DNA CHAPTER 64 – COMMENTS – OPNINION AP-76,970

(DNA results non favorable)

Note that judge Meyers delieved the opinion, denying me, but he granted me DNA testing. All this Chapter 64 stuff is, is a joke. As far as I know nobody in the history of Chapter 64 has gotten any relief from it. No one from Death Row for sure. All it is, is a tool to that is supposed to be to help us falsely accused a chance to prove our innocence. But in reality, it is nothing more than a tool designed to show the prosecution what they have to work with giving them a chance to figure out a way to twist and turn the facts to fit their need to ensure that no relief be granted. To grant a CH 64 in favor of the defendant is giving them the keys to a new trial and freedom. And that is not what they want. Again I will ‘attempt’ to just touch on some of the key thing I think are important there are more, the whole thing is important, but a lot of it is self explanatory.

1. PROSECUTED OR CONVICTED…As I have repeatedly said I think this is a question they should pose to my jury that convicted me. Ask them if they should had been allowed to hear all this evidence and if they should had been allowed to hear about the way that detective Allen got the false confession out of me by threatening me with locking up the woman I love and her new baby whom I loved just as if he was my own. Ask them if they feel they were lied to and should had been told the truth, ask them if they feel my DA had a moral and professional duty to correct Joseph Chu’s known false testimony as was his duty under professional rules of conduct. And ask them if they feel he should had turned over that lab report so my attorney Felix Cantu could and would had put on a better defense of actual innocence. They shouldn’t be allowed to sit there and try and second guess what my jury or any other jury would do or not do, they don’t know what they think. Yet they seem to be acting as mind readers. Ask them if they feel lied to and if I got a fair trial. Let’s see what they say.
2. Finger nail clippings…that is reasonable doubt all day, if it isn’t mine, or the grandsons, then that is reasonable doubt. They touch on the fact that the profile is weak and incomplete’ that is not my fault that Joseph Chu used up most of the DNA material due to his incompetence. It still doesn’t change the fact that the DNA detected, is not mine or the grandsons. And that should be enough to satisfy the reasonable doubt standard… But to the courts in TX it is not.
3. HPD crime lab employee said that he was unable to do a comparison between evidence and the appellant’s blood so the results were inconclusive. They are calling Joseph Chu, ‘a crime lab employee’, but they have had more than enough cases before them with the name Joseph Chu before them to know just whom he is. They are well aware of his work.

But for Chu to say that he was unable to do a comparison is a flat out lie.

The man took my blood from me personally. He had my blood, so he could have done all the comparing that he wanted to his heats content. He choose not to. He chooses to ignore the request made by detective Sgt. Allen when he requested DNA testing.

4.Two different windows . Here again they make mention of things that are just false. By saying I had been in her home on many occasions, and now saying that I entered through two different windows. I don’t know what more I can say to convince them I never entered that window in my life, and I hadn’t been in Mrs. Franklin’s home in 4 years. The only thing I know to do it test that damn screwdriver, it will show I never touched that thing. My DNA will not be on it, I don’t know whose will but mine will not. And if they are going to keep insisting that I used that tool to pry open that screen window that had been nailed down that very day by Eric Benge, then it needs to be tested.

5. Two inches…Here again they talk about how my little pin knife could make all those stab wounds….But I repeat, there were no hilt marks. A hilt mark would leave a very distinctive mark pattern. They say even after death the body will still speak to you if you just know what to look for. And the lack of hilt marks tells me that my little knife could not had made 4 inch stab wound that reached into her heart without leaving hilt markings. No way.

