Barry C.Scheck, Esq. Peter J. Neufeld, Esq. 

# yTdL E F,LEDIN ExeieSor8* COURTOFCRIMINALAPPEALS Innocence Project

. . «niC 40Worth 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, ClerkRODNEY REED ) No. 8701

vs. ) IN THE DISTRICT COURT

STATE OF TEXAS ) 21* JUDICIAL DISTRICT

OF BASTROP COUNTY, TEXAS

NOTICE OFAPPEAL

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 ofCriminal Appeals asprovided under Article 64.05 ofthe Code ofCriminal 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 faxAndrew 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, acopy ofthe foregoing motion was served upon the Bastrop County District Attorney byU.S. Mail orhand delivery.

# Exhibit 1STATE OF TEXAS

RODNEY REED Cause No. 8701 § IN THE 21STDISTRICT COURT § § OF § BASTROP COUNTY, TEXAS

FINDINGS OF FACTAND 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 ofNovember 19, 2014. 2. Movant, onApril8, 2014, filed a motion to recuse the electedjudgeoverseeing 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 ofthe 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. „WuL

## 0:' FILED.

DATE Swat DistrictClerk, Bastrop Count" 

# M^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 betestedincluded four specified hairs andvarious swabs taken from the victim's body. 11. AtJuly 14, 2014, hearing, Movant requested indefinite delay ofhis execution to conduct DNA testing. 

### 12. The StatetimelyrespondedonSeptember 12,2014. The Stateattached several 

### exhibits regarding the existence, custody, and present condition ofevidence collected in connection with the investigation ofMovant's offense. 

### 13. Movantfiled a letterrequesting ahearing ontheChapter 64motion onOctober 14, 2014. 14. The State filed a letteropposing ahearingonthe 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 64response 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 thehearing on his Chapter 64motion. Movant requested 

### indefinite delay of his executiontoconduct DNAtesting orto appeal thedenial ofDNA testing. 20. The Court held a live hearing on the Chapter 64motion onNovember 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 ofTexas, Lisa Tanner, the special 

### prosecutoronMovant's case, and EttaWiley, adeputy districtclerkfor Bastrop

### County. Movant and the State also introduced various exhibits. After 

### considering the recordin thiscase, andaftermakingcredibility 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 forpurposes oftheagreed-to DNA testingordered onJuly 14, 2014. A subpoena issued on December 3, 2014. Findings ofFact and Conclusions ofLaw 

### 23. Reed has failed toprove by a preponderance oftheevidence that his Chapter 64 motion is not made to unreasonably delay the execution of sentence of administration of justice. This is explained below: 23a. Movant, to date, has not provided the Court with any information 

### regarding time estimates for theextensive DNA testing heseeks. This alone, the Courtbelieves, is sufficient toshow thatMovant 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 ofMovant's execution date. Movant's repeated desire to indefinitely delay his 

### execution, instead of proposing 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 enactmentand 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 offiling during this period, which was without factual orlegal impediment, leads the Courttobelieve thatthe present Chapter 64 motion is filed for purposes of delay. 

### 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 habeascorpus. 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 ofunreasonable 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 

### approximatelyayearand a half beforeMovant'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 hiscounsel, 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 expertaffidavit, the Courtfinds, is apurposeful 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 of Appeals 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 andpiecemeal 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 testingon a substantial amount ofevidence that he had not mentioned in his Chapter 64 motion. Consequently, Movant has not

### individually briefed orexplained 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 herequested 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 ofevidence that Movant requested to be tested for the first time at the Chapter 64hearing—beer cans—has beenheavily 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 ofevidence 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, Movantreqxtested testing ofsome items he did not "know" were in 

### thepossession ofthe 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 andwhich 

### hecould testindependently ofa Chapter 64 motion. This includes the beercans, various swabs from the victim's body, stains from 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 thatthe 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 ofsentence. 

### 231. Movant has repeatedly stated, inpleadings and incourt, that he plans tosoon file postconviction motions for reliefpursuant to Articles 11.071 and 11.073 ofthe Texas Code ofCriminal Procedure. To date, despite

### Movant's promise ofdiligence, 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 Courtordered 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 demonstratedpresence; the intactnessof Movant's sperminsidethe victim's vaginal cavity, theperi

### mortem 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, abrokenpantszipper, 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 ofthe items of evidence Movant seeks to testwere already before the jury and the jury knew they did not match Movant—their exculpatory nature was already before thejury. For example, Movant's DNA and forensics expert testifiedthat one ofthe hairs Movantseeks to test did notmatch Movant's genetic profile. As anotherexample, 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 of the fingerprints collected during the course ofthe investigation. Thus, the jury knew that manyofthe items Movant seeks to test were not from him. 

### 24c. Further, the Court finds that none oftheevidence Movant seeks to test 

### was so integral tothe State's case thatthe jury would have acquitted 

### despite knowingthatMovant'sDNAwas notonthe item. Many ofitems

ywere 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**' DistrictCterk, Bastrop County FILED.