nugent amicus brief

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No. WR-81,532-01 ___________________________________________________ IN THE TEXAS COURT OF CRIMINAL APPEALS ___________________________________________________ EX PARTE BERNHARDT TIEDE II ___________________________________________________ On Application for Writ of Habeas Corpus from the 123rd Judicial District Court of Panola County, Texas Cause No. 1997-C-103-A ___________________________________________________ BRIEF OF AMICUS CURIAE FAMILY OF MARJORIE NUGENT ___________________________________________________ Charles “Chad” Baruch Texas Bar Number 01864300 LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028 E-mail: [email protected] Counsel for Amicus Curiae Family of Marjorie Nugent

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Page 1: Nugent Amicus Brief

No. WR-81,532-01 ___________________________________________________

IN THE TEXAS COURT OF CRIMINAL APPEALS

___________________________________________________

EX PARTE BERNHARDT TIEDE II

___________________________________________________

On Application for Writ of Habeas Corpus from the 123rd Judicial District Court of Panola County, Texas

Cause No. 1997-C-103-A

___________________________________________________

BRIEF OF AMICUS CURIAE FAMILY OF MARJORIE NUGENT

___________________________________________________

Charles “Chad” Baruch Texas Bar Number 01864300

LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028

E-mail: [email protected] Counsel for Amicus Curiae Family of Marjorie Nugent

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IDENTITY OF PARTIES AND COUNSEL

Applicant Bernhardt Tiede II Jodi Calloway Cole David A. Schulman Texas Bar Number 24045602 Texas Bar Number 17833400 LAW OFFICE OF JODI CALLOWAY COLE Post Office Box 783 502 West 30th Street Austin, Texas 78767 Austin, Texas 78705 John G. Jasuta Texas Bar Number 10592300 Post Office Box 783 Austin, Texas 78767 The State of Texas Danny Buck Davidson Texas Bar Number 05430800 CRIMINAL DISTRICT ATTORNEY, PANOLA COUNTY Panola County Justice Center 108 South Sycamore, Room 301 Carthage, Texas 75633 Amicus Curiae Family of Marjorie Nugent (Dr. Rod Nugent, Alexandria Lynn Nugent, Susan Nugent Jenull, Shanna Nugent Cobbs, and Mathew Tod Nugent) Charles “Chad” Baruch Texas Bar Number 01864300 THE LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS ......................................................................................... ii

INDEX OF AUTHORITIES ................................................................................... iv

INTEREST OF AMICUS CURIAE........................................................................ vi

STATEMENT OF THE CASE ............................................................................... vi

STATEMENT OF JURISDICTION ....................................................................... vi

ISSUES PRESENTED ........................................................................................... vii

STATEMENT OF FACTS........................................................................................1

SUMMARY OF THE ARGUMENT........................................................................6

ARGUMENT.............................................................................................................8

1. Tiede’s “new” evidence isn’t new; he knew about it at the time of trial—and even testified contrary to some of it...............................................8

A. Tiede’s first issue, based on “newly available evidence,” fails to state a proper basis for relief.....................................................................8

B. Tiede’s second issue, based on “false” evidence, fails to state a proper basis for relief .............................................................................8

2. Tiede cannot obtain relief under either issue because nothing suggests the outcome would have been different with the “new” evidence ..................8

CONCLUSION .......................................................................................................25

CERTIFICATE OF COMPLIANCE.......................................................................26

CERTIFICATE OF SERVICE................................................................................26

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INDEX OF AUTHORITIES

Cases

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) ............................................................ 14

Guzman v. State,

955 S.W.2d 85 (Tex. Crim. App. 1997) .............................................................. 14 Ex parte Beck,

922 S.W.2d 181 (Tex. Crim. App. 1996) (per curiam) ....................................... 15 Ex parte Briggs,

187 S.W.3d 458 (Tex. Crim. App. 2005) ............................................................ 18 Ex parte Brown,

205 S.W.3d 539 (Tex. Crim. App. 2006) ...................................................... 16, 17 Ex parte Calderon,

309 S.W.3d 64 (Tex. Crim. App. 2010) .............................................................. 18 Ex parte Chavez,

213 S.W.3d 320 (Tex. Crim. App. 2006) ................................................ 16, 23, 24 Ex parte Chavez,

371 S.W.3d 200 (Tex. Crim. App. 2012) ................................................ 24, 25, 26 Ex parte Martin,

6 S.W.3d 524 (Tex. Crim. App. 1999) ................................................................ 14 Ex parte McCain,

67 S.W.3d 204 (Tex. Crim. App. 2002) .............................................................. 15 Ex parte McIver,

586 S.W.2d 851 (Tex. Crim. App. 1979) ............................................................ 15 Ex parte Robbins,

360 S.W.3d 446 (Tex. Crim. App. 2011) .......................................... 14, 16, 20, 21

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Ex parte Zapata, 235 S.W.3d 794 (Tex. Crim. App. 2007) (per curiam) ....................................... 18

Mizell v. State,

119 S.W.3d 804 (Tex. Crim. App. 2003) ............................................................ 15 Potier v. State,

68 S.W.3d 657 (Tex. Crim. App. 2002) ................................................................ 6 Tiede v. State,

104 S.W.3d 552 (Tex. App.—Tyler 2000)............................................................ 6 Tiede v. State,

76 S.W.3d 13 (Tex. Crim. App. 2002) .................................................................. 6 Tiede v. State,

No. 12-99-00182-CR, 2002 WL 31618281 (Tex. App.—Tyler Nov. 20, 2002, pet. ref’d) (not designated for publication)............................................... 6,7

Vasquez v. State,

No. 05-13-00347-CR, 2014 WL 1413898 (Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for publication) .................................. 24

