UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

THOMAS OLIVAS,

 Petitioner,

 

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v. § Civil Action No. 4:22-CV-385-P

BOBBY LUMPKIN, Director, 

TDCJ-CID,

 Respondent.

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REPLY TO RESPONDENT’S ANSWER TO PETITIONER’S APPLICATION FOR WRIT 

OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

TO THE HONORABLE UNITED STATES JUDGE FOR THE NORTHERN DISTRICT OF 

TEXAS, FORT WORTH DIVISION:

Petitioner, Thomas Olivas (Olivas), by and through undersigned counsel, 

respectfully submits this Reply to Respondent’s Answer to Petitioner’s Application 

for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.

Respectfully submitted.

GOLDSTEIN & ORR

By:/s/ Aaron M. Diaz

AARON M. DIAZ

State Bar No. 24108453

JOHN S. GILMORE, III

State Bar No. 24096676

310 S. St. Mary’s St.

29th Floor–Tower Life Building

San Antonio, Texas 78205

Telephone: (210) 226-1463

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Facsimile: (210) 226-8367

Email: adiazlaw1@gmail.com

Email: johnstuartgilmore@gmail.com

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JURISDICTION

Olivas seeks relief under § 2254(d), as an individual in custody pursuant to a 

state court conviction that violates the United States Constitution, laws, or treaties. 

28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 

n.7 (2000). Specifically, Olivas asserts that he suffered violations of his rights as 

guaranteed by the Fifth and Fourteenth Amendments to the United States 

Constitution. The challenged conviction arises out of the 372nd District Court in 

Tarrant County, Texas, which is located within this Court’s jurisdiction. 28 U.S.C. 

§ 2254(a); 28 U.S.C. § 2241(d).

LEGAL STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), a petitioner seeking relief must demonstrate that 

adjudication his claims “(1) resulted in a decision that was contrary to, or involved 

an unreasonable application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or (2) resulted in a decision that was based on 

an unreasonable determination of the facts in light of the evidence in the State court 

proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70–71 (2003); 

Williams, 529 U.S. at 412–13.

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BACKGROUND

I. PROCEDURAL HISTORY

On October 2, 2014, a jury convicted Olivas of capital murder and sentenced 

him to life in prison without parole. On appeal, Olivas raised three issues: 1) that the 

evidence was insufficient to support his conviction, 2) that the trial court erred by 

allowing the State to introduce cell tower records, and 3) that the trial court erred by 

allowing the State to introduce extraneous conduct evidence. The Second Court of 

Appeals affirmed Olivas’s conviction on December 30, 2016. Olivas v. State, 507 

S.W.3d 446 (Tex. App.—Fort Worth 2016). 

On September 12, 2018, the Texas Court of Criminal Appeals granted 

Olivas’s petition for discretionary review. Olivas v. State, No. PD-0561-17 (Tex. 

Crim. App. Sept. 12, 2018). Because the court of appeals did not have the benefit of 

Carpenter v. United States,

1 the Court reversed the lower court to reconsider its 

holding concerning the cell tower evidence. Id. On remand, the court of appeals, 

again, upheld Olivas’s conviction. Olivas v. State, No. 02-14-00412-CR, 2020 WL 

827144 (Tex. App.—Fort Worth Feb. 20, 2020). Olivas filed a subsequent petition 

for discretionary review, which the Court refused on September 16, 2020. Olivas v. 

State, PD-0336-20 (Tex. Crim. App. Sept. 16, 2020). 

1 Carpenter v. United States, 138 S. Ct. 2206 (2018).

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Thereafter, Olivas sought post-conviction relief by filing an 11.07 Application

for Writ of Habeas Corpus under Texas Code of Criminal Procedure articles 11.07

and 11.073. He raised two claims on habeas: 1) actual innocence and 2) Due Process 

violations for faulty testimony presented at his trial. The trial court recommended 

that relief be denied, which the Texas Court of Criminal Appeals ultimately followed 

on May 4, 2022. This § 2254 Petition followed.

