Temple, David Mark
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Opinion
^.s^a. SCHNEIDER & McKINNEY, P.C. ATTORNEYS AT LAW 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951-9994 Telecopier: (713) 224-6008
Stanley G. Schneider* ? « Board Certified Criminal Law- Texas Board ofLegal Specialization W. Troy McKinneyef 9 SBoard Certified Criminal Appellate Law - Texas Board ofLegal Specialization Thomas D. Moran t BoardCertified DWIDefense - NationalCollegefor DUI Defense
September 2, 2015
Via Certified Mail RECEIVED IN Return Receipt Requested COURT OF CRIMINALAPPEALS No. 7014 2120 0002 7340 3712 SEP 04 201S Honorable Abel Acosta, Clerk Texas Court of Criminal Appeals Abel Acosta Clerk P.O. Box 12308 Austin, Texas 78701
Re: Ex parte David Mark Temple No. WR-78,545-02 Trial Court No. 1008763-A
Dear Mr. Acosta:
As a courtesy to you, enclosed please find 10 copies ofApplicant's Request That The Trial Court Enter Amended Findings ofFact and Conclusion ofLaw which were filed in the trial court on August 28, 2015. As always, your cooperation and assistance is appreciated.
Sincerely,
Stanley G. Schneider CAUSE NO. 1008763-A
EX PARTE § IN THE DISTRICT COURT § § HARRIS COUNTY, TEXAS § DAVID MARK TEMPLE § 178TH DISTRICT COURT
APPLICANT'S REQUESTS THAT THE COURT ENTER AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court entered Findings ofFact and Conclusions ofLawonJuly 6,2015, without
the benefit of the record from the habeas hearing that lasted 26 days and included 292
exhibits that totaled over 5000 pages. Prior to the entry of this Court's Findings, the State
and Applicant responded to questions propounded by the Court without the benefit of the
record. Applicant has reviewed the Court's factual findings and identified portions of the
record that provide the actual factual basis for them. Applicant requests that this Court
amend its Findings of Fact and Conclusions of Law to reflect the record.
Attached hereto for the convenience ofthe Court isa suggested amended Findings of
Fact and Conclusions ofLaw that is annotated with citations toclerk's record, the reporter's
record and the habeas record including testimony and exhibits. The annotations and
commentary are bold and bracketed. The commentary is limited to correct a fact that is not
accurate for example only 15 witnesses testified before the 1999 grandjury andnot30 as set
out inthe findings. RECEIVED IM COURT OF CRIMINAL APPEAL!
33IAH3S SEP 0 h 2015 .O^SQDJVN[WI«p A9 . Abel Acosta, Clerk
•"'Xzl 'X LN0G3 v:>» •'" ' . Ma3i5'in-iaistr "'3INVG Si*w- Further, Applicant has attached a disc that contains a PDF file that is hyperlinked to
the record so that the Court can facilitate review. The disc also contains the findings inword
format as well as a document with directions as to how to use the hyperlinked documents.
Applicant requests that the Court adopt the amended findings and file them with the
Harris County District Clerk and order that the amended findings and the accompanying disc forwarded to the Court of Criminal Appeals.
Wherefore premises considered, Applicant prays that this Court enter the amended
Findings of Fact and Conclusions of Law.
SCHNEIDER & McKINNEY, P.C.
STANLEY G. SCHNEIDER TJB.C.No. 17790500 440 Louisiana Suite 800 Houston, Texas 77002 OFFICE: 713-951-9994 FAX: 713-224-6008 EMAIL: stans3112@aol.com
ATTORNEY FOR APPLICANT CERTIFICATE OF SERVICE
This is to certify that a true and correct copy ofthe attached and foregoing document has been served on the Harris County District Attorney's Office by delivering same to 1201 Franklin, Houston, Texas 77002, on this ^° day ofAugust, 2015.
STANLEY G. SCHNEIDER INDEX
1. Annotated Temple Findings (Citations Only)
2. Annotated Temple Findings (Citations with Additional Support)
3. CD with Annotated Findings (PDF with linked sources and sources file) Annotated Temple Findings (Citations Only) No. 1008763-A
IN THE 178™ DISTRICT COURT OF
HARRIS COUNTY, TEXAS
EX PARTE
DAVID MARK TEMPLE
FINDINGS OF FACT AND
COUCLUSIONS OF LAW
INTRODUCTION; The defendant was convicted by a jury of the murder of his wife, Belinda
Temple, and sentenced to serve life in the Department of Corrections. The Defendant appealed
and the conviction wasaffirmed by the 14th Court of Appeals. Temple v. State, 342 S.W.3rd 572
(2010); The Defendant appealed that decision to the Texas Court of Criminal Appealswhich also
affirmed his conviction and sentence. Temple v. State, 390 S.W.3d 341 (2013).
The defendant then subsequently filed this application for writ of habeas corpus. The
defendant has advanced the following claims for relief:
1. The State suppressed evidence favorable to the Defense in violation of Kyles v.
Whitley, 514 U.S. 419 (1995) and Brady v. Maryland, 373U.S. 83 (1963).
2. The State suppressed evidence that would have impeached the trial testimony of
Riley Joe Sanders and Detectives Schmidt and Leitner in violation of United States v.
Bagley, 473 U.S. 667 (1985).
3. The Trial Court failed to disclose Grand Jury testimony favorable to the Defendant. 4. The Defendant received ineffective representation from his trial counsel for failure
to use information from the Defendant's father regarding the time available to the
Defendant to commit the offense.
5. The Defendant received ineffective representation from his trial counsel for failure
to get a continuance during trial.
6. The Trial Court deprived the Defendant of the right to investigate exculpatory
evidence regarding an alternative suspect.
7. The Defendant is entitled to a new trial based on newly discovered evidence.
8. The Defendant is actually innocent.
Many of these claims were raised in one fashion or another during the direct
appeals of this case. The Court of Appeals decision involved 61 pages and virtually all of
them were devoted to discussions of the facts of this cause.
The opinion of the Court of Criminal Appeals with much smaller print was on 23
pages and virtually the entire opinion dealt with intensive factual analysis. Those two
opinions highlight the critical nature of the facts of thiscase. The testimony is incredibly
complex and intertwined.
The investigation of this murder involved over 400 single spaced investigator's
reports. Over 30 witnesses appeared before the Grand Jury in the following months but
no indictment was returned. [WR32, DX-94-112, "Grand Jury Subpoenas"; WR32, DX-
92,"Grand Jury List of Witnesses"]. 5 years later the trial prosecutor took responsibility
of the case and she had the Defendant arrested. [CR1, P.3, "Complaint"]. Then 2 years later, the Defendant was indicted by a Grand Jury which apparently heard no witnesses.
[CRl, P.17, "2/28/2005 Indictment"]. The trial lasted for several weeks with the jury
finding the Defendant was guilty beyond a reasonable doubt. The trial testimony was
circumstantial and very fact specific, which lends some credibility to the current Defense
claim that critical exculpatory evidence was not disclosed.
The lead Prosecutor at trial was Kelly Siegler and the lead Defense Counsel was
Dick DeGuerin.
One of the major grounds on direct appeal dealt with a claim that the trial
Free access — add to your briefcase to read the full text and ask questions with AI
^.s^a. SCHNEIDER & McKINNEY, P.C. ATTORNEYS AT LAW 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951-9994 Telecopier: (713) 224-6008
Stanley G. Schneider* ? « Board Certified Criminal Law- Texas Board ofLegal Specialization W. Troy McKinneyef 9 SBoard Certified Criminal Appellate Law - Texas Board ofLegal Specialization Thomas D. Moran t BoardCertified DWIDefense - NationalCollegefor DUI Defense
September 2, 2015
Via Certified Mail RECEIVED IN Return Receipt Requested COURT OF CRIMINALAPPEALS No. 7014 2120 0002 7340 3712 SEP 04 201S Honorable Abel Acosta, Clerk Texas Court of Criminal Appeals Abel Acosta Clerk P.O. Box 12308 Austin, Texas 78701
Re: Ex parte David Mark Temple No. WR-78,545-02 Trial Court No. 1008763-A
Dear Mr. Acosta:
As a courtesy to you, enclosed please find 10 copies ofApplicant's Request That The Trial Court Enter Amended Findings ofFact and Conclusion ofLaw which were filed in the trial court on August 28, 2015. As always, your cooperation and assistance is appreciated.
Sincerely,
Stanley G. Schneider CAUSE NO. 1008763-A
EX PARTE § IN THE DISTRICT COURT § § HARRIS COUNTY, TEXAS § DAVID MARK TEMPLE § 178TH DISTRICT COURT
APPLICANT'S REQUESTS THAT THE COURT ENTER AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court entered Findings ofFact and Conclusions ofLawonJuly 6,2015, without
the benefit of the record from the habeas hearing that lasted 26 days and included 292
exhibits that totaled over 5000 pages. Prior to the entry of this Court's Findings, the State
and Applicant responded to questions propounded by the Court without the benefit of the
record. Applicant has reviewed the Court's factual findings and identified portions of the
record that provide the actual factual basis for them. Applicant requests that this Court
amend its Findings of Fact and Conclusions of Law to reflect the record.
Attached hereto for the convenience ofthe Court isa suggested amended Findings of
Fact and Conclusions ofLaw that is annotated with citations toclerk's record, the reporter's
record and the habeas record including testimony and exhibits. The annotations and
commentary are bold and bracketed. The commentary is limited to correct a fact that is not
accurate for example only 15 witnesses testified before the 1999 grandjury andnot30 as set
out inthe findings. RECEIVED IM COURT OF CRIMINAL APPEAL!
33IAH3S SEP 0 h 2015 .O^SQDJVN[WI«p A9 . Abel Acosta, Clerk
•"'Xzl 'X LN0G3 v:>» •'" ' . Ma3i5'in-iaistr "'3INVG Si*w- Further, Applicant has attached a disc that contains a PDF file that is hyperlinked to
the record so that the Court can facilitate review. The disc also contains the findings inword
format as well as a document with directions as to how to use the hyperlinked documents.
Applicant requests that the Court adopt the amended findings and file them with the
Harris County District Clerk and order that the amended findings and the accompanying disc forwarded to the Court of Criminal Appeals.
Wherefore premises considered, Applicant prays that this Court enter the amended
Findings of Fact and Conclusions of Law.
SCHNEIDER & McKINNEY, P.C.
STANLEY G. SCHNEIDER TJB.C.No. 17790500 440 Louisiana Suite 800 Houston, Texas 77002 OFFICE: 713-951-9994 FAX: 713-224-6008 EMAIL: stans3112@aol.com
ATTORNEY FOR APPLICANT CERTIFICATE OF SERVICE
This is to certify that a true and correct copy ofthe attached and foregoing document has been served on the Harris County District Attorney's Office by delivering same to 1201 Franklin, Houston, Texas 77002, on this ^° day ofAugust, 2015.
