SUCCESSOR APPLICATION FOR WRIT OF HABEAS CORPUS

1. This application is presented by ODELL BARNES, JR., hereinafter referred to as "Applicant," by and through his attorneys, Michael Charlton, Gary Taylor & Philip Wischkaemper. See, Tex. Code Crim. Proc. article 11.071.

2. Applicant, ODELL BARNES, JR., is illegally restrained in his liberty by the Director of the Texas Department of Criminal Justice, Institutional Division, by virtue of a judgment and sentence imposing a penalty of death (see, Exhibit HH) before the 89^TH District Court of WICHITA County, hereinafter referred to as "the convicting court," which judgment was affirmed on appeal by the Texas Court of Criminal Appeals. Barnes v. State, 876 S.W.2d 316 (Tex.Cr.App.) (see, Exhibit II).

3. Applicant’s restraint is illegal for the following reasons:

1. GROUND FOR REVIEW ONE: Applicant is "actually innocent" of capital murder and his execution is barred under the Fourteenth Amendment to the United States Constitution.

1. GROUND FOR REVIEW TWO: Applicant’s rights to Due Process of Law under the Fourteenth Amendment to the United States Constitution were violated because the Wichita County law enforcement authorities did not act in good faith and in accordance with normal and accepted practices in the identification and preservation of evidence, denying applicant later access to such evidence.
2. GROUND FOR REVIEW THREE: Applicant’s rights to Effective Assistance of Counsel under the Sixth Amendment to the United States Constitution were violated by trial counsel’s failure to investigate and present evidence which questioned applicant’s guilt.
3. GROUND FOR REVIEW FOUR: Applicant’s rights to Effective Assistance of Counsel under the Sixth Amendment to the United States Constitution were violated by trial counsel’s failure to investigate and present mitigating evidence.
4. GROUND FOR REVIEW FIVE: Applicant’s rights to Due Process of law under the Fourteenth Amendment to the United States Constitution were violated by the State’s knowing violation of the Sixth Amendment right to counsel and the attorney-client privilege, the presentation of false evidence, and the failure to provide information concerning the plea bargain with Patrick Williams.

4. Under Ex parte Maldonado, 688 S.W.2d 114, 115 (Tex.Cr.App. 1985), applicant has a burden to "allege and prove facts which, if true, entitle him to relief." Applicant therefore expressly relies upon the factual recitations provided within any section of this amended application for writ of habeas corpus, the Exhibits attached hereto, and the Grounds for Review presented, contending he is entitled to relief for any error substantiated by those factual recitations.

5. Under Tex. Code Crim. Proc. art. 11.071 (5), applicant must allege specific facts establishing that:

• the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable:

1. by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
2. by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 or 37.011.

Applicant would contend this application meets all three requirements above. Applicant was represented on his previous state habeas application by John Curry, the Public Defender for Wichita County. Curry had never previously investigated or prepared an application for writ of habeas corpus. Though Mr. Curry did have the services of an investigator at his disposal, the undersigned counsel have conducted a careful review of all of Curry’s files and there is no indication Curry ever sought or obtained expert assistance in the preparation of the application. There was no indication that any the of evidence from the trial was tested by any defense expert (after the trial). The result was an application which mainly addressed record claims.

When applicant moved into the federal arena, Philip Wischkaemper and Gary Taylor were appointed to represent applicant by Judge Sam Cummings of the United States District Court for the Northern District of Texas. Counsel began an investigation into the underlying facts of applicant’s conviction and immediately attempted to develop the claims made herein. Counsel sought the appointment of experts in crime scene analysis, fingerprint identification, and DNA analysis in order to analyze the evidence. Counsel sought additional time from the Court in order to conduct a thorough factual investigation. All of counsels’ requests were denied. Therefore, even when applicant was appointed counsel who sought to conduct a thorough factual investigation into the circumstances of his conviction and death sentence, applicant was denied such an investigation.

In his allegations, supra, applicant sets forth the results of an extensive investigation into the circumstances of his conviction and death sentence. This investigation was conducted only through the extensive volunteer efforts of many persons, as well as the assumption of financial burden by several. These factual allegations, which are incorporated here, as if fully copied and set forth at length, demonstrate that the victim’s blood found on applicant’s coveralls, used to secure applicant’s conviction, contained a preservative associated with yellow top test tubes used in hospitals. In the expert opinion of the chemist, the evidence was planted.

A thorough investigation further revealed that applicant’s semen, found within the victim’s vaginal vault, was most likely deposited there long before the victim’s death. Indeed, in the expert opinion of the chemist, the semen could have been deposited days before the victim’s death.

Two separate experts have reviewed the crime scene evidence. Both such experts have provided statements demonstrating that the State’s theory of this offense—that applicant committed this crime alone– is not supported by these statements. Both experts opine that whoever committed this offense would have been covered in blood—not two small blood spots such as those found on applicant’s coveralls. Indeed, the perpetrator’s clothing would have had to have been so soaked in blood so as to leave blood transfer evidence in the other parts of the victim’s home.

Both crime scene experts further demonstrate that the State’s identification, photographing, collection and preservation of evidence in this case was not only sloppy or unprofessional, but appeared to be an intentional disregard for the established procedures and techniques in this forensic area. Indeed, even members of the Wichita Falls Police Department acknowledge the problems with the crime scene investigation in this case.

The State’s laboratory, at the Dallas County Sheriff’s Office, developed a fingerprint on the murder weapon. Information provided to the undersigned counsel demonstrates that the State’s fingerprint examination only went so far as to exclude applicant. Applicant’s fingerprint expert has identified this fingerprint on the murder weapon—it belonged to Johnny Humphries, one of the State’s witnesses at trial.

Other evidence is now available as well. Although the State presented evidence at trial that the lamp upon which appellant’s fingerprint was found was recently acquired by the victim, the victim’s son denies this–stating the lamp was in the victim’s home for at least five (5) years. Moreover, there exists strong circumstantial evidence that Pat Williams, another of the State’s witnesses, had an agreement with the Wichita County District Attorney for his testimony. Williams received ten years probation pursuant to a plea agreement on each of two felony drug cases shortly before applicant’s trial. The stated policy of the Wichita County District Attorney’s Office was that there would be no plea agreements for probation in drug cases. And Mr. Williams probation file indicates he was often at odds with his probation officer who recommended the two probations be revoked. Instead, upon motion of the State, Mr. Williams was discharged from probation five (5) years early. And further, there is circumstantial evidence suggesting Mr. Humphries and Mr. Williams were involved in killing the victim in this case.

This evidence, and the factual allegations herein, demonstrate that applicant is innocent of the offense for which he was convicted. Much of this evidence only became available after the original state habeas application was filed. And, this evidence, and the factual allegations herein, demonstrate that, but for the ineffective assistance on the part of applicant’s counsel, and the unconstitutional actions of the State, no reasonable juror would have found applicant guilty of capital murder beyond a reasonable doubt. Finally, in light of this evidence, and the factual allegations herein, no reasonable juror would have answered the statutory punishment issues in such a manner as to cause a sentence of death to result.

I.

Factual Allegations

Odell Barnes, Jr. was convicted of capital murder of Helen Bass in the 89^th District Court of Wichita County, Texas, on May 6, 1991, after venue was changed to Lubbock County. Barnes was sentenced to death on May 14, 1991 and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Barnes v. State, 876 S.W.2d 316 (Tex.Cr.App. 1994). Marty Canedy and Reggie Wilson, of Wichita Falls, represented Odell Barnes at his trial and on appeal.

Barnes filed an application for post-conviction writ of habeas corpus which the Texas Court of Criminal Appeals denied in a one-page order. Barnes filed a petition for writ of habeas corpus in the United States District Court. District Judge Sam Cummings appointed Gary Taylor and Philip Wischkaemper to represent Barnes. Taylor & Wischkaemper obtained the services of Lisa Milstein, an investigator from Houston. As evidence was uncovered which questioned the jury’s verdict, Taylor and Wischkaemper associated Michael Charlton, another death penalty attorney. The attorneys requested the federal court to provide resources and an opportunity to complete their investigation. Although the Court was fully informed of the evidence which questioned Barnes’ guilt, the Court denied the attorneys’ request and denied relief to Barnes.

Mr. Barnes argued in the U.S. District Court, in relevant part, that he had been deprived of the effective assistance of counsel because of the failure of trial counsel to interview and discover material evidence from witnesses Rodney Dean Brown, Harvey Neil, Elizabeth Cruz, and Bobbie Jean Brooks, and because of their failure to ask Mary Barnes and Joseph Barnes about their knowledge of a lamp and Odell Barnes Jr.’s fingerprints on that lamp. The U.S. District Court also rejected Motions by Mr. Barnes’ habeas counsel to retain experts in crime scene analysis, fingerprints, DNA. The Court also denied Mr. Barnes’ permission to file an amended Petition for Writ of Habeas Corpus and time to further develop his factual claims further.

The case proceeded to the Fifth Circuit Court of Appeals in New Orleans. Here the attorneys challenged the trial judge’s denial of an opportunity to further investigate and develop evidence which indicated Barnes might be innocent of capital murder. The Court denied relief holding that "actual innocence" is not a ground for which Barnes could obtain relief and therefore, it is not error to deny such an investigation.

Certiorari was denied by the Supreme Court.

A.

EVIDENCE AT TRIAL

THE CRIME SCENE: The victim was discovered by her long time friend and former sister in law, Sharon Mergerson, at approximately 4:00 p.m. on November 30, 1989. SF-XV-20-24. The victim was nude, lying face down on the bed in her bedroom. Id at 24-25, 33-33. The bedroom was in shambles, a condition inconsistent with the victim’s housekeeping habits. Id at 47. In that bedroom, Ms. Mergerson further observed a lamp, an open jewelry box and a rifle butt.

Officer Larry Lamb of the Wichita Falls Police Department was the first police officer to arrive at the victim’s home. SF-XV-71. Lamb secured the crime scene until Officers McCloskey and Thayer of the Criminal Investigation Section, arrived. Id at 76. When Thayer and McCloskey arrived, they observed a blood soaked kitchen knife on the floor just inside the door. SF-XV-83-84. Thayer discovered two purses in the victim’s bedroom which appeared to have been dumped out and scattered across the bed. Id at 84.

THE EVIDENCE: Officer McCloskey supervised the collection of evidence at the crime scene. SF-XV-236-38. He was assisted by Pam Haines and Joe Sheppard. Id at 238-39, 41. In addition to the evidence inside the home, police discovered the victim’s employment identification card (from the Wichita Falls State Hospital) along the victim’s fence line, id at 120-23, and other personal papers in the general vicinity of the fence. Id at 124.

