Ex parte Kussmaul

548 S.W.3d 606

EX PARTE Richard Bryan KUSSMAUL, Applicant

Ex parte James Edward Long, Applicant

Ex parte James Wayne Pitts, Jr., Applicant

Ex parte Michael DeWayne Shelton, Applicant

NO. WR–28,586–09

NO. WR–28,772–02

NO. WR–35,508–03

NO. WR–84,754–01

Court of Criminal Appeals of Texas.

Delivered: June 6, 2018

Tiffany J. Dowling, Actual Innocence Clinic, The University of Texas at Austin School of Law, 727 East Dean Keeton St., Austin, TX 78705, KUSSMAUL ATTORNEYS FOR APPLICANT

Sterling Harmon, Appellate Division Chief, 219 North 6th Street, Suite 200, Waco, Texas 76701, KUSSMAUL, PITTS and SHELTON ATTORNEYS FOR THE STATE, STACEY SOULE, STATE'S ATTORNEY, AUSTIN

John J. McKetta, III, William Christian, Graves Dougherty Hearon & Moody, 401 Congress Ave., Suite 2200, Austin, Texas 78701, LONG ATTORNEYS FOR APPLICANT

Sterling Harmon, Appellate Division Chief, 219 North 6th Street, Suite 200, Waco, Texas 76701, LONG ATTORNEYS FOR THE STATE

Ryan C. Myers, Jeffery B. Vaden, Bracewell LLP, 711 Louisiana Street, Suite 2300, Houston, Texas 77002, PITTS ATTORNEYS FOR APPLICANT

Newell, J., delivered the unanimous opinion of the Court.

Applicants James Edward Long, James Wayne Pitts, Jr., and Michael DeWayne Shelton pleaded guilty to the offense of sexual assault and testified against Applicant Richard Bryan Kussmaul at his capital murder trial. Long, Pitts, and Shelton all testified at trial that they and Kussmaul had gang raped a female victim, and that Kussmaul had shot both the female and male victims. Post-conviction DNA test results exclude all four men as contributors to the semen collected from the crime scene, but reveal the genetic profiles of two unidentified men. Long, Pitts, and Shelton now recant their inculpatory statements to the police and their testimony at Kussmaul's trial, and the trial court recommends that we grant relief on Article 11.073 and actual innocence grounds. We agree that they are entitled to relief under Article 11.073 based on the discovery of new scientific evidence, but disagree that they have proven they are actually innocent.¹

I. Background

A. The Crime

The facts of the crime were set out by the court of appeals on direct appeal of Kussmaul's conviction.

The testimony [from the accomplices] reveals that Pitts received a telephone call from Leslie Murphy, stating that she and Pitts's former girlfriend were in San Antonio and would be coming through Bruceville–Eddy that afternoon and wanted to meet with him. Pitts agreed to meet them outside a movie rental shop in Eddy. Pitts did not have transportation, so he called Kussmaul to pick him up. While waiting for Leslie Murphy to arrive, Pitts and Kussmaul went to the Frontier Lounge for an hour or two. They then went to the movie rental store where they picked up Leslie Murphy and her companion, Steven Neighbors. Pitts' former girlfriend was not with them. They all then rode in Kussmaul's pickup to a mobile home in a rural area near Moody. On their way they picked up another friend of Kussmaul's, James Long. Kussmaul lived at the mobile home with Michael Shelton and two girls. The two girls, however, were not present during any of the events that happened at the mobile home that evening. Michael Shelton was at the mobile home when Kussmaul left to pick up Pitts and was still there when the group returned.

They only stayed at the mobile home a short period of time while they loaded up an ice chest with beer and left for Poor Boys, a nightclub in Eddy. They stayed at Poor Boys until nearly closing time and shot pool. All were drinking beer except Pitts and the victims, who were all underage. There was also some evidence that Kussmaul went outside Poor Boys at one point in the evening and smoked some marijuana. From Poor Boys they all rode back to the mobile home in Kussmaul's pickup truck. Shelton and others were still drinking beer, which was being passed from the coolers in the pickup bed through the rear sliding-glass window to those in the passenger cab. Shelton admitted to drinking 18 to 20 beers during the course of the evening.