Statutes

37 TEX. ADMIN. CODE. § 143.52 (2014) (Tex. Board of Pardons and Paroles) ......16

TEX. PEN. CODE ANN. § 19.02(d) (West 2011)..................................................26, 27

TEX. CIV. PRAC. & REM. CODE § 16.001 (West 2012) ............................................20

TEX. CODE. CRIM. PROC. ANN. § 11.07 (West Supp. 2013) ......................................v

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INTEREST OF AMICUS CURIAE

Amicus Curiae—Dr. Rod Nugent, Alexandria Lynn Nugent, Susan

Nugent Jenull, Shanna Nugent Cobbs, and Mathew Tod Nugent—are the

only child and four grandchildren of the victim, Marjorie Nugent. No

counsel for a party wrote this brief in whole or in part. Neither the parties

nor their counsel made any monetary contribution to fund the preparation or

submission of this brief. Amicus Curiae paid the undersigned counsel to

prepare this brief.

STATEMENT OF THE CASE

Nature of the Case: Habeas proceeding arising from conviction and life sentence for murder.

Trial Court and Judge: Hon. Diane V. DeVasto, sitting by

assignment to the 123rd Judicial District Court, Panola County, Texas.

Disposition: Recommendation that new punishment

hearing be granted.

STATEMENT OF JURISDICTION

The Texas Court of Criminal Appeals has jurisdiction because this is

an application for habeas corpus relief under state law. TEX. CODE. CRIM.

PROC. ANN. § 11.07 (West Supp. 2013).

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ISSUES PRESENTED

1. Whether Tiede is entitled to habeas corpus relief based on his

claim of newly available evidence where that newly available evidence rests

entirely on facts known to him at the time of trial—and which he chose to

conceal.

2. Whether Tiede is entitled to habeas corpus relief based on his

claim of conviction on false evidence where any misinformation received by

the jury was entirely Tiede’s fault, and he could have corrected the

misinformation without imperiling his privilege against self-incrimination.

3. Whether Tiede is entitled to habeas corpus relief based on either

claim where reams of evidence support the jury’s sentence and suggest

nothing would have been different even with the “new” evidence.

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TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:

A criminal defendant may not create his own basis for habeas corpus

relief by concealing facts at trial, then later revealing these facts and calling

them “newly available evidence.” Assuming Tiede’s present claims of abuse

are true, he knew about them when he and the expert witnesses testified

during his sentencing hearing. But he chose to conceal them—and, indeed,

even testify contrary to one of them. Under these circumstances, there is

neither newly available evidence nor any due process violation. And nothing

suggests the jury’s sentence—supported by substantial evidence of

premeditation and financial motive—would have been different even with

introduction of the “new” evidence.

STATEMENT OF FACTS

Bernhardt Tiede II worked at a funeral home in Carthage, Texas. In

1990, he became “friends” with wealthy widow Marjorie Nugent after

assisting in her husband’s funeral.1 Eventually, Tiede retired from his job to

become Marjorie’s companion and caregiver.2

On November 19, 1996, Tiede murdered Marjorie by shooting her

four times in the back as she bent down to pet her dog, then stuffing her

1 10 R.R. 120. “R.R.” refers to the original trial transcript. 2 10 R.R. 123.

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body into a freezer, covering it with bags of frozen food, and sealing it with

tape.3

Tiede hid his crime until August of 1997, when authorities arrested

him. In 1999, a San Augustine County jury found Tiede guilty of Marjorie’s

murder. By the time the jury sentenced Tiede, it had heard evidence

including the following:

(1) Tiede thought about murdering Marjorie for a couple of months

before finally doing so.4

(2) Before the murder, Tiede moved the murder weapon, a rifle,

from a freezer closet into a bathroom near the spot where he killed her.5

(3) Tiede was in dire financial straits before becoming “friends”

with Marjorie.6

(4) After becoming her companion, Tiede controlled Marjorie’s

money and signing checks on her accounts.7

(5) Tiede obtained a power of attorney from Marjorie after “really

pressuring” her to give it to him.8

3 6 R.R. 352; 7 R.R. 608, 614, 616-18, 626-27; 10 R.R. 133. 4 8 R.R. 169; 10 R.R. 134, 173. 5 8 R.R. 869. 6 5 R.R. 34-38. 7 5 R.R. 119-122, 137. 8 5 R.R. 146.

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(6) At Marjorie’s expense, she and Bernie took trips—usually

flying first class—to New York (four times), Las Vegas (three times), Egypt,

Russia, Big Bend Country, Washington, Germany, Switzerland, San

Francisco, England, Canada, Alaska, Panama, Hong Kong, and other

destinations.9

(7) On one occasion, Tiede became visibly upset when Marjorie

decided to make a substantial donation to her church.10

(8) After murdering Marjorie, Tiede appeared unchanged—he was

the “same old Bernie”—taking trips and living as usual.11

(9) The very night of the murder, Tiede attended a dress rehearsal

for the Panola College production of Guys & Dolls—and then took the

entire cast out for pizza.12

(10) In the months after he murdered Marjorie, Tiede—

• told various lies about her whereabouts to different people;13

• threw parties in her home, including a Mardi Gras costume party;14

• took trips to New York and Paris—even paying for a friend to

accompany him to Paris;15 9 5 R.R. 119, 136; 6 R.R. 298-99; 10 R.R. 146-53, 156. 10 6 R.R. 269. 11 5 R.R. 97, 213; 10 R.R. 43. 12 6 R.R. 371-72. 13 5 R.R. 152-53; 6 R.R. 272-75, 304. 14 6 R.R. 252, 256; 10 R.R. 49. 15 6 R.R. 383-84; 10 R.R. 152, 159.

