Barry C.Scheck, Esq.

Peter J. Neufeld, Esq.

yTdL E F,LEDIN ExeieSor8* COURT OF CRIMINAL APPEALS

Innocence Project . . «niC

40 Worth Street, Suite 701 JAN 14 £Ul3

NewYork, NY10013

Abel Acosta, Clerk

Tel 212.364.5340

Fax 212.364.5341

www.innocenceprojed.org

January 6,2015

Af-~n»0?,f

Clerk Etta Wiley

Bastrop County District Clerk

804 Pecan St.

Bastrop, TX

78602

Dear Ms. Wiley,

My name is Hayato Watanabeand I am the paralegal for attorneyBryce Benjet who represents

Rodney Reed. I am writing with regard to Rodney Reed vs. State of Texas No. 8701. Please find

enclosed an original and five copies of a Notice to Appeal. Please file these documents with the Court

and return the file-stamped copies using the pre-paid addressed envelope enclosed. If you have any

questions or concerns I can be reached at 212-364-5979. Thank you very much.

Cc: Matt Ottoway, Assistant Attorney General

Bastrop County District Attorney

Benjamin N, Cardozo School ofLaw, Yeshiva University

Sincerely,

'It

Hayato Watanabe

Paralegal

RECEIVED IN

COURT OF CRIMINAL APPEALS

JAN 13 2015

Abel Acosta, Clerk
RODNEY REED ) No. 8701

vs. ) IN THE DISTRICT COURT

STATE OF TEXAS ) 21* JUDICIAL DISTRICT

OF BASTROP COUNTY, TEXAS

NOTICE OF APPEAL

ToTheHonorable District Judge:

On January 6, 2015 and under Rule 25.2 ofthe Texas Rules ofAppellate

Procedure, Rodney Reed, Defendant and Movant inthe above styled case, files this

written notice with the clerk ofthis court that defendant intends to appeal to the Texas

Court of Criminal Appeals asprovided under Article 64.05 of the Code of Criminal

Procedure. This appeal isfrom the written order denying Reed's Motion for DNA

Testing signed onDecember 12, 2014. Acopy ofthis Order is attached as Exhibit 1.

Respectfully submitted,

Bryce Benjet

State Bar No. 24006829

The Innocence Project

40 Worth St.

New York, NY 10013

(212) 364-5340

(212) 364-5341 fax
Andrew F. MacRae

State Bar No. 00784510

LEVATINO|PACE LLP

1101 S. Capitalof Texas Highway

Building K, Suite 125

Austin, TX 78746

(512) 637-8565

(512) 637-1583 (fax)

ATTORNEYS FOR RODNEY REED

CERTIFICATE OF SERVICE

On the 6th day ofJanuary 2015, a copy ofthe foregoing motion was served upon

the Bastrop County District Attorney byU.S. Mail or hand delivery.
Exhibit 1
STATE OF TEXAS

RODNEY REED

Cause No. 8701

§ IN THE 21STDISTRICT COURT

§

§ OF

§ BASTROP COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After considering the record in this case, and after making credibility

determinations following a live hearing in this Chapter 64 proceeding, the Court

enters the following findings of fact and conclusions of law:

Relevant Procedural History

1. The State, on April8, 2014, filed a motion to set an execution date forMovant,

RodneyReed. The State requested a date of November 19, 2014.

2. Movant, onApril8, 2014, filed a motion to recuse the elected judgeoverseeing

his case, Judge Towslee-Corbett.

3. Movant, on April 14, 2014, opposed setting of an execution date. Movant

requested indefinite delay of his execution to conduct DNA testing, to file a

subsequent state habeas application, and to file a scientific-evidence

application.

4. OnMay 23, 2014, Judge Towslee-Corbett issued an order ofvoluntary recusal.

5. On May 28, 2014, Judge Underwood, the presiding judge of the Second

Administrative Judicial Region, assigned the undersigned judge to preside

over the case.

6. On June 18, 2014, the Court set a hearing on the State's motion to set an

execution date.

7. On June 17, 2014, the Court re-set the hearing on the State's motion to set an

execution date at the request of the parties.

