January 30, 2012 - DNA ISSUE by Justice4Hank

DNA  ISSUE

APPELLANT OPENING BRIEF JANUARY 30, 2012

TABLE OF CONTENTS STATEMENT OF THE CASE..............................................................................1 STATEMENT REGARDING ORAL ARGUMENT.............................................2 ISSUES PRESENTED .........................................................................................3 STATEMENT OF FACTS ....................................................................................3 I.

The Evidence of Mr. Skinner’s Physical and Mental Incapacitation .............................................................................................4 A.

The Eyewitnesses to Mr. Skinner’s Impaired Condition................5

The Experts .....................................................................................12 1.

Dr. William Lowry ................................................................12 (a)

The blood spatter analysis..........................................14

(b)

Mr. Skinner's belief that he was allergic to codeine .........................................................................16

(c)

Andrea Reed's false statements .................................18

Dr. Harold Kalant .................................................................19

II.

The Evidence that Robert Donnell Was the Real Murderer ..................21

III.

DNA Testing that Has Been Done by the State......................................26

SUMMARY OF THE ARGUMENT ...................................................................30 ARGUMENT .......................................................................................................35 I.

Mr. Skinner Has Shown that Favorable DNA Test Results Would Have Produced a Different Verdict..........................................................35 A.

This Case Falls Well Within the Judicial Precedents for DNA Testing....................................................................................36

This Court's Prior Decisions Denying DNA Testing to Mr. Skinner Do Not Address the Issue Presented Here......................52 ii

II.

This Court's 2003 decision both applied a legal standard that no longer exists and rested on misapprehension of a key fact..............................................52

This Court's 2009 decision analyzed Mr. Skinner's evidence only to the extent that it might have influenced trial counsel's decision not to seek DNA testing. ...................................................................................59

Mr. Skinner Has Shown That the Third Motion Was Not Made to Unreasonably Delay the Execution of Sentence or Administration of Justice....................................................................................................64

CONCLUSION....................................................................................................68

iii

TABLE OF AUTHORITIES FEDERAL CASES

Skinner v. Quarterman, No. 2:99-CV-45, 2007 WL 582808 (N.D. Tex. Feb. 22, 2007)................................ 10 Strickland v. Washington, 466 U.S. 668 (1984) ................................................................................................ 59 STATE CASES

Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996)................................................................... 46 Blott v. State, 588 S.W.2d 588 (Tex. Crim. App. 1979)................................................................. 60 Brown v. State, 657 S.W.2d 117 (Tex. Crim. App. 1983)........................................................... 51, 52 Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984)................................................................. 59 Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992)................................................................. 60 Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)..................................................................... 63 Gauthier v. State, 496 S.W.2d 584 (Tex. Crim. App. 1973)................................................................. 62 Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004)............................................................. 50, 51 Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010)................................................................. 62 Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002)............................................................. 33, 53

Lair v. State, 265 S.W.3d 580 (Tex. App. - Houston [1 Dist.] 2008)............................................ 51 Moore v. Commonwealth, ___ S.W.3d ___, 2011 WL 2433737 (Ky. June 16, 2011)........................................ 49 In re Morton, 326 S.W.3d 634 (Tex. App. - Austin 2010)......................................................passim Powers v. State, 343 S.W.3d 36 (Tenn. 2011) ................................................................................... 49 Prible v. State, 175 S.W.3d, 724 (Tex. Crim. App. 2005)................................................................ 46 Prible v. State, 245 S.W.3d 466 (Tex. Crim. App. 2008)................................................................. 46 Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002)............................................................... 35, 36 Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008)..........................................................passim Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003)..........................................................passim Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009)........................................... 1, 34, 59, 60, 61 Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005)........................................................... 36, 53 State v. Peterson, 836 A.2d 821 (N.J. Super. Ct. App. Div. 2003)...................................................... 49 Stevens v. State, 234 S.W.3d 748 (Tex. App. - Fort Worth 2007) ..................................................... 51 Temple v. State, 342 S.W.3d 572 (Tex. App. - Houston [14 Dist.] 2010).......................................... 51 Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005)................................................................. 67

Torres v. State, 794 S.W.2d 596 (Tex. App. - Austin 1990, no pet.)................................................ 51 In re V.M.D., 974 S.W.2d 332 (Tex. App. - San Antonio 1998) ................................................... 51 Wells v. State, 578 S.W.2d 118 (Tex. Crim. App. 1979)................................................................. 51 Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006)................................................................. 32 Woodfox v. State, 742 S.W.2d 408 (Tex. Crim. App. 1987)................................................................. 62 STATUTES Tex. Code Crim. Proc. Ann. art. 64.01(b)(1), as amended by Act of May 20, 2011, 82d Legis., R.S. ............................................................................................. 34 Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A)....................................................passim Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(B)..................................................... 64, 65 ADDITIONAL SOURCES Act of April 25, 2003, 78th Legis., R.S., ch. 13, ยง 3 (2003) ......................................... 53 Act of May 20, 2011, 82d Legis., R.S., ch. 366, ยง 1 (2011) .......................................... 34 Application for Post-Conviction Writ of Habeas Corpus Pursuant to Art. 11.071, V.A.C.C.P., Ex parte Skinner, No. 5216-3 (31st District Court of Gray County Texas March 1, 2010)............... 11 Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893, 2926 (2009) ............................................................................................................. 49 Chuck Lindell, Morton expected to be freed today after 25 years, Austin American Statesman, Oct. 3, 2011, http://www.statesman.com/news/texas-politics/morton-expected-to-befreed-today-after-25-1893620.html........................................................................ 44

Motion for Stay of Execution to Allow Meaningful Consideration of Appeal of Trial Court's Denial of Motion for DNA Testing And Objection to Trial Court's Order As Inadequate to Permit a Meaningful Appeal, Skinner v. State, No. 76,675 (Tex. Crim. App. Sept. 6, 2011) ........................................... 65-66 Motion of Petitioner Henry W. Skinner for Forensic Testing, State v. Skinner, No. 5216 (31st District Court of Gray County, Texas October 9, 2001)...................................................................................................... 27, 28, 29, 55 Order, Skinner v. State, No. AP-76,675 (Tex. Crim. App. Nov. 7, 2011) ............................................ 2, 34, 66 Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem?, 2006 Wis. L. Rev. 739, 778 (2006).......................................................................... 50

Wrong-way driver killed, Clinton, Oklahoma, Daily News, Jan. 5, 1997 ................. 22

vii

STATEMENT OF THE CASE Mr. Skinner appeals from the decision of the 31st District Court of Gray County denying his Third Motion for DNA Testing under Chapter 64 of the Texas Code of Criminal Procedure ("Ch. 64"). This case has twice been before this Court on Ch. 64 motions for DNA testing.

The denial of Mr.

Skinnerâ&#x20AC;&#x2122;s first motion, filed in September 2001 ("First Motion"), was affirmed by this Court in Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003) ("Skinner I"). The denial of Mr. Skinnerâ&#x20AC;&#x2122;s second motion, filed in July 2007 ("Second Motion") was affirmed in Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ("Skinner II"). The present motion, sometimes referred to herein as the "Third Motion" (SR 1:1), 1 was filed on September 6, 2011, just a few days after certain pertinent amendments to Ch. 64 became effective. The 31st District Court for Gray County denied the motion in a one-page order entered on November 2, 2011. (SR 2:122.) Mr. Skinner filed a notice of appeal two days later (SR The labeling on the "Supplemental Record" filed with the Court on November 15, 2011, is confusing because its two volumes are both designated "Volume 1," and each starts the page numbering with "1." In this brief, we will refer to the longer of these two volumes, the one containing documents filed earlier in time, as Volume 1, and the second of the two volumes, containing documents filed later, as Volume 2. We will cite the Supplemental Record as "SR," with volume and page number (e.g., "SR 1:23"). On November 23, 2011, the court below submitted a "Second Supplemental Record," consisting of one volume and again starting the page numbering at "1." We will cite the Second Supplemental Record as "SSR" with the page number only (e.g., "SSR 13"). 1

2:123), and on that same day asked this Court to stay his execution, then set for November 9, 2011, pending briefing and a decision on the merits of the present appeal.

On November 7, 2011, this Court granted that motion.

Order, Skinner v. State, No. AP-76,675 (Tex. Crim. App. Nov. 7, 2011) (per curiam) (hereinafter "Stay Order"). Noting that the district court had failed to make any determinations under art. 64.03, this Court directed entry of an order containing such determinations within 15 days.

(Id. at 2.)

November 21, 2011, the district court entered another one-page order, stating without elaboration that Mr. Skinner had failed to show by a preponderance of the evidence that "he would not have been convicted if exculpatory results had been obtained through DNA testing" and that "the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice." (SSR 7.) STATEMENT REGARDING ORAL ARGUMENT Mr. Skinner respectfully requests the opportunity for his counsel to present oral argument. As this Court has observed, recent changes to Ch. 64 "have never been reviewed in the particular context of this case," and "it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case." Stay Order at 1-2. The district courtâ&#x20AC;&#x2122;s failure to provide any findings of fact or conclusions of law compounds the difficulty of that task. Because the Court must grapple in this case with 2

issues of first impression and an extensive factual record, Mr. Skinner submits that the Court would be aided in reaching a decision by having the opportunity to hear argument. ISSUES PRESENTED 1.

Whether Mr. Skinner has shown, by a preponderance of the

evidence, that he would not have been convicted if exculpatory results had been obtained through DNA testing; and 2.

Whether Mr. Skinner has shown, by a preponderance of the

evidence, that his request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. STATEMENT OF FACTS Mr. Skinner was convicted of murdering his girlfriend, Twila Busby, and her adult sons, 22-year-old Elwin Caler and 20-year-old Randy Busby, at the home they all shared in Pampa, Texas. The murders occurred on New Year's Eve of 1993. There were no eyewitnesses to the murders, there was no physical evidence showing that Mr. Skinner had handled any of the possible murder weapons, and there was no evidence that he had any motive to kill his girlfriend and her sons. The principal evidence against Mr. Skinner at trial was that he was present in the house when the murders occurred, had the

blood of two of the victims on his clothes (Tr. 28:1109),2 managed to walk to neighbor Andrea Reedâ&#x20AC;&#x2122;s house shortly after the murders, and, while there, told Reed that he might have "kicked" Twila Busby to death (Tr. 26:501) (a method of attack not supported by any of the physical evidence). Although the jury found these facts sufficient to convict, substantial evidence presented both at trial and in subsequent proceedings casts serious doubt on the accuracy of the jury's verdict.

That evidence relates to two

issues: Whether Mr. Skinner was too incapacitated by alcohol and codeine to have committed the murders, and whether Ms. Busby's uncle, Robert Donnell, might have been the real killer. I.

THE EVIDENCE OF MR. SKINNER'S PHYSICAL AND MENTAL INCAPACITATION The victims' injuries show that whoever murdered them must have

possessed considerable strength, balance, and coordination. Twila Busby was first manually strangled so forcefully that her larynx and the hyoid bone on the right side of her neck were broken (Tr. 28:1186-87) and then struck with an ax or pick handle fourteen times, so hard that fragments of her unusually thick skull were driven into her brain. (Tr. 28:1171-72, 28:1181-82, 28:1186, 28:1189, 28:1209.) While attacking Ms. Busby, the perpetrator also had to

We cite the Reporter's Record of testimony at Mr. Skinnerâ&#x20AC;&#x2122;s trial as "Tr.," with volume and page number. 2

contend with the presence of her six-foot, six-inch, 225-pound son, Elwin Caler, who, police blood spatter analysis showed, was in the immediate vicinity of his mother as she was being beaten.

(Tr. 24:216-17, 28:1211;

State's Ex. 48 at 2.) Somehow, the murderer was able to finish his attack on Ms. Busby, change weapons, and stab Caler several times before Caler could fend off the attack or flee. (Tr. 28:1193-95.) The killer then methodically went to the bedroom shared by the two sons and stabbed to death Randy Busby, who was lying face down in the top bunk of his bed. (Tr. 24:119, 24:134.)

By their very nature, all of these acts demanded considerable

presence of mind and physical coordination.

But an increasing body of

evidence suggests that Mr. Skinner was too incapacitated by the massive amounts of alcohol and codeine he had consumed that evening to possess the physical or mental agility needed to commit these murders. That evidence is summarized below. A.