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• had Marjorie’s ticket to New York reissued—only two weeks

after the murder—so a different friend could make the trip with him;16

• cashed checks made out to Marjorie;17

• spent substantial sums of money, including purchasing a

business for $40,000, buying new crystal and new furniture, purchasing a coin collection for $12,000, investing or spending more than $25,000 in a friend’s store, and giving $100,000 to the church building fund;18

• bought cars as gifts for at least two friends, at a total cost of

nearly $50,000;19

• had a power of attorney on one of Marjorie’s checking accounts;20

• took affidavits—bearing what he claimed were Marjorie’s

signatures—necessary for management of Marjorie’s trust account to be notarized by a friend and submitted them to the bank managing the trust;21 and

• sent a letter purporting to bear Marjorie’s signature to

Prudential seeking a wire transfer of $225,000 from her account.22

Finally, in perhaps the most damaging testimony from a sentencing

perspective, the jury heard evidence that in the months after he murdered

Marjorie, Tiede took a trip to Nashville—accompanying and sharing a room 16 7 R.R. 383. 17 7 R.R. 677-78. 18 10 R.R. 160-62; 6 R.R. 316, 349-50. 19 10 R.R. 95-96, 162. 20 10 R.R. 163. 21 5 R.R. 53-58; 6 R.R. 358. 22 10 R.R. 165.

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with another elderly, wealthy widow.23

Teide chose to testify during his sentencing hearing. During that

testimony, the prosecutor questioned Tiede specifically about his lawyers’

attacks on Marjorie’s character. When asked how it made him feel to hear

Marjorie portrayed as “a bad person,” Tiede said: “It hurt me.”24 When

asked whether Marjorie was mean to him, Tiede replied that she was “more

possessive” but “I wouldn’t say exactly mean.”25 Neither Tiede’s confession

to police nor his sentencing testimony contains any reference to any

immediate provocation by Marjorie before the murder other than her

“possessiveness.”26

In conjunction with sentencing, Tiede sought to introduce evidence—

in the form of testimony from Dr. Frederick Mears—that he murdered

Marjorie as the result of sudden passion. Before Mears testified, the

prosecutor examined him on voir dire. Mears stated that he would testify

that: (1) Tiede’s capacity for cool reflection was degraded or diminished by

the stress of his relationship with Marjorie and the demands that she placed

on him; and (2) Tiede had experienced dissociative episodes in which he

23 6 R.R. 346, 349; 7 R.R. 539. 24 10 R.R. 139. 25 10 R.R. 139. 26 10 R.R. 136.

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mentally separated from the act of killing Nugent.27 This last testimony was

intended to rebut the State’s evidence concerning Tiede’s behavior after the

murder.

The State objected to this testimony on the ground that it was not

admissible under Texas Rule of Evidence 702 in that it was not helpful to

the jury. The trial court allowed Mears to testify about dissociative behavior

in general but did not allow him to discuss his examination, testing, or

evaluation of Tiede specifically.28

In the presence of the jury, Mears described dissociative disorder as a

“situation in which the person can really more or less become somewhat

different than they normally were . . . So some people can become

dissociative, and that means they really are sort of engaging in a high level

of repression where they can almost develop two different aspects of

themselves.”29 Mears testified that people engaged in funeral-related

occupations, and those who have a history of childhood trauma, tend to

develop “controlled dissociation.”30

During an offer of proof outside the presence of the jury, Mears

testified that he believed Tiede had dissociative episodes when describing

27 10 R.R. 213-15. 28 10 R.R. 217-20. 29 10 R.R. 225-26. 30 10 R.R. 226.

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Marjorie’s murder.31 Mears did not testify one way or the other about any

childhood trauma or any abuse of Tiede by Marjorie; he stated simply that

he was not suggesting the existence of any trauma or abuse—but he did not

affirmatively state none occurred.32

The State called its own expert, Dr. Edward Gripon. When asked

about the relevant of dissociation to the case, Gripon replied “[t]here isn’t

any” and stated that “there’s no relevance to dissociation in this matter.”33

Gripon further testified that it was not “psychiatrically probable” that a

person would have a single dissociative episode without having a

dissociative disorder—and that such a disorder would not likely resolve over

time.34

The court’s charge on punishment instructed the jury that it had two

possible sentence ranges. If the jury found that Tiede acted under “the

immediate influence of a sudden passion arising from adequate cause,” then

the range of punishment was two to twenty years. Otherwise, the range was

five years to life. The jury sentenced Tiede to life imprisonment and a fine of

$10,000.

31 10 R.R. 233. 32 10 R.R. 236. 33 10 R.R. 245. 34 10 R.R. 250.

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Tiede appealed, asserting grounds of error including issues related to

jury selection, admissibility of his confession, and exclusion of the

testimony of Mears. The Tyler Court of Appeals affirmed the conviction but

remanded for a new hearing on punishment, finding the trial court’s

exclusion of the testimony by Mears to be improper. Tiede v. State, 104

S.W.3d 552, 564-65 (Tex. App.—Tyler 2000).

This Court granted review, vacated the judgment of the court of

appeals, and remanded for reconsideration in light of Potier v. State, 68

S.W.3d 657 (Tex. Crim. App. 2002). Tiede v. State, 76 S.W.3d 13, 14 (Tex.

Crim. App. 2002). On remand, the court of appeals found any error harmless

and affirmed the trial court’s judgment. Tiede v. State, No. 12-99-00182-CR,

2002 WL 31618281 (Tex. App.—Tyler Nov. 20, 2002, pet. ref’d) (not

designated for publication).

In 2011, Tiede achieved statewide and even national prominence as

the result of the movie Bernie, starring Matthew McConaughey, Jack Black,

and Shirley MacLaine. The film portrays Tiede as locally beloved; it vilifies

Marjorie.