STANLEY G. SCHNEIDER INDEX
1. Annotated Temple Findings (Citations Only)
2. Annotated Temple Findings (Citations with Additional Support)
3. CD with Annotated Findings (PDF with linked sources and sources file) Annotated Temple Findings (Citations Only) No. 1008763-A
IN THE 178™ DISTRICT COURT OF
HARRIS COUNTY, TEXAS
EX PARTE
DAVID MARK TEMPLE
FINDINGS OF FACT AND
COUCLUSIONS OF LAW
INTRODUCTION; The defendant was convicted by a jury of the murder of his wife, Belinda
Temple, and sentenced to serve life in the Department of Corrections. The Defendant appealed
and the conviction wasaffirmed by the 14th Court of Appeals. Temple v. State, 342 S.W.3rd 572
(2010); The Defendant appealed that decision to the Texas Court of Criminal Appealswhich also
affirmed his conviction and sentence. Temple v. State, 390 S.W.3d 341 (2013).
The defendant then subsequently filed this application for writ of habeas corpus. The
defendant has advanced the following claims for relief:
1. The State suppressed evidence favorable to the Defense in violation of Kyles v.
Whitley, 514 U.S. 419 (1995) and Brady v. Maryland, 373U.S. 83 (1963).
2. The State suppressed evidence that would have impeached the trial testimony of
Riley Joe Sanders and Detectives Schmidt and Leitner in violation of United States v.
Bagley, 473 U.S. 667 (1985).
3. The Trial Court failed to disclose Grand Jury testimony favorable to the Defendant. 4. The Defendant received ineffective representation from his trial counsel for failure
to use information from the Defendant's father regarding the time available to the
Defendant to commit the offense.
5. The Defendant received ineffective representation from his trial counsel for failure
to get a continuance during trial.
6. The Trial Court deprived the Defendant of the right to investigate exculpatory
evidence regarding an alternative suspect.
7. The Defendant is entitled to a new trial based on newly discovered evidence.
8. The Defendant is actually innocent.
Many of these claims were raised in one fashion or another during the direct
appeals of this case. The Court of Appeals decision involved 61 pages and virtually all of
them were devoted to discussions of the facts of this cause.
The opinion of the Court of Criminal Appeals with much smaller print was on 23
pages and virtually the entire opinion dealt with intensive factual analysis. Those two
opinions highlight the critical nature of the facts of thiscase. The testimony is incredibly
complex and intertwined.
The investigation of this murder involved over 400 single spaced investigator's
reports. Over 30 witnesses appeared before the Grand Jury in the following months but
no indictment was returned. [WR32, DX-94-112, "Grand Jury Subpoenas"; WR32, DX-
92,"Grand Jury List of Witnesses"]. 5 years later the trial prosecutor took responsibility
of the case and she had the Defendant arrested. [CR1, P.3, "Complaint"]. Then 2 years later, the Defendant was indicted by a Grand Jury which apparently heard no witnesses.
[CRl, P.17, "2/28/2005 Indictment"]. The trial lasted for several weeks with the jury
finding the Defendant was guilty beyond a reasonable doubt. The trial testimony was
circumstantial and very fact specific, which lends some credibility to the current Defense
claim that critical exculpatory evidence was not disclosed.
The lead Prosecutor at trial was Kelly Siegler and the lead Defense Counsel was
Dick DeGuerin.
One of the major grounds on direct appeal dealt with a claim that the trial
prosecutor had engaged in misconduct to such a degree that it denied the Defendant a
fair trial. The claim was rejected by the Appellate Court, holding: "During the
emotionally charged four week trial, the prosecutor occasionally exceeded proper
questioning and argument when attacking the credibility of appellant and his family and
also apparently disobeyed or ignored a few of the trial court's rulings. While we
certainly condemn such tactics, in light of the whole record, we cannot conclude that
these errors were so prejudicial, or so inflamed the jury, that appellant was deprived of
his substantial rights or a fair trial."
The Court of Criminal Appeals held that the circumstantial evidence was
sufficient to support the conviction. But specifically, the Court held; "Appellant argues
that the evidence showing that Riley Joe Sanders, III had motive, opportunity and access
to a 12-gauge shotgun should have received more weight in the Court of Appeals
analysis. The pertinent information about Sanders was presented to the jury, including his activities on the day of the murder and his use of shotguns. Additionally, Sanders
himself testified. Appellant had the opportunity to cross-examine him, and the jury was
able to assess his credibility. Furthermore, the jury also heard testimony that Sanders
was repeatedly questioned and that the law enforcement officers were satisfied by his
responses. It is the province of the jury to assess the credibility and demeanor of the
witness. We are not the fact finders, and neither was the court of appeals. Further, it is
not the State's burden to exclude every conceivable alternative to a defendant's guilt.
Therefore, we hold that the evidence was sufficient to support Appellant's conviction
for murder. The jury was rationally justified in finding Appellant guilty beyond a
reasonable doubt."
It is thus apparent how critical the Defendant's current claims are. In the 2 and V2
month hearing conducted by this habeas Court, some things were absolutely clear. The
lead prosecutor and the Defendant's lead attorney had a personal and contentious
relationship and a professional battle of the highest degree. Both were famous and
neither could stand losing to the other. Of enormous significance was the prosecutor's
testimony at the habeas hearing that apparently favorable evidence did not need to be
disclosed ifthe State did not believe it was true. [WR7, P.249-50,255-57].
The Prosecutor also testified that although a large number of investigators were
involved, she only elected to call a small number because she did not want the defense
lawyer to have access to their offense reports. [WR8, P.97-101; WR31, DX-89 "Siegler
Subpoena List"]. At the time of this trial, the State was only obligated to provide
offense reports after a law enforcement officer had testified. [WR11, P.26, L.23-25 Holtke (WR30, DX-29) Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt
(WR30, DX-33); WR12, P.15, L.16-20; WR11, P.84].
The Prosecutor indicated that some exculpatory evidence was tendered to the
defense in the middle of the trial. This gave the defense attorney little time to digest
much less investigate that evidence. On one occasion, the defense did ask for a
continuance for this purpose but the request was denied by the trial judge.
The hearing conducted in this Court involved the lengthy examination of over 30
witnesses and over 200 exhibits [WRl, 14-33], many of which were extensive and
complex. Both the State and Defendant were permitted to tender proposed factual
findings and arguments, and based on the testimony and exhibits, the Court hereby
makes the following findings of facts and conclusions of law with regard to the
Defendant's claims:
FINDINGS OF FACT - INEFFECTIVE TRIAL REPRESENTATION
The Defendant now claims that his trial counsel, Dick DeGuerin was legally
ineffective to the extent that he was deprived of appropriate representation. The Court
hereby finds as facts:
1. Defense Counsel did not use Charles Kenneth Temple's written statement timeline.
2. Defense Counsel did file a Motion For Continuance when additional evidence was
disclosed during trial bythe Prosecutor. That Motion was denied by the Trial Judge.
Defense Counsel did not urge another Continuance. 3. On direct appeal, the Appellate Court found that Trial Counsel waived any Brady
claim based on the untimely motion for continuance and Counsel's failure to timely object at trial.
4. Trial Counsel received over 300 pages of offense reports [Holtke (WR30, DX-29)
Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt (WR30, DX-33)] to
digest during trial, including portions dealing with the investigation of Sanders and
his friends but made no objection regarding the large number of things that needed
to be investigated. [WR13, P.216, L.23-25; WR11, P.29-30; TR25, P.5-14].
CONCLUSIONS OF LAW- INEFFECTIVE REPRESENTATION
Strickland v. Washington, 466 U.S. 668 (1984) sets out the standards that apply
to claims of ineffective representation. See also Smith v. State, 286 S.W.3d 333 (Tex.
Crim. App. 2009); Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011). The
defendant is not entitled to errorless counsel but rather to objectively reasonable
representation.
To be entitled to prevail on a claim of ineffective representation, the defendant
must show that (1) counsel's representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense. The second
test must be sufficient to show that there was a probability sufficient to undermine
confidence in the trial outcome to the degree that but for counsel's deficient
performance, the result of the proceedings would have been different. Hernandez v.
State, 726 S.W.3d 53 (Tex. Crim. App. 1986). Trial counsel's performance was not perfect but much of the difficulty he faced
was driven by a constant resistance of the trial prosecutor to reveal necessary
information. Trial counsel continued to seek helpful information from the prosecutor
but little was disclosed prior to trial. While substantial information was disclosed by
the prosecutor during the trial, it was literally impossible for trial counsel to sufficiently
investigate, verify or dispute the disclosures. In most instances, defense counsel was
permitted to read documents and take notes but was not given copies.
The defendant's current claim that trial counsel provided
ineffective representation has not been shown to meet the
Strickland requirements and relief on this basis is not justified.
FINDINGS OF FACT - ACTUAL INNOCENCE - NEWLY DISCOVERED EVIDENCE
Some years after the conviction, Trial Counsel was contacted by Daniel Glasscock.
Counsel took a sworn statement from Glasscock as well as a video recording. Glasscock passed
a polygraph administered by the Harris County District Attorney's Office and retold his story a
second time to DA Investigator Steve Clappert. Glasscock also testified at the habeas hearing
conducted by this Court. The Court finds as a fact:
1. Glasscock told Trial Counsel that he overheard a conversation of Sanders shortly
after the murder of Belinda Temple. Sanders admitted shooting his shotgun during
the burglary of his neighbor's house. [WR28, DX-1 "Oral/Videotaped Deposition of
D. Glasscock"]. 2. In subsequent statements given to this Court as well as Prosecutors, Glasscock
substantially varied the facts originally given to Trial Counsel. In substance,
Glasscock repudiated the most important details to the extent that his future
credibility as a witness is significantly impaired. [WR28, SX-78 "Transcription of D.
Glasscock's Statement"; WR28, SX-79 "CD-D.GIasscock's Statement" (Media filed
as part of the record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT79.mp3.);
WR28, SX-80 "Transcription of Clappaifs interview of D. Glasscock's statement";
WR28, SX-81 "Recorded Conversation of D. Glasscock" (Media filed as part of the
record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-83
"Recorded conversation of D. Glasscock" (Media filed as part of the record, see
file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-84 "Recorded
conversation of D. Glasscock (Media filed as part of the record, see file: TEMPLE-
1008763-A-RR-STATE.EXHIBIT84.mp3.)].
