NO. AP-75,363 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ...

NO. AP-75,363
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN
MAX ALEXANDER SOFFAR,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Trial Court Cause No. 319724
Appeal from the 23nd Judicial District
Harris County, Texas
The Honorable MARY LOU KEEL, Judge presiding
BRIEF FOR APPELLANT
DAVID R. DOW
Bar No. 56064900
ddow@uh.edu
JARED P. TYLER
Bar No. 24042073
jptyler@texasdefender.org
Texas Defender Service
412 Main St. # 1150
Houston, Texas 77002
Voice: (713) 222-7788
Fax: (713) 222-0260
ORAL ARGUMENT
REQUESTED
BRIAN W. STULL
Practicing Pro Hac Vice
bstull@aclu.org
ACLU Capital Punishment Project
201 W. Main Street, Suite 402
Durham, NC 27701
Voice: (919) 682-9469
Fax: 919-682-5961
ATTORNEYS FOR APPELLANT

Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as follows:
(1) MAX SOFFAR, TDCJ # 000685, TDCJ Polunsky Unit, 3872 FM 30 South,
Livingston, Texas 77351, is the appellant and was the defendant in the trial court.
(2) The STATE OF TEXAS, by and through the Harris County District
Attorney’s Office, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923, is the
appelle and prosecuted this case in the trial court.
The trial attorneys were as follows:
(1) Max Soffar was represented by KATHRYN M. KASE and JOHN P. NILAND
of the TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas
78704.
(2) The State of Texas was represented by CHARLES A. ROSENTHAL, Jr.,
District Attorney, and LYN MCCLELLAN, DENISE NASSAR, AND ALAN CURRY,
Assistant District Attorneys, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923.
The appellate attorneys are as follows:
(1) Max Soffar is represented by DAVID R. DOW and JARED P. TYLER of the
TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas 78704,
and BRIAN W. STULL of the American Civil Liberties Union Capital Punishment
Project, 201 W. Main Street, Suite 402, Durham, NC 27707.
(2) The State of Texas is represented by CHARLES A. ROSENTHAL, Jr., District
Attorney, and the Harris County District Attorney’s Office, ALAN CURRY, Appellate
Division Chief, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923.

TABLE OF CONTENTS
Page
Identity of Parties and Counsel ......................................................................................... ii
Table of Contents ............................................................................................................. iii
Index of Authorities ......................................................................................................... ix
Statement of the Case .................................................................................................... xxvi
Statement Concerning Oral Argument ......................................................................... xxix
Statement of Facts ............................................................................................................. 1
Summary of the Argument .............................................................................................. 25
Appellant’s First Point of Error .................................................................................. 27
(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements
against interest establishing that Paul Reid told an accomplice during a Houston
robbery that he had previously shot four people in a bowling alley on Route 290. .31
(b) The trial court violated Max Soffar’s federal and state constitutional rights to
due process, compulsory process, and to present a defense by precluding evidence of
Reid’s admission to shooting four people in a bowling alley on Route 290. ............ 36
Appellant’s Second Point of Error .............................................................................. 47
(a) The trial court violated Appellant’s constitutional right to present a defense by
refusing to grant immunity to a witness who would have testified that Paul Reid told
him during a crime that Reid had shot four people in a bowling alley on Route 290.
........................................................................................................................................... 48
(b) The trial court violated Appellant’s constitutional right to present a defense by
failing to compel Cook to testify because his invocation of the right against self
incrimination was improper. ......................................................................................... 51
Appellant’s Third Point of Error ................................................................................. 54
The trial court denied Max Soffar his constitutional right to present a defense by
iii

precluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texas
and Tennessee crimes, which marked him as the perpetrator of the remarkably
similar Fairlanes robbery-murders. ............................................................................ 54
Appellant’s Fourth Point of Error .............................................................................. 65
The trial court violated Max Soffar’s constitutional right to present a defense and
basic evidentiary rules by precluding evidence showing that the Houston media
broadcast details of the crime contained in Soffar’s putative confession which the
prosecutor claimed only the perpetrator could have known. ................................... 65
Appellant’s Fifth Point of Error .................................................................................. 74
(a) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated equal
protection. ...................................................................................................................... 75
(b) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated due process
and Appellant’s right to a fair cross section. .............................................................. 82
Appellant’s Sixth Point of Error ................................................................................. 86
(a) The State’s failure to preserve exculpatory evidence violated Appellant’s rights
to due process and a fair trial under the United States Constitution. ....................... 87
(b) The State’s failure to preserve exculpatory and valuable evidence violated
Appellant’s rights to due course of law under the Texas Constitution. .................... 90
Appellant’s Seventh Point of Error ............................................................................. 91
Rooted in a completely unreliable confession, Appellant’s conviction rests on legally
and factually insufficient evidence and violates his right to due process of law. .... 91
Appellant’s Eighth Point of Error ............................................................................... 93
The trial court violated Appellant’s constitutional right to present a defense by
repeatedly precluding evidence which undermined the prosecution's case and
impeached the police investigation. ............................................................................. 93
iv

Appellant’s Ninth Point of Error ................................................................................. 95
The court deprived Appellant of his rights under the Confrontation Clause by
admitting testimonial hearsay evidence never properly tested in the crucible of cross
examination. .................................................................................................................. 95
Appellant’s Tenth Point of Error ................................................................................ 97
(a) Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid any
purported waiver of his right to counsel. ................................................................... 101
(b) The police obtained Soffar’s statements by failing to honor his invocation of the
right to counsel under the Fifth Amendment. ........................................................... 102
(c) The police violated Soffar’s Fifth Amendment rights by continuing their
custodial interrogation after he invoked his right to remain silent. ....................... 104
(d) Under Texas law, the police were required to clarify whether Soffar wanted
counsel, if his invocation was ambiguous. ................................................................. 104
(e) Soffar’s statements were involuntary and should have been suppressed. ...... 105
Appellant’s Eleventh Point of Error ......................................................................... 106
The trial court committed reversible error by admitting Appellant’s alleged oral
statements in violation of Texas Code of Criminal Procedure 38.22. ..................... 106
Appellant’s Twelfth Point of Error ........................................................................... 108
The prosecution deprived Appellant of a fair trial by making several factually
inaccurate or misleading arguments to the jury. ..................................................... 108
Appellant’s Thirteenth Point of Error ....................................................................... 110
(a) The trial court committed reversible error by refusing to instruct the jury that it
should disregard Appellant’s putative confession if the State failed to prove he
waived his right to remain silent and to counsel during custodial interrogation. . 111
(b) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s putative confession if it found the confession untruthful. . 112
v

(c) The trial court committed reversible error by refusing to instruct the jury to
disregard Soffar’s putative confession if it found that intoxication rendered his
confession involuntary. ............................................................................................... 113
(d) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s confession if it was the fruit of an illegal police threat. ..... 114
(e) The trial court committed reversible error by refusing to instruct the jury not to
hold against Appellant any delay in prosecuting this case. ..................................... 115
(f) The trial court committed reversible error by refusing to instruct the jury that it
could draw an adverse inference against the State if its explanation for losing
important evidence was inadequate. ......................................................................... 115
(g) The trial court denied Max Soffar his constitutional right to avoid ex post facto
punishment by refusing to instruct the jury on the more demanding standard of
proof for circumstantial evidence applicable at the time of the crime. .................. 116
Appellant’s Fourteenth Point of Error ..................................................................... 118
(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights to
present relevant mitigating evidence under a residual doubt theory by precluding
evidence that Paul Reid was responsible for the Fairlanes robbery murders. ...... 120
(b) The court deprived Appellant of his rights under Texas law to present mitigating
evidence under a residual doubt theory by precluding evidence that Paul Reid was
responsible for the Fairlanes robbery murders. ...................................................... 122
(c) The court deprived Appellant of his constitutional rights to present powerful
mitigating evidence when it precluded the introduction of sworn affidavits from
witnesses who had died since the first trial. ............................................................. 123
(d) The court deprived Appellant of his constitutional right to present relevant
mitigating and rebuttal evidence when it repeatedly precluded such evidence. ... 124
Appellant’s Fifteenth Point of Error .......................................................................... 127
The trial court violated Appellant’s constitutional and statutory rights by allowing
victim impact evidence related to a victim not named in the indictment. .............. 127
Appellant’s Sixteenth Point of Error ........................................................................ 128
vi

(a) The trial court committed reversible errors by refusing Appellant’s charge that
the jurors could not give “no weight” to the mitigating circumstances they found
and by charging them that “[i]f you find that there are any mitigating circumstances
in this case, you must decide how much weight they deserve, if any . . . ” ............. 129
(b) The trial court committed reversible error by charging the jurors that they had
discretion to decide whether a circumstance was mitigating. ................................. 130
(c) The trial court committed reversible error by charging the jurors that a “yes”
vote to Special Issue Four required ten votes. .......................................................... 131
(d) The trial court committed reversible error by charging the jurors that their
answer to Special Issues One, Two, and Three, which presented factual questions,
“should reflect an individualized determination by each juror of the personal
culpability of the defendant.” ..................................................................................... 132
(e) The trial court committed reversible error by denying the Appellant’s written
and oral objections to the court’s charge and verdict form on the ground that the
indictment did not allege special issues one, two and three. ................................... 134
(f) The trial court committed reversible error by charging the jury on special issue
three (i.e., future dangerousness). .............................................................................. 135
(g) The trial court committed reversible error by failing to instruct the jury to
disregard victim impact evidence not shown to be within the knowledge or
reasonable expectation of the defendant. .................................................................. 137
(h) The trial court committed reversible error by refusing to charge on residual
doubt as mitigating evidence. ..................................................................................... 138
Appellant’s Seventeenth Point of Error ..................................................................... 138
(a) The trial court committed reversible error under the common law and this
Court’s case law when it reassembled the jury to render a verdict after dismissal.139
(b) The trial court’s reassembly of the jury violated Appellant’s federal and state
constitutional rights to due process of law, to be free of cruel and unusual
punishment and against double jeopardy. ................................................................ 140
(c) In the alternative, this Court should order an evidentiary hearing on any facts it
vii

deems in dispute and dispositive of the issue. ........................................................... 141
Appellant’s Eighteenth Point of Error ....................................................................... 142
Prosecutors’ unfettered, standardless and unreviewable discretion under Article
37.0711 violates equal protection, due process and the Eighth Amendment. ........ 142
Appellant’s Nineteenth Point of Error ....................................................................... 145
The Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment and
the Fourteenth Amendment’s Due Process Clause Prohibit Max Soffar’s Execution,
Given that He Has Spent Close to Twenty-Five Years Awaiting it. ....................... 145
Appellant’s Twentieth Point of Error ........................................................................ 146
Appellant was denied the effective assistance of counsel because of counsel’s
prejudicial failures to object and protect Appellant’s rights. ................................. 146
Appellant’s Twenty-first Point of Error
This Court should reverse due to the cumulative harm of the errors. ................... 150
Conclusion and Prayer .................................................................................................. 151
Certificate of Service .................................................................................................... 152
Chart Summarizing Similarities in Reid Crimes ............................................. Appendix A
viii

TABLE OF AUTHORITIES
FEDERAL CASES
Alston v. Manson, 791 F.2d 255 (2d Cir. 1986) ................................................... 77
Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................... 133, 134, 136
Arizona v. Fulminante, 499 U.S. 279 (1991) ................................... 42, 47, 97, 118
Arizona v. Youngblood, 488 U.S. 51 (1988) .................................. 87, 90, 115, 116
Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................. 144
Autry v. Estelle, 706 F.2d 1394 (5th Cir. 1983) ............................................. 49, 50
Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999) ................................................. 111
In re Beef Indus. Antitrust Litig., 600 F.2d 1148 (5th Cir. 1979) ......................... 69
Berger v. United States, 295 U.S. 78 (1935) ........................................................ 34
Blakely v. Washington, 542 U.S. 296 (2004) ............................................. 134, 136
Boyde v. California, 494 U.S. 370 (1990) .......................................................... 119
Buchanan v. Angelone, 522 U.S. 269 (1998) ..................................................... 131
Bush v. Gore, 531 U.S. 98 (2000) .............................................................. 143, 144
Cage v. Louisiana, 498 U.S. 39 (1990) .............................................................. 136
Calder v. Bull, 3 U.S. 386 (1798) ....................................................................... 117
Campbell v. Louisiana, 523 U.S. 392 (1998) ....................................................... 76
Carmell v. Texas, 529 U.S. 513 (2000) .............................................................. 117
Carter v. Jury Comm. of Greene County, 396 U.S. 320 (1970) ........................... 83
ix

Cassell v. Texas, 339 U.S. 282 (1950) ................................................................. 81
Castaneda v. Partida, 430 U.S. 482 (1977) .................................................. passim
Chambers v. Mississippi, 410 U.S. 284 (1973) ........................ 34, 36, 37, 119, 120
Chapman v. California, 386 U.S. 18 (1967) ................................................. passim
Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir.1985) ................... 77, 78, 85
Coleman v. Balkcom, 451 U.S. 949 (1981) ........................................................ 146
Colorado v. Connelly, 479 U.S. 157 (1986) ....................................................... 105
Culombe v. Connecticut, 367 U.S. 568 (1961) ................................................... 105
Crane v. Kentucky, 476 U.S. 683 (1986) ....................................................... passim
Crawford v. Washington, 541 U.S. 36 (2004) ...................................................... 95
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) ................... 1
Davis v. United States, 512 U.S. 452 (1994) ...................................... 102, 103, 104
DeGarmo v. Texas, 474 U.S. 973 (1985) ........................................................... 145
Duren v. Missouri, 439 U.S. 357 (1979) ...................................... 76, 83, 84, 85, 86
Eddings v. Oklahoma, 455 U.S. 104 (1982) ............................................... 130, 131
Elledge v. Florida, 525 U.S. 944 (1998) ........................................................... 146
Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................. 137
Foster v. Florida, 537 U.S. 990 (2002) .............................................................. 146
Franklin v. Lynaugh, 487 U.S. 164 (1988) ......................................................... 120
Fuentes v. Shevin, 407 U.S. 67 (1972) ............................................................... 140
Furman v. Georgia, 408 U.S. 238 (1972) .................................................. 143, 146
x

Giglio v. United States, 405 U.S. 150 (1959) ..................................................... 108
Green v. Georgia, 442 U.S. 95 (1979) ....................................... 119, 121, 123, 125
Gregg v. Georgia, 428 U.S. 153 (1976) ............................................................. 145
Griffin v. California, 380 U.S. 609 (1965) ......................................................... 110
Griffith v. Kentucky, 479 U.S. 314 (1987) ............................................................ 37
Hazelwood School District v. United States, 433 U.S. 299 (1977) ...................... 77
Hernandez v. Texas, 347 U.S. 475 (1954) ...................................................... 82, 83
Hobby v. United States, 468 U.S. 339 (1984) .......................................... 78, 83, 84
Hoffman v. United States, 341 U.S. 479 (1951) ................................................... 52
Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727
(2006) ....................................................................................................... passim
House v. Bell, __ U.S. __, 126 S. Ct. 2064 (2006) ............................................... 46
Illinois v. Fisher, 540 U.S. 544 (2004) ................................................................. 87
J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994) ..................................... 76, 77
Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................ 92
Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992) ............................................ 77
Johnson v. Mississippi, 486 U.S. 578 (1988) ..................................................... 141
Johnson v. Puckett, 929 F.2d 1067 (5th Cir. 1991) ............................ 76, 81, 82, 83
Jones v. Georgia, 389 U.S. 24 (1967) ...................................................... 78, 79, 85
Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) ........................................... 105, 106
Kansas v. Marsh, 544 U.S. 1060 (2006) ............................................................ 121
xi

Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988) ............................................... 104
Kelly v. South Carolina, 534 U.S. 246 (2002) ...................................................... 72
Kyles v. Whitley, 514 U.S. 419 (1995) ................................................................. 94
Lackey v. Texas, 514 U.S. 1045 (1995) .............................................................. 146
Lilly v. Virginia, 527 U.S. 116 (1999) ........................................................... passim
Lockett v. Ohio, 438 U.S. 586 (1978) ................................................................. 119
Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) ...................................................... 70
Luchenburg v. Smith, 79 F.3d 388 (4th Cir. 1996) ............................................. 149
Mancusi v. Stubbs, 408 U.S. 204 (1972) ........................................................ 95, 96
Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................ 144
McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) ............................................. 134
McKoy v. North Carolina, 494 U.S. 433 (1990) ................................................ 132
Michigan v. Mosley, 423 U.S. 96 (1975) ............................................................ 104
Miller-el v. Cockrell, 537 U.S. 322 (2003) ........................................................... 80
Miller v. Pate, 386 U.S. 1 (1967) ....................................................................... 108
Mills v. Maryland, 486 U.S. 467 (1988) ............................................................. 132
Miranda v. Arizona, 384 U.S. 436 (1966) ..................................................... passim
Missouri v. Seibert, 542 U.S. 600 (2004) ........................................................... 101
Mooney v. Holohan, 294 U.S. 103 (1935) .......................................................... 108
Mosley v. Dretke, 370 F.3d 467 (5th Cir. 2004) ..................... 75, 76, 78, 81, 82, 83
xii

Napue v. Illinois, 360 U.S. 264 (1959) ....................................................... 108, 147
Nelson v. Quarterman, 472 F.3d 287 (5th Cir. 2006) ................................ 121, 124
Oregon v. Guzek, 546 U.S. 517, 126 S. Ct. 1226 (2006) ................................... 120
Ornelas v. United States, 517 U.S. 690 (1996) .................................................... 32
Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999) ............................................... 109
Payne v. Tennessee, 501 U.S. 808 (1991) .......................................................... 137
Powel v. Nevada, 511 U.S. 79 (1994) .................................................................. 37
Ramseur v. Beyer, 983 F.2d 1215 (3d Cir. 1992) ................................................. 78
Rhode Island v. Innis, 446 U.S. 291 (1980) ....................................................... 107
Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000) ...................................... 78, 79, 85
Ring v. Arizona, 536 U.S. 584 (2002) ........................................ 133, 134, 135, 136
Roberts v. Louisiana, 431 U.S. 633 (1977) ........................................................ 131
Rock v. Arkansas, 483 U.S. 44 (1987) ............................................................ 36, 72
Roper v. Simmons, 543 U.S. 551 (2005) ............................................................ 121
Rose v. Mitchell, 443 U.S. 545 (1979) ........................................................... 75, 76
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ............................................... 135
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) .................................................. 78
Shafer v. South Carolina, 532 U.S. 36 (2001) ...................................................... 72
Skipper v. South Carolina, 476 U.S. 1 (1986) ............................................... passim
Smith v. Black, 904 F.2d 950 (5th Cir. 1990) ..................................................... 122
Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) .................................... 9, 102, 112
xiii

Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) .............................................. passim
Solesbee v. Balkcom, 339 U.S. 9 (1950) ............................................................. 146
Stirone v. United States, 361 U.S. 212 (1960) .................................................... 133
Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 146, 150
Summers v. United States, 11 F.2d 583 (4th Cir. 1926) ..................................... 141
Taylor v. Louisiana, 419 U.S. 522 (1975) ............................................................ 83
Tennard v. Dretke, 542 U.S. 274 (2004) .................................................... 119, 131
Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979) .................................... 102
United States v. Allen, 406 F.3d 940 (8th Cir. 2005) ......................................... 135
United States v. Blueford, 312 F.3d 962 (9th Cir. 2002) .................................... 108
United States v. Cohen, 171 F.3d 796 (3d Cir. 1999) .......................................... 50
United States v. Cohen, 888 F.2d 770 (11th Cir. 1989) ....................................... 60
United States v. Cooper, 983 F.2d 928 (9th Cir. 1993) ........................................ 89
United States v. Cronic, 466 U.S. 648 (1984) ...................................................... 73
United States v. Dailey, 524 F.2d 911 (8th Cir. 1975) ....................................... 108
United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001) ............................ 122
United States v. Deering, 179 F.3d 592 (8th Cir. 1999) ....................................... 83
United States v. Doerr, 886 F.2d 944 (7th Cir. 1989) .................................... 33, 37
United States v. Fields, __ F.3d __, 2007 WL 926864 (5th Cir. Mar. 29,
2007) ............................................................................................................. 119
United States v. Honken, 378 F. Supp. 2d 1040 (N.D. Iowa 2004) .................... 122
xiv

United States v. Lewis, 592 F.2d 1282 (5th Cir. 1979) ...................................... 113
United States v. McClure, 546 F.2d 670 (5th Cir. 1977) ................................ 41, 60
United States v. Milstein, 401 F.3d 53 (2nd Cir. 2005) ...................................... 133
United States v. Moore, 452 F.3d 382 (5th Cir. 2006) ......................................... 87
United States v. Resendiz-Ponce, __ U.S. __, 127 S. Ct. 782 (2007) ............... 135
United States v. Resendiz-Ponce, 425 F.3d 729 (9th Cir. 2005) ........................ 135
United States v. Stamper, 766 F. Supp. 1396 (W.D. N.C. 1991) ......................... 60
United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) ................................. 60, 62
United States v. Tuttle, 729 F.2d 1325 (11th Cir. 1984) .......................... 78, 79, 85
United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993) ............................... 108
United States v. Waddell, 507 F.2d 1226 (5th Cir. 1975) .................................... 53
United States v. Webb, 755 F.2d 382 (5th Cir. 1985) ......................................... 108
United States v. Wise, 221 F.3d 140 (5th Cir. 2000) ............................................ 89
Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) .......................................... 50
Waisome v. Port Authority, 948 F.2d 1370 (2d Cir. 1991) .................................. 77
Walton v. Arizona, 497 U.S. 639 (1990) ............................................................ 133
Washington v. Texas, 388 U.S. 14 (1967) ..................................................... passim
Wiggins v. Maryland, 539 U.S. 510 (2004) ........................................................ 123
Williamson v. United States, 512 U.S. 594 (1994) ............................. 32, 33, 35, 39
Wilson v. Firkus, 457 F. Supp. 2d 865 (N.D. Ill. 2006) ................................. 46, 60
xv

STATE CASES
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. 1994) ......................................... 129
Adams v. Adams, 787 S.W.2d 619 (Tex. App. - San Antonio 1990, no pet.) ...... 64
Aldrich v. State, 928 S.W.2d 558 (Tex. Crim. App. 1996) .................................. 83
Alford v. State, 866 S.W.2d 619 (1993) ............................................................... 69
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ...................... 112, 114
Alsonso v. State, 158 S.W.3d 515 (Tex. Crim. App. 2005) .................................. 34
Alonso v. State, 67 S.W.3d 346 (Tex. App. - Waco 2001) ........................... passim
Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App. 1986) ............................... 42
Anzaldua v. State, 502 S.W.2d 19 (Tex. Crim. App. 1973) ............................... 113
Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ............................... 101
Bandy v. State, 159 S.W.2d 507 (Tex. Crim. App. 1942) .................................. 112
Barnes v. State, 496 S.E.2d 674 (Ga. 1998) ....................................................... 122
Beathard v. State, 767 S.W.2d 423 (Tex. Crim. App. 1989) ............................. 115
Bethany v. State, 152 S.W.3d 660 (Tex. App. - Texarkana 2004) ....................... 70
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) ................................... 125
Blue v. State, 125 S.W.3d 491 (Tex. Crim. App. 2003) ..................................... 120
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ...................................... 147
Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989) .............................. 24
xvi

Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) .................................. 111
Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994) ............................... 32, 35
Bush v. State, 697 S.W.2d 397 (Tex. Crim. App. 1985) .................................... 107
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ........................... 127, 128
Carver v. State, 510 S.W.2d 349 (Tex. Crim. App. 1974) ................................... 95
Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ................................... 123
Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999) ....................... 150
Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) ............................. 130
Coleman v. State, 966 S.W.3d 525 (Tex. Crim. App. 1998) ................................ 37
Commonwealth v. Johnson, 59 A.2d 128 (Pa. 1948) ......................................... 140
Corwin v. State, 870 S.W.2d 23 (Tex. Crim. App. 1993) .................................. 111
Crank v. State, 761 S.W.2d 328 (Tex. Crim. App. 1988) .................................... 69
Cunningham v. State, 877 S.W.2d 310 (Tex. Crim. App. 1994) .................... 32, 33
Davis v. State, 872 S.W.2d 743 (Tex. Crim. App. 1994) .............................. passim
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) .................................. 35
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................ 103
Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) ............................. 149
Drury v. State, 793 A.2d 567 (Md. 2002) .......................................................... 108
Forsythe v. State, 664 S.W.2d 109 (Tex. App. - Beaumont 1983, pet ref'd) ....... 69
Fox v. State, 115 S.W.3d 550 (Tex. App. - Houston 2002, pet. ref'd) ................. 60
xvii

Ex Parte Gingo, 605 So. 2d 1237 (Ala. 1992) ..................................................... 90
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ............................ passim
Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) ................................... 127
Halprin v. State, 170 S.W.3d 111 (Tex. Crim. App. 2005) ................................ 122
Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981) ....................... 116, 117
Hearne v. State, 534 S.W.2d 703 (Tex. Crim. App. 1976) ................................ 104
Hernandez v. State, 24 S.W.3d 846 (Tex. App. - El Paso 2000, pet. ref'd) ......... 83
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ............................. 146
Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998) ...................... 90, 122, 138
Jackson v. State, 50 S.W.3d 579 (Tex. App. - Ft. Worth 2001, pet. ref'd) ........... 87
Johnson v. Texas, 68 S.W.3d 644 (Tex. Crim. App. 2002) ............................ 59, 63
Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) ...................................... 124
Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994) ..................................... 127
Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996) .......................... 59, 60, 63
Lanier Mem'l Hosp. v. Andrews, 809 So. 2d 802 (Ala. 2001) ............................ 133
Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987) ........................... 110
Lolly v. State, 611 A.2d 956 (Del. 1992) .............................................................. 90
Maestas v. State, 987 S.W.2d 59 (Tex. Crim. App. 1999) ................................. 104
Mann v. State, 964 S.W.2d 639 (Tex. Crim. App. 1998) ................................... 129
Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ................................ 92
Martin v. State, 553 S.E.2d 827 (Ga. Ct. App. 2001) ......................................... 133
xviii

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) .......................... 143
McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981) .................... 109, 147
McVeigh v. State, 62 S.W. 757 (Tex. Crim. App. 1901) .................................... 105
Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001) .......................... 32, 41, 48
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................... 69
Moon v. State, 607 S.W.2d 569 (Tex. Crim. App. 1980) ................................... 111
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................... 84, 137
Murray v. State, 505 S.W.2d 589 (Tex. Crim. App. 1974) ................................ 113
Myre v. State, 545 S.W.2d 820 (Tex. Crim. App. 1977) .................................... 112
Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) ........................ 147, 150
Norman v. State, 588 S.W.2d 340 (Tex. Crim. App. 1979) ........................... 48, 52
Ochoa v. State, 573 S.W.2d 796 (Tex. Crim. App. 1978) .......................... 102, 103
Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000) .................... 75, 77, 78, 79
Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988) ............................... 125
Patterson v. State, 847 S.W.2d 349 (Tex. App. - El Paso 1983, pet. ref'd) ....... 114
Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006) ...................................... 91
Pena v. State, 166 S.W.3d 274 (Tex. App. - Waco 2005) .................................... 91
Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) ................................... 105
People v. Brensic, 509 N.E.2d 1226 (N.Y. 1987) ................................................ 92
People v. Burgener, 62 P.3d 1 (Cal. 2003) ........................................................... 85
xix

People v. Dominick, 182 Cal. App. 3d 1174 (1986) ............................................. 70
People v. Ferro, 472 N.E.2d 13 (N.Y. 1984) ..................................................... 108
People v. Henry, 639 N.W.2d 285 (Mich. Ct. App. 2001) ................................. 141
People v. Moya, 529 N.E.2d 657 (Ill. App. 1 Dist. 1988) .................................. 108
People v. Rushin, 194 N.W.2d 718 (Mich. Ct. App. 1971) ................................ 141
Periu v. State, 490 So. 2d 1327 (Fla App. 3d Dist. 1986) .................................. 108
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) ...................................... 41
Ransom v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974) ................................. 63
Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005) ................................. passim
Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003) ............................... 136
Reese v. State, 151 S.W.2d 828 (Tex. Crim. App.1941) .................................... 105
Reese v. State, 877 S.W.2d 328 (Tex. Crim. App. 1994) ..................................... 52
Reid v. State, 197 S.W.3d 694 (Tenn. 2006) ........................................................ 29
Renfro v. State, 822 S.W.2d 757 (Tex. App. - Houston 1992, pet. ref'd) ............. 60
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ....................... 124, 127
Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) ............................. 134
Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980) ..................................... 64
Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) ............................... 135
Russell v. State, 604 S.W.2d 914 (Tex. Crim. App. 1980) ............................. 95, 96
Russell v. State, 727 S.W.2d 573 (Tex. Crim. App. 1987) ................................. 102
Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002) .................................. 137
xx

Smith v. State, 70 S.W.3d 848 (Tex. Crim. App. 2002) ................................. 48, 49
Smith v. State, 708 S.W.2d 518 (Tex. Crim. App. - Houston 1986, pet ref'd) ..... 49
Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987) ..................................... 12
Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988) .................................... 150
Stanton v. State, 953 S.W.2d 832 (Tex. App. -Amarillo 1997, no pet.) ............. 103
State v. Anderson, 182 S.W.3d 914 (Tex. Crim. App. 2006) ........................ passim
State v. Barnett, 543 N.W.2d 774 (N.D. 1996) .................................................... 90
State v. Cheeseboro, 552 S.E.2d 300 (S.C. 2001) ................................................ 90
State v. Chew, 695 A.2d 1301 (N.J. 1997) ......................................................... 104
State v. Chouinard, 634 P.2d 680 (1981) ............................................................. 90
State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) .................................................... 90
State v. Fortin, 843 A.2d 974 (N.J. 2004) .......................................................... 135
State v. Garfole, 388 A.2d 587 (N.J. 1978) .......................................................... 60
State v. Gibney, 825 A.2d 32 (Vt. 2003) .............................................................. 90
State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998) ................................ 140
State v. Hartman, 42 S.W.3d 44 (Tenn. 2001) ................................................... 122
State v. Hoey, 881 P.2d 504 (Haw. 1994) .......................................................... 104
State v. Kleypas, 40 P.3d 139 (Kan. 2001) ........................................................ 121
State v. LeClair, 425 A.2d 182 (Me. 1981) ........................................................ 117
State v. Marsh, 102 P.3d 445 (Kan. 2004) ........................................................ 121
xxi