On April 14, 2014, Tiede filed the application for a writ of habeas

corpus now under review. In his application, Tiede alleges two grounds for

relief. First, he claims to present “relevant scientific evidence” that “was not

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available to be presented” at the time of trial, and which contradicts the

State’s trial evidence. Second, Tiede claims this “new evidence” renders

certain sentencing testimony false and thus undermines confidence in the

jury’s life sentence.

Tiede’s “new evidence” consists of expert opinions based on his

recent revelations to a psychologist of (1) childhood sexual abuse and (2)

what he claims was abusive behavior toward him by Marjorie. Tiede’s

application cites the following three examples of “abuse” by Marjorie:

(1) She “made” him shoot armadillos while she “demeaned and ridiculed” him;

(2) She demanded that he shave her legs while she

undressed, and “made” him massage her back with a vibrator; and

(3) She criticized a man with whom Tiede had a

homosexual relationship.

Tiede’s application cites no other instance of “abuse” by Marjorie.

According to Tiede’s application, his present counsel—in the course

of investigating potential habeas relief—discovered the presence of four

self-help books for survivors of childhood sexual abuse among an inventory

of items taken from Tiede’s home during the original investigation. She

presented this information to Dr. Noel Bridget Busch-Armendariz, a

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psychologist working with Tiede. According to Busch-Aremndariz, Tiede

eventually revealed the abuse to her during their sessions.35

Tiede does not claim that any of this “new evidence” was unknown to

him at the time of trial. Instead, Tiede relies on affidavits from mental health

professionals stating that victims of childhood sexual abuse often are

ashamed to admit their victimization even into adulthood. Dr. Alissa Sherry

and LCSW Elizabeth Cohen tendered affidavits stating that victims of

childhood sexual abuse often conceal it for many years.36 Busch-Armendariz

tendered an affidavit stating that Tiede had revealed the sexual abuse to her,

and reiterating that victims often conceal their abuse.37

Dr. Richard Pesikoff also tendered an affidavit. Pesikoff’s conclusions

lie at the heart of Tiede’s application, as his work forms the basis for

conclusions drawn by other experts in the case. Pesikoff based his

conclusions on a single meeting with Tiede, a phone interview with Tiede’s

sister, conversations with Tiede’s habeas lawyer, an affidavit from one of

Tiede’s friends, and the report by Busch-Armendariz addressing childhood

35 Habeas Application, Exhibit D. 36 Habeas Application, Exhibits C, E. 37 Habeas Application, Exhibit D.

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sexual abuse; significantly, Pesikoff makes no mention of reviewing Tiede’s

trial testimony.38

Pesikoff testified that Tiede recounted “numerous examples of

[Marjorie’s] mean and nasty behavior towards him,” but describes only the

three purported events contained in Tiede’s habeas application. Pesikoff

concluded that Marjorie’s “repeated abusive behavior” towards Tiede

“ultimately erased” his coping skills “resulting in his outburst of aggression”

during a “ psychological dissociative experience.” Pesikoff also concluded

that Tiede has no diagnosable psychiatric disorders and poses no future

threat to society.39

Gripon also tendered an affidavit stating that he did not know about

any of the alleged abuse at the time of trial. Based on this “new evidence,”

Gripon concluded that Tiede murdered Marjorie during a “brief dissociative

episode” while “under the immediate influence of sudden passion arising

from an adequate cause” that was “induced by both prior and immediate

provocation” from Marjorie.40 Finally, Mears tendered a new report echoing

38 Application Exhibit G. 39 Habeas Application, Exhibit G. 40 Habeas Application, Exhibit H.

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the opinions of Pesikoff and Gripon as to the existence of a dissociative

event.41

The trial court conducted a hearing on Tiede’s application. The State

waived response and agreed to Tiede’s request for relief. At the beginning of

the hearing, the trial court announced that it had reviewed and would take

judicial notice of Tiede’s application and supporting materials, as well as the

complete reporter’s record and clerk’s record from the original trial and the

appellate decisions.42 Tiede and the State then presented the trial court with

stipulated findings of fact and conclusions of law.43 The State sought only

one change to these stipulated facts: that Tiede’s reference to “bad faith” by

the State be changed to read “no bad faith.”44

Tiede called no witnesses, resting on his exhibits.45 The State

introduced an affidavit from District Attorney Danny Buck Davidson46

stating that had he known of the abuse, he would have sought a maximum

sentence of 20 years for Tiede.47

The State also called Gripon to testify. Gripon reiterated his affidavit

testimony that he now believes Tiede murdered Marjorie not for her money 41 Habeas Application, Exhibit I. 42 W.R.R. 6, 10. “W.R.R.” refers to the habeas hearing transcript. 43 W.R.R. 7-8, 36-37. 44 W.R.R. 9. 45 W.R.R. 10. 46 W.R.R. 11. 47 W.R.R. 34.

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but as the result of a dissociative event.48 Before changing his opinion,

Gripon conducted a single three-hour interview of Tiede and reviewed

Pesikoff’s report.49 Gripon did not mention his trial testimony concerning

the improbability of a dissociative event without underlying dissociative

disorder, or the unlikelihood that such a disorder would resolve over time.

Throughout the entire process, Tiede never testified in person or by

affidavit. Tiede never provided any sworn testimony of:

• the purported childhood sexual abuse,

• the alleged abuse by Marjorie,

• any immediate provocation by Marjorie preceding the murder,

• why he apparently lied to the jury and said he would not characterize Marjorie as mean,

• whether he told his original trial lawyers about the abuse, or

• if he did not tell them, why he did not tell them.