CONCLUSIONS OF LAW - ACTUAL INNOCENCE-NEWLY DISCOVERED EVIDENCE
The defendant is required to establish by clear and convincing evidence that no
reasonable juror would have convicted him in light of the new evidence. Ex Parte
Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014). In order to determine whether the
defendant has met this standard, the court must examine the new evidence in light of
the evidence presented at trial. Ex Parte Thompson, 153 S.W.3d 417 (Tex. Crim. App.
2005); Ex Parte Elizondo, 947 S.W. 207 (Tex. Crim. App. 1996). A person claiming actual innocence must show that the new evidence creates a
doubt as to the correctness of the verdict sufficient to undermine confidence in the
verdict and that it is probable that the verdict would be different on retrial, Ex Parte
Holloway, 413 S.W.3d 95 (Tex. Crim. App. 2013) and that no reasonable juror would
have convicted him in light of the new evidence.
Further, the defendant has a "Herculean task" when urging a new trial because
of newly discovered evidence. Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App.
2014). This is because once the defendant has been afforded a fair trial and convicted,
the presumption of innocence disappears and it is entirely appropriate to apply an
extraordinarily high standard of review. Herrera v. Collins, 506 U.S. 390(1993).
The new evidence provided by Glasscock does not meet
this high standard even the version of his original statement to
Dick DeGuerin. It further fails in light of his recanting much of
his original statement. The defendant has not met the
"Herculean task" required, and relief based on actual innocence
is not justified.
FINDINGS OF FACT - EXCULPATORY EVIDENCE
The Court finds that trial prosecutors either intentionally, deliberately or negligently
failed to disclose the following facts to the defendant or disclosed the facts during the actual trial that prevented the defendant from fairly being able to timely investigate or effectively use
the evidence "irrespective of the good faith or bad faith of the prosecution" Brady v. Maryland,
supra:
1. The report prepared by Dep. Hernandez concerning recovery of the H& Rshotgun
was lost, destroyed or never prepared, showing when, how, where and from whom
the weapon was obtained. [WR5, P.76-84; WR12, P.127-30,169-70, 202-15; WR29,
DX-3, Bates 450; WR29, DX-3, Bates 460 "Holtke's Offense Report"; WR26, SX-17
"Pasadena Lab Report"; SX-18 "HCSO Supplement Report"; SX-19 "HCSO Report";
WR30, DX-4, "Leithner's Supplement Report"]; [WR11, P.34]; [WR11, P.35].
2. Natalie Scott told investigators that the victim was having problems with a student
and that she was worried that he knew where she lived. [WR29, DX-3, Bates 101-
02, "Page Offense Report 1/12/99"].
3. Riley Joe Sanders was interviewed by 7 different officers on 6 days. After Sanders
testified, the State did not disclose his oral statements [WR7, P.241; WR9, P.225]
from Jan. 11, 1999 [WR29, DX-3, Bates 51-52] Jan. 12, 1999 [WR 29, DX-3, Bates
89], Jan. 14, 1999 [WR 29, DX-3, Bates 77-78,105], Jan. 28, 1999 [WR12, P.127-30],
Jan. 29, 1999 [WR29, DX-3, Bates 250-52], Jan. 25, 1999, [WR29, DX-3, Bates 214-
17,"Hernandez Offense Report"] or Feb. 1, 1999 [WR27, DX-3, Bates 1939-40]; nor
did the State produce any of the polygraph tests or questions used in the
examinations. [TR25, P.5-14; WR3, P.9, L.10-14; WR9, P.192, L.11-P.194, L.1].
4. Cody Ellis was interviewed on Jan. 14 [WR29, DX-3, Bates 149-50], 25 [WR29, DX-3,
Bates 214-17], and 28 [WR29, DX-3, Bates 824-26] 1999, and Feb. 10, 1999 [WR29,
10 DX-3, Bates 279-80]. On the last occasion he was administered a polygraph test. He
never mentioned that he was in possession of Sander's H & R shotgun. Although
known to law enforcement, Ellis was never questioned about his hiding the H & R
shotgun, later recovered with a spent reloaded .00 buckshot shell still in the
chamber; how the weapon came to be wrapped in a blood spotted towel; and the
circumstances under which the H & R shotgun left Ellis' possession. [WR29, DX-3,
Bates 838-39 "Statement of Jonathan Pena"; WR32, DX-120, "Statement of Carlos
Corro"].
5. Recorded oral statements of Margaret Christenson [WR23, P.19, L.14-19] and Stacy
Ferguson, both of which saw the victim in the school parking lot shortly before her
murder. [WR35, DX-179 "Siegler's Handwritten List of Recorded Interviews";
WR35, DX-180 "Audiotapes"; WR23 P.17, L.l-13; WR23, P.21-22; WR23, P.25, L.5-
6].
6. On August 25, 2005 at a discovery hearing, the defendant requested all
"documentation of leads of other suspects." [TR4, P.45, L.20-22]. The Judge
ordered disclosure of "any reports, documentation which reports tips, leads as to
another person having committed this offense, that's Brady material." [TR4, P.46,
L.3-8 ("That certainly would be - - once again, this is a two-part request. Obviously
any reports, documentation which reports tips, leads as to another person having
committed this offense, thafs Brady material. She has a duty to disclose that to
you.")]. The trial prosecutor informed the Court that the police had checked out all
of the calls and nothing came of those efforts. [TR4, P.46, L.20-P.47, L.12], Relying
11 on the statement of the prosecutor, the Court denied the request. [WR30, DX-18,
"Affidavit/Partial Transcript of William Harmon"; TR4, P.48, L.5-8]. At that same
hearing, the trial prosecutor informed the Court that the weapons recovered had
nothing to do with the murder; that they were the wrong type of weapons; and the
wrong type of ammunition. [TR4 P.54, L.20-23]. Finally, the trial prosecutor told the
Court that there was no evidence favorable to the defense even though Mrs. had
called law enforcement stating that her husband may have killed the victim. [WR7,
P.244-45]. The Cain information was disclosed October 4, 2007, just 11 days prior to
the beginning of trial. [WR23, P.76-77; WR32, DX-118, "Partial Transcript Between
Siegler/DeGuerin"; WR29, DX-3, Bates 348].
7. Although required to disclose by the Court, the trial prosecutor did not disclose
evidence of the Parker's dog barking near the time of the murder. [TR4 P.46-48,
"August 25, 2005, Pretrial Hearing"; WR9, P.227-34; WR29, DX-3, Bates 19]. This
information was gained by the defendant on October 16, 2007 after the first witness
had testified. [TR9, P.97-102, P.115-17; WR32, DX-117, DX-117A, DX-117B,
"Transcripts of Parker Interviews, October 17, 2007"; WR26, SX-25 "Dick DeGuerin
Offense Report Notes"].
8. The State failed to produce prior to trial, the written statements of Cody Ellis, Cody
Towner, Michael Gradham, Johathon Pena, Riley Joe Sanders, Casey Goosby [WR29,
DX-3, Bates 263-65] or Carlos Corro, all of which would have supported an
alternative suspect claim. [WR9, P.225-28; WR12,195-96].
9. The trial prosecutor never produced an FBI report which profiled the possible killer.
12 [WR12, P.224-29, "Testimony of Det. Schmidt";WR30, DX-5, "FBI Report"].
10. In January, 1999, Riley Joe Sanders was interviewed by Officers Hernandez and
Lampson and gave 2 oral statements. [WR12, P.127-130; WR29, DX-3, Bates 250-
52,"Leithner Supplemental Offense Report"]. Neither was disclosed. [WR7, P.204,
241; WR9, P.225].
11. On January 28,1999, Cody Ellis give police a written statement. [WR29, DX-3, Bates
824-26]. He did not reveal nor was he asked about his possession of the H & R
shotgun. The written and oral statements were never disclosed. [WR7, P.204].
12. Jonathon Pena gave police a written statement indicating he was present at Casey
Goosby's home when Goosby, Cody Ellis and Carlos Corro planned the
Heatherington burglary; that shortly thereafter, Riley Sanders brought his H & R
shotgun from home to go shooting with them; and Cody Ellis told him later that he
was keeping Sanders shotgun under his bed. [WR29, DX-3, Bates 838-39].
13. On Feb. 1, 1999, Carlos Corro gave a written statement to police that he was aware
Cody Ellis had been hiding Sander's shotgun under his bed and that he had
participated in the Heatherington burglary. [WR29, DX-3, Bates 840-42; WR9,
P.188, L.24-25; WR9 P.189, L.l-6].
14. On Feb. 1, 1999, Randall Hess gave a written statement to police. [WR29, DX-3,
Bates 836-37]. He indicated that Sanders, Granthom and Towner had come to his
house around 3:30 pm on January 11, 1999, looking for drugs and acting goofy as if
they were already high. [WR29, DX-3, Bates 251, 257].
13 15. In January, 1999, Joe Sosa reported that on the day of the murder, Towner and
Granthom were at Sander's home at the time of the murder and that if you put a
pillow over the muzzle of a shotgun, it would muffle the sound. [WR31, DX-90,
"Schmidt's Offense Report"].
16. On Feb.l, 1999, Towner is given a polygraph test. The questions asked were never
disclosed. [WR3 P.9, L.10-14].
17. On Feb. 1, 1999, Granthom gave a written statement to law enforcement and the
contents have never been disclosed. [WR29, DX-3, Bates 251-52; WR32, DX-92 "List
of Grand Jury Witnesses"].
18. On Feb. 10, 1999, Granthom is given a polygraph test and although he was
determined to be deceptive, the questions asked were never disclosed. [WR3, P.9,
L.10-14].
19. On January 12, 1999, Dennis Hundle is interviewed. [WR29, DX-3, Bates 97]. Not
disclosed were his statements that on January 11, 1999, after 2 p.m. he sees 2 white
males in their 20's in a truck driving around the neighborhood and it appeared they
had no destination.
20. In March, 1999, Corros is arrested with Ellis and Goosby doing "donuts" on the green
belt in Katy, Texas and one was driving a white truck. [WR32, DX-127, "March 16,
1999, Ft. Bend Sheriffs Offense Report"; WR34, DX-141, "July 6,1999, Katy Police
Department Offense Report"].
21. The State misrepresented the name of Carlos Corro as Carlos Gutierrez. [TR26,
P.198, L.l-13, "Carlos Carrero"; TR26, P.227, L.9-14 "Carlos Gutierrez"; TR26, P.230,
14 L.2-5; TR26, P.233, L.23-25; WR32, DX-94 "Table of Contents from the Offense
Report with Siegler's handwritten notes"; WR13, P.215-16; WR13, P.196, P.212,
L21-P.214, L.18].