Joseph Barnes, Mr. Barnes’ brother, testified that on December 1, 1989, when he, his brother and Johnny Humphries were in Joseph’s car, the police asked to search the car. He told the police that the coveralls recovered from the car belonged to his brother. However, they probably belonged to their father. Mr. Barnes often wore them. SF-SVI-383-84. Officer Drury searched the car and testified that he seized a pair of green coveralls, a brown coat, and two white toboggans. SF-XVI- 387-89.

McCloskey delivered some of the evidence, including the lamp, to the Dallas County Sheriff’s Office for fingerprint processing. SF-XV-243-45. He later returned and transported all the evidence to the Southwest Institute of Forensic Sciences (hereinafter SWIFS). Id at 245-46. McCloskey provided chain of custody testimony for various pieces of physical evidence, including bloody wash rags, broken rifle stock, etc.. These various items were forwarded to the appropriate agencies for testing. Id at 247-84.

Officer Shepherd also testified to the chain of custody for several items of evidence, including the rifle, Mr. Barnes’ coveralls and tennis shoes, a .32 caliber pistol, the lamp, the knife, and a stained washrag. SF-XV-293-303, 307-12. Shepard picked up a .32 caliber pistol from Deborah Humphries. SF-XVI-303-06.

THE EXPERTS: Dr. Jeffrey Barnard, Chief Medical Examiner of the Dallas County Medical Examiner’s office, testified that the victim suffered a gun shot wound to the head, SF-XV-176-82, abrasions and lacerations to the head and back, id at 194-95, and a knife wound to the back. Id at 209. It was the gun shot which proved fatal. The bullet was recovered and forwarded to Larry Fletcher, a firearms expert. Id at 192. Barnard determined the knife recovered from the scene could have caused the stab wound. The remainder of the victim’s injuries could have been caused by the lamp and the rifle butt. Id at 197-99. Barnard could not positively state the victim was sexually assaulted. Id at 205-06, 210-11.

Larry Fletcher, a firearms examiner with SWIFS (Dallas County Medical Examiner’s Office), conducted tests on a revolver and ammunition submitted by the Wichita Falls Police. SF-XVI- 393-98. Fletcher testified he could neither identify or eliminate the revolver as the murder weapon because the recovered bullet was too damaged. SF-XVI-401-03, 406-07. In Fletcher’s opinion, the recovered bullet and the gun were consistent-- the gun and the bullet had six grooves, with right hand twist rifling, and both were the same brand-- H and R Magnum. Id at 408-10.

Lt. James Cron of the Dallas County Sheriff’s Office identified Mr. Barnes’ fingerprint on the lamp recovered from the victim’s bedroom. Cron conducted a fingerprint analysis on other items of evidence, and found a partial print on the .32 revolver. No other comparable prints were found. SF-XVI- 470-71, 473-78, 483-85. He compared no one else’s fingerprints to those found at the crime scene because Wichita Falls Police did not provide any other prints for comparison. Id at 497-98.

Carolyn Van Winkle was a forensic serologist employed by SWIFS. She testified the blood spots located on the Mr. Barnes’ coveralls were type O and were consistent with the victim’s blood–as well as about fifty percent of the black population. Some genetic markers in the blood were consistent with the victim’s blood. Van Winkle could not state conclusively that the blood on the coveralls was that of the victim. Van Winkle further could not identify the blood group of the semen found on a washrag in the victim’s home, but both Mr. Barnes and the semen depositor were secretors. Although sperm was identified in the victim’s vagina, Van Winkle could not testify how long the semen had been present. SF-XVI-584-86.

EYE WITNESSES: Thayer and McCloskey testified they were approached by Robert Brooks as they conducted their investigation on November 30. SF-XV-62. Robert Brooks testified that he was driving by the victim’s home at approximately 10:30 p.m. on November29, when he saw Mr Barnes fall down after hurdling the victim’s wooden fence. Brooks testified Barnes got up and then went back over the chain link fence in the victim’s backyard. SF-SVI-317-21. Brooks picked Odell Barnes in a photo lineup, id at 324, but he admitted he was at least 45 yards away from the scene when he first saw Barnes and that the entire episode happened quickly. SF-XVI-325-26. The individual he saw was wearing coveralls and a stocking cap over his head. Id at 335.36. He could not recall the weather conditions that evening. Further, the street lights were on the other side of the street from the victim’s home. Id at 330-32.

Mary Barnes, Mr. Barnes’ mother, drove the victim home from work on November 29, arriving at the victim’s home between 11:20 p.m. and 11:30 p.m.. After the victim went inside her house, Mary Barnes went home. She arrived home at approximately 11:45 p.m., and her son arrived approximately five minutes later, wearing a tan coat and gray pants. Mr. Barnes went to bed sometime later and went to work the next morning. SF-XVII-534-40.

THE GUN: Willie Bass Jr. was the victim’s son. He testified he gave his mother a .32 caliber pistol and bullets in April, 1988. SF-XVI-353-60. Malorie Wilson taught the victim how to load the pistol. He was to teach her how to use the pistol on the Monday and Wednesday before her death but they had been unable to find an opportunity to do so. SF-XVI-368-74. The victim had a rifle in her bedroom on Wilson’s instructions--because of recent violence in the community. Id at 374-377.

On November 30, 1989, Joseph Barnes, his brother and Johnny Humphries, came home from work together. Mr. Barnes could not get into his house because he did not have a key. They went to Humphries’ house. Humphries stayed in the house for six to seven minutes. When he returned, he had a sack with him, a sack which Humphries later traded off to another person. SF-XVII- 663-66.

Johnny Ray Humphries testified that he was with Mr. Barnes on the evening of November, 29, and Mr. Barnes wore the coveralls that were introduced into evidence. SF-XVI-530-32. The next morning, Mr. Barnes told Humphries, that he had taken a gun from his father and asked for help in selling the gun. SF-XVI-532-33. After work the two retrieved the gun from under Mr. Barnes’ bed–it was the victim’s gun. Id at 533-34. Humphries attempted to sell the gun unsuccessfully to two of his family members and eventually sold the gun to Patrick Williams.

Patrick Williams testified he was a casual acquaintance of Mr. Barnes. He saw Mr. Barnes at the Holiday Creek apartments in the early morning hours of November, 30, 1989. Mr. Barnes had a gun in his possession and the gun was the one owned by Ms. Bass. SF-XVI-503-05. Williams stated he was able to "get a good look" at the gun and that he saw the gun later that day when he bought it from Johnny Ray Humphrey. Id at 505-06. Mr. Barnes was not present when Williams bought the gun. At that time the gun had four live rounds and one empty chamber.

B.

NEWLY DEVELOPED EVIDENCE

THE FINGERPRINT ON THE LAMP: During Mr. Barnes’ trial the State presented evidence that Mr. Barnes’ fingerprint was found on a lamp inside of the victim’s home. Mr. Barnes’ family knew the victim well. Mary Barnes and the victim worked together. Mr. Barnes was in the victim’s home several times. He helped to roof her house and moved the furniture in her home on at least one occasion. Finally, there is evidence indicating Mr. Barnes and the victim had a consensual sexual relationship.

To demonstrate that Mr. Barnes could not have left his fingerprint on the lamp during one of these "social" occasions, the State presented testimony from Sharon Mergerson suggesting the lamp was recently acquired. However, the lamp was not recently acquired. Corey Bass, the son of the victim, viewed pictures of the lamp used at Mr. Barnes’ trial and unequivocally stated the lamp was in the victim’s home for at least five (5) years prior to the victim’s death.

MITIGATION MISSED: Trial Counsel failed to present mitigation evidence at the punishment phase of the trial. The defense team was authorized to obtain the services of Dr. Jerry L. Landrum, Ed. D., Psychologist, to perform psychological testing on Mr. Barnes. This testing was completed the day before the guilt-innocence phase of the trial began. Dr. Landrum was compensated $4865.45 for his services to evaluate Mr. Barnes, however, he was not called to testify at trial, nor was any expert called to testify on behalf of Mr. Barnes.

There was no attempt to explain or mitigate the State’s evidence through presentation of Mr. Barnes’ childhood and/or adolescent history. Subsequent investigation revealed a particularly troubling childhood, both physically and emotionally for Mr. Barnes. Mary Barnes, Mr. Barnes’ mother, admits that she and Mr. Barnes’ father drank heavily during Mr. Barnes’ childhood—their drunkenness often resulting in physical altercations which were witnessed by Mr. Barnes and his siblings. On one occasion, Mr. Barnes’ father jabbed a shotgun into his son’s stomach when he attempted to intervene in a fight between his parents. The result of this altercation was that Mr. Barnes shot his father while attempting to protect his mother.

When able to do so, Mr. Barnes stayed away from his home in order to avoid the abuses of his father. He never seemed to get along with his father. He never seemed to be able to please him. Mr. Barnes was whipped more often than the other children.

IMPEACHABLE WITNESSES: At trial Johnny Ray Humphries testified that Mr. Barnes seemed to already be aware of the murder when he, Mr. Barnes and Joseph Barnes saw the police around the victim’s home on their way home from work. However, Joseph Barnes will testify that he did not give Johnnie Ray Humphries a ride home from work that day. Therefore, the events described by Humphries could not have happened..

Brenda Columbus saw Mr. Barnes on the night of the murder. She noticed nothing unusual about Mr. Barnes and there was no blood on his clothes.

Pat Williams’ testimony is detailed elsewhere. However, Rodney Deon Brown was at the Holiday Creek apartments the night of November 29-30, and he saw Mr. Barnes and Johnny Humphries at least three times that night. He sold them drugs once. Later Brown went to Pat Williams’ house and saw a bloody gun on Williams’ night stand. Brown expressed his belief that there was something wrong with the gun but Williams told him that it did not matter "because if anything goes down, "he" will state we don’t know anything. Moreover, Brown saw a bloody purple bandana in the car where Mr. Barnes and Johnny Ray Humphries sat. When he asked about it, Humphries told him to ignore it. The next day, Brown asked Humphries about the bloody bandana and Humphries stated that he had done something. Humphries did not want to talk about it anymore because he thought he might get into trouble.

Harvey Neil was also present at the apartments that night and saw Humphries with a .32 caliber pistol wrapped in a purple bandana. Neil states that Humphries wore blue or brown coveralls which had blood on them. Humphries asked for twenty dollars for the gun but Williams instructed Neal not to purchase it.