After being at the mobile home a short while, the accomplice testimony is that Kussmaul began "harassing" and making "sexual advances" on Leslie Murphy by placing his hands on her breasts and between her legs. Murphy apparently tried to discourage Kussmaul verbally and ultimately slapped him on his face. Kussmaul then hit her in the face with his fist, knocking her to the floor. Kussmaul then "hollered" at Pitts, Long, and Shelton to hold Murphy down while he took his lock-blade knife from the holster on his belt and cut the crotch out of her jeans and panties. According to the testimony, Leslie Murphy was screaming for help during this time. Kussmaul began raping her on the carpeted living room floor, but apparently due to her continued resistance, he and the accomplices forcibly carried her into the bedroom where she was "thrown" onto a bed which had a flowery yellow sheet on it. Prior to carrying Murphy into the bedroom, James Long hit Steven Neighbors in the face with his fist and knocked him "almost unconscious" on the floor. Pitts was trying to hold Murphy down on the bed, but she looked up and Kussmaul hit her in the face again and tied a "gag" around her head and over her mouth. After that, she was described as "not moving much," and Kussmaul then raped her and left the bedroom. Long, Shelton, and Pitts then raped Murphy, during which occurrence a gunshot was heard from outside. Kussmaul returned to the bedroom with a rifle. Neighbors was dragged from the living room into the bedroom where Kussmaul kicked him in the face and he fell to the floor. Kussmaul then stated he was going to "kill the fucking bitch" and shot her once in the back. He then turned the rifle toward Neighbors and stated that he was "going to kill him, too" and shot him in the back, also.

Kussmaul, Shelton, Long, and Pitts then wrapped the victims in sheets and placed them in the back of Kussmaul's truck. They drove around for awhile and eventually dumped the bodies beside a gravel road. They returned back to the mobile home and cleaned up the blood and vacuumed the floors. During the cleaning, Kussmaul was still in possession of the rifle, which was described as being bolt-action.²

B. The Corroborating Evidence

As was recognized by the court of appeals on Kussmaul's direct appeal, there was evidence that corroborated portions of Long, Pitts, and Shelton's pre-trial statements and the consistent parts of their trial testimony.³

1. Claudine McNamara's Testimony That She Saw Applicants with the Victims at Poor Boys

Claudine McNamara, the waitress at Poor Boys, testified to seeing the victims and the co-defendants together at the club the night of the murders. She testified she knew Kussmaul—that he actually lived with her for a few months. She said he showed up at Poor Boys on March 20, 1992, with James Long and two others Kussmaul "ran around" with—along with two teenagers she did not know, a boy and a girl. She identified them as the two murder victims.

Q What in particular helped you identify the young boy?

A His features, the earrings for one thing in his ears. It was unusual for someone to come in that area with that kind of dress code.

Asked how, questioned a year later, she was able to remember that the group came in on March 20th, she said it was because it was a couple of weeks before the bar closed—and they'd had a pool tournament that night to help sell off their stock. She said she had seen the pictures of the missing teens on a flyer at the convenience store she frequented, and recognized them, but never put it together where she had seen them until she was questioned in 1993.

All three men testified that they went to Poor Boys to play pool and drink beer, and Long and Shelton specifically talked about seeing McNamara. When Long was asked whether he had seen anyone he knew at the bar that night, he replied, "Claudine McNamara." Shelton, asked the same question, replied

A Yeah. I forgot her name now, she was a bartender. Bryan used to run around with her boyfriend. I already forgot her name.

Q Is her name Claudine?

A Yeah. Claudine McNamara.

Pitts said they "shot some pool, drank" and then left together in Kussmaul's truck.

2. Trace Evidence–Trailer Carpet Fibers on the Sheet and Blanket the Bodies Were Found Wrapped In

SWIFS trace evidence analyst Charles Linch testified that carpet fibers found on a sheet and blanket the bodies were wrapped in matched the carpet in the trailer bedroom.

Q Now, did you compare those fibers that you found on either the blanket or the bed sheets with the fibers from the carpet sample that Deputy Davis stated that he seized from the trailer here?

A Yes, sir, I did.

Q And would you tell the jury how that was done and what the result of your comparison was?

A There was one fiber from the white bed sheet that I could not exclude as coming from the master bedroom of the mobile home trailer. There was one trilobal fiber from the pink blanket that I could not exclude as coming from the bedroom of the mobile home trailer.

Q And when you say that you cannot exclude the fiber, what do you mean by that, Mr. Linch?

A That means in going through my steps of comparison with the comparison light microscope, the polarized light microscope, the fluorescence microscope and micro spectrophotometer, no differences at all were seen. That means that the fibers found with the bedding with the bodies either came from the carpet in the mobile trailer or carpet that is identical to that in the mobile trailer.

He could "tell no differences" between fibers from the carpet sample and the carpet fibers that were recovered from the blanket and the bed sheet. The defense expert, Patricia Eddings, a Senior Trace Analyst from the Tarrant County Crime Lab, testified that she examined the microscopic slides that had been prepared from evidence in the case and reviewed Linch's reports. She said she, too, could not exclude the fibers from the blanket and sheet as...