State v. Matafeo, 787 P.2d 671 (Haw. 1990) ....................................................... 90
State v. McCormick, 778 S.W.2d 48 (Tenn. 1989) ............................................... 70
State v. Moff, 154 S.W.3d 599 (2004) ........................................................... passim
State v. Morales, 657 A.2d 585 (Conn. 1995) ...................................................... 90
State v. Osakalumi, 461 S.E.2d 504 (W. Va. 1999) ............................................. 90
State v. Pena, 191 S.W.3d 133 (Tex. Crim. App. 2006) ................................ 90, 91
State v. Pena, 192 S.W.3d 684 (Tex. App. - Waco 2006) ............................. .90, 91
State v. Reid, 2005 WL 1315689 (Tenn. Crim. App. Nashville 2005) .... 58, 59, 64
State v. Reid ("Reid I"), 91 S.W.3d 247 (Tenn. 2002) .................................. passim
State v. Reid ("Reid II"), 164 S.W.3d 286 (Tenn. 2005) ............................ 5, 56, 62
State v. Reid ("Reid III"), 213 S.W.3d 792 (Tenn. 2006) .............................. passim
State v. Tucker, 759 P.2d 579 (Ariz. 1988) ........................................................ 116
State v. Webb, 680 A.2d 147 (Conn. 1996) ........................................................ 122
State v. Wiley, 74 S.W.3d 399 (Tex. Crim. App. 2002) ....................................... 62
State v. Willits, 393 P.2d 274 (1964) .................................................................. 116
Thomas v. State, 126 S.W.3d 138 (Tex. App. - Houston 2003, pet ref'd) ...... 61, 62
Thomas v. State, 812 S.W.2d 346 (Tex. App. - Dallas 1991, pet. ref'd) ............ 148
Thompson v. State, 521 S.W.2d 621 (Tex. Crim. App. 1974) .................... 111, 114
Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska 1989) .......................... 90
Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ........................... 143
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) ... 69
xxii

Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App.1996) ................................ 130
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) ............................... 32
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003) ....................... 116
Walker v. State, 588 S.W.2d 920 (Tex. Crim. App. 1979) ................................... 61
Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) .................................. 93
Weaver v. State, 823 S.W.2d 371 (Tex. App. - Dallas, 1992, pet. ref'd) .............. 83
Webber v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983) ........................ 139, 140
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) .............................. 109
West v. State, 92 N.E.2d 852 (Ind. 1950) ........................................................... 140
West v. State, 340 S.W.2d 813 (Tex. Crim. App. 1960) ..................................... 140
White v. State, 289 S.W.2d 279 (Tex. Crim. App. 1956) ........................... 105, 112
White v. State, 779 S.W.2d 809 (Tex. Crim. App. 1989) ................................... 112
Williams v. State, 50 P.3d 1116 (2002) ................................................................ 90
Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989) ................... 109, 110, 147
Wilson v. State, 451 So. 2d 724 (Miss. 1984) ..................................................... 113
Woods v. State, 696 P.2d 464 (Nev. 1985) ..................................................... 69, 70
Wortham v. State, 704 S.W.2d 586 (Tex. App. - Austin 1986, no pet.) ............. 108
DOCKETED CASES
State v. Reid, Cause No. 274209 (179th Dist. Ct., Harris Cty.) ........................... 28
FEDERAL STATUTES AND RULES
xxiii

FED. R. EVID. 404 ................................................................................................ 60
FED. R. EVID. 804 .......................................................................................... 31, 32
HOBBS ACT, 18 U.S.C. § 1951 ........................................................................... 133
FEDERAL CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V ................................................................................... passim
U.S. CONST. amend. VI ................................................................................. passim
U.S. CONST. amend. VIII ............................................................................... passim
U.S. CONST. amend. XIV .............................................................................. passim
U.S. CONST. Art. I .............................................................................. 118, 129, 133
TEXAS CONSTITUTIONAL PROVISIONS
TEX. CONST. Art. 1, § 3 ................................................................................ passim
TEX. CONST. Art. 1, § 3a ............................................................................... passim
TEX. CONST. Art. 1, § 10 ............................................................................... passim
TEX. CONST. Art. 1, § 13 ............................................................................... passim
TEX. CONST. Art. 1, § 15 .............................................................................. passim
TEX. CONST. Art. 1, § 19 ............................................................................... passim
TEX. CONST. Art. 1, § 29 ............................................................................... passim
TEXAS STATUTES AND RULES
TEX. CODE OF CRIM. PROC. Art. 12.01 ..................................................... 30, 31, 50
TEX. CODE OF CRIM. PROC. Art. 12.03 ..................................................... 30, 31, 50
TEX. CODE OF CRIM. PROC. Art. 19.01 ................................................................. 81
xxiv

TEX. CODE OF CRIM. PROC. Art. 19.06 ................................................................. 81
TEX. CODE OF CRIM. PROC. Art. 19.34 ................................................................. 82
TEX. CODE OF CRIM. PROC. Art. 19.37 ................................................................. 81
TEX. CODE OF CRIM. PROC. Art. 32.02 ................................................................. 49
TEX. CODE OF CRIM. PROC. Art. 36.29 ............................................................... 139
TEX. CODE OF CRIM. PROC. Art. 36.15 ............................................................... 130
TEX. CODE OF CRIM. PROC. Art. 36.29 ............................................................... 139
TEX. CODE OF CRIM. PROC. Art. 38.22 .......................................................... passim
TEX. CODE OF CRIM. PROC. Art. 37.071 ............................................. 121, 127, 133
TEX. CODE OF CRIM. PROC. Art. 37.0711 ...................................................... passim
TEX. CODE OF CRIM. PROC. Art. 38.22 ................................. 102, 105, 107, 111, 149
TEX. CODE OF CRIM. PROC. Art. 38.23 ................................................................. 114
TEX. CODE OF CRIM. PROC. Art. 44.2 ................................................................... 42
TEX. CODE OF CRIM. PROC. Art. 727 (Vernon 1956) ........................................... 105
TEX. RULE OF EVIDENCE 401 .............................................................................. 133
TEX. RULE OF EVIDENCE 403 .............................................................................. 133
TEX. RULE OF EVIDENCE 404 ............................................................ 26, 59, 60, 133
TEX. RULE OF EVIDENCE 703 ............................................................................. 126
TEX. RULE OF EVIDENCE 705 .............................................................................. 126
TEX. RULE OF EVIDENCE 803 .................................................. 27, 30, 31, 32, 34, 94
TEX. RULE OF EVIDENCE 806 .............................................................. 30, 31, 39, 40
xxv

TEX. RULE OF EVIDENCE 1006 .............................................................................. 64
TEX. RULE OF APP. PROC. 38.1 ............................................................................. 27
Tex. Crim. Jury Charge § 12:900.14 .................................................. 111, 113, 114
MISCELLANEOUS
Chuck Lindell, The Great Writ and Some Who Were Exonerated, Austin American-
Statesman, Oct. 29, 2006 ................................................................................ 24
Gisli Gudjonsson, The Psychology of Interrogations and Confessions: A
Handbook (2003) ........................................................................................... 44
Jonathan R. Sorensen & James W. Marquart, Prosecutorial and Jury
Decision-Making in Post-Furman Texas Capital Cases, 18 N.Y.U. Rev.
L. & Soc. Change 743 (1990/91) .................................................................. 145
th
Judge Cathy Cochran, Texas Rules of Evidence Handbook 238, (6 ed. 2005) ..
59
Laurence Benner et. al., Criminal Justice in the Supreme Court: An
Analysis of United States Supreme Court Criminal and Habeas Corpus
Decisions (October 2, 2000 - September 30, 2001), 38 Cal. W. L. Rev.
87 (2002) ....................................................................................................... 144
Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case:
A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125
(1993) ............................................................................................................ 121
Louis D. Bilionis, Moral Appropriateness, Capital Punishment, and the
Lockett Doctrine, 82 J. Crim. L. & Criminology 283 (1991) ....................... 121
Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989) ...................... 147
Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What
Do Jurors Think?, 98 Colum. L. Rev. 1538 (1998) ...................................... 122
xxvi

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
This brief is filed on behalf of Appellant, Max Alexander Soffar, by Professor
David R. Dow of the University of Houston Law Center, Jared P. Tyler of the Texas
Defender Service, and Brian W. Stull of the American Civil Liberties Union’s Capital
Punishment Project.
On August 7, 1980, Max Soffar was indicted on one count of capital murder. (SCR
1
4). The indictment alleged that, while in the course of committing and attempting to
commit the robbery of Stephen Allen Sims, he intentionally caused the death of Arden
Alane Felsher by shooting her with a gun. (2 RR 3). The offense was alleged to have
been committed in Harris County, Texas, on or about July 13, 1980. The cause number
case was 319724, and the case was docketed into the 232nd District Court of Harris
County, Texas. (1 CR 1).
In 1981, Appellant was convicted and sentenced to death in connection with these
allegations. On direct appeal, this Court affirmed. See Soffar v. State, 742 S.W.2d 371
(Tex. Crim. App. 1987). In 1992, Appellant filed a state application for a writ of habeas
corpus, alleging several claims, including ineffective assistance of counsel. Soffar v.
Dretke, 368 F.3d 441, 461 (5th Cir. 2004). In 2004, the Fifth Circuit overturned his
conviction and death sentence due to the constitutional ineffectiveness of his trial counsel.
Id. at 478-80. The Fifth Circuit found counsel ineffective primarily because they failed to
1
The citations to the record in this brief refer to the record volumes as follows: “RR” - Reporter’s Record; “CR” -
Clerk’s Record; “SCR” - Supplemental Clerk’s Record, filed on December 20, 2006; “SCR2" – Supplemental
clerk’s record, filed on March 28, 2007; “SE” - Supplemental Exhibits, filed January 26, 2007.
xxvii

utilize the detailed statements of the only surviving victim, Greg Garner, to cast doubt on
the only piece of evidence pointing to Max Soffar’s guilt, his putative confession after
three days in custody without an attorney. Id. at 475-76.
After the case returned to the District Court, an evidentiary hearing on the defense’s
motion to suppress Max Soffar’s putative statements and physical evidence was held on
October 19, 20, 21, and 24, 2005. (4 RR 19 - 7 RR 184). The trial court denied the
motion in a written order setting forth its findings of facts and conclusions of law. (8 CR
2140-44). An evidentiary hearing on the defense’s motion to dismiss the indictment due
to lost evidence was held on October 21 and 24, 2005. (6 RR 45-91; 7 RR 6-25). The
motion was denied on December 1, 2005. (9 RR 19). An evidentiary hearing concerning
the exclusion of people of Hispanic origin and women in grand jury selection was held on
October 24, 2005. (7 RR 129-158). The motion was denied the same day. (7 RR 158).
On October 20, 21, 24, 25, and December 1 and 19, 2005, the court also addressed various
defense motions for which no evidentiary hearings were held. See generally (5-10 RR).
Jury selection commenced on January 6, 2006, (11 RR 3), and the jury was sworn
on February 6, 2006. (26 RR 6). The trial commenced on February 6, 2006, id., and
Appellant was found guilty as charged on February 22, 2006. (36 RR 4). The sentencing
phase commenced the same day as the guilt- phase verdict. (36 RR 6). The court
presented four special issues to the jury. On March 2, 2006, the jury answered special
issue No. 1, the "deliberateness" issue, "Yes." (14 CR 4160). It answered special issue No.
2, the causation/intent issue required for parties liability, “Yes.” (14 CR 4162). It also
xxviii

answered special issue No. 3, the "future dangerousness" issue, "Yes." (14 CR 4164). The
jury answered special issue No. 4, the "mitigating circumstances" issue, "No." (14 CR
4166). The Honorable Mary Lou Keel sentenced Appellant to death the same day. (14
CR 4168-69). A Motion for New Trial was filed on March 31, 2006. (14 CR 4185).
Appeal in this case is automatic, pursuant to Tex. Code Crim. Proc. Art. 37.071 § 2 (h);
Tex. R. App. P. 25.2(b), and this brief is filed accordingly.
xxix

STATEMENT CONCERNING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant Max Soffar hereby
requests oral argument. This is a capital case. Among the issues presented are:
The trial court erred under TEX. R. EVID. 803 (24) in excluding statements against interest
establishing that Paul Reid told an accomplice during a Houston armed robbery that he had
previously shot four people in a bowling alley on Route 290 (Subpoint (a) of Appellant’s
First Point of Error).
The trial court violated Max Soffar’s federal and state constitutional rights to due process,
compulsory process, and to present a defense by precluding evidence of Reid’s admission
to shooting four people in a bowling alley on Route 290 (Subpoint (b) of Appellant’s First
Point of Error).
The trial court denied Max Soffar his constitutional right to present a defense by
precluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texas and
Tennessee crimes, which marked him as the perpetrator of the similar Fairlanes
robbery-murders (Appellant’s Third Point of Error).
The trial court violated Max Soffar’s constitutional right to present a defense and basic
evidentiary rules by precluding evidence showing that the Houston media broadcast details
of the crime contained in Soffar’s putative confession which the prosecutor claimed only
the perpetrator could have known (Appellant’s Fourth Point of Error).
The trial court committed reversible error by denying Max Soffar’s Motion to Quash the
Indictment on Account of the Violation of Equal Protection in the grand jury selection
process (Subpoint (a) of Appellant’s Fifth Point of Error).
The trial court committed reversible error by denying Max Soffar’s Motion to Quash the
Indictment Based on the Violation of Due Process and the right to a Fair Cross Section in
the grand jury Selection Process (Subpoint (b) of Appellant’s Fifth Point of Error).
It is upon these issues that oral argument is particularly sought. Undersigned
counsel are of the opinion that oral argument would serve to emphasize and clarify these
issues.
xxx