II. STATEMENT OF THE CASE

The pertinent facts related to Olivas’s claims for post-conviction relief are 

thoroughly recited in the record filed his state habeas proceedings and before this 

Court. Nevertheless, Olivas reemphasizes critical facts in response to Respondent’s 

answer. 

Arlington police investigators knew that Gandy was dating multiple 

individuals at the time she was murdered. Gandy’s neighbor, Stanley Cantly, 

described one of those individuals as a white male, about 5’8 with a stocky build, and 

short blond spiky hair. Investigators later identified that person as Christopher 

Grant. Law enforcement did not consider Grant to be a suspect. Gandy also had a 

sexual relationship with Timothy Jopson (Jopson), who admitted to obsessively 

harassing Gandy when he discovered another male at Gandy’s apartment. When 

investigators initially contacted Jopson about Gandy’s death, he was uncooperative 

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and hostile. Jopson allowed law enforcement to collect an oral swab, but he did not 

provide a hair sample. Despite other potential leads, the Arlington Police 

Department remained focused on charging Olivas for the crimes.

Investigators collected an oral swab and a hair sample from Olivas. 

Importantly, none of Olivas’s DNA was found on Gandy or in her apartment. And 

none of the Gandy’s DNA was discovered on Olivas or his belongings. At Olivas’s 

trial, however, Assistant Tarrant County Medical Examiner Patricia Eddings 

testified that several foreign hairs were discovered on Gandy’s body. When 

analyzing the trace evidence, Eddings determined that some of the hairs belonged to 

Gandy and one hair belonged to an unknown third person—not Olivas. An unknown 

male’s DNA was also found on items in Gandy’s apartment. The DNA evidence 

was analyzed and excluded Olivas as the contributor. Because law enforcement 

focused their investigation on Olivas, the DNA samples were never compared to any 

other individual. In short, no physical evidence placed Olivas in Gandy’s apartment 

the night of the incident. And no one identified Olivas as the person leaving the 

scene the night of the incident.

In addition, Dr. Shiping Bao was the Tarrant County Deputy Medical 

examiner who performed the autopsy on Gandy and Asher, but left shortly after 

performing the autopsies and did not testify at Olivas’s trial. Although Dr. Bao was 

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available to testify at Olivas’s trial, the State never contacted him and did not call 

him as a witness. Instead, Ex-Chief Tarrant County Medical Examiner Dr. Nizam 

Peerwani testified based on Dr. Bao’s reports, photos, and investigative findings—

despite not personally performing the autopsies. Olivas’s state habeas pleadings 

contain an affidavit by Dr. Bao that rebuts Dr. Peerwani’s trial testimony. 

Had Dr. Bao testified at Olivas’s trial, Olivas’s defense counsel could have 

questioned him about the validity of Gandy’s and Asher’s autopsies, considering the

inaccuracies in other autopsies he performed. Yet, the State allowed Dr. Peerwani 

to testify based on Dr. Bao’s reports, while knowing Dr. Bao’s prior examinations 

were scrutinized. Thisleft the jury with a false impression about the trustworthiness 

of the State’s evidence against Olivas.

The lack of DNA evidence placing Olivas at the crime scene, coupled with the 

State’s decision to call Dr. Peerwani rather than Dr. Bao, allowed the jury to convict 

Olivas on faulty evidence. Therefore, Olivas respectfully asks that his request for 

relief on both claims be granted.

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RESPONSE 

I. OLIVAS’S ACTUAL INNOCENCE CLAIM IS COGNIZABLE IN A FEDERAL WRIT 

OF HABEAS CORPUS.