The Eyewitnesses to Mr. Skinner's Impaired Condition

The last person to see Ms. Busby and Mr. Skinner before the murders was Howard Mitchell, an acquaintance who was hosting a New Year's Eve party that evening. After talking to both Ms. Busby and Mr. Skinner on the phone around 9:30 p.m., Mitchell drove to the Busby residence at about 10:15 p.m., intending to give them a ride to his party. (Tr. 26:575-76.)

When

Mitchell got there, he found Mr. Skinner unconscious on the couch, with a 5

vodka bottle near him on the floor. (Tr. 26:575-77, 26:605.) Mitchell tried to wake Mr. Skinner by jerking his arm forcefully and shouting at him, but he remained unconscious and "kind of comatose." (Tr. 26:606-08, 26:611.) After waiting fifteen minutes, during which time Mitchell "never s[aw] him move at all," Mitchell left Mr. Skinner on the couch and took only Ms. Busby to the party. (Tr. 26:611.) Mitchell testified that it would have been impossible for anyone in Mr. Skinner's condition to have recovered sufficiently to commit three murders only ninety minutes later. (Tr. 26:608, 26:622.) The other person who observed Mr. Skinner's condition around the time of the murders was Andrea Reed, to whose nearby house Mr. Skinner somehow managed to stagger within minutes after the murders occurred. At trial, Ms. Reed's testimony was generally harmful to Mr. Skinner's case, and may well have tipped the balance in favor of conviction.

In addition to

claiming that Mr. Skinner had admitted to her that he might have kicked Ms. Busby to death, Ms. Reed also testified that Mr. Skinner was able to perform certain acts inconsistent with the defense theory that he was too impaired by alcohol and drugs to have committed the murders. For example, Ms. Reed stated at trial that after she warned Mr. Skinner that she would call the police if he did not leave, he nevertheless "somehow" got into her house (Tr. 26:491), and, once inside, was able to take off his shirt and lay it over the back of a chair (Tr. 26:493), heated and bent sewing needles to suture the cut 6

in his hand (Tr. 26:494), went to the bathroom on his own (Tr. 26:496), and threatened to kill her if she called the police (Tr. 26:497). Even so, Ms. Reed acknowledged on cross examination that Mr. Skinner was "f***** up" from both alcohol and drugs (Tr. 26:515), talked about things that she knew had never happened (Tr. 26:522), at times seemed unaware of where he was or who he was talking to, sometimes calling Ms. Reed "Twila" (Tr. 26:522, 26:526), and told a number of inconsistent and largely incoherent stories about what had happened that evening (Tr. 26:494, 26:500), including that he had been stabbed several times and "gut shot" (Tr. 26:491), neither of which was true. Post-conviction proceedings revealed that the more damaging aspects of Ms. Reed's trial testimony were untrue.

In testimony Andrea Reed gave

during Mr. Skinner's federal habeas proceeding, she acknowledged that her trial testimony against Mr. Skinner had been false in many important particulars, namely: 1.

Ms. Reedâ&#x20AC;&#x2122;s testimony at trial that she had prohibited Mr. Skinner

from entering her house and that he somehow got in anyway was particularly critical to the prosecution, because it indicated that he was able to perform a feat requiring considerable dexterity and presence of mind only minutes after

the murders. That testimony was false. (EH I:228.)3 Ms. Reed admitted in the federal proceeding that, in fact, she had made up that account because she feared the police would charge her as an accessory if she told the truth, which was that Mr. Skinner was able to get into her house only with her assistance. After becoming aware that he was "banging on the side of the trailer," Ms. Reed went outside and "ended up helping him up the porch steps and into [her] front room." (Id.) Contrary to the false impression left by her trial testimony that Mr. Skinner was somehow able to enter the house on his own through her locked front door, he in fact was unable even to walk up the steps on his own. (Id. at I:228-29.) He stumbled and fell over backwards trying to climb the porch steps and had to lean on Ms. Reed's arm to get into the house. (Id. at II:270-71.) 2.

Ms. Reed's trial testimony that, after Mr. Skinner was inside her

house, he took off his shirt and laid it over the back of a chair was also false. The truth, however, was that he could not take off his shirt without her assistance, and it was she, not he, who laid it over the back of the chair. (Id. at I:229.)

We cite the transcript of the evidentiary hearing in Mr. Skinner's federal habeas proceeding as "EH," followed by the volume and page number. Petitionerâ&#x20AC;&#x2122;s Exhibits from that hearing are cited as "EH PX," with number. 3

Ms. Reed's trial testimony that Mr. Skinner heated sewing

needles and attempted to bend them was also false. It was Ms. Reed who tried to heat and bend the needles; Mr. Skinner's coordination was too impaired to perform such acts. (Id. at I:230.) 4.

Ms. Reed's trial testimony that Mr. Skinner went from the dining

room to the bathroom on his own was also false. In fact, when Mr. Skinner needed to go to the bathroom, Ms. Reed had to help him walk down the hall and get back to the living area. (Id. at I:230-31.) Mr. Skinner was almost completely unable to keep his balance. (Id. at II:272.) 5.

Ms. Reed's trial testimony that Mr. Skinner threatened to kill her

if she called the police was likewise false. While Mr. Skinner told her that she should not call anybody, "he never said that he would kill me" (id. at I:231), and she never felt threatened by Mr. Skinner at any time while he was in her home that night. (Id. at II:266.) Nor did she worry that he was a threat to Twila. (Id. at II:278.) 6.

Ms. Reed testified at trial that of all the fanciful stories Mr.

Skinner told her on the night of the murders, the only one he made her swear to keep secret was the story that he believed he had kicked Twila Busby to death. (Tr. 26:528.) That, too, was a lie. Not once, but "several times," Mr. Skinner made Ms. Reed swear not to tell; with "[e]very story" Mr. Skinner told her, "he would whisper the same thing, don't ever tell anybody." (EH 9

I:231.) He told her "a whole lot of stories" that night (id. at II:277), and was generally acting "[p]retty much irrational." (Id. at II:281.) To be sure, in regards to a limited issue relevant only in Mr. Skinner's federal habeas proceeding, the federal magistrate judge who heard Ms. Reed's recantation testimony chose not to credit it.

There, however, Ms.

Reed’s testimony was presented to support a claim that the prosecution had coerced her to give false testimony. Moreover, though the magistrate judge cited several witnesses as "contradicting" Ms. Reed's testimony, those witnesses' testimony necessarily spoke only to the question of whether Ms. Reed had been coerced by agents of the State to give her trial testimony, not whether her trial testimony was false—a subject concerning which none of those witnesses had first-hand knowledge. See Skinner v. Quarterman, No. 2:99-CV-45, 2007 WL 582808, at *16 (N.D. Tex. Feb. 22, 2007) (not designated for publication). And even the testimony of those witnesses who said that Andrea Reed had told them the same story around that time—that Mr. Skinner had burst into her house and threatened her—is not inconsistent with Ms. Reed's post-trial testimony that she was initially afraid to say anything different to anyone, fearing she would be charged as an accessory. In assessing Andrea Reed's credibility, the federal court failed to take into account that Ms. Reed’s federal habeas testimony about Mr. Skinner's true condition on the night of the crime is far more consistent with, and 10

therefore corroborated by, the scientific evidence presented by Dr. William Lowry that around midnight Mr. Skinner was barely able to stand or walk (see discussion infra) and with Howard Mitchell's eyewitness testimony that 90 minutes earlier Mr. Skinner was so intoxicated that even Mitchell’s vigorous efforts could not rouse him from his near-comatose sleep.

And,

perhaps most important of all, the federal court did not consider the fact that Andrea Reed had no motive to change her testimony—other than her inability to live with the fact that her false testimony at trial might send an innocent man to the execution chamber. To the contrary, Ms. Reed had every incentive not to disavow her trial testimony, since she faced the real threat that she would be prosecuted for perjury if she did.4

An affidavit from Andrea Reed recanting her trial testimony accompanied Mr. Skinner's original state habeas application. Shortly after it was filed, then District Attorney John Mann called Ms. Reed before a grand jury. A transcript of that appearance eventually produced by the State under the Open Records Act shows that, after Ms. Reed invoked her right to counsel, Mr. Mann threatened to charge her with perjury if she did not withdraw her affidavit: 4

Do you understand that by signing whatever it was they had you sign that they got you to confess to having committed the felony of aggravated perjury? Did this lawyer you want, [Mr. Skinner's original habeas counsel], tell you that he was setting you up to take a fall for aggravated perjury by giving this statement that you gave recently? Is that really what you want to do? Just rely on [that attorney] who has now gotten you to commit—having—admit having committed the felony? If that's what you want to do, that's your privilege.

See Application for Post-Conviction Writ of Habeas Corpus Pursuant to Art. 11.071, V.A.C.C.P. at Ex. 7, Ex parte Skinner, No. 5216-3 (31st District Court of Gray County Texas March 1, 2010) (hereinafter "2010 State Habeas App."). At the federal evidentiary hearing, Ms. Reed admitted that she was concerned about the

(cont'd)

The Experts 1.

Dr. William Lowry

Dr. William Lowry, a toxicologist experienced in the effects of alcohol and drugs on human performance, testified at trial that Mr. Skinner was too impaired by the alcohol and codeine in his system to have committed the murders. Blood was drawn from Mr. Skinner after he was arrested. Dr. Lowry's undisputed analysis of that blood sample showed that as of midnight, Mr. Skinner's blood alcohol level was .21 percent—almost three times the drunk driving standard in Texas—and his blood codeine level was .4 mg/l— two and a half times the normal therapeutic dose. (Tr. 29:1356-58, 29:1369, 30:1464-65.) Dr. Lowry testified that combining these two substances greatly increases the potency of each. (Tr. 29:1354, 29:1360-61, 30:1462-63.) In Dr. Lowry's opinion, at midnight Mr. Skinner was at best in a "stuporous" condition—such that it would have required all of his physical and mental agility just to stand and move about—and therefore he could not have caused the deaths of the three victims. While the State had some success in getting Dr. Lowry to admit that a habitual abuser of alcohol and drugs would have more tolerance for those substances and that he (Dr. Lowry) was surprised by ________________________ (cont'd from previous page)

threat of felony charges (EH I:18), asked for and was appointed a public defender to advise her (id. at I:19), and then, in the face of these threats, testified anyway that she had lied at trial in each of the important respects described above.

some of the things Ms. Reed said Mr. Skinner had done when he got to her house (statements we now know to be false), it offered no expert witness of its own to rebut Dr. Lowry's conclusions.5 After trial, Dr. Lowry continued to follow the Skinner case.

In an

affidavit initially prepared for Mr. Skinner's state habeas case, Dr. Lowry said that "it has been difficult for me to live" with the results of the trial because "I have never known a verdict of the jury to be so at variance with what I believe to be scientific fact." 2010 State Habeas App. at Exhibit 10, Âś 6. He felt "even more strongly" about that view when he learned of the information, described below, that he had not known when he testified at trial.6 (Id.)

In addition, Joe Tarpley, an occupational therapist specializing in hand injuries, testified that, as a result of an injury to Mr. Skinner's right hand sustained six months before the murders, his grasping strength in that hand was half that of his left hand and less than half of what would be expected of a normal right-handed person. (Tr. 29:1317-18.) Mr. Tarpley opined that this disability likely would have prevented Mr. Skinner from grasping Twila Busby's throat with enough force to break her larynx and hyoid boneâ&#x20AC;&#x201D;even if he had been sober. (Tr. 29:1316, 29:131819.) 5

Dr. Lowry, now deceased, came from a law enforcement background. He was a former FBI Special Agent who had worked both in the Bureau's central crime laboratory in Washington, D.C. and in its Birmingham, Alabama field office. 6

(a)

The blood spatter analysis

As noted, blood spatter analysis done by the police prior to trial showed that Elwin Caler was in the same room with his mother when she was being beaten. (Tr. 24:216-17, 28:1211; State's Ex. 48 at 2.) Dr. Lowry testified at the federal habeas hearing that his trial testimony would have been significantly strengthened had Mr. Skinner's trial counsel provided him with this evidence, because it meant that the killer had to possess the strength and agility to deal with two of the victims in the same room at the same time. Dr. Lowry confirmed that this information would have solidified his opinion that Mr. Skinner could not have committed the murders. (EH II:309 (such evidence "would have bolstered" his opinion that Mr. Skinner, due to his "inebriated state," could not have been the assailant); id. ("Now, where he's allegedly beating someone in the same room with a young man that's 6 - 2, 3, whatever, and weighs 230 pounds, I cannot imagine how anybody being sober can do that, unless they're pretty agile, but in an inebriated state, it floors

me, it's beyond my comprehension.") (emphasis added).) Mr. Skinner's trial counsel agreed at the federal evidentiary hearing that the blood spatter analysis, which they admittedly overlooked at the time of trial, was favorable to the defense. Lead counsel Harold Comer concurred that "if Caler and Twila Busby were in the same room at the same time, the murderer would have [to have] dealt with them both at the same time." (Id. 14

at I:107.)