STATEMENT OF FACTS
Midnight on July 13, 1980: Four Youths Shot and Only Greg Garner Survives
At around midnight on July 13, 1980, someone shot four youths in the Windfern
Fairlanes Bowling Center (“Fairlanes”) near Houston on Route 290. (26 RR 48). Three of
the youths died, including bowling alley manager Stephen Sims, employee Thomas
Temple, and Temple’s girlfriend, Alane Felsher. (27 RR 217, 219, 223; 32 RR 100). The
fourth victim, Greg Garner, survived. Fairlanes had been burglarized the previous night,
2
and the crimes were initially thought to be linked.
July 17-20, 1980: Greg Garner Provides Police With Detailed Information
During his medical treatment at Hermann Hospital, Garner provided the police
3
with information in at least five different interviews. (32 RR 62-149 (quoting 45 RR
Joint Exhibits 1 (police interview of Greg Garner, July 17, 1980); 2 (interview of July 18);
4
4 (interview of July 19); and 5 (interview of July 20))). In general, this narrative
2
(30 RR 21-23; 26 RR 183 (testimony of manager Peters), 43 RR Defense Exhibit 59 (summary of media exhibits),
43 RR State Exhibit 108).
3
Garner also provided similar details in an interview of July 30, 1980, but the police did not record that interview
and the court precluded admission of its contents. See (2 SE Defense Exhibit 61).
4
The details of Garner’s statements are set forth in detail in the text which follows because they differed from
Appellant’s putative confession in numerous respects, including as to the number of perpetrators, how the
perpetrator(s) entered the bowling alley, whether the door to Fairlanes was locked, whether the perpetrator(s) wore
disguises, whether any victim was kicked or had screamed, the number of shots fired, and when the money was
taken. At the retrial, the prosecution sought to discredit Garner’s numerous statements to the police as the product of
“potential” amnesia because the statements were inconsistent with Soffar’s putative confession. (28 RR 108-48).
Over defense objections pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), (25 RR
66-71), the neurosurgeon who had operated on Garner testified that his injury was “potentially” sufficient to affect
his memory and that such an injury “could affect [the] memory” of any person sustaining such an injury. (28 RR
113-15). The expert was forced to concede that the length of time that Garner was unconscious was not indicative
of memory loss, that his activities and level of consciousness at the scene (as documented by the paramedics and
Life Flight team, (27 RR 10, 15-18, 21; 31 RR 85-87)) demonstrated a high level of functioning, that he did not note
any memory loss in Garner’s charts, and that he scored a one hundred on an amnesia test, the highest possible score.
(28 RR 121-23, 127-28). A defense expert refuted any suggestion that Garner had lost his memory and noted that
the only test during Garner’s treatment suggesting memory loss indicated difficulty only with verbal tasks. (28 RR
1

was consistent and detailed. 5
6
Garner explained that as he was bowling on lanes 25 and 26, a single assailant
gained entry to the closed and locked bowling alley by convincing assistant manager
Stephen Sims that he needed water (or air) to remedy a problem with his automobile. (32
RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-38, 144). The assailant carried a pitcher for
7
the water. (32 RR 72-74, 79-80, 83, 104-06). Sims then went outside with the assailant.
(32 RR 73, 80, 104, 137, 139, 145). The assailant reentered the bowling alley with Sims,
brandished a gun, made the victims lie on the floor, and obtained money by ordering Sims
to open a cash register. (32 RR 69, 80, 84, 106-07, 112, 124, 126-27).
Garner lay between Tommy Temple and Steve Sims, with Temple to his right. Ms.
8
Felsher was next to Sims. (32 RR 109). In a semi-circle, the order of the victims from the
135, 147; 32 RR 207-19). Subsequent footnotes in this section cite repeated instances where other witnesses and
evidence corroborated Garner’s recollection of events.
5
One exception occurred during Garner’s initial interview at the hospital when, perhaps due to difficulties with his
language, Garner responded “yeah,” when the police asked whether his assailant was a black man, and said that his
assailant was close to his own height, twenty “foot” [sic] tall. (32 RR 63-64). Garner would later say that the lone
perpetrator was white and over six feet tall. (32 RR 83, 131-32).
6
The police later corroborated this aspect of Garner’s statement when they recovered Garner’s rings between these
lanes. (26 RR 84-85; 32 RR 47-49).
7
Photographs taken by crime scene investigators confirmed the presence of a water jug on the control booth counter
near the entrance. (27 RR 90; 43 RR State Exhibit 39). In his trial testimony, Garner confirmed that employees
never kept a water jug on the control booth. (28 RR 189). Manager Jim Peters testified that he did not know why
that jug would be there. (26 RR 184).
8
The forensic evidence was completely consistent with Garner’s description. The bullet wounding Garner passed
through his head. (28 RR 110-11). The location of a bullet hole found in the carpet corroborated Garner’s
description of where his head was on the floor when he was shot. (31 RR 154-55 (testimony of Detective Kenny
Williamson); 33 RR 87-88 (testimony of defense crime-scene expert)). A police photograph of this location does
not include Garner himself because he had been removed for medical treatment, but it depicts the victims in a
semi-circle in the positions Garner had described. Compare (43 RR State's Exhibit 5) with (45 RR Joint Exhibit 3).
The position of the bodies when the police and other witnesses arrived, however, was different from Garner’s
description of where he was when shot because, unbeknownst to the police at the scene, Garner had changed
positions on the floor after the shooting. Thus, when witnesses arrived, they saw the two injured victims (Garner
and then Felsher) nearest the door. (26 RR 105-07).
2

front doors was Felsher (the only female), Sims, Garner and Temple. Id.
As the four victims lay on the floor, none screamed or tried to run, and the assailant
did not physically touch or hit them. (32 RR 69, 84, 86, 110-11, 130). The assailant then
shot each victim once (for a total of four shots), took billfolds from the three men, and
fled. (32 RR 70, 82, 113, 129, 130).
Garner lost consciousness for a few moments, got up, and walked to the control
booth and telephoned his parents. (32 RR 82-83, 87-88, 113-14). While Garner was on
9
this call, Fairlanes manager Jim Peters telephoned the bowling alley. (32 RR 87-88, 114).
When Garner completed the two calls, he lay on the floor next to Alane Felsher because
she was the only other victim still alive. (32 RR 114-15). This location was different
from where Garner originally had lain down and been shot. (32 RR 114-15).
Garner testified at the retrial, but did not provide much detail because he no longer
remembered most of what had occurred. (28 RR 152-53, 159-73, 180-81, 190). Garner
did recall being present with the three other victims before the shooting, that he was
bowling when he saw a man speaking with Sims, and that it was “standard procedure” for
Sims to lock the doors when the bowling alley closed at 11:30 p.m. (28 RR 151-53).
Garner remembered that the single assailant had a gun and asked him whether he could
open the cash register. (28 RR 156). He also remembered handing his wallet to the
perpetrator before being shot, and calling his parents afterward. (28 RR 158, 160, 162).
9
In their testimonies, parents Nellie and Ira Garner and bowling alley manager Jim Peters all corroborated this part
of Greg Garner’s statement. (26 RR 43, 46, 66, 130-31).
3

Police Investigation
The perpetrator of the Fairlanes robbery murders left no clues at the crime scene as
to his identity, at least none the investigators thought to check.
Crime scene investigators dusted various areas for fingerprints, including the front
door area and around the cash register in the control booth. (27 RR 142). None of the
collected fingerprints led to a suspect. (27 RR 160, 194, 203). Police photographs show a
white jug on the control counter. (43 RR State Exhibit 39). Although the police had the
manager, Peters, available to them at the scene to explain that the jug was out of place, (26
RR 184), they did not recover the jug because “it did not appear to be evidence at the
time.” (27 RR 91). By the time the police spoke with Garner, realized the significance of
the jug and called Peters, Peters had already had the bowling alley cleaned and he did not
10
know what had happened to the jug. (26 RR 183-85).
With no fingerprints, DNA, or other physical evidence, the police used Garner’s
information to attempt to solve the crime. Garner described his assailant as white and just
over six feet tall. (32 RR 83, 131-32). He told the police that the assailant had light brown
hair, combed back to reveal his entire forehead, and cut just below the ears on the side and
reaching the collar on the back. (32 RR 132, 135). The shooter did not have any facial
hair, and was stronger and heavier than Garner, who weighed 155 pounds. (32 RR
132-34). The shooter wore neither a mask nor a hat. (32 RR 89-90, 134). Garner told the
10
Detective Leonard Cooper, the latent finger print examiner offered conflicting and insufficient explanations as to
whether the jug had been dusted for fingerprints and, if not, why not. (27 RR 166-171, 175).
4

police he could probably identify him. (32 RR 68, 118; 2 SE Defense Exhibit 61)). The
police officers were confident enough in Garner’s description to prepare a composite, later
distributed to various media outlets. See (32 RR 170-74). The composite is set forth in
Joint Exhibit 6 (43 RR) and below: 11
Houston Man Resembling Composite Commits Similar Crimes
A dangerous criminal resembling this composite was living in his native Houston at
the time of the robbery murders. Now on Tennessee’s death row for killing seven people
12
in three different robbery murders at retail fast-food establishments, Paul Reid was
married in Houston on July 23, 1980, just over a week after the Fairlanes robbery murders.
(45 RR Defense Exhibits 37-39). The following photograph, (45 RR Defense Exhibit 37)
is from Reid’s wedding:
11
At least 50 copies of the composite and press release were distributed to the media. (32 RR 173-74). A volunteer
“portrait artist” created a second composite with Garner, but it was never distributed. (32 RR 180). The portrait is
too dark to reproduce here, but can be found in the volume of exhibits. (45 RR Joint Exhibit 7).
12
See State v. Reid (“Reid I”), 91 S.W.3d 247, 261-62 (Tenn. 2002); State v. Reid (“Reid II”), 164 S.W.3d 286, 298
(Tenn. 2005); State v. Reid (“Reid III”), 213 S.W.3d 792, 805 (Tenn. 2006).
5

The robbery murders Reid would later commit in Tennessee were strikingly similar
to the Fairlanes robbery murders. As described by a Tennessee detective, “Reid displayed
a distinctive modus operandi in his crimes in Tennessee – he would gain entry to an
establish[ment] at a time when the establishment was closed but employees were still
present, by causing employees to let him in. [] Reid would steal cash and coins, often
having an employee access the register or safe. [] Reid would then kill or attempt to kill all
employees present at the time of the robbery, with a preference for forcing the employees
to lie on the floor, face down, and then shooting them execution style, with a gun shot to
the head.” (9 CR 2561).
Reid and his long-time friend, Stewart Cook, also committed a series of robberies
in Houston. During one of them, in 1982, Reid fired his pistol and Cook asked him why.
As Cook has explained in an affidavit, “Paul [Reid] brushed it off, telling [Cook] he’d
done much worse during a robbery he had committed before [they had] started working
together. Specifically, [Reid] said that he once had a ‘problem’ while he was robbing a
bowling alley out on Route 290, and he had shot ‘four people.’” (6 CR 1485).
6

At Max Soffar’s retrial, the trial court refused to allow the jury to hear any of this
evidence showing that Reid committed the Fairlanes robbery murders. (26 RR 97-99; 30
RR 76-85; 32 RR 38-45). Taking full advantage of the court’s ruling, the prosecution
argued in summation that the defense had not “br[ought the jury] any evidence that
someone other than the Defendant committed this crime.” (35 RR 9).
The Media Informs the Public About the Details of the Fairlanes Robbery murders
Between July 14, 1980, and August 1, 1980, the Houston television and print media
widely publicized various details of the robbery murders. Numerous stories reported that
reward money had been offered for information leading to the arrest of the perpetrator.
See (43 RR Defense Exhibit 59). Numerous stories also reported that four people had
been shot execution style, that one man had lived, that one of the victims was a female,
that money was taken from a cash register and that the shootings took place at the
Fairlanes Windfern bowling center. See (43 RR Defense Exhibit 59 (chart summarizing
media sources and information provided)). Several stories reported that the bowling alley
had been burglarized the night before. Id. On July 15, 1980, the Houston Post reported
that the female victim had been shot in the cheek. Id.; see also (43 RR Defense Exhibit
66). A Channel 13 News Report stated that a .357 magnum was thought to have been
used. (43 RR Defense Exhibit 59). Television media repeatedly broadcast key images to
the public, including the interior and exterior of the building, the Fairlanes Windfern road
sign, a closeup of Greg Garner’s gunshot wound and the other victims’ bodies inside the
bowling alley, and the composite drawing prepared by the police and Garner. (43 RR
7

13
Defense Exhibit 58). See also Defense Exhibit 71 (article including composite)). The
14
court blocked all defense attempts to introduce this evidence. Capitalizing on the court’s
ruling, the prosecution misleadingly argued in summation that the only way Soffar could
have known certain details was if he were responsible for the crime. (35 RR 11, 22-23).
Looking for a Reward, Max Soffar Becomes a Suspect
Jackie Soffar Butler, Max Soffar’s sister, learned about the bowling alley murders
around the first of August, 1980, from her brother, Max, as they were driving to the
doctor’s office together. (32 RR 236). Soffar told her there was a cash reward and that the
composite looked a lot like his friend Latt Bloomfield. Id. Soffar said he wanted to turn
in Bloomfield. (32 RR 236-37).
Although Ms. Butler did not live at home with her parents and her brother, Max,
she was a frequent visitor. (32 RR 238). The Soffar family typically watched Channel 13
News (32 RR 239), and her parents subscribed to the Houston Post. Id.
On August 5, 1980, Soffar was arrested after stealing a motorcycle in League City
and providing a false name to the police. (29 RR 22, 25). Soffar told his arresting officer
that he had information about the widely-publicized bowling alley murders in Houston.
(29 RR 31). He said he wanted to speak with a Sergeant Clawson, which the arresting
13
Several stories explained where the building was situated in the parking lot and the location of the front doors.
(43 RR Defense Exhibit 60).
14
Over defense objections based on Max Soffar’s Sixth Amendment right to present a defense, the court also
precluded cross examination of interrogating officers regarding these details and introduction of evidence that any of
these stories appeared in the media. (30 RR 101-06; 33 RR 4-5). The defense theory of admissibility of the media
evidence was that the information in Max Soffar putative confession reflected nothing more than information
broadcast to the general public. Id. See also (31 RR 4-8).
8

officer interpreted as meaning that Soffar was an informant. Id. The arresting officer
noted that Soffar’s eyes were dilated, his speech slurred, his body smelled of alcohol, all
indicative of someone under the influence of alcohol or drugs. (29 RR 42-43).
Thereafter, Soffar spoke with a number of different police officers and law
enforcement officials. Soffar’s initial interrogation, by Detective Gil Schultz, was tape
recorded and transcribed, revealing that Soffar had learned about the case and the fifteen
thousand dollars in reward money from the “news” and the “paper.” (43 RR State’s
Exhibit 1A at 9, 25, 28, 36; 30 RR 94-95).
In the course of the interrogation by Det. Schultz, Sergeant Bruce Clawson of the
Galveston County Sheriff’s Department was called when Soffar “refused to talk.” (29 RR
106; 43 RR Defense Exhibit 25). Sgt. Clawson formed the impression that the police had
hit a “brick wall” with Soffar and understood he was there to get Soffar to talk. (29 RR
182, 188). When Soffar asked Sgt. Clawson how long it would take to get an appointed
lawyer, (29 RR 114-15), Clawson provided what the Fifth Circuit called “misleading”
15
answers. Soffar v. Cockrell, 300 F.3d 588, 596 (5th Cir. 2002).
Sgt. Clawson observed some of the interrogation performed by Det. Schultz. Sgt.
Clawson noted that it did not appear that Soffar knew the part of Houston where the
bowling alley was located or anything about the building, the roadway, or the “turn
around” near the bowling alley. (29 RR 150-51). In a diagram Det. Schultz worked on
15
th
The details of Clawson’s responses are discussed in detail in the 5 Circuit opinion and in Appellant’s Ninth Point
of Error.
9