22. The State did not disclose the statement of Margaret Christian who saw the victim
talking to the defendant on her cell phone between 3:20 pm and 3:30 pm on the day
of her murder. [(TR15, P.159-183; WR23 P.16-17);WR23, P.25].
23. Det. Shipley repeatedly omitted favorable defense facts from her offense reports
when she documented "synopses" of audio statements. [WR30, DX-32, Bates 2201
"Shipley's Offense Report"].
24. The main prosecutor denied ever having seen or listened to these audio recordings
when in fact she was aware of them and had listened to them. [WR10, P.107-111;
WR35, DX-179, "Siegler's Handwritten List of Recorded Interviews"; WR35, DX-180
"Audiotape" (Media filed as DEFENSE.EXHIBIT.180.mp3); WR10, P.lll, L.10-15;
WR33, DX-129, P.43 "September 5, 2012, Curry email to his home address"; WR33,
DX-129, P.234; WR33, DX-129, P.70 "July 29, 2013, Email from Smith to Curry"].
25. The State did not disclose the identity of Denise Lavoris who could have confirmed
seeing the victim in the parking lot after school which would have helped the
defense timeline. [WR31, DX-89, "Subpoena List"; WR35, DX-180, "Audiotape"
(Media filed as DEFENSE.EXHIBIT.180.mp3) "Audiotape" (M. Christenson and S.
Ferguson both identify Denis Lavoris in their statements); WR32, DX-114 (Siegler's
handwritten notes); WR7, P. 136-138; WR33, DX-129, P.26 (Email from Curry to
Siegler)].
15 26. On January 25, 1999, Joe Cadena was interviewed by law enforcement and told
them that around 4:25-4:30 pm he heard what sounded like a backfire from a car on
the day of the murder. [WR27, SX-34, "Transcription of Conversation between
DeGuerin/Siegler"; WR12, P.223, L.ll-15.
27. The State's theory was that the defendant's dog (Shaka) was in the backyard at the
time of the murder. The State did not disclose witness statements from: Jackie and
Anthony Mata that the dog had access to the garage [WR29, DX-3, Bates 95]; Justin
Valdez that the dog had garage access and would act calm around him [WR29, DX-3,
Bates 85]; and Terry Schultz that the dog had access to the garage. [WR29, DX-3,
Bates 96; WR9, P.82, L.7-8].
28. Deputy Brian Scudder saw the defendant after the murder with his head in his hands
sobbing. [WR29, DX-3, Bates 17].
29. Roseanne Martinez reported that the defendant appeared weak kneed after
discovering the victim's body. [WR29, DX-3, Bates 178].
30. Riley Joe Sanders identified Ryan Bruno's house. In one statement, he indicated
nobody was home [WR29, DX-3, Bates 828] and in the other statement, that he had
stayed five minutes. [WR27, SX-45A "Sealed document, unsealed during hearing"
(RJS Grand Jury Testimony, 4/21/1999)]. Bruno was never interviewed nor was his
identity disclosed. [WR9, P.46-47 (Writ Testimony, K. Siegler); WR29, Bates 1570-
1572 (GJ Testimony of M. Granthom)].
16 31. The State did not disclose the Harris County administrative bulletin indicating that
the murder took place between 4:15 pm and 5:30 pm. [WR29, DX-3, Bates 3, "Case
Synopsis"].
32. During trial, the State failed to produce oral statements to law enforcement of
witnesses after they had testified. [WR7, P.241].
33. After conviction, the State's main prosecutor instructed law enforcement and
District Attorney Officials not to disclose records pursuant to an Open Records
request. [WR32, DX-115, "Siegler Email Chain, November 20, 2007"; WR30, DX-34,
"Siegler Email, November 30, 2007"]. Disclosure was made only after these writ
proceedings were initiated. [WR5, P.49-53; WR17, P.66-88].
34. Years after leaving the District Attorney's Office, the lead trial prosecutor learned
that Glasscock had approached Dick Deguerin. [WR31, DX-79, "Email Report",
"Bonds Email July 22, 2012"; WR35, DX-202, P.310 - 7/22/2012; WR33, DX-129,
P.437 "7/22/2012]. She then contacted a Sheriffs Deputy involved in the trial
investigation [WR19, P.281-82; WR35, DX-169, "Cell Phone Records of Holtke"] and
asked him to contact Glasscock and another witness [WR2, P.22-24 (Cody Ellis)]
before they could be contacted by the Special Prosecutor or current members of the
District Attorney's Office. [WR3, P.123, L19-P.124, L.20; WR30, DX-7,
"Affidavit/Arrest Warrant" (for Cody Ray Ellis); WR27, SX-43, "Sgt. Holtke Email to
Curry, September 5, 2012"]. The Deputy did so and afterwards, their stories were
significantly different than the original version. [WR27, SX-43; WR34, DX-137, "CD
Audio Recording of C. Ellis"; WR35, DX-202, P.249, P.476; WR34, DX-130,
17 "Cellphone Excel Spreadsheet WR35, DX-169, "Cell phone records of M. Holtke".
WR27, SX-49, "Holtke Supplemental Reporf (2012 Investigation); WR28, DX-1,
"Oral/Videotaped Deposition of Daniel Glasscock" (by Dick DeGuerin); WR26, SX-
11-12, "Audio Interview and Transcript of Audio Interview of D. Glasscock" (by
Steve Clappart); WR30, DX-6, "D. Glasscock Polygraph Report"; WR26, SX-13,
"Videotaped Deposition of D. Glasscock"; WR27, SX-51-52, "Clegg's and Minchev/s
Supplemental Reports"].
35. Additionally, long after leaving the District Attorney's Office, when the original lead
trial prosecutor learned of the newly discovered evidence investigation by the
Special Prosecutor [WR8, P.16-17; WR33, DX-129, P.291-94, September 11 & 12,
Email Exchange b/w Curry and Beers], she personally obtained representation for
Riley Joe Sanders from two very talented criminal defense lawyers, Mac Segrest and
Chip Lewis. [WR19, P.281-82. WR4, P.77, L.l-12; WR7, P.270, L.ll-13. WR33, DX-
129, P.291-94, September 11 & 12, Email Exchange b/w Curry and Beers].
36. After the trial, the lead prosecutor Kelly Siegler ran for District Attorney against Pat
Lykos and lost. [WR4, P.88]. After her defeat, she left the District Attorney's Office
but through friends who remained on the staff, learned that Dick Deguerin had
brought the Glasscock information to the new District Attorney for further
investigation. [WR19, P.241-47; WR4, P.88-96; WR7, P.274, L.13-15]. A Special
Prosecutor was appointed and faced significant difficulty in investigating the validity
of Glasscock's claim. [WR7, P.270-71; WR35, DX-202, P.676, "September 10, 2012,
Email from Durfee"; WR35, DX-202, P.676; WR35, DX-202, P.676]; WR35, DX-202,
18 P.440, "August 17, 2012, Email from Chin"; WR35, DX-202, P.700; WR3, P.122, L.9-
15; WR35, DX-202, P.676; WR35, DX-173, August 30, 2012 Email to Alan Curry re:
Grand Jury Subpoena; WR35, DX-202, P.698].
37. Siegler lied to the trial judge about the phone numbers for the Roberts being
disconnected. [TR6, P.7, L.25-P.8, L.8 (Pretrial Hearing October 4, 2007); WR35,
DX-198, "Siegler Emailto Clappart, October 4, 2007"].
CONCLUSIONS OF LAW - EXCULPATORY EVIDENCE
In Ex Parte Harleston 431 SW3d 67 (Tex. Crim. App. 2014), the Court held that when
reviewing a habeas court's findings of fact and conclusions of law, "we defer to those findings
and conclusions if they are supported by the record. We defer to those findings supported by
the record because the habeas court is the 'original factfinder' and is in the best position to
evaluate the credibility of the testifying witnesses. Ex Parte Reed, 271 SW3d 698 (Tex. Crim.
App. 2008). However, ourdeference is not a rubber stamp, and we can invoke our authority as
the ultimate fact finder to make contrary or alternative findings and conclusions when its
independent review of the record reveals that the trial judge's findings and conclusions are not
supported bythe record." See also Ex Parte Navarijo, 433 SW3d 558 (Tex. Crim. App. 2014).
In Ex Parte Villegas, 415 SW3d 885 (Tex. Crim. App. 2013) relief was granted because the
defense was not able to present "evidence of an alternative perpetrator". While it is true in the
current case that the defense was able to raise the issue of an alternative perpetrator, that
effort was limited and hampered by the State's failure to disclose a number of crucial pieces of
evidence that would have allowed a much more effective presentation of an alternative suspect
as well as to more effectively cross examine Riley Joe Sanders.
19 A similar situation existed in Ex Parte Miles, 359 SW3d 647 (Tex. Crim. App. 2012).
There the Court held that the defendant should get a new trial because the State had failed to
disclose police reports that indicated other suspects. The Court held that "the State failed to
disclose evidence which had been known to the prosecution but unknown to the defense.
United States v. Agurs, 427 U.S. 97 (1976). Even if the prosecution was not personally aware of
the evidence, the State is not relieved of its duty to disclose because 'the State' includes in
addition to the prosecutors, other lawyers and employees in his office and members of law
enforcement connected to the investigation and prosecution of the case." Kyles v. Whitley, 514
U.S. 419 (1995); Ex Parte Reed, 271 SW3d 698 (Tex. Crim. App. 2008). The Court also held that
"the two undisclosed police reports are exculpatory and could have constituted impeachment
evidence within the purview of Brady." Defense counsel asserted that the undisclosed reports
"would have allowed him, at a minimum, to develop an alternate theory for the shooting". The
Court ultimately held that "the disclosure of all of this information to the jury could have
significantly undermined the confidence in the State's case."
That is exactly the situation at hand. The ultimate issue is whether the State's
nondisclosure or late partial disclosure was sufficient to deny the defendant a fair trial.
The current prosecutors make a strong case urging that the trial jury heard the
testimony and cross-examination of both the defendant and Riley Joe Sanders. The jury
determined their credibility and elected to accept the testimony of Sanders and reject the
testimony of the defendant. The jury then unanimously found the defendant guilty beyond a
reasonable doubt.
20 But the story doesn't end there. The decision facing this habeas court is whether the
non-disclosed or late disclosed information could have caused a different result. Like it or not
this Court has the duty to make that determination and it is likewise the duty of the Court of
Criminal Appeals to accept the conclusion or to reach a different result.
