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Gregory Edward WRIGHT

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: March 21, 1997
Date of arrest: 2 days after
Date of birth: November 1, 1965
Victim profile: Donna Duncan Vick (female, 52)
Method of murder: Stabbing with knife
Location: Dallas County, Texas, USA
Status: Executed by lethal injection in Texas on October 30, 2008
 
 
 
 
 
 

photo gallery

 
 
 
 
 

United States Court of Appeals
For the Fifth Circuit

 
opinion 05-70037
 
 
 
 
 
 
petition for writ of certiorari
 
 
clemency petition 1 clemency petition 2
 
 
polygraph examination
 
 
 
 
 
 

Summary:

Donna Duncan Vick was a charitable and religious 52-year-old widow, who first saw the homelss Wright on a street corner with a sign "Will work for food." Known for ministering to and aiding the homeless, Ms. Vick had invited Gregory Wright, a homeless person and panhandler, to reside in her house in exchange for doing yard work. She also gave Wright and a homeless friend, John Adams, food and a place to sleep. Wright was a crack cocaine addict.

One week later, Adams directed police to her bedroom, where she was found beaten and stabbed to death. On the night of the murder, Wright, Adams and Ms. Vick drove to a local VFW lodge, where they stayed until 2:00 a.m. When they returned to Ms. Vick's home, she cooked some food for the men then went to bed.

At some point thereafter, the two men, armed with Adams' pocket knife and a butcher knife from Ms. Vick's kitchen, went back to her bedroom where they proceeded to stab Ms. Vick repeatedly to her death. Wright and Adams then gathered up items in the house belonging to Ms. Vick, including her microwave, portable CD player, TV, VCR, computer equipment, and newly purchased weed-eater and placed them in her car where they transported them to the crack house to trade for drugs.

The next day, Adams asked an employee at a video store to call the police because he wanted to turn himself in. Adams directed the police to Donna Vick’s body. Adams also led the police to a shack that Wright sometimes stayed in, where they arrested Wright and seized a bloody and gold-paint splattered pair of blue jeans. Outside the shack, the police found a bloody knife. DNA evidence established that the blood on the knife and jeans was Donna’s. Adams later recanted his testimony and claimed responsibility for the killing. But at a hearing recently, he renounced that statement. Adams was also convicted of capital murder and remains on death row.

Citations:

Wright v. State, 28 S.W.3d 526 (Tex.Crim.App. 2000.) (Direct Appeal).
Wright v. Quarterman, 470 F.3d 581 (5th Cir. 2006) (Habeas).

Final/Special Meal:

Two double cheese burgers with everything, 2 baked potatoes with butter, large salad with ranch dressing, 1 pitcher of milk, any dessert, and 4 dinner rolls.

Final Words:

"There's been a lot of confusion who done this. I never sold anything to anyone. My only act or involvement was not telling on him. John Adams was the one that killed Donna Vick. The evidence proves that. ... I was in the bathroom when he attacked. I ran into the bedroom. By the time I came in, when I tried to help her with first aid it was too late." He said an innocent man was being put to death and said he loved his family. "I'll be waiting on y'all. I am finished talking."

ClarkProsecutor.org

 
 
 
 

Name

TDCJ Number

Date of Birth

Wright, Gregory Edward

999253

11/01/65

Date Received

Age (when Received)

Education Level

02/05/98

32

11

Date of Offense

Age (at the Offense)

County

03/21/97

31

Dallas

Race

Gender

Hair Color

White

Male

brown

Height

Weight

Eye Color

6-0

170

blue

Native County

Native State

Prior Occupation

Knox

Tennessee

Laborer

Prior Prison Record

None

Summary of incident


On 03/21/1997, in DeSoto, Wright broke into the home of a white female. 

Wright stabbed the victim with a knife, causing her death. 

Wright took many items from the home and left the scene in the victim's vehicle.
 

Co-defendants

None

Race and Gender of Victim

White female

 
 
 
 
 
 

Texas Department of Criminal Justice

Inmate: Wright, Gregory Edward
Date of Birth: 11/1/65
DR#: 999253
Date Received: 2/5/98
Education: 11 years
Occupation: Laborer
Date of Offense: 3/21/97
County of Offense: Dallas
Native County: Knox County Tennessee
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Blue
Height: 6' 00"
Weight: 170

Prior Prison Record: None

Summary of incident:

On 03/21/1997, in DeSoto, Wright broke into the home of a white female. Wright stabbed the victim with a knife, causing her death. Wright took many items from the home and left the scene in the victim's vehicle.

Co-defendants: None.

 
 

Chronology of the Trial and Appeal process

  • March 23, 1997 - Arrested
  • March 26, 1997 - Indictment ordered
  • Aug 25 - Nov, 1997  -  Jury Selection
  • Dec 1-7, 1997  -  Trial - Guilt/Innocence phase
  • December 8, 1997  -  Guilty Verdict
  • December 9, 1997  -  Trial - Punishment phase
  • December 10, 1997  -  Judgement and sentence of death by leathal injection
  • December 10, 1997  -  Automatic appeal - Direct Appellate process (State)
  • July 22, 1999  -  State Application for Habeas Corpus - appeal filed
  • June 28, 2000  -  Texas Court of Criminal Appeal denies Direct Appeal
  • July 17, 2000  -  State's Response to Application for Habeas Corpus
  • Sepember 13, 2000  -  Texas Court of Criminal Appeals denies Habeas appeal
  • January 22, 2001  -  Certiorari to U.S. Supreme Court denied

End of State Appellate Process
Law requires only one year to file Federal Application for Habeas Corpus

  • January 18, 2002  -  Federal Application for Habeas Corpus - filed brief
  • February 26, 2002  -  Motion to Disclose information
  • September 18, 2002  -  State files their response to Habeas appeal
  • September 30, 2002  -  Denial of Motion to information
  • November 18, 2002  -  Amended Motion to Disclose information
  • September 12, 2003  -  Denial of Amended Motion to Disclose information
  • March 10, 2004  -  Magistrate Judge files a Recommendation
  • April 2004  -  Greg's Response to the Recommendation filed
  • March 28, 2005  -  Order from Federal District Judge denying application
  • April 8, 2005  -  Greg's Motion to alter or amend judgement filed
  • June 24, 2005  -  Order denying motion to alter or amend judgement
  • July 25, 2005  -  Appeal for Certificate of Appealability filed
  • August 2005 ?  -  Denial of Certificate of Appealability
  • March 15, 2006  -  Appellant's Brief in support of application for Certificate of Appealability
  • May 2006  -  Response in Opposition to application for COA
  • Nov 17, 2006  -  Denial of COA by 5th Circuit
  • Dec 7, 2006  -  Motion for Panel Rehearing - 5th Circuit
  • Dec 18, 2006  -  Denial of Panel Rehearing - 5th Circuit
  • March 16, 2007  -      Petition for Writ of Certiorari
  • June 18, 2007  -  Denial of Petition
  • August 21, 2008  -  First Subsequent Application for a Post-Conviction Writ of Habeas Corpus
  • Sept. 5, 2008  -  Stay of Execution (to Oct.30, 2008)
  • Sept. 9, 2008  -  TCCA Remand with written Order to the Trial Court
  • Oct 8, 2008  -  Recommendation for commutation filed by attorneys
 
 

Homeless man executed for killing of N. Texas Samaritan

By Michael Graczyk - Houston Chronicle

AP - Oct. 30, 2008

HUNTSVILLE — Proclaiming his innocence, condemned prisoner Gregory Wright was executed Thursday evening for the fatal stabbing and robbery of a Dallas-area woman who tried to help him when he was homeless. "There's been a lot of confusion who done this," Wright said from the death chamber gurney.

Then, as he has for years, he declared a fellow homeless man, John Adams, was responsible for the murder of Donna Vick. "I never sold anything to anyone. My only act or involvement was not telling on him. John Adams was the one that killed Donna Vick. The evidence proves that. ... I was in the bathroom when he attacked. I ran into the bedroom. By the time I came in, when I tried to help her with first aid it was too late."

He said an innocent man was being put to death and said he loved his family. "I'll be waiting on y'all. I am finished talking." Nine minutes after the lethal drugs began to flow, he was pronounced dead at 6:20 p.m. CDT.

Wright, 42, was one two homeless men convicted of killing Vick, 52, at her home in DeSoto, just south of Dallas, in 1997. The woman was known for helping the needy and had given Wright food, clothing and money after he said she spotted him on a street corner holding a cardboard sign offering to work for food.

He was the 14th Texas prisoner executed this year, the second this week. Another six are set to die in November, including one next week, in the nation's most active capital punishment state.

Wright was an out of work truck driver when he befriended Adams, who also was homeless in Dallas. Adams was tried separately and also was convicted and sentenced to death. He does not have an execution date. "He could have been the hero in this if that was a true story," Jerry Don Blanton, Vick's son, said after watching Wright die. "I really think if there was any truth in what he said, he could have probably stopped this. "And if he wanted to protect his friend, all he had to do was call 911 and get an ambulance out there."

Blanton said he thought both Wright and Adams were "very much total participants in what happened that night, no doubt... We're getting the same thing we've got since day one, each of them blaming it on the other one."

The U.S. Supreme Court rejected an appeal by Wright less than an hour before he was scheduled to be taken to the Texas death chamber. Other federal courts had rejected similar appeals and the Texas Board of Pardons and Paroles also refused a clemency request for Wright on a 7-0 vote Wednesday.

"The truth doesn't matter," Wright told The Associated Press recently from a visiting cage outside death row, saying he was stunned at the outcome of his 1998 trial in Dallas. "I couldn't believe what was happening. I'm very upset at a number of different people. I don't blame the legal system. I blame individuals running the legal system. ... I am innocent."

Adams, who implicated Wright as the killer, earlier this year recanted his statement against Wright. Then at a court hearing last month, he reversed his recantation. "The co-defendant has been a bit erratic," Meg Penrose, one of Wright's lawyers, said Thursday.

She said she understood demands for an execution in the case "but I thought justice demanded we executed the right person." "I guess there's a difference of emphasis," Penrose said. "I'd rather wait 30 years and make sure we have the proper individual executed than wait 12 and hedge our bets. I don't like the rush to review that we're at. A person who is innocent is rushed to the gurney and is executed."

New DNA tests requested by Wright's lawyers, which put off Wright's execution initially scheduled for last month, "on the whole, confirmed Wright's guilt," state attorneys told the appeals courts in their arguments. Penrose contended the tests were ambiguous. At Wright's trial, jurors were told that after the killing, the two men packed up items from inside the house, drove off in Vick's car and traded the loot for crack cocaine.

A day and a half later, Adams turned himself in to police, implicated Wright, directed officers to Vick's home and helped in the recovery of her car. DNA tests of blood on the steering wheel of the car was shown to belong to Wright. His bloody fingerprint also was found on a pillowcase on her bed. Wright's lawyers disputed the accuracy of the fingerprint evidence.

From death row, Wright refused to talk about specifics of the crime, saying only that it stemmed from an argument between Vick and Adams over Adams' smoking. "This should have been finished long ago because there's no question about his guilt and there should be no question about the jury's verdict either," said Greg Davis, who prosecuted Wright. "He and Adams had been living on the streets together. So what he does, he talks his way into the victim's home and then he gets Adams in there, too. Both them actually stabbed her to death."

Scheduled to die next is Elkie Taylor, 47, on Nov. 6. Taylor was condemned for strangling a 65-year-old Fort Worth man in 1993 with two wire coat hangers and then leading police on a four-hour chase in a stolen 18-wheeler. Authorities said the robbery and murder of Otis Flake at Flake's Fort Worth home was the second killing linked to Taylor over an 11-day period.

 
 

Man set to die today for '97 killing in DeSoto

By Steve Thompson - Dallas Morning News

Thursday, October 30, 2008

She saw him on a street corner with a sign: "Work for food." So she took him in. She prepared sandwiches for him and his friend at her DeSoto home. Then she was stabbed to death.

Donna Duncan Vick was always a charitable woman, her family said, but she also believed in an eye for an eye, a life for a life. Today, one of the men who authorities say killed her is scheduled to receive his half of that equation. Gregory Wright, a 42-year-old former homeless man, is to be executed for the March 21, 1997, slaying of Ms. Vick, a religious 52-year-old widow who gave Mr. Wright and his friend John Adams food and a place to sleep. "Unfortunately, I think at this point Greg is nearing the end of his legal challenges," one of his attorneys, Meg Penrose, said Wednesday.

Appeals asserting evidence of Mr. Wright's innocence were turned down Tuesday by the Texas Court of Criminal Appeals. Mr. Wright insists that he wasn't involved in Ms. Vick's slaying and that Mr. Adams, also on death row, was solely responsible. "He blamed everything on me," Mr. Wright said recently from a visiting cage outside Texas death row. "It's a nightmare." Mr. Adams later recanted his testimony and claimed responsibility for the killing. But at a hearing recently, he renounced that statement.

In explanation, Mr. Adams said he originally recanted to help his co-defendant with his appeals, Ms. Penrose said. "He said he was trying to be gracious and give Mr. Wright more time with his wife." Mr. Wright, who says he was a trucker before he became homeless, met and married his wife, Connie Wright, while on death row. She and other supporters say he is innocent.

Mr. Adams, who also was homeless, testified during trial that Mr. Wright introduced him to Ms. Vick on the night of the murder. After spending some time at a club, he and Mr. Wright got a ride to Ms. Vick's home. Ms. Vick made them both sandwiches, Mr. Adams testified. Before retiring to her bedroom, Ms. Vick told him to make himself at home and help himself to the refrigerator, the bathroom and a spare bedroom. Then someone stabbed her to death in her bed. Each defendant said the other did it.

A witness told jurors that soon after the murder, Mr. Wright and Mr. Adams traded Ms. Vick's television, VCR, microwave and other possessions with him in exchange for crack.

 
 

ProDeathPenalty.com

The evidence at trial established that Donna Vick was stabbed to death in her home in DeSoto, Texas, about 15 miles south of Dallas, in the early hours of March 21, 1997. On March 22, 1997, John Wade Adams placed an emergency 911 call to the Dallas Police Department stating that he had witnessed a murder the night before. Adams subsequently led the authorities to an abandoned white Chrysler New Yorker registered to Donna Duncan Vick. This led to the discovery of Ms. Vick, found murdered in the master bedroom of her home with a pillow covering her face and lying in a pool of blood.

