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Law School Case Brief

Ex parte Kussmaul - 548 S.W.3d 606 (Tex. Crim. App. 2018)


Tex. Code Crim. Proc. Ann. art. 11.073 applies to relevant scientific evidence that: (1) was not available to be offered by a convicted person at the convicted person's trial; or (2) contradicts scientific evidence relied on by the state at trial. Tex. Code Crim. Proc. Ann. art. 11.073(a)(1)-(2). Relief can be granted under Article 11.073 upon a threefold showing that: 1. relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial; and 2. the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and 3. had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.


Habeas corpus applicants James Edward Long, James Wayne Pitts, Jr., and Michael DeWayne Shelton pleaded guilty to the offense of sexual assault and testified against applicant Richard Bryan Kussmaul at his capital murder trial. Long, Pitts, and Shelton all testified at trial that they and Kussmaul had gang raped a female victim and that Kussmaul had shot both the female and male victims. Post-conviction DNA test results excluded all four men as contributors to the semen collected from the crime scene, but revealed the genetic profiles of two unidentified men. Long, Pitts, and Shelton now recant their inculpatory statements to the police and their testimony at Kussmaul's trial, and the trial court recommended that the instant court of appeals grant relief on Article 11.073 and actual innocence grounds.


Were habeas corpus applicants entitled to relief under Article 11.073 based on the discovery of new scientific evidence?




The Court took the trial court's first recommendation (that relief be granted on 11.073 grounds), but not the second (that relief be granted on actual innocence grounds.) Habeas corpus applicants were entitled to relief under Tex. Code Crim. Proc. Ann. art. 11.0711.073 because the DNA evidence currently available, excluding the three applicants and defendant as contributors to the semen collected from the crime scene, was not available at the time of trial because it was not ascertainable, the evidence was admissible at trial, and had the evidence been presented at trial, defendant would not have been convicted of capital murder and the applicants would not have been convicted of sexual assault. As for the actual innocence grounds, the Court explained that the DNA evidence in this case undermined the State's sexual-assault and murder-in-the-course-of-aggravated-sexual-assault theories underlying these cases. However, there is still the double murder to consider. If the applicants  committed the double murders—as principals or as parties—but not the sexual assault, none are actually innocent. The Court concluded that issue here is whether the applicants have shown by clear and convincing evidence that they did not perpetrate the crimes committed against Murphy and Neighbors, not just whether the crimes perpetrated included rape. The applicants were remanded into custody to answer the charges in their indictments. 

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