COMMENTS – OPINION AP – 74,930 – Overrule denial DNA testing

This opinion is the one which allowed me to have DNA testing done on the items listed 1 thru 4, where the TCCA reversed my trial court’s ruling where district judge from the 248th district court judge Joan Campbell denied my Chapter 64 motion requesting DNA testing.

In this opinion you can see where it says the opinion was delived by Johnson J. and joined by Meyers….you will see by reading the next opinion Meyers wrote the opinion doing a complete about-face. Meyers delivered the following opinion No. AP 76,970).

A chapter 64 motion is a motion to have DNA testing preformed on items that my yelled DNA results. (See Tex Code Crim Proc Ch. 64 (2001) for a better understanding))

I am going to ‘attempt’ to explain and touch on a few things in this opinion that I feel need to have light shed on them, most of it is pretty straight forward, I just want to touch on the things I feel are important.

1. Eric Benge testified that the back door was kept closed and the front door was always locked … Here is proof of what I was saying, Eric and Lee Rose always locked that front down no matter where they were going or how long they would be gone, it stayed locked.(See XXVII at 64-70, 77, 130-1. XXVIII at 281-1)

2. ‘One the day of the murder, Eric Benge had nailed a screen over a window in his bedroom that was sometimes used as an entrance by the grandsons appellant and at least one other person, Edward Bangs’ … they are talking about it is a old wooded frame with a screen it in. This is a older house build in the 50’s I would guess, and had a pull out and away screen frame on hinges, which Eric testified that he nailed down that very day. As for him saying I and at least one other person used that window as an entrance to the house is flat out false. I have never went in through ‘that’ window in my life. When I left that neighborhood in 1988, nobody lived in that front bed room, it used to be their grandfathers room who had died in 1987, and it was to be Lees room, but Lee never slept in it when I was there. And his grandmother told everyone to stay out of the room, but it was to be Lees room, he slept on the couch until then. Nobody ever went in that window as far as I know, when I was running around with them in 1988. So how they can say I used that window is beyond me, other than they hate me and will say anything to make it seem like I knew about that window. I am not saying that I never went in a window there, but it was a different window and only, absolutely only when Eric was home. My girlfriend at the time and I used to skip school and go to his house early in the morning and stay there all day. I would knock on the window and Eric would let me in, his room back then was on the same side of the house but towards the back. And that is the room he lived in when I left that neighborhood. But when I came to visit one day, 4 years later, he was now living in the front bedroom which was his grandfather’s, he and lee had switched rooms. And the day I saw Lee and Eric the day their grandmother told Lee she did not want me there, was the first time I had been in that neighborhood in over 4 years and I was only there in that neighborhood because I lived on Ried Street, at 706 Reid Street which is just a few block from Mrs. Franklin’s home. (See map from 706 Ried St. to 617 Westford St.) And I only moved over there to be closer to my chick who lived off of Airline Dr. and E. 26th street (See map to see just how much closer I lived versus from where my mom live off of Cedar Hill, it is miles closer). And during that visit Lee did not invite me in through ‘the window’ but the front door. I have never went in that window in my life, ever.

3. ‘Mrs. Scott testified that it was a week or two before the murder that I was in her home walking away from her drive way’ …It was two weeks. And that was the first time I had ever met the woman in my life. She said it had been more than two years since she had seen me…that woman and I had never met In our lives until the very same day I visited Lee, John and Eric the very day Mrs. Franklyn told Lee she did not want me there. So, Mrs. Scott is mistaken about that, I don’t know why she would say this other than she was just feeding off of what everyone else When they said it had been more than 2 years since they had seen me or that I was in prison for 2.5 years, it was actually much longer than…that, the last time I was in that neighborhood prior to the murder of Mrs. Franklin was in 1989, and went over to my daughters grandmothers to visit my kid. And that was the last time I ever saw my daughter before that I lived in Deer Park TX for close to a year, and went to the Harris county jail for 6 months, and then to prison for 2.5 years. So it had been some time since either John Phillips, Lee Rose, Eric Benge and Linda McClain had seen me. Over 3.5. I last saw Linda McClain November 1988 when she dropped me and my girlfriend off at my apartment in Deer park TX on Thanksgiving Day. That is how long it had been since Lee and Eric last saw me as well. So for Mrs. Scott, John Phillips grandmother to say she knew me and hadn’t seen me in 2 years is false. I met her the very day Mrs. Franklin told Lee Rose she did not want me there. Two weeks prior to the murder.