8. On July 14, 2014, the Court held a hearing on the State's motion to set an

execution date. The Court entered an order setting Movant's execution for

January 14, 2015. „WuLFILED. 0:'

DATE

Swat

District

M^

Clerk, Bastrop Count"
9. OnJuly 14, 2014, immediately before the hearing on the State's motion to set

an execution date, Movant filed the instant Chapter 64 motion. The motion

contained no affidavit from Movant and no affidavit from a DNA expert.

Movant, however, attached several affidavits purporting to undermine the

State's forensic case at trial.

10. Atthe July 14, 2014, hearing, the Court signed an order permittingagreed-to

DNA testing. The items to betested included four specified hairs and various

swabs taken from the victim's body.

11. AtJuly 14, 2014, hearing, Movant requested indefinite delay ofhis execution

to conduct DNA testing.

12. The Statetimely responded onSeptember 12,2014. The Stateattached several

exhibits regarding the existence, custody, and present condition of evidence

collected in connection with the investigation ofMovant's offense.

13. Movantfiled a letterrequesting a hearing ontheChapter 64motion onOctober

14, 2014.

14. The State filed a letteropposing a hearingonthe Chapter64motion onOctober

22, 2014. The State attached an exhibit reflecting an amended inventory

regarding fingerprint evidence.

15. Movantfiled a letter again requesting a hearing on the Chapter 64 motionon

October 23,2014. Movant attached, for the first time ever, an affidavit from a

DNA expert.

16. OnOctober 27, 2014, the Court set a hearingon Movant's Chapter 64motion.

17. On November 18, 2014, the State moved to modify Movant's execution date.

The State requested an amended date of March 5, 2015.

18. Movantfiled a replyto the State's Chapter 64 response on November 24, 2014.

Movant attached, for the first time ever, a personal affidavit.

19. Movantfiled a motion to withdraw his execution date on November 25, 2014,

immediately before the hearing on hisChapter 64motion. Movant requested

indefinite delay ofhis execution to conduct DNA testing orto appeal the denial

of DNA testing.

20. The Court held a live hearing on the Chapter 64 motion on November 25, 2014.

Movant called crime-scene and forensics expert, John Paolucci, and DNA

expert, Deanna Lankford. The State called Gerald Clough, an investigator

with the Office of the Attorney General of Texas, Lisa Tanner, the special

prosecutor on Movant's case, and EttaWiley, adeputy district clerk for Bastrop
County. Movant and the State also introduced various exhibits. After

considering the record in thiscase, andaftermaking credibility determinations

from the hearing, the Court denied Movant's Chapter 64 motion.

21. At the November 25, 2014, hearing, the Court granted the State's motion to

modify Movant's execution date. The Court entered an amended execution

order setting Movant's execution for March 5, 2015.

22. On December 2, 2014, Movant requested a subpoena to obtain a personal

reference sample for purposes ofthe agreed-to DNA testing ordered onJuly 14,

2014. A subpoena issued on December 3, 2014.

Findings of Fact and Conclusions of Law

23. Reed hasfailed to prove by a preponderance ofthe evidence that his Chapter

64 motion is not made to unreasonably delay the execution of sentence of

administration ofjustice. This is explained below:

23a. Movant, to date, has not provided the Court with any information

regarding time estimates for the extensive DNA testing he seeks. This

alone, the Court believes, issufficient toshow that Movant hasfailed in

his burden to show that his request is not made to unreasonably delay

his execution.

23b. Movant filed his Chapter 64 motion on the day this Court initially set

Movant's execution date. This timing, the Court believes, was not

coincidental, but a designed tactic to delay the setting of Movant's

execution date. Movant's repeated desire to indefinitely delay his

execution, instead ofproposing concrete timelines, further supports the

Court's belief that his Chapter 64 motion was filed for purposes of

unreasonable delay.

23c, The Court notes that Movant's Chapter 64 motion was filed thirteen

years after Chapter 64's enactment and approximately three years after

Chapter 64's most recent amendment. The Court finds that there was

no legal impediment to filing a Chapter 64 motion during this entire

period. The Court also notes that Movant has been continuously

represented by counsel during his postconviction proceedings, as

indicated by the multiple state and federal opinions generated during

these proceedings. The lack of filing during this period, which was

without factual orlegal impediment, leads the Court tobelieve that the

present Chapter 64 motion isfiled for purposes ofdelay.