Under both Brady v Maryland 373 U.S. 87 and United States v. Bagley, 473 U.S. 667
(1985), a defendant must show: (1) the State failed to disclose evidence, regardless of the
prosecution's good or bad faith; (2) the evidence was favorable to the defendant; and (3) the
evidence is material and there would be a reasonable probability that had the evidence been
disclosed, the outcome of the trial would have been different. The Courts also held that
"favorable evidence includes exculpatory evidence as well as impeachment evidence." They
defined impeachment evidence as "evidence which disputes, disparages, denies or contradicts
other evidence."
The Court further stated; "The mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the outcome of the trial does not
establish materiality in the constitutional sense. The defendant must show that 'in the light of
all of the evidence, it is reasonably probable that the outcome of the trial would have been
different had the prosecutor made a timely disclosure. Thus, sometimes what appears to be a
relatively inconsequential piece of potentially exculpatory evidence may take on added
significance in light of other evidence at trial."
In Brady, the defendant contended that if the evidence had been disclosed, he would
have modified his defensive strategies and the State would have had to alter its arguments.
21 That is exactly the contention currently advanced by the defendant's counsel. See also Pena v.
State, 353 SW3d 797 (Tex. Crim. App. 2011).
This trial was very very fact specific. The case was circumstantial and both the Court of
Appeals and the Court of Criminal Appeals devoted the majority of their long opinions to
carefully reviewing the multitude of small details. That analysis increases the importance of the
non-disclosed or late disclosed evidence at issue here.
In addition, the Court of Appeals in this cause found numerous instances of
prosecutorial misconduct, but concluded: "While we certainly condemn such tactics, in light of
the whole record, we cannot conclude that these errors were so prejudicial, or so inflamed the
jury, that appellant was deprived of his substantial rights or a fair trial." The findings of this
habeas Court enlarge and enhance that conclusion, and magnify the determination that the
defendant was denied a fair trial.
As the Supreme Court noted in Brady: "Not without some doubt, we conclude that the
withholding (of evidence) was prejudicial to the defendant Brady."
After careful consideration and review of the law and all of the
evidence produced at trial and in the writ hearing, "not without some
doubt" the Court concludes that the defendant has shown he was
denied a fair trial because of the State's failure to disclose or timely
disclose favorable evidence; and had that evidence been disclosed or
22 disclosed timely, the results of the trial would have been different.
This Court recommends that the Court of Criminal Appeals grant the
defendant a new trial in this case.
In conclusion, the Court expresses its deep gratitude to, and admiration of, the
outstanding lawyers who represented both the defendant and the State at this lengthy habeas
hearing. Their preparation and representation of their respective positions in an exceptionally
professional and cooperative manner demonstrates the highest quality of our legal system.
Signed and entered on this the 6th day of July, 2015.
Larry Gist, Judge Presiding
23 2. Annotated Temple Findings (Citations with Additional Support)
t,M. . '. ,*&. «J*i£ltlL£J'~.& 4...«. »,I . No. 1008763-A
INTRODUCTION; The defendant was convicted by a jury of the murder of his wife, Belinda
Temple, and sentenced to serve life in the Department of Corrections. The Defendant appealed
and the conviction was affirmed by the 14th Court of Appeals. Temple v. State, 342S.W.3rd 572
(2010); The Defendant appealed that decision to the Texas Court of Criminal Appeals which also
affirmed his conviction and sentence. Temple v. State, 390 S.W.3d 341 (2013).
The defendant then subsequently filed this application for writ of habeas corpus. The
1. The State suppressed evidence favorable to the Defense in violation of Kyles v.
Whitley, 514 U.S. 419 (1995) and Brady v. Maryland. 373U.S. 83 (1963).
2. The State suppressed evidence that would have impeached the trial testimony of
Riley Joe Sanders and Detectives Schmidt and Leitner in violation of United States v.
Baglev, 473 U.S. 667 (1985).
3. The Trial Court failed to disclose Grand Jury testimony favorable to the Defendant. 4. The Defendant received ineffective representation from his trial counsel for failure
to use information from the Defendant's father regarding the time available to the
5. The Defendant received ineffective representation from his trial counsel for failure
6. The Trial Court deprived the Defendant of the right to investigate exculpatory
7. The Defendant is entitled to a new trial based on newly discovered evidence.
Many of these claims were raised in one fashion or another during the direct
appeals of this case. The Court of Appeals decision involved 61 pages and virtually all of
The opinion of the Court of Criminal Appeals with much smaller print was on 23
pages and virtually the entire opinion dealt with intensive factual analysis. Those two
opinions highlight the critical nature of the facts of this case. The testimony is incredibly
The investigation of this murder involved over 400 single spaced investigator's
reports. Over 30 witnesses appeared before the Grand Jury in the following months but
no indictment was returned. [WR32, DX-94-112, "Grand Jury Subpoenas" (19 total
subpoenas); WR32, DX-92, "Grand Jury List of Witnesses " (15 witnesses testified
before the Grand Jury)]. 5 years later the trial prosecutor took responsibility of the case and she had the Defendant arrested on November 30, 2004. [CRl, P.3, "Complaint"].
DeGuerin appeared as counsel of record on December 3, 2004. [CRl, P.5]. Then 2
years later, the Defendant was indicted by a Grand Jury which apparently heard no
witnesses. [CRl, P.17, "2/28/2005 Indictment"]. The trial lasted for several weeks with
the jury finding the Defendant was guilty beyond a reasonable doubt. The trial
testimony was circumstantial and very fact specific, which lends some credibility to the
current Defense claim that critical exculpatory evidence was not disclosed.
The lead Prosecutor at trial was Kelly Siegler and the lead Defense Counsel was
One of the major grounds on direct appeal dealt with a claim that the trial
prosecutor had engaged in misconduct to such a degree that it denied the Defendant a
fair trial. The claim was rejected by the Appellate Court, holding: "During the
emotionally charged four week trial, the prosecutor occasionally exceeded proper
questioning and argument when attacking the credibility of appellant and his family and
also apparently disobeyed or ignored a few of the trial court's rulings. While we
certainly condemn such tactics, in light of the whole record, we cannot conclude that
these errors were so prejudicial, or so inflamed the jury, that appellant was deprived of
The Court of Criminal Appeals held that the circumstantial evidence was
sufficient to support the conviction. But specifically, the Court held; "Appellant argues
that the evidence showing that Riley Joe Sanders, III had motive, opportunity and access to a 12-gauge shotgun should have received more weight in the Court of Appeals
analysis. The pertinent information about Sanders was presented to the jury, including
his activities on the day of the murder and his use of shotguns. Additionally, Sanders
himself testified. Appellant had the opportunity to cross-examine him, and the jurywas
able to assess his credibility. Furthermore, the jury also heard testimony that Sanders
was repeatedly questioned and that the law enforcement officers were satisfied by his
responses. It is the province of the jury to assess the credibility and demeanor of the
witness. We are not the fact finders, and neither was the court of appeals. Further, it is
not the State's burden to exclude every conceivable alternative to a defendant's guilt.
Therefore, we hold that the evidence was sufficient to support Appellant's conviction
for murder. The jury was rationally justified in finding Appellant guilty beyond a
It is thus apparent how critical the Defendant's current claims are. In the 2 and Vi
month hearing conducted by this habeas Court, some things were absolutely clear. The
lead prosecutor and the Defendant's lead attorney had a personal and contentious
relationship and a professional battle of the highest degree. Both were famous and
neither could stand losing to the other. Of enormous significance was the prosecutor's
testimony at the habeas hearing that apparently favorable evidence did not need to be
disclosed ifthe State did not believe it was true. [WR7, P.249-50, 255-57].
The Prosecutor also testified that although a large number of investigators were
involved, she only elected to call a small number because she did not want the defense
lawyer to have access to their offense reports. [WR8, P.97-101; WR31, DX-89 "Siegler 4 Subpoena List"]. At the time of this trial, the State was only obligated to provide
offense reports after a law enforcement officer had testified. [WR11, P.26, L.23-25. In
tendering only those reports for Holtke (WR30, DX-29) Leitner (WR30, DX-31) Shipley
(WR30, DX-32) and Schmidt (WR30, DX-33), defense counsel was prevented from
discovering the complete investigation of each testifying officer. WR12, P.15, L.16-20;
Bock, Whichkowski, Scudder, Hernandez, Gonzalez and Jones were excluded from
Siegler's list. Without offense reports or inclusion on a subpoenas list, defense
counsel could not have discovered who all participated in the investigation. WR11,
P.84].
The Prosecutor indicated that some exculpatory evidence was tendered to the
defense in the middle of the trial. This gave the defense attorney little time to digest
much less investigate that evidence. On one occasion, the defense did ask for a
continuance for this purpose but the request was denied by the trial judge.
The hearing conducted in this Court involved the lengthy examination of over 30
witnesses and over 200 exhibits [WRl, 14-33 (292 Total Exhibits)], many of which were
extensive and complex. Both the State and Defendant were permitted to tender
proposed factual findings and arguments, and based on the testimony and exhibits, the
Court hereby makes the following findings of facts and conclusions of law with regard to
the Defendant's claims: FINDINGS OF FACT - INEFFECTIVE TRIAL REPRESENTATION
The Defendant now claims that his trial counsel, Dick DeGuerin was legally
ineffective to the extent that he was deprived of appropriate representation. The Court
1. Defense Counsel did not use Charles Kenneth Temple's written statement timeline.
2. Defense Counsel did file a Motion For Continuance when additional evidence was
disclosed during trial by the Prosecutor. That Motion was denied by the Trial Judge.
Defense Counsel did not urge another Continuance.
3. On direct appeal, the Appellate Court found that Trial Counsel waived any Brady
claim based on the untimely motion for continuance and Counsel's failure to timely
object at trial.
4. Trial Counsel received over 300 pages of offense reports [Holtke (WR30, DX-29)
Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt (WR30, DX-33)] to
digest during trial, including portions dealing with the investigation of Sanders and
his friends but made no objection regarding the large number of things that needed
to be investigated. Det. Schmidt approximated 4-6 hours to review 150 pages of
offense report. [WR13, P.216, L.23-25]. The Lead Prosecutor would only allow
Trial Counsel to review the reports within the interior of the court. [WR11, P.29-
30]. Trial counsel only mentions "Casey Goosby" by name in urging the
continuance. [TR25, P.5-14]. CONCLUSIONS OF LAW - INEFFECTIVE REPRESENTATION
Strickland v. Washington, 466 U.S. 668 (1984) sets out the standards that apply
to claims of ineffective representation. See also Smith v. State, 286 S.W.3d 333 (Tex.