4. ‘Officer (..) spoke to witness across the street, she didn’t get a good look at suspect’….First off that was not me and could not had been me, because I am 3-4 miles away at that very moment at Shirley gun’s house off of Dodson St. and Simmons. At 9146 Simmons St (see map from 617 Westford to 9146 Simmons Street, also see Shirley Gunn’s trial testimony, XXVA 296-7 and Police Report Donna Espada at 1.003. That just flat out is not me at that window taking off that screen as Mrs. Espada said she observed someone doing. It is impossible to be me I cannot be in two places at once, nobody can. But everyone but me is over looking this fact. At 6:pm Gunn stated I was at her house and notes the time due to her show just starting to come on, the ‘Roseanne Barr show’ (see 1992 TV guide) the TCCA even call this person the [supect], well that [suspect] is not and was not me, period. It is a fact that someone entered that south east bedroom window by using a screwdriver that was found on the window ledge, to pry open that window that Eric had nailed down that very day before leaving for work. There were foot prints found below the window, a foot print found on the bed, and fresh wood chips from someone using that screw driver to pry open that window. And that someone is not me, couldn’t be! I am at Shirley Gunn’s house. The TCCA is under the impression that Mrs. Gunn and Mrs. Franklin were ‘neighbors’. This couldn’t be further from the truth. They lived in two different neighborhood. (See map from Mrs. Gunn’s at 9146 Simmons St. to Mrs. Franklin’s at 617 Westford St.)

 5. ’Were running in and put the day of the murder’ First, Mrs. Scott lived on the next street over at 607 Wainwright St., somewhat directly behind Mrs. Franklin. Rose testified that he was at work during the murder … no    he wasn’t, I know just what he and john Phillips were doing ‘running in and out’ of Mrs. Scott’s house all day. So does he. They were up in Johns room smoking crack. That is the only reason why they would be ‘running in and out’ of her house all day, up in John room smoking crack. Lee did not have a job, so he couldn’t had been at ‘work’. I am not writing that to make Lee any more angry at me than he already is,    but facts are facts. And the fact is, he lied on the witness stand by saying he was at work. Everyone was on crack when I got out of prison, it was scary to see. My daughter’s aunt Cynthia was selling herself for money to buy crack. I would had never thought that in a million years. I would had never though Lee would do crack either, but in the 4 years I was away, a lot had changed.

 6. No blood was located on the exit point …Calling this the exit point, but it makes no since. First if I killed Mrs. Franklin I would had been covered In her blood. There is no blood on the exit point. But also it is a proven fact that someone entered that bedroom window by prying the window open with the screw driver that was found. There were fresh wood chips and Eric had just nailed it down that very day. So what is the front porch light doing off when it is usually on and the front screen door is wide open as well as the front door? Which was locked. I said it before I ain’t the brightest ‘of people, but to me is seems as if someone entered the window and then before leaving the front door turned the porch light off so not to be seen?? I am just guessing here. …The only reason I said I went out the back door was because Sgt. Allen asked me if I did. I told him: “Then I guess I went out the back door’, after he told me someone saw me jumping a fence. I was just going along with whatever he wanted me to say.

7. Sgt. testified, no further analyst was conducted on it. Well, it seems to me they should test it for DNA, just because you wash a knife off does not mean the presence of blood will not still be there, and there could be DNA on the handle of the blade, it needs to be tested, more so since my DA showed that blade to the jury inflaming their minds. And Eric said it was not there when he left. But Allen said the blade was as short as two inches. Mrs. Franklin had stab wounds that punctured her heart She was beaten so hard that half her ribs were broken, some of the stab wounds went in a 4 inches deep I think the deepest one was 4.5 inches. And although true a 2 inch blade can produce a 4 inch stab wound, it would be impossible not to leave a ’hilt mark’ because once the blade is in 2 inches, it ’bottoms out’ meaning the blunt end of the knife is now flush against the body. And if you press harder and push in, you now are putting resistance between the blunt end of the knife and body and that would produce a ’hilt mark’. I could be wrong, there could be hilt marks, but I have never read anything or seen anything to suggest that there were ’hilt marks’ and if there were not then that proves my little old timer pin knife the smallest one they make, could not had produced those 4 inch stab wounds. I had no cuts on my hand, and it is very common in knife attacks where a lot of stabbing is going on, I had no cuts on my hands, and no bruising on my fist, if I was hitting Mrs. Franklin as hard as they say I was, I would have something on my hands, cuts or bruises on my knuckles, I had nothing. That is flat out impossible. They took photo’s of my hands which as with other important evidence has gone, missing.
8. No evidence that connected appellant to the crime was recoverd from the jacket… This is the very jacket I was wearing and if I had murdered Mrs. Franklin then I would had been covered in her blood, as was Eric who tried to perform – said he- tried CPR on her, he said that his arms and hands were covered in her blood. And that all happening in a short time, verses someone beating and stabbing her to death, I would had been covered in it. I had not one micro droplet on me. They tested and retested my jacket, and nothing. That is flat out impossible.