RANDY HARPER: In 1995, Wyona Kessler mailed a letter to Dana Rice, the investigator for the Wichita County Public Defender’s Office. In this letter Kessler indicated that a woman she knew as Yolanda Beane told her Mr. Barnes did not commit this offense. Moreover, Kessler indicates that she provided this information to Mr. Barnes’ trial attorneys. Kessler executed a written statement in this case. In this statement Kessler indicates that she discussed the instant crime with Yolanda Beane and Dee Dee Beane. Dee Dee Beane informed Kessler that an individual named Randy Harper committed the murder for which Mr. Barnes is convicted. Dee Dee Beane was Randy Harper’s girl friend and she observed him on the night the victim died, covered in blood. He admitted his involvement and threatened Dee Dee Beane. Kessler further states she was told that Harper had a gun which he later delivered to Johnny Ray Humphrey’s home.

Dee Dee Beane’s real name is Felita Denise McKinney. Ms. McKinney has executed two statements which are attached hereto. McKinney states she lived in Wichita Falls during the period of time that this murder occurred. Her boyfriend was Randy Lee Harper. Randy Harper and Ms. McKinney used crack cocaine which was paid for by her prostitution, Harper’s robbery of others, robbery of drug dealers, and his switching good drugs for fake drugs on drug dealers. The victim’s son was a drug user and dealer. Harper and others "on the street" believed the victim’s son kept quantities of drugs in the victim’s home.

Ms. McKinney describes Harper as a violent person–in her words "crazy." Every one was afraid of Randy Lee Harper. He has previous convictions for arson and drugs. He has beaten Ms. McKinney on several different occasions and threatened her many times. In Ms. McKinney’s mind, there is no doubt that Harper is capable of murder.

On the night the victim was killed, Ms. McKinney observed Mr. Harper and another man standing outside of the car in which she was sitting. She heard the other man ask Harper why he killed the victim. When Harper got into the car, his pants and shoes were covered in blood. And, Harper had a pistol. Harper threatened her and ordered her to provide him an alibi.

Ms. McKinney further believes Harper committed another notorious murder in Wichita Falls which occurred on Hines Street. Harper’s sister lived on Hines Street and Ms. McKinney saw Harper returning from that direction on the day the victim was murdered. Moreover, Ms. McKinney accused Harper of committing this murder and he subsequently teased her about her beliefs that he did so.

When Ms. McKinney was in jail she saw something on television about Mr. Barnes’ case and discussed what she knew with another inmate. Someone notified crime stoppers and Ms. McKinney was visited by D.A. Investigator Pat Sullivan. She refused to talk with him. She was scared of Harper and of his whole family. At the time that Sullivan sought to interview Ms. McKinney, Harper’s sister, Rodessa Harper, was housed in the same cell block.

THE EYEWITNESS: Robert Brooks testified that he observed Mr. Barnes jumping the fence to the side of the victim’s home. Initially, Mr. Brooks did not reveal that he was promised assistance in "handling" several tickets for his testimony. Additionally, Mr. Brooks did not reveal that there was another person with him at the time of this occurrence. At the time Robert Brooks was driving his sister, Bobbie Jean Brooks, home from work. Ms. Brooks remembers that, at the time of the occurrence, they did see Johnny Ray Humphries at the dead end of Normandy Street where the path in the field behind the victim’s house ended. Moreover, Robert Brooks, by his own testimony, observed Mr. Barnes leave the victim’s home at least 45 minutes before she returned home, assuming it was Mr. Barnes that Brooks saw.

A DEAL NOT REVEALED: One of the State’s key witnesses at trial was Pat Williams, a known drug dealer in East Wichita Falls. Williams’s testimony was instrumental in placing the victim’s .32 Caliber handgun in Mr. Barnes’ hands on the night of the murder. The gun was the same gun identified as the one most likely to have been used in the murder.

On January 12, 1990, Mr. Barnes’ trial counsel filed a "Motion for Disclosure of Evidence Favorable to the Accused." Within that motion there was a request for information related to: "... any deals, grants of immunity or leniency. Or other benefits given to or placed upon any witness." Trial counsel for Mr. Barnes was never informed that Pat Williams received any consideration for his testimony.

Testimony in Mr. Barnes’ trial began April 29, 1991. On March 1, 1991, Pat Williams plead guilty to one count of Delivery of a Controlled Substance and one count of Possession of a Controlled Substance. Williams received a ten (10) year probated sentence and a $1000.00 fine on the Delivery case and a concurrent ten (10) year sentence on the Possession case. The offenses were committed on 9-22-89 and 3-23-90 respectively. Both cases were pending during the investigation of the Bass case.

During this time period, the Wichita County District Attorney’s office had a policy that forbade plea bargaining in drug cases. Despite this policy, the district attorney’s office entered into a plea bargain with Mr. Williams for the ten years probation.

Tammy Lewis, a former girlfriend of Williams gave a sworn statement that Williams informed her that he had an agreement with the Wichita County District Attorney, Barry Macha, concerning his cases. He testifies for the State against Mr. Barnes and Williams does not go to jail. Williams received probation for two drug cases. But this was not his only benefit. Williams later obtained an "early release" from his probation on both cases.

Mr. Williams’ probation performance was also suspicious. During his tenure on probation, he was constantly under suspicion for dealing in narcotics. He made frequent trips to Dallas, trips which his supervising officer thought were related to the transportation of narcotics. These suspicions were confirmed with conversations she had with the Wichita Falls Police Department. The probation officer sought to amend Mr. Williams’ conditions of probation by subjecting him to electronic monitoring, monitoring which Mr. Williams continually rejected. The probation officer’s efforts to amend the probation conditions through the state court were rebuffed. Further, Mr. Williams committed two offenses while on probation, one of which was a felony. No effort was made by the District Attorney’s office to revoke that probation, despite entreaties by the probation officer.

DID ANYONE LOOK?: Mr. Barnes’ case involved the investigation and analysis of extensive and critical scientific evidence. Many pieces of evidence were processed by the Wichita Falls Police Department and forwarded to various agencies for analysis. Critical to the state’s case was the need to place Mr. Barnes in the home of Mrs. Bass. They accomplished this in at least two ways. First, a latent fingerprint of Mr. Barnes was located on a lamp that was found in the home of Mrs. Bass. The same lamp was apparently used as a weapon in the murder. Second, the state used comparison of blood types to connect Mr. Barnes with Mrs. Bass. The aforementioned was accomplished using blood samples taken from the green coveralls recovered from Mr. Barnes at the time of his arrest. Two minuscule spots of blood were recovered from the coveralls that proved to have the same blood type as Mrs. Bass. Finally, the seminal fluid recovered from Mrs. Bass was determined to be consistent with that of Mr. Barnes.

Trial counsel, although authorized to obtain the services of an expert, failed to exploit the possibilities presented by the scientific evidence in Mr. Barnes case. Both trial Counsel gave affidavits that they "never performed or attempted to perform any scientific testing in preparation for the trial of Odell Barnes."

THE CRIME SCENE: The undersigned counsel, and their investigators, have had access to what has been represented as all of the evidence in the Wichita County District Clerk’s Office, and the Wichita Falls Police Department. This evidence consisted of all of the video and photographic evidence taken by the investigators, as well as all of the physical evidence seized by the investigators. This evidence was provided to several forensic or crime scene experts for their review. The results have been unanimous.

Michael Ward is an investigator and expert who assisted the undersigned attorneys. Mr. Ward is a former law enforcement officer who participated in many investigations. Moreover, Mr. Ward, either as a law enforcement officer or licensed private investigator, attended numerous schools in crime scene investigation and/or homicide investigation. Mr. Ward has testified in both felony and misdemeanor trials. In Mr. Ward’s opinion, the crime scene investigation in this case was so poor as to affect the integrity of all of the State’s evidence. Mr. Ward states:

• There was no systematic approach to the photographs of the crime scene. Crime scene photographs are necessary to assist in explaining what happened, as well as how it may have occurred. The photographer must be cognizant that these photographs may be used in a trial setting to assist the jury in understanding the crime scene, the evidence reflected therein and its relevance to the case. To accomplish this purpose, each room or area should, at a minimum, contain an overview shot, an intermediate view, and whatever closeup shots necessary to document the item in question.
• There was no plan or organization to the videotape of the crime scene in the instant case. As with photographs, a videotape is created to explain to a jury what happened as well as how it may have occurred. The videotape should be done in a logical sequence, generally documenting the crime scene and then specifically identifying relevant items of evidence.
• Police investigators identified a shoe print on the kicked-in back door of the Bass home. The print was apparently from the shoe of at least one assailant in this offense. The Wichita Falls Police Department failed to adequately preserve the image of the shoe print for comparison by the defense nor was there any effort by the Wichita P.D. to compare the size of that print to that of Mr. Barnes.
• Apparently the Wichita Falls Police Department collected between 90 and 100 individual items of evidence from the Bass home. The Wichita Falls Police Department failed to implement an evidence collection protocol or procedure to insure the evidence collected was marked in a manner that :

A. Identified who collected the evidence;

B. Identified the location from which the evidence was collected;

C. Identified the evidence or provided an adequate description; and,

D. Identified when the evidence was collected.

• The Wichita Falls Police Department failed to document the location of evidence which was allegedly collected outside the victim’s residence or off the property. Specifically, investigators located a .32 cal. Magazine and a stained white towel. Although the location where this evidence was significant– that is, was the evidence in the path of flight taken by the assailants or at some other location— this important information was not preserved. The failure of the Wichita Falls P.D. to preserve the location of these items forever deprives Mr. Barnes of the ability to demonstrate he should be excluded as a suspect in this case.
• The Wichita Falls Police Department had no system of checks or balances in place to allow a misidentified item of evidence to be correctly identified and cataloged. For example, the Wichita Falls P.D. identified a pistol magazine collected from the victim’s property as a .32 cal. Magazine for more than ten years. However, during the instant investigation, the magazine was identified as a .380 cal magazine. This information could have been used by Mr. Barnes’ attorneys at trial to support a multiple perpetrator theory.
• As I previously noted, photographs are intended to preserve a crime scene in the condition it existed when the first officer arrived. I was provided access to all of the photographs in the possession of the Wichita Falls Police Department, the Wichita County District Attorney and the Wichita County District Clerk. My review of these photographs demonstrates a failure of the photographer to ensure and indicate that certain photos were taken before the crime scene was disturbed. Therefore, the integrity and credibility of all the photographic evidence is not credible and unreliable.
• It is imperative that all items of relevant evidence at the crime scene be seized for later scrutiny and evaluation. My review of the photographs and crime scene video reveals that investigators failed to seize potentially relevant evidence (i.e. the bent beer can on the shelf in the living room.).
• Proper crime scene investigation in the instant case required investigators to place paper bags over the hands of the victim at the crime scene, and before the body is moved, to insure the evidence is preserved. Victims of assaults often scratch their attackers during the assault. The result is trace evidence or tissue under the victim’s fingernails which can be analyzed (and identify the perpetrator). Although the victim’s autopsy in the instant case indicates the victim may have broken a fingernail at the time of her death, the Wichita Falls P.D. to failed to preserve such trace evidence.
• Conclusion. The procedures employed by the Wichita Falls Police Department in Mr. Barnes’ crime scene investigation were sloppy and unprofessional. Based upon my investigation of the instant case, and my review of the files belonging to the Wichita Falls Police Department and the Wichita County District Attorney, as well as the Defense experts, it is my opinion that an adequate investigation, involving standard crime scene investigation techniques, would have excluded Odell Barnes, Jr. as a suspect in this case long ago. Stated differently, my review of this case leads me to believe Mr. Barnes is innocent and that but for the procedures employed by the Wichita Falls Police Department, Mr. Barnes should not have been charged.