The lack of evidence to demonstrate a struggle elsewhere in the room indicated that the attack occurred on Ms. Vick's bed with her assailant straddling her on the bed during the murder. Ms. Vick sustained multiple stab wounds, bruises, and cuts to her face, neck, chin, hands, and throat area. A fifty-two-year-old widow known for ministering to and aiding the homeless, Ms. Vick had invited Gregory Wright, a homeless person and panhandler, to reside in her house in exchange for doing yard work. Wright had been staying there as a guest for about one week prior to the night of the killing.

On the day before the killing, Wright and Ms. Vick drove in her car to a house in north Oak Cliff where Wright purchased and used crack cocaine before leaving with Ms. Vick. Later that evening Wright and Ms. Vick returned to the house, where they met up with Adams. The three left together in Ms. Vick's car. The evidence reflects that they all went to the VFW lodge around midnight where they stayed until 2:00 a.m. The three men returned to Ms. Vick's home, where Ms. Vick cooked some food for Adams and Wright. Ms. Vick then went to bed.

At some point thereafter, Wright held up a paper towel toward Adams with the words "Do you want to do it?" written on it. The two men, armed with Adams' pocket knife and a butcher knife from Ms. Vick's kitchen, went back to her bedroom where they proceeded to stab Ms. Vick repeatedly to her death. Wright and Adams then gathered up items in the house belonging to Ms. Vick, including her microwave, portable CD player, TV, VCR, computer equipment, and newly purchased weed-eater and placed them in her car where they transported them to the crack house to trade for drugs. Llewelyn Mosley testified that Adams and Wright arrived at his house on the night of the murder and told him that they had some things from a woman in DeSoto that they wanted to get rid of, including a television, a weed eater, a rifle, a color printer, and a microwave. Several of these items were later identified as belonging to Donna Vick. Wright negotiated with the dealer. After exchanging some of the items, Wright and Adams appeared cheerful and exchanged “high fives.”

The next day, Adams asked an employee at a video store to call the police because he wanted to turn himself in. Adams directed the police to Donna Vick’s house and assisted in recovering her car. DNA testing revealed that blood found on the steering wheel belonged to Wright. At the house, the police found Donna’s body on her bed and Wright’s bloody fingerprint on her pillowcase. In a trash can, the police found a handwritten note reading, “Do you want to do it?” Adams also led the police to a shack that Wright sometimes stayed in, where they arrested Wright and seized a bloody and gold-paint splattered pair of blue jeans. Outside the shack, the police found a bloody knife. DNA evidence established that the blood on the knife and jeans was Donna’s.

Several cans of gold spray paint were found in Wright’s home, and witnesses testified that Wright had previously been seen with gold paint on his face and clothes. It was theorized that Wright had inhaled spray paint to get high. The police also found mail addressed to Adams at the shack. After Wright was arrested, he phoned a friend from jail and asked her to remove any of his clothing from the shack. Adams also led the police to a knife in a vacant lot near Mosley’s home. DNA testing revealed that the knife had Donna Vick’s blood on it. A medical examiner testified that Donna could have been stabbed by more than one knife. At trial, the prosecution argued that both Adams and Wright attacked Vick. The jury found Wright guilty, and he was sentenced to death.

 
 

Texas Execution Information Center by David Carson

Txexecutions.org

Gregory Edward Wright, 42, was executed by lethal injection on 30 October 2008 in Huntsville, Texas for the murder and robbery of a woman in her home.

In 1997, Donna Vick saw Wright, a homeless man, standing on a street corner, holding a cardboard sign offering to work for food. Vick befriended Wright, then 31, giving him food, clothing, and money, and even allowing him to stay with her at times in her home in DeSoto, a suburb of Dallas.

On the night of 20 March, Wright introduced another homeless man, John Adams, to Vick. After spending some time at a club, Wright and Adams got a ride to Vick's home. There, Vick made both of them sandwiches and told Adams to help himself to the refrigerator, the bathroom, and a spare bedroom. Vick then went to bed. She was stabbed to death in her bedroom in the early morning of 21 March. Wright, then 31, and Adams, 33, stole a television, microwave oven, rifle, and other items from her home. They also stole her car.

The next day, Adams turned himself in to police and assisted in recovering the victim's car, which they had abandoned in Landcaster, another Dallas suburb. On the steering wheel, police found blood which DNA tests showed belonged to Wright. At the house, police found Vick's body on her bed and Wright's bloody fingerprint on her pillowcase. Adams also led police to a shack where Wright sometimes stayed, and he was arrested there. Police found a pair of bloody blue jeans, and, outside the shack, a bloody knife. DNA tests established that the blood on the jeans and knife was Vick's. Police also found gold paint on the jeans, and several cans of gold spray paint in the shack.

Adams then led police to a vacant lot, where another bloody knife was found. That blood was also matched to the victim.

Llewelyn Mosley, whose home was near the vacant lot where the second bloody knife was found, testified that on the night of the murder, Wright and Adams drove up to his home in Vick's car to purchase cocaine from a drug dealer who was staying with him. Mosley testified that Wright and Adams told him they had some things from a woman in DeSoto that they wanted to get ride of. After Wright negotiated a purchase with the dealer, he and Adams exchanged "high fives."

A medical examiner testified that more than one knife could have been used to kill the victim. Further testimony showed that Wright was known to inhale spray paint to get high.

A jury convicted Wright of capital murder in December 1977 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2000. All of his subsequent appeals in state and federal court were denied.

John Adams was also convicted of capital murder and sentenced to death. He remains on death row as of this writing.

In their trials and appeals, both Wright and Adams blamed the other for the killing. In one appeal, Adams recanted his testimony and took sole responsibility for the killing, but he reversed himself again at a later hearing.

A September execution date for Wright was withdrawn so additional DNA testing could be done. His execution was rescheduled after the results of the test were reported back to the court. "The truth doesn't matter," Wright said in an interview from death row a few days before his execution. He said he was stunned when his guilty verdict was announced. "I couldn't believe what was happening ... I am innocent."

Wright again proclaimed his innocence in his last statement at his execution. "There's been a lot of confusion who done this," he said. "I never sold anything to anyone. My only act or involvement was not telling on him. John Adams was the one that killed Donna Vick. The evidence proves that ... I was in the bathroom when he attacked. I ran into the bedroom. By the time I came in, when I tried to help her with first aid, it was too late." Wright also expressed love to his family. "I'll be waiting on y'all," he said in closing. "I am finished talking." The lethal injection was then started. He was pronounced dead at 6:20 p.m.

The victim's son, Jerry Don Blanton, attended Wright's execution. A reporter asked him afterward about Wright's last statement. "He could have been the hero in this if that was a true story," Blanton answered. "I really think if there was any truth in what he said, he could have probably stopped this. And if he wanted to protect his friend, all he had to do was call 911 and get an ambulance out there."

"I thought justice demanded we executed the right person," Meg Penrose, one of Wright's lawyers, said. "I'd rather wait thirty years and make sure we have the proper individual executed than wait twelve and hedge our bets. I don't like the rush to review that we're at. A person who is innocent is rushed to the gurney and is executed."

 
 

Free Greg Wright From Death Row

FreeGreggWright.com

Trial - Transcripts - Affidavits - Appeal files - Supporters - Contact/Links - Greg's awards - email - Sign petition

An execution is scheduled for Oct. 30th 2008: read why this WILL BE A WRONGFUL EXECUTION OF AN INNOCENT MAN !!! The US Supreme Court rejected Greg's final appeal - the execution of an innocent man is completed

Today, the 5th Circuit has effectively torn up the charge for which Greg was tried, convicted and sentenced, and substituted one of a "party to the crime" - so admitting that Texas has failed in its attempt to find conclusive evidence against him. Greg has never faced a jury under this charge and, minimally, should be granted a re-hearing of the punishment phase in front of a jury. "After three test charts and a number of stimulus test were administered, an analysis of the polygraph charts was made, and in my professional opinion Mr Wright is being truthful in all his answers to the relevant test questions." Joe D. Morris B.S., M.A., C.P.E. Polygraph Examiner, Texas.......... "Is Gregory E. Wright actually and factually innocent of the murder of Donna D. Vick and never knew of any intent to harm before the crime took place?" - "Yes he’s innocent of this crime. I did it." John Wade Adams, August 11, 2008 My name is John Wade Adams #999278. I want the record clear that Greg Wright is innocent of the crime he’s here on death row for. If you kill him your (sic) killing a innocent man. Greg Wright was used as a scape goat. I’m doing this because I’m tired of seeing innocent people being killed for murders they’ve not done the statement I made is a lie the one that I made at the first of our arrest. Greg Wright is innocent! I was there and know better. Did you place the murder of Donna D. Vick on the hands of Gregory E. Wright? Yes to make it look like he did it. I set him up.

An open letter from Greg Wright's supporters in Texas, across the USA, and across the world to Governor Rick Perry; Justices of the 5th Circuit Court of Appeal; Justices of the Texas Court of Criminal Appeals; Members of the Texas Board of Pardons and Paroles; Craig Watkins, District Attorney for Dallas; Judge Francis, trial judge

Sirs,
After nearly eleven years of incarceration on death row, and nearly 11 years of appeals against a wrongful conviction and sentence for murder, Gregory Wright has been given an execution date of Oct.30th 2008. We make this final appeal to you, in faith of the American respect for Justice, and of the value of an innocent human life. While unreservedly expressing our sympathy for the relatives of Ms. Donna Vick, and our abhorrence of the crime by which she lost her life, we cannot accept the wrongful death of her friend Gregory Wright, in whom she trusted and loved, and for whom he respected and befriended in turn. The circumstances of their relationship, and the timing and circumstances of her death, of course make it difficult to prove that Greg had nothing to do with her murder. But in the modern age and sophistication of evaluative judicial process, we believe with all our hearts and minds that the evidence now available to you is overwhelming in its conclusion, minimally that sufficient doubt of guilt exists to justify setting aside this sentence of death, and that in fact it supports fully the actual innocence as claimed by Greg over all these years. That evidence is set out once more below. We appeal to you to assess the evidence anew, and to cast favorable judgment.

1. A recent written confession by Greg's co-indictee John Adams, confirmed with a second written document, unsolicited and freely made available to Greg's attorneys, clearly and unreservedly exonerates Greg of any responsibility for the crime of murder. Adams has, under oath, admitted he wrote this confession, but now, understandably, has decided not to admit its truth under oath for fear of the consequences for his own life. To commit a confession in writing is not something done lightly, especially when done in the knowledge that your own life is endangered. Adams professed his Christian conversion and commitment when making this confession. If his word cannot be taken at face value on this, what worth can his original accusations against Greg have? Adams, by his own word and by his own history of knife use against another human being (admitted with details on his website) has condemned himself, but he continues to cast blame in an attempt to lessen regard for his own sole culpability.

2. Substantial DNA testing has been done on both the murder weapon and on a pair of jeans claimed by the prosecution to have been worn by Greg whilst participating in the act of murder. The tests have revealed NO linkage to Greg on the murder weapon. The tests on the jeans, strongly opposed by the prosecution, have also revealed NO positive linkage to Greg. However, the tests did reveal the strong likelihood of a linkage to Adams. Testimony at the trial showed that Greg was seen wearing jeans of an entirely different description before the timing of the murder. The jeans are also too small to have been worn by Greg, based on his physical measurements taken at his arrest hours after the crime, and also at the trial. A significant part of the evidence presented to the original jury has then been shown to have no reliability of fact. The jeans are more likely to have been worn by Adams, whose physical dimensions, also measured at the time of his arrest, match those of the jeans.

3. Fingerprint evidence presented at trial, always looked upon by juries as strong evidence of guilt, has now been proven to have had no status other than that of "junk science". Testimony from the state's own forensic department at the trial, plus evidence from a defense independent fingerprint expert (inexplicably not called at the trial to give his evidence), and evidence from a further expert in recent days - all state that the fingerprint in question was of such poor and incomplete quality that it would have been impossible to make a positive identification as belonging to Greg. The trial defense team have admitted in affidavit that they were in error in not protecting and preserving Greg's legal rights in respect of this matter at the trial. This trial evidence then is also proven to have no reliability of fact.

4. A scene-of-crime officer, charged with the collection and handling of evidence following discovery of the crime, has been shown publically to have been employed fraudulently by the state. He had made untrue and illegal claims of qualification and experience to his employers. This fact alone should render any evidence handled by him as at least unreliable, and probably inadmissible. The further fact that he has subsequently been accused of murder, and is recorded as one of America's most wanted criminals, should render his contribution to the evidence against Greg as worthless.

5. Greg has submitted himself to an independently conducted polygraph test by one of the state's most respected polygraph practitioners, himself often employed by the state. His evidence concludes that Greg's assertions of innocence are entirely truthful. While polygraph evidence is not admissible in a court of law, in these circumstances where unreliability of guilt has amply been demonstrated by other means, it is reasonable and not without precedence to weigh such evidence in favor of the accused.

6. The additional issues, raised in detail by Greg's attorneys, Bruce Anton and Mary Penrose, in the Writ of Habeas Corpus (available in full and in summary elsewhere on this site) have not been rejected in fact by any court. Again, the cumulative value and effect on the merits of at least full review of Greg's case can surely be undisputed.

We pray for your fair consideration of this case, a new trial or review, and for the release of Gregory Wright from wrongful threat of execution. The admission of error, or the admission of subsequent uncertainty, is not weakness in the eyes of the law or public. This capacity is rather what gives us all confidence and respect for the legal process and legal institutions. We thank Greg's attorneys, Bruce Anton and Meg Penrose, now working pro bono, for their tireless work in making these findings possible.

Sincerely and respectfully yours,

Peter Bellamy, Gregory Wright Supporters Coordinator
on behalf of supporters and family of Gregory Wright

 
 

Gregory Wright

UnfairTrial.net

Back in 1997 Gregory Edward Wright was convicted for the murder of Donna Duncan Vick; though yet another man named John Wade Adams was convicted for the same crime. They both now are held in the Polunsky Unit in Texas, USA, awaiting their death penalty. Although the attorneys did have enough evidence against Mr. Adams to understand that Mr. Wright was innocent, he is still in there awaiting the answer on his last appeal. This site will provide you the information about the case, and hopefully you will help us to help Greg get a new and fair trial.

The next pages contain Mr. Wright's legal issues and links to other web sites. It is the combined effort of caring individuals that we publish this case hoping to get the interest and the public's awareness that "INJUSTICE" is practiced in the Courts of the U.S., State of Texas.