9. I walked over to a friend of mine name Larry. Larry lives off Irvington … This is not true, I did not go to Larry’s house that day and speak with him. If I would had, there is no way that Barbara and Blaine Wright would had seen me walking towards them down Caperton St. towards Irvington where they were just getting back into their car after buying flowers for Cynthia who was in the hospital. Larry lived on the next street over, which would be McDaniel’s so there is just no way, if I would had stopped at Larry’s first, they would not had seen me, and if they would had, it would had been me coming towards them walking down Irvington towards Crosstimbers. I was walking on Caperton. Although I did go to Larry’s house, it was two weeks prior to the murder of Mrs. Franklin and it was with Lee Rose, Lee wasn’t allowed to go up there for some odd reason. He stayed out on the street while I went in and talked to Larry, his wife and brother and this would be the very same day that I first saw anyone from that hood in 4 years. The first time I saw Lee. If I would had saw Larry that day, that would mean I saw him twice in the time I was out. I only saw him once and that was the day I was with Lee.

10. ‘I left Larry’s house and walked over to melody’s house on Post Street and talked to her mother and left’ … This is false as well, I didn’t not go to melody’s moms and talk to her. However, as with Larry I did go to melody’s mom and speak with her mom and dad, but once again, Lee was with me. He waited on the street. And when melody’s mom asked me if I would go talk to melody who was living with some black dude on the other side of Hardy Toll Rd., I told Her I didn’t know where she lived, but asked Lee and he told me he did and from melody’s moms, we went to melody’s to talk to her. But when Lee went to talk to didn’t want to come out and talk. So we left. As with Larry, if I would had talk to melody’s mom, that means I would had talked to her twice within the time I was out of prison. I only talked to her and her husband once and Lee was with me. How else would I know where melody lived?

11. ‘Pookie had moved’ … This is also false, as far as I know Pookie still lived in the same place with his girlfriend when I first and last saw him. When Lee Rose and I went to see him, Lee is the one that showed me where he lived, I would not had known if it had not been for Lee taking me over there. But again he still lived there as far as I knew. I know these things are small compared to the overall picture, but it just shows that I was saying anything I thought he wanted to hear. And these three things can be checked out. If someone would just take the time to do it, If Lee was to be honest he would be able to vouch that he went with me to these three places and would know if in fact Pookie had moved, which I know he did not move.

12. ‘I did not hear any one answer and just went inside’ … I cannot go inside of a locked door. Everyone is in agreement that the front door was locked. (See XXVII at 69-70, 77, 130-1, XXVIII 280-1). It is a fact someone went in through that bedroom window. And it was not me. (See XXVIII at 89-92, XXVIII at 189)

13. ‘I just graded Edna I remember struggling with her. I was on top of her I went out the back of the house that leads into the back yard’ … There are a number of things that are wrong with this paragraph. I said I struggled with her, which means there was a struggle, and she was fighting back. Yet none on my DNA was the DNA found under her nails. I was on top of her, yet again none of my DNA was on her or any of her DNA on me. ‘I know I had my knife but do not recall taking it out.’ That is because he could not get me to say I stabbed her. I just flat out refused to say I stabbed anyone. ‘I saw Edna covered in blood and underneath her.’ that means there is a lot of blood all over her and around her, but once again, not one micro droplet of Mrs. Franklin’s blood landed on me that would be impossible. I don’t care how anyone wants to spin it, there is just no way. That would defy the laws of physics and it is not under no circumstances possible. I am sorry but I just do not believe anyone could had walked away from that bloody crime scene without some blood on them…again I point to what Eric Benge said, as he was attempting to give her CPR, his arms and hands were covered in her blood. But not me? Not one micro droplet of Mrs. Franklin’s blood on me? There is no way that would not happen. If something doesn’t make sense that means it isn’t true.

