woman named Angie Lee Smith. Fennell stopped Smith on Interstate 35 for a "crooked license plate." Smith's driver's license and vehicle registration were expired, and she told Fennell that she would take care of it on Monday. Fennell suggested that she take care of it by giving him a lap dance. Smith "diverted the conversation by talking about the Williamson County Sheriff and saying that she knew him and his wife at which point she was released."

Finally, Reed contends that Fennell maintained an internet page on MySpace.com that contained sexually explicit and violent images. In support of this, Reed attaches several printouts from the MySpace page belonging to an individual named "pointman_1." The other details from the page indicate that "pointman_ 1" is an individual claiming to be a thirty-four-year-old, 5'11", straight white male, "Swat Operator" in Texas.

Reed contends that all of this information is newly-discovered evidence of actual innocence. We disagree. First, regarding the MySpace page excerpts, other than mere conjecture by Reed, there is no concrete proof in the record to support Reed's claim that they have any relation to Fennell. And with respect to charges in Williamson County and the Travis County Incident Report, other than showing that Fennell has engaged in despicable and reprehensible conduct as an officer with the Georgetown Police Department, the information does not exonerate Reed of Stacey's murder. (12)

Reed also claims that this evidence, viewed on its own, and viewed in conjunction with some of the other evidence considered under his prior gateway-innocence claims, as well as new evidence presented on this, his fourth subsequent application, meets the gateway standard of innocence under Article 11.071, Section 5(a)(2). Viewing only the evidence presented on this application alongside the evidence presented at trial, we cannot say that Reed has established that it is more likely than not that no reasonable juror would have convicted him beyond a reasonable doubt. (13) And, giving Reed the benefit of all doubt, as we did before, by considering all of the evidence not presented at his trial (i.e., the "new" evidence presented on his prior applications), (14) we cannot say that Reed has shown by a preponderance of the evidence that no reasonable juror would have convicted him beyond a reasonable doubt. The totality of the evidence before us still supports a guilty verdict. Finally, we turn to the two items of evidence, presented for the first time on this application, that Reed relies on as additional support for his gateway-innocence claim.

First, Reed attaches a letter written by Fennell to the Giddings City Manager several months after Reed's trial. The letter details Fennell's dissatisfaction with the management of the Giddings Police Department, and in doing so, alludes to statements allegedly made by Officer David Hall: "David Hall made several comments during the murder investigation of my fiancée. I have learned to forgive and forget. But I understand Hall as does [sic] the other patrolman [sic]." Fennell continued, stating that "Hall is mad because he wants stripes. Hall will burn anyone to get this position. We are all aware of this problem and deal with it." Reed claims that the first portion of Fennell's comments about Hall cannot be discounted as "idle gossip in light of the State's DNA testing that links Mr. Hall to a mixture of saliva found on a beer can near [Stacey's] body." According to Reed, the statements "begs the questions: what did Mr. Hall say?, [sic] when did he say it?, [sic] and to whom?" Reed also contends that Fennell's statements imply that Officer Hall was not Fennell's friend and therefore contradicts the testimony of Officer Hall and his wife, Carla Hall, that the two were close friends.

Next, Reed points to former Bastrop County Sheriff Richard Hernandez's guilty plea in January 2008 to six felony counts, including theft by a public servant, misapplication of fiduciary property, and abuse of official capacity. According to Reed, the theft began in 1997, when the Sheriff's Department was investigating Stacey's murder, and continued through Reed's trial. Reed maintains that "[t]his could only have established a culture of lawlessness at the agency and casts a dark shadow on the reliability of the investigation of the murder of [Stacey]."

Viewing this evidence in conjunction with all of the gateway-actual-innocence evidence that we have previously considered and with the evidence presented at trial, we cannot say that Reed has established that no reasonable juror would have rendered a guilty verdict beyond a reasonable doubt. The totality of the evidence before us still supports a guilty verdict. Therefore, we conclude that Reed has failed to meet the gateway standard of innocence under Article 11.071, Section 5(a)(2).

Reed also contends that Officer Hall's statements and the former Bastrop County Sheriff's crimes of moral turpitude constitute evidence of actual innocence under Ex parte Elizondo and were suppressed in violation of Brady. This evidence does nothing to exonerate Reed of Stacey's murder; therefore, Reed has failed to make a prima facie showing of actual innocence under the Ex parte Elizondo standard. (15) Next, with regard to Reed's Brady claims, assuming that Brady is even applicable, (16) we conclude that his claims are conclusory and premised on nothing more than mere conjecture and speculation. Thus, Reed has not pled specific, particularized facts, that if true, would entitle him to relief. (17)

Based on the foregoing, we dismiss Reed's fourth subsequent application as an abuse of the writ.

DATE DELIVERED: January 14, 2009

DO NOT PUBLISH

1. Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) (not designated for publication).

2. Ex parte Reed, No. WR-50,961-01 (Tex. Crim. App. Feb. 13, 2002) (not designated for publication).

3. Ex parte Reed, No. WR-50,961-02 (Tex. Crim. App. Feb. 13, 2002) (not designated for publication).

4. Reed v. Dretke, No. A-02-CA-142-LY (W.D. Tex., Mar. 22, 2004).

5. 373 U.S. 83 (1963).

6. Ex parte Reed, No. WR-50,961-03 (Tex. Crim. App. Oct. 2005) (not designated for publication).

7. Ex parte Reed, AP-75,693, 2008 Tex. Crim. App. LEXIS 1569 (Tex. Crim. App. Dec. 17, 2008).

8. Ex parte Reed, Nos. WR-50,961-04 & -05.

9. But see United States v. Pelullo, 399 F.3d 197, 217 (3d Cir. 2005) ("the prosecution was under no obligation to 'ferret out evidence from another pending proceeding with a tenuous connection to the prosecution.'"); United States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) ("It is unrealistic to expect federal prosecutors to know all information possessed by state officials affecting a federal case, especially when the information results from an unrelated state investigation.").

10. See Tex. Code Crim. Proc. art. 11.071 § 5(e).

11. See Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1997).

12. Id. at 209.

13. Ex parte Reed, 2008 Tex. Crim. App. LEXIS 1569, at *95 (citing Ex parte Brooks, 219 S.W.3d 396, 399 (Tex. Crim. App. 2007)).

14. Id. at *96 (noting that we were considering all of the evidence presented on Reed's three prior applications but had serious doubt "that some of the evidence Reed cites constitutes new evidence for purposes of our [gateway] inquiry").

15. See Ex parte Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007); Ex parte Briseno, 135 S.W.3d 1, 3 (Tex. Crim. App. 2004).

16. See generally Petition for Writ of Certiorari, District Attorney's Office for the Third Judicial District, et al. v. Osborne, 129 S. Ct. 488 (No. 08-6), granted Nov. 3, 2008.

17. See Ex parte Staley, 160 S.W.3d 56, 64 (Tex. Crim. App. 2005).