We are not trying to prove guilt or innocence. That is for a jury to decide. We are, however, showing that Greg Wright's trial was tainted by prosecutorial misconduct and ineffective assistance of counsel, both at trial and on state appellate process. Mr. Wright's rights as a United States citizen insuring that he get a fair and impartial trial has been infringed upon. The capital murder scheme in the state of Texas is flawed. Greg is indigent and seeking legal and financial help for upcoming attorney fees, if granted a new trial.

U.S. DEATH ROW PRISONER - STATE OF TEXAS

Gregory E. Wright
Age 38
Born 11-01-65
Caucasian

Greg's own account of his background

I was brought up in a productive family environment. Farming, school, church and sports took up all of my adolescent years. I was an athletic star and in total have approximately 20 plaques and trophy awards that depict my performances in football (U.S. style), baseball and basketball. I had to keep up my grades in order to participate in these extra curricular activities. I took advanced pre-college classes in high school, which include Typing 1, Introductory Computers, Chemistry, and all available math classes, Sociology, Psychology, Reading Composition, Biology and Art. The rest of my hours were spent on sports or farm work.

I married young, at age 19. My wife could not have children due to a medical problem, so I have no children. We divorced after seven years of marriage, and I filed the legal paperwork myself on the grounds of "irreconcilable differences". My profession in life was cross-country tractor/trailer operator in the U.S. I have logged over (1,000,000) one million miles behind the wheel of this big tractor rig, travelling coast to coast, from the Pacific Ocean to the Atlantic Ocean.

Due to marriage and family difficulties, I developed a drinking condition. This caused tension between my family members and I and finally cost me my driving license for six months. I was never judgemental about who my friends were. This non-judgemental stance finally cost me my freedom and now, possibly my life.

Sitting in the United States, on Texas' notorious "Death Row", I await judgement from the Federal Courts concerning my appeal to the conviction of Capital Murder. To date, I have never given a written or an oral statement as to events leading to the murder of my friend, Donna D. Vick, a middle-aged street minister. I did not testify at my trial. Why, you may ask? It was evident the judge and prosecutor were setting me up for a fall when I found out about the missing 911 - tapes. I don't think the jury would have given my testimony any credit. The first day of trial was when I found out that there existed voice tapes of Emergency 911 calls, conducted by John Wade Adams. The prosecutor claimed, "They had lost them".

Greg remember facts leading to arrest

I am writing this myself and I must make clear before I go any further, that I can not divulge certain facts in regards to the sudden demise of my friend Donna Duncan Vick. I have never made a legal statement, nor did I testify. What I am offering is a look at all information the Federal Courts now have.

Thinking back, I think the year was 1995. I had been operating a tractor/trailer rig, hauling produce or containers from New York to California, for an owner/operator in Dallas, Texas. We were having trouble collecting for toll bridges from the company we were hauling the produce for. Finally, he took the truck off line and that left me in Dallas, searching for another job. It took me three weeks to spend my small savings on hostel costs and living expenses. I ended up homeless and on the streets in Dallas, Texas, still searching for a job driving. I did not settle for underpaid local hauling, I was holding out for something cross-country.

While on the streets, I worked odd jobs for a day labor company. That small earning kept me fed. After some weeks I became the victim of a gunshot wound, point blank, just under my nose, from a small caliber handgun. I was protecting a man in his 30s from being robbed by 5 Mexican Americans. The five were in their late teens and early twenties. The one I protected was drunk and passed out. I was rushed to the hospital and there received reconstructive surgery to my upper palate, jaw bone, and dug my upper front to back teeth out of the back of my throat. The bullet lodged in my right jawbone causing hearing loss in my right ear, even today. I was told to wait 1 ½ or 2 years before I tried to get teeth put back in.

My father visited while I was in intensive care. He later took me back home with him, so I could recover. After six or seven months, I started working again. I was working, driving for an insulation company. The insulation goes between house and house roof. The trucking industry is always hiring and it is just a matter of finding the proper pay and insurance coverage. I like long hauls, taking me from state to state.

I never drank alcohol when I was working. However, just as soon as I got a little free time, you would find a beer in my hand. There is a sleeping bed in the tractor, so I lived in the truck between runs. While in Atlanta, Georgia, after getting false directions that led me into a small housing project, I had trouble turning the tractor and 53' foot trailer around. I ran over a brick or rock fence, and took down a power line. The truck was just too big for that neighbourhood.

Instead of filing a police accident report at the scene, I decided since only my rig suffered the most damage, I would call the State police at the nearest truck-stop that supplies fuel, food, beverages and restrooms. The rock fence was toppled, but I had torn my air brake canister and airline. Getting service for those rigs is a long waiting process and I had a pick-up for the following morning. I did not know about the power line. While at the truck stop, I went and purchased beer, went back to the truck and caught up on all of my paperwork. The state officials would want to see that paperwork of service hours. I was on my fourth beer and have completed all the paperwork and filled out an accident report and was fixing to go in and call the State police when a female officer approached my rig and saw me drinking the beer.

In past years, before the laws on drinking and driving changed, I would have been within legal rights. I was parked, off duty, and on store property, with no posted signs of drinking on or off premises. The laws in Georgia changed. Now, if you are drinking and sitting behind the wheel of a vehicle with the keys in the ignition switch, then you are considered in control or "operation" of that vehicle. If the motor is running, as mine always was, then you are definitively operating that vehicle. I will not lie and play ignorant to that state's laws. It is our job to keep up with the state laws in which we travel through. The law slightly vary from state to state. The ending result to all this, I was charged with "drinking while in operating of a motor vehicle" and lost my Commercial Driver's license for six months with a fourteen hundred dollar fine. Of course I was fired. Can't work without a license.

Now, you reader asks, "What does all this have to do with your case?" It had been almost two years since I had been shot. I was told the state would pay all or half to replace my upper teeth. I was a victim of a crime in the State of Texas, and the city of Dallas had a Crime Victim's Fund that I would be eligible for. Since I could not work, I decided to go back to Dallas, Texas and get my teeth fixed. This all happened in 1996. I arrived in Dallas around September 1996. This is why I was in Dallas, Texas in the first place. I stayed with Sylvia P. and her family. I knew her brother from downtown Dallas from the last time I had been in the city, almost two years prior. I could not find work in her neighbourhood. This led me right back to the streets of Dallas and being homeless. I worked enough to feed myself, and I held a sign on the side of the street informing passers-by that I was out of work and would do odd jobs for food. Some put me to work around their house, fee me and took me back to where they found me. Others would offer anywhere from 2-5 dollars for a meal, and drive on.

All pride leaves an individual when they are hungry. I was greatly humbled by that experience. I never regard homeless people the same as I used to. Their life is hard. People do not realize. The whole homeless experience is like camping, only for a longer period. Alcohol and food was my priority. My drinking was heavy and my body built a resistance to the normal effects and I consumed a large quantity daily, but never getting so drunk so that I could not function or maintain awareness. The city streets are dangerous. Remember my gunshot wound? I did. It left me suspicious of everyone. I had been placed on a one-year waiting list for repairs and dental work. I was informed that if a position opened up, they would send a letter to Sylvia P.'s address and tell me. My license being suspended for six months, nothing I could do but make the best out of a bad situation. I also had to pay that hefty fine as well, in order to get reinstated.

January 1997 finally came around. Enough clothes and plenty of alcoholic beverages were getting me through the coldest days. I had also picked up smoking cocaine rock, but never had enough money to make a habit out of it. This is where John Wade Adams shows up on the streets and introduces himself. He tells myself and other homeless individuals that were sitting around drinking, that he had just gotten out of prison and was on parole. He never stated what he had done, and I never asked. John Wade Adams had paroled out to the Life Foundation, in Dallas, Texas. They took in and fed homeless people for $ 3,00 dollars to $ 5,00 dollars per night. It was a religious based organization and I, myself, had worked there as a security guard.

No one could drink alcohol there or come in drinking, or drunk. You would be turned down for the night unless it was really cold. John W. Adams made his decision to leave the Life Foundation and live as a homeless person. He asked me to show him the ropes to living and making money and I did. I also showed him where I went to smoke marijuana and crack cocaine. I now wish I had never done that. As days went by, John W. Adams was making more and more trips to the dope house, and in the daylight hours. That is something I had never done. The money that people gave us was for food or beer, and they would watch to see what we did with their gift. If I had money by the end of the week to splurge on drugs, then I went, but only at night.

February showed its face and I had made the decision it was time to dry out, get my license back and return to the trucking work force. I left the city and John Wade Adams behind me and set up camp in a nearby suburb of Desoto. Lancaster was just across an overpass. These were dry townships, meaning they did not sell beer or liquor at the stores. They did have a V.F.W bar for members. If you paid a fee for admission, one could drink there. I was drying out and so they probably saw me four times out of 45 days. I went back to holding a "Work For Food" sign and worked the odd jobs people would give me. I had done pretty good out there and gained my weight back. I was even trying to save up some money for an apartment.

I filed for a tax return for the previous year I had worked, before I had lost my license. Got that money and went to see how things in the city were doing. I ran into Adams and while drinking together he informed me that he was afraid his parole officer might revoke his parole and send him back to prison if he did not get a job. I told Adams how well I was doing, and that I had set up camp in a burned out house with a huge fireplace set well off of the beaten path. I asked police officers who might own the place, and after checking records they said it belonged to a bank. There were no "No Trespassing" signs present. There was nothing of value left. None seemed to mind that I was there. I invited Adams out to the camp with the promise of finding him a job. For about four days, Adams stayed out in the Desoto/ Lancaster area. The fact that he could not buy beer and not find any drugs caused him to go back to the city. He left his footlocker and some clothes with me at the burned out house. Twice he returned for a day or two, get clean clothes, and then make his way back to the city. For about three weeks I never saw him.

I met Donna Duncan Vick in March, 1997. I was holding my "Work For Food" sign and she needed her lawnmower cleaned and started, and some yard work done. Said she would fix me a couple of steaks for my supper, an offer I could not refuse. I found out she was very religious and dedicated her life to helping the homeless and bringing Jesus' love and message of forgiveness to them. She asked me how I became homeless and I told her. I did her yard work and met one of her neighbours, and when she came out and asked me to take a ride with her, I complied. We ended up at the Department of Motor Vehicles. She wanted to verify my story about my commercial driver's license. We waited our turn, I gave my C.D.L. number and the whole status of my license was printed out to us, for a small fee of course. She smiled from ear to ear when she discovered that I had been telling her the truth. We also found out that my Texas License was still active, but I could not get a hard copy. You can only possess one State C.D.L. My Texas License should have been deactivated when I got my Tennessee License, I turned in the hard copy. Someone had not done his or her job at the Department of Motor Vehicles in Tennessee. From then on, everywhere we went, she wanted me to drive, in order to get back into the practice. It had been many months since I had driven.

She owned two vehicles. I worked on many chores around the house. She picked me up again the next day with a new proposition. She would let me have her guest bedroom to sleep in, and she would supply food and cook if I helped her with the maintenance and upkeep of the house, yard, garage, and motor vehicles. The idea was to help me get back on my feet and I accepted. Days later, Ms. Vick asked me if I knew any others like myself, needing an extra hand getting back on their feet. She had a room she used as a study and stated it could be used as a bedroom as well. I thought of John Wade Adams, and told her the complete situation with Mr. Adams, leaving nothing out. She said, "Let's go and get him." I had scheduled an appointment at a Mobile Home dealership for a job that day. I was interviewed by their secretary and she stated her boss would be gone until the following week, but that they were hiring and was pretty sure I would get the job. They needed 3 or 4 workers.

That evening we found John W. Adams at the dope house. I went in, leaving Ms. Vick in the car. I explained to Mr. Adams I had found him a job and a place to live. He was high and almost incoherent. After 15 minutes, I finally escorted him out to the car. Drugs and the Gospel just don't mix. He did not like Ms. Vick preaching to him and said as much. She ignored him, and continued preaching for his soul, all the same. She had done this with me on our first meeting, so I was used to it. Never was I offended by it, the way Mr. Adams was. He was dirty, from living on the streets. I had picked up a mailed package form Sylvia P.'s house my parents had sent. It contained clean clothes and a pair of work boots. We stopped at a gas station to let John change clothes and get cigarettes. I was wearing the boots. John still being high, I asked Ms. Vick to drop us off at that V.F.W. bar so to give him a chance to come off his high. Alcohol slows you down. She dropped us off, making sure I had enough money for cab fare home.

We found a ride with some patrons of that establishment and made our way to Ms. Vick's residence. The next morning she was dead. I've left out details here, to protect myself in case I am blessed with a new trial. There are other details I have left out to keep this as brief as possible. However, you, the reader, know more than my trial jury did when they reached their guilty verdict on the word and statements of John W. Adams and Llewelyn Mosely, the owner of the said, "dope house". I did not call the police, and I transported Mr. Adams and some stolen property of Ms. Vick's to the place I picked him up. After fixing a flat tire, I left him there, with the stolen merchandise, wanting never to be associated with him again. Yes, I made several bad decisions. However, not once did being accused of murder enter my mind. When you're not guilty of something, it does not become a factor in any decisions. I knew the police would be looking for me. I was the last one seen with her. Everybody I knew was informed of our living agreement. My fingerprints were everywhere, of course. I was in shock. That is the only way to explain it. Two days later, a small assault team attacked the burned out house and roughly arrested me, after bouncing a flash bang grenade off my chest. I was not hurt. It bounced and did not go off until it hit the floor. I was then arrested, stunned for the second time.

Short summary of “Statement of Facts” in Greg’s application for relief:

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AT DALLAS 3:01_CV_0472_X
GREGORY EDWARD WRIGHT Applicant VS. STATE OF TEXAS Respondent
APPLICATION FOR RELIEF PURSUANT TO 28 U.S.C. 2254
Bruce Anton
Carrie Sperling
Mary Margaret Penrose
ATTORNEYS FOR APPLICANT

STATEMENTS OF FACTS

Greg was indicted for the offense of murdering Donna Vick, a 52 year-old widow, by stabbing her with a knife, in the course of a robbery on March 23, 1997, in DeSoto, Texas. The State indicted John Wade Adams for the same crime. The State, however, chose to try Greg first. The jury charge required the jury to find that Greg was the primary actor, and not simply an accomplice. Ms Vick and Greg had a friendly relationship prior to her death. Ms Vick was a “street minister” who often ministered to the homeless in the Dallas area. In the week prior to her death Ms Vick invited Greg to stay in her home where he in return performed household duties and yard work. Ms Vick purchased Greg new clothes and shoes, provided him with transportation and planned to attend church with Greg. Greg also at that time associated with a man named John Wade Adams who had recently been paroled from the penitentiary.