‘I went out the back door that leads to the back yard’… I only said I went out the back yard only because Sgt. Allen brought it up to me. Or something like that…This man they are referring to is some guy named Truitt. But yet he never testified at my trial. No one talked to me about jumping this fence. Not only that but Truitt’s statement doesn’t say anything about him telling me ‘ I had better not catch you in my yard dumping my fence’. I only told Sgt. Allen this because it was he who told me this man told them he talked to someone that fit my description. Yet again, they never called him to testify, I wonder why not? Did they not believe him? Instead they called his brother in law Doyle and he, while on the stand could not identify me.

Of course not, the description he gave was of a guy almost 6 foot and 180 – 200 pounds. That damn sure ain’t me. But I have often wondered why they never called Truitt. That really bothers me to this day, why not? What did someone in the DA’s office learn from him about what he told them that caused them not to call him? Something is damn fishy about that, why not call the very man who said he personally talked to me? Did his story not match up with his brother in law’s? Surely his brother in law Doyle heard the conversation as well? I am not an easy guy to miss, I have distinctive features.

14. ‘I also had a black jacket … I said the next day I knew I had killed Edna. I think I would know I killed someone no matter how out of it I was. I think that would had been one of those moments where you are shit faced drunk, but all of a sudden you sober up in the blink of an eye. Something just makes you sober that fast. And this to me would be one of those things. Again I repeat that she was covered in blood and we struggled. I cannot struggle with someone and they be covered in blood and I not get it on me. There is no way.

15. ‘This counsel ultimately admitted the killing at trial and relied an elements of argument.’… Yes, my attorney Felix Cantu admitted to the killing, but here is why. He knew they were going to sentence me to death, and did that by trying to save my life. I don’t agree with it, but I understand it. But what if he would had had that lab report that was withheld? What if he would had had it and then investigated my statement? What if he had done those two things and then believed me when I told him I didn’t do it and only told them I did it to make sure Merry went home and the baby wasn’t taken away from her? His whole outlook would had been different. He even admits as much in his affidavit he wrote for me saying he never saw the lab report. So yes I understand why he admitted to the killing arguing that it was murder and not ‘capital’ murder, he was trying to save my life. The cards were stacked against me from the day Mrs. Franklin was murdered, and everyone started thinking I could had did it.

16. ‘Identity is, or was an issue as required under article 64.03’ … Here they admit identity was an issue, but you will see later in the following appeal they shut that door as quickly as they opened it.

18. ‘The waters would not be muddied by exculpatory DNA evidence’….They said that in this opinion, wait until you read the next one, they completely backed away from this. And are saying ‘the water are very muddied now’…let’s clear them up by testing the grandsons friends. That should clear the mud right out of it. But they aren’t about to allow me to have these friends tested without a long battle. Mark my words.

They also say the crime scene was a ‘private home’ and the victim was ill and rarely left the house or ‘had contact with anyone other than her grandsons‘. But once again they have completely backed away from that and now are saying she did have contact with the grandsons friends and that ‘might’ could’ account for how the ‘blood’ DNA that was detected underneath her fingernails. Mrs. Franklin did not have contact with the friends? Not when I knew her, nobody and l mean nobody went her bed room when she was there. It was not a place to ‘hangout’ it was her ‘private’ room she had converted into a bedroom area for herself. Nobody help her use the bath room, shower her, feed her, hug on her but Eric and Lee. And if Lee Rose and Linda McClain would be honest about that, it would clear the air and set the record straight. I know they hate me, and for good cause, they think I murdered their loved one, but still, the truth is the truth. And I wish they would say something on this and not allow the District Attorneys office to make up all these lies that they are spoon feeding the judges who are just eating it up and excepting the DA’s words as fact. Those friends did not have close contact with Mrs. Franklin. They did not, period. I know they didn’t, Lee Rose knows they didn’t, Linda McClain knows they didn’t and all our old friends I hung with 4 years prior know they didn’t help her do anything around the house, such as clean her, bath her or cook for her. They may had cut the grass to help Lee and Eric. They may had help moved something for her, but touch her? No! Flat out no! Yet they are ignoring the blood DNA found underneath her nails.