Following the hearing, the trial court adopted the agreed findings of

fact and conclusions of law. The trial court’s findings of fact include the

following:

53. Evidence that [Tiede] had a long history of being sexually abused and had sustained a significant degree of psychological, emotional and other abuse by the decedent would have been important in making this determination

48 W.R.R. 20, 24. 49 W.R.R. 14, 16.

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[as to whether he experienced a dissociative episode]. Instead, what the jury heard was that [Tiede] had no history of being abused and had a clean mental health history.

. . . 62. Relying on Exhibit I, the Court finds that, had the new evidence been available at the time of trial, it is doubtful that the trial court would have excluded Dr. Mears’ testimony in front of the jury.

. . . 65. Relying on Exhibit H, the Court finds that there is a reasonable probability that a dissociative episode could have been involved in this offense and the subsequent behavior of [Tiede]. 66. When the underlying conviction was obtained, the State was represented by its elected Criminal District Attorney, Danny Buck Davidson.

. . . 68. Specifically, Mr. Davidson has indicated that, with knowledge of all the newly available evidence, he would have sought only a twenty-year sentence. Furthermore, there would be no guarantee that Mr. Davidson (sic) would have received the requested sentence of 20 years; as the entire range of punishment for which Mr. Tiede was eligible was 2-20 years in TDCJ-CID. 69. Had he known that [Applicant] had a long history of sexual abuse as a child and had been abused by the decedent herself, the testimony of Dr. Gripon, the State’s expert, would have been significantly different. 70. Had Dr. Gripon been able to testify at trial in the manner set out in Sealed Exhibit 5, it is highly likely that

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the jury’s verdict on punishment would have been different.50

Based on these findings, the trial court made the following

conclusions of law:

1. The new evidence detailed in the sealed exhibits constitutes scientific evidence which was not available to be offered at the time of the trial in the instant case, and which contradicts scientific evidence relied on by the State at trial. 2. Because of the new evidence detailed in the sealed exhibits, there is a reasonable probability that the outcome of the original trial court have been (sic) different. 3. Because of the evidence detailed in the sealed exhibits, the Court’s confidence in the outcome of the punishment phase of trial is undermined.51

The trial court recommended relief in the form of a new punishment

hearing, and released Tiede on bond.52

SUMMARY OF THE ARGUMENT

Tiede’s “new evidence” relates to his recent revelations of purported

abuse. Tiede knew about that abuse at the time of trial. Rather than reveal it,

he chose to conceal—and even testify contrary—to it. An applicant like

50 Findings of Fact, Conclusions of Law, Recommendation, and Order at 10-12. 51 Findings of Fact, Conclusions of Law, Recommendation, and Order at 13. 52 Findings of Fact, Conclusions of Law, Recommendation, and Order at 13.

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Tiede, who knew of the evidence or bears the fault for failure to obtain it, is

not entitled to habeas corpus relief based on newly available evidence.

Similarly, Tiede bears sole responsibility for any affirmative

misinformation received by the jury. Tiede alone possessed the information

necessary to prevent or correct the misinformation he now relies upon in

seeking relief. Moreover, because all the testimony occurred during

sentencing proceedings, Tiede could have revealed this information without

incriminating himself. Thus, he cannot obtain relief based on introduction of

false evidence, even if any was introduced.

Finally, the jury’s sentence enjoys overwhelming support in the

evidence. Nothing suggests that the “new” evidence would have made any

difference. As a result, Tiede cannot obtain relief under either issue. The trial

court abused its discretion in recommending a new sentencing hearing.

ARGUMENT

This Court reviews a trial judge’s decision to grant or deny relief on a

writ of habeas corpus for an abuse of discretion. See Ex parte Elizondo, 947

S.W.2d 202, 210 (Tex. Crim. App. 1996). “In a post-conviction review of a

writ of habeas corpus, this Court is the ultimate factfinder.” Ex parte

Robbins, 360 S.W.3d 446, 457 (Tex. Crim. App. 2011).

Generally, this Court defers to the trial judge’s determination of

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historical facts so long as the record supports them. See Ex parte Martin, 6

S.W.3d 524, 526 (Tex. Crim. App. 1999) (citing Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997)). This Court reviews the trial judge’s

legal conclusions de novo. See Ex parte Martin, 6 S.W.3d at 526.

1. Tiede’s “new” evidence isn’t new; he knew about it at the time of trial—and even testified contrary to some of it.

Article 11.07 of the Texas Code of Criminal Procedure authorizes

post-conviction habeas corpus relief for claims involving jurisdictional

defects and violations of fundamental or constitutional rights. See Ex parte

McCain, 67 S.W.3d 204, 210 (Tex. Crim. App. 2002).

A claim of an illegal sentence is cognizable on a writ of habeas

corpus. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex

parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam); Ex

parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979). “A sentence

which is outside the maximum or minimum range of punishment is

unauthorized by law and therefore illegal.” Mizell, 119 S.W.3d at 806

(citations omitted).

Tiede does not allege that his sentence was outside the permissible

range of punishment or otherwise was illegal. After all, the jury was

instructed that it could consider the full range of punishment from five years

to life in prison, or from two to twenty years if it found Tiede acted out of

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sudden passion. Instead, Tiede claims that habeas relief is warranted

because, had he chosen to reveal the purported abuse, the district attorney

would have sought—or, alternatively, the jury might have assessed—a

lighter sentence.

In reality, Tiede simply advances a sort of free-form argument for

commutation of his sentence in what he contends is the interest of justice.

But the proper vehicle for this request is through the provisions of the Texas

Administrative Code—not an application for habeas corpus relief. See 37

TEX. ADMIN. CODE. § 143.52 (2014) (Tex. Board of Pardons and Paroles).

A. Tiede’s first issue, based on “newly available evidence,” fails to state a proper basis for relief.

Tiede’s first issue contends that “newly available” evidence

contradicts evidence presented at his sentencing hearing. Normally, a habeas

corpus claim based on new evidence requires proof of actual innocence to

rise to the level of a constitutional violation. Ex parte Brown, 205 S.W.3d

539, 546 (Tex. Crim. App. 2006); see also Ex parte Robbins, 360 S.W.3d at

458-59. But this Court has recognized that actual innocence nomenclature

may not always be relevant to sentencing challenges. In such cases, the

relevant inquiry becomes whether the “sentencer’s normative judgment has

been affirmatively misinformed” to such a degree that it rendered the

original sentencing proceeding “intolerably unfair” in violation of the Due

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Process Clause. Ex parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App.

2006).

The notion that a criminal defendant can:

• conceal from his trial lawyers what he contends is critical information,

• actually testify contrary to some of that information,

• reveal the information long after trial and ask experts to comment

on it, and

• cite the resulting expert opinions as “newly available evidence” supporting habeas relief,

is outrageous and unsupported by Texas law. If accepted, it would be a

prescription for defendants to game the system by using their own

concealment of facts to support future habeas relief.

Tiede’s “new” evidence consists of expert opinions based on his

recent revelations of the purported childhood sexual abuse and alleged abuse

by Marjorie. Curiously, Tiede has not provided any sworn testimony

establishing either instance of abuse; all the testimony is from mental health

professionals stating that Tiede told them about the abuse. Likewise, nothing

in the record suggests whether Tiede told his lawyers or anyone else about

the abuse before his trial. All the record establishes is that neither Mears nor

Gripon knew about it at sentencing. But Tiede knew these facts throughout

the entire process.

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“The term ‘newly discovered evidence’ refers to evidence that was

not known to the applicant at the time of trial and could not be known to him

even with the exercise of due diligence.” Ex Parte Brown, 205 S.W.3d at

545. Thus, Tiede cannot obtain habeas corpus relief by relying “upon

evidence or facts that were available at the time of his trial . . . .” Id.

(citations omitted); see also, e.g., Ex parte Briggs, 187 S.W.3d 458, 465

(Tex. Crim. App. 2005).

The term “newly available evidence” refers—at least in the habeas

corpus context—to evidence not previously available to the applicant

through no fault of his own. In discussing the concept of newly available

evidence, this Court has twice emphasized the applicant’s lack of any

responsibility for previous unavailability of the evidence. See, e.g., Ex parte

Calderon, 309 S.W.3d 64, 71 (Tex. Crim. App. 2010); Ex parte Zapata, 235

S.W.3d 794, 795 (Tex. Crim. App. 2007) (per curiam) (applicant “was

unable to produce the recantation testimony of his daughters [at the

sentencing hearing], through no fault of his own”).

Tiede does not allege that he did not know about his own childhood

sexual abuse or Marjorie’s purported abuse. Instead, Tiede’s application

suggests that he concealed all this abuse for various psychological reasons.

But Tiede has offered no evidence as to (1) whether he did or did not reveal

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21

the abuse to his lawyers before sentencing, or (2) if he did not reveal it, why

he chose not to reveal it.

In any event, there can be no question the evidence was available to

Tiede—had he chosen to reveal it. Mears and Gripon lacked this information

for one and only one reason: Tiede apparently chose not to tell anyone about

it. In fact, Tiede’s sworn testimony at sentencing actually contradicted his

present claims of abuse. When asked if Marjorie was “mean” to him, Tiede

testified that she was possessive but “I wouldn’t say exactly mean.”53 Tiede

went well beyond simply failing to reveal Marjorie’s purported abuse—he

actually denied it.

Perhaps Tiede failed to reveal the abuse to his lawyers or anyone else.

And perhaps, as his application seems to suggest, this failure stemmed from

deep-seated psychological reasons. But even if all this is true, nothing in the

law suggests that a 40-year-old’s reluctance to reveal childhood abuse

supports a later claim for habeas corpus relied based on “newly available

evidence.” After all, even the limitations period on a civil claim for such

abuse—explicitly tolled by statute during minority status—expires four

years after the victim turns 18. TEX. CIV. PRAC. & REM. CODE § 16.001

(West 2012).

53 10 R.R.139.

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Finally, this is not a situation where Tiede concealed the information

in furtherance his Fifth Amendment right to self-incrimination. All the

“newly available evidence” relates to sentencing—where Tiede testified.

And he submitted to multiple interviews with Mears.54 At any point before

Mears took the stand—including during his own testimony—Tiede could

have revealed the abuse. Had he done so, both Mears and Gripon would

have known about it. Under these circumstances, Tiede cannot rely on

“newly discovered” or “newly available” evidence to obtain habeas corpus

relief.

B. Tiede’s second issue, based on “false” evidence, fails to state a proper basis for relief.

Tiede’s second issue claims that his “new” evidence renders certain

sentencing testimony false in violation of the Due Process Clause. But

multiple deficiencies plague this argument—including, once again, Tiede’s

own responsibility for any misinformation.

The Due Process Clause of the Fourteenth Amendment can be

violated when the State uses false testimony to obtain a conviction,

regardless of whether it does so knowingly or unknowingly. Ex Parte

Robbins, 360 S.W.3d at 459 (citations omitted). To constitute a due process

violation, the testimony used by the State must have been false, and it must 54 10 R.R. 223-24.

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have been material to the defendant's conviction—meaning “there is a

reasonable likelihood that the false testimony could have affected the

judgment of the jury.” Id. at 459-60 (citations omitted).

Tiede inaccurately claims that the “new evidence” renders false

statements made about the existence of any abuse. But contrary to Tiede’s

contention—and the trial court’s factual finding55—neither Mears nor

Gripon denied the existence of childhood trauma or other abuse. Mears said

only that he was not suggesting any had occurred.56 And he made these

statements outside the jury’s presence—rendering completely unsupported

the trial court’s factual finding about what “the jury heard.”

Simply put, the jury never heard anything from the expert witnesses

one way or the other about any abuse Tiede might have suffered as a child or

from Marjorie. A due process violation in the context of false evidence turns

on the falsity of evidence actually introduced, affirmative misinformation.

See generally Chavez, 213 S.W.3d at 324. Exclusion of information—

particularly where previously and unsuccessfully challenged by direct

appeal—does not support a due process violation for conviction based on

false evidence.

55 Finding of Fact No. 53. 56 10 R.R. 236.

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Without testimony about abuse, only the issue of dissociation remains

as applied to Tiede’s claim of sudden passion. Mears said nothing “false”

about dissociation in front of the jury, as the trial court permitted him to

testify only in general terms about dissociation. And, of course, Mears

always believed Tiede had dissociated—and said so during the offer of

proof. Certainly Mears never told the jury anything suggesting dissociation

had not occurred. There cannot possibly be any “false” evidence associated

with Mears.

That leaves only Gripon. The sum total of Gripon’s testimony about

the relevance of dissociation to Tiede was to say that “[t]here isn’t any” and

“there’s no relevance to dissociation in this matter.”57 These two statements,

then, constitute the only testimony that could support Tiede’s claim of

“false” evidence. And these two sentences simply do not support habeas

corpus relief.

Initially, the new evidence establishing “falsity” is highly suspect.

Both Gripon and Pesikoff base their opinions on Tiede’s recent revelations

of childhood sexual abuse and abuse by Marjorie. Both experts accept these

revelations as true. But neither of them apparently reviewed the trial

testimony—where Tiede specifically denied that Marjorie had been “mean”

57 10 R.R. 245.

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to him. Had they done so, both men would have seen that Tiede either lied

under oath during sentencing, or is lying now.

The experts now conclude that Tiede murdered Marjorie as the result

of immediate provocation: an outburst of anger precipitated by Marjorie’s

alleged criticism of Tiede’s lover. Again, though, a cursory review of

Tiede’s testimony during sentencing would have revealed the conspicuous

absence of any suggestion that such an incident occurred—not to mention

Tiede’s admission that he had been thinking about killing Marjorie for

months. This failure to review Tiede’s previous testimony seriously

undermines the new conclusions.

Of course, the new opinions do not “establish” the falsity of any trial

evidence. They simply reflect a change in the opinion of a single expert

witness. This is not like a DNA test confirming identify to a scientific

certainty. Gripon cannot and does not purport to state with scientific

certainty that Tiede acted under the influence of sudden passion; that simply

is his new opinion. And Tiede suggests no changes in the science underlying

the new opinions.

Most important, Tiede cannot obtain habeas corpus relief based on

false testimony absent some due process violation in his sentencing. And,

again, there is but one reason Mears and Gripon did not know about the

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purported abuse: Tiede did not reveal it (and even chose to testify contrary to

it). Indeed, he continued to conceal it even after hearing Gripon’s testimony

about dissociation. The trial court’s factual findings supporting relief58 fail to

account for this central fact.

This Court has held unequivocally—and quite sensibly—that no due

process violation occurs when the defendant knows of the facts underlying

his own claim for relief. In the context of a due process claim arising from

the State’s failure to disclose exculpatory evidence—a claim that does not

require bad faith—this Court held that “there is no due process violation

under circumstances in which the defendant himself already knew about the

exculpatory facts.” Ex parte Chavez, 213 S.W.3d at 325 (citations omitted).

See also Vasquez v. State, No. 05-13-00347-CR, 2014 WL 1413898, at *2

(Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for

publication) (citing Chavez).

In Chavez I, this Court denied relief in part because if the jury had

been affirmatively misinformed, that was entirely the applicant’s fault:

[T]he applicant knew the true extent of his involvement in the offense. Had he disclosed that information to his trial attorney sooner than he did, counsel could have attempted to investigate the circumstances that corroborated the applicant’s account, to assure that the jury would be informed of all the evidence tending to

58 Findings of Fact Nos. 62, 65-66, 68-70.

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show he was not the shooter . . . Instead, the applicant affirmatively misled his own counsel and chose to testify, apparently falsely, to an alibi in an attempt to escape criminal liability altogether. Thus, any misinformation the jury received to inform its discretionary decision with respect to what punishment to assess the applicant within the statutorily prescribed range would appear to have been his own fault, if anyone’s. We cannot conclude on these facts that he received an unfair punishment proceeding.

Id.

In Chavez II, of course, this Court conducted merits evaluation of the

applicant’s false testimony claim despite his complicity in its admission. But

this Court did so to avoid any possibility of a separate constitutional defect,

holding that “nothing in “this Court’s due-process false-testimony

jurisprudence imposes upon a defendant a duty to incriminate himself in

order to potentially avoid erroneous admission of false testimony as a

prerequisite to relief.” Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim.

App. 2012).

In other words, Chavez I establishes the general rule that no due

process violation occurs where a jury is misinformed but responsibility for

that misinformation rests with the applicant. Chavez II carves out a limited

exception to this rule where correcting the misinformation would impose a

duty on the defendant to incriminate himself, thereby infringing on an

applicant’s constitutional privilege against self-incrimination.

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Here, of course, assuming the jury was affirmatively misinformed,

Tiede possessed the information necessary to prevent or correct this

misinformation—and could have done so without incriminating himself.

Unlike the applicant in Chavez, Tiede testified only at sentencing—not

during the guilt/innocence phase of trial. He admitted the murder and was

free to tell the jury whatever he wanted about childhood sexual abuse,

Marjorie’s abuse of him, or anything else he thought might support his

sudden passion claim.

Under these circumstances, Tiede alone bears the responsibility for

any misinformation conveyed to the jury. He cannot rely on his own

concealment to establish a due process violation for sentencing based on

false evidence.

2. Tiede cannot obtain relief under either issue because nothing suggests the outcome would have been different with the “new” evidence.

To obtain habeas corpus relief based on newly available evidence,

Tiede must establish that the new evidence would have made a difference in

the outcome. Claims that newly discovered evidence undermines confidence

in a sentence to the point that a due process violation attaches remain subject

to harmless error analysis. See generally Chavez, 371 S.W.3d at 210

(citations omitted). And a due process claim for use of false evidence

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requires materiality—meaning a “reasonable likelihood that the false

testimony affected the applicant’s” conviction or sentence. Id. at 207

(citation omitted).

Both of Tiede’s issues, then, require that the outcome likely would

have been different. Tiede contends—and the trial court found—that the jury

likely would have assessed a lesser punishment had it known about the

purported abuse. But examination of the entire record hardly supports this

finding.

The jury heard ample evidence supporting the life sentence—and

suggesting it would have assessed it without regard to Tiede’s claim of

sudden passion. The State introduced substantial evidence supporting the

view that Tiede premeditated Marjorie’s murder for financial gain, then

happily went about spending her money for months after killing her.

The jury heard Tiede’s own testimony that he thought about killing

Marjorie for months—hardly supportive of a sudden passion or dissociation

claim. The jury heard that Tiede moved the murder weapon in advance to a

location with greater accessibility—again suggesting premeditation. The

jury heard about Tiede’s pressure on Marjorie to get a power of attorney,

and the spending spree he went on after her death. And the jury heard about

Bernie’s trip to Nashville rooming with yet another elderly, wealthy widow.

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Not even Teide suggests that the jury’s sentence lacks supporting

evidence. Cf. Ex parte Chabot, 300 S.W.3d 768, 772 (Tex. Crim. App. 2009)

(false evidence provided only direct evidence supporting conviction). To the

contrary, substantial evidence supports confidence in the life sentence. See,

e.g., Chavez, 371 S.W.3d at 209. Here, the notion that anyone should lack

confidence in the life sentence strains credulity.

Moreover, Tiede has—for whatever reason—chosen not to support his

application by putting himself under the penalty of perjury. Instead, the

application relies solely on expert testimony. If anything seems “probable,”

it is that the jury would have looked askance at a defendant who paraded

experts across the stand to discuss a history of abuse but did not himself

even mention that abuse in passing during his own testimony. Indeed, how

much faith could the jury have placed in the testimony by Gripon and

Pesikoff about Marjorie’s abuse when Tiede himself denied that she was

mean to him?

Even with the “new evidence,” Tiede’s claim of sudden passion

remains startlingly weak. Under the version of the Texas Penal Code in

effect at the time of Tiede’s trial, where evidence showed that the defendant

caused the victim’s death under the immediate influence of sudden passion

arising from an adequate cause, the offense was punishable as a second

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31

degree felony. See TEX. PEN. CODE ANN. § 19.02(d) (West 2011).

The jury charge defined “sudden passion” as “passion directly caused

by and arising out of provocation by the individual killed or another acting

with the person killed which passion arises at the time of the offense and is

not solely the result of former provocation.” The charge defined “adequate

cause” as cause “that would commonly produce a degree of anger, rage,

resentment, or terror in a person of ordinary temper, sufficient to render the

mind incapable of cool reflection.”

Tiede’s sudden passion claim rests principally on the allegations of

abuse by Marjorie. But the habeas corpus record contains evidence of only

three instances of abuse:

(1) She “made” him shot armadillos while she “demeaned and ridiculed” him;

(2) She demanded that he shave her legs while she

undressed, and “made” him massage her back with a vibrator; and

(3) She was critical of a man with whom Tiede was

having a homosexual relationship.

Nothing supports the trial court’s conclusion that the jury would have

found these three incidents of abuse sufficient to constitute adequate cause

for murdering an elderly woman, or that it would have ignored the evidence

of premeditation and financial motive.

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Finally, Tiede attempts an end-run around this legal deficiency by

introducing Davidson’s testimony that had he known of the abuse, he would

have sought only a 20-year maximum sentence. But Davidson is not even

clear as to what this means. And, in any event, nothing in Texas law

supports setting aside a jury’s valid, error-free sentence simply because a

prosecutor wishes to re-evaluate his exercise of prosecutorial discretion

nearly two decades after the relevant events.

CONCLUSION

For the reasons described in this brief, the trial court abused its

discretion in recommending that Tiede be granted habeas corpus relief.

Amicus Curiae ask that this Court reject the recommendation, deny Tiede’s

application, and order him returned to complete his sentence.

Respectfully submitted,

/s/Charles “Chad” Baruch Texas Bar No. 01864300 THE LAW OFFICE OF CHAD BARUCH

3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028 Email: [email protected]

Attorney for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

This brief was prepared using Microsoft Word for Mac. Relying on

the word count function in that software, I certify that this response (exclusive of the cover, table of contents, index of authorities, signature block, certificate of compliance, and certificate of service contains _____ words. s/Charles “Chad” Baruch

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of this instrument was served by efiling and email on this _____ day of June, 2014, upon the following counsel of record:

Jodi Calloway Cole

LAW OFFICE OF JODI CALLOWAY COLE 502 West 30th Street Austin, Texas 78705 [email protected]

Counsel for Applicant Bernhardt Tiede II

Danny Buck Davidson CRIMINAL DISTRICT ATTORNEY, PANOLA COUNTY

Panola County Justice Center 108 South Sycamore, Room 301

Carthage, Texas 75633 [email protected] Counsel for State of Texas

s/Charles “Chad” Baruch