The State offered conflicting testimony about the activities of Greg, John Wade Adams and Ms Vick the evening prior to the murder March 20, 1997. On the night Ms Vick was murdered Greg was seen with Ms Vick at the VFW Club. They had been at the club that evening where they had some drinks and spoke with other people in the club. Before leaving, Ms Vick had invited a Donald Cole to her house for breakfast. At approximately 7:30 on Saturday, March 22, 1997, Daniel McGauhey, a video store clerk, placed a 911 call to the Dallas Police Department (“DPD”). Detectives Dan Tripple and Carlton Marshall responded to the call and met with John Wade Adams at Red Coleman’s Liquor Store on Industrial Boulevard in Dallas.

Daniel McGauhey first gave a statement to DPD Officer Freeman in which he said that Adams had approached him and stated “ I murdered someone in DeSoto and I can’t deal with it. I want to turn myself in”. This statement was given to the defense after the trial had begun on December 1, 1997. McGauhey later provided DPD with a written statement on March 25, 1997. In that statement he again said that Adams had approached him and asked McGauhey to call the police because “there was a murder and he (Adams) wanted to turn himself in.

Despite of the importance of these 911 tapes, the District Attorney’s Office lost the only copies of the tapes prior to that time the defense had been able to listen to them. These tapes have never been given to Greg or his attorneys. Adams’ reversal of field, suddenly placing all blame on Greg, contradicted his original statement to McGauhey, “I murdered someone..”.

Only the State knew of this impeachment evidence and did not turn over this to the defense until the trial had begun and it was too late to locate Mr McGauhey. Thus, the State created a false impression that McGauhey merely called 911 because Adams wanted to report a murder, when in fact he had told investigators that Adams in fact confessed to be the perpetrator. The State also misled the jury saying it had not had contact with McGauhey for months and did not know his whereabouts, and trial judge denied a continuance to find him.

Federal habeas counsel for Greg have located McGauhey and he maintains that the State kept in close contact with him and knew his whereabouts and how to contact him. All this amounts to prosecutorial misconduct in violation of the due process clause of the Fourteenth Amendment. It ultimately allowed the State to paint a false impression that Greg was the sole perpetrator when the State knew Adams in fact had confessed. Greg was thus denied his right to present evidence regarding his claim of factual innocence.

When taken into custody, Adams proceeded to put all blame on Greg, something that became the lynchpin of the prosecution’s case against Greg. The State pursued the theory that Adams’ statement was credible, that Greg, not Adams, had stabbed Ms Vick using Adams’ knife. However, when the State subsequently tried Adams for his participation in the murder, the same State vigorously objected to the admission of this same statement, claiming now that the statement was unreliable, self-serving hearsay.(Adams Trial Vol. 32, pp. 17-19).

At the conclusion the jury was instructed that Greg was allegedly the sole perpetrator of the murder, and that Adams was an accomplice, who just happened to be there. Greg was ultimately found guilty of capital murder and is currently incarcerated on death row in Texas. The same State indicted John Wade Adams on capital murder charges for the March 21, 1997, slaying of Donna Duncan Vick in July 1998, saying he was the sole perpetrator Greg's Appeal, Evidence

The State's Evidence Against Greg

The State's evidence against Greg at trial consisted solely on circumstantial evidence linking him to the crime. Only the statement of Adams and a convicted drug dealer by the name of Mr Mosley, both highly unreliable witnesses with a clear motive to fabricate their testimony, directly placed Greg at the scene of the crime. In fact, when Mosley testified against Greg, he was facing possible prosecution by the State for receipt of stolen property, possession of cocaine, possession with intent to sell, and enhanced by his prior record, he would have received minimum 25 years if found guilty of his admitted crimes.

A. Evidence found in Ms Vick's home

Investigators found several pieces of physical evidence in Ms Vick's home, as there would be when he in fact was living there. Therefore it is not surprising that he would have left a fingerprint on a Dr Pepper bottle, a gym bag of clothes, toiletries, and a drop of blood equivalent with what you would leave on a shower towel in the bathroom while shaving. None of the investigators could compare the partial fingerprint found on a pillowcase that covered Ms Vick to a known print, however, the State then put forward a dubious expert, James Cron, and he ultimately said the print matched the little finger of Greg. The testimony should never have been allowed in court, since it never met any reasonable standard for recognised fingerprint identification.

B. Evidence found in Ms Vick's car

The fingerprints of Adams were found on the driver's side window, along with his cigarettes on the driver's side floorboard, and a wallet with identification all belonging to Mr Adams. Adams' prison parole papers were found beneath the car's astray, and if anything the evidence points to Adams as the individual who murdered and stole her car, since he did not have permission to drive the car.

C. Evidence found at Llewelyn Mosley's house

Mr Adams led the police to Mosley's house, a reputed crack house, and there Adams led them to his knife that contained Ms Vick's blood, along with some other items belonging to Ms Vick. No physical evidence was linked to Greg. However, Adams admitted to detective Pothen that he buried the knife there at Mosley's property.

D. The Umen Jeans

DPD found five pairs of jeans at Greg's former shack, one of which was the Umen jeans contained with Ms Vick's blood in the leg and crotch area. The evidence at trial established that in fact Greg was wearing dark new jeans the night of the murder. Furthermore, the jeans would not have fit Greg since he is 6' and weighed 190 lbs when he was arrested and a 36 waist, whereas the bloody the jeans were a size 32. When Adams was arrested March 23, 1997, he weighed 165 lbs and wore jeans a size 32.

E. The State's deal with L. Mosley

Mosley, a habitual felon, admitted to committing several serious crimes during his testimony in the case as mentioned before. At trial he testified under oath that he had received no inducements from the State in return for his testimony, however, federal habeas counsel have discovered that Mosley in fact was promised that he would not be prosecuted for his crimes for which he had confessed if he testified for the State against Greg. Kent Taylor, Mosley's attorney, stated under oath at Adams' trial that Mosley had received an "offer". The fact that this offer was not disclosed to the defense prior to Mosley's testimony shows that the State knowingly misled the jury and violated Greg's Sixth Amendment right to confront and impeach witnesses against him at trial.

F. The 911 tapes

The best evidence of McGauhey's 911 call would be the tapes that was made. Excited utterances are accepted as a hearsay exception, however, the actual 911 call reporting a murder would be the most accurate version of that confession. As the court well knows, 911 tapes are routinely preserved as evidence in assault cases because of their crucial nature. Curiously, in this case the prosecutor claims to have misplaced McGauhey, but also to have lost any record of his call.

G. The Existence of Jerry Causey

Despite the State's clear obligation, it failed to alert the defense of another important witness, Jerry Causey. The State used him in Adams' trial as its witness to convict Adams for the murder of Ms Vick. Causey testified that he was present at Mosley's crack house when Adams turned up trying to exchange stolen goods for crack just hours after the murder. Causey asked Adams whose car he was driving and Adams said: "It's the bitch's car", whereupon Causey asked Adams, "What bitch?", and Adams said: "The bitch I killed". Despite the obvious exculpatory nature of this statement concerning Greg, the State never informed his attorneys of the existence of Jerry Causey. The State never identified or listed Causey as a possible witness in Greg's trial although they knew about this before Greg's trial. Like Adams' confession to Mr McGauhey, the video store clerk, the confession to Mr Causey inculpated Adams while exculpating Greg. The State's failure to inform Greg's attorneys of this obvious exculpatory evidence undermined his ability to present his claim of factual innocence.

H. Adams' confession to Charles Nealy

John Wade Adams confessed to several people that he, not Greg, murdered Ms Vick. He also confessed to Charles Nealy while being incarcerated in Dallas County Jail prior to his trial. Check affidavit of Charles Nealy. Mr Nealy came forward with this evidence when he learned that Greg had in fact been convicted of the crime. Jail records show that Greg was never housed with Nealy so could not have concocted the confession, furthermore, he never knew Greg. Moreover, Greg has adamantly denied committing this crime, telling police officers all along "You have the wrong guy". This affidavit also supports Greg's claim of factual innocence.

I. Adams' use of Greg's shack

The State withheld from Greg's defense crucial evidence that Adams shared Greg's former residence, the so-called Beckley shack where there among other things the incriminating jeans were found. Along with the blood soaked jeans correspondence and other personal documents belonging to Adams were found. The State's failure to disclosure this exculpatory evidence until the State's final day, namely that Adams had control of the shack, prevented Greg from properly presenting his claim of factual innocence.

CONCLUSION BY GREG'S ATTORNEYS

Greg has steadily alleged that he is not guilty of the murder of Donna Duncan Vick. Instead, John Adams, another man on death row, is responsible. Indeed, Adams has confessed to several people that he murdered Ms Vick. The State of Texas, however, now claims that both Greg and John Wade Adams murdered Ms Vick as co-actors in the crime. This is a completely new theory of the crime embraced after the conviction of Greg. Rather, during Greg's trial, the State of Texas argued to the jury that Greg murdered Ms Vick, and Adams was merely caught at the scene by happenstance

In addition to his factual claim of innocence Greg further alleges that the State of Texas withheld exculpatory evidence that would have allowed him to establish his claims of innocence. The omitted and withheld evidence would have convinced a jury that Adams acted alone in murdering Ms Vick. In fact, the State of Texas continues to withhold crucial material evidence from Greg and his attorneys. First, the State withheld evidence material to the defense and at trial knowingly misrepresented evidence, more specifically the witnesses favourable to the defense, witnesses that were known to the State and available to testify at trial. The State also manufactured fingerprint evidence against Greg at trial. The State continues to withhold some of this evidence, claiming it is either lost or misplaced.

The State of Texas also throughout the trial continuously argued that Greg acted alone in murdering Ms Vick, asserting that Adams was a mere bystander or victim of circumstance. The same State's assertion however completely changed once Greg was convicted and sentenced to die and Adams stood accused of the same crime in the subsequent separate trial.

The State of Texas in Adams' trial suddenly shifted to arguing that the bloody jeans in fact were Adams', and Adams' sudden shift in confessing that it was in fact Greg that murdered Ms Vick was just a way to save his own neck, then no one can have confidence in the verdict that Greg was the murderer. "This case appears to be a classic miscarriage of justice. Wright was framed by Adams, law enforcement, put to trial at ambush, and provided with State writ attorneys who did not prepare properly". (P. 27 APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY JUDGEMENT)

Prayer

"Wherefore, premises considered, applicant respectfully prays that this court conduct an evidentiary hearing on the disputed matters of fact raised in the writ including, but not limited to, the State's use of inconsistent theories of prosecution, the failure to disclose Brady evidence, including witnesses Causey and McGauhey, the factual basis, if any, for Cron's fingerprint testimony, whether applicant is capable of wearing the jeans worn by the murderer, the existence of and circumstances surrounding the offer made to witness Mosley in return for his testimony, the disposition of the original 911 tape, defense counsel's effort to investigate and present mitigating evidence. After hearing, applicant prays that this writ be in all things granted and that the underlying conviction be set aside". (P. 28 APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY JUDGEMENT)

Life on Death Row

Gregory E. Wright's statement concerning living conditions on Death Row

I the year 2000, Texas moved its prisoners of Death Row from Ellis One Unit in Huntsville, Texas, to a much more secure facility; Polunsky Unit in Livingston, Texas. The Polunsky Unit, once known as the Terrell Unit, is a Super Maximum Security facility complete with surrounding guard towers, multiple perimeter fences, rows upon rows of razor wire, and a high voltage 15'foot high perimeter fence. The unit also houses prisoners serving years of time for their conviction. Currently, there are approximately 450 prisoners on Death Row. We are locked in single man cells located on what is referred to as Pods. There are six such Pods - A, B, C, D, E, and F Pod. Each Pod has 84 cells. Management has created a classification status for its Death Row prisoners. Depending on your conduct and ability to follow rules and orders, Death Row prisoners are assigned Level #1, Level #2, or Level #3 status, where 1 is the best, 3 being the worst. I have maintained a near perfect record, with no disiplinary actions taken against me ever since the date of my incarceration, March of 1997. I have sustained level #1 status up until August 2003, after having been denied my request of being moved to another pod. I damaged my cell door, trying to get ranking official's attention, by kicking on it. My level was downgraded for "Destruction of State Property". Now, I have been moved back to level #1 again.

Since moving to the Polunsky Unit, in the year 2000, the hardest thing to get used to is being in a one-man cell, 23 hours every day, with only a small headphone radio and pen-friend letters to confirm that an outside world exists. The other one-hour is used for recreation, which is conducted in a big cage. The mental anxiety and frustration of this type of "Deprivating Incarceration" is enough to drive a sane individual into a depressive or opposite, aggressive state of mind. According to the individual's own adaptable capabilities and willingness to follow orders, this type of incarceration will slowly take its toll on the mind set and attitude, causing the prisoner to not want to live and to give up their life, deciding the sooner the better. Texas Death Row is the only Death Row in the U.S. that does not allow its prisoners viewing privileges and television. This is most problematic for prisoners that cannot read or write, or have a low I.Q. Family and friends can only send letters, greeting cards, post cards and photographs from home. A "pre -approved" retailer or store management must send all books, newspapers and magazines, after purchasing the subscription. Everything else, such as stamps, stationary, hygiene items, clothes, food, and drinks, must be purchased through the unit's store. Family and friends send money orders to an Inmate Trust Fund in Huntsville, Texas. This money is recorded on a central computer system. Once a week, when the prisoner makes a store purchase, the amount is deducted from his Trust Fund.

Food is a touchy subject with Death Row prisoners. The complaints are many, and I'll name only a few; Dirty trays or spoons, cold food, undercooked/overcooked, spoiled meat, unwashed vegetables, portion of food too small, and those serving meal trays are not always wearing plastic gloves or hair net. Please keep in mind, the facility has a "Grievance system" and does address each complaint. Unfortunately, it would seem, it takes a substancial number of complaints to get anything done. The food care and variety has greatly improved since the year 2000.Prisoners receive three meals a day, regardless if they are able to purchase food from the unit's store or not. The amount varies from day to day and if the prisoner is reducted to classification level #3, their food portions will be cut in half for 30 days, for disiplinary reasons, or as a way of controlling assaultive attitudes. It is debatable on the productability of this type of discipline.