19. Both the appellant and Bangs were in the home on a number of occasions before the murder” … Right there, that is just flat out wrong. Wrong as can be. I hadn’t been in Mrs. Franklin’s house in close to 4 years. 4 years! And the only time I went in her house for the first time in 4 years was the very day she told Lee Rose, she did not want me there, she never said one word to me personally about not wanting me there she told Lee and he told me: “come on, let’s go”. So how can they keep saying this when it isn’t true? Lee and Linda both know this is not true, I mean man, lets add it up…

• I moved to Deer Park TX in 1988. I got a job with Mesh Plastics in Deer Park, had my own apartment off of Center St. and X St. I lived there with my ex and child.
• I last saw Linda McClain thanksgiving day of 1988, when she and John Phillips gave Kari and I a ride home after spending thanksgiving with them. She drove us to Deer Park to my apartment.
• I turned 19 in deer park TX march 22nd 1989.
• I get into t altercation with my step dad that landed me a year county time in the Harris County jail where I had to do 6 months flat (2 for 1 days)
• I was released from Harris County jail in 1990.
• I am out for just a few months, maybe a month and a half, and I get arrested. For a aggravated robbery charge, I am sentenced to 10 years aggravated TDJC and had to do 2.5 years to the day.
• I am released 8/10/92.
• It was in September about the last two weeks of September I moved over to 706 Ried St. to be closer to Merry Alice who just had the baby.
• In October about 2 weeks prior to the murder of Mrs. Franklyn, is the first time I see Lee Rose, John Phillips, Eric Benge, Edward Bangs, or Mrs. Franklin, or anyone else for that matter in that neighborhood. Since thanksgiving day of 1988, which was the last time I saw Linda, John and Eric. I hadn’t seen Lee in even a bit longer. So no, no I wasn’t in her home on a ‘number of occasions before her murder’! I was however in her home many times in 1986 when I first met Lee and Eric and Linda, 1987 and the early part of 1988 up until my daughter was born in September. I damn near lived there with them, we hung together every day. But from thanksgiving day 1988 until the day Mrs. Franklin told Lee she did not want me there. I had been in that house one time, just once in all those years. I have work records, jail and prison records to back this up. I have no reason to lie about this at all. And let’s be very clear about something else too, the DA has managed to convince the courts and judges that even after Mrs. Franklin made it clear she didn’t want me there, that Lee and Eric were still letting me come over. That is absolutely false. Lee and Eric both admit that the day she made it clear to Lee that she did not want me there, they said that was the last time they saw me.

The night of the murder, ‘reporter Carlos Aguilar then interviews a shirtless Rose, ‘he got mad and threw a bottle and that was the ‘last time I seen him‘! So how are they saying I was there on many occasions prior to the murder? And how can they keep getting away with these known lies? What part do they not understand that I wasn’t in Mrs. Franklin’s house but one time in damn near 4 years? So when the TCCA wrote that, ‘and finding the deffendants hairs wouldn’t be remarkable … Well it would be to find my hairs and DNA there after 4 years. That makes zero sense to me. But the courts eat it up by the spoonfuls. Saying the grandsons would ‘sneek’ me in after she told them she didn’t want me there. Where are they getting this? If fake! It’s a lie!

So when Carlos Aquilar interviewed Lee Rose, and a shirtless Rose told all of Houston TX: “And that was the last time I saw him”, he is telling the truth. Those are true words Lee Rose is speaking. Yet what is left out, is the day he last seen me was also the FIRST time he had seen me in 4 years. 4 Years! This is also the same day his grandmother told HIM she did not want me there and the same day I busted the beer bottle on the street. Yet the prosecution has twisted Lee and Erics words to fit their need to make it seem as Lee and Eric still allowed me over when their grandmother said she didn’t want me there. This is false, Lee know this is false. So again the ‘many occasions’ they are referring to was in 1986, 1987 and 1988. 4 Years prior to the murder of Mrs. Franklin. Form August 1988 to October 1, 1992 (about 2 weeks prior to the murder) I hadn’t set foot in their home in all these years. Lee, Eric and Linda know this. I cannot stress this enough, the day Mrs. Franklin told Lee, Eric and Linda didn’t want me there, was also the first time I had seen Lee, Eric and Mrs. Franklin in 4 years! But what is left out is, this was the first time AND the last time he saw me in 4 years.