Relying on Herrera v. Collins, Respondent contends that Olivas’s actual 

innocence claim is not a federally cognizable claim. (ECF 15 at 5). However, in 

Herrera, the Supreme Court addressed the failure to recognize a federal actual 

innocence claim as an embarrassing truth. Herrera v. Collins, 506 U.S. 390, 404

(1993). Even more, federal habeas corpus jurisprudence does not “cast[] a blind eye 

towards innocence.” Id. at 404. The Herrera Court acknowledged that in capital 

cases, “a truly persuasive demonstration of ‘actual innocence’ made after trial would 

render the execution of a defendant unconstitutional, and warrant federal habeas 

relief if there were no state avenue open to process such a claim.” Id. at 417. 

More recently, the Supreme Court remanded a writ of habeas corpus to the 

district court for a hearing and determination. See In re Davis, 557 U.S. 952, 131 S.

Ct. 1 (2009). Notably, In re Davis did not present a safe harbor case based on an 

innocence claim to support a successive writ—thereby acknowledging that an actual 

innocence claim is federally cognizable. Id. In doing so, the majority rejected the 

argument that an actually innocent person is foreclosed relief even when in 

possession of “new evidence conclusively and definitively proving, beyond any 

scintilla of doubt, that he is an innocent man.” Id. at 2 (Stevens, J., concurring).

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Respondent further argues that Olivas’s new evidence is not actually newly 

discovered. (ECF 15 at 6). Although the DNA evidence was presented at trial, the 

methods used to examine the DNA have since been discredited. For example, the 

State analyzed the foreign hairs founds on Gandy using a comparison microscope. 

This technique only allowed the analyst to compare the trace evidence to Gandy’s 

and Olivas’s hair samples. As Respondent correctly recognizes, Olivas was excluded 

as a contributor of every trace sample recovered as evidence. (ECF 15 at 6). If the 

trace evidence was examined using newer, more reliable methods, such as 

mitochondrial DNA testing, the results would have revealed more identifiable 

characteristics of the contributor.

Olivas was also excluded as a contributor of the male DNA found on Gandy’s 

body. After Olivas’s trial, the FBI notified all CODIS laboratories about the 

discrepancies in DNA mixture interpretation. These discrepancies were unknown 

at the time of Olivas’s trial and should constitute new evidence directly affecting the 

reliability of the results presented during Olivas’s trial.

Also, as argued below, the misconduct within the Tarrant County Medical 

Examiner’s Office was unknown to Olivas at the time of his trial. And the extent of 

TCMEO’s improper practices continues to evolve as new information becomes 

publicly available. See generally Static, Cutting In, FORT WORTH WEEKLY (July 2, 

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2022), https://www.fwweekly.com/2022/07/02/cutting-in-2/.

The State court was incorrect to deny Olivas’s request for habeas relief 

because the evidence supports Olivas’s claim that he is actually innocent. This 

Court should exercise its authority to right that wrong, and grant relief.

II. OLIVAS’S RIGHT TO DUE PROCESS WAS VIOLATED.

The Due Process Clause of the Fourteenth Amendment “forbids the State 

from knowingly using perjured testimony.” Knox v. Johnson, 224 F.3d 470, 477 (5th 

Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153 (1972)). False testimony 

may significantly impact the jury and the outcome of a trial. Napue v. Illinois, 360 

U.S. 264, 271 (1959). The principle that prosecutors may not knowingly use false 

testimony to obtain a tainted conviction does not cease to apply merely because the 

false testimony goes only to the credibility of the witness. Id. at 269. An expert 

witness’ reliance on evidence is barred if the witness is used as little more than a 

conduit or transmitter for testimonial hearsay, rather than as a true expert whose 

considered opinion sheds light on some specialized factual situation. United States 

v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009).