He found it "reasonable" to conclude that evidence that Mr.

Skinner "would have had to have murdered both of them in the same room at approximately the same time" would have "bolstered the defense that Mr. Skinner was too intoxicated" to have been the assailant. (Id.) But, as it was, the jury never heard that bolstered defense. Evidence that Elwin Caler was present when his mother was being beaten contradicted the prosecution's theory of how the murders unfolded, making it necessary for Mr. Mann to discount for the jury, in a manner consistent with the notion that Mr. Skinner was the murderer, the fact that Mr. Skinner's bloody handprint was found close to the floor on the door frame in Randy Busby's and Elwin Caler's bedroom.

To combat the natural

inference that it was made by a man who was literally falling-down drunk, Mr. Mann theorized that Elwin Caler had knocked Mr. Skinner down: The evidence points to a man that went to this back bedroom back here and found those boys on that bunk bed asleep and was so drunk and so full of himself and his abuse history that this young man [Caler], I submit to you, a logical deduction of the evidence shows, became aware of what was going on up here and that's how Henry Skinner's palm print got 18 inches above the floor when Elwin Caler came out of that bottom bunk. (Tr. at 30:1607-08 (emphasis added).) Had attention been brought to the blood spatter analysis at trial, it would have deprived Mr. Mann of his explanation for the location of Mr. Skinner's handprint, by showing that Elwin Caler was in the living room 15

when his mother was being beaten, not in his bunk as Mann contended. And, if neither Randy Busby nor Elwin Caler knocked Mr. Skinner down, the only logical explanation for his handprint on the doorframe near the floor is that he was indeed falling-down drunk and in no condition to commit the murders. (b)

Mr. Skinner's belief that he was allergic to codeine

It was undisputed at trial that at the time of the murders, Mr. Skinnerâ&#x20AC;&#x2122;s blood contained not only alcohol at nearly triple Texas's legal intoxication limit, but also codeine at twice the normal therapeutic dosage. (Tr. 29:1356-58, 29:1369, 30:1464-65.)

However, there was another

important fact that Dr. Lowry did not know when he testified at trial about the effects these drugs would have had on Mr. Skinner. Namely, evidence shows that Mr. Skinner once suffered what he believed to be an allergic reaction to codeine, and years of medical records confirm that Mr. Skinner thereafter consistently avoided being prescribed codeine by reporting to health care providers that he was allergic to it. See 2010 State Habeas App. at Ex. 8 (affidavit of Lori Brim); id. at Ex. 9 (Mr. Skinner's medical records). Dr. Lowry testified at the federal habeas hearing that this information, too, would have greatly strengthened his trial testimony. First, he would have been able to tell the jury that if Mr. Skinner was indeed allergic to codeine, his impairment on the night of the crime would have been even more pronounced, due to allergic symptoms like nausea and difficulty breathing. 16

(EH II:305-06.) More important, regardless of whether Mr. Skinner was actually allergic to codeine, evidence that he thought he was and therefore affirmatively avoided its use would have given Dr. Lowry the means to counter the State's argument that Mr. Skinner must have consumed codeine excessively for years and thus acquired a tolerance for its effects. (Id. at II:306-07; III:834-39.) Indeed, the possibility that Mr. Skinner had built up a tolerance to codeine constituted one of the State's principal attacks on Dr. Lowry's testimony.

For example, the district attorney asked Dr. Lowry

questions designed to show that different people exhibit different responses to the same dose of a narcotic drug like codeine.

(Tr. 30:1449-50.)

The

prosecutor got Dr. Lowry to agree that a regular user of prescription painkillers (the synthetic narcotic hydrocodone was used as an example in the questioning) "would have a less of a response because of the degree of tolerance developed by the extended use of the drug." (Id. at 30:1453.) Dr. Lowry effectively countered the prosecutionâ&#x20AC;&#x2122;s argument that years of heavy drinking had left Mr. Skinner unusually tolerant of alcohol by pointing out that the codeine in Mr. Skinner's system and its synergistic interaction with alcohol would have incapacitated him regardless of any tolerance for alcohol. (See id. at 30:1462.) But what Dr. Lowry was unable to counter was the false impression that years of drug abuse had given Mr. Skinner a special 17

tolerance for codeine.

That left Mr. Mann free to dismiss Dr. Lowry's

testimony as being "directed to persons of non-tolerance." (Id. at 30:1553.) The medical records showing that Mr. Skinner consistently avoided using codeine would have armed Dr. Lowry with evidence to counter that impression. But Mr. Skinner's trial jury never heard that evidence. (c)

Andrea Reed's false statements

At trial, the prosecution specifically used Ms. Reed's testimony about Mr. Skinner's physical and mental condition immediately after the crime to rebut Dr. Lowry's testimony that Mr. Skinner was too impaired to have committed the murders. That would not have been possible had Andrea Reed testified truthfully. Dr. Lowry recalled in the federal habeas proceeding how Ms. Reed's trial testimony (and similar statements made to police on the night of the crimes) had been used in cross-examining him. (EH II:297-98.) Dr. Lowry admitted that he was "very much surprised" by Ms. Reed's description of Mr. Skinner's condition and its suggestion that he could have possessed "the presence of mind [and] the physical ability . . . to carry out three murders." (Id. at II:299.)

Confronted by the prosecutor at trial with Ms. Reed's

statements, Dr. Lowry found it difficult to square them with his opinion about Mr. Skinner's incapacitation. (Id.)

Dr. Lowry confirmed that if Ms. Reed had truthfully described Mr. Skinner’s condition from the outset, it would have made a difference in his opinion. Not only would it have "confirmed" and “bolstered” his opinion that Mr. Skinner was not capable of carrying out the murders in his incapacitated state (id.), but it would have made it impossible for the prosecution to undermine his testimony by highlighting the contrast between his expert opinion and Andrea Reed's trial testimony about the actions Mr. Skinner performed when he got to her house. 2.

Dr. Harold Kalant

In 2010, Mr. Skinner's present counsel provided information from the trial record regarding Mr. Skinner's blood alcohol and codeine levels to Dr. Harold Kalant, professor emeritus at the University of Toronto and one of the world's foremost experts on the effects of alcohol and drugs on the human body.

To eliminate the risk that his opinion could be influenced by Dr.

Lowry's conclusions, Dr. Kalant was not shown any of Dr. Lowry's testimony other than a short excerpt describing how Dr. Lowry had calculated Mr. Skinner's likely alcohol and codeine levels during the nine hours before his blood was drawn at 5:30 a.m. on the morning of January 1, 1994. Dr. Kalant's conclusions essentially track Dr. Lowry's. (See SR 1:5458.) His only area of disagreement is that Dr. Lowry underestimated both Mr. Skinner's blood alcohol and blood codeine levels at midnight. First, Dr. 19

Kalant opines that Dr. Lowry should have adjusted his calculations based on scientific studies showing that heavy drinkers (like Mr. Skinner) eliminate alcohol at a faster rate.

(See SR 1:55-56, ¶ 3.)

Taking those higher

elimination rates into account, Dr. Kalant calculates that Mr. Skinner's blood alcohol content was likely around .264 % at midnight and as high as .334% at 9:30 p.m., the equivalent of having consumed two-thirds to four-fifths of a standard "fifth" (25 oz. bottle) of vodka. (See SR 1:56, ¶ 4.) Dr. Kalant also concludes that current research supports a faster codeine elimination rate than Dr. Lowry used. As recalculated, Mr. Skinner's codeine level was .66 mg/l at midnight and 1.35 mg/l at 9:30 p.m.—more than 65% higher than originally calculated. (SR 1:56-57, ¶ 5.) Dr. Kalant confirms Dr. Lowry’s testimony that alcohol and codeine enhance each other's effects, and also that a heavy drinker and drug abuser is likely to have more tolerance, and therefore better bodily function when intoxicated, than a moderate drinker and drug user. (SR 1:57, ¶ 6.) Even with these qualifications, however, Dr. Kalant's independent conclusions echo Dr. Lowry's: [A] moderate drinker with alcohol and codeine levels in the ranges Mr. Skinner appears to have been in at midnight would almost certainly be comatose, and in some cases be near death or even dead, while a heavy drinker would more likely be stuporous but possibly rousable at such levels. Even if the heavy drinker were rousable, however, he would not be lucid at such levels, meaning he would not be able to assess correctly where he was or 20

have a clear and accurate grasp of reality. I would not be surprised if the heavy drinker were able to move about somewhat, but he would be very confused and badly impaired, and would have difficulty standing or walking in a coordinated manner. (SR 1:57, ¶ 7 (emphasis added).)

Thus, Dr. Kalant’s opinion is fully

consistent with Dr. Lowry’s conclusion that Mr. Skinner was too impaired by alcohol and codeine to have committed the murders. II.

THE EVIDENCE THAT ROBERT DONNELL WAS THE REAL MURDERER The jury also heard evidence that Twila Busby's uncle, Robert Donnell,

might well have been the real murderer—a possibility the prosecution neither investigated nor offered evidence to disprove. The defense presented evidence that Donnell was a hot-tempered ex-con who had sexually molested a girl, grabbed a pregnant woman by the throat, and kept a knife in his car. (Tr. 26:615-18, 26:619, 29:1281, 29:1296, 29:1300-01.) Donnell was present, drunk, at Mitchell's New Year's Eve party. During the short time Twila Busby was there, Donnell stalked her, making crude and annoying sexual remarks. (Tr. 26:619-20, 29:1277, 29:1281.) Mitchell "sensed that [Donnell] would be a danger," and when Mitchell agreed to take Twila home around 11:15 p.m., he noticed that she was "fidgety and worried."

(Tr. 26:618,

26:629.) When Mitchell returned to his party, Donnell was no longer there. (Tr. 26:629, 29:1289.) Mitchell later told law enforcement that he believed that Donnell could have murdered Twila. (Tr. 26:623.) 21

During Mr. Skinner's federal habeas proceeding, much more evidence was presented pointing to Donnell as the actual killer.

Of particular

significance was the testimony of Debra Ellis, who lived next door to Donnell and his wife and had known them for about three years at the time of the murders. (EH I:34.) Ms. Ellis testified that Donnell was a "[v]ery big guy" who owned a gun and carried a knife. (Id. at I:28.) He "was not a nice person," he drank heavily, and his temper worsened when he had been drinking. (Id. at I:30.) Ms. Ellis had seen him threaten at least one person in her own presence. (Id. at I:28.) Donnell also frightened his wife, Willie Mae Gardner, by pushing her and yelling at her; on one such occasion, Ms. Ellis saw him grab his wife by the throat and lift her off her feet up against the wall. (Id. at I:49-50.) Another time, Ms. Gardner told Ms. Ellis—while still traumatized from the incident—that Donnell had choked her and put a gun to her head, threatening to blow it off.7 (Id. at I:49.) Ms. Ellis also testified that Donnell owned and regularly wore a tan windbreaker jacket—just like the one found next to Twila Busby's body after her murder. (Id. at I:30-31.)