See, Statement by Michael A. Ward, attached hereto as Exhibit KK.

John Jacobson agreed. Mr. Jacobson is a forensic expert who has testified in many state and federal cases. He has further served as an instructor in Forensic Science. Mr. Jacobson states that the instant investigation was sloppy and unprofessional—that the materials he reviewed may indicate "an intentional disregard for even the most basic requirements of forensic investigation." The lack of investigative skill on the part of the crime scene investigators in Mr. Barnes’ case results in a reasonable likelihood that crucial evidence was overlooked or not preserved. This evidence could have either included or excluded the suspects in this case.

The crime scene evidence available is inconsistent with the State’s theory of this case. The perpetrator(s) of this offense would have been covered in blood. Indeed, the perpetrator(s) left blood smear evidence in other rooms of the victim’s home. In short, there is absolutely no way any person committed this offense wearing Mr. Barnes’ coveralls, introduced at trial. Moreover, the crime scene evidence which is available suggests that there were several perpetrators, not one perpetrator as the State sought to prove.

Michael Ward and John Jacobson are not alone in their critical assessment of the crime scene investigation in this case. Robert Burtman is an Investigative Reporter working for the Houston Press. Mr. Burtman conducted an investigation into the circumstances surrounding Mr. Barnes’ conviction and death sentence. In that regard Mr. Burtman interviewed Sergeant William Pursely, one of the current crime scene investigators for the Wichita Falls Police Department. According to Pursely, the Wichita Falls Police Department conducted its own investigation and determined that basic crime scene investigative procedures were not followed in the instant case. Based upon its performance in this case, and other cases occurring at approximately the same time, the Wichita Falls Police Department "overhauled" the manner in which crime scene investigations would be conducted by that department.

Pam Haines was one of the Crime Scene Technicians employed by the Wichita Falls Police Department at the time of this murder. She states that she took photographs, video-taped the scene and collected evidence as directed. Prior to any of the documentation, at least six members of the Wichita Falls Police Department, in addition to members of the Wichita County District Attorney’s Office, conducted a "walk through" of the crime scene. Haines reports that during the time she was employed by the Wichita Falls Police Department there was no training provided to the evidence technicians. These crime scene personnel simply received "on the job" training.

OTHER SUSPECTS . Elizabeth Holley was working as a nurse at the Wichita Falls State Hospital prior to and after this murder. As a part of her responsibilities she sat with a patient in the substance abuse unit named Homer Kines. When the news reports of this murder came onto television, Holley was sitting with Kines. Kines stated that he knew Mr. Barnes did not commit this murder. Mr. Kines indicated he saw Johnny Ray Humphries coming out of the door to the victim’s home on the day of the murder. Kines further expressed fear of Johnny Ray Humphries.

Sandy Durant was in the Wichita County Jail in April, 1996, housed on a cell block with several other women. She remembers the women in her cell talking about Mr. Barnes after something was on the television about Mr. Barnes’ case. The conversation was centered upon the "true story" of the murder. Marquita Mackey, one of the women, stated that on the night of the murder she was in her apartment when three men came to her apartment covered in blood and carrying guns. She identified these men as "Delbert," "Pat," and "Johnnie Ray." According to Mackey, the men wanted clean shirts and Johnnie Ray threatened her, stating "I’ll kill you like I killed Mrs. Helen Bass." From this conversation Ms. Durant understood her cell mates to believe Mr. Barnes was "set up" for this murder.

There are several indicia of reliability in Ms. Durant’s statement. First, she took contemporaneous notes of the conversation. These notes were taken on the back of another note which Ms. Durant received from her boyfriend, Michael Street, who was also incarcerated in the Wichita County Jail. When Michael Street was shown this note, he identified the note as one he gave Ms. Durant in the Wichita County Jail in 1996. Moreover, the headlines in the Wichita Falls newspaper, the "Times Record News," indicate Mr. Barnes case was receiving press coverage at this time.

Josie Pope Rose knows several of the persons who shared Ms. Durant’s cell in April, 1996. Brenda Columbus has a daughter named Tammy Lewis, who is a hair stylist. Ms. Rose was approached by Mr. Barnes’ attorneys, Taylor and Wischkaemper, who requested her assistance in locating Brenda Columbus. Shortly thereafter Tammy Lewis was cutting Ms. Rose’s hair and Ms. Rose informed her that two lawyers were looking for her mother. Lewis informed Ms. Rose that her mother had important information concerning the murder of Ms. Bass. Brenda Columbus told her daughter that Marquita Mackey helped "cover-up" the murder by getting rid of the bloody clothes and getting clean clothes for Pat Williams, Johnnie Ray Humphries and Pat’s cousin from Dallas. Columbus stated that the men first approached her but she refused. Marquita Mackey’s apartment was very close to the apartment where Columbus lived.

Duretha McKnight was present in Johnnie Ray Humphries’ home when he and his sister Dedra Humphries got into an argument. The police were called and, when they arrived, Dedra informed the police that Johnnie Ray Humphries was a drug dealer, had guns and that he killed Ms. Bass. Later that evening Dedra and Ms. McKnight were in Dedra’s apartment when Johnnie Ray Humphries came over. Johnnie Ray Humphries yelled at Dedra about telling the police those things, but he never denied that such statements were true.

What happened to Darlene Barnes is shockingly similar to the instant murder. About one o’clock in the morning when her husband, William Barnes, was not home Darlene was awakened by a gun shot. Someone was hitting her front door, ordering her to open the door, and screaming it was the police. The door was kicked open and a man stood over her, holding her at gun point. She was dragged throughout her home as he looked for money. She later identified this man as Russell Lockett. Darlene was told that Pat Williams drove Russell Lockett to her home in a car he borrowed from Josie Pope Rose. These facts are very similar to the instant murder—the door was kicked in and the house obviously ransacked. Moreover, Russell Lockett was interviewed during the investigation of this case. He admitted that he committed the offense against Darlene Barnes and that he did so because Pat Williams led him to believe that Ms. Barnes’ husband was bragging about how Lockett could not "jack" with him.

SCIENTIFIC EVIDENCE: Scientific evidence played almost no role in Mr. Barnes’ trial. Indeed, prior to trial Judy Floyd of Gene Screen advised the prosecutors that DNA analysis was not possible in this case. An acid phosphatase test, designed to determine the existence of seminal fluid, was negative with regard to vaginal, anal, and oral samples. Human blood was discovered on Mr. Barnes’ coveralls and genetic markers were obtained.

Long after Mr. Barnes was convicted of capital murder, the State sought DNA testing to determine the relationship between Mr. Barnes, the victim, a vaginal swab, a wash cloth, blood spots on Mr. Barnes’ coveralls, the blood stains on the knife and blood stain on Mr. Barnes’ pants. These tests revealed that DNA material on the washcloth belonged to Mr. Barnes. DNA material on the vaginal swab belonged to Mr. Barnes. The DNA recovered from the blood stains on Mr. Barnes’ coveralls belonged to the victim.

Dr. Elizabeth Johnson was hired by Mr. Barnes’ counsel to test the same evidence. Testing the vaginal swab, Dr. Johnson established the swab tested negative for the P30 protein found specifically within seminal fluid. Further, the swab had weak activity for acid phosphatase and a very low number of spermatozoa. In Dr. Johnson’s opinion, her findings coupled with the new DNA tests, suggest that Mr. Barnes’ DNA was not deposited in an ejaculation at or near the time of death. In her opinion, Mr. Barnes had sexual intercourse with the victim probably many hours or days prior to the victim’s death.

The prosecutors countered Dr. Johnson’s statement with statements from Judith Floyd and Carolyn R. Van Winkle. Ms. Floyd attacks Dr. Johnson’s findings stating that acid phosphatase levels and P30 levels are individual. She faults Dr. Johnson for not discussing the effect of age and various storage conditions on P30. Finally, Ms. Floyd states the quantity of spermatozoa on a swab is a poor indicator of post coital time intervals.

Ms. Van Winkle likewise disagreed with Dr. Johnson’s findings. Ms. Van Winkle would "expect" a decreased level of seminal proteins when evidence was collected approximately sixteen hours after the body was found. And Ms. Van Winkle notes the victim’s death may have occurred much earlier. In this situation Ms. Van Winkle believed the findings were consistent with "semen deposition immediately prior to, or after the time of death of [the victim]."

Dr. Johnson was given an opportunity to review the statements prepared by Ms. Floyd and Ms. Van Winkle. Dr. Johnson responded in detail. The age and storage conditions had no effect on the vaginal swab or protein levels in the seminal fluid. First, the samples were stored in the custody of Ms. Van Winkle. Even more important, the protein levels present on the other samples which were stored in a similar manner were not affected.

The time between sexual intercourse and death is significant with regard to P30 levels because the active process of vaginal secretions and drainage will lower the P30 level. However, these events (vaginal secretions and drainage due to activity) do not occur after death–this is what makes Dr. Johnson’s findings in the instant case significant. Finally, Dr. Johnson responded to Ms. Floyd’s questions regarding evidence collection on the detectability of P30 protein and numbers of spermatozoa. The testing performed by the State’s laboratory (Southwest Institute of Forensic Sciences) rendered similar results regarding protein. The results from either lab do not support a theory of an ejaculation into the vagina at or near the time of the victim’s death and Dr. Johnson is convinced that sexual intercourse between the victim and Mr. Barnes occurred several hours or days before her death. Therefore, while Mr. Barnes and the victim had vaginal intercourse—this most likely occurred at least twenty-four hours prior to the victim’s death.