There are two types of "Jailers", if I may use such a term. These make up the unit's staff. They are "Guards" and "Ranking Officers". It is my personal experience that some guards will lie to a prisoner to appease him of their complaint. However, Ranking Officers have a higher standard of moral ethics and usually can be relied upon for most complaints. However, if the prisoner is known for not adjusting to rules and authority, their respective complaints may be subjected to an indifferent attitude. Because of the high security of this facility, it is "policy" to conduct cell- to-cell searches on a nightly basis. A cell list is produced by computer and cells picked at random for these searches. If the searching guard does not like you, your personal property will be left in disarray throughout the cell. There is a limit to the amount of property a Death Row prisoner may possess. This topic has generated numerous complaints because the property is placed in what looks to be a two-foot, by one-foot rectangle box that is approximately 18 inches deep. If these measurements are not exact, then they are certainly a close estimation. Please keep in mind that a Death Row prisoner lives in the cell. While a property limit is necessary, the restricting limit now set is slightly too retraining.

Two mandatory "Lock - Down" prisoner /cell searches are conducted annually. This Lock - Down status stops all prisoner movement until all cells and property have been searched. No one-hour recreation, showers only three times per week, no visits (unless it is attorney or planned pre-scheduled "special" visits), and no store purchases. There are approximately 440 cells and property to be searched and the lenght of time can take upwards of four weeks, putting a real mental strain on the prisoners. The only phone calls conducted are from attorneys or family members during an emergency of life threatening circumstances. Death Row prisoners in Texas do not otherwise make phone calls. Air quality and temperature is managed by a central air system. The prisoner may purchase fans from the unit's store, if necessary. A mat of compressed cotton or wool is given to us to sleep on. After three months, depending on prisoner's weight, the mattress compresses to a hard flat object that makes for uneasy sleeping. This mat may be exchanged after a one-year period.

Texas Death Row prisoners are allowed one visit per week. These visits are conducted with plexiglass and phone recievers. There is a big pane of glass between the parties and to hear each other, they must talk and listen through a telephone receiver. No physical contact. Whenever a prisoner in being escorted, whether to recreation, shower, medical or visit, two guards are doing the escorting and prisoner is always handcuffed. I now have scars and callous on my wrists where I have been handcuffed so many times. Prisoners request books from either the unit's library or Law Library. A list will be provided for titles or information in obtain certain literature. These are not big libraries but adequate for for the prisoner's general needs. It must be noted that upon a downgrade in classification status, regular library privileges will be forfeited. However, Law Library requests may still be conducted. Regular library requests are made on a one-to-two week intervals. Law Library requests are done three times per week, with only three material requests honored each time. This makes learning legal rules, guidelines and the law, in general, a slow and tedious process. All requests are made from the cell. Death Row prisoners do not visit the libraries.

Remember, I have been homeless. I would take the life and freedom of a homeless person over this type of existence, any day. For fear of repercussions, I will end here, but will answer personlized questions in the form of corresponding letters.

About Us
Evy and Bente
-TWO NORWEGIANS AGAINST THE DEATH PENALTY

Bente Hjortshoj

I am 44 years old, Danish of origin, but a resident of Norway since 1982 where I got married, had two children, now 21 and 18 years of age. I finished at the Teacher's College in 1987 and have since then been teaching English at a private high school called Aglo, north of Trondheim in Central Norway. In the year 2000, I finished my post-graduate studies in American history and politics at the University of Trondheim in Central Norway while teaching English full time. It was rewarding, educational and extremely interesting. In that connection my mentor asked what topic I would choose for my Master's Degree, and by then I just knew it somehow had to be about the use of the death penalty in the USA. I had been a member of Amnesty International for a while, and recently joined a Norwegian organization against the death penalty, NORAX. I received my first letter from Greg October 20, 2000. My intention, as well as NORAX', was to reach out to a fellow human being, to be a support in an inmate's daily ordeals. I never gave it any thought whether Greg might be guilty, it was not my job to judge or presume anything. So for the first year or so I did not ask him any questions about the case. Based on advice from NORAX, which unfortunately does not exist today, we were told to let the actual inmate decide whether he or she wanted to disclose any information. Besides, I knew the prison officials were scanning all letters, and might hold any information against him. However, had Greg at any time admitted or stated that he was guilty it would have made no difference. That is and never was any issue for me. I simply cannot support a system that kills to prove that killing is wrong. It is inhumane, to put it mildly. Not to mention the fact that it without any doubt has killed innocent people due to extreme flaws in the system, something that I deal with in my thesis; "The Exonerated".

Throughout the entire year I got the feeling that Greg was something out of the ordinary, extremely caring, intelligent and with a great sense of humor, something which I admired him for being in that position. He always asked about my kids, my students, my bad back, and I was impressed with his personality. He never asked for anything, not even money. He did not strike me as a hardened criminal, so I finally decided that I wanted to know the specifics about his case, guilty or not. He gave me the names and addresses of his lawyers, and I got the case files from them. That probably became the turning point in my interest since both the private investigator at that time, Tina Church, and his lawyers, Bruce Anton and Carrie Sperling, seemed to think he had a good case. I read the State's rejection of his first appeal, and later his application for relief with great interest. It is not something anybody can just read and understand just like that. I have, though I am a non-scholar in this field, due to my research in connection with my own thesis on the subject established some knowledge on the matter.

However, there were and still are many things I still not quite fathom. For instance, how is it possible for the State of Texas still to withhold material evidence from Greg and his lawyers? How could the State of Texas first convict Greg as the murderer, claiming among other things that he wore the bloody Umen jeans size 32, knowing full well he was a size 36, and then convict Adams with the exact same evidence, knowing he fit the trousers being a size 32? My problem is that I think as a European, but to understand the question I have to think as a Southerner, a Texan, and then it makes sense, sadly enough. The State of Texas will not admit any wrongdoings, perhaps it never will. Obviously John Wade Adams has a different version, just check out his web site. I do not blame him for that, if I were him I would fight for my life too. I do not want him dead; I just want justice for Greg, which ultimately includes a new but fair trial.

That is what this is all about. Greg was railroaded, and framed by his ex-friend, and subsequently I got more and more involved in his case, e-mailing his lawyers, looking into articles from Texan courts, checking out information on the Internet for him, for instance about his medical situation, and I kept in touch with one of the few people who actually visits him on a regular basis, a good decent Christian woman, whose name I will not reveal since I have not asked her permission. This past summer, July 3, my daughter Line, who was an au pair in Long Island at the time, and I visited Greg at Polunsky Unit, and luckily I actually met this amazing woman at the prison, and I am glad to say that she was everything I thought she was. She visits several inmates voluntarily. I got the opportunity to thank her for being there for Greg. I know he treasures her visits. It was both the worst and the best we have ever done. It was tough to see Greg being brought into that small visiting room like an animal in a cage, but we had a good time during our three-hour visit. We had prepared ourselves as well as we could for the emotional ordeal it would be to see Greg, and Greg was in fact what I had imagined he would be. You see, you do not really know what a person is like just based on three years of correspondence, or do you? We both felt deeply moved seeing him, and to be honest he handled the situation far more superb than we did. It was hard to see all the rows of inmates and their families, parted by a wall of glass and only a telephone at our disposal. I kept thinking as a European, and what our prisoners are allowed to. It almost broke our hearts saying goodbye, and we were happy that my distant cousin was waiting outside to take us back to Dallas. It felt good to talk to him about everything we had experienced. I kept thinking that whatever we must feel, it was still far worse for Greg, he was still stuck there.

A year ago I also started telling my adult students about Greg and his case, not just because of self-interest, but it is in fact on our English curriculum to learn about capital punishment, and what better way to inform them than from "real life"? One thing led to another, and soon they volunteered to send both letters and monetary gifts to help Greg. He was very happy to find out that so many cared about him and his situation. This is where my former student, Evy, comes in. She heard about him this last school year, and during that year she also wrote him a letter. All my students knew that I was going to see Greg during my vacation, and they all wanted to meet with me when I returned to hear all about it. There and then Evy decided that she wanted to help me out creating a web site to seek sponsors for Greg, and this is the result. She has the knowledge on the creation of such a web site, I had the personal knowledge about Greg and his case, and so it made sense to join forces. Together we ask for your help. Obviously he firstly needs money for his defense, secondly he needs money for items common and easily accessible for us, like paper, pens, and envelopes. They will enable him to keep in touch with family and friends, as well as his lawyers. Perhaps you will as well? October 16, 2003, a local paper interviewed my daughter Line and me in connection with our visit to Polunsky Unit, and Greg. I had together with my students and Evy in particular, found out that we wanted more people to know about the horrible conditions under which death row inmates live, and obviously to make them aware of the injustice of the system. We had decided to try to gather support for Greg and his case, something which both this article and web site are examples of.

Evy Lovtangen

I am just an average 25-year-old girl/woman who cares when justice has failed. Bente immediately got my attention when she introduced Greg's situation to me. I wrote him a long letter, asking him a lot of questions and telling him about my self and my life. Besides of writing letters to Greg and working on this web-site I am the mother of a six-year-old boy, and I am also a student at The Norwegian University of Nature-science and Technology (NTNU) where I am currently studying Biotechnology and English. I have not yet decided what to become when I grow up, but I am planning on taking nursery school this autumn due to the fact that I do have Paramedic education and would like to work as a nurse in an emergency room or in a paramedic unit. Time will show what I want to do with my life. The fact that I am in a situation where I can plan my life ahead and say thing like "time will show.." is something most of us take for granted. Of course we do. That is what we call freedom. Greg is one of the real poor people who have had that human right taken from him. He can not plan his life ahead, he does not even know if he has a life in a year, two years and so on. And why?; Because some attorney did not do his job. It is this kind of justice which has failed in this case. A man's fundamental human right of freedom is taken away from him. I really hope that you who read this think the same as I, and are willing to do something to help him out.

 
 

Wright v. State, 28 S.W.3d 526 (Tex.Crim.App. 2000.) (Direct Appeal).

Defendant was convicted in the trial court, Dallas County, Robert Francis, J., of capital murder, and he appealed. The Court of Criminal Appeals, Johnson, J., held that: (1) defendant failed to preserve alleged error or establish harm from alleged error in appointment of counsel; (2) defendant was not harmed by alleged error in attempted amendment of indictment or failure of trial court to grant 10-day continuance following amendment; (3) due process did not entitle defendant to additional time for experts to analyze state's deoxyribonucleic acid (DNA) evidence; (4) defendant's presence was not mandatory under Code of Criminal Procedure when judge excused juror; (5) defendant's rights were not violated by trial court's limiting of form of question in voir dire; (6) defendant did not establish that he was harmed by trial court's denial of challenges to two jurors for cause; and (7) testimony regarding conversation between accomplice and officer, in which accomplice stated defendant committed murder, was admissible. Affirmed.

JOHNSON, J., delivered the opinion of the Court, in which McCORMICK, P.J., and MEYERS, MANSFIELD, PRICE, HOLLAND, WOMACK and KEASLER, J.J., joined.

Appellant was convicted of capital murder in December 1997. tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial court sentenced him to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises sixteen points of error. Because he does not challenge the sufficiency of the evidence to support either his conviction or punishment, a statement of facts is not necessary. We affirm.

PRE-TRIAL ISSUES

In his second point of error, appellant complains that the trial court failed to comply with the selection process prescribed by Article 26.052 in appointing him a trial attorney and that he was thereby deprived of “qualified” trial counsel. Appellant also asserts that the legislature's use of the language “attorneys ‘qualified’ for appointment” in Article 26.052(d), necessarily means that the legislature intended for capital defendants to be appointed lawyers who would provide more than the “minimally ‘effective’ representation” required by the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant provides no support for this interpretation of the statute.

Article 26.052 generally provides that, in administrative judicial regions not served by a public defender's office, a local selection committee shall be created and shall adopt standards for the qualification of attorneys to be appointed to death penalty cases.FN2 We note that appellant points to no place in the record where he objected to the procedure used to appoint him counsel or to the qualifications of his counsel; thus, he failed to preserve this point for appellate review. tex.R.App. P. 33.1(a)(1); see also Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). However, because his complaint is that trial counsel was not qualified, in the interest of justice, we will review the point.

FN2. Art. 26.052. Appointment of Counsel in Death Penalty Case, Reimbursement of Investigative Expenses.(a) Notwithstanding any other provision of this chapter, this article establishes procedures in death penalty cases for appointment and payment of counsel to represent indigent defendants at trial and on direct appeal and to apply for writ of certiorari in the United States Supreme Court. (b) If a county is served by a public defender's office, trial counsel and counsel for direct appeal or to apply for a writ of certiorari may be appointed as provided by the guidelines established by the public defender's office. In all other cases in which the death penalty is sought, counsel shall be appointed as provided by this article. (c) A local selection committee is created in each administrative judicial region created under Section 74.042, Government Code. The administrative judge of the judicial region shall appoint the members of the committee. A committee shall have not less than four members, including: (1) the administrative judge of the judicial region;(2) at least one district judge;(3) a representative from the local bar association; and(4) at least one practitioner who is board certified by the State Bar of Texas in criminal law.(d) The committee shall adopt standards for the qualification of attorneys for appointment to death penalty cases. The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment. (e) The presiding judge of the district court in which a capital felony case is filed shall appoint counsel to represent an indigent defendant as soon as practicable after charges are filed, if the death penalty is sought in the case. The judge shall appoint lead trial counsel from the list of attorneys qualified for appointment. The judge shall appoint a second counsel to assist in the defense of the defendant, unless reasons against the appointment of two counsel are stated in the record.

Assuming, arguendo, that the statute was not adhered to, we consider whether appellant was harmed by the noncompliance. See Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). Appellant has made no claim of ineffective assistance of counsel nor has he pointed to any specific instances of misconduct. Further, our own reading of the record has not shown any obvious inadequacies in representation.FN3 Without harm, appellant cannot prevail on this point of error. Point of error two is overruled.

FN3. The record reveals that appellant's attorney filed numerous pre-trial motions, conducted voir dire, cross-examined the state's witnesses, made objections, and made arguments at both phases of trial.

Appellant asserts in his third point of error that the trial court erred by denying his motion to quash the indictment, contending that the instrument had been improperly amended without notice. In his fourth point of error, appellant asserts that the trial court erred in failing to give him a ten-day continuance because of the amendment, as required by Article 28.10.