In 1996, Ms. Gardner filed for divorce from Donnell, alleging that he was a heavy drinker with an "unpredictable and ungovernable" temper who abused her verbally and threatened her with bodily injury. Donnell did not contest these charges; he died in a head-on collision—while driving the wrong way on an interstate highway, see Wrong-way driver killed, Clinton, Oklahoma, Daily News, Jan. 5, 1997, at 1— before the divorce became final. 7

Ms. Ellis was present when police informed Donnell that his niece and both her sons had been brutally slain. All he said was, "okay." (Id. at I:39.) Donnell "was not upset," "had not been crying," and "acted like it was . . . [j]ust an ordinary normal day for him." (Id. at I:26.) He showed "no emotion at all" in response to the shocking news of the triple murder of his own relatives. (Id. at I:46.) His response was so unusually casual that it made Ms. Ellis wonder at the time if he was involved in the crime. (Id. at I:44.) Ms. Ellis also testified that, a few days after the murders, Donnell literally dismantled his vehicle in order to give it a fanatically thorough cleaning. Donnell's vehicle was "an old-beat up truck," a small pickup of Japanese make. (Id. at I:23.) There was "[n]othing special" about this "plain Jane truckâ&#x20AC;?; it was a "clunker." (Id.) Nonetheless, Ms. Ellis saw Donnell, on a day when it was "cold outside," stripping the interior of his truck down to the metal floorboards and giving it a vigorous cleaning. (Id.) He "had taken all the carpet out of the truck," and "was out there with one of these big old five-gallon buckets," containing a solution of "Pine Sol" or something that smelled like it. (Id.) Donnell's intense activity drew Ms. Ellis's attention because Donnell was normally anything but fastidious about his truck; not only had she never seen him clean it this thoroughly before, she had never seen him clean it at all in the three years she had lived next door. (Id. at I:24.)

Donnell spent "a few hours" at the task, which involved taking 23

"everything out of the truck," "all the seats and everything." (Id. at I:23.) "Anything that would come out of the truck, he took out . . . ." (Id. at I:23-24.) After Donnell had removed everything above the metal floorboards, he scrubbed the entire interior of the truck cab with the Pine Sol solution and then hosed it out thoroughly. (Id.) He replaced the seats, but not the carpet. (Id. at I:24.) And he did not stop there: Within the next two weeks Donnell

repainted his pickup, using "'a paint brush and a spray can.'" (Id. at I:26, I:42.) James Hayes, an acquaintance of both Twila Busby and Donnell, testified at the federal habeas hearing that Donnell had acted violently towards him from time to time, and in fact had once grabbed him and cut his shirt with a knife.

(Id. at I:56, I:62-63.)

He described the relationship

between Twila and Donnell as often turbulent, and recalled how Twila sometimes asked him to help make peace between them. (Id. at I:58 (Twila would phone Mr. Hayes when she and Donnell were arguing; at her request, Mr. Hayes would come over and "[t]ell [Donnell] to leave"), id. at I:60 (Twila and Donnell argued when they got drunk).) At least once, Twila sought Mr. Hayes's help after Donnell "had tried to molest her." (Id. at I:64.) Vickie Broadstreet, Twila Busbyâ&#x20AC;&#x2122;s close friend, likewise described Donnell as a "scary" man who drank regularly. (Id. at I:74.) She had seen Donnell with a knife and was afraid of him. (Id. at I:74-75.) Ms. Broadstreet 24

revealed that Twila had once confided in her that Donnell was jealous of Twila's romantic relationships with other people. (Id. at I:76.) These witnesses' accounts mutually reinforce and add important details to the testimony of the witnesses called by Mr. Skinner at trial to advance their theory that the authorities should have regarded Donnell as a likely suspect. Defense counsel made a point of asking Howard Mitchell's daughter Sara, for example, about Donnell carrying a gun and a knife in his truck and sometimes on his person. (Tr. 29:1281.) Sara Mitchellâ&#x20AC;&#x2122;s testimony about what others told her in this regard is bolstered and corroborated by the firsthand accounts of witnesses like Deborah Ellis and James Hayes. (See EH I:28 (Ellis); id. at I:57, 62-63 (Hayes).) Similarly, Sara Mitchell testified at trial that Donnell was "intoxicated, very" at the party. (Tr. 29:1281.) Ms. Ellis adds the important fact that Donnell's notorious temper worsened when he drank.

(EH I:30.)

Likewise, evidence that the violent, threatening

Donnell was jealous of Twilaâ&#x20AC;&#x2122;s romantic involvements places Sara Mitchell's testimony that Donnell was "stalking" Twila at the party (Tr. 29:1281-82) into an ominous new context. If, as Sherry Baker, another defense witness, testified at trial, Twila did not like the fact that Donnell was "belligerent and demanding," it is entirely possible that what Donnell was demanding was sexual access to Twila, and that he was jealous of her steady relationship with Mr. Skinner. 25

III.

DNA TESTING THAT HAS BEEN DONE BY THE STATE At the time of trial, the State chose to conduct DNA testing on just four

items. The State's DNA expert testified that swaths cut from Mr. Skinner's shirt contained blood from both Twila Busby and Mr. Skinner, and that swaths cut from his pants contained blood from Twila Busby, Elwin Caler and Mr. Skinner. She also testified that blood on the blanket from Randy Busby's bed came from Randy Busby, 8 a hair on Randy Busby's body was likewise his, and a hair found on Randy Busby's blanket belonged to Elwin Caler. The tests of the blood on Mr. Skinner's clothes show that he must have come into contact with Twila Busby and Elwin Caler after they sustained their wounds.

The results do not indicate, however, how that

contact occurred, and they do not show that Mr. Skinner inflicted the victimsâ&#x20AC;&#x2122; injuries. In 2000, five years after the trial, District Attorney Mann, responding to questions raised in the media, decided to have additional DNA material tested. Ignoring repeated requests by Mr. Skinner's post-conviction counsel to participate in the testing process, Mr. Mann unilaterally arranged for As noted, Mr. Skinner sustained a deep cut to his right hand that night. To combat the inference that Mr. Skinner's injury was a defensive wound, the State argued at trial that his hand must have slid onto his knife's blade when he stabbed Randy Busby, striking Randy Busby's shoulder blade. (See, e.g., Tr. 28:1203.) The absence of any blood from Mr. Skinner on Randy Busby's bedding tends to disprove that assertion. (See Tr. 28:1132-35). 8

GeneScreen, a private laboratory in Dallas, to test certain additional items he alone selected.

Once again, the items selected did not include all the

available DNA evidence. GeneScreen reported its results to the District Attorney in four separate reports. The first, dated August 24, 2000, reported as follows: Twila Busby is included as a contributor of the profile obtained from the blood on the cover of the blue notebook, the hair from the back of Twila Busby, the hair from the left hand of Twila Busby, and the hair from the ax handle. [Mr.] Skinner is included as a contributor to the profile from the cigarette butt. Twila Busby and [Mr.] Skinner are included as contributors to the mixed profile from the hair from the right hand of Twila Busby. The profile from the gauze with bloodstain is from an unknown male individual. The profile of the cassette tape with blood is a mixture of two unknown individuals. No conclusion could be reached concerning the hair from the living room, the hair from the abdomen of Twila Busby, the hair from the cassette tape, and the hair from the back bedroom door.

See Motion of Petitioner Henry W. Skinner for Forensic Testing at Ex. 5, State v. Skinner, No. 5216 (31st District Court of Gray County, Texas October 9, 2001) (hereinafter "First Motion"). The second GeneScreen report, dated September 20, 2000, solely addressed additional testing performed on blood flakes on the hair found in Twila Busby's right hand. It concluded that the blood flakes were Twilaâ&#x20AC;&#x2122;s own blood. See First Motion, Skinner, No. 5216, at Ex. 6. The third GeneScreen report, dated October 2, 2000, was identical to the first report, with one exception. 27

It added an additional paragraph

describing the likelihood that the mixed DNA profile found on the hair from Twila Busby's right hand contained DNA from Twila and Mr. Skinner, as opposed to the possibility that the second contributor was someone other than Mr. Skinner. See First Motion, Skinner, No. 5216, at Ex. 7. Because the GeneScreen testing performed up to this point had been incapable of determining the source of the hair shafts themselves, Mr. Mann asked GeneScreen to subject those hairs to mitochondrial testing (an analysis of the mitochondria within the cells of the hair shaft itself). The fourth and final GeneScreen report was dated February 6, 2001, after Mr. Mann had left office. It contradicted Mann's assertion that the hairs themselves came from Mr. Skinner. Specifically, the final GeneScreen report reached the following conclusions: Based on the results of this testing, the mitochondrial DNA (mtDNA) sequence obtained from the #1 hair from the victim's right hand, hair samples from T. Busby, the #5 hair from the paper towel around the cassette tape, the #1 hair on the tape found on back bedroom door and the #2 hair on the tape found on back bedroom door are consistent with the profile from the known blood sample from the victim Twila Busby. Neither Twila Busby nor a maternal relative of Twila Busby can be excluded as the potential contributor of these hairs. This profile is unique in the FBI database of 4052 individuals.

[Mr.] Skinner is excluded as a potential contributor to these hairs. The profile from the hair from the living room and the #2 hair from the victim's right hand was inconclusive.9

See First Motion, Skinner, No. 5216, at Ex. 8. Because Robert Donnell was the brother of Twila Busby's mother, he was a "maternal relative" of Twila and therefore cannot be excluded as a possible contributor of the #1 hair in Twila's right hand. The GeneScreen testing left important questions unanswered.

For

example, while the August 24, 2000 and the October 4, 2000 reports conclude that Twila Busby and Mr. Skinner were both contributors to a "mixed genetic profile" taken from a hair in Twila Busby's right hand, they also indicate that the markers found in this material matching Twila's DNA profile were strong but those matching Mr. Skinner's were "faint."

In neither of these two

reports was the nature of the material found on the hair disclosed. We know that it was not blood, however, because in the September 20, 2000 report, GeneScreen did report the results of the "blood flakes" taken from this same hair, finding that they came solely from Twila Busby and that Mr. Skinner was excluded as a source.

The February 6, 2001 report is the first to indicate that more than one hair was found in Twila's right hand, but is silent on whether either of the hairs tested mitochondrially was the same hair as the one from which DNA material had been obtained for the testing recounted in the earlier reports. 9

For reasons it never explained, GeneScreen did not report results for all the DNA material Mr. Mann submitted for testing. Although GeneScreen was provided with the "Dalchem" rape kit specifically used to collect DNA material from Twila Busby's vagina during her autopsy, no results from any DNA testing of the vaginal swabs appears in GeneScreen's reports. Similarly, GeneScreen was provided with Twila Busby's fingernail clippings, but no test results from this material appear in the reports. Finally, the District Attorney did not provide GeneScreen with additional items of biological evidence that could yield important results. For example, GeneScreen was not provided the two knives found at the scene (one or both of which were almost surely used to stab Elwin Caler and Randy Busby).

Nor was GeneScreen provided a bloody dish towel or the

windbreaker jacket containing hairs, blood and perspiration, both of which were found near Twila Busby's body. Finally, Mr. Mann sent GeneScreen known DNA samples from only Twila Busby and Mr. Skinner.

comparison was made to the known DNA of the other two victims, Randy Busby and Elwin Caler, or to the DNA of other possible suspects. SUMMARY OF THE ARGUMENT The district courtâ&#x20AC;&#x2122;s finding that Mr. Skinner failed to satisfy art. 64.03(a)(2)(A) cannot survive de novo review, when the Court considers all the facts of this case in the context of controlling precedent, particularly 30

Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008). Also, In re Morton, 326 S.W.3d 634, 645 (Tex. App. – Austin 2010), while not binding precedent in this Court, is highly instructive. Routier and Morton confirm two important principles: (1) in conducting an art. 64.03(a)(2)(A) review, the courts must assume that every DNA test result on every item sought to be tested is exculpatory, and (2) exculpatory DNA evidence can outweigh circumstantial evidence of guilt even when the latter is quite strong. See

Routier, 273 S.W.3d at 257, 258-59. The application of those principles to this case compels the conclusion that the district court erred in denying the requested DNA testing. Mr. Skinner conceded that he was present at the home where the crimes took place—because he lived there.