There is an additional significant scientific result in this case. At counsel’s request, Kevin Ballard, M.D., Ph.D. tested the blood stains on Mr. Barnes’s coveralls. These were the blood stains which Judy Floyd of Gene Screen determined belonged to the victim. Dr. Ballard tested these blood stains for EDTA, oxalic acid, fluoride and citric acid. These chemicals are the most typical preservatives used with blood. Dr. Ballard’s testing reveals that the reference sample of the victim’s blood and the blood stains on Mr. Barnes coveralls both contain citric acid, the preservative used in yellow topped and blue topped blood tubes. The level of citric acid found in the stain is at least 40 times greater than the level normally found in the human body. Based upon these tests, Dr. Ballard concluded that the blood on Mr. Barnes’ coveralls could not be "original, legitimate crime scene evidence in the form of a stain deriving from natural bleeding from a normal human being." Instead, this blood came from a source which/who was in possession of preserved blood. In other words, the blood on Mr. Barnes’ coveralls was planted.

In addition to the other scientific experts who have examined the evidence in this case, Jack Mitchell was hired to review the evidence for possible fingerprints. Because of the manner in which the majority of the evidence was preserved, Mr. Mitchell had little to review. However, in the State’s investigation the Dallas County Sheriff’s Office was able to develop a partial laser fingerprint on the murder weapon. This partial print was compared to Mr. Barnes’ fingerprints and the two did not match. The State did not compare this partial print to any other known prints. Mr. Mitchell was provided this partial fingerprint by Wichita County authorities along with several sets of known fingerprints. Based upon his examination, Mr. Mitchell determined that the partial fingerprint on the murder weapon belonged to Johnny Ray Humphrey.

PRIVILEGED RECORDS: When Mr. Barnes was first charged with this capital offense he was represented by the Wichita County Public Defender’s Office. Two attorneys from this office, Nancy Botts and Peter Feury, were assigned to represent Mr. Barnes. Nancy Botts spent hours discussing this case with Mr. Barnes. Mr. Barnes told Botts that he and the victim had a consensual sexual relationship and that he had been in the victim’s house on several occasions. These were facts upon which Mr. Barnes wanted to base his defense from the very start.

Botts was the subject of a criminal investigation by the Wichita County District Attorney’s Office concerning the offense of retaliation. The Wichita County District Attorney’s executed a evidentiary search warrant on Bott’s residence seeking further evidence of retaliation. In addition to the other matters seized pursuant to that warrant, the Wichita County authorities seized a folder from Bott’s residence which was labeled "Odell Barnes." This folder contained all of Botts’ personal notes concerning her conversations with Mr. Barnes and her investigation concerning this case. She informed the Wichita County Public Defender’s Office that the notes were seized. She was never approached by either of Mr. Barnes’ trial attorneys.

II.

The Law

An "actual innocence" claim has been addressed by the Supreme Court in the context of a successor petition for writ of habeas corpus or an "abuse of writ." Sawyer v. Whitley, 505 U.S. 333, 335, 112 S.Ct. 2514, 2527 (1992). The Court acknowledged that "actual innocence" in the context of the death penalty is a complex concept. The death penalty itself involves factors more expansive than the elements of the offense alone. Id. 505 U.S. at 341, 112 S.Ct. at 2520. The Court ultimately adopted a standard enunciated by the Fifth Circuit Court of Appeals:

Id. 505 U.S. at 346, 112 S.Ct. at 2523 (quoting Sawyer v. Whitley, 945 F.2d 812, 820 (5^th Cir. 1991).

The Supreme Court considered whether "actual innocence" itself may provide a basis for federal habeas relief in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1992). The Court stated "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id., 506 U.S. at 400, 113 S.Ct. at 860 (citing Towsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759 (1963)). See also, Withrow v. Williams, 507 U.S. 680, 715, 113 S.Ct. 1745, 1767 (1993) (Scalia, J., concurring and dissenting) (Federal habeas jurisdiction requires a claim of legal error). This was because the underlying purpose of federal habeas review is to ensure that constitutional rights are guaranteed and not to address errors of fact. Herrera, 506 U.S. at 400, 113 S.Ct. at 860; and, Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265 (1923). Apparently, in the Court’s interpretation of our Constitution, the only evidentiary review available in federal habeas review is a review of the sufficiency of the evidence actually presented at trial under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Herrera, 506 U.S. at 401-402, 113 S.Ct. 861. Indeed, the Court suggested the only forum available to a habeas petitioner who is actually innocent is state executive clemency process. Id., 506 U.S. at 411-412, 416, 113 S.Ct 866, 868-869. This stated, the Supreme Court went further to assume, "for the sake of argument," that a truly persuasive demonstration of actual innocence would render an execution unconstitutional. However the Court found that any such threshold would be extraordinarily high and found that Herrera’s evidence failed to meet such a threshold. Id., 506 U.S. at 417, 113 S.Ct. at 869.

In her concurring opinion Justice O’Connor found the execution of a "legally and factually innocent person to be a constitutionally intolerable event." However, Justice O’Connor did not find that case to be the appropriate vehicle for consideration of the issue. Herrera, 506 U.S. at 419-421, 113 S.Ct. at 870-871. She found the evidence "suspect, produced... at the 11^th hour with no reasonable explanation for the nearly decade-long delay." Id., 506 U.S. at 423, 113 S.Ct. at 872.

"Actual Innocence" was again considered in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995). Once again this actual innocence claim arose in the context of a successive federal petition for habeas corpus. Id., 513 U.S. at 301, 115 S.Ct. at 854. The Supreme Court initially distinguished its opinion in Schlup from its earlier opinion in Herrera, stating Herrera addressed whether actual innocence itself was appropriate under federal habeas corpus. Schlup presented his claims of actual innocence in association with his claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), or prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194 (1963). Therefore, Schlup’s grounds for federal habeas relief were not novel and could be addressed–if he met the standards for review for a successive habeas petition. Schlup, 513 U.S. at 313-315, 115 S.Ct. at 860-861. Thus, in Schlup, the Court was again required to consider the concept of "actual innocence" as the "gateway" to federal habeas relief in a successive habeas petition.

Texas Courts have considered actual innocence claims in the realm of Due Process. In State ex rel Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App. 1994), the Texas Court of Criminal Appeals considered whether claims of newly discovered evidence of innocence may be raised in an application for writ of habeas corpus. The Court interpreted the Supreme Court’s opinion in Herrera to hold that the execution of an innocent person violates the Due Process Clause of the Fourteenth Amendment. Holmes, 886 S.W.2d at 397. The Court of Criminal Appeals held that claims of newly discovered evidence of innocence were appropriately considered in an application for writ of habeas corpus. Ibid.

The Court next considered what threshold must be met before an applicant is entitled to a hearing. The Court ultimately held that the newly discovered evidence must "create a doubt as to the efficacy of the verdict to the extent that it undermines ... confidence in the verdict and that it is probable that the verdict would be different." Id., 886 S.W.2d at 398; quoting Ex parte Graham, 853 S.W.2d 565, 567 (Tex.Cr.App. 1993) (Maloney, J., concurring.). However, entitlement to a hearing did not equal entitlement to relief. To be entitled to relief, the burden was placed upon a habeas applicant to demonstrate that, based upon the newly discovered evidence, and the record, no rational jury would have convicted him. Holmes, 886 S.W.2d at 399.

The Texas Court of Criminal Appeals again considered claims of newly discovered evidence in Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App. 1996). In Elizondo, the defendant was convicted of the aggravated sexual assault of his step-son. The Court initially held that the Due Process Clause of the Fourteenth Amendment forbade the incarceration of an innocent person. Id., 947 S.W.2d at 205. The Court then reaffirmed its holding in Holmes that a habeas applicant must meet the threshold standard of proof before being entitled to a hearing. However, the Court rejected the standard of proof for relief announced in Holmes as inappropriate. The Court held that, in order to be entitled to proof, a habeas applicant must demonstrate by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Elizondo, 947 S.W.2d at 209.

Argument

Applicant would respectfully incorporate by reference all of the factual allegations heretofore made, as well as the exhibits attached hereto, as if such were fully copied and set forth at length. Applicant would further show this Court that his contention that he is actually innocent is sufficient under any standard. Applicant, in addition to this claim, contends he is entitled to relief based upon other substantial constitutional violations. Prosecutorial misconduct and ineffective counsel both contributed to applicant’s conviction and death sentence.

Applicant’s conviction was essentially obtained with the following evidence: 1) the fingerprint on the lamp; 2) the eyewitness; 3) the gun; and, 4) the blood evidence; The State’s evidence which supported applicant’s conviction and death sentence is now rebutted.

As John Jacobson states, the existence of applicant’s fingerprint in the victim’s home is no evidence of guilt. Applicant was a family friend. The victim and applicant’s mother worked together–the families socialized together. Applicant was allowed to hold parties in the victim’s barn, and he worked for her on her home. Moreover, applicant and the victim had a consensual sexual relationship. All of these circumstances provide ample opportunity for applicant’s fingerprint to be in several places within the victim’s home. And, contrary to the State’s evidence at trial, the lamp was not of recent origin. Corey Bass, the victim’s son, has sworn that the lamp was in the victim’s home for at least five (5) years. No reasonable juror would have found such evidence to be persuasive.

Robert Brooks testified that he observed applicant jump over the victim’s wooden fence and leave at approximately 10:30 on the night she died. However, the evidence is clear. The victim did not arrive at her home until at least 11:30 p.m. Therefore, it was a physical impossibility for Mr. Brooks to have observed applicant leaving a murder. Moreover, Brooks never informed anyone that he was not alone, when in reality his sister, Bobbie Jean Brooks was in the vehicle. With the time and credibility of the identification in questions, this evidence is not persuasive.

Through Johnny Ray Humphries, Marquita Mackey and Patrick Williams the State’s theory of this case is that applicant was assisted by Humphries in selling the murder weapon to Mackey and Williams. The State’s evidence connected applicant to this weapon only through Humphries’ testimony and testimony which indicated applicant had a similar weapon several days earlier. The incident with the gun occurred several weeks earlier and, considering Mr. Williams’s testimony, it is a physical impossibility that any gun in applicant’s possession was the same weapon. Therefore, it is really only through the testimony by Humphries and Williams that applicant is associated with this weapon. But the only fingerprint on this weapon belonged to Johnny Ray Humphries. And neither is a credible witness.