with Soffar, Schultz had to draw in much of the crime scene, including the counter inside
16
the bowling alley. (29 RR 151). Det. Schultz’s interrogation made Sgt. Clawson
concerned about whether the police were obtaining accurate information. (29 RR 166).
Sgt. Clawson knew Max Soffar well as a police informant. (29 RR 103, 105-06).
Sgt. Clawson explained that Soffar’s information was “just not trustworthy,” and could
“never” be used to get a search warrant. (29 RR 128-29). According to Sgt. Clawson,
Max Soffar was always looking for “the big score” in life. (29 RR 131). Ten to fifteen
thousand dollars, Sgt. Clawson believed, would be a big score for Max Soffar. Id. Sgt.
Clawson came to know Soffar as having brains “fried” from the use of drug and alcohol,
and as like a ten or eleven year-old child. (29 RR 134).
Content of Max Soffar’s Putative Confessions
Soffar signed three written statements, prepared by detectives, in which he first
implicated Latt Bloomfield and then himself in robbery-murders at a bowling alley. He
17
was convicted based solely upon these statements. Consistent with the prevailing view
that the robbery murders at the Fairlanes and the burglary there the night before were
linked, in Soffar’s first statement, on August 5, 1980, he told the police that he and Latt
Bloomfield burglarized a bowling alley and that the next night they drove to the same
16
Similarly, Detective Kenny Williamson drew most of the parts of the diagram he used in his subsequent
interrogation with Soffar. (31 RR 61-62, 128-29, 131).
17
See Soffar, 368 F.3d at 479 (summarizing lack of evidence linking Soffar to crime in terms equally applicable to
facts of retrial); (35 RR 25 (prosecution summation argument: “The Defendant tells you that he did it. What other
evidence do you need? That’s the best kind of evidence you’ll ever have in a case. What’s the one thing that can
ensure that you have no doubt. Words from a person. You don’t say you were some place if you weren’t. You don’t
ever say you shot somebody if you didn’t.”)).
10

owling alley and Bloomfield entered with his pistol while Soffar waited outside. (30 RR
18
21-23). The police knew the statement about the burglary the preceding night was false.
In his first statement, Soffar also claimed to have heard several shots and seen young
people getting on their knees at Bloomfield’s direction. Bloomfield emerged with “a
whole lot of money.” Id.
In his second statement, on August 6, 1980, Soffar again falsely claimed that he and
Bloomfield had burglarized the bowling alley the night before the robbery murders and
embellished that story even further. (43 State’s Exhibit 109; 30 RR 140-48). Soffar also
stated that the next night he waited outside and heard shots while Bloomfield went inside
the bowling alley. Id. Several details were added to the first statement, including that
Bloomfield wore a lady’s stocking over his head as a disguise. (30 RR 146).
19
In his third statement, signed at 9:25 p.m. on August 7, 1980, Soffar gave his third
different rendition of what happened the night of the robbery murders. Soffar claimed that
he and Bloomfield both entered the bowling alley in partial disguise: Soffar with a T-shirt
pulled over his mouth and Bloomfield wearing a lady’s stocking over his head. (30 RR
18
Det. Schultz, who took this statement, knew that the burglary, which had been publicized in connection with the
search for the murder suspect, was not committed by Soffar and Bloomfield. (30 RR 25). Other suspects had
already been arrested and charged for that offense by the time Soffar made his statement. Id. See also (30 RR 189).
19
By the time Soffar signed his third written statement, he had been interrogated several times, including the
interrogation before each typewritten statement and during a drive around the Houston area when detectives
attempted to collect more evidence. See, e.g., (29 RR 191-92; 30 RR 173-78). Out of all of these conversations and
contacts between the police and Soffar, only the initial interrogation was taped or transcribed, even though the
Houston Police Department possessed tape recording devices. (30 RR 176-78). Detective James Ladd conceded the
benefits of recording such interactions, including that a tape preserves precisely what was said for years, and
captures the change in tone and pace of voice of speakers, none of which is accomplished by a written statement. (30
RR 180). As the Fifth Circuit noted in reviewing the evidence, the interrogation sessions were “neither transcribed
nor recorded;” their “substance . . . was summarized by detectives and presented to Soffar in the form of written
statements for his signature.” Soffar, 368 F.3d at 453, n.19.
11

161). After walking through the open door to the bowling alley, a “guy” asked what they
were doing. Id. The statement continued:
Lat pulled the revolver and stuck it in this guys face and said, “This is a robbery.” Lat
pulled this guy by the hair and made him get down on his knees. Three other people
were over by the snack bar and they saw the man on his knees and xx [sic] walked up.
This was two dudes and a girl. Lat told them to get on the floor and if they didn't do
what he told them that he would shoot this first guy who was already on the floor. . . .
They were laying from the door so that there was a dude and then a girl and then
another dude and then the last dude. The second dude was trying to look up and Lat
told him not to be looking and to turn around and lay facing the way all the others
were. . . . The second dude kept looking around so Lat fired a warning shot into the
floor. The girl screamed and then Lat told her to shut up and she kept screaming. Lat
kicked the girl in the back and then the second dude who was the one who kept looking
up started to raise up. He was about half way up when Lat shot him in the back of the
head. Then Lat just turned around and shot the third dude. This third dude was the first
one Lat grabbed and made get on the floor. He shot him the same way as the first one
that he shot. Lat threw me the gun and told me to shoot the other two. I hesitated and
then he said, “Shoot them now.” I aimed the gun and the other guy who was still left
who was closest to the door and fired one time. I hit him in the back of the head behind
the ear. I walked around the other side of them and hesitated [sic] and Lat said, “Shoot
her.” She had her face down and she just looked up at me and I aimed and turned my
head and shot her. I think I hit her in the cheek.
20
(43 State’s Exhibit 110, 30 RR 161-62). The positioning of the victims from the door
was “dude and then a girl and then another dude and then the last dude.” (30 RR 161).
The statement continued that Soffar took money from the cash registers by the bowling
shoes and the snack bar. (30 RR 162-63). Meanwhile, Bloomfield took 50 to 60 dollars
from money bags under the counter, and then rummaged through the victims’ pockets and
20
The statement is reproduced exactly as typewritten by the police; errors and omissions are in the original. As this
Court noted on Appellant’s appeal from Soffar’s original conviction and the Fifth Circuit noted on habeas review,
neither this statement nor Max Soffar’s two previous statements, set out “‘the date, county, city, state, nation, street
address or name of the bowling alley, the name of any victim, or any other fact which might expressly reflect that
appellant’s statement relates to the offense for which he was tried, convicted, and given the death sentence.’” Soffar,
368 F.3d at 456 n.25 (quoting Soffar, 742 S.W.2d at 375).
12

took their wallets. (30 RR 163). After they left, Soffar and Bloomfield bought
“preludins,” went to Soffar’s house, took all of the pills, stayed up all night, and went to
the park the next day. (30 RR 164).
At 9:33 p.m., Detectives M.F. Kardatzke and R.D. Cain signed a diagram with Max
Soffar’s name on it, containing claims in the first-person such as “I shot the girl last.” (43
RR State’s Exhibit 207/Defense Exhibit 32). The diagram depicts the scene of the crime
as described by Soffar in his third statement. Id.; see also (30 RR 161). The positioning
of the victims was a straight line of people ordered male, female, male, male. (43 RR
State’s Exhibit 207/Defense Exhibit 32). 21
Tour of Crime Scene, Places Soffar Falsely Claimed to Have Robbed, and Other Places
After Soffar’s third statement, the police took him for a ride to show him the
various places mentioned in his statements. (30 RR 150). But before doing so, Detective
Kenny Williamson drew a map of Fairlanes Windfern and showed it to Soffar. (31 RR
22
61-62; 43 RR State’s Exhibit 206). After Soffar’s exposure to that map, and to the
images of the outside of Fairlanes Windfern broadcast by the media, (43 RR Defense
Exhibits 58, 63, 66) (which the jury was precluded from hearing about), the police drove
Max Soffar to a different Fairlanes bowling alley, the Bunker Hill location, to see “what
21
No doubt aware that the difference between Max Soffar’s diagram and the one prepared by Greg Garner cast
serious doubts on Soffar’s guilt, the prosecutor implausibly argued to the jury that Max Soffar did not prepare the
diagram. (35 RR 99). The prosecution itself, however, introduced the diagram into evidence (31 RR 90), and did
not seriously dispute that the exhibit was prepared from information provided by Max Soffar.
22
The map shows a box, indicating the building, the “feeder” road leading to the bowling alley from the freeway,
and the parking lot lines in front of the entrance. Id. Det. Williamson drew all of these areas. (31 RR 60-66,
128-29). According to Det. Williamson, Soffar “may have” drawn in lines indicating where he and Bloomfield had
parked the car. (31 RR 131).
13

his reaction would be . . . ” (30 RR 151). Over a defense objection based on CRIMINAL
CODE OF PROCEDURE ARTICLE 38.22, the prosecution elicited testimony that Soffar said it
“did not look like the place.” (30 RR 151-52). The police then drove to Fairlanes
Windfern, which is marked on Highway 290 by a large red sign bearing its name. (43 RR
Defense Exhibits 1-3). Over the same defense objection, the prosecution elicited that
Soffar then said that “this looked right.” (30 RR 152).
After the bowling alley visits, the police drove to find a man named “Pops,” from
whom Soffar had said he and Bloomfield had bought narcotics after the crime. (30 RR
153-54). The police never found “Pops,” but did find someone, allegedly pointed out by
Soffar, named “Papa” and his girlfriend, Mable Cass. (30 RR 155-56). The police
23
interviewed Papa on the side of the road for two to three hours and then at the station for
six to seven hours. (32 RR 20). Papa claimed that Soffar (whom he knew only as Max), a
fat guy, and a slim guy drove up and the three talked about selling Papa a gun. (32 RR
10). They then had a conversation about a robbery in Galveston or Texas City that Papa
had heard about on the news. (32 RR 12). As Papa claimed to the police in his written
statement, Max allegedly said “if I told you who did it, you wouldn’t believe me.” At the
retrial, Mable Cass testified that she overheard a conversation in which someone named
“Max” claimed to have shot four people in a bowling alley. (31 RR 194). The bowling
alley was in Galveston, and Max said it had been on television. (31 RR 183, 194). Max
23
Papa, whose real name was Lawrence Bryant, testified at the 1981 trial, and the prosecution read his testimony
into the record at the retrial over defense confrontation objections. (32 RR 4).
14

24
then allegedly showed them the gun he had used, a semi-automatic, which had a clip
which came out the bottom. (31 RR 178, 184-85). When she allegedly heard about this
crime, she did not report it to the police; instead, she “let it slide.” (31 RR 196).
The police then took Soffar to a number of locations which he claimed he and/or
Bloomfield had robbed before and after the bowling alley murders. First, they went to a
Weingarten’s store which Soffar had claimed Bloomfield had robbed some six months
earlier. (31 RR 26-27). Police investigated and found that the claim, too, was false. Id.
Then, Soffar took them to a U-Totem store in Galveston which Soffar had claimed he and
Bloomfield had robbed after they left the Fairlanes on July 14, 1980. (31 RR 27). Police
25
investigated and found that the claim was false. (31 RR 28).
Prosecution and Defense Evidence Contradicting Soffar’s Putative Confession
Soffar’s “confession” was inconsistent with virtually all of the other evidence
introduced by both the prosecution and the defense. As the defense argued, Soffar’s
statements were implausible in light of the crime-scene evidence, the forensic evidence,
the ballistics evidence, and the statements of the only surviving witness, Garner, provided
to the police shortly after the shootings:
1) Contrary to Soffar’s “confession,” (30 RR 162-63), the perpetrator took no money
from the snack bar cash drawer. The bowling alley manager testified that no money
was taken from the snack bar and its cash drawer was found locked safely in the office.
(26 RR 177-78).
24
Contrary to Cass’s story (or the story she purported to recount from “Max”), the prosecution’s own firearm expert
believed that the shooter did not use a semi-automatic because no casings had been left at the scene and because the
bullets recovered lacked the characteristic lead “melting” caused by a semi-automatic. (28 RR 92, 96).
25
The police claimed that information Soffar provided about non-specified other crimes was correct. (31 RR 45).
15

2) Contrary to Soffar’s “confession,” (30 RR 163), the perpetrator did not take “fifty or
sixty dollars” from a money bag underneath the counter. Money was stored in the cash
registers or in the office at Fairlanes, never under the counter. (26 RR 178-79).
3) Contrary to Soffar’s putative claim that he and Latt Bloomfield committed the
offense, (30 RR 161), Garner reported only a single perpetrator. (32 RR 63, 79, 101).
4) Contrary to the Soffar claim that the perpetrators wore disguises, including lady’s
stockings over Bloomfield’s head and a T-shirt over his own face, (30 RR 161), Garner
reported that the perpetrator wore no disguise. (32 RR 89, 134).
5) Contrary to Soffar’s claims that the young woman screamed and was kicked, (30 RR
162), the medical evidence established none of the shooting victims had been kicked,
beaten, or injured apart from their shooting wounds. (32 RR 69, 84, 86, 110-11, 130).
Similarly, Garner reported that no one screamed, and that the assailant did not
physically touch or hit them. (32 RR 69, 84, 86, 110-11, 130).
6) Contrary to Soffar’s claim that the perpetrators simply walked right in the bowling
alley with a gun and immediately confronted the victims, (30 RR 161), Garner reported
that the door of the bowling alley was locked and that the assistant manager, Steve
Sims, had to unlock the door for the single perpetrator who entered with a water
pitcher, not a gun. (32 RR 71-72, 79-80, 101, 138, 144). Only after Sims stepped
outside with the perpetrator and they returned inside did the perpetrator brandish a gun
and commence the robbery. (32 RR 80, 105-06, 125).
7) Contrary to Soffar’s claim that five shots were fired, (30 RR 162), only four shots
were fired, as determined by the prosecution’s own firearms expert, (28 RR 90), the
medical examiner on the scene, a detective on the scene, and the defense crime scene
expert. (33 RR 65-66, 125). Garner also reported that only four shots were fired. (32
RR 70, 129).
8) Contrary to Soffar’s putative placement of the victims in a straight line from the
front doors in the following order: male, female, male, male, (30 RR 161; 43 RR
State’s Exhibit 207/Defense Exhibit 32 (Soffar’s diagram)), Garner and the crimescene
evidence demonstrated that the victims were situated in a semi-circle in the
following order from the front doors: female, male, male, male. (33 RR 109-10; 45 RR
Joint Exhibit 3 (Garner’s diagram); 31 RR 155-56 (testimony of Det. Williamson); 33
26
RR 87-88 (testimony of defense crime-scene expert)).
26
The police and paramedics entered to find Garner lying closest to the door, the spot to which he had moved after
calling his parents. (32 RR 114-15). The Fifth Circuit found that “the arguably incorrect pattern of the shootings
16