But still the prosecution twists these words and makes the court believe them. As if I was over there ‘many occasions’ shortly before the murder, and Lee and Eric would allow me in, by ‘sneeking me in’…. this is false. Lee and Eric never ‘snuck’ me in any where. This is just one example of how the prosecution has twisted the facts to get the court to repeatedly deny me, I just don’t understand that. We have Lee said the day ‘he got mad and threw the bottle was the last time I had seen him’ in his own words proving I hadn’t been over there in 4 years because once again…. That day Lee speaks of is the same day I saw him for the very first time in 4 years. I don’t know what else to say about this.

Now, I want to be clear about something, I am NOT saying I wasn’t in that neighborhood in 4 years. I was, and that was only 1 time. And that day is forever burned in my memory, it was the day I went to talk to my ex about working things out so I could see my daughter. She agreed, told me to come back the next day, so I do. I am in the house, and all of a sudden a car pulls off. My daughter is aware of this because the woman who picked them up later became my grandmother Mary. So that was the LAST time I was in the neighborhood, and my ex lived about a mile or less from Franklyn’s. But still, within 4 years, I was in that neighborhood 1 time at my ex’s house, to see my kid. And that was the last time I was in that neighborhood. But again, I didn’t see Lee or anyone else during that visit. My mom came and picked me up and soon after I was in jail on that stupid aggravated robbery charge. I just don’t know what else to say about this 4 years in a long time.

20. ‘Proof of actual innocence is not required’ …That is correct, but you will see in the following opinion that my trial judge who denied my motion for Chapter 64 was / is holding me to the actual innocent standard. At least to me she is and so is the TCCA even after they clearly state that I do not fall under that standard.

21. ‘From the crime scene’… Of course my statement contradicts the physical evidence of the crime. I didn’t know what the hell he was talking about and I was just making things up as I went along. Anything to get’ Merry and the baby home. I cannot admit to things I know nothing about. My statement is factually false.

22. DNA testing would be useful in this case’… Joseph Chu knew my blood type.(See XXIX at 401 2) and he flat out ignored detective Sgt Allen’s request for DNA testing. Why would he ignore that request? I think he saw the test were excluding me and he knew for a fact I confessed, so I truly believe that he took it upon himself to not test things. But it doesn’t erase the fact that he still lied on the stand saying the results were ‘inconclusive’ when they were not.

 (go back to page 11 of Opinions…. ‘finger nails of the victim’ …Dr. Elizabeth Johnson stated that it is common in cases of direct assault with a knife there will be a struggle and DNA can be transferred to the fingernails’- to me she is saying there could very likely be contact, and that contact could draw DNA, in this case the DNA is from actual blood under Mrs. Franklin’s fingernails.

Yet you will see in the following opinion that the DA has convinced the court not to believe anything Dr. Johnson said because she cannot say for certain that this DNA came from the attacker. And that is what my judge went with and the TCCA went with. And to me that is them holding me to the absolute actual innocent standard. Which is not what they are supposed to do. They wanted Dr. Johnson to prove that this DNA came from the attacker, but they can’t say it didn’t! But the one thing Dr. Johnson and all the other states experts have said unanimously, this DNA that was found under Mrs. Franklin’s nails is not the DNA from Charles Douglas Raby, I am excluded 100%.

Raydun Jieeman, a Houston police department chemist did not find any hairs from the crime scene were consistent with Raby’s hair nor did he find any of the victim’s hair on clothes removed from Mr. Raby’s home’

23. Okay, a couple of things. They admit ‘from Raby’s home’ … that home being 706 Ried St., just a few blocks from Mrs. Franklin’s., and there is no way I wouldn’t had walked away with something of her on me. I could care less about ‘hair’s’ but it should be noted they found none of hers on me. But more important and I cannot stress this enough, there was no blood on any of my clothing. Nothing. That in itself should speak volumes. But it falls on deaf ears as everything else I say does.

Will be interesting to see what they have to write when I bring up all the constitutional violations. I am sure they will deny me. They will say as I have said they will, it is all harmless error. It wouldn’t had made a difference.