6. Did not argue an exculpatory account of the offense at trial….Of course

Not, the district attorney withheld the exculpatory evidence from my trial attorney, how could he argue anything of exculpatory value when it was being withheld intentionally from him? In my trial attorney’s affidavit he said: “Had he been aware of this lab report his whole outlook would had been different. Even knowing the the original district attorney withheld it, they still say this. He could not put on any evidence to the contrary because it was withheld, period. It is a ‘Brady violation’ (see Brady v. Maryland)

7. DNA on the victims fingernails could had came have been deposited by contact with various surfaces such as the floor where her body was discovered or from other male individuals who entered her home….Here is the thing about the floor where her body was found, sections of the carpet were cut out and tested by DPS. (See DPS lab reports: “The only DNA they found was that of Mrs. Franklin’s.) And here they are saying it ‘could’ had came from one of the grandson’s friends. Admitting it is blood. So once again, I ask, let’s test them. Here too they say I cannot be excluded as a contributor of the ‘blood’ detected on her nails even admitting that the blood is AB blood type and I am O blood type…I cannot be excluded? What part are they not understanding that there was not and is not any 0 blood type detected under her nails. This blood is not mine period. But look at the many ways they are using to cover every possible way they can think of to justify denying me. It could be this, it could be that, and even thought we know there was no 0 blood found, we still say ‘he can’t be excluded’….is that insane or is that insane?

8. When police arrive to question him…..Yes I admit I took off, but I didn’t know what they wanted, I thought it could be for a parole violation. So yes, I left. I had had enough of prison. But look at me now, 23 years and counting.

9. After the offense… They are saying trial witnesses also corroborated details of appellants confession… What? That I was wearing the clothing I told them I was wearing? That I was drinking? That I carried a knife? These are all true things. But what is not true are these things, I never told anyone I was going to Mrs. Franklin’s house, I never exited out the back door, that is something Sgt. Allen suggested to me. And he also suggests that I was stopped by some man about jumping his fence. These last two things are at the suggestion of Sgt. Allen. If these people talked to me, they would remember me, how can they even use this when the very man whose yard it was, the man that they used to get a ‘trespassing’ warrant on me, didn’t even testify? His brother in law did not say it was me at trial, he describes a totally different person. There is a reason why this guy that they said talked to me didn’t testify, I would like to know what it is. Do they think he was full of it? Did these two guys get my ‘description’ from the news? I don’t know what the news said about me. So I don’t have a clue if they told the public what I was wearing. I know this, that man didn’t talk to me.

10. DNA testing process… My trial judge relied on Joseph Chu’s affidavit but wouldn’t allow him to testify. Chu did the original blood typing, it is his work that is under fire, so why the hell not allow him to explain himself to the court? Why did they have to spend who knows how much money on an out of state expert, Patricia Hamby, who did nothing more than tell the court what everyone else had been saying? That was tax payer money well spent.

11. Under article 64.04….The court concluded that my DNA expert testimony was flawed. Because she wouldn’t say the DNA conclusively came from the killer. As a reason to not believe her and deny me. ..would you believe that Dr. Elizabeth Johnson is the very one who blew the lid off the HPD crime lab? Exposing all their dirty little secrets, which lead to the independent investigation and where she ending up suing the city of Houston for them screwing her over and winning a substantial amount of money? Yeah, they love her, they just love Dr. Elizabeth Johnson in Harris county Houston TX. I wish my attorneys would have called none other than Michael Bromwich as our expert if they were to call anyone. But Johnson told it like it is, the truth and that wasn’t good enough. They wanted her to say for certain it came from the killer, but all they would had done if she would had said that is get other experts to say it is not from the killer and still denying me. But as usual, they over look the fact a very important fact, the DNA detected resulted in no 0 blood type being found and I am 0 blood type. They convently say that the ‘blood’ could had came from one of the friends. Okay, stop saying that and test them. Let’s put this to rest once and for all. I bet you this, the cost of testing everyone might not be as much as it cost the Houston tax payers for the district attorney getting Patricia Hamby to come and testify that Chu’s lab report is flawed and his testimony was false. Something we already knew.

12. The absent of DNA on evidence subject to DNA testing did not mean I did not commit the crime…. But what about the presence of another person’s blood? I guess I could read into the sentence that even if I can get the screwdriver tested, it will not make a difference even if my DNA isn’t on it. So what they are telling me, is nothing I do and nothing I say will make a difference in their minds …. That ‘ s cold. Sadly a Chapter 64 is not appealable to a high courts. It is TX own little baby and they can do with it as they wish. They don’t have to answer to a higher court on a Ch 64.