9) Soffar did not mention the ruse Garner reported the perpetrator used to gain entry –
the supposed need to fill the jug with water (or get some air) to remedy a car problem.
(32 RR 72-74, 79-80, 83, 104-06, 137-38, 144-46). The crime scene investigators
discovered a jug, otherwise out of place, on the control counter. (26 RR 184; 27 RR
90-91, 101; 43 RR State Exhibit 39).
10) Contrary to Soffar’s putative claim that the perpetrators obtained the money from
the cash registers only after all of the shootings, (30 RR 162), Garner reported that the
perpetrator ordered Steve Sims to open the cash register before anyone was shot. (32
RR 69, 84, 107, 112, 124, 126-27).
See also Soffar, 368 F.3d at 474 (reviewing seven of these inconsistencies).
Other evidence, too, was inconsistent with Soffar’s guilt. Between Soffar’s first
and second statement, he and Latt Bloomfield were placed in separate lineups. See (43 RR
State’s Exhibits 201 (Soffar lineup), 202 (Bloomfield lineup)). Greg Garner was unable to
27
positively identify either of them. (32 RR 193-94).
In the afternoon on August 7, 1980, the police released Latt Bloomfield from
custody at the direction of the Harris County District Attorney’s Office because they
possessed no evidence to hold him. (31 RR 29-30). The police informed Soffar of this
development, and Soffar was upset because he wanted to see Bloomfield implicated in the
murders. (31 RR 30). Unlike Bloomfield, Soffar was charged with the murders. (31 RR
30). Soffar then made his third statement, set forth supra at 10-12, the only one in which
he implicated himself as a shooter inside the bowling alley.
deduced by the police from the victim’s ultimate floor positions led to statements by Soffar fitting that pattern.”
Soffar, 368 F.3d at 479.
27
Garner consistently said that a single assailant committed the crime, and told the police that he would be able to
identify him. (32 RR 68, 118). Garner said he was not sure whether his assailant appeared in either of the two
lineups. (32 RR 193-94). A police witness testified that Garner said that his single assailant “might be” Soffar or
another man in the first lineup of five men, id. at 193, and that he was not positive but his assailant “would look like”
Bloomfield, who appeared in the second lineup. Id. at 194; (43 RR State’s Exhibits 201-202).
17

According to the testimony of Appellant’s mother, Zelda Soffar, from his first
28
trial, “Max” came home in the evening on July 13, 1980, tired from helping a friend move
over the previous two days. (32 RR 244-45). He watched television and went to bed in
his room. (32 RR 257). Because his bedroom had a door to the outside, Mrs. Soffar could
not say with complete certainty that he never left home. (32 RR 266-68). Nevertheless,
she slept lightly because her sick husband needed her assistance, (32 RR 247, 252-53),
and she did not hear Max leave his nearby room, did not give him access to her
tightly-monitored vehicle, and did not hear any vehicle approach her home (the only one
on the block) or any other unusual noises. (32 RR 246-47, 249, 253). She noted that the
family dog had barked at Latt Bloomfield on previous occasions. (32 RR 270-71).
The people Soffar helped move gave him “long neck” beer bottles for which he
hoped to collect a deposit. (32 RR 249-50). The next morning, July 14, 1980, he drove
with his mom to his sister’s home in Alvin and tried to return the bottles. (32 RR 250-51).
They were unable to return the bottles that day, but they were successful two days later.
(32 RR 251). The defense presented testimony from the distributor verifying that Max
Soffar returned the bottles on July 16, 1980, and a receipt for $2.52 to prove it. (43 RR
29
Defense Exhibit 41; 33 RR 6-8).
Jackie Soffar Butler corroborated that her brother and mother came to her home in
28
Mrs. Soffar died before the retrial.
29
At the penalty phase, the defense called Carol Ann Schaub, who testified that Soffar assisted her family member
moving all day on July 12 and 13, 1980. (39 RR 58-67). Soffar and all of the movers were very tired at the end of
two full days of moving in the middle of summer. (39 RR 66). Soffar did not receive any pay, but did receive some
long neck beer bottles for his help. (39 RR 66-67). Soffar received a ride home on July 13 at around 7:00 or 7:30
p.m. (39 RR 66).
18

Alvin at approximately 9 or 10:00 a.m. on July 14, 1980. (32 RR 234). Butler
remembered this occasion because Soffar had brought her a birthday card that morning.
(32 RR 235). In those days, Soffar wore his hair a little longer than shoulder length, a
beard and moustache. (32 RR 235-36). A photograph of Soffar after his arrest is set forth
in Defense Exhibit 19 (43 RR) and below: 30
Conviction: Unable to present the evidence inculpating Paul Reid and of the media
broadcast of details that the prosecutor claimed Soffar could have known only if he had
been at the scene, Soffar was convicted of capital murder as charged. (36 RR 4).
Sentencing Phase: As a result of original trial counsel’s ineffective assistance of
counsel, and the 23 year delay before the Fifth Circuit granted habeas relief, the defense
faced a daunting task at sentencing in attempting to unearth mitigating evidence and
Soffar’s life history, including investigation as far back as Soffar’s childhood in the 1950's
30
See also (43 RR State’s Exhibit 103).
19

31
and 1960's. Many of the witnesses who knew the most about Soffar’s life, including his
mother, had died by the time of the retrial, (2 CR 500, 531-34), and the court precluded
introduction of their affidavits into evidence. (40 RR 64-65). The few defense witnesses
available to testify were subject to prosecution attacks on their ability to recall decades-old
events. (38 RR 82-85; 39 RR 41-43, 47-48).
Doctors noted at birth hard neurological signs of brain dysfunction and damage,
including an abnormal palate and facial asymmetry. (39 RR 114-15). Soffar was adopted
by older parents who ran a business and did not have the wherewithal or time to care for
him. (36 RR 96; 38 RR 150; 39 RR 139, 233). As an infant, he was irritable and agitated.
(39 RR 119-20). Incompetent as a parent, his mother put phenobarbital, a barbiturate and
central nervous system depressant, in his bottle. Id. Soffar’s father was a heavy drinker,
addicted to sleeping pills, and was mostly absent from his life. (38 RR 25-26, 31-32; 39
RR 140, 169-170). A relative of Soffar’s father noted that the Soffar family home lacked
any discipline. (38 RR 20-21). Soffar’s juvenile probation officer, who had known the
Soffar family for years, believed that his parents were unable to provide the discipline and
32
structure that he desperately needed. (36 RR 95-96).
Soffar began ingesting dangerous substances at a young age. He sniffed modeling
glue and leaded gasoline, and took his mother’s blood pressure pills and anything else he
31
Citing various legal arguments, the defense unsuccessfully moved to preclude the death penalty due to the
inherent unfairness in forcing Appellant to defend against the death penalty 26 years after the alleged capital crime.
(2 CR 499-718). See also Appellant’s Sixth Point of Error and Twenty-Second Point of Error (in proffer brief).
32
The probation officer came to the conclusion that young Max could not help his behavior. (36 RR 97).
20

33
could find in the family’s medicine cabinet. (38 RR 129-31; 39 RR 127-28). According
to Dr. Susan Stone, a board-certified psychiatrist, Soffar was self medicating his brain
34
damage. (39 RR 128-29). Due to these and other behavioral difficulties as well as
problems at school, Soffar’s parents took him to psychiatrists beginning at age six. (36
RR 42-43; 38 RR 152-53; 39 RR 107). The first psychiatrist prescribed Ritalin. (39 RR
107). Soffar was psychiatrically hospitalized at St. Mary’s Hospital at age 11, and at the
35
University of Texas Medical Branch and Austin State Hospital at age 12. (39 RR 108-
09). The diagnoses were attention deficit hyperactivity disorder and organic brain
syndrome. (39 RR 108, 117-19, 131, 133-34, 226).
Max Soffar stayed at Austin State Hospital until age 14. (36 RR 42; 39 RR 109).
According to Dr. Stone, this hospital was a “warehouse” for children with “really severe
problems.” (39 RR 109). Rick Laminack, a child care worker there during Soffar’s
hospitalization, (39 RR 4-6), described its conditions. It was “dark, drab, [and] lifeless,”
and smelled of urine and defecation left in the hallways and never cleaned. (39 RR 9-10).
There was “nothing on the walls [and] no furniture to speak of.” Id. The bed linens were
not laundered for weeks at a time. Id. The hospital had a “quiet room,” in which
misbehaving children were placed, usually naked. (39 RR 11-12, 15). A 10 feet by 10
33
As the defense expert noted, exposure to lead and other solvents causes severe damage to the neural pathways in a
developing brain. (39 RR 128).
34
Dr. Stone was a former Associate Medical Director of the Texas Department of Mental Health and Retardation
and former Ethics Advisor for the Texas Department of Criminal Justice. (39 RR 104-06).
35
Soffar had psychotic episodes leading to the hospitalization, including hallucinations that monsters were in his
window and other strange perceptions. (39 RR 142). His diagnosis on admission said to “rule out” childhood
schizophrenia. (39 RR 187-89).
21

feet “solitary confinement cell [with] hard floors, hard walls, high ceilings,” the room had
a big wooden door with a grate through which to pass meals. (39 RR 11-12). There were
no toilet facilities, no shower, and “not a stick of furniture.” (39 RR 12). In Laminack’s
opinion, putting a child in this room was “the most dehumanizing, horrible, ugly and
horrible thing” to do to the child. (39 RR 15).
Laminack first met Soffar when a fellow worker called him to help stop Soffar
from banging his head against the floor in the quiet room. (39 RR 10-11). He found the
child bruised, red, scratched, scabbed, tense all over, and crying uncontrollably. (39 RR
11). Laminack worked the afternoon shift and arrived to find Soffar confined in the quiet
room eight to twelve times, (39 RR 44), for several days without clothes. (39 RR 47). See
also (39 RR 148 (expert reviewing documentation of use of quiet room on Soffar)).
Laminack did not see Soffar or the other children receiving any treatment. (39 RR 29).
Hospital records revealed that Soffar received such age-inappropriate and risky treatments
36
as electroconvulsive therapy and powerful psychotropic medication. (39 RR 144-47).
Laminack assisted Soffar with his homework, and observed that Soffar struggled
and performed several grade levels lower than appropriate for his age. (39 RR 25-27).
Soffar was known to tell “whoppers,” tall tales about the adventures he supposedly had on
the several occasions when he and other children fled from the hospital grounds. (39 RR
20-21, 27). He saw Soffar act out, mutilate himself and start fights. (39 RR 18-20, 25).
36
Assisted by Laminack’s information, the State legislature investigated Austin State Hospital for its mistreatment
of patients at the time Soffar was there. (39 RR 32-34). The jury never heard this evidence, however, because the
court precluded its admission. Id.
22

When Soffar was given positive attention and reinforcement, Laminack saw him do quite
well, working hard on his school work and helping with the younger children during
recreational activities. (39 RR 26).
After Soffar left Austin State Hospital, he continued to have behavioral problems
and, at age 16, was placed in a program called Boy’s Country. (36 RR 77). He was
ultimately expelled from that program. (36 RR 88). Still 16, Soffar was then sent to Gulf
Coast Trade Center, a vocational school. (36 RR 89-90). The executive director there
remembered Soffar well and testified that the teenager succeeded in the shops and did
poorly in the classroom. (38 RR 67-68, 79). Soffar was not violent (violent students were
removed from the program), but had a serious substance abuse problem: he sniffed paint,
paint thinner and anything else at hand. (38 RR 72-73). When the executive director drew
the line for him, Soffar learned to respond well to authority. (38 RR 71). Although most
students stayed three months, Soffar stayed nine. (38 RR 74).
After Gulf Coast, Soffar became a police informant. (38 R 109). Officer Michael
37
Clawson testified that Soffar had mental health problems, a drug-“fried” brain, and was
not very smart. (38 RR 105-06). During this period, Soffar saved Sgt. Bruce Clawson’s
life when his cover was blown during an undercover narcotics purchase. (40 RR 5-6).
Soffar went to state prison in 1981 and eventually matured. He participated in a
religious ministry programs for over 20 years, and formed strong bonds with the people
who ministered to him. (39 RR 70-87, 91-95). Clarence Brandley, once imprisoned on
37
Michael Clawson is Sgt. Bruce Clawson’s brother; they worked for different police agencies. (38 RR 109).
23

38
Texas’s death row but ultimately exonerated, worked with Soffar in a prison factory and
observed him during recreation time over a four-year period. (40 RR 11-13). Brandley
never saw Soffar have trouble with inmates or guards. (40 RR 10-13). Soffar made
handicrafts for a cousin, Carol Schaub, and impressed her with his new-found faith and
mature manner. (38 RR 40-47). Acclaimed writer Kinky Friedman was working on a
news story when he met Soffar in prison, and they formed a friendship sustained through
correspondence. (40 RR 17-23). Soffar eventually married, and formed a loving
relationship with his wife, Sandra Soffar. (40 RR 24-35).
To convince the jury that Max Soffar “would commit criminal acts of violence that
would constitute a continuing threat to society,” TEX. CODE CRIM. PROC. 37.0711 § 3 (b),
the prosecution introduced 26 year-old and older allegations of violence for which he had
never been charged or convicted. These allegations included a rape in 1979, and
threatening a girlfriend with a gun in 1980. (37 RR 96-117; 146-52). The last allegation
was a 1996 disciplinary infraction based on an alleged verbal threat to inflict harm on a
corrections officer. (38 RR 12). The prosecution also relied on prior low-level
39
convictions for marijuana possession, reckless conduct, resisting arrest, enticing a child,
making a “terroristic” threat, burglary, and burglary of a coin-operated machine. (38 RR
37-38; 45 RR State’s Punishment Exhibits 7-12, 16-18). The prosecution went as far back
38
See, e.g., Ex parte Brandley, 781 S.W.2d 886, 894-95 (Tex. Crim. App. 1989). See also Chuck Lindell, The
Great Writ and Some Who Were Exonerated, AUSTIN AMERICAN-STATESMAN, Oct. 29, 2006, at A1.
39
The prosecution introduced evidence alleging that the reckless conduct conviction arose out of an incident where
Appellant threatened the police with a gun when they came to his sister’s home during a Christmas party in 1979.
See, e.g., (37 RR 19-29).
24

as Soffar’s childhood, focusing on incidents when Soffar ran away, and when he was
referred to juvenile probation for what his probation officer referred to as “several minor
offenses,” including misdemeanor thefts. (36 RR 70-77). Finally, the prosecution relied
on a series of similarly-stale prison disciplinary infractions clustered around the mideighties,
the latest of which was for possession of marijuana and tobacco in 1998. (38 RR
40
12). The vast majority of the infractions did not involve allegations of violence.
Over defense objection, the prosecution introduced victim-impact evidence related
to Steve Sims, even though Soffar was neither indicted nor convicted of killing Sims. (40
RR 37-44). The verdict sheet indicated a sentence of death, but the jury was discharged
“from further duties” by the court before its foreperson had signed the last page of the
verdict sheet. (15 CR 4678; 42 RR 6-7). Over defense objection, the court reconstituted
the jury so that the foreperson could sign the last page of the verdict sheet. (42 RR 7-8).
Summary of Argument
At his 2006 retrial, in addition to eliciting the “stark inconsistencies between [the
sole witness Greg] Garner’s description of the” robbery murders at a bowling alley on
Route 290 in Houston “and the one that the officers testified that Soffar gave them,”
Soffar, 368 F.3d at 471, Max Soffar attempted to defend himself in two principal ways.
40
The most serious prison allegations were from 1984 and 1985, when Appellant allegedly threw urine at a
corrections officer and possessed a shank. (37 RR 183-84; 38 RR 6-8). The other violations not addressed in the
text were for possession of contraband in 1982, indecent language and threatening an officer in 1984, failure to obey
orders in 1984, disobeying an order in 1984, level one possession of weapon in 1985, damaging or destroying
property and refusal or failure to obey orders in 1985, refusal to obey order in 1985, threatening to inflict harm on
inmate in 1987, being out of place in 1987, refusing or failure to obey order in 1989, damaging or destroying
property and threatening to inflict harm on inmate in 1990, possession of contraband in 1995, and use of intoxicating
inhalant, paint thinner, in 1997. (38 RR 10-12). See also (45 State’s Punishment Exhibit 33).
25