Crim. App. 2009); Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011). The
defendant is not entitled to errorless counsel but rather to objectively reasonable
To be entitled to prevail on a claim of ineffective representation, the defendant
must show that (1) counsel's representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense. The second
test must be sufficient to show that there was a probability sufficient to undermine
confidence in the trial outcome to the degree that but for counsel's deficient
performance, the result of the proceedings would have been different. Hernandez v.
State, 726 S.W.3d 53 (Tex. Crim. App. 1986).
Trial counsel's performance was not perfect but much of the difficulty he faced
was driven by a constant resistance of the trial prosecutor to reveal necessary
information. Trial counsel continued to seek helpful information from the prosecutor
but little was disclosed prior to trial. While substantial information was disclosed by
the prosecutor during the trial, it was literally impossible for trial counsel to sufficiently
investigate, verify or dispute the disclosures. In most instances, defense counsel was
permitted to read documents and take notes but was not given copies. The defendant's current claim that trial counsel provided
Strickland requirements and relief on this basis is not justified.
FINDINGS OF FACT - ACTUAL INNOCENCE - NEWLY DISCOVERED EVIDENCE
Some years after the conviction, Trial Counsel was contacted by Daniel Glasscock.
Counsel took a sworn statement from Glasscock as well as a video recording. Glasscock passed
a polygraph administered by the Harris County District Attorney's Office and retold his story a
second time to DA Investigator Steve Clappert. Glasscock also testified at the habeas hearing
1. Glasscock told Trial Counsel that he overheard a conversation of Sanders shortly
after the murder of Belinda Temple. Sanders admitted shooting his shotgun during
the burglary of his neighbor's house. [WR28, DX-1 "Oral/Videotaped Deposition of
D. Glasscock"].
2. In subsequent statements given to this Court as well as Prosecutors, Glasscock
substantially varied the facts originally given to Trial Counsel. In substance,
Glasscock repudiated the most important details to the extent that his future
credibility as a witness is significantly impaired. [WR28, SX-78 "Transcription of D.
Glasscock's Statement"; WR28, SX-79 "CD-D.GIasscock's Statement" (Media filed
as part of the record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT79.mp3.);
WR28, SX-80 "Transcription of Clappart's interview of D. Glasscock's statement"; WR28, SX-81 "Recorded Conversation of D. Glasscock" (Media filed as part of the
record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-83
"Recorded conversation of D. Glasscock" (Media filed as part of the record, see
file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-84 "Recorded
conversation of D. Glasscock (Media filed as part of the record, see file: TEMPLE-
CONCLUSIONS OF LAW - ACTUAL INNOCENCE-NEWLY DISCOVERED EVIDENCE
The defendant is required to establish by clear and convincing evidence that no
reasonable juror would have convicted him in light of the new evidence. Ex Parte
Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014). In order to determine whether the
defendant has met this standard, the court must examine the new evidence in light of
the evidence presented at trial. Ex Parte Thompson, 153 S.W.3d 417 (Tex. Crim. App.
2005); Ex Parte Elizondo, 947 S.W. 207 (Tex. Crim. App. 1996).
Aperson claiming actual innocence must show that the new evidence creates a
doubt as to the correctness of the verdict sufficient to undermine confidence in the
verdict and that it is probable that the verdict would be different on retrial, Ex Parte
Holloway, 413 S.W.3d 95 (Tex. Crim. App. 2013) and that no reasonable juror would
Further, the defendant has a "Herculean task" when urging a new trial because
of newly discovered evidence. Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App.
2014). This is because once the defendant has been afforded a fair trial and convicted, the presumption of innocence disappears and it is entirely appropriate to apply an
extraordinarily high standard of review. Herrera v. Collins. 506 U.S. 390 (1993).
this high standard even the version of his original statement to
Dick DeGuerin. It further fails in light of his recanting much of
his origmal statement. The defendant has not met the
"Herculean task" required, and relief based on actual innocence
The Court finds that trial prosecutors either intentionally, deliberately or negligently
failed to disclose the following facts to the defendant or disclosed the facts during the actual
trial that prevented the defendant from fairly being able to timely investigate or effectively use
the evidence "irrespective of the good faith or bad faith of the prosecution" Brady v. Maryland.
1. The report prepared by Dep. Hernandez concerning recovery of the H & Rshotgun
was lost, destroyed or never prepared, showing when, how, where and from whom
the weapon was obtained. [WR5, P.76-84; WR12, P.127-30,169-70, 202-15; WR29,
DX-3, Bates 450; WR29, DX-3, Bates 460 "Holtke's Offense Report"; WR26, SX-17
"Pasadena Lab Report"; SX-18 "HCSO Supplement Report"; SX-19 "HCSO Report";
10 WR30, DX-4, "Leithner's Supplement Report"]. The H & R shotgun was recovered
with a spent reloaded .00 buckshot shell still in the chamber. [WR11, P.34]. This
was consistent with the same type of ammunition that was used in the murder of
Belinda Temple [WR11, P.35].
2. Natalie Scott told investigators that the victim was having problems with a student
and that she was worried that he knew where she lived. [WR29, DX-3, Bates 101-
3. Riley Joe Sanders was interviewed by 7 different officers on 6 days. After Sanders
testified, the State did not disclose his oral statements [WR7, P.241; WR9, P.225]
from Jan. 11, 1999 [WR29, DX-3, Bates 51-52] Jan. 12, 1999 [WR 29, DX-3, Bates
89], Jan. 14, 1999 [WR 29, DX-3, Bates 77-78, 105], Jan. 28, 1999 [WR12, P.127-30],
Jan. 29, 1999 [WR29, DX-3, Bates 250-52], Jan. 25, 1999, [WR29, DX-3, Bates 214-
17, "Hernandez Offense Report"] or Feb. 1, 1999 [WR27, DX-3, Bates 1939-40]; nor
did the State produce any of the polygraph tests or questions used in the
examinations. [TR25, P.5-14; WR3, P.9, L.10-14; WR9, P.192, L.11-P.194, L.1 (a
third polygraph on Sanders was lost or destroyed)].
4. Cody Ellis was interviewed on Jan. 14 [WR29, DX-3, Bates 149-50], 25 [WR29, DX-3,
Bates 214-17], and 28 [WR29, DX-3, Bates 824-26] 1999, and Feb. 10, 1999 [WR29,
DX-3, Bates 279-80]. On the last occasion he was administered a polygraph test. He
never mentioned that he was in possession of Sander's H & Rshotgun. Although
known to law enforcement, Ellis was never questioned about his hiding the H & R
shotgun, later recovered with a spent reloaded .00 buckshot shell still in the
11 chamber; how the weapon came to be wrapped in a blood spotted towel; and the
circumstances under which the H & R shotgun left Ellis' possession. [WR29, DX-3,
Bates 838-39 "Statement of Jonathan Pena"; WR32, DX-120, "Statement of Carlos
5. Recorded oral statements of Margaret Christenson [WR23, P.19, L.14-19; reporting
that she'd talked to Stacy Ferguson and Denise Lavoris about them seeing Belinda
Temple in the parking lot after school on the phone with David] and Stacy
Ferguson, both of which saw the victim in the school parking lot shortly before her
murder. [WR35, DX-179 "Siegler's Handwritten List of Recorded Interviews";
WR35, DX-180 "Audiotapes"; WR23 P.17, L.l-13. Neither recorded statement was
turned over to the defense after they testified; WR23, P.21-22 Stacey Nissley said
the kid next door to Belinda was dangerous; WR23, P.25, L.5-6].
6. On August 25, 2005 at a discovery hearing, the defendant requested all
"documentation of leads of other suspects." [TR4, P.45, L.20-22]. The Judge
ordered disclosure of "any reports, documentation which reports tips, leads as to
another person having committed this offense, that's Brady material." [TR4, P.46,
L.3-8 ("That certainly would be - - once again, this is a two-part request. Obviously
any reports, documentation which reports tips, leads as to another person having
committed this offense, that's Brady material. She has a duty to disclose that to
you.")]. The trial prosecutor informed the Court that the police had checked out all
of the calls and nothing came of those efforts. [TR4, P.46, L.20-P.47, L.12]. Relying
on the statement of the prosecutor, the Court denied the request. [WR30, DX-18,
12 "Affidavit/Partial Transcript of William Harmon"; TR4, P.48, L.5-8]. At that same
hearing, the trial prosecutor informed the Court that the weapons recovered had
nothing to do with the murder; that they were the wrong type of weapons; and the
wrong type of ammunition. [TR4 P.54, L.20-23]. Finally, the trial prosecutor told the
Court that there was no evidence favorable to the defense even though Mrs. had
called law enforcement stating that her husband may have killed the victim. [WR7,
P.244-45]. The Cain information was disclosed October 4, 2007, just 11 days prior to
the beginning of trial. [WR23, P.76-77; WR32, DX-118, "Partial Transcript Between
Siegler/DeGuerin"; WR29, DX-3, Bates 348, (Mrs. Cain made her report on
November 5, 2004)].
7. Although required to disclose by the Court, the trial prosecutor did not disclose
evidence of the Parker's dog barking near the time of the murder. [TR4 P.46-48,
"August 25, 2005, Pretrial Hearing"; WR9, P.227-34; WR29, DX-3, Bates 19]. This
information was gained by the defendant on October 16, 2007 after the first witness
had testified. [TR9, P.97-102, P.115-17; WR32, DX-117, DX-117A, DX-117B,
"Transcripts of Parker Interviews, October 17, 2007"]. The prosecutor failed to
include information about the Parkers when she was reading the particular
offense report containing the information to defense counsel. WR26, SX-25 "Dick
DeGuerin Offense Report Notes"].
8. The State failed to produce prior to trial, the written statements of Cody Ellis, Cody
Towner, Michael Gradham, Johathon Pena, Riley Joe Sanders, Casey Goosby [WR29,
DX-3, Bates 263-65 (only an oral statement of Casey Goosby)] or Carlos Corro, all of
13 which would have supported an alternative suspect claim. [WR9, P.225-28; WR12
195-96].
9. The trial prosecutor never produced an FBI report which profiled the possible killer.
[WR12, P.224-29, "Testimony of Det. Schmidt"; WR30, DX-5, "FBI Report"].
10. In January, 1999, Riley Joe Sanders was interviewed by Officers Hernandez and
Lampson and gave 2 oral statements. [WR12, P.127-130 (These interviews took
place on January 28 and 29); WR29, DX-3, Bates 250-52, "Leithner Supplemental
Offense Report"]. Neither was disclosed. [WR7, P.204, 241;WR9, P.225].
11. On January 28,1999, Cody Ellis give police a written statement. [WR29, DX-3, Bates
824-26]. He did not reveal nor was he asked about his possession of the H & R
shotgun. The written and oral statements were never disclosed. [WR7, P.204].