Due process is implicated when a prosecutor introduces or allows false or 

perjured testimony, and the prosecutor actually knows or believes that testimony is 

false or perjured; it is enough that testimony is challenged by another witness or is 

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inconsistent with prior statements. United States v. Brown, 634 F.2d 819, 824 (5th 

Cir. 1981). In considering whether evidence is false, courts determine whether the 

testimony taken as a whole, gives the jury a “false impression.” Alcorta v. Texas, 355 

U.S. 28, 31 (1957) (holding due process was violated where witness gave the jury a 

“false impression” by testifying that he did not “love” the victim and had not been 

on any “dates” with the victim, but omitted the fact that he had had sexual 

intercourse with the victim on several recent occasions). 

Respondent argues that Olivas cannot state with any specificity which 

evidence was false, and why. (ECF 15 at 8). However, as previously noted, Dr. Bao

performed the autopsies on Gandy and her son, Asher. Prior to Olivas’s trial, Dr. 

Bao ended his employment with Tarrant County for undisclosed reasons. Though 

the State could have called Dr. Bao to testify about his autopsy reports, the State 

instead called Ex-Chief Medical Examiner Dr. Peerwani to opine on two reports he 

did not create. Dr. Peerwani testified that he did not perform either autopsy but

relied entirely on Dr. Bao’s work product. 

Dr. Bao’s report stated Asher’s cause of death was due to thermal injuries. 

Although Dr. Peerwani initially testified that no evidence suggested an act of 

violence as a cause of death for Asher, and that there was no way to conclude the 

manner of death for the child, Dr. Peerwani opined at trial that the absence of soot 

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in the child’s trachea indicated he was not breathing when he caught fire. This 

allowed the State to suggest Asher was killed prior to the fire engulfing the 

apartment, even though the autopsy report determined his death occurred from 

thermal injury.

The autopsy report was in the State’s possession throughout the entirety of 

the investigation. Moreover, Dr. Bao was available to testify at Olivas’s trial to 

explain his findings, yet the State never contacted him. The State had actual 

knowledge that the Dr. Peerwani’s testimony was inaccurate with regard to the 

autopsies completed by Dr. Bao. See Brown, 634 F.2d at 824. Allowing Dr. Peerwani 

to opine in contradiction to the conclusive report gave the jury a false impression as 

to the cause of Asher’s death. See Alcorta 355 U.S. at 31. Because the State had 

actual knowledge of the falsity in Dr. Peerwani’s testimony, the State violated 

Olivas’s due process rights. See Knox, 224 F.3d at 477 (citing Giglio v. United States, 

405 U.S. 150, 153 (1972)). Therefore, Olivas’s due process claim is substantiated,

and this Court should order a hearing to resolve this issue.

CONCLUSION & PRAYER

For the above reasons, Olivas respectfully prays that this Court order a hearing 

in this cause, and grant his request to vacate his sentence. Alternatively, Olivas 

requests that this Court reverse his conviction and order a new trial, or any relief to 

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which he may be entitled.

Respectfully submitted.

GOLDSTEIN & ORR

By: /s/ Aaron M. Diaz

AARON M. DIAZ

State Bar No. 24108453

JOHN S. GILMORE, III

State Bar No. 24096676

310 S. St. Mary’s St.

29th Floor–Tower Life Building

San Antonio, Texas 78205

Telephone: (210) 226-1463

Facsimile: (210) 226-8367

Email: adiazlaw1@gmail.com

Email: johnstuartgilmore@gmail.com

Attorneys for Petitioner,

Thomas Olivas

CERTIFICATE OF SERVICE

I certify that on October 3, 2022, Petitioner’s Response was electronically 

filed with the Clerk of the Court for the U.S. District Court, Northern District of 

Texas, using the electronic case-filing system of the Court. Petitioner’s Response 

was electronically served to the following attorney of record for the Respondent:

Rhett Bartlett

Assistant Attorney General

State Bar No. 24128468

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P.O. Box 12548, Capitol Station

Austin, Texas 78711

Telephone: (512) 936-1400

Facsimile: (512) 936-1280

By:/s/ Aaron M. Diaz

AARON M. DIAZ

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