First, he attempted to introduce compelling evidence that Paul Reid, a dangerous Houston
criminal in 1980, was responsible for the crime. Second, Soffar – a former police
informant known to be unreliable, unintelligent and a drug addict – sought to attack his
putative confession by introducing evidence that it consisted only of details disseminated
to the public through the media. The trial judge committed reversible errors and rendered
Soffar’s retrial fundamentally unfair by blocking both of these lines of defense.
Jurors are truth seekers, and they cannot determine where the “truth lies” when they
hear only one side’s evidence. Washington v. Texas, 388 U.S. 14, 19 (1967). For these
reasons, among the others set forth in this brief, under the Constitution, a court may not
prevent an accused from presenting evidence in support of his chosen defense unless the
state demonstrates a legitimate justification. Holmes v. South Carolina, 547 U.S. 319, 126
S. Ct. 1727, 1731 (2006).
At Max Soffar’s retrial, he had a constitutional right to present evidence that Paul
Reid was the guilty party and the state offered no legitimate justification for preventing
him from doing so. As demonstrated, infra, Reid: (1) admitted to Stewart Cook that he
shot four people in a bowling alley on Route 290; (2) strongly resembled the composite
prepared from Garner’s description; and (3) was convicted in Tennessee of a series of
execution-style multiple robbery murders remarkably similar to the 1980 Houston triple
robbery murders. See, e.g., (9 CR 2553, 2561; Appendix A to Brief). Evidence of Reid’s
statement against interest and modus operandi were admissible under Texas evidentiary
rules, TEX. R. EVID. 803 (24), 404 (b), and the State had absolutely no legitimate
26

justification to block its admission. Holmes, 126 S. Ct. at 1731. Similarly, evidence of the
media dissemination of information contained in Soffar’s confession – which the
prosecutor argued only the perpetrator could have known – was highly relevant and the
jury should have been permitted to hear it. Again, the State had absolutely no legitimate
justification to block its admission.
41
Due to these and the other errors discussed below, Soffar’s retrial was grossly and
fundamentally unfair. It was also thoroughly inconsistent with constitutional, statutory
and common law mandates. Reversal is required.
Appellant’s First Point of Error
(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements against
interest establishing that Paul Reid told an accomplice during a Houston robbery
that he had previously shot four people in a bowling alley on Route 290.
(b) The trial court violated Max Soffar’s federal and state constitutional rights to due
process, compulsory process, and to present a defense by precluding evidence of
Reid’s admission to shooting four people in a bowling alley on Route 290.
Max Soffar sought to defend himself against the State’s capital murder charge by
offering evidence that Paul Reid was the guilty party. In addition to erroneouslyprecluded
evidence that Paul Reid’s modus operandi in a spree of Tennessee robbery
murders identified him as the perpetrator in the present case, see Appellant’s Third Point
of Error, infra, Soffar sought to introduce evidence that Reid admitted to Stewart Cook
during their joint 1981 or 1982 Houston robbery/shooting that Reid had shot four people in
41
In the interests of economy, Appellant seeks leave to file this summary focusing only on the above issues instead
of a discussion of all 21 Points of Error raised. See Tex. R. App. P. 38.1 (g). In addition, with leave of the Court,
the issues listed in the Table of Contents will serve as the “Issues Presented.” Tex. R. App. P. 38.1 (e).
27

a bowling alley on Route 290. (43 RR Defense Exhibit 40, 12; 5 CR 1485). The trial
court’s preclusion of this evidence violated Texas law and denied Soffar a “‘meaningful
opportunity to present a complete defense,’” as guaranteed by the United States
Constitution. Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 1731 (2006)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). The result was a blatantly unfair
and one-sided trial, in which the jury heard only the prosecution’s evidence.
Factual Background. Paul Reid is on death row in Tennessee for killing seven
people in three different robbery-murders at restaurant establishments in that state. He
was living in his native Houston in July of 1980. (45 RR Defense Exhibit P-39; 6 CR
1648, 1654, 1660-61). In the early 1980’s, Reid committed numerous armed robberies in
42
the Houston area, many with Stewart Cook. By Cook’s estimate, they committed thirty
to forty robberies together in 1981 and 1982. (5 CR 1483). Their method was to target
businesses on the weekends, believing that more cash would be available. Id. They often
43
entered the businesses under some pretext near closing time, and forced the employees to
get on the floor before they fled. Id. See, e.g., (8 CR 2304) (Reid admitting such a crime
to corrections official).
Following their robbery of a home improvement store, an employee chased Reid
and Cook on a bicycle. (6 CR 1536-38; 10 RR 10). When the employee caught up, Reid
42
See (5 CR 1507-09 (State v. Reid, Cause No. 274209 (179th Dist. Ct., Harris Cty.)); 6 CR 1531-43
(Supplementary Offense Report, # 82-6304 (Pasadena Police Dept.) (“Having received his magistrate’s warning,
Reid was then interviewed about a series of robberies which he advised that he and Stewart Cook had committed”));
5 CR 1481-85 (affidavit of Stewart Cook); 5 RR 230; 30 RR 84 (prosecution acknowledging this history); 6 CR
1544 (article documenting Reid’s history); 9 CR 2302-04 (Corrections Social and Criminal History)).
43
For example, they feigned car trouble or a desire to obtain an employment application. (5 CR 1483).
28

shot him. Id. In his sworn affidavit to Fried Frank Harris Shriver & Jacobson LLP (“Fried
Frank”), Soffar’s pro bono post-conviction counsel, Cook explained that he demanded to
know why Reid had used his gun. (5 CR 1484). “Paul [Reid] brushed it off, telling [Cook]
he’d done much worse during a robbery he had committed before [they had] started
working together. Specifically, [Reid] said that he once had a ‘problem’ while he was
robbing a bowling alley out on Route 290, and he had shot ‘four people.’” (43 RR Defense
44
Exhibit 40, 12; 5 CR 1484-85).
At his 2006 trial, Soffar sought to introduce Reid’s statement against interest
through the testimony of Cook. Initially, the trial court ruled the statement admissible. (5
45
RR 234; 10 RR 12; 6 CR 1671-72). On the first day of trial, however, Stewart Cook
stated under oath (and subpoena) that although his sworn affidavit to Soffar’s attorney was
true, he would plead the Fifth Amendment if asked about its contents or his conversation
with Reid. (26 RR 91-94). Cook testified openly about the circumstances under which he
signed his affidavit, and even swore it was true without pleading the Fifth Amendment.
(26 RR 91; 93-94). Despite this ambiguity, the prosecution did not attempt to cross
examine Cook on any topic, or to test whether Cook would plead the Fifth Amendment if
asked about how and why he came to sign it. (26 RR 94). The State refused to grant Cook
44
As explained in detail in Appellant’s Third Point of Error, Reid was finally caught and pleaded guilty to three
robberies. (6 CR 1515-27). Following an incarceration of approximately eight years in Texas, he was released early
on parole, moved to Tennessee, and resumed his pattern of robberies and murder robberies. See generally (6 CR
1549-50. Reid, who had successfully pleaded insanity in his 1977 robbery, (5 CR 1507-09; 6 CR 1656-57), is now
on death row in Tennessee, but his execution has been delayed due to mental competency issues. (5 RR 227-28).
See also Reid v. State, 197 S.W.3d 694 (Tenn. 2006).
45
The trial court also ruled admissible evidence showing Reid’s presence in Houston at the time of Fairlanes crimes,
and his physical similarity in 1980 to the Fairlanes perpetrator described by Greg Garner. (5 RR 234; 10 RR 12; 6
CR 1671-72).
29

46
immunity, as did the trial court. (24 RR 4-5; 26 RR 99). The defense then proposed to
call a Fried Frank attorney to introduce Cook’s statement, explaining that both Cook and
Reid’s admissions were declarations against interest under TEXAS RULE OF EVIDENCE 803
(24). The defense explained that the prosecution could impeach Cook and Reid’s
credibility as contemplated by TEXAS RULE OF EVIDENCE 806, and could use a sworn Reid
47
deposition, in which he denied committing the crime, to do so. (5 RR 233; 26 RR 99; 30
RR 83; 13 CR 3809-14). Over defense objections that the court was denying Max Soffar
his right to due process, compulsory process, and to present a defense, the court precluded
the proffered evidence at the prosecution’s urging. (5 RR 233-34; 30 RR 79, 84; 32 RR
37, 44; 5 CR 1474-78; 13 CR 3796-3801).
The defense proffer of evidence included not only the Cook affidavit, (32 RR 39;
43 RR Defense Exhibit 40), but also additional evidence Appellant would have presented
had the court permitted admission of Cook’s affidavit, including: 1) the testimony of
Edwin Cook, Stewart Cook’s brother, who would have identified the composite created
48
from Garner’s description as resembling Reid in 1980, (32 RR 38-40); and 2) the
testimony of Reid’s ex-wife, who would have testified that they were married in July of
46
The attempted murder with which Reid and Cook could be charged carries no statute of limitations. See TEX.
CODE CRIM. PROC. Arts. 12.01 § 1 (A), 12.03 (a).
47
A federal habeas court ordered the deposition during the pendency of Soffar’s habeas appeal when Reid’s
execution appeared imminent. (5 RR 227-28). Using Reid’s sworn denial that he had committed the Fairlanes
robbery-murders (at a deposition where the State was represented by the Attorney General’s Office) was at least one
option for attacking the Reid admission in front of the jury (5 RR 233), as the prosecution did in arguments to the
trial judge. (30 RR 82 (prosecution arguing from Reid’s deposition); 6 CR 1646-70 (the deposition)).
48
By the time of the court’s ruling precluding Reid’s admission, it had already precluded evidence of Reid’s modus
operandi in his Tennessee and Texas crimes. (10 RR 11).
30

1980, providing a foundation for introducing Reid’s wedding photograph and marriage
49
license. (32 RR 38; 45 RR Defense Exhibits 37-39).
(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements against
interest establishing that Paul Reid told an accomplice during a Houston robbery
that he had previously shot four people in a bowling alley on Route 290.
50
Determining admissibility under TEXAS RULE OF EVIDENCE 803 (24) requires a
two-step inquiry. Davis v. State, 872 S.W.2d 743, 747-48 (Tex. Crim. App. 1994). The
first step addresses “whether the statement tended to expose the declarant to criminal
liability.” Id. at 747. One indication of such exposure is an invocation of the Fifth
Amendment claim against self incrimination. Id. Another is a lack of “evidence
indicating that [the speaker] would necessarily have been immune from prosecution.” Id.
The second step requires a determination whether corroborating circumstances “‘clearly
indicate the trustworthiness of the statement.’” Id. at 747-48 (quoting TEXAS RULE OF
EVIDENCE 803 (24)). Such corroborating circumstances include “when the guilt of [the
hearsay declarant] is inconsistent with the guilt of the accused, [and] when the facts show
that such party was so situated that he might have committed the crime.” The very fact
that a statement is “genuinely self-inculpatory” is itself an indication of its trustworthiness.
51
Williamson v. United States, 512 U.S. 594, 605 (1994).
49
Reid’s ex-wife would also have testified that their wedding photograph precisely portrays how Reid appeared in
July of 1980 and that although he was living in Houston the night of the Fairlanes robbery murders, he was not with
her. (30 RR 78). Of course none of the evidence about Reid or his appearance in 1980 would have been persuasive
without the court’s either allowing in the modus operandi evidence it excluded or Reid’s admission.
50
TEXAS RULE OF EVIDENCE 803 (24) allows the admission of hearsay statements which make the declarant
subject to criminal liability so long as they are accompanied by “corroborating circumstances . . .”
51
Interpreting TEXAS RULE OF EVIDENCE 803 (24), this Court has looked to federal authority interpreting the rule’s
federal counterpart (FED. R. EVID. 804 (b) (3)), which is “virtually identical.” Davis, 872 S.W.2d at 748 n.13.
31

As shown below, both Reid’s statement to Cook and Cook’s statement to the Fried
Frank attorneys were admissible as statements against penal interest.
Cook’s Statement Was Admissible under TEXAS RULE OF EVIDENCE 803 (24). 52
Cook’s statement that Reid admitted to shooting four people in a bowling alley on
Route 290 while he and Cook were committing a Pasadena robbery and shooting for
which both men were responsible obviously “tended to expose [Cook] to criminal
liability.” Davis, 872 SW.2d at 747. First, Cook admitted to being a party to an attempted
murder, for which there is no statute of limitations. See TEX. CODE CRIM. PROC. Arts.
12.01 § 1 (A), 12.03 (a). Second, Cook stated in court that he would invoke his Fifth
Amendment right against self incrimination if asked about this incident. Third, immunity
from prosecution was not forthcoming. (26 RR 91-94; 24 RR 4-5; 26 RR 99). Each of
these factors shows that Cook’s statement tended to expose him to criminal liability.
Cook’s statement is also accompanied by numerous corroborating circumstances
clearly demonstrating its trustworthiness. Cook had nothing to gain by making his
statement to Soffar’s post-conviction attorney, who had nothing of benefit to offer him.
52
Standard of Review: Because the admissibility of Reid’s statement against interest was a legal and constitutional
issue not turning on an evaluation of the credibility and demeanor of live witnesses, de novo review applies. “When
the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then
the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo
review of the issue.” State v. Moff, 154 S.W.3d 599, 601 (2004). See also Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997) (same) (citing Villarreal v. State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996)
(McCormick, P.J., concurring)). Moreover, appellate courts “independently” decide questions of constitutional
dimension. Lilly v. Virginia, 527 U.S. 116, 137 (1999); Ornelas v. United States, 517 U.S. 690, 697 (1996). But see
Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (noting a defendant’s constitutional right to present a
defense, but reviewing the preclusion of defense evidence employing an analysis of state evidentiary law and an
abuse of discretion standard). Id. at 508 (Womack, J., concurring) (noting that constitutional principles discussed
were “not implicated in this case”); Cunningham v. State, 877 S.W.2d 310, 312 (Tex. Crim. App. 1994) (reviewing a
trial court’s decision whether to admit a statement against interest under an abuse of discretion standard when a
defendant’s right to present a defense was not at issue).
32

53
Burks, 876 S.W.2d at 904-05. Cook did not know Soffar, eliminating any inference that
54
the statement was made out of affection for him. (30 RR 80). Cf. Skipper v. South
Carolina, 476 U.S. 1, 8 (1986) (noting that disinterested testimony “would quite naturally
be given much greater weight by the jury”). Independent facts also corroborate Cook’s
statement, including the extensive police report, setting forth the details of the crime Cook
described. (6 CR 1531-43). The police report also contains Reid’s admission that he and
Cook “committed . . . a series of robberies” in the Houston area around the time when this
incident occurred. (6 CR 1539). In fact, every available piece of evidence corroborates
Cook’s statements, and nothing but Reid’s spurious deposition refutes it. 55
Cook’s affidavit was sworn, exposing him to the threat of perjury charges.
56
Williamson, 512 U.S. at 598 (emphasizing importance of “the oath”). Moreover, the
prosecution strictly controlled Cook’s availability for the jury to “observe [his] demeanor”
and the “right . . . to cross examine.” Id. The prosecution could have “immunized [him],
called him to testify at trial, and examined him.” Alonso v. State, 67 S.W.3d 346, 360
(Tex. App. – Waco 2001), petition for discretionary review granted but dismissed as
53
Cook was neither being sought for his robbery/murder with Reid nor the Fairlanes robbery murders when he gave
his statement, further eliminating the possibility that he was trying to “shift blame or curry favor.” Williamson, 512
U.S. at 603.
54
Although Cook’s statement could be characterized as “eleventh hour,” Cook explained in his affidavit that he was
coming forward out of a genuine feeling of remorse for failing to “make an earlier effort to turn Paul into the
authorities before he committed the Tennessee murders,” (5 CR 1488), and, in any event, the late nature of his
statement does not in and of itself defeat the numerous indicia of its reliability. Davis, 872 S.W.2d at 749 (rejecting
argument that “eleventh hour” nature of statement defeated other indicia of reliability).
55
Compare with Cunningham v. State, 877 S.W.2d 310, 314 (Tex. Crim. App. 1994) (finding statement against
interest untrustworthy because it conflicted in “significant aspects” with other evidence).
56
See also United States v. Doerr, 886 F.2d 944, 956 (7th Cir. 1989) (finding “circumstantial guarantee[] of
trustworthiness” in part because hearsay statement at issue was made under oath).
33

improvidently granted by 158 S.W.3d 515 (Tex. Crim. App. 2005). 57
Clearly, Cook’s statement was admissible as a declaration against interest.
Reid’s Statement Was Admissible under TEXAS RULE OF EVIDENCE 803 (24).
Reid’s statement to Cook that he shot four people in a bowling alley on Route 290
also was admissible as a statement against interest. Indeed, the trial court ruled that this
layer of hearsay could be introduced through Cook, (5 RR 234; 10 RR 12; 6 CR 1671-72),
and the appellate prosecutor who had the last word on the issue conceded that Reid’s
statement was a statement against interest. (30 RR 83-84). The prosecution’s concession
58
is not surprising. Reid admitted to a very serious crime, which certainly “tended to
expose him to criminal liability.” Davis, 872 SW.2d at 747. Reid stood nothing to gain
and “must have been aware of the possibility that disclosure would lead to criminal
prosecution.” Chambers, 410 U.S. at 299, 301.
Corroborating circumstances clearly demonstrate the trustworthiness of Reid’s
statement as well. Reid’s admission was “inconsistent with the guilt of the accused.”
Davis. 872 S.W.2d at 748. Furthermore, Reid made the statement in response to a casual
57
Cook’s affidavit was executed in 2000, (5 CR 1488), and was provided to the State during post-conviction
litigation around that time. (5 RR 227; 30 RR 80-81). At trial, the Harris County District Attorney’s Office
acknowledged that it knew about the crime Cook referred to in his statement (and other crimes) when Reid and Cook
pleaded guilty to another robbery. (30 RR 84). By never charging Cook in the first instance or even when it
received his affidavit during the Soffar post-conviction litigation, yet declining to extend immunity to Cook so that
he could answer questions, the prosecution has amply demonstrated that its only interest in this twenty-four-year old
matter is to use it to dissuade Cook from testifying to Reid’s admission. Far from fulfilling its obligation to seek
justice and the truth, Berger v. United States, 295 U.S. 78, 88 (1935), the prosecution was bent on winning a
conviction against Max Soffar. Moreover, the issue here is not whether the prosecution was required to provide
immunity (which is addressed as an alternative argument in Appellant’s Second Point of Error) but only whether it
could easily have granted immunity, allowing Cook to testify on direct and under the state’s cross examination.
58
Defense counsel relayed to the court that she knew of no other bowling alley murder “at that time,” and no “other
crime from July 14, 1980 through the present in Houston at a bowling alley where 4 people were shot and 3 people
died other than this one.” (30 RR 79). The prosecution did not dispute this information. Id.
34

inquiry by Cook, who had no connection to the Fairlanes robbery-murder. Dewberry v.
State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999) (finding casual and spontaneous
statements to declarant’s friend trustworthy). Reid was not then under suspicion for the
crime, was not shifting blame, and certainly had no incentive to curry favor with Cook.
Williamson, 512 U.S. at 603; Burks, 876 S.W.2d at 904-05.
In addition, independent corroborating facts showed that Reid was in a position to
have committed the crime. Davis, 872 SW.2d at 749. Reid was in Houston in July of
1980, was married there only days after the robbery murders, (45 RR Defense Exhibit 39;
6 CR 1648, 1654, 1660-61), and his wife could not account for his whereabouts on the
night of the crime. (30 RR 79). These salient facts supported the defense theory that Reid
committed the crime. See Holmes, 126 S. Ct. at 1731 (reversing due to preclusion of
evidence of third party guilt where third party’s alibi was refuted). Witnesses would have
established that Reid’s appearance during that time period strongly resembled the Garner
composite. (32 RR 38-40 (Edwin Cook); 30 RR 78 (Reid’s ex-wife)). So, too, would
have Reid’s wedding photograph. Compare Joint Exhibit 6 with Defense Exhibit 37:
35

Finally, Reid’s modus operandi during numerous robberies in Houston and later in
Tennessee strongly corroborated his guilt, and indeed indelibly marked him as the
perpetrator of the Fairlanes robbery murders. See Appellant’s Third Point of Error, infra,
59
incorporated herein. Even if this Court rules that the trial court did not err in keeping this
crucial modus operandi evidence from the jury, the evidence still corroborates his
admission to shooting four people in a bowling alley on Route 290.
Thus, all of these circumstances clearly show that Reid’s statement against interest
was trustworthy and admissible. Davis, 872 S.W.2d at 747-48.
(b) The trial court violated Max Soffar’s federal and state constitutional rights to due
process, compulsory process, and to present a defense by precluding evidence of
Reid’s admission to shooting four people in a bowling alley on Route 290.
The United States Supreme recently reaffirmed that “[w]hether rooted directly in
the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation Clause of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.” Holmes, 126 S. Ct.
60
at 1731 (internal quotation omitted). The Court reversed a conviction where the trial
59
As described by a Tennessee detective, “Reid displayed a distinctive modus operandi in his crimes in Tennessee –
he would gain entry to an establish[ment] at a time when the establishment was closed but employees were still
present, by causing employees to let him in. [] Reid would steal cash and coins, often having an employee access the
register or safe. [] Reid would then kill or attempt to kill all employees present at the time of the robbery, with a
preference for forcing the employees to lie on the floor, face down, and then shooting them execution style, with a
gun shot to the head.” (9 CR 2561). Cook’s affidavit sketched out a similar modus operandi, but Reid was
generally not shooting the victims in those robberies. (5 CR 1483).
60
The opinion reviewed the Supreme Court’s long history of upholding the right to present a defense. Holmes, 126
S. Ct. at 1731-32 (citing Rock v. Arkansas, 483 U.S. 44 (1987); Crane, 476 U.S. at 690 (finding violation of right to
present defense where the defendant was prevented from introducing evidence to show at trial that his confession
was unreliable, and neither the state court nor the prosecution “advanced any rational justification”); Chambers v.
Mississippi, 410 U.S. 284 (1973) (finding violation of right to present defense, in part, because court precluded
statement against penal interest inculpating an alternative perpetrator); Washington v. Texas, 388 U.S. 14 (1967)
(noting that the “right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain
36

court had relied on state evidentiary law to preclude admission of evidence that someone
61
else had committed the rape/robbery/murder for which petitioner stood trial. Id. at 1735.
Notably, like here, the evidence of the third party’s guilt included admissions that he was
62
responsible for the crime. Id. at 1730-31. Although Holmes was decided after
Appellant’s retrial and thus the trial court could not have been aware of its precise
63
language and holding, Holmes applies to this case. Reversal is required.
Appellant’s constitutional right to present a defense required admission of Cook’s vital
statement.
Exclusion of Cook’s statement certainly violated Max Soffar’s constitutional right
64
to present a defense. First, Cook’s statement was under oath, Doerr, 886 F.2d at 956,
and its self-incriminating nature provides it with an inherent guarantee of trustworthiness.
Chambers, 410 U.S. at 299. Second, as explained above, ample evidence, including
contemporaneous police reports, strongly corroborated Cook’s affidavit. Id.
terms the right to present a defense, the right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies”) (emphasis added)).
61
The Court reversed despite substantial forensic evidence that the petitioner was guilty, including DNA evidence,
palm print and fiber evidence. Holmes, 126 S. Ct. at 1730.
62
Not unlike Paul Reid, (6 CR 1650-51), when brought before the trial court, the third party in Holmes denied
having made these admissions. 126 S. Ct. at 1730-31.
63
See Powel v. Nevada, 511 U.S. 79, 80 (1994) (a “‘rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases . . . not yet final’ when the rule is announced” (quoting Griffith v. Kentucky, 479 U.S. 314,
328 (1987))); Griffith, 479 U.S. at 321 n.6 (noting that a criminal case is not final until the defendant is sentenced,
takes a direct appeal, and files a petition for certiorari or the time for such a petition has expired).
64
Holmes, 126 S. Ct. at 1731; Coleman v. State, 966 S.W.3d 525, 527-28 (Tex. Crim. App. 1998) (reversing
conviction and recognizing the defendant’s right to compulsory process in order to obtain the attendance and
testimony of witnesses favorable to his defense); Alonso, 67 S.W.3d at 359-60. Summarizing the requirements of
the same right-to-defense precedents the Supreme Court reviewed in Holmes, the Alonso court developed the
following useful five-factor test for determining whether a defendant’s right to present a defense required the
admission of hearsay evidence proffered by the defense: [1] what was the inherent trustworthiness of the hearsay; [2]
was there corroborating evidence that the hearsay is truthful; [3] how important to the determination of
guilt/innocence is the hearsay; [4] did the State have an opportunity to examine the declarant of the hearsay; [5] did
the State demonstrate the unreliability of the hearsay? Id. at 359-60.
37

Third, and crucially, Cook’s statement was essential to Soffar’s defense that his
own putative confession should not have been credited because Paul Reid was responsible
for the crime. Without his “alternative perpetrator” defense, Soffar was left only with an
“easily discounted alibi defense composed of . . . family.” Alonso, 67 S.W.3d at 360.
Given that the court precluded evidence of Reid’s modus operandi in other crimes to show
his identity as the Fairlanes perpetrator, Cook’s affidavit was the only remaining avenue
available for Soffar to present his defense that Reid committed the robbery murders. Cf.
Ray v. State, 178 S.W.3d 833, 836 n.1 (Tex. Crim. App. 2005) (“Had appellant chosen not
to testify in her own defense, we would be faced with exclusion of clearly vital evidence,
precluding altogether the presentation of the defensive theory.”). Without Cook’s
affidavit, the prosecution was able to obtain its conviction by improperly arguing to the
jury that the defense “didn’t bring you any evidence that someone other than the
Defendant committed this crime.” (35 RR 9). Thus, the jury was left with a thoroughly
misleading picture: the prosecution’s theory of the case countered not by evidence of an
alternative perpetrator, but by an alibi defense from a family member that was plausible
yet uncorroborated.
Fourth, as noted, the prosecution could have cross examined Cook by
“immuniz[ing] [him], call[ing] him to testify at trial, and examin[ing] him.” Alonso, 67
S.W.3d at 360. In addition, the prosecution declined to take the opportunity to cross
examine Cook under oath about subject areas for which he did not invoke his privilege
against self incrimination – including the circumstances under which he executed the
38

affidavit. (26 RR 91-94). The prosecution knew about Cook’s affidavit and could not
claim “unfair surprise.” Alonso, 67 S.W.3d at 360. In fact, the prosecution acknowledged
that it had sent an agent to speak with Cook, but he refused to talk. (26 RR 98). Under
65
TEXAS RULE OF EVIDENCE 806, which defense counsel cited and referred to as a means
for the prosecution to confront Cook and Reid’s hearsay statements, (5 RR 233; 26 RR 99;
30 RR 83), the prosecution could have introduced Cook’s refusal to cooperate to raise an
inference of bias and to thereby impeach Cook’s statement; it also could have relied on
Reid’s deposition in which he denied making the statement to Cook. (6 CR 1650-51).
Combined, the numerous opportunities the prosecution had to cross examine and confront
Cook’s assertions weigh heavily towards their admission. The predominant purpose of the
hearsay rule is to prevent juries from hearing statements not tested in the crucible of cross
examination. Williamson, 512 U.S. at 598. Applying the hearsay rule wholesale in this
case was “arbitrary” because the purpose of the rule was not served where the prosecution
had both actual opportunities to cross examine Cook, as well as practical substitutes for
66
cross examination. Holmes, 126 S. Ct. at 1731.
65
TEXAS RULE OF EVIDENCE 806 provides in relevant part: “When a hearsay statement . . . has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which
would be admissible for that purpose if declarant had testified as a witness.”
66
The prosecution attempted to cast doubt on Cook’s statements in arguments before the judge by referring to his
refusal to talk and to Reid’s claim that Cook set up the whole story to win a book deal. (26 RR 98; 30 RR 82).
While demonstrating the type of arguments it could have made before the jury to confront Cook’s statement, these
arguments do not establish that Cook’s statement was not reliable. The prosecution made no effort to counter
Cook’s (police corroborated) rendition of the crime he and Reid committed when Reid made the statement. And
neither Reid’s claim about a book deal (among other fanciful, grandiose, and unsubstantiated claims in his
deposition) nor Cook’s refusal to talk to the prosecution’s agent created anything more than a question for the jury
about the reliability of Cook’s statements. See Holmes, 126 S. Ct. at 1731 (noting that third party whose guilt the
defense tried to establish denied making incriminating statements when brought before the trial court).
39

A state cannot apply its hearsay rule to deprive a defendant of a right to present a
defense. Max Soffar had a constitutional right to introduce the Cook statement.
Appellant’s constitutional right to present a defense required admission of Reid’s vital
admission to the crime.
Appellant also had a constitutional right to introduce the Reid statement to Cook.
As an admission to an extremely serious crime, Reid’s statement was: (1) inherently
trustworthy, Alonso, 67 S.W.3d at 359-60; (2) substantially corroborated by other
evidence; (3) critical to Soffar’s right to present a defense, id., particularly where, without
it, the prosecution was able to argue to the jury that the defense had not introduced
evidence of an alternative perpetrator; and (4) subject to the State’s cross examination at
Reid’s deposition, which would have been available to the jury had Reid’s hearsay
67
admission been permitted into evidence. Id. TEX. R. EVID