12. Jonathon Pena gave police a written statement indicating he was present at Casey
Goosby's home when Goosby, Cody Ellis and Carlos Corro planned the
Heatherington burglary; that shortly thereafter, Riley Sanders brought his H & R
shotgun from home to go shooting with them; and Cody Ellis told him later that he
was keepingSanders shotgun under his bed. [WR29, DX-3, Bates 838-39].
13. On Feb. 1,1999, Carlos Corro gave a written statement to police that he was aware
Cody Ellis had been hiding Sander's shotgun under his bed and that he had
participated in the Heatherington burglary. [WR29, DX-3, Bates 840-42; WR9,
14. On Feb. 1, 1999, Randall Hess gave a written statement to police. [WR29, DX-3,
Bates 836-37]. He indicated that Sanders, Granthom and Towner had come to his
14 house around 3:30 pm on January 11, 1999, looking for drugs and acting goofy as if
15. In January, 1999, Joe Sosa reported that on the day of the murder, Towner and
Granthom were at Sander's home at the time of the murder and that if you put a
pillow over the muzzle of a shotgun, it would muffle the sound. [WR31, DX-90,
16. On Feb.l, 1999, Towner is given a polygraph test. The questions asked were never
17. On Feb. 1, 1999, Granthom gave a written statement to law enforcement and the
contents have never been disclosed. [WR29, DX-3, Bates 251-52 (NOTE: When
Siegler tendered a list of persons who testified by the before the grand jury, she
identified Granthom as "Michael Joseph GRADAM"); WR32, DX-92 "List of Grand
Jury Witnesses"].
18. On Feb. 10, 1999, Granthom is given a polygraph test and although he was
determined to be deceptive, the questions asked were never disclosed. [WR3, P.9,
19. On January 12, 1999, Dennis Hundle is interviewed. [WR29, DX-3, Bates 97]. Not
disclosed were his statements that on January 11,1999, after 2 p.m. he sees 2 white
males in their 20's in a truck driving around the neighborhood and it appeared they
20. In March, 1999, Corros is arrested with Ellis and Goosby doing "donuts" on the green
belt in Katy, Texas and one was driving a white truck. [WR32, DX-127, "March 16,
15 1999, Ft. Bend Sheriffs Offense Report" ("donut" driver of the small white car is
Carlos Corros); WR34, DX-141, "July 6, 1999, Katy Police Department Offense
Report" (Corro was a passenger in a white Dodge Ram pick-up truck)].
21. The State misrepresented the name of Carlos Corro as Carlos Gutierrez. [TR26,
P.198, L.l-13, "Carlos Carrero"; TR26, P.227, L.9-14 "Carlos Gutierrez"; TR26, P.230,
L.2-5; TR26, P.233, L.23-25; WR32, DX-94 "Table of Contents from the Offense
Report with Siegler's handwritten notes". Siegler obtained access to the entire
offense report as early as November 2004. WR13, P.215-16. The offense reports
are replete with references to Corro. Siegler was meticulous in her trial
preparation and could not have been unaware of Corro's true identity. WR13,
P.196, P.212, L.21-P.214, L.18].
22. The State did not disclose the statement of Margaret Christian who saw the victim
talkingto the defendant on her cell phone between 3:20 pm and 3:30 pm on the day
of her murder. [(TR15, P.159-183; WR23 P.16-17). The State did not disclose the
statement of Stacy Nissley who reported that Belinda believed the boy next door
was dangerous, WR23, P.25].
23. Det. Shipley repeatedly omitted favorable defense facts from her offense reports
when she documented "synopses" of audio statements. [WR30, DX-32, Bates 2201
24. The main prosecutor denied ever having seen or listened to these audio recordings
when in fact she was aware of them and had listened to them. [WR10, P.107-111;
WR35, DX-179, "Siegler's Handwritten List of Recorded Interviews"; WR35, DX-180
16 "Audiotape" (Media filed as DEFENSE.EXHIBIT.180.mp3). During the writ hearing,
the State represented to the court there were no other tapes in the states
possession. WR10, P.lll, L.10-15. Open records production revealed Alan Curry
had created an inventory of the 11 boxes containing the State's file on Temple
entitled "File Summary." WR33, DX-129, P.43 "September 5, 2012, Curry email to
his home address". Within that document was an entry "Manila folder labeled
"Taped WS's by Lampson / Shipley," containing One sheet of paper Two cassette
recordings." On July 11, 2012, Curry forwarded that summary to Richard Holland.
WR33, DX-129, P.234. On July 30, 2012, Andrew Smith emailed Curry so "the writs
division could take over possession of the file." WR33, DX-129, P.70 "July 29, 2013,
Email from Smith to Curry"].
25. The State did not disclose the identity of Denise Lavoris who could have confirmed
seeing the victim in the parking lot after school which would have helped the
defense timeline. [WR31, DX-89, "Subpoena List"; WR35, DX-180, "Audiotape"
(Media filed as DEFENSE.EXHIBIT.180.mp3) "Audiotape" (M. Christenson and S.
Ferguson both identify Denis Lavoris in their statements); The State's theory was
predicated on a 45 minute window of opportunity, from 3:45pm to 3:32pm.
WR32, DX-114 (Siegler's handwritten notes). Siegler testified that the timeline
was crucial and it was going to be 'problematic' for the State. WR7, P. 136-138. On
June 20, after oral arguments on Temple's Petition for Discretionary Review, Curry
informs Siegler "A couple of the judges were concerned about the tight time frame
in which the defendant needed to do all that he did in order to commit the offense
17 and stage the burglary and drive all around Katy." WR33, DX-129, P.26 (Email from
Curry to Siegler)].
26. On January 25, 1999, Joe Cadena was interviewed by law enforcement and told
them that around 4:25-4:30 pm he heard what sounded like a backfire from a car on
the day of the murder. [WR27, SX-34, "Transcription of Conversation between
DeGuerin/Siegler" (Siegler referencing Cadena Statement). During the writ
hearing, lead investigator admitted Cadena was one of seven witnesses that
reported hearing a possible gunshot at approximately 4:30PM - Joe Cadena, Jim
and Kathy Parker and the 3 Roberts boys. WR12, P.223, L.ll-15.
27. The State's theory was that the defendant's dog (Shaka) was in the backyard at the
time of the murder. The State did not disclose witness statements from: Jackie and
Anthony Mata that the dog had access to the garage [WR29, DX-3, Bates 95]; Justin
Valdez that the dog had garage access and would act calm around him [WR29, DX-3,
Bates 85]; and Terry Schultz that the dog had access to the garage. [WR29, DX-3,
Bates 96]; Riley Joe Sanders told the Grand Jury that Shaka would bark if he
mowed the lawn in the back yard, but if he just walked by their house "he would
come by and sniff but that was about it. [WR9, P.82, L.7-8].
28. Deputy Brian Scudder saw the defendant after the murder with his head in his hands
29. Roseanne Martinez reported that the defendant appeared weak kneed after
18 30. Riley Joe Sanders identified Ryan Bruno's house. In one statement, he indicated
nobody was home [WR29, DX-3, Bates 828] and in the other statement, that he had
stayed five minutes. [WR27, SX-45A "Sealed document, unsealed during hearing"
(RJS Grand Jury Testimony, 4/21/1999)]. Bruno was never interviewed nor was his
identity disclosed. [WR9, P.46-47 (Writ Testimony, K. Siegler); WR29, Bates 1570-
31. The State did not disclose the Harris County administrative bulletin indicating that
the murder took place between 4:15 pm and 5:30 pm. [WR29, DX-3, Bates 3, "Case
32. During trial, the State failed to produce oral statements to law enforcement of
witnesses after they had testified. [The lead prosecutor testified that she copied
oral statements from the offense reports to prepare her own witnesses to testify.
WR7, P.241].
33. After conviction, the State's main prosecutor instructed law enforcement and
District Attorney Officials not to disclose records pursuant to an Open Records
request. [WR32, DX-115, "Siegler Email Chain, November 20, 2007"; WR30, DX-34,
"Siegler Email, November 30, 2007"]. Disclosure was made only after these writ
34. Years after leaving the District Attorney's Office, the lead trial prosecutor learned
that Glasscock had approached Dick Deguerin. [WR31, DX-79, "Email Report",
"Bonds Email July 22, 2012"; WR35, DX-202, P.310 - 7/22/2012 - Siegler to
Baldwin Chin - is this true?; WR33, DX-129, P.437 "7/22/2012 Siegler to John
19 Brewer]. She then contacted a Sheriff's Deputy involved in the trial investigation
[WR19, P.281-82; WR35, DX-169, "Cell Phone Records of Holtke"] and asked him to
contact Glasscock and another witness [WR2, P.22-24 (Cody Ellis)] before they could
be contacted by the Special Prosecutor or current members of the District
Attorney's Office. [WR3, P.123, L.19-P.124, L.20 - Holtke prevented Clappart from
interviewing Ellis. WR30, DX-7, "Affidavit/Arrest Warrant" (for Cody Ray Ellis);
WR27, SX-43, "Sgt. Holtke Email to Curry, September 5, 2012"]. The Deputy did so
and afterwards, their stories were significantly different than the original version.
[Holtke informed Curry of his plan to interview Ellis on September 6, 2012, two
days before the Special Prosecution had arranged for Clappart interview Ellis.
WR27, SX-43. Holtke revealed confidential Glasscock information to Ellis. WR34,
DX-137, "CD Audio Recording of C. Ellis". On Monday, September 10, 2012, by
12:01PM, Doyle and Lewis emailed Clappart and Beers of their representation of
Ellis and Sanders, and requested all contact with their clients cease. WR35, DX-
202, P.249, P.476. Cell phone records obtained by Beers reveal a Holtke, Siegler,
Curry, Ellis, Sanders, Doyle and Lewis were in heavy communication with one
another in the hours preceding this notification. WR34, DX-130, "Cellphone Excel
Spreadsheet". They also reveal that Holtke maintained contact with Ellis in the
days after he had obtained by counsel. WR35, DX-169, "Cell phone records of M.
Holtke". WR27, SX-49, "Holtke Supplemental Report" (2012 Investigation); WR28,
DX-1, "Oral/Videotaped Deposition of Daniel Glasscock" (by Dick DeGuerin);
WR26, SX-11-12, "Audio Interview and Transcript of Audio Interview of D.
20 Glasscock" (by Steve Clappart); WR30, DX-6, "D. Glasscock Polygraph Report";
WR26, SX-13, "Videotaped Deposition of D. Glasscock"; WR27, SX-51-52, "Clegg's
and Minchew's Supplemental Reports"].