The record reveals that on April 30, 1997, the state filed an indictment alleging that appellant murdered Donna Vick “on or about the 23 rd day of March A.D.1997....” On May 16 th, the state filed a motion to amend the indictment requesting that “21 st” be substituted for “23 rd.” The indictment was subsequently physically altered with the “23 rd” crossed out and “21 st” handwritten in and initialed.FN4 Voir dire began on August 25 th, and various panels were told that the crime occurred on or about March 21 st. Appellant did not appear to have recognized that the date had been changed until the last week of voir dire in early November. Approximately thirteen days after the conclusion of voir dire, appellant filed a motion to quash the indictment, claiming that he had not received notice of the amendment.

FN4. This was apparently done by the trial court, although the initials are not entirely clear.

At a hearing on the motion to quash, the prosecutor claimed that he had served the motion to amend the indictment on defense counsel shortly after the trial court had altered the date on the face of the indictment. Defense counsel denied ever receiving the document and urged that, even if he had received notice, service after amendment would have been improper under Article 28.10. The trial court denied appellant's motion.

Following a recess, the state noted that it had reviewed Article 28.10 and acknowledged that service after amending the indictment was a violation of the statute. Hence, the state conceded that the indictment had not been effectively amended. The state urged the trial court to disregard the amendment and proceed on the original indictment. Defense counsel responded that, properly or not, the indictment had been physically amended and it would take an additional amendment complying with the Article 28.10 procedures to effectively reinstate the original date on the document. Following Article 28.10, this amendment would then entitle appellant to a ten-day continuance before the start of trial.

The trial court again denied the motion to quash, but proclaimed that the attempted amendment from the date of the 23 rd to the date of the 21 st was not effective. However, the trial court refused to again physically alter the face of the indictment to remedy the ineffective amendment. The indictment was presented to the jury with the original language.FN5 The trial court denied appellant's request for a continuance under Article 28.10.

FN5. The jury charge also contained the date of March 23rd as originally returned in the indictment.

The thrust of appellant's argument is that because he was not properly notified of the amendment to the indictment, he was entitled to no less than a ten-day period to address the change and prepare for trial. We need not determine whether the amendment to the indictment was indeed effective or whether the trial court erred in denying appellant ten days to prepare for trial. Rather, we hold that appellant was not harmed by these events. See tex.R.App. P. 44.2; Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997).

It is well settled that the “on or about” language of an indictment allows the state to prove a date other than the one alleged as long as the date proven is anterior to the presentment of the indictment and within the statutory limitation period. See Art. 21.02(6); Sledge v. State, 953 S.W.2d 253, 255-56 (Tex.Crim.App.1997); Mitchell v. State, 168 Tex.Crim. 606, 330 S.W.2d 459, 462 (1959). There is no statute of limitations period for murder. See Art. 12.01(1). Hence, when appellant was indicted for murder, he was put on notice to prepare for proof that the crime happened any time before the presentment of the indictment. Sledge, supra; Thomas v. State, 753 S.W.2d 688, 693 (Tex.Crim.App.1988). Because both the original date and the date of the attempted amendment, which differed by two days, were prior to the presentment of the indictment, the indictment provided adequate notice for proof of either date.FN6 Id. Points of error three and four are overruled.

FN6. We note that the state filed the motion to amend the date on the indictment more than five months before trial on the merits began.

Appellant submits in his fifth point of error that the trial court erred in denying his motion for a continuance to afford his defense expert an opportunity to review DNA analyses recently developed by the state's experts. A motion for continuance is regulated by statute. See Art. 29.01, et. seq. Granting or denying such a motion is within the sound discretion of the trial court. See Art. 29.01, et. seq. ; Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). In order to establish an abuse of the trial court's discretion, an appellant must show that the denial of his motion resulted in actual prejudice. Janecka, 937 S.W.2d at 468.

Appellant correctly notes that the United States Supreme Court declared in Ake v. Oklahoma that due process requires that a defendant be given access to the raw materials integral to the building of an effective defense. Ake, 470 U.S. 68, 76-77, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985). This access includes the appointment of experts. Ake, supra. However, appellant does not claim that he was denied a necessary expert; rather, he argues that he should have been granted additional time for his expert to review the state's evidence. We do not agree. Although appellant knew early on that this case involved blood/DNA analysis, and, although he had ample opportunity, he did not request that a defense DNA expert be appointed until December 1, 1997, the first day of trial on the merits.

On September 29, 1997, the state tendered a number of documents to appellant pursuant to a standing discovery order. On this same day, appellant specifically asked the prosecutor about the DNA testing results and was informed that the report should be completed within the next two to three weeks. The prosecutor also told appellant that the person preparing the report and the other members of the staff at the laboratory where the tests were performed would be available for interviews with defense counsel and would go over any preliminary results of tests that they already had. Yet, appellant did not request a defense DNA expert.

On October 14, 1997, appellant received a preliminary written report on the DNA testing results and on November 11, 1997, he received a complete report. On November 25, 1997, the state informed appellant that it intended to have testing performed on the same evidence by a second laboratory and that the results of these retests would not be available until December 1, 1997. Despite receiving these reports and communications from the state about additional testing, appellant still did not file a motion to have a defense DNA expert appointed until December 1, 1997, when the trial court granted the motion in its entirety.

Although appellant contends that the denial of his motion for continuance resulted in an unfair trial, he does not establish that the court's refusal to give him additional time actually prejudiced him. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App.1995). Even if appellant could point to specific prejudice under this point of error, he would not now be allowed to profit from his own failure to act. Hence, appellant has failed to establish that the trial court abused its discretion in failing to grant his motion for continuance. Point of error five is overruled.

VOIR DIRE

In his eighth point of error, appellant asserts that the trial court should have held a hearing and allowed questioning by the parties before excusing juror Downey. Because the court failed to do this but, in fact, examined the circumstances and excused the juror in the absence of both appellant and the juror, appellant asserts that the trial court violated his right to be present during trial. See Article 33.03. Appellant does not complain of the excusal of juror Downey, only that appellant was denied a hearing and his right to be present at the hearing.

The record reveals that Downey was the second juror to be seated in appellant's case. On the first day of trial, but before the jury had been sworn in, the trial court informed the parties that Downey had called the court obviously upset and had explained that her mother had just died and that she was on her way to the funeral. Downey made it clear to the court that she was emotionally unable to proceed as a juror in the case. The state had no objection to seating the alternate as the twelfth juror in the case, but appellant objected that Downey had not been shown to be disqualified and, therefore, a hearing, in which appellant must be present, should be held. Nevertheless, the court excused Downey in absentia and seated the alternate juror in her stead.

The trial court has broad discretion to excuse prospective jurors for good reason. Butler v. State, 830 S.W.2d 125 (Tex.Crim.App.1992); Article 35.03. This authority continues even after an individual juror has been sworn and exists until the entire jury is empaneled and sworn. Fuentes v. State, 991 S.W.2d 267, 277-78 (Tex.Crim.App.1999); Kemp v. State, 846 S.W.2d 289, 295, n. 4 (Tex.Crim.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Accordingly, before the entire jury has been empaneled and sworn, the trial court may excuse a juror with or without the consent of the parties. Because the trial court has such broad discretion to excuse a juror, appellant was not entitled to a formal hearing, hence, appellant's presence is not mandatory pursuant to Article 33.03 (mandating that a defendant be present during trial and voir dire proceedings). See Adanandus v. State, 866 S.W.2d 210, 216-20 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994).

Although appellant does not complain of the excusal itself, we find that the trial court, after ascertaining that Downey was unable to proceed as a juror, did not abuse its discretion in excusing her. Point of error eight is overruled.

Appellant asserts in his eleventh and twelfth points of error that the trial court violated his federal and state constitutional rights by restricting his voir dire examination of venire member Zablosky.FN7 Specifically, appellant complains that he was prohibited from inquiring into whether Zablosky would automatically find that a person is a continuing threat to society simply because he was found guilty of capital murder. The exchange of which appellant complains follows:

FN7. Appellant contends that the trial court violated his right to effective assistance of counsel, his right against cruel and unusual punishment, and his rights to due process and due course of law.

[DEFENSE COUNSEL:] Let's talk about a situation where you have found the person on trial for capital murder guilty as charged. As you've been told, you then move over to these three questions. Now I-I read question 1, and sometimes I think that that's kind of a-an illogical question, because I almost feel like that if I've just found somebody- [THE PROSECUTOR:] Objection, Your Honor. Can we approach on this? (Off-the-record bench conference was had.)THE COURT: All right. Mr. Zablosky, if you would do me a favor and step out in the hall for just a minute. I'll bring you right back in. (Juror not present.) THE COURT: All right. The-we're outside the presence of the juror. [Defense Counsel], you may state your proposed question for the record. [DEFENSE COUNSEL:] My question was, is this-I look at question number 1, and I think that it might be illogical that if a person has just been convicted of a capital murder, some people would think that question 1 would automatically be answered yes. How do you feel about that? THE COURT: I sustain the State's objection to the form of that question. Defense counsel then moved on to other topics in the voir dire examination.

Appellant is correct in his assertion that it is a proper area of inquiry to ask a venire member whether a finding of guilty would automatically dictate a result in his mind as to the punishment questions. Howard v. State, 941 S.W.2d 102, 108-09 (Tex.Crim.App.1996); Ex parte McKay, 819 S.W.2d 478, 483 (Tex.Crim.App.1990). Further, a trial court would err if he refused to allow questions in a proper area of inquiry. Id. However, this is not the situation presented here.

In the exchange quoted above, appellant asked his question and the state made a general objection and asked to approach the bench. After a discussion outside the presence of the venire member, the trial court sustained the objection as to the form of the question. This ruling in no way prohibited appellant from attempting to rephrase his question and ask it again, thereby covering the desired topic with the venire member, but he did not.

As we stated in Howard, if the trial court merely limits a question due to its form, trial counsel must determine the basis of the limitation and attempt to fashion a query which complies with the perceived inadequacy. Howard, 941 S.W.2d at 110-11. Here, appellant made no attempt to determine the basis of the trial court's ruling and made no attempt to comply with that ruling. Although appellant is authorized to ask proper questions in a particular area of inquiry, he is not entitled to ask questions in any particular form. Id. Because appellant did not follow through on this topic, we cannot say that the trial court improperly restricted his voir dire of this venire member. Points of error eleven and twelve are overruled.

In points of error thirteen and fourteen, appellant complains that the trial court erred in denying his challenges for cause to two different venire members. To preserve error, an appellant must demonstrate on the record that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of venire member, that all of his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).

The record in the instant case shows that after the parties accepted the eleventh juror, appellant exhausted his fourteenth and fifteenth peremptory challenges. Appellant then requested and received two additional challenges. After using those challenges, appellant again requested additional challenges, but the request was denied. The twelfth juror was seated immediately thereafter over appellant's objection.

When the trial court errs in overruling a challenge for cause against a venire member, the defendant is harmed only if he uses a peremptory strike to remove the venire member and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). Because the record reflects that appellant received two extra strikes in addition to the fifteen he was granted by statute, he did not suffer the loss of two strikes. For appellant to demonstrate harm, and thereby reversible error, he must show that challenges for cause on at least three different venire members were erroneously denied. Penry v. State, 903 S.W.2d 715, 732 (Tex.Crim.App.1995), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex.Crim.App.1988), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994). Because appellant has asserted error as to only two venire members, he cannot show that he was harmed. Penry, supra. Points of error thirteen and fourteen are overruled.

GUILT/INNOCENCE PHASE OF TRIAL

Appellant complains in his first point of error that the trial court erred by admitting into evidence the testimony of Detective Dan Trippel detailing his conversation with “accomplice” John Adams, who did not testify.FN8 Appellant asserts that the evidence constituted hearsay and was the only direct evidence that appellant personally stabbed the victim. Appellant also asserts for the first time on appeal that the admission of this evidence deprived him of the opportunity to confront and cross-examine the witnesses against him. FN8. Appellant characterizes Adams as an “accomplice.”

Trippel testified on direct examination that, on the night of March 22, 1997, he was called to meet a man later identified as John Adams. Pursuant to what Adams told him, he went to another location where he found a car identified as belonging to the victim, Donna Vick. When Trippel requested that other officers check on Vick, they found her murdered in her residence. During cross-examination, defense counsel asked Trippel if Adams had claimed ownership of the knife used in the murder. Trippel responded that he had.

On redirect, the state attempted to elicit the remainder of that conversation, and appellant objected, claiming that the remainder of the conversation was inadmissible hearsay.FN9 In a hearing outside the jury's presence, the state asserted that the remainder of the conversation was admissible under the Rule of Optional Completeness.FN10 tex.R.Crim. Evid. 107.FN11 The trial court agreed and allowed the state to elicit the evidence before the jury over appellant's continued objection. FN12

FN9. Appellant also objected that the admission of this evidence violated Articles 38.22 and 38.23; however, he does not raise these issues on appeal, therefore we shall not address them.

FN10. The Rule of Optional Completeness states:When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. “Writing or recorded statement” includes depositions.

FN11. The Texas Rules of Criminal Evidence are now the Texas Rules of Evidence. FN12. The testimony elicited was as follows:[BY THE STATE:] Det. Trippel, I want to ask you about the conversation that you had with John Adams in which he stated that the knife had been used in the murder of Donna Vick. A. Yes, sir. * * * Q. [W]ould you please relate to the members of the jury the complete conversation that you had with John Adams while you were in the car there in Lancaster. A. After we contacted Lancaster Police Department and we asked DeSoto [Police Department] to check on Mrs. Vick, I had a conversation with John Adams. I wanted to know what he knew about this murder, what he had seen, and he told me that several days earlier, while he was on the street panhandling, [appellant] and Mrs. Vick, were riding in her white Chrysler New Yorker.

He stated that they picked him up and took him back to her home. While at home, Mrs. Vick had fixed [appellant] and John Adams some lunch, and while [appellant] and John Adams were eating, [appellant] told John Adams that he was going to rob Mrs. Vick, and he took the knife belonging to John Adams.John Adams said he didn't believe [appellant], but when Mrs. Vick went into the bedroom, [appellant] followed her into the bedroom. [Adams] said that while he was eating, he heard Miss [sic] Vick yelling, saying, [appellant], why are you doing this? John Adams said he got up and went into the bedroom, and when he went into the bedroom, he saw [appellant] stabbing Mrs. Vick on the bed.Of course, this is-this-he didn't know what to think of that, but after [appellant] was stabbing her, the knife broke; and that [appellant] went back into the kitchen and got a kitchen knife.[Appellant] went back into the bedroom and continued to stab Mrs. Vick, where he killed her.John Adams then said that [appellant] told him to get her property and that they took her TV, computer equipment, loaded it up in a white Chrysler New Yorker, and then they-they left the scene.