The evidence presented to this Court clearly suggests Mr. Williams was compensated for this testimony. Williams was placed on ten years probation for two drug offenses in a county wherein drug offense do not get plea offers of probation. And Williams was not an ideal probationer. Yet the District Attorney ignored the probation officers’ many pleas for revocation of Williams probation. Instead, the District Attorney agreed to allowing Mr. Williams to be discharged from probation five (5) years early. Such clearly supports the statements by Tammy Lewis, William’s ex girlfriend, who states the authorities were anxious to make an arrangement with Williams–if he could associate applicant with the weapon. Considering all of these circumstances, no reasonable juror would place any substantial weight on the State’s evidence.

At trial, the State presented evidence that two small blood stains on applicant’s coveralls were of the same blood group as the victim’s blood. Additionally, the State presented evidence that suggested sexual intercourse occurring prior to death. Since trial, the State subjected this evidence to DNA testing. These tests have indicated that the blood stains on applicant’s coveralls are indeed from the victim; and that applicant’s DNA was found within the victim’s vaginal vault. However, when applicant’s newly discovered evidence is considered, such evidence is actually exculpatory.

First, and importantly, the blood stains on applicant’s coveralls are planted. According to Dr. Ballard, the preservative found within the samples could not have naturally occurred. This preservative is the type of substance used to preserve blood in "yellow top" test tubes. Because the level of the preservative in the blood is more than forty times the normal level within the human body, the only manner in which this blood got onto the coveralls is that it was intentionally placed there.

There is additional circumstantial evidence which supports Dr. Ballard’s findings. Two crime scene experts, Mike Ward and John Jacobson, have reviewed the evidence in this case and determined that the perpetrator in this murder could not have worn applicant’s coveralls. The crime scene contained blood spatter evidence on the ceiling, floor, and at least three walls. In the opinions of these experts, it would have been impossible for someone to have committed these murders and not be entirely covered in blood. There was blood transfer evidence in the other rooms of the victim’s home—such evidence only occurs when the perpetrator has so much blood on his/her person that it transfers itself. The perpetrator in this case did not have two small blood stains on his sleeve.

The evidence that applicant’s sperm and DNA was recovered from the victim’s vagina is not probative evidence of guilt in this case. Initially, the evidence demonstrates that applicant and the victim had a consensual sexual relationship. Because of this relationship, the existence of applicant’s biological material in the victim’s vagina is to be expected. And Dr. Johnson’s findings actually support a consensual sexual relationship between applicant and the victim. Simply put, the non-existence of the protein known as "P-30," in conjunction with the existence of applicant’s DNA, indicates that applicant and the victim had sexual intercourse probably (and at least) twenty-four (24) hours prior to her death. Therefore, although applicant’s biological material was present, it was not deposited at the time of the victim’s death.

In support of this claim applicant has presented a great deal of additional evidence. Compelling is the statement by Sandy Durant who has no interest in this litigation and knows none of the participants. Ms. Durant overheard a number of women in the Wichita County Jail discussing this murder. According to these women, Pat Williams, Johnny Ray Humphries and another man committed this murder and threatened Marquita Mackey into providing them clean shirts. Ms. Durant’s statement is supported in two ways. First, she took contemporaneous notes of the conversation on the back of a note she received from Michael Street, her boy friend. Secondly, Michael Street has identified the note as one he sent Ms. Durant in the Wichita County Jail.

Felitta McKinney’s statements also question the verdict in this case. Ms. McKinney provided sworn statements indicating she observed her boyfriend, Randy Lee Harper, come home covered in blood, and carrying a gun, late the night the victim was murdered. Mr. Harper threatened Ms. McKinney if she ever revealed what she saw. Moreover, once Mr. Harper’s record is considered, he is the type of individual who could have committed this crime.

Applicant would respectfully show this Court that the statements provided by Ms. Durant and Ms. McKinney are not inconsistent. Ms. Durant’s statement specifically indicates that there was an additional perpetrator and Ms. Mckinney’s statements do not preclude the existence of other perpetrators. And, at least in John Jacobson’s expert opinion, the crime scene evidence in the instant case indicates that two or more persons committed this crime.

In the instant case the State’s evidence has been rebutted. Additionally, applicant has presented substantial evidence suggesting that evidence was planted, the State’s theory of the case was in error, and that applicant is innocent of this crime. Because applicant has been wrongfully convicted and sentenced to death, Due Process demands that relief be granted.

Within this ground, applicant contends that his constitutionally guaranteed right of access to evidence under the Fourteenth Amendment was violated. It is applicant’s contention that the evidence preservation techniques and policies of the Wichita Falls Police Department were so poor, or non-existent, as to constitute "bad faith" on the part of that Department.

The Law

Any criminal defendant is entitled to evidence that a prosecution witness has lied under oath, Napue v. Illinois, 360 U.S. 264, 269-272, 79 S.Ct. 1173, 1177-1179 (1959), or exculpatory evidence. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401 (1976). And, upon request, the prosecution must provide evidence material to guilt or relevant to punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963). Additionally, when the prosecution enters into an agreement with one of its witnesses, it must disclose that agreement to the defendant. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972). In United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3450 (1982), the Court held that Due Process is offended when the prosecution deports potential witnesses, diminishing a defendant’s opportunity to mount an effective defense.

In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528 (1984), the Supreme Court considered whether Due Process was offended by the failure of police to preserve samples of a defendant’s breath in prosecutions for Driving While Intoxicated. Id., 467 U.S. at 482, 104 S.Ct. at 2530. The Court noted that the police were acting in good faith and in accordance with their department policies and state law. Moreover, there was no evidence to suggest a conscious effort to suppress exculpatory evidence. In the Court’s opinion, the breath samples were not evidence which could reasonably be expected to play a significant role in defense of the prosecution. And finally, the Court found that the D.W.I. defendants were not without other means of demonstrating their innocence. Id., 467 U.S. at 488-489, 104 S.Ct. at 2533-2534. The Court held that Due Process did not demand law enforcement authorities to preserve samples of breath in D.W.I. prosecutions. Id., 467 U.S. at 491, 104 S.Ct. at 2535.

In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988), the Court again considered the Due Process implications in the failure to preserve evidence. In this case the prosecution failed to preserve samples for scientific testing which could have exonerated the defendant. Id., 488 U.S. at 54, 109 S.Ct at 335. The Court reviewed all of its Due Process jurisprudence, including Trombetta, supra, and noted that Due Process generally holds the good faith or bad faith of the prosecution irrelevant whenever the issue is material exculpatory evidence. Id., 488 U.S. at 57, 109 S.Ct. at 337. However, the Court was leery of requiring law enforcement authorities to preserve and retain each and every piece of evidence which has any conceivable evidentiary significance. Instead, the Court held that a burden should be placed upon a criminal defendant to demonstrate bad faith in the failure to preserve potentially useful evidence. Id., 488 U.S. at 58, 109 S.Ct. at 337.

Argument

Applicant would specifically incorporate by reference all of the factual allegations heretofore made, as well as the exhibits attached hereto, as if such were fully copied and set forth at length.

There can be little doubt that the crime scene investigation which was conducted by the Wichita Falls Police Department in this case was sloppy and unprofessional. Applicant has provided extensive evidence of the shortcomings of this investigation. First, and arguably most important, is the failure of the Wichita Falls Police Department to protect the integrity of the crime scene. Only essential personnel may be allowed on the scene and a log must be kept to identify all persons who entered the scene. According to Ms. Haines, and supported by the video, innumerable persons were allowed to walk through the crime scene. Although applicant’s counsel was apparently provided access to all of the evidence in this case, this review reveals no log of personnel within the crime scene.

Another extremely important issue in crime scene investigation is the documentation of the scene. This is done through photographing and videotaping the scene. In the instant case the documentation of the scene was so poor that, in the words of applicant’s forensic expert, the documentation in this case questions its evidentiary validity. There was no systematic approach to the photographing of the crime scene. Indeed, there was a failure on the part of investigators to ensure and identify photographs taken prior to the destruction or disturbing of the crime scene. There was no plan or organization in the videotape of the crime scene. Instead, there exists a lack of smooth and careful documentation and inadequate lighting was used. In the end, the documentation in this case effectively denies either party the ability to re-create or re-construct the crime scene.

Once the integrity of the evidence is protected, and its existence documented, then the investigator’s responsibility turns to preservation of the evidence and testing. In this case, there were large amounts of blood spatter evidence. Not only the extensive amounts of blood evidence in the victim’s bedroom, but also the blood transfer evidence in other rooms of the victim’s home. Yet no effort was made to take and preserve such evidence–thereby denying both parties the ability to subject such evidence to examination, scrutiny or DNA testing. Such testing might have distinguished the victim’s blood from other blood evidence present. Such blood evidence could have identified the perpetrator(s) of this offense. Additionally, experts found that the crime scene investigators failed to take steps to preserve trace evidence—again, evidence which not only would have exonerated applicant, but also could have identified one or more of the perpetrators of this offense.

As Mr. Ward indicates, crime scene investigators apparently found a shoe print on the door of the victim’s home. But, because no attempt was made to preserve this print, such is not currently available for testing. Even more disturbing, no attempt was made by the investigators to compare such evidence to applicant, to determine if he could have made this print. Once again, such evidence would have exonerated applicant and assisted in identifying one or more of the perpetrators of this offense.

Moreover, police reports indicate that closet doors were seized as evidence and fingerprints were recovered. Yet these prints were not introduced at trial and were never provided to Mr. Barnes. Likewise, the existence of these doors has never been established by the undersigned counsel

While the Wichita Falls Police Department collected many pieces of evidence in its crime scene investigation, it’s procedures deny either party the ability to determine: who collected the evidence; the location from which it was collected; identification of the evidence; and, when the evidence was collected. While the evidentiary procedures in place provided one or more of these important safeguards with regard to individual evidence, they failed to provide all these safeguards with all the evidence. To compound this problem, the Wichita Falls Police Department had no system of checks and balances to protect the identity and credibility of their evidence. Once again, the crime investigation denies both parties the ability to recreate or reconstruct the crime scene.

Perhaps most disturbing about the crime scene investigation in this case is that the Wichita Falls Police Department knew its crime scene investigation policies and procedures were inadequate. Indeed, sometime after this investigation, and likely as a result of this investigation, the Department reviewed its shortcomings and instituted new policies and procedures in this respect.