35. Additionally, long after leaving the District Attorne/s Office, when the original lead
trial prosecutor learned of the newly discovered evidence investigation by the
Special Prosecutor [WR8, P.16-17; WR33, DX-129, P.291-94, September 11 & 12,
Email Exchange b/w Curry and Beers], she personally obtained representation for
Riley Joe Sanders from two very talented criminal defense lawyers, Mac Segrest and
Chip Lewis. [She also obtained counsel for Cody Ellis from Paul Doyle. WR19,
P.281-82. WR4, P.77, L.l-12- Paul Doyle, former prosecutor, tried the Susan
Wright Case w/ Siegler". Siegler testified she obtained counsel for Ellis and
Sanders because she knew Clappart was coming to question them about Belinda
Temple's murder. WR7, P.270, L.ll-13. WR33, DX-129, P.291-94, September 11 &
12, Email Exchange b/w Curry and Beers. Doyle and Lewis notified law
enforcement of their representation of Ellis and Sanders on September 10, 2012].
36. Afterthe trial, the lead prosecutor Kelly Siegler ran for District Attorney against Pat
Lykos and lost. [WR4, P.88]. After her defeat, she left the District Attorney's Office
but through friends who remained on the staff, learned that Dick Deguerin had
brought the Glasscock information to the new District Attorney for further
investigation. [WR19, P.241-47. Siegler and her supporters believed the Glasscock
investigation was political payback orchestrated by DeGuerin, Lykos and Leitner.
WR4, P.88-96. "Dick DeGuerin told Pat Lykos he would support her for D.A. if she
21 would agree to let him reopen the Temple investigation any way he wanted to."
WR7, P.274, L.13-15]. A Special Prosecutor was appointed and faced significant
difficulty in investigating the validity of Glasscock's claim and subpoenaed cell
phone records for Siegler, Holtke, Cody Ellis and Riley Joe Sanders, III, for the
relevant time period of the Glasscock investigation (July 2012 through September
2012). Siegler accused Beers of acting at the direction of the Temple defense team
and colluding with Pat Lykos. WR7, P.270-71.
Scott Durfee, General Counsel for the Harris County District Attorney's Office,
described the appointment as an "informal recusal." WR35, DX-202, P.676,
"September 10, 2012, Email from Durfee". Durfee acknowledged the potential
conflict given Curry's continued representation of the State in the Temple direct
Appeal. WR35, DX-202, P.676. Durfee deferred to Beers regarding the propriety of
sharing details of the Glasscock investigation with Curry given the conflict. WR35,
DX-202, P.676].
On August 17, 2012, Baldwin Chin was informed that a special prosecutor Beers
had been appointed and that all investigative action was to be conducted through
Beers. WR35, DX-202, P.440, "August 17, 2012, Email from Chin." On August 27,
Curry was informed of the defense's specific claims for relief - that Siegler had
hidden favorable evidence and that the were file a motion for relief based on the
Glasscock information on Monday, September 10, 2012. WR35, DX-202, P.700.
Holtke was informed that a special prosecutor had been appointed and that all
investigative efforts were to be cleared through him. WR3, P.122, L.9-15.
22 Although Alan Curry was aware of the special prosecutor's appointment (WR35,
DX-202, P.676), he continued to assist Sgt. Holtke in a parallel investigation of
Glasscock. WR35, DX-173, August 30, 2012 Email to Alan Curry re: Grand Jury
Subpoena. On August 29, 2012, at Dean Holtke's request, Curry removed a blue
binder from the State's Temple file that documented an investigation in 1999 of
"ALL Thefts, BMV, Burg Ors" from 97-99 in the Temple neighborhood. WR35, DX-
202, P.698. This binder was discovered in the possession of the Harris County
Sheriffs Office in 2015 during the writ hearing with a post-it note affixed to the
front that read "To Dean Holtke Only From Alan Curry"].
37. Siegler lied to the trial judge about the phone numbers for the Roberts being
disconnected. [TR6, P.7, L.25-P.8, L.8 (Pretrial Hearing October 4, 2007); WR35,
DX-198, "Siegler Email to Clappart, October 4, 2007" (The same day, she gave her
investigator a number at which she had been leaving messages)].
In Ex Parte Harleston 431 SW3d 67 (Tex. Crim. App. 2014), the Court held that when
reviewing a habeas court's findings of fact and conclusions of law, "we defer to those findings
and conclusions if they are supported by the record. We defer to those findings supported by
the record because the habeas court is the 'original factfinder' and is in the best position to
evaluate the credibility of the testifying witnesses. Ex Parte Reed, 271 SW3d 698 (Tex. Crim.
App. 2008). However, our deference is not a rubber stamp, and we can invoke our authority as
the ultimate fact finder to make contrary or alternative findings and conclusions when its
23 independent review of the record reveals that the trial judge's findings and conclusions are not
supported by the record." See also Ex Parte Navarijo, 433 SW3d 558 (Tex. Crim. App. 2014).
In Ex Parte Villegas. 415 SW3d 885 (Tex. Crim. App. 2013) relief was granted because the
defense was not able to present "evidence of an alternative perpetrator". While it is true in the
current case that the defense was able to raise the issue of an alternative perpetrator, that
effort was limited and hampered by the State's failure to disclose a number of crucial pieces of
evidence that would have allowed a much more effective presentation of an alternative suspect
as well as to more effectively cross examine RileyJoe Sanders.
A similar situation existed in Ex Parte Miles, 359 SW3d 647 (Tex. Crim. App. 2012).
There the Court held that the defendant should get a new trial because the State had failed to
disclose police reports that indicated other suspects. The Court held that "the State failed to
disclose evidence which had been known to the prosecution but unknown to the defense.
United States v. Agurs, 427 U.S. 97 (1976). Even ifthe prosecution was not personally aware of
the evidence, the State is not relieved of its duty to disclose because 'the State' includes in
addition to the prosecutors, other lawyers and employees in his office and members of law
enforcement connected to the investigation and prosecution of the case." Kyles v. Whitley. 514
U.S. 419 (1995); Ex Parte Reed, 271 SW3d 698 (Tex. Crim. App. 2008). The Court also held that
"the two undisclosed police reports are exculpatory and could have constituted impeachment
evidence within the purview of Brady." Defense counsel asserted that the undisclosed reports
"would have allowed him, at a minimum, to develop an alternate theory for the shooting". The
Court ultimately held that "the disclosure of all of this information to the jury could have
significantly undermined the confidence in the State's case."
24 That is exactly the situation at hand. The ultimate issue is whether the State's
nondisclosure or late partial disclosure was sufficient to deny the defendant a fair trial.
The current prosecutors make a strong case urging that the trial jury heard the
testimony and cross-examination of both the defendant and Riley Joe Sanders. The jury
determined their credibility and elected to accept the testimony of Sanders and reject the
testimony of the defendant. The jury then unanimously found the defendant guilty beyond a
But the story doesn't end there. The decision facing this habeas court is whether the
non-disclosed or late disclosed information could have caused a different result. Like it or not,
this Court has the duty to make that determination and it is likewise the duty of the Court of
Criminal Appeals to accept the conclusion or to reach a different result.
Under both Brady v Maryland 373 U.S. 87 and United States v. Baglev. 473 U.S. 667
(1985), a defendant must show: (1) the State failed to disclose evidence, regardless of the
prosecution's good or bad faith; (2) the evidence was favorable to the defendant; and (3) the
evidence is material and there would be a reasonable probability that had the evidence been
disclosed, the outcome of the trial would have been different. The Courts also held that
"favorable evidence includes exculpatory evidence as well as impeachment evidence." They
defined impeachment evidence as "evidence which disputes, disparages, denies or contradicts
The Court further stated; "The mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the outcome of the trial does not
25 establish materiality in the constitutional sense. The defendant must show that 'in the light of
all of the evidence, it is reasonably probable that the outcome of the trial would have been
different had the prosecutor made a timely disclosure. Thus, sometimes what appears to be a
relatively inconsequential piece of potentially exculpatory evidence may take on added
In Brady, the defendant contended that if the evidence had been disclosed, he would
have modified his defensive strategies and the State would have had to alter its arguments.
That is exactly the contention currently advanced by the defendant's counsel. See also Pena v.
This trial was very very fact specific. The case was circumstantial and both the Court of
Appeals and the Court of Criminal Appeals devoted the majority of their long opinions to
carefully reviewing the multitude of small details. That analysis increases the importance of the
In addition, the Court of Appeals in this cause found numerous instances of
prosecutorial misconduct, but concluded: "While we certainly condemn such tactics, in light of
the whole record, we cannot conclude that these errors were so prejudicial, or so inflamed the
jury, that appellant was deprived of his substantial rights or a fair trial." The findings of this
habeas Court enlarge and enhance that conclusion, and magnify the determination that the
As the Supreme Court noted in Brady: "Not without some doubt, we conclude that the
withholding (of evidence) was prejudicial to the defendant Brady."
26 After careful consideration and review of the law and all of the
evidence produced at trial and in the writ hearing, "not without some
doubt" the Court concludes that the defendant has shown he was
denied a fair trial because of the State's failure to disclose or timely
disclose favorable evidence; and had that evidence been disclosed or
disclosed timely, the results of the trial would have been different.
This Court recommends that the Court of Criminal Appeals grant the
In conclusion, the Court expresses its deep gratitude to, and admiration of, the
outstanding lawyers who represented both the defendant and the State at this lengthy habeas
hearing. Their preparation and representation of their respective positions in an exceptionally
professional and cooperative manner demonstrates the highest quality of our legal system.
Signed and entered on thisthe 6th day ofJuly, 2015.
27 » »
3. CD with Annotated Findings (PDF with linked sources and sources file) 2. CD vVtto /4*y>(rkt^
[l^hfiA sursg* •ftte ) CAUSE NO. 1008763-A
EX PARTE IN THE DISTRICT COURT
DAVID MARK TEMPLE 178TH DISTRICT COURT
ORDER
On this the day of 2015, came on to be heard
theApplicant's request for this Court toenter amended Findings ofFact and Conclusions of
Law. The Court hereby grants hisrequests andhereby enters the attached amended Findings
of Fact and Conclusions ofLaw. The Harris County District Clerk is hereby ordered to file
the attached Findings ofFact and Conclusions ofLawandthen forward them along withthe
accompanying disc to the Texas Court of Criminal Appeals in Austin, Texas. The Clerk is
notify the parties when the findings are forwarded to the Court of Criminal Appeals.
Signed and entered on this the day of 2015.
Larry Gist, Judge
Related
Cite This Page — Counsel Stack
Temple, David Mark, Counsel Stack Legal Research, https://law.counselstack.com/opinion/temple-david-mark-texapp-2015.