His reasonable doubt defense

rested on two elements: (1) eyewitness and expert testimony that he was so mentally and physically impaired—both by alcohol and codeine he had ingested that night, and by a hand injury several months earlier that had robbed him of grip strength in his dominant hand—that he could not have committed the offense; and (2) evidence that Ms. Busby’s uncle was likely the real killer. In Mr. Skinner’s case—as in Routier and Morton—evidence of a third party’s DNA at the scene, intimately connected to both the instrumentalities of the crime and the body of one of the victims, would not establish merely 31

that an additional person was involved in the crime. Indeed, the existence of some additional perpetrator is completely inconsistent with the evidence introduced at trial and the State's theory of the crime. Instead, exculpatory DNA results—i.e., test results showing that another person was present at the crime scene, touched the murder weapons, and was in close physical (even sexual) contact with victim Twila Busby—would provide powerful corroboration to Mr. Skinner’s defense that although he was innocently present at the scene, and perhaps himself incurred a cut to his hand during the attack, someone else murdered the three victims. At a minimum, there is a 51% chance that such DNA evidence would have "tipped the balance" in favor of reasonable doubt for at least one juror and thus changed the result of trial.

The district court's contrary finding cannot be squared with the

analysis of either Routier or Morton, and therefore was error. These facts readily distinguish Mr. Skinner’s case from those in which this Court has upheld a trial court’s denial of DNA testing. Those decisions typically have been justified on the basis that strong evidence places a defendant at a crime scene where he has no innocent explanation for being

present, and the requested DNA testing, regardless of how it comes out, will not explain away that evidence. See, e.g., Wilson v. State, 185 S.W.3d 481, 486 (Tex. Crim. App. 2006) (evidence indisputably tied Wilson to the crime scene, and exculpatory DNA results from requested tests would at best show 32

that another perpetrator was also involved); Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002) (superseded by statute as explained in Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005)) (exculpatory DNA testing results

from evidence proffered by Kutzner would not explain why other physical evidence belonging to him was at the crime scene). The result dictated by Routier and supported by Morton is not in any way inconsistent with this Court’s earlier rulings in Skinner I and Skinner II. The former applied a much higher—and now defunct—standard for relief under art. 64.03(a)(2)(A) and also dealt with a factual record that did not have the benefit of evidence presented at Mr. Skinner’s federal habeas hearing. While the record in Skinner II did contain that additional evidence, it was analyzed under a standard—also no longer present in Ch. 64—that had the Court itself weighing the strength and credibility of the evidence, rather than viewing it from the standpoint—required by the current version of art. 64.03(a)(2)(A) and followed in Routier, 273 S.W.3d at 259—of whether it would have persuaded at least one reasonable juror to harbor reasonable doubt as to Mr. Skinner’s guilt. Finally, the record offers no support whatsoever for the district court’s second reason for denying Mr. Skinner's Third Motion—his purported failure to show that his request for DNA testing was not made "to unreasonably delay the execution of sentence or administration of justice." 33

Indeed—as

even the State apparently recognizes—the circumstances under which the Third Motion was filed affirmatively foreclose any such finding.

The

Legislature in 2011 excised the "fault" provision of Ch. 64, see Tex. Code Crim. Proc. Ann. art. 64.01(b)(1), as amended by Act of May 20, 2011, 82d Legis., R.S., ch. 366, § 1 (2011), that this Court held in Skinner II was a bar to Mr. Skinner's

Second Motion, see Skinner II, 293 S.W.3d at 201-02.

The statute, as

amended, took effect September 1, 2011. See Act of May 20, 2011, 82d Legis., R.S., ch. 366, § 1 (2011).

Mr. Skinner filed his Third Motion as soon as

practicable after that the Skinner II bar was lifted, at a time when his scheduled execution date was still more than two months away. The State then dawdled for seven weeks before filing its response, and the district court took another ten days before issuing its original order denying Mr. Skinner’s Third Motion. This Court then stayed Mr. Skinner's execution to permit a reasoned appeal in due course, calling such an action "prudent" in light of the legislative changes to Ch. 64, which have never been reviewed "as they pertain to this case." Stay Order at 2. Inexplicably, only after this Court had already held that it was prudent to delay the execution so that the seriousness of the issues presented by the Third Motion, could be properly addressed, did the district court fault Mr. Skinner for unreasonably attempting to "delay the execution" (SSR 7).

That finding cannot be

sustained. Nothing about Mr. Skinner’s conduct with respect to the filing of 34

his Third Motion indicates that he acted with the intent "to unreasonably delay" either his scheduled execution or the administration of justice generally. ARGUMENT I.

MR. SKINNER HAS SHOWN THAT FAVORABLE DNA TEST RESULTS WOULD HAVE PRODUCED A DIFFERENT VERDICT. Given the facts outlined above, there can be little question that if

exculpatory results are obtained through the DNA testing Mr. Skinner seeks, it is more probable than not that he would not be convicted, Consequently, the district court's cursory finding to the contrary should be reversed. This Court reviews a district court’s denial of post-conviction DNA testing under a bifurcated standard, giving deference to the lower court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo all other issues involving the application of law to fact.10 Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). The ultimate question whether the movant has established by a preponderance of the evidence that he would not have been convicted had exculpatory results been obtained through DNA testing is

The district court conducted no hearing nor took any evidence on Mr. Skinner’s Third Motion; it entered no findings of historical fact nor any findings that turned on assessments of credibility or demeanor. (See SSR 7.) 10

reviewed de novo. Id.; see Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). For purposes of this de novo inquiry, this Court must assume that the results of all of the post-conviction DNA testing that Mr. Skinner seeks would prove favorable to him. See, e.g., Routier, 273 S.W.3d at 257.

The Court

must then determine whether there is at least a 51% chance that a jury reviewing all the reliable evidence would not convict Mr. Skinner if it were aware of those presumptively favorable test results. See Smith, 165 at 36465. In other words, the question at the heart of this appeal is whether at least one juror hearing the case would have harbored such doubt about Mr. Skinner’s guilt as to foreclose a guilty verdict. Id.; see also In re Morton, 326 S.W.3d 634, 645 (Tex. App. – Austin 2010). For the reasons explained below, the answer must be "yes." A.

This Case Falls Well Within the Judicial Precedents for DNA Testing.

Favorable DNA testing results in this case would strike directly at the heart of the State’s case for guilt. The State's theory was that Mr. Skinner, acting alone, attacked and killed the three victims in serial assaults. Its case for guilt rested on evidence that Mr. Skinner was present in the home (e.g., his bloody handprint on the doorframe in the back bedroom) and had contact with Twila Busby and Elwin Caler after they were injured (their blood on his

clothes), plus the claim that when he appeared at the nearby home of his friend Andrea Reed, he was in command of his physical faculties (able to walk into her house on his own, able to remove his clothes and help bind his injured hand) and so mentally acute that he swore Reed to secrecy before supposedly confiding his fear that he had "kicked" Twila to death.

The

defense case offered eyewitness and expert testimony that Mr. Skinner was too mentally and physically impaired (having ingested massive quantities of alcohol and codeine) to have committed the crime, and lay testimony pointing to Robert Donnell as a likely alternative suspect. DNA testing confirming that a person other than Mr. Skinner and the victims was present at the time of the murders, handled the murder weapons and had intimate contact with Twila Busby’s body, would be sufficient to suggest that that person was the murderer, and thus to raise a reasonable doubt about Mr. Skinner’s guilt. Such evidence, combined with the rest of the now-available evidence (Andrea Reed’s admission that she testified falsely in key respects regarding Mr. Skinner’s mental and physical condition on the night of the crime, additional expert proof establishing the extreme degree of Mr. Skinner's probable impairment, and extensive additional evidence that Robert Donnell was likely the perpetrator of the crimes) increases that likelihood to a near certainty.

Both this Court and other Texas courts of appeals have reversed a district court's denial of a motion for DNA testing under remarkably similar circumstances. Indeed, this Court's decision in Routier and the Third Court of Appeals' decision in In re Morton, 326 S.W.3d 634, 644-45 (Tex. App. – Austin 2010), both demonstrate why, in light of all the evidence, the only logical conclusion that can be reached here is that Mr. Skinner has met the showing required by art. 64.03(a)(2)(A). Routier was convicted of murdering her two sons. Routier, 273 S.W.3d at 244-45.

Throughout trial and afterward, Routier maintained her

innocence, asserting that she had been asleep on a couch in the family room and awoke to find her sons—who had been asleep on the floor in the same room—stabbed to death and an intruder fleeing her home through the kitchen. Id. at 244. The trial court denied Routier's post-conviction motion for DNA testing of certain biological material found at the crime scene. Id. at 245. This Court reversed. Id. at 259-60. It conceded that Routier likely would not have been entitled to testing under prior law as interpreted in Kutzner. Id. at 259 n.76;

see also discussion in Section I.B, infra. Indeed, it found that there was "no lack of evidence to support the State's theory that [Routier] murdered her children and then staged the scene to try to make it look like the culprit was an unknown intruder," pointing to evidence that (1) Routier had handled the 38

murder weapon; (2) Routier had given a version of events inconsistent with the crime scene; (3) Routier's clothing had "cast off" stains of the victims' blood; (4) Routier allegedly had a motive for the murders; (5) Routier's demeanor was abnormal following the crime; and (6) Routier may have staged the alleged assailant's means of entering and exiting the house. Id. at 258. Nevertheless, the Court found that Routier could prevail under the revised art. 64.03(a)(2)(A), notwithstanding the substantial evidence pointing to her guilt. Id. at 256-259. Given that the jury was presented with "two competing theories of what happened in the house that night," the Court concluded that adding DNA evidence that would corroborate [Routier's] account of an unknown intruder to the evidentiary mix could readily have tipped the jury's verdict in [her] favor. In our estimation, DNA evidence showing that an unknown intruder—indeed, the same unknown intruder—[left DNA on all of the tested pieces of evidence] would more likely than not have caused the jury to harbor a reasonable doubt as to [Routier's] guilt and decline to convict her.

Routier, 273 S.W.3d at 259. Accordingly, this Court held that "[t]here is at least a 51% likelihood that the jury would have seen [Routier] as a victim herself—or at least that it would have harbored a reasonable doubt that she was not." Id.

Routier's reasoning dictates the same result here. Like the defendant in Routier, Mr. Skinner has consistently maintained that someone else killed the victims.

At his trial, that theory was supported by substantial

circumstantial and physical evidence, including both scientific evidence that Mr. Skinner was too impaired by alcohol and codeine to have committed the murders, and evidence pointing to Twila's uncle Robert Donnell as a plausible alternative suspect.

In combination with those facts, DNA test

results proving that someone besides Mr. Skinner and the three victims was present during the murdersâ&#x20AC;&#x201D;especially if that same person's DNA were present on each item of evidence Mr. Skinner seeks to have tested, cf. Routier, 273 S.W.3d at 259â&#x20AC;&#x201D;would, at the very least, cause a juror to harbor a reasonable doubt about Mr. Skinner's guilt.11 The decision of the Third Court of Appeals in Morton likewise shows why the District Court erred in denying Mr. Skinner's Third Motion. Morton's wife was found in the master bedroom of their home, dead from a Similarly, after Routier, it is no longer tenable to deny Mr. Skinner DNA testing on the ground that some of the circumstantial evidence in Mr. Skinner's case is consistent with the jury's verdict of guilt. In Routier, much stronger evidence of guilt did not preclude the conclusion that DNA testing was required. To cite but one example, Routier asserted that she was merely asleep when the fatal assaults on her children took place directly in front of her. In Mr. Skinner's case, there is substantial evidence that he was near-comatose from an alcohol and codeine overdose. That distinction alone makes Mr. Skinner's defense more plausible than the one advanced in Routier, and correspondingly strengthens his case for DNA testing. 11

massive blunt injury to the head, while Morton was at work. Morton, 326 S.W.3d at 637.

The State theorized that Morton had killed his wife the

previous night, â&#x20AC;&#x153;in a sexual rageâ&#x20AC;? after she refused to have sex with him, and that he had attempted to "stage" the scene to make it appear that an intruder had committed the crime. Id. Morton's unsuccessful defense was that his wife was alive when he left for work and must have been killed by an unknown assailant who later entered the house. Id. The post-conviction DNA testing dispute in Morton centered around a blood-stained bandana.

It was recovered from a spot "approximately one

hundred yards northeast of the rear of the Mortons' house, on the edge of a curb, at the front of a home construction site"â&#x20AC;&#x201D;a "wooded tract of land" separated the location from the Mortons' house.

Id. at 638-39.

Morton

sought DNA testing on the bandana itself and on a human hair found on the bandana. Id. at 637. Morton argued that DNA testing of the bandana would be exculpatory if the tests showed that the bandana contained his wife's blood and the DNA of a third party, but not that of Morton himself.

Id. at 641.

The State

countered that the bandana might have been at the construction site "for some time," and that it was unlikely that an unknown intruder had entered the house because "there were no signs of sexual assault, numerous valuable

items in the house were left intact, and no blood was found in the house outside the master bedroom." Id. In analyzing whether exculpatory DNA results would have given Morton a 51% chance of not being convicted, the Court of Appeals focused on the fact that, at trial, each side could point to some evidence that supported its theory.

For example, respecting the State's claim that Morton had

murdered his wife "in a sexual rage after she fell asleep during foreplay," the court agreed that there was evidence that Morton and his wife "frequently had verbal disagreements" and that Morton wanted sex from his wife more often. Id. at 642. It further observed, however, that the Mortons often joked playfully together, and that nothing indicated that Morton "was prone to threatening or acting violently toward his wife."

Id.

While a note from

Morton found at the scene appeared to support his claim that his wife was alive when he left the house, the State dismissed the letter as calculated to produce precisely that effect. Id. Morton pointed to unidentified fingerprints at the scene, including two from the frame of the unlocked sliding glass door, and an unidentified footprint in the yard by the back fence. The State argued that the footprint likely belonged to a gurney carrier from the funeral home, and that the likelihood of an intruder was remote because, although Mrs. Morton's purse and one of Morton's handguns were missing, other items of valueâ&#x20AC;&#x201D;including cameras, jewelry, and other firearmsâ&#x20AC;&#x201D;were undisturbed. 42

And it focused on the fact that, despite extensive blood spatter in the bedroom from the bludgeoning of Mrs. Morton, there was no blood in the house outside the master bedroom. Id. at 641. While the State alleged that Morton behaved strangely and showed little grief following the murder, the defense pointed to other circumstances that could have accounted for his reaction, and offered testimony that his demeanor at work that day was normal and that he was bereft at his wife's murder. Id. at 642-43. There was even a "battle of the experts" over Mrs. Morton's time of death, with each side presenting testimony from pathologists. Id. Canvassing these facts, the Court of Appeals concluded that Morton's case was "similar to Routier." Id. at 644. It explained: The jury in this case was confronted with two conflicting theories of how [Mrs. Morton] was murdered, each dependent on circumstantial evidence. There was conflicting testimony on the time of death. There was also conflicting testimony as to whether [Morton] showed the type of surprise and grief . . . that one might reasonably expect from an innocent husband.

Id.

The Court of Appeals summed up its reasoning for granting DNA

testingâ&#x20AC;&#x201D;which relied heavily on the fact that such testing had the potential to reveal the DNA of an "unknown intruder"â&#x20AC;&#x201D;as follows: If, then, the bandana were found to contain [Mrs. Morton's] blood and the DNA of a person other than [Morton], we think that adding this DNA evidence, which corroborates [Morton's] theory of an unknown intruder, could have influenced the jury's verdict in [Morton's] favor. The third party's DNA would be compelling evidence of a perpetrator other than [Morton]. At trial, to 43

support his theory of an unknown intruder, [Morton] had to rely primarily on an unlocked door, unidentified fingerprints, one unidentified footprint, and his own denial of guilt. A bandana stained with [his wife's] blood and containing another person's DNA, discovered across the wooded area from the Mortons' house, would provide direct support for [Morton's] theory that the murderer escaped through the sliding glass door, over the backyard fence, and along the path through the wooded area.

Id. (emphasis added). Significantly, the Third Court of Appeals noted that exculpatory DNA test results, standing alone, would not necessarily have proven Mortonâ&#x20AC;&#x2122;s innocence: We recognize that such exculpatory results would not prove [Morton's] actual innocence. It would remain a possibility, for instance, that after killing his wife that night, [Morton] himself went to the construction site, retrieved the bandana from the site, brought it into the master bedroom to place [his wife's] blood on it, and then returned it to the site. However, considering all the evidence, we conclude that there is greater than a 50% likelihood that the jury would have harbored a reasonable doubt as to [Morton's guilt]." 12

Id. at 644-45. Of course, Morton and Routier do not hold that post-conviction DNA testing is automatically required anytime a defendant claims that an "unknown intruder" committed the murder for which he was convicted. Rather, the reasoning of both cases is that favorable DNA testing results in Ultimately, the DNA testing ordered in Morton not only proved Mortonâ&#x20AC;&#x2122;s innocence but identified the actual killer. See Chuck Lindell, Morton expected to be freed today after 25 years, Austin American Statesman, Oct. 3, 2011, http://www.statesman.com/news/texas-politics/morton-expected-to-be-freed-todayafter-25-1893620.html. 12

such a case are much more likely to produce a "different outcome" if the results corroborate the intruder's presence at the time of the crime, in close proximity to the victims. In Mr. Skinner's case, the items he seeks to have tested—which include material recovered directly from the body of victim Twila Busby (fingernail scrapings, rape kit swabs, and hairs clutched in her hand), material found immediately adjacent to her body (the sweat stains, bloodstains, and human hairs on a man's jacket lying next to her body), items the assailant has to have touched at the crime scene (the knives that are likely the weapons used to kill Elwin Caler and Randy Busby), and items he may have touched at the crime scene (the blood-stained cup towel found in a plastic bag with one of the knives)—fit that description precisely. If DNA test results reveal a single DNA profile on all those items of evidence (i.e., the person whose skin is under Ms. Busby's fingernails is the person whose sweat is on the jacket found next to her body and the person whose blood is on the knives that killed her sons), and that DNA profile does not belong to Mr. Skinner or to any of the victims, this Court can be confident—to much more than a 51% likelihood—that at least one juror would harbor a reasonable doubt about Mr. Skinner's guilt. Moreover, there is a sharp contrast between Routier, Morton, and Mr. Skinner's case on the one hand, and cases in which this Court has found that DNA testing was not required, on the other. For example, this Court has 45

sometimes endorsed the proposition that "without more, the presence of another person's DNA at the crime scene [will] not constitute affirmative evidence of the appellant's innocence." Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (citing Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002)). But this analysis must remain moored to the facts of the particular case. In Bell, for example, the defendant had signed two formal confessions that were richly corroborated by extrinsic proof.

See Bell v. State, 938

S.W.2d 35, 42 (Tex. Crim. App. 1996) (before being arrested and confessing, Bell attempted to cash at a local bank checks stolen from the victims during the robbery-murder); id. at 47 n.21 (Bell gave two confessions to the police). Given those undisputed facts, it is unsurprising that the Court concluded that the presence of another, unidentified person's DNA at the crime scene was unlikely to raise any genuine doubt about Bell's guilt. And in Prible itself, the trial evidence included inculpatory ballistics evidence, testimony by a fellow prison inmate that Prible explicitly admitted his guilt and boasted of the crime, and the presence of Prible's semen (confirmed by DNA testing) inside the body of the female homicide victim (who was the girlfriend of the male homicide victim and the mother of the three child homicide victims).

See Prible v. State, 175 S.W.3d, 724, 727-29 (Tex. Crim. App. 2005). The common factor in both Bell and Pribleâ&#x20AC;&#x201D;which is strikingly absent from Mr. Skinner's caseâ&#x20AC;&#x201D;is that neither defendant in Bell and Prible 46

presented a plausible theory of defense at trial, backed by any real evidence, that could conceivably have been bolstered even slightly by favorable DNA evidence from post-conviction testing. By contrast, in cases like Routier and

Mortonâ&#x20AC;&#x201D;and Skinnerâ&#x20AC;&#x201D;a colorable defense theory was presented at trial, supported by reasonable evidence, that offered an alternative context for understanding the allegedly inculpatory facts.

Each of those trial defenses,

of course, was necessarily rejected by the jury that originally found the defendant guilty; however, those defenses, when bolstered by exculpatory scientific evidence, provide a reasoned basis for determining that the addition of the favorable DNA test results to the evidentiary mix would "tip the balance" and leave one or more jurors with reasonable doubt about the defendant's guilt. See, e.g., Routier, 273 S.W.3d at 259 & n.76 (finding that even though the movant might "fall short of meeting the onerous standard for proving actual innocence," DNA evidence corroborating her version of events could have "tipped the jury's verdict in [her] favor"). Under Routier, as illustrated by Morton, the District Court plainly erred in denying Mr. Skinner's motion for DNA testing under art. 64.03(a)(2)(A). That conclusion follows even if the Court, in reviewing the evidence, weighed the Stateâ&#x20AC;&#x2122;s case against only the evidence produced by the defense at Mr. Skinner's trial. When one considers the extensive additional exculpatory evidence that has come to light since Mr. Skinner's trial, it is 47

indisputable that DNA testing should be granted. Those facts are set out in detail supra, but in summary they include: (1) The truthful testimony from Ms. Reed and Elwin Caler’s presence in the same room as his mother, both of which would have bolstered—rather than undermined—Dr. Lowry's expert opinion, since corroborated by Dr, Kalant, regarding Mr. Skinner’s physical and mental condition at the time of the murders; (2) The evidence that Mr. Skinner constantly avoided ingesting codeine, which would have bolstered Dr. Lowry’s expert opinion that Mr. Skinner’s years of alcohol abuse alone would not have left him tolerant to an alcohol/codeine mix; and (3) The evidence that Robert Donnell—prone to alcoholfueled, life-threatening violence and jealousy of Mr. Skinner— wore a jacket exactly like that found inches from Twila Busby's body, showed no emotion when informed of the crime, and manically scrubbed the interior of his pickup truck within a few days of the crime. Taken together, these facts in conjunction with exculpatory DNA results from the requested items would unquestionably "tip[] the jury's verdict in [Mr. Skinner's] favor." See Routier, 273 S.W.3d at 259. The

common

principle

underlying

Routier

and

Morton—that

exculpatory DNA testing results can potentially raise reasonable doubt even in cases where there is ample circumstantial evidence to support the original verdict of conviction—is widely recognized. Courts in other States, applying analogous "materiality" requirements in their own post-conviction DNA testing statutes, have ordered DNA testing even when there was substantial evidence in the record pointing to guilt, as long as the test results could shift 48

the overall evidentiary picture in the defendantâ&#x20AC;&#x2122;s direction. See, e.g., Moore

v. Commonwealth, ___ S.W.3d ___, 2011 WL 2433737, at 11 (Ky. June 16, 2011) (finding that exculpatory DNA testing results could create a "reasonable probability" of a different outcome at trial, even though the defendant had confessed fully to the police and to a close friend, and despite fingerprints linking him to the victimâ&#x20AC;&#x2122;s car); State v. Peterson, 836 A.2d 821 (N.J. Super. Ct. App. Div. 2003) (finding that DNA testing of the requested items, if it revealed DNA from a common identifiable source that was not the defendant, would raise a reasonable probability of a different result at trial, notwithstanding evidence that defendant was alleged to have described the crime in great detail to three co-workers and admitted his guilt to another jail inmate). These cases, like Routier and Morton, bear out the wise observation of the Tennessee Supreme Court that "many DNA exonerations have occurred despite the fact that there was substantial evidence supporting the conviction." Powers v. State, 343 S.W.3d 36, 56 (Tenn. 2011); see also id. at 56-57 (citing Cynthia E. Jones, The Right Remedy for the Wrongly Convicted:

Judicial Sanctions for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893, 2926 (2009) ("[A]s is demonstrated with over 200 exonerations, DNA evidence, standing alone, has the persuasive force to prove that an innocent person has been wrongly convicted, notwithstanding all other evidence used 49

at trial to prove guilt beyond a reasonable doubt") and Rodney Uphoff,

Convicting the Innocent: Aberration or Systemic Problem?, 2006 Wis. L. Rev. 739, 778 (2006) (discussing the Arizona case of Larry Youngblood, who, "[c]ontrary to the â&#x20AC;&#x2DC;overwhelming evidence,' . . . was, in fact, innocent" and had his conviction vacated in 2000)). A final word is in order concerning the likelihood that the person actually guilty of murdering the victims in this case may well have been Ms. Busby's uncle Robert Donnell. Identifying Donnell as the likely killer is not indispensable to Mr. Skinner's request for DNA testing. If testing shows that some unknown individual other than Donnell is the source of all the biological material Mr. Skinner seeks to have tested, there will still be a powerful exculpatory inference that that unknown individual was the real killer. 13 Nevertheless, it is instructive to note that some of the evidence pointing to Robert Donnell as a strong suspect is just the type that Texas courts routinely identify as consistent with an inference of guilt.

For

example, Donnell's bizarrely emotionless reaction when told of the murders of his niece and her sons is exactly the kind of evidence this Court has held to support a finding of guilt. See, e.g., Guevara v. State, 152 S.W.3d 45, 50, 50 Unlike this case, in neither Routier nor Morton was there evidence pointing to a specific alternative suspect. Nevertheless, the courts granted DNA testing based simply on the possibility of an "unknown intruder." See, e.g., Morton, 326 S.W.3d at 643-45. 13

n.22, 51 (Tex. Crim. App. 2004) (evidence supported jury's guilty verdict where it indicated, inter alia, that the defendant "showed little to no emotion after discovering his [murdered] wife" and did not "appear to be upset at the crime scene"). 14 Similarly, Donnell's frantic efforts immediately after the murders to clean out and disinfect his beat-up old pickup truck are also probative of a consciousness of guilt, which in turn is substantive circumstantial evidence of guilt.

See, e.g., Guevara, 152 S.W.3d at 50

("Attempts to conceal incriminating evidence . . . are probative of wrongful conduct and are also circumstances of guilt") (citation omitted).15 In Brown v.

State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983), this Court emphasized that "conduct of the accused showing a consciousness of guilt . . . would be See also, e.g., Temple v. State, 342 S.W.3d 572, 589 (Tex. App. – Houston [14 Dist.] 2010) (evidence that the defendant, despite knowing his wife had been murdered, on the day of the murder "did not appear to be upset," behaved calmly, and did not appear to cry, "support[ed] an inference of [his] guilt"); Stevens v. State, 234 S.W.3d 748, 778 (Tex. App. – Fort Worth 2007) (jury's verdict of guilt was supported by, inter alia, the fact that "on the day of [the victim's] death, Stevens showed a lack of emotion" when made aware of the victim's death); In re V.M.D., 974 S.W.2d 332, 348 (Tex. App. – San Antonio 1998) (jury's finding that juvenile engaged in delinquent conduct by committing capital murder was supported, inter alia, by the fact that she "showed little emotion regarding the deaths of [the child victims]"). 14

See also, e.g., Wells v. State, 578 S.W.2d 118, 119 (Tex. Crim. App. 1979) (attempts to conceal incriminating evidence indicate guilt); Lair v. State, 265 S.W.3d 580, 584 (Tex. App. – Houston [1 Dist.] 2008) ("conduct indicating a consciousness of guilt" includes "attempts to ... conceal or destroy evidence"); Torres v. State, 794 S.W.2d 596, 598 (Tex. App. – Austin 1990, no pet.) (noting that conduct showing consciousness of guilt is "perhaps one of the strongest kinds of evidence of guilt"). 15

admissible as a circumstance tending to prove that he committed the [criminal] act." Id. (citing cases going back to Love v. State, 29 S.W. 790 (Tex. Crim. App. 1895).

For all these reasons, the circumstantial evidence

implicating Donnell powerfully supports Mr. Skinner's request for DNA testing. B.

This Court's Prior Decisions Denying DNA Testing to Mr. Skinner Do Not Address the Issue Presented Here.

As discussed above, the proper art. 64.03(a)(2)(A) standard under which the Court must review Mr. Skinnerâ&#x20AC;&#x2122;s Third Motion is whether there is a 51% probability that the outcome of his trial would be different if exculpatory DNA testing results were produced. Even though this Court has twice before reviewed Ch. 64 motions filed by Mr. Skinner, neither of those cases addressed the currently applicable art. 64.03(a)(2)(A) standard. Nor, at that time, had much of the evidence on which the present motion rests been developed. Thus, the Court here is writing on a clean slate. 1.

This Court's 2003 decision both applied a legal standard that no longer exists and rested on misapprehension of a key fact.

To decide whether Mr. Skinner was entitled to DNA testing, this Court in 2003 examined whether exculpatory DNA test results would foreclose any possibility of his guiltâ&#x20AC;&#x201D;the analysis required by this Court's then-controlling interpretation of former art. 64.03(a)(2)(A). See Skinner I, 122 S.W.3d at 811

(citing Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002)).16 As this Court has subsequently recognized, the Legislature amended the statute to supersede Kutzner and relax the showing necessary to obtain DNA testing.

See Smith, 165 S.W.3d at 364-65.

Furthermore, much of the post-trial

evidence upon which the present motion relies was not developed until, and even after, Mr. Skinner’s federal habeas corpus hearing in 2005. For these reasons, this Court should place no weight on its art. 64.03(a)(2)(A) analysis in Skinner I and must examine with new eyes the significance of favorable DNA test results in the context of all presently available exculpatory evidence. In this same vein, the Court must also look anew at one factual assumption that underlay its 2003 opinion but has been significantly undermined by subsequent developments: the assertion that because posttrial nuclear DNA testing by GeneScreen showed the presence of both Twila By the time this Court ruled on Mr. Skinner’s First Motion, the Court had already determined that Ch. 64 required a defendant seeking DNA testing to show that exculpatory test results would affirmatively prove his innocence. See Kutzner, 75 S.W.3d at 438 (interpreting former art. 64.03(a)(2)(A) as imposing that condition). Mr. Skinner's First Motion was rejected on that basis. Skinner I, 122 S.W.3d at 811. After Kutzner, however, the Legislature amended art. 64.03(a)(2)(A), emphasizing that it never intended for "[a] defendant to have to prove ‘actual innocence’ . . . in order to meet his burden to have the [DNA] test done," and clarifying that the correct burden is no higher than a preponderance-of-the-evidence showing. See Act of April 25, 2003, 78th Legis., R.S., ch. 13, § 3 (2003) (amending statute); see also Smith, 165 S.W.3d at 364-65 (describing the Legislature's rationale, citing House Criminal Jurisprudence Committee, Bill Analysis, Tex. H.B. 1011 78th Leg., R.S. (2003)). 16

Busby's and Mr. Skinner's DNA intermingled on the surface of a hair found in her hand, that intermingling could only have occurred in the course of a struggle between the two at the time of the murders. In Skinner I, the Court described what it viewed as the "inculpatory" results of the post-trial GeneScreen testing: The GeneScreen reports indicate that Twila and [Mr. Skinner] "are included as contributors to the mixed profile from the hair from the right hand of Twila Busby." This analysis demonstrates the intermingling of the victim's and [Mr. Skinner's] DNA, probably during the time when she was struggling for her life. Because [Mr. Skinner's] DNA was found mixed with Busby's DNA in her right hand during the autopsy, there is nothing about the other items found at the crime scene that, if linked to a third person, would cast doubt on [his] presence at the scene of Busby's death or [his] involvement in the offense. Given this evidence and the other evidence detailed above,[17] the presence of a third party's DNA at the crime scene would not constitute affirmative evidence of innocence.

Skinner I, 122 S.W.3d at 811. While the Court qualified the second sentence cited above with the word "probably," no such qualification appears in the third sentence, which holds that the mixture so conclusively proves Mr. Skinnerâ&#x20AC;&#x2122;s "involvement in the offense" that it cannot be overcome by exculpatory DNA test results. This conclusion is simply not supported by the

It is not clear what the Court meant by referring to "the other evidence detailed above." The 2003 opinion contains no discussion of supposedly inculpatory evidence other than the results of the GeneScreen testing. See generally Skinner I, 122 S.W.3d at 808-811. 17

GeneScreen findings, particularly in light of the close examination those findings received in the subsequent federal habeas proceedings.18 The GeneScreen reports on which the Court based its "mixed profile" finding were those dated August 24, 2000 and October 2, 2000. As explained in Section II of the Statement of Facts, supra, those reports described the results of nuclear DNA testing of selected items of evidence submitted by the District Attorney, and contained identical language regarding the hair found in Ms. Busby's hand: "Twila Busby and [Mr.] Skinner are included as contributors to the mixed profile from the hair from the right hand of Twila Busby." See First Motion, Skinner, No. 5216, at Ex. 5, Ex. 7. But, as noted

supra, both reports also show that in this mixed profile, Mr. Skinner's alleles at most points of comparison were "faint," while Ms. Busby's were strong at every point. Id. Given that nuclear DNA testing cannot test a hair itself, but only biological material that might be found on or attached to the surface of a hair In the federal habeas proceedings, Mr. Skinner obtained discovery (including the GeneScreen bench notes to which he was denied access in Skinner I) that enabled him to examine more fully GeneScreen's entire examination of the hair found in Ms. Busbyâ&#x20AC;&#x2122;s hand. This discovery led to testimony at the federal hearing both from the GeneScreen employee who conducted the mitochondrial testing and from an expert on interpreting the bench notes related to that testing. This Court declined to order production of GeneScreen's bench notes on the ground that GeneScreen's October 2, 2000 report, containing the conclusion that "'Twila Busby and [Mr.] Skinner are included as contributors to the mixed profile from the hair from the right hand of Twila Busby,"' was "unambiguous." Skinner I, 122 S.W.3d at 812. 18

(such as saliva or skin), the faintness of Mr. Skinner's alleles compared to those of Ms. Busby strongly suggests that the hair was likely hers but had picked up faint traces of Mr. Skinner's DNA from what could have been perfectly benign contact, such as lovemaking, sharing a hairbrush or towel, or any of the other innocent methods by which persons who live together might exchange DNA. This inference is strengthened by the fact that neither of these two reports discloses the nature of the mixed biological material found on the surface of this hair.

A third report, though, dated September 20, 2000,

indicates that it almost certainly was not blood, because, as noted supra, that report states that "blood flakes" taken from this same hair were tested separately (and found to come solely from Twila Busby). Thus, whatever the “mixed profile” material might have been, it was not blood, lessening still further the likelihood that it became mixed during a struggle that resulted in Ms. Busby’s death. Finally, GeneScreen’s February 6 report, the last of the four reports, further undermines the Court’s Skinner I conclusion that the “mixed profile” on one hair in Ms. Busby’s hand is enough on its face to preclude at least a pre-Smith art. 64.03(a)(2)(A) finding in Mr. Skinner’s favor. After concluding that the three GeneScreen reports on nuclear testing did not produce the conclusive proof he was seeking that Mr. Skinner was the murderer, District 56

Attorney Mann asked GeneScreen to perform mitochondrial testing on the hair found clutched in Twila Busbyâ&#x20AC;&#x2122;s hand.

Unlike nuclear testing,

mitochondrial testing is capable of examining the hair itself, and not just biological material on the surface of the hair (but, also unlike nuclear testing, is able to narrow the results down only to persons having a common maternal ancestor). The results of that testing, laid out in GeneScreenâ&#x20AC;&#x2122;s February 6, 2011 report, did not give Mr. Mann the proof he was seeking either; to the contrary, it tended to show that if Ms. Busby managed to grab a hair from her assailant during the attack, as Mann believed, that assailant was not likely Mr. Skinner. The February 6 report concluded that Twila Busby or one of her maternal relatives (which would have included her uncle Robert Donnell) was the source of one of two hairs and that mitochondrial testing on the other hair proved "inconclusive."

At Mr. Skinnerâ&#x20AC;&#x2122;s federal habeas

hearing, Dr. William Shields, a professor at the State University of New York at Syracuse, testified that the underlying bench notes related to the mitochondrial testing showed that, although the true source of that second hair could not be identified, it is more likely than not that Mr. Skinner is not that source. (EH III:593-96; EH PX 76.) Thus, when the GeneScreen test results are viewed in their entirety and with the benefit of the light shed on them in the federal habeas proceedings, it becomes clear that this Court went too far in Skinner I in 57

holding that the "mixed profile" test result categorically precluded an art. 64.03(a)(2)(A) finding in Mr. Skinner's favor even under the more stringent version of art. 64.03(a)(2)(A) that was in effect at the time. To the contrary, an objective review of the GeneScreen test results shows that they contribute little to an art. 64.03(a)(2)(A) finding, other than to suggest that if one of the hairs in Ms. Busbyâ&#x20AC;&#x2122;s hand did come from the murderer, that person was not likely Mr. Skinner. For all these reasons, it is plain that the record cannot support the sweeping conclusion that underlay this Court's 2003 decisionâ&#x20AC;&#x201D;that the "mixed profile," which admits of an innocent explanation, constituted such conclusive evidence of Mr. Skinner's guilt that it could never be overcome by exculpatory DNA testing results from multiple other items of evidence. Mr. Skinner cannot, of course, prove at this late date that the intermingling occurred during benign activity, such as sharing the same towel or hairbrush. At the same time, this Court cannot confidently conclude that the intermingling occurred during a death struggle. And, given that the DNA material found on the hair in question was something other than blood, the former seems much more likely than the latter.

This Court's 2009 decision analyzed Mr. Skinner's evidence only to the extent that it might have influenced trial counsel's decision not to seek DNA testing.

This Court's 2009 decision likewise does not inform the Court's consideration of the issues currently before it.

The sole issue the Court

addressed in 2009 was whether it was Mr. Skinner's "fault" that the requested DNA testing had not previously been conducted. See Skinner II, 293 S.W.3d at 200.

In the course of its opinion, the Court did discuss

whether the evidence was sufficient to excuse, "in the interests of justice," trial counsel's failure to request the testing prior to trial. See id. at 203. It focused that analysis, however, on the question of whether counsel performed deficiently in not asking for DNA testing before trial. That question differs fundamentally from the analysis now required under the current version of art. 64.03(a)(2)(A). The standard for showing constitutionally ineffective assistance of counsel that guided this Court's "interests of justice" analysis in 2009 is extremely difficult to meet. Review of counselâ&#x20AC;&#x2122;s performance must be "highly deferential," Strickland v. Washington, 466 U.S. 668, 689 (1984), and focus on "the trial as a whole," not "isolated incidents." Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Trial counsel, being "better positioned [to judge the case] than the appellate court" is presumed to have "'made all significant decisions in the exercise of reasonable professional judgment.'" 59

Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (citation omitted). No reviewing court may second-guess counsel’s trial strategy; "the fact that another attorney might have pursued a different course [will not] support a finding of ineffectiveness." Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Accordingly, when this Court in 2009 examined various aspects of the evidence in Mr. Skinner’s case, it considered only whether those facts showed that trial counsel, in not seeking pretrial DNA testing, had fallen short under

Strickland. See, e.g., Skinner II, 293 S.W.3d at 203-04 (finding that the posttrial recantation of key prosecution witness Andrea Reed could not have influenced counsel’s pretrial decision not to seek DNA testing, and indicating that in the statutory "interests of justice" analysis, such "new, unforeseeable evidence" was irrelevant unless it could somehow “cast a new light on” counsel’s originally reasonable trial strategy); id. at 204-206 (same, regarding other facts about Mr. Skinner’s physical impairment on the night of the crime); id. at 207-209 (same, regarding the significance of the limited posttrial DNA testing conducted by the prosecution). Thus, this Court undertook its 2009 review of the evidence in Mr. Skinner's case through the prism of the "fault" provision and its narrow "interests of justice" exception.

That analysis focused on trial counsel’s

performance under the highly deferential Strickland standard. As a result, 60

much of the evidence that raises urgent doubt about Mr. Skinner’s guilt could not affect the Court’s analysis, because that evidence could not have played any role in trial counsel’s decision not to seek DNA testing.

In the present

appeal, the Court's analysis is unencumbered by any need to assess trial counsel’s performance. Moreover, this Court's analysis in Skinner II of the "interests of justice" exception was performed through the lens of a reviewing court judging counsel's performance against prevailing professional norms. In that context, the Court either weighed the evidence itself or relied on factual findings made by the district court judge. For example, in disregarding Andrea Reed’s recantation testimony, the Court noted that the district court had rejected her recantation and held that "w[e] review deferentially the state district court’s determination of the credibility of a recantation, and the state district court’s finding in this case is supported by the record."

Skinner II, 293

S.W.3d at 204. But here the Court must view the evidence from a different perspective. Because art. 64.03(a)(2)(A) poses the question in terms of whether the defendant would have been convicted if exculpatory DNA test results had been presented, the Court must view the evidence through the lens of a lay juror considering the competing evidence presented by the prosecution and the defense at trial.

As in other contexts involving informed speculation 61

about the potential effect of evidence on a jury, the appropriate attitude is to set aside the question of whether the Court itself credits the evidence and ask instead whether a reasonable juror could do so. This is the approach taken by this Court in, for example, the context of reviewing denials of requests for jury instructions on defensive issues. See Gauthier v. State, 496 S.W.2d 584, 585 (Tex. Crim. App. 1973) (noting that a "defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting") (citation omitted). As the Court acknowledged in Gauthier, "the truth of the testimony is for the jury to determine"; as a consequence, such instructions should be given "even if the trial court is of the opinion that the testimony [supporting the request] is not entitled to credence." Id. This rule is "designed to insure that the jury, not the judge, will decide the relative credibility of the evidence," and to avoid having the court "substitute[] [its] judgment on the weight of the evidence for that of the jury." Woodfox v.

State, 742 S.W.2d 408, 409-10 (Tex. Crim. App. 1987).19

A similar approach is also taken by courts when reviewing a verdict for sufficiency of the evidence, which necessarily involves a court's determination whether a jury would harbor a reasonable doubt as to a defendant's guilt. See, e.g., Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (it is up to the jury, not the Court, to "fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts") (citation and internal 19

(cont'd)

The same important values are at stake in the present context. Because the Legislature couched the inquiry in terms of whether the jury would still have convicted the defendant in the face of exculpatory DNA test results, the Court’s role in assessing ultimate credibility determinations and weighing evidence is not undertaken from the standpoint of a "thirteenth juror," see Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), but from the perspective of how a reasonable juror could have made such assessments.

Indeed, this Court has already rightly adopted that very

approach in applying art. 64.03(a)(2)(A). See Routier, 273 S.W.3d at 259 (exculpatory DNA evidence "would more likely than not have caused the jury to harbor a reasonable doubt as to the appellant’s guilt and decline to convict her") (emphasis added); id. ("There is at least a 51% likelihood that the jury would have seen [the defendant] as a victim herself—or at least that it would have harbored a reasonable doubt that she was not.") (emphasis added); see

also Morton, 326 S.W.3d at 644-45 (“we conclude that there is greater than a 50% likelihood that the jury would have harbored a reasonable doubt as to [Morton's guilt]") (emphasis added).

________________________ (cont'd from previous page)

quotation marks omitted); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (stating that the Court’s role is "not . . . [to] substitute [its] judgment for that of the fact-finder"). 63

Thus, with respect to Andrea Reed's admission that she testified falsely at trial, under art. 64.03(a)(2)(A) it is no longer sufficient for the Court to defer to the trial judge’s refusal to credit that testimony. Instead, the Court must ask whether a reasonable juror could have credited it. Certainly the answer to that question must be "yes." The same is true regarding inferences to be drawn from, say, the evidence that Robert Donnell uncharacteristically gave his beat-up pickup an antiseptic cleansing within days after the murders.

Whatever weight the Court itself may be inclined to give that

evidence, there can be no doubt that it could have had a major impact on a reasonable juror. In sum, it cannot be denied that there is at least a 51% likelihood that these facts—when combined with all the other evidence pointing toward Mr. Skinner’s innocence and presumed exculpatory DNA test results linking someone other than Mr. Skinner with the crime scene, one of the murder weapons, and the items found near Twila Busby's body—would have left a reasonable juror with reasonable doubt about Mr. Skinner’s guilt. II.

MR. SKINNER HAS SHOWN THAT THE THIRD MOTION WAS NOT MADE TO UNREASONABLY DELAY THE EXECUTION OF SENTENCE OR ADMINISTRATION OF JUSTICE. The second reason the District Court gave for denying Mr. Skinner’s

Third Motion is that Mr. Skinner had failed to satisfy art. 64.03(a)(2)(B), which requires a convicted person seeking DNA testing to show by a preponderance of the evidence that the request was not made "to 64

unreasonably delay the execution of sentence or administration of justice." Not only did the District Court fail to provide any explanation for this finding, but it made this ruling sua sponte—even the District Attorney did not contend that Mr. Skinner had failed to satisfy art. 64.03(a)(2)(B).20 The mere fact that a Ch. 64 motion may have the effect, or even the purpose, of delaying an execution does not warrant denial of such motion; rather, the court must find that any delay the motion might cause is "unreasonabl[e]." See art. 64.03(a)(2)(B) (requiring that "the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice") (emphasis added). How the District Court could find unreasonable any delay that might result from Mr. Skinner’s motion is difficult to fathom, but especially so after this Court had already found 21 that it would be "prudent" to stay the

The trial judge seems predisposed to consider every Ch. 64 motion to be made for purposes of unreasonable delay. The same judge made the same finding with respect to the First Motion, even though that motion was filed within days of the original enactment of Ch. 64 and when no execution date was pending. This Court found that ruling to be "not supported by the record” and “an abuse of discretion." Skinner I, 122 S.W.3d at 811. 21 The District Court did not make its art. 64.03(a)(2)(B) finding until November 21, 2011, some 15 days after this Court had already stayed Mr. Skinner’s execution. (See SSR 7.) The District Court’s initial order denying Mr. Skinner’s Third Motion, entered November 2, 2011 made no mention of unreasonable delay (or any other reason for denying the motion). The initial order was not included in either the Supplemental Record or the Second Supplemental Record but is quoted in full in Mr. Skinner's Motion for Stay of Execution. See Motion for Stay of Execution to Allow Meaningful Consideration of Appeal of Trial Court's Denial of Motion for 20

(cont'd)

execution to afford "time to fully review the changes [to Ch. 64] as they pertain to this case." Stay Order at 2. That finding compels the conclusion that delay of the execution was reasonable and the district court ruling to the contrary was in error. Even if this Court had not effectively resolved the matter, there still would be no basis whatsoever for the District Court's purported finding. As discussed above, the change in law that enabled Mr. Skinner to bring his Third Motion was the Legislature's action in June 2011 to remove from Ch. 64 the "fault" provision that barred him from seeking DNA testing under this Court’s decision in Skinner II. That amendment did not take effect until September 1, 2011.

Thus, September 1 was the very earliest date Mr.

Skinner could legally initiate this proceeding. The Third Motion was dated— and sent to the District Court by the most expeditious means possible—on September 2. Because of the long Labor Day weekend, it was not delivered to the court until Tuesday, September 6. This delay of only two business days in making the filing can hardly be termed unreasonable, especially considering that there were still nine weeks remaining before Mr. Skinner’s

________________________ (cont'd from previous page)

DNA Testing And Objection to Trial Court's Order As Inadequate to Permit a Meaningful Appeal at 9, Skinner v. State, No. 76,675 (Tex. Crim. App. Sept. 6, 2011).

scheduled execution on November 9, 2011.22 As Mr. Skinner pointed out in the Third Motion, that still left sufficient time to rule on the motion and get a good start on the DNA testing if it was ordered. (See SR 1:33.) But, instead, those nine weeks were wastedâ&#x20AC;&#x201D;not by Mr. Skinner but by the State and the District Court.

The State took seven weeks to file a response, and the

District Court took another ten days to announce its decision. At that point, with only six days remaining until the scheduled execution, Mr. Skinner had no choice but to ask this Court for a stay.23 Given these circumstances, nothing about Mr. Skinner's conduct with respect to the present action could justify the District Court's finding that he acted to delay unreasonably the execution of his sentence or the administration of justice, and this Court should reverse it.

Mr. Skinner's diligence in seeking relief via the newly amended Ch. 64 is hardly analogous to those circumstances in which this Court has determined that a Ch. 64 motion was filed for the purpose of unreasonably delaying execution or the administration of justice. Cf. Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005) (finding that appellant did not meet art. 64.03(a)(2)(B) where the prisoner waited several years after conviction and less than a month before execution to file, but "nothing legally prevented appellant from filing a motion for DNA testing" much earlier). 23 It should also be noted that in July 2011 the District Attorney and the District Court arranged the November 9 execution date without giving notice to Mr. Skinner after the District Attorney had been put on notice in a parallel federal proceeding that Ch. 64 had been amended and that Mr. Skinner would be filing a motion under the new statute as soon as the amendment became effective. Had Mr. Skinner been given an opportunity to be heard, he would have asked the court either to defer setting a date altogether or to set it to assure sufficient time to review his new motion. 22