23d. As pled in Movant's Chapter 64 motion, Movant's first informal request for DNA testing occurred three days after the United States Court of

Appeals affirmed the denial of his federal petition for writ of habeas
corpus. This timing is important because, as demonstrated in the

State's response, there is little chance for relieffollowing affirmation of

the denial of a federal habeas petition. Thus, the Court finds that

Movantonly sought DNA testing after his other efforts at relief proved

unsuccessful. This diminishes Movant's case that his present Chapter

64 motion was not filed for purposes of unreasonable delay.

23e. As demonstrated by the State's exhibits, Movant's attorney—Bryce

Benjet—is counsel ofrecord for Larry Swearingen, another Texas death

row inmate. Mr. Benjet filed a Chapter 64 motion for Swearingen

approximately ayear and a halfbefore Movant's Chapter 64 motion. Mr.

Benjetfiled another Chapter 64 motion for Swearingen approximately

two months before Movant's Chapter 64 motion. Movant's motion is

substantially similar to Swearingen's initial Chapter 64 motion and

attached to Swearingen's initial Chapter 64 motion is a personal

affidavit from Swearingen and an affidavit from a DNA expert.

Swearingen's second Chapter 64 motion has attached to it another

affidavit from a DNA expert. Thus, the Court concludes that Movant,

through his counsel, Mr. Benjet, had the legal and factual knowledge to

fileMovant's present Chapter 64 motion more than a year before it was

filed. Movant's delayed presentation of a personal affidavit and an

expert affidavit, the Courtfinds, is a purposeful attempt at delay.

23f. Movant has been cited for abuse of the writ on five separate occasions

by the Court of Criminal Appeals. As demonstrated by the State's

evidence, the United States District Court for the Western District of

Texas ruled that Movant had untimely sought forensic testing and was

dilatoryin submitting an affidavit. TheUnited States Court ofAppeals

for the Fifth Circuit also found that Movant submitted evidence in an

untimely fashion. Accordingly, the Court finds that Movant has

engaged in a dilatory and piecemeal litigation strategy throughout his

postconviction proceedings and the Court believes this Chapter 64

motion is a continuation of such behavior.

23g. Movant hasthrice asked theCourt to indefinitely postpone hisexecution

date—once in opposing the State's motion to set an execution date, once

at the hearing to set an execution date, andonce at the hearing on this

Chapter 64motion via a motion towithdraw the date. The Court finds

that Movant's request for, essentially, indefinite stays works against

him in proving that he is not attempting to unreasonably delay his

execution.

23h. Movant, at the live evidentiary hearingon theChapter 64motion, asked

for DNA testing on a substantial amount of evidence that he had not

mentioned in his Chapter 64 motion. Consequently, Movant has not
individually briefed or explained the type oftesting that he would like

performed on these items. The Court finds this dilatory request to be

another example ofMovant's last-minute amendments to his Chapter

64 pleadings, which this Court considers to be an attempt to

unreasonably delay his execution.

23i. The Court rejects Movant's rationale for failing to request and brief

those items of evidence raised for the first time at the hearing on the

Chapter 64 motion; specifically, that Movant did not know of the

evidence's existence until the State attached inventories to its Chapter

64 response. Movant hasfailed todemonstrate that he requested such

inventories from the State prior to the State's Chapter 64 response or

that the State refused him such inventories upon request. Further, one

of the items of evidence that Movant requested to be tested for the first

time at the Chapter 64 hearing—beer cans—has been heavily litigated

during the course of Movant's postconviction proceedings. It is

inconceivable to the Court that Movant did not know that such item

existed. Moreover, Movant requested DNA testing of items of evidence

in his Chapter 64 motion—a condom, a knife, and a shirt piece—that

were not introduced at trial and were, therefore, "unknown" to Movant

until the State attached an inventory to its response. Stated another

way, Movant reqxtested testing ofsome items he did not "know" were in

the possession of the State orDistrict Clerk. The Court finds Movant's

unsupported excuse to be further evidence of his attempts to

unreasonably delay his execution.