The expert opinions attached hereto and incorporated by reference both state the crime scene investigation demonstrate "an intentional disregard for even the most basic requirements of forensic investigation." Mr. Jacobson believes that, in this case, "there is a very real possibility that credible, even exculpatory, evidence was lost or missed" by crime scene investigators. In the words of a Detective on the Wichita Falls Police Department, "Boy did we do that wrong."

In the end, one could hardly argue the crime scene investigation in this case was conducted in good faith. Conscious ignorance of basic forensic investigation principles cannot constitute good faith. Such clearly cannot constitute a "conscious effort" on the part of the investigators to preserve crucial evidence." The Wichita Falls Police Department had no policies or procedures in place for such investigations–indeed it had no training for crime scene investigators. And while "on the job training" may in the end yield a competent investigator, applicant should not suffer the results of such training and procedures.

Most importantly, the crime scene investigation in this case denies either party access to the evidence missed and the evidence not documented. Good investigative techniques might have preserved evidence which at the time appeared unimportant. Good documentation would have allowed either party access to the crime scene for issues which later arose regarding the evidence. But such did not occur. And, without a doubt, there is no alternative means available to either party to ever obtain such evidence or information.

Further, there is no doubt about the exculpatory nature of the information that could have been gleaned from a competent crime scene investigation. The affidavits of two experienced crime scene investigators demonstrate that more than one perpetrator was involved and that anyone involved in this offense would have been covered in blood. The blood on Mr. Barnes’ coveralls is woefully insufficient, even were it not planted.

The crime scene investigation in this case, and the policies and procedures of the Wichita Falls Police Department in place at the time of this offense, has destroyed crucial evidence and denied applicant access to evidence which would have questioned the charges and possibly proven his innocence. The investigators actions were not in good faith. Therefore, Due Process forbids applicant’s conviction and execution under these circumstances. Applicant is entitled to relief.

The Law

The Sixth Amendment guarantees applicant the effective assistance of counsel. To demonstrate a violation of this right applicant must prove 1) counsel’s representation fell below professional norms, and 2) a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Supreme Court held the primary consideration is whether counsel’s conduct so undermined the proper functioning of the adversary process that the trial cannot be relied upon as having produced a just result. Id. The constitutional objective is "to ensure a fair trial." Id. at 686, 687, 694, 696.

Under the first prong of Strickland, "[c]ounsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Id., 466 U.S. at 688. The Supreme Court admonished appellate courts to "keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case." Id. at 690. To determine the effectiveness of counsel, an appellate court must look to the totality of the representation. E.g., Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Cr.App. 1983). Moreover, the appellate court will assume counsel "made all significant decisions in the exercise of reasonable professional judgment." Delrio v. State, 840 S.W.2d 443, 447 (Tex.Cr.App. 1992) (quoting Strickland, supra, at 690).

Although, under its second prong, Strickland requires applicant demonstrate prejudice, it does not require applicant to demonstrate counsel’s deficient performance actually altered the outcome of his trial, or even that it is more likely than not this was the result. Id., 466 U.S. at 693. The Court stated "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id., at 694. Thus, the Court only requires applicant to demonstrate "some conceivable effect on the outcome of the proceeding." Id. at 693 (emphasis added). Moreover, in assessing prejudice, the appellate court may not assess the probability an individual mistake might have affected the outcome. Rather, the reviewing court must look to all of the errors of counsel which fall below an objective standard of reasonableness, and measure the probability (chance) that, collectively, counsel’s deficient performance altered the outcome of the case. See generally, Kyles v. Whitley, 514 U.S. ___, 115 S.Ct. 1555 (1995) (providing the test for "materiality"). Finally, the appellate court must ensure that its ultimate focus is "on the fundamental fairness of the proceeding whose result is being challenged." Strickland, at 696.

Argument

Applicant would specifically incorporate by reference all of the factual allegations heretofore made, as well as the exhibits attached hereto, as if such were fully copied and set forth at length.

Applicant contends that counsel’s performance fell below the professional norm for attorneys defending a person charged with a capital offense. At a minimum, counsel had the duty to investigate the allegations in the indictment, the evidence to be introduced against applicant, and any potential mitigating evidence. Counsel further had a duty to consult such experts as necessary so as to understand and cross-examine the State’s experts. Counsel further had a duty to consult such experts as necessary to discover exculpatory evidence. Counsel failed in all these respects.

During the trial, counsel failed to discover and present such evidence as was necessary to demonstrate the mitigating nature of applicant’s childhood. The continued struggles between his mother and father and the alcoholism. Evidence that while struggling to protect his mother from his father, applicant shot his father. All of this evidence, as well as the other incorporated evidence, called for a sentence less than death.

Most disturbing is the failure of trial counsel to mount any real defense. Investigation and perseverance would have revealed that the lamp upon which applicant’s fingerprint was found had been in the victim’s home for at least five years—not weeks as the State’s evidence suggested. And investigation would have revealed the true relationship between applicant and the victim, and their families. The consensual sexual relationship. The friendly relationship. The fact that applicant helped repair the victim’s roof and move her furniture. The fact that applicant had parties in the victim’s barn. All evidence which would explain the existence of the fingerprint on the lamp. All evidence which was readily available—if trial counsel had only sought to interview Mr. Barnes’ first attorney, Nancy Botts. Evidence which was not discovered or presented to the jury.

Investigation would have revealed inconsistencies within the apparent eye witness testimony of Robert Brooks. Not only that what he observed occurred at least 45 minutes before the victim was home, but also that he was not alone—evidence he hid. And the fact that, at the time he observed the man coming from the victim’s back yard, he was not at all sure in his identification of applicant. Evidence which was not discovered or presented to the jury.

There were other people in the community who observed facts which were not discovered by either trial counsel or the State—but facts which are clearly relevant and material. Elizabeth Holley who overheard her patient state that he saw Johnny Ray Humphries leaving the victim’s house. Felitta McKinney who observed Randy Lee Harper returning, on the night the victim was killed, covered in blood. Applicant cannot state that these individuals would have released such information at the time trial counsel should have conducted an investigation. But applicant contends these individuals could have been located and questioned. They were not.

There were other persons who were never interviewed–Josie Rose Pope, Tammy Lewis, Harvey Neil, Rodney Brown, and Brenda Columbus. These were all persons from the same general area who had relevant and material information. Josie Pope lived next door to Patrick Williams–a key state’s witness. Tammy Lewis was his girlfriend. Brenda Columbus is Tammy’s mother. These are examples of the fact that trial counsel conducted no investigation aimed at impeaching the testimony of Patrick Williams, Johnny Ray Humphries, and Marquita Mackey. Three drug dealers and/or abusers whose testimony sought to place the murder weapon in applicant’s hands.

Harvey Neil and Rodney Brown could have questioned the testimony of Patrick Williams and Johnny Humphries. Humphries had the murder weapon and a bloody rag. Williams stated something was wrong with the gun. Both were acting strange. All evidence which questions their testimony and shows some guilty knowledge on their part.

Counsel failed to consult such experts as is required to challenge the crime scene investigation in this case. An investigation so substandard that experts state it could reflect an intentional disregard for the very basic requirements of a forensic investigation. An investigation so substandard that the very validity of the evidence seized is questionable. Yet the jury heard no such evidence.

Trial Counsel’s scientific investigation was non-existent. While it must be conceded that the state of DNA testing in 1989 was far different than it is today, such does not excuse the failure to consult experts concerning the spermatozoa counts, acid phosphatase and P-30 testing. All were available at the time and the results of such evidence clearly questions applicant’s guilt of this offense. Likewise, counsel did not seek expert assistance in explaining that the blood spatter evidence at the victim’s home made it impossible for applicant, wearing the coveralls, to have committed this offense. Counsel did not seek experts to explain or question the blood transfer evidence. And, considering all of these matters, counsel did not seek expert assistance to explain or test the blood spots on the coveralls. Again, all evidence which questioned the State’s theory and applicant’s guilt.

If trial counsel had sought to interview Nancy Botts, Mr. Barnes’ initial attorney, counsel would have learned that the Wichita County District Attorney’s Office had in its possession all of the privileged records generated as a result of the attorney-client relationship between Mr. Barnes and Ms. Botts. Trial Counsel could have sought to protect Mr. Barnes’ Sixth Amendment right to counsel. However, this is just one other fact not discovered by counsel.

Finally, counsel did not seek assistance to test the fingerprint lifted from the murder weapon—even though the State failed to compare such evidence with anyone other than applicant—a fact brought out by counsel on cross-examination. Had counsel consulted such an expert, and completed such an examination, the jury would have learned that Johnny Humphries’ fingerprint was on the murder weapon.

When the review of counsel’s performance is completed, the Court must acknowledge that there are more than fifty exhibits attached to this application, all containing evidence which questions the verdict in this case. Evidence that demonstrates the prosecutors were privy to defense consultations. All evidence which was missed or ignored not only by the authorities in many cases, but by trial counsel in every case. Applicant respectfully contends that trial counsel’s performance fell far below that expected of counsel defending a capital murder defendant.

Applicant would further show that he has suffered harm by the ineffective assistance of counsel in this case. As applicant has demonstrated, an adequate investigation in this case would have yielded substantial evidence of applicant’s innocence. Yet the jury was denied the ability to consider and weigh such evidence. Instead, the jury was allowed to deliberate only upon the State’s circumstantial evidence of guilt—which went unchallenged. That same jury sentenced applicant to death. Applicant suffered harm.

The Law

Under the Due Process Clause in the Fourteenth Amendment to the United States Constitution, the attorneys for the State, upon an appropriate request, must provide the defendant with favorable and material evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1196 (1962). Such evidence includes evidence which might impeach the State’s case or one of its witnesses. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985); and, Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995). The intentions of the prosecutor, i.e. whether he acted with good faith are irrelevant-- the failure to disclose such evidence violates the Due Process Clause. Id., 373 U.S. at 87, 83 S.Ct. at 1196-1197. Moreover, if the prosecutor has exculpatory evidence, such evidence must be disclosed even in the absence of a request. United States v. Agurs, 427 U.S. 97 (1976).

To be entitled to relief, the defendant must demonstrate the evidence suppressed was "material"-- that is, there must be a reasonable probability the result of a proceeding would have been different. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. However, this burden does not include proof that the jury would have acquitted the defendant. The Court specifically held the standard for review under Brady is not a sufficiency review. Instead, the appropriate focus is on the fairness of the proceeding. Kyles, 514 U.S. at 433, 115 S.Ct. at 1565. The defendant must demonstrate the evidence withheld questions the ultimate fairness of the proceedings. As the Supreme Court stated in Kyles, supra, "[a] reasonable probability of a different result is ... shown when the Government’s evidentiary suppression undermines confidence in the outcome of the trial." Id., 514 U.S. at 434, 115 S.Ct. at 1566.