By the plain language of the rule, when part of a conversation is placed into evidence by one party, the other party can put the remainder of the conversation into evidence to explain the prior comments or otherwise make them fully understood. tex.R.Crim. Evid. 107; Washington v. State, 856 S.W.2d 184, 186 (Tex.Crim.App.1993). See also Kipp v. State, 876 S.W.2d 330, 340 n. 11 (Tex.Crim.App.1994). Given the circumstances in the instant case that John Adams' admission of ownership of the knife could have misled the jury about who was responsible for the killing, the trial court was within its discretion in determining that the evidence was admissible.

Appellant also complains under this point that the admission of this evidence violated appellant's right to confront the witnesses against him under the Sixth Amendment. At trial, appellant objected only on hearsay and Rule 107 grounds. Because he did not object to error under the Confrontation Clause, appellant waives this argument on appeal. Dewberry v. State, 4 S.W.3d 735, 752 & n. 16 (Tex.Crim.App.1999); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (stating that even constitutional error may be waived); Ex parte Crispen, 777 S.W.2d 103, 105 (Tex.Crim.App.1989). Point of error one is overruled.

Appellant alleges in his ninth point that the trial court erred by admitting into evidence the parties' oral stipulations regarding both the date of the indictment and various documents relating to John Adams without first obtaining and approving appellant's written consent to stipulate as required by Article 1.15. Appellant asserts that the record contains no written agreement to stipulate to this evidence, therefore, the trial court never signed an instrument officially approving the stipulation agreement. Appellant misapplies Article 1.15.

[26] Article 1.15 states: No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent [to stipulate] must be approved by the court in writing, and be filed in the file of the papers of the cause.

By its plain language, Article 1.15 applies only to cases in which a jury trial has been waived. See also McClain v. State, 730 S.W.2d 739, 742 (Tex.Crim.App.1987). Because appellant's case was tried by a jury, the requirements regarding stipulations of evidence found in Article 1.15 have no application here.FN13 McClain, 730 S.W.2d at 744, n. 1; Messer v. State, 729 S.W.2d 694, 699 (Tex.Crim.App.1986). Point of error nine is overruled.

FN13. We also note that Article 1.13(b) provides that defendants in a capital felony case in which the state seeks the death penalty cannot waive trial by jury.

PUNISHMENT PHASE OF TRIAL

Appellant asserts in his tenth point of error that the “12-10 Rule” of Article 37.071 §§ 2(d)(2) and 2(f)(2) is unconstitutional. We have previously addressed and rejected this contention. Appellant raises no new arguments here. Cantu v. State, 939 S.W.2d 627, 644 (Tex.Crim.App.), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). Point of error ten is overruled.

PAROLE LAW

In his sixth point of error, appellant claims that the trial court erred in denying his motion to present evidence on the law of minimum parole eligibility. In his seventh point, appellant asserts he should have been allowed to voir dire prospective jurors on this issue.

We have noted in a number of cases that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. Thus, we have held that it is not error for a trial court to refuse to allow voir dire or admit testimony concerning parole. See, e.g., Griffith v. State, 983 S.W.2d 282, 289 (Tex.Crim.App.1998). Points of error six and seven are overruled.

CUMULATIVE ERROR

Appellant asserts in his fifteenth and sixteenth points of error that the “cumulative effect” of all of the above errors denied him due process under the federal constitution and due course of law under the Texas constitution. A number of errors may be found harmful in their cumulative effect. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). However, such cumulative error has not been shown here. Points of error fifteen and sixteen are overruled.

Finding no reversible error, we affirm the judgment of the trial court. KELLER, J., concurred in the judgment.

 
 

United States Court of Appeals for the Fifth Circuit

470 F.3d 581

Gregory Edward Wright moves for a certificate of appealability ("COA") to appeal the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that reasonable jurists would find debatable whether: 1) his Confrontation Clause claim is procedurally barred; 2) he received ineffective assistance of counsel at trial; and 3) the state suppressed evidence in violation of the Fourteenth Amendment and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

I

* The evidence at trial established that Donna Vick was stabbed to death in her home in DeSoto, Texas, in the early hours of March 21, 1997. Wright, who had been staying with Vick in her home, was seen with her at a VFW lodge on the night before the murder.

Around 4:00 a.m. the next morning, Wright and his friend, John Adams, drove Vick's car to purchase crack cocaine from a drug dealer who was staying at Llewelyn Mosley's home. Mosley testified that Adams and Wright arrived at his house on the night of the murder and told him that they had some things from a woman in DeSoto that they wanted to get rid of, including a television, a weed eater, a rifle, a color printer, and a microwave.

Several of these items were later identified as belonging to Vick. Wright negotiated with the dealer. After exchanging some of the items, Wright and Adams appeared cheerful and exchanged "high fives."

The next day, Adams asked Daniel McGaughey, an employee at a video store, to call the police because he wanted to turn himself in. Adams directed the police to Vick's house and assisted in recovering her car. DNA testing revealed that blood found on the steering wheel belonged to Wright. At the house, the police found Vick's body on her bed and Wright's bloody fingerprint on her pillowcase. In a trash can, the police found a handwritten note reading, "Do you want to do it?"

Adams also led the police to a shack that Wright sometimes stayed in, where they arrested Wright and seized a bloody and gold-paint splattered pair of blue jeans. Outside the shack, the police found a bloody knife. DNA evidence established that the blood on the knife and jeans was Vick's.

Several cans of gold spray paint were found in Wright's home, and witnesses testified that Wright had previously been seen with gold paint on his face and clothes. A police officer testified that he had known people to inhale spray paint to get high. The police also found mail addressed to Adams at the shack. After Wright was arrested, he phoned a friend from jail and asked her to remove any of his clothing from the shack.

Adams also led the police to a knife in a vacant lot near Mosley's home. DNA testing revealed that the knife had Vick's blood on it. A medical examiner testified that Vick could have been stabbed by more than one knife.

At trial, the prosecution argued that both Adams and Wright attacked Vick.1 The court instructed the jury that it could convict Wright only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability.2 The jury found Wright guilty, and he was sentenced to death.

Wright's conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals ("TCCA"). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State's proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court's findings of fact and conclusions of law and denied relief.

Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright's claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge's recommendation and denied the petition.

II

We issue a certificate of appealability only when the movant has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires him to "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id.

The movant's arguments "must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1)." Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)'s deferential standard of review when ruling on motion for COA). A federal court may not issue a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).

A state court's decision is contrary to clearly established federal law if the court either: 1) arrived at a conclusion of law opposite that reached by the Supreme Court; or 2) arrived at a result opposite that of the Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an unreasonable application of clearly established federal law if the state court derives the correct legal principle from Supreme Court decisions but applies that principle in an objectively unreasonable manner. Id. at 409, 120 S.Ct. 1495.

* Wright argues that his Sixth Amendment right to confront witnesses against him was violated when the trial court admitted into evidence the testimony of Detective Dan Trippel. On direct examination by the prosecution, Trippel described a conversation he had with Adams, who did not testify. Trippel testified that he discovered Vick's body after meeting with Adams.

On cross examination, Wright elicited testimony from Trippel that Adams claimed that he owned one of the knives used in the murder. On redirect, Trippel testified that Adams told him that Wright used Adams's knife to stab Vick. Wright made a hearsay objection.

The prosecution responded that the testimony was admissible under the rule of optional completeness. See TEX.R. EVID. 107 ("When part of a ... conversation ... is given in evidence by one party, the whole on the same subject may be inquired into by the other ....").

Under the rule of optional completeness, hearsay is admissible when it serves to clarify other hearsay evidence elicited by the opposing party. Bunton v. State, 136 S.W.3d 355, 367 (Tex.App.—Austin 2004, pet. ref'd). The prosecution argued that if the jury only heard that Adams admitted that he owned one of the murder weapons, it might be left with the mistaken impression that Adams confessed to Trippel that he had killed Vick. Wright responded that the rule was inapplicable because the jury had not been given a false impression. Wright did not argue to the trial court that the Sixth Amendment prohibited admission of this testimony.

On direct appeal, Wright argued that the admission of Trippel's testimony violated Texas evidentiary rules3 and the Confrontation Clause. The TCCA deemed Wright's Confrontation Clause argument waived because his objection based on hearsay did not alert the trial court to the federal nature of his claim. Wright, 28 S.W.3d at 536; see TEX.R.App. P. 33.1(a)(1)(A) (stating that to preserve error for appeal, appellant must have objected with sufficient specificity to make trial court "aware of the complaint, unless the specific grounds were apparent from the context"). On subsequent habeas review, the district court consequently deemed Wright's Confrontation Clause claim procedurally defaulted. Wright, 2004 WL 438941, at *6.

A federal court may not grant a petition for a writ of habeas corpus where the state court expressly denied the claim based on an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).4 To be adequate, a state rule must be "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); see Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964); N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288, 295-301, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).

It is the petitioner's burden to demonstrate that the procedural bar is not regularly applied, Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997), or that the rule was exorbitantly applied under the circumstances of the case, Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002).

We review the adequacy of a state law used to preclude federal habeas review de novo. Rosales v. Dretke, 444 F.3d 703, 707 (5th Cir.2006). Wright argues that his objection based on a Texas state evidentiary rule was sufficient under Texas law to preserve his Confrontation Clause claim and that the TCCA's decision is therefore not an adequate procedural bar.

Wright's argument is contrary to Texas law, which generally requires a defendant to make a specific Confrontation Clause objection to preserve such an error. In support of its ruling that a hearsay objection does not generally preserve a Confrontation Clause claim, the TCCA relied on Dewberry v. State, 4 S.W.3d 735, 752 n. 16 (Tex.Crim.App.1999). Wright, 28 S.W.3d at 536. Although Dewberry was decided after Wright's 1997 trial, the TCCA had applied the same rule as early as 1991 in Holland v. State, 802 S.W.2d 696 (Tex.Crim.App.1991).

Holland objected to the admission of testimony concerning an out-of-court statement on the ground of hearsay. Id. at 700. He did not object that admission of the evidence violated the Confrontation Clause. Id. The TCCA held that the federal constitutional claim was not preserved for review. Id. Texas courts have frequently held, both before5 and after6 Wright's trial, that where it is not clear from the context of the trial that the defendant was raising a Confrontation Clause claim, a hearsay objection does not preserve the federal constitutional error.

The cases Wright cites are not to the contrary. None addresses the specific question of under what circumstances a hearsay objection is sufficient to preserve a Confrontation Clause claim. Wright primarily relies on Kittelson v. Dretke, 426 F.3d 306 (5th Cir.2005), in which we held that the petitioner's Confrontation Clause claim was exhausted when it had been fairly presented in a state petition for a writ of habeas corpus.

Because no state court held that Kittelson's claim was barred by a state procedural rule, id. at 316 (noting that state court did not rely on procedural rule in disposing of Kittelson's claim), we did not address whether Texas courts consistently held that hearsay objections generally did not preserve Confrontation Clause claims. Kittelson, therefore, does not control this case.7

Wright also cites several cases applying Texas's statutory exception to the hearsay rule for statements made by child abuse victims. See TEX.CODE CRIM. PROC. ART. 38.072. In Lankston v. State, 827 S.W.2d 907 (Tex.Crim.App.1992) (Benavides, J.), for example, the defendant lodged a hearsay objection to the testimony of an adult to whom the alleged child victim of sexual assault had reported the crime. Such testimony is admissible under the statute so long as the prosecution provided the defendant with a written summary of the statement prior to trial. Id. at 909; see TEX.CODE CRIM. PROC. ART. 38.072, § 2(b).

The TCCA held that a hearsay objection is sufficient to preserve a claim that the proffered testimony fell outside the written summary where it is clear from the transcript that the trial court understood the basis for the objection. Lankston, 827 S.W.2d at 910-11; see Heidelberg v. State, 144 S.W.3d 535, 539 (Tex.Crim.App.2004) (distinguishing Lankston on the ground that the record "clearly showed that all parties knew the nature of the objection"). The TCCA did not consider in what context a hearsay objection was sufficient to preserve a Confrontation Clause claim.

Similarly, in Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.—Waco 1998, no pet.), the prosecution presented testimony under the same statutory exception to the hearsay rule. The defendant made a hearsay objection on the ground that the prosecution failed to provide notice of its intent to introduce certain testimony concerning a child victim's outcry statements. Id. at 718.

The court of appeals held that the objection was sufficient to preserve the error because "after a hearsay objection is made, the State has the burden to show it has complied with all the requirements" of the statute. Id. at 719. Because Wright's trial did not concern application of Texas's statutory child-victim outcry exception to the hearsay rule, Gabriel is not contrary to the TCCA's decision in Wright's case.8

We therefore conclude it is not debatable amongst jurists of reason that the Texas court's application of the contemporaneous objection rule constitutes an adequate and independent procedural bar to Wright's Confrontation Clause claim.

B

Wright argues that he received ineffective assistance of trial counsel. We evaluate such claims under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a petitioner must establish that his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687, 104 S.Ct. 2052. Prejudice results when there is a reasonable probability that the result of the proceeding would have been different absent the error. Id. at 695, 104 S.Ct. 2052.

Wright claims that his trial counsel was ineffective for failing to make a Confrontation Clause objection to the admission of Adams's hearsay statement. As noted, that statement was in sum that Wright used Adams's knife to kill Vick. Wright argues that Adams's hearsay statement was critical because the jury was not instructed on a law of the parties theory of liability. The jury therefore had to find that Wright personally attacked Vick. Wright argues that Adams's hearsay statement that he gave his knife to Wright therefore substantially bolstered the prosecution's case.

The Texas habeas court held that the decision not to make a Confrontation Clause objection was the result of a considered trial strategy on the part of Wright's trial counsel. The court held that it was "reasonable to speculate" that defense counsel "realized that they could not vouch for the reliability of the statements [that Adams owned the murder weapon] and then object to the introduction of the remainder of the statements under the confrontation clause."

The district court did not address this ground for the Texas court's decision.9 The district court instead reasoned that the state court could reasonably have concluded that Wright could not establish that he was prejudiced by his counsel's failure to make a Confrontation Clause objection due to the overwhelming evidence establishing that Wright murdered Vick. Wright, 2004 WL 438941, at *23.