23j. As demonstrated by the State's evidence, Movant is in possession of

extracts from multiple pieces ofevidence he seeks testingon and which

he could test independently ofa Chapter 64 motion. This includes the

beer cans, various swabs from the victim's body, stainsfrom the victim's

pants and back brace, and a condom. Movant's request to test these

items via Chapter 64 when he could conduct the testing himself,

especially given his offer to pay for DNA testing, leads the Court to

believe that his request for DNA testing is for the purpose of

unreasonable delay.

23k. The Court finds that Movant has requested DNA testing of items of

evidence that the State has already agreed to test. Thisincludesvarious

hairs and swabs from the victim's body. The Court finds that this

request for redundant testing is, again, an attempt to unreasonably

delay the execution of sentence.

231. Movant has repeatedly stated, in pleadings and in court, that he plans

tosoon file postconviction motions for relief pursuant to Articles 11.071

and 11.073 ofthe Texas Code ofCriminal Procedure. To date, despite
Movant's promise of diligence, he has not filed either pleading. The

Court views this procrastination as another example of an attempt to

unreasonably delay his execution.

23m. Movant waited more than four months to obtain a subpoena for a

reference sample from himselfforpurposes ofthe agreed-to DNA testing

that this Court ordered in July. This delay in requesting a reference

sample demonstrates, the Court believes, unreasonable delay and

Movant's tardy actions in his agreed-to DNA testing makes this Court

believe he could not complete his requested DNA testing before the

present execution date.

24. The Court finds that Movant has failed to prove by a preponderance of the

evidence that he would not have been convicted but for exculpatory results

from DNA testing. This is explained below:

24a. The State's case on guilt-innocence was strong—Movant's DNA was

foundboth on and inside the victim, which demonstrated presence; the

intactnessofMovant's sperminsidethe victim's vaginal cavity, the perimortem injuries to the victim's anus, Movant's saliva on the victim's

breasts after she tooka showerthe evening before her murder, and the

small amount of semen in the victim's panties demonstrated sexual

assault contemporaneous with murder; the peri-mortem injury to the

victim's anus and the obvious signs of sexual assault—the victim's

bunched up panties, a broken pants zipper, partially unclothed, bruises

to the arms, torso, and head of the victim—demonstrated lack of

consent; and additional evidence indicated that Movant frequented the

area of the victim's disappearance at the time the victim disappeared

and the Movant matched the height ofsomeone who would have fit the

adjusted seat in the victim's truck.

24b. Many of the items ofevidence Movant seeks to testwere already before

the jury and the jury knew they did not match Movant—their

exculpatory nature was already before the jury. For example, Movant's

DNA and forensics expert testified that one ofthe hairs Movantseeks to

test did notmatch Movant's genetic profile. As another example, a DPS

forensic scientist testified that none of the hairs collected from the

victim's body microscopically matched Movant's hair. And, as another

example, Movant did not match any ofthe fingerprints collected during

the course ofthe investigation. Thus, the jury knew that manyofthe

items Movant seeks to test were not from him.

24c. Further, theCourt finds that none oftheevidence Movant seeks to test

was so integral to the State's case that the jury would have acquitted despite knowing that Movant's DNA was not on the item. Many ofitems

y
were in a truck shared with the victim's fiance and evidence at trial

demonstrated that other people had ridden in the truck. Thus, the jury

would not be surprised to know that foreign DNA was found on items

originatingfrom the truck. Further, manyofthe items ofevidence have

been handled by ungloved individuals, which further undermines the

value of such "exculpatory" results before a jury. Ultimately, at best,

exculpatory results from the items Movant seeks to test woxtld muddy

the waters, not prove by a preponderance that he would have been

acquitted.

Accordingly,Movant's Chapter 64 motion is DENIED.

It is so ORDERED.

DONE AND ENTERED this ) fL day nf ~Qei**dv , 2014.

Doug Shaver

Presiding Judge

21st District Court

Bastrop County, Texas

Sitting by Assignment

BffiB**' District Cterk, BastropCounty

FILED.