In Kyles, the Court explained that the rule in Brady justifies society’s trust in the prosecution as the representative of all people and not simply a litigant striving to win a case. Id., 514 U.S. at 439-440,115 S.Ct. at 1568-1569. Indeed, "[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Brady, 373 U.S. at 87, 83 S.Ct. at 1197.

The burden to disclose Brady evidence extends beyond the evidence within the prosecutor’s file. Indeed, "... the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police." Kyles, 514 U.S. at 437, 115 S.Ct. at 1567. See, Ex parte Castellano, 863 S.W.2d 476, 481 (Tex.Cr.App. 1993). And, as stated supra, in the determination whether evidence should have been disclosed, the prosecutor’s "good faith" is irrelevant. "... [W]hether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith ...) The prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." Id., 514 U.S. at 437-438, 115 S.Ct. at 1567-1568.

The State further has a responsibility whenever "false evidence" is used to convict a defendant. In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959), the Supreme Court held:

Ibid. See, United States v. O’Keefe, 128 F.3d 885 (5^th Cir. 1997).

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), the Supreme Court considered whether the prosecutor’s promises to a prosecution witness must be disclosed under the Due Process Clause of the Fourteenth Amendment. In this case the witness was promised by a prosecutor that he would not be prosecuted if he testified. The government was represented by another prosecutor at trial and the promise was never revealed to the defendant. Id., 405 U.S. at 150-153, 92 S.Ct. at 764-765. The Court held that such non-disclosure violates the Due Process Clause and that it matters not whether the non-disclosure resulted intentionally or negligently. Id., 405 U.S. at 154, 92 S.Ct. at 766. Because of the importance of that witness, the defendant was entitled to relief. Ibid. Thus Due Process requires that any agreement with, or promise to, a witness be provided to the defendant.

Applicant would specifically incorporate all of the factual allegations heretofore made, as well as the exhibits attached hereto, as if fully copied and set forth at length.

Applicant contends that his rights under the Due Process Clause of the Fourteenth Amendment were violated by: 1) the State’s seizure of the handwritten notes of his attorney; 2) the placing of the victim’s blood on his coveralls; and 2) the existence of an agreement with Patrick Williams, a key State’s witness, which was not disclosed.

There can be little more inviolate than the attorney-client relationship under our Constitution. We protect this relationship so as to encourage every defendant to cooperate fully with his/her attorney, being open and honest. It is only through this type of a relationship that an attorney can satisfy the requirements of the Sixth Amendment. See, Ineffective Assistance argument, supra. However, these policy concerns, as well as any concept of fundamental fairness, are thrown out the window when the State obtains the notes taken by an attorney reflecting her conversations with her client. There can be little doubt of the advantage gained by this information. But, even worse, is the very appearance of impropriety which the State brings upon itself. In the end, it is fundamental fairness and the defendant’s rights under the Due Process Clause which suffer.

The Blood Stains

The forensic evidence which has been set forth within this application contains absolute and irrefutable evidence that the victim’s blood was discovered on applicant’s coveralls. The jury heard similar evidence during the trial (though today’s DNA testing was not available at the time). Thus, the existence of this blood was used to secure applicant’s conviction and death sentence. However, the forensic evidence herein also presents absolute and irrefutable evidence that the victim’s blood did not naturally arrive on applicant’s coveralls as a result of the victim’s murder. On the contrary, the victim’s blood was placed upon applicant’s coveralls only after that blood had been preserved in a yellow top test tube.

It is likewise irrefutable that the only persons with access to the victim’s blood, either that blood within the victim, from the crime scene, or in a test tube, were agents of the State. The crime scene investigation in this case, as bad as it was, clearly indicates that the only persons with access to the crime scene were members of the Wichita Falls Police Department, other law enforcement, or the Wichita County District Attorney’s Office. The actions of any of the persons are directly attributable to the State in this cause.

One can hardly imagine more damaging evidence—the victim’s blood on the defendant’s clothes. As a general rule, such evidence is strong circumstantial evidence of guilt. Absent proof of misconduct, or possibly accident, there can be no other reasonable explanation than the defendant’s guilt. Such was the state of the evidence before the jury in this case. And no one can argue against the prejudicial and probative nature of such evidence. And, now that it has been determined that such evidence came to applicant’s clothes wrongfully, no one can argue that such illegal acts are not prejudicial. Such a conviction, obtained through false evidence, must be condemned under the Due Process Clause.

The Deal

The jury knew that Patrick Williams had pleaded guilty to two drug offenses. However, neither the jury nor applicant knew the extent of the great deal that Williams received. He received a probation plea offer on two drug cases at a time in which there were no such bargains. He was placed upon probation and did poorly. So poorly that his probation officer repeatedly requested some assistance from the prosecutor’s office. In fact, Williams did so poorly that his probation officer recommended his probation be revoked. Instead of facing such a revocation, and prison, Williams, by agreement with the prosecution, was discharged from probation on both cases approximately five (5) years early.

Such evidence obviously suggests that Williams had an agreement with the State which was not disclosed to applicant. And the State viewed Williams’ testimony as important. Williams’ ex-girlfriend indicates that Williams got a deal—because the police wanted a witness who could place the weapon in applicant’s hands. Such was important to the State’s case.

Thus, the ability to provide the jury with accurate information to assess Williams’ credibility was crucial in this case. Williams had an extra-incentive to testify for the State–he was taking care of two felony convictions. Indeed, not only could Williams avoid prison and a trial (as other defendant’s in Wichita County could not), Williams could continue his drug dealing while on probation and not be subject to revocation. Instead, once applicant’s conviction was affirmed on appeal, Williams was released from probation some five(5) years early. Such was an incentive which should have been disclosed to the jury and critically reviewed. However, because no such arrangement was disclosed, such evidence was never reviewed.

Once again, Due Process will not stand for secret evidence, secret witnesses and planted evidence. Nor will Due Process stand for executions when the jury was denied the ability to form its verdict on all the probative evidence.

PRAYER

For the foregoing reasons, applicant respectfully prays that the Court:

1. grant leave to file this successor application for writ of habeas corpus;
2. grant this writ of habeas corpus, returnable to the Court of Criminal Appeals;
3. appoint the undersigned counsel to represent Mr. Barnes;
4. hold an evidentiary hearing; and,
5. enter a judgment ordering Applicant’s release, reforming his sentence to life imprisonment, or remanding him to custody of the local Sheriff to answer the indictment, as the law and the facts may require.

Respectfully Submitted,

GARY TAYLOR

Attorney at Law

P. O. Box 90212

Austin, Texas 78709-0212

(512) 478-3900

(512) 478-5256 (facsimile)

By:

Gary Taylor

COUNSEL FOR APPLICANT

Texas Bar No. 19691650

Attorney at Law

4515 Yoakum

Houston, Texas 77006

(713) 522-7224

State Bar No. 04144800

COUNSEL FOR APPLICANT

Snuggs & Wischkaemper

Attorneys at Law

915 Texas Avenue

Lubbock, Texas 79401

(806) 763-9900

State Bar No. 21802750

COUNSEL FOR APPLICANT

I herein certify that a true and correct copy of the above and foregoing application for writ of habeas corpus was served on the District Attorney for WICHITA County, by either First Class United States Mail to his published address, or by hand delivery.

Gary Taylor

AFFIDAVIT

STATE OF TEXAS §

COUNTY OF TRAVIS §

On this the 21st day of January, 2000, appeared Gary Taylor, a person known to me, who, after being by me first duly sworn, deposed and stated:

"My name is Gary Taylor and I am an attorney licensed by the State Bar of Texas. I am one of the attorneys for Odell Barnes, Jr., the applicant in the above-entitled and numbered cause. I have read the allegations in the above and foregoing "Successor Application for Writ of Habeas Corpus" and the allegations therein are true and correct according to my belief.

Gary Taylor

SUBSCRIBED AND SWORN TO before me the undersigned official on this the ___ day of January, 2000.

Notary Public in and for

THE STATE OF TEXAS

My comm. Exp:

Statement of Joseph Barnes, dated August 09, 1999

Statement of Odell Barnes, Sr., dated August 09, 1999

Statement of Connie Barnes, dated August 09, 1999

Statement of Lisa Milstein dated April 16, 1998

Statement of Sandy Durant dated February 26, 1998

Statement of Michael Street dated May 10, 1999

Records from the Wichita County Jail

Times Record News dated April 18, 1996

Criminal History–Pat Williams

Statement of Josie Rose Pope dated June 06,1999

Statement of Joseph Barnes dated march 18, 1999

Statement of Tammy Lewis dated September 14, 1999

Statement of Darlene Barnes dated June 17, 1999

Statement of Duretha McKnight dated June 17, 1999

Statement of Brenda Columbus dated May 11, 1999

Statement of Marty Canedy

Statement of Reggie Wilson

Gene Screen Report dated February 07, 1990

Southwest Institute of Forensic Sciences (SWIFS)

Report dated December 11, 1989

Southwest Institute of Forensic Sciences (SWIFS)

Report dated April 11, 1990

Gene Screen Report dated April 07, 1998

Statement of Dr. Elizabeth Johnson dated May 28, 1998

Statement of Judy Floyd dated June 12, 1998

Statement by Carolyn Van Winkle dated June 08, 1998

Statement by Dr. Elizabeth Johnson dated June 25, 1998

Report by Dr. Kevin Ballard, September 1999

Statement of Rodney Brown

Statement of Harvey Neil

Judgment and Sentence

Opinion, Court of Criminal Appeals

Probation Records for Patrick Williams

Statement of Michel Ward dated January 7, 2000

Statement of John Jacobson dated January 10, 2000

Statement of Robert Burtman dated January 7, 2000

Statement of Catherine Haenni dated January 10, 2000

Statement of Jack Mitchell dated January 08, 2000

Dallas County Sheriff’s Office

Report dated December 07, 1989

Letter to Counsel from

John Jacobson dated January 07, 2000

Letter to Dana Rice from

Wynona Kessler dated August 7, 1995

Statement of Wynona Kessler dated January 10, 2000

Statement of Felita McKinney dated January 11, 2000

Statement of Felita McKinney dated January 11, 2000

Statement of Pam Haines dated January 13, 2000

Criminal History of Randy Lee Harper

Affidavit for Evidence Search Warrant

Statement of Robert Burtman

dated 1/18/00

Police Report

Written statement by Nancy Botts

Written Statement by Bruce Martin

Memorandum from Barry Macha