In light of AEDPA's deferential standard of review, we decline to grant a COA on this issue because, assuming arguendo that the objection would have been sustained and the testimony excluded, it is not debatable amongst jurists of reason that the state court could have reasonably concluded that Wright cannot demonstrate that he was prejudiced by his counsel's failure to object.

First, in its closing statement, the prosecution did not rely on Adams's hearsay statement that he gave one of the murder weapons to Wright. Second, and more significantly, there was overwhelming evidence establishing that Wright personally, and most likely in conjunction with Adams, attacked Vick. At the scene of the crime, the police found Wright's bloody fingerprint next to the body and his blood on a towel. Immediately following Vick's death, Wright was seen driving Vick's car and trading her belongings for drugs. His blood was found on the steering wheel. At Wright's shack, the police recovered a pair of blue jeans with gold paint10 and Vick's bloodstains in Wright's shack. Wright was a known inhaler of gold spray paint. Finally, the police recovered two knives with Vick's blood, one from near Wright's shack.

C

Finally, Wright argues that the prosecution suppressed the following evidence in violation of the Fourteenth Amendment and Brady v. Maryland: 1) that the State had agreed not to prosecute Llewellyn Mosley in exchange for his testimony; 2) that Adams had confessed to the murder to Jerry Causey at Mosley's house; 3) the tape of the 911 call Daniel McGaughey made reporting that Adams wanted to turn himself in; 4) police notes recording a statement by Daniel McGaughey to the police concerning Adams; and 5) evidence that the police found papers belonging to Adams in the shack.

The district court rejected each of these claims on several grounds. The court first noted that Wright had procedurally defaulted his Brady claims. Wright, 2004 WL 438941, at *6. Despite holding that these claims were procedurally defaulted, the district court proceeded to consider and reject them on their merits. Id. at *16-*20. The district court held that Wright failed to establish that the prosecution suppressed any agreement with Mosley, Adams's confession to Causey, the 911 tape, or Adams's papers. Id. In the alternative, the court held that none of this evidence was material. Id.

* Wright does not dispute that his Brady claims are procedurally defaulted. He argues, however, that we should nevertheless consider the merits of these claims because he is actually innocent of the crime. See House v. Bell, ___ U.S. ___, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

To establish actual innocence under Schlup, Wright must demonstrate that in light of all the evidence, including that "tenably claimed to have been wrongly excluded or to have become available only after trial," id. at 328, 115 S.Ct. 851, "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt," id. at 327, 115 S.Ct. 851.

The district court summarized Wright's evidence of actual innocence as follows:

1) exculpatory scientific evidence regarding the bloody fingerprint found at the crime scene; 2) affidavits from Petitioner's two defense attorneys averring that the jeans that the State contended that Petitioner wore when he murdered the victim were in actuality too small for him; 3) an affidavit from Daniel McGaughey, who was "hidden" from the defense; 4) an affidavit from Jerry Causey, a man to whom co-defendant Adams allegedly confessed; 5) an affidavit from another inmate to whom Adams allegedly confessed; and 6) testimony from Adams' subsequent capital murder trial which undermines the testimony of State's witness Llewellyn Mosley.

Wright, 2004 WL 438941, at *7.

The district court held that this evidence did not satisfy the Schlup standard. Id. at *9. In particular, it noted that although much of this evidence was "newly presented," most of it was available at the time of trial. Id. at *7-*8. The affidavits from Wright's defense attorneys regarding the size of the bloody jeans was not new because those attorneys had made the same argument to the jury in their closing statements. Id. at *7.

The affidavit of Daniel McGaughey, who called 911 on Adams's behalf, did not differ from statements McGaughey made to the police that were disclosed. Id. at *8. And there was simply no evidence, new or old, that undermined Mosley's testimony. Id. The district court found the remaining evidence insufficiently persuasive to meet the Schlup standard. Id. at *9.

In this motion, Wright argues that the district court erred in requiring him to present "new" evidence. The courts of appeals disagree as to whether Schlup requires "newly discovered" evidence or merely "newly presented" evidence. Compare Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir.2005) ("Evidence is only new if it was `not available at trial and could not have been discovered earlier through the exercise of due diligence.'" (quoting Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001))), and Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.2004) (requiring new evidence that was not available at the time of trial), with Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir.2003) ("All Schlup requires is that the new evidence is reliable and that it was not presented at trial."), and Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003) (requiring "newly presented," not newly available evidence).

Neither party cites controlling case law from this court. We, however, need not address this circuit split or determine whether Wright has established actual innocence because he has not demonstrated that jurists of reason would find the merits of his Brady claims debatable. Cf. Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998) (assuming arguendo that petitioner had satisfied Schlup and considering claim on the merits)

2

The suppression of evidence favorable to the accused violates due process where that evidence is material to guilt or punishment. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This duty to disclose extends to both impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence is suppressed when the prosecution fails to disclose it even when it is known only to police investigators but not the prosecutor. Kyles, 514 U.S. at 438, 115 S.Ct. 1555. Evidence is "material" when its suppression creates a reasonable probability of a different result. Id. at 433, 115 S.Ct. 1555. The materiality of all suppressed evidence must be considered cumulatively. Id. at 437, 115 S.Ct. 1555.

Assuming Wright's Brady claims are not procedurally defaulted, a federal court must apply a de novo standard of review. Solis v. Cockrell, 342 F.3d 392, 394 (5th Cir.2003) (holding that review is de novo where there has been no adjudication on the merits in state court); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003) (same); Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000) (same); Miller v. Johnson, 200 F.3d 274, 281 n. 4 (5th Cir.2000) (same).

The district court held that Wright had failed to establish that the State suppressed evidence of an agreement not to prosecute Mosley, that Adams confessed to Jerry Causey, that the police found letters addressed to Adams in the shack, or the tape of the 911 call by Daniel McGaughey reporting Adams's desire to turn himself in. Wright does not argue that the district court's findings or conclusions of law with respect to whether the State suppressed this evidence are in error. He has therefore failed to establish that the district court's resolution of these claims is reasonably debatable.

Wright does argue that the prosecution failed to disclose timely a police note made during an interview with Daniel McGaughey. McGaughey was working at a video store when Adams informed him that he wanted to turn himself in. According to the police note, McGaughey told police that Adams stated, "I murdered someone in DeSoto and I can't deal with it." The prosecution did not disclose this note until after Wright's trial began.11

Although the prosecution's disclosure of this note was delayed, Wright conceded in his petition for habeas corpus that he was timely provided with the following nearly identical written statement by McGaughey:

At about 7:00 pm on Saturday March 22nd, a man came and asked me to call the police. I asked why and he told me there was a murder and he wanted to turn himself in. I asked him where this murder took place and he got real angry. He told me it took place in DeSoto and and [sic] could not live with himself any longer to call the police give them his description and he would be out by the curb.

The district court held that the suppressed note was not material. Wright, 2004 WL 438941, at *19. We hold that this conclusion is not reasonably debatable. The allegedly suppressed note is merely an abbreviated version of the more complete and lengthy account of Adams's confession that Wright timely received. Wright fails to explain what additional use he could have made of a second document containing the same statement McGaughey gave to the police.

III

For the foregoing reasons, we DENY Wright's motion for a COA.

*****

Notes:

1

(R. 44, 76.) Wright contends that during the sentencing phase of the proceeding, the prosecution argued that he acted alone. But the portion of the transcript he cites in support of that proposition, (R. 51, 17.), is his own attorney's argument. The prosecution did submit testimony relaying Adams's statement to police that Wright alone killed Vick, but the prosecution did not argue that this portion of Adams's statement was credible. We therefore find no support in the record for Wright's contention that the prosecution argued that Wright alone committed the offense

2

During closing arguments, the prosecutor repeatedly attempted to argue that Wright could be found guilty as an accomplice. Wright's counsel objected each time, and the court sustained the objection. In his closing argument, Wright's attorney argued to the jury that the charge did not permit conviction merely based on a finding that "[Wright] is a party to this."

3

To the extent that Wright now argues that the Texas courts misapplied the rule of optional completeness, we note that violations of state law are generally not cognizable on habeas review unless they render the trial fundamentally unfairHughes v. Dretke, 412 F.3d 582, 591 (5th Cir.2005).

4

An exception to this doctrine exists where the petitioner demonstrates either cause for the default and actual prejudice as a result of the alleged violation of federal law or that failing to consider his claim will yield a fundamental "miscarriage of justice."Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Wright has not attempted to make such a showing in his brief in this court, and any such argument is now considered waived. Nixon v. Epps, 405 F.3d 318, 323 (5th Cir.2005) (citations omitted).

5

See Cantu v. State, 939 S.W.2d 627, 634 (Tex.Crim.App.1997); Fultz v. State, 940 S.W.2d 758, 760-61 (Tex.App.—Texarkana 1997, pet. ref'd); Judd v. State, 923 S.W.2d 135, 139 (Tex.App.—Fort Worth 1996, pet. ref'd); Tapia v. State, 933 S.W.2d 631, 633 (Tex.App.—Dallas 1996, pet. ref'd); Ward v. State, 910 S.W.2d 1, 4 (Tex.App.—Tyler 1995, pet. ref'd); Cofield v. State, 857 S.W.2d 798, 804 (Tex.App.—Corpus Christi 1993), aff'd, 891 S.W.2d 952 (Tex.Crim.App.1994); Garza v. State, 828 S.W.2d 432, 435 (Tex.App.—Austin 1992, pet. ref'd); Rodriguez v. State, 1997 WL 666949, at *2 (Tex.App.—Houston [1st Dist.] Oct. 9, 1997, no pet.); In Matter of M.G., 04-95-00752-CV, 1996 WL 721951, at *2 n. 2 (Tex.App.—San Antonio Dec.11, 1996, no pet.).

6

See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App.2004); Eustis v. State, 191 S.W.3d 879, 885-86 (Tex.App.—Houston [14th Dist.] 2006, no pet.); Neal v. State, 186 S.W.3d 690, 692 (Tex.App.—Dallas 2006, no pet.); Campos v. State, 186 S.W.3d 93, 98 (Tex.App.—Houston [1st Dist.] 2005, no pet.); Tatum v. State, 166 S.W.3d 362, 364 (Tex.App.—Fort Worth 2005, pet. ref'd); Bunton, 136 S.W.3d at 368; Thacker v. State, 999 S.W.2d 56, 61 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd); Thornton v. State, 994 S.W.2d 845, 853-54 (Tex.App.—Fort Worth 1999, pet. ref'd); McCleod v. State, 05-04-01331-CR, 2005 WL 3369150, at *4 (Tex. App.-Dallas Dec.12, 2005, no pet.); Rios v. State, ___ S.W.3d ___, 2005 WL 3077220, at *2-*3 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd, untimely filed); Guillory v. State, 2005 WL 2670938, at *5 (Tex.App.—Houston [1st Dist.] Oct. 20, 2005, pet. ref'd); Cox v. State, 12-03-00384-CR, 2005 WL 2035863, at *2 (Tex.App.—Tyler Aug.24, 2005, no pet.); Gray v. State, 05-04-01269-CR, 2005 WL 1670715, at *8 (Tex.App.—Dallas July 19, 2005, no pet.); Cantrell v. State, 2-04-029-CR, 2005 WL 1542663, at *1-3 (Tex.App.—Fort Worth June 30, 2005, pet. ref'd); Blay v. State, 2-04-346-CR, 2005 WL 1186293, at *1 (Tex.App.—Fort Worth May 19, 2005, no pet.); Hughes v. State, 2004 WL 2108288, at *4 (Tex.App.—Houston [14th Dist.] Sept. 23, 2004, no pet.); Cooke v. State, 12-03-00183-CR, 2004 WL 1253306, at *2 (Tex.App.—Tyler June 9, 2004, no pet.); Davila v. State, 05-03-00689-CR, 2004 WL 1173395, at *5 (Tex. App.—Dallas May 27, 2004, no pet.).

7

Hutchins v. Wainwright, 715 F.2d 512, 518 (11th Cir.1983), upon which Wright also relies, similarly concerns whether a claim was presented to the state court for purposes of exhaustion.

8

The remaining state court cases Wright cites are not on pointCofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App.1994), stands for the proposition that a hearsay objection is sufficient to preserve a claim that an exception to the hearsay prohibition did not apply. Samuel v. State, 688 S.W.2d 492, 495-96 (Tex.Crim. App.1985), holds that an objection to the introduction of "statements made after [the defendant] was under arrest" preserves a claim under Texas state law prohibiting the introduction of statements made by a defendant while he was being detained by non-state actors. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977), holds that an objection that evidence of a prior conviction was improper because it was not yet final preserves the issue of whether the probationary period of the prior conviction had expired. Coleman v. State, 644 S.W.2d 116, 119 (Tex.App.— Austin 1982, pet. ref'd), concerns the adequacy of an objection to the prosecution's comment on the defendant's post-arrest silence where the context of the objection made clear the nature of the objection. See Heidelberg, 144 S.W.3d at 540 (distinguishing Coleman on the ground that the basis for Coleman's objection was clear).

Finally, the federal cases Wright cites do not apply Texas's procedural rules and instead concern: 1) whether a claim was presented to a state court for purposes of Supreme Court appellate jurisdiction, Lilly v. Virginia, 527 U.S. 116, 123, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); or 2) whether a state court's clearly erroneous ruling that no objection whatsoever had been made is an adequate bar to federal review, Douglas v. State of Alabama, 380 U.S. 415, 422-23, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

9

In applying the "unreasonable application" test of 28 U.S.C. § 2254(d), a federal court reviews only the state court's ultimate decision that the petitioner is not entitled to relief, not the state court's reasoningNeal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc).

10

Wright submitted an affidavit to the district court from his state trial attorney, which states that the jeans were too small for Wright. Wright's attorney used the jeans for demonstrative purposes while presenting this argument to the jury. The jury could infer, however, that the gold spray paint sufficiently linked the jeans to Wright, a known user of spray paint as an inhalant

11

So long as the defendant receives the evidence in time for its effective use at trial, the Due Process Clause is not violatedUnited States v. Walters, 351 F.3d 159, 169 (5th Cir. 2003) (collecting cases). Although Wright received this evidence during the course of the trial and appears to have had the opportunity to put it to use, the State does not dispute that the evidence was suppressed.

 

 

 
 
 
 
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