13. Serology evidence… Here my trial judge denied me due to she thinking the jury would rely on the confession. But would they after knowing how it was forced from me? With threats of locking Merry up? Taking the baby away from her? I would like to ask them. She also said witness seen me heading in the direction of the victims home. Yes, two people saw me heading that way, Blaine and Barbara Wright. But what everyone is overlooking is I lived on Ried St. I had to pass Westford to get to Reid St, the very house I was arrested at. I lived but a few streets away from Mrs. Franklin. Lee, Eric and a host of others knew I lived over there. (See map from Westford at Irvington to 706 Ried St.)

She also falsely stated that witness saw me flee from the back of the home. What witnesses? Who are these witnesses? A witness is someone who takes the stand, a witness is someone that can identify you, or heard something, no one ever throughout my whole trial every said they saw me exit the back of the house, no one. Truitt is not a witness; there is no reason for them to even rely on anything he said. He is just a name in the police report, just as in Donna Espada is, who saw a white male at 6 : pm taking the screen off. She is not a witness until she takes the stand, is sworn under oath if they rely on these kind of witnesses, then we would never need to have people take the stand under oath and penalty of per jury. There is a reason why we do that, it is to determine if a witness is creditable, if they are lying, if they were promised anything for their testimony ect. I ain’t just saying these things just to say them, I am saying -them because they are the rules of law. There are rule specifically designed regarding witnesses. A witness in a police report is not the same as a witness       that takes the stand in a trial. A witness in a police report is free to lie and say anything he or she wants without any repercussion. It’s just a ‘statement’. But not so for a witness who takes the stand and is sworn in under oath. Big difference yet they are using this guys ‘statement’ to police in the police report as if it is fact. If they want it to be fact they need to put him on the stand and be sworn under oath. What I find extremely odd about this is Truitt’s brother in law Doyle, he even after knowing what Truitt said did not change his description of the person he saw which was someone a lot bigger than me. He just could not say he saw me because it was not me he saw. My judge also said she didn’t feel it would had made a difference to my jury. Again I would like to present my jury with all the facts and then ask them if it would had made a difference.

14. Appellants arguments. You will now read my attorneys argument, it is self explanatory, and a good one. But she got shot down on every last one of them.
15. Now let’s read the State argument. ‘As she was attacked’ …..District attorney Lynn Hardaway states that the results establish that my DNA was not on the victims fingernils’ But then back door it with ‘the scrapings are not favorable because there is no evidence that the victim was able to hit or scratch her attacker‘ … What about the ‘blood’ detected? And again this DNA is from actual blood. Not spit, seaman, hair, snot, or any other body fluids. But blood and blood only. That means nothing to them. They want to court to believe that Mrs. Franklin’s hands just ‘magically’ fell into the only two spots on the carpet that had this ‘blood’? And from one of the grandson’s friends blood. Well, they got their wish, because the courts took a bit bite out of that spoonful of crap there and swallowed it down and wanted more…and she gave them more. Convincing them to totally ignore the blood as nothing more than innocent contact with the floor or one of the grandsons friends.
16. He grabbed the victim from behind while holding a knife … Nowhere in my

‘Confession’ do I say I was ‘holding’ my knife in my hand. That is the one

thing I flat out refused to admit to Sgt Allen that I stabbed that woman.

But as usual, the TCCA excepts this lie as they have with all the others.

Even after the detectives who were at the scene observed signs of a struggle and defensive wounds. Meaning Mrs. Franklin as old as she was put up a fight and was able to scratch someone just enough to get their DNA under her nails. Blood, she drew blood. That is something big. And considering the fact that I had no scratches on me, nowhere. Very big.

17. Not favorable to appellant…. She feed the courts another spoonful telling them that the blood DNA has ‘minimal exculpatory value’ …minimal is ‘some’, right? ‘Some’ should be ‘reasonable doubt’. But to all those former prosecutors, it is not.

18. Outweigh a defendant’s confession …. If not blood, then what? Would she have this same argument if it was her son or her fighting this? No she would not, she would be demanding a new trial, and she would want her fair shake. That’s all I want, a fair shake. 25% of DNA exonerates have ‘made confession or pled guilty’, this is also a fact. And many just as I was made them under threat. It is just that with me, I can prove it, …well I say I can, after all I ain’t just making this little story about Merry being at the Station up to make anyone feel sorry for me. She was there, it is in the police report her and the baby and they used them to get me to make that false confession. (See Police Report)

19. DNA other than the assailant…..Here DA Hardaway talks of there is no indication of when or how the blood DNA got on the victim’s nails and these were other possible sources for the DNA other than the assailant. …Okay, the carpet has been tested. We knew this, no male DNA was found. It is from actual blood. The only other sources are the grandsons friends …again , I cannot say this enough and I will say this with my death breath, they should test the grandson’s friends to put this theory to test and rest.

That is the States argument. What do you think?

Next that is ‘discussion’ and standard review part.

20. Does not unquestionably establish the defendant’s innocence … My trial judges words, and if those aren’t the words of holding me to a actual innocence standard, I don’t know what is. If she is going to cite actual innocent case law, then to me and my attorneys she is holding me to that standard. … But the TCCA is top dog here in TX so they have final say.

21. Now here is where it gets really confusing. I am just now after a year of reading this thing over and over am just now grasping it…so I will try and explain the best I can. But the courts do a good job of it, but what I want to explain is this, my blood type is 0 blood type, and it should not matter what antigens they found, a antigen is just that, it is not a blood type.

They keep over looking…or refusing to look at the fact they when all is said and done. The test came back and the fact of the matter is this, not even the weakest of the weakest trace of O blood type was detected. Remember O is a ‘blood type, while H- is a antigen, and everyone under the sky has the H-antigen in their blood. Well all except those with that very rear blood type. They have no antigens at all, think that is a mere 1% of the world population. The rest of it have it. The court even admits in the very last sentence. ‘And the fact that H-antigens were detected in the sample does not necessarily mean that type 0 blood (such as appellant’s) was present.’ Well at least they got that part right. But just because my blood contains the H- antigens and the H-antigens only, they want to say, for that reason I cannot be excluded. Which is  crazy to me. More so given the fact that not ever the weakest detection of any 0       blood type was found. Surely if that belonged to me, then some small amount of O-blood would had shown up…but no, nothing, nothing at all.

Let me see if I can break this down for you to better understand, I don’t have the actual paper anymore… But I think …

AB blood type has the A-antigens, B-antigens and the H-antigens.

B blood type has the B-antigens and the H-antigens.

A blood type has the A-antigens and the H-antigens

O blood type has the H-antigen and the H-antigen only. It has no A or B antigens

22. I think this is how it is…shouldn’t be hard to find out, but that is their logic for denying me, because my blood has the H-antigens in it just as everyone else’s does. Again ignoring the fact that no O blood type was detected.

The rest of the opinion would be me just repeating myself over and over, I have already touched on everything over and over again and all they are doing is going over everything the trial judge and district attorney said.

But I will say this again, because I can’t say it enough; the carpet was

tested and no male DNA was detected, Mrs. Franklin’s hands did not just happen to fall in the only two different spots on the carpet that had the DNA, because let’s not forget, this DNA was ‘originally’ on both hands. And Chu used up most of the scrapings in his original testing. Other items were tested and retested things that were drenched in blood, that would had collect particles from the carpet, and still no other DNA was detected.

That leaves only the friends. Lets test them, test them and that screwdriver and that knife. Am I asking too much? I don’t think so. I wouldn’t be asking if I had really killed her. I would not make my attorneys look like fools or those who believe in me. The sooner these things are tested, the faster we can find out if in fact it is one of the grandsons friends that Lee Rose and Eric Benge told the detectives where the ‘other’ people recently in the house.

That is all I know to say. What more must I do to prove I did not murder Mrs. Franklin? My hands are tied. After 23 years, they have worn me down,

I am tired of this life and living like this. Test the evidence I am requesting be tested and when it comes back not me or the friends, give me a new trial. If it is one of the friends… Well that opens the door for new questions. And that is what they don’t want. Because all answers lead away from me. What do they have to lose? The district attorneys office has a friend(s) in the TCCA…so what do they have to lose? Test the screw driver and the^–friends. Please! Please test them. This is why I beg people to contact the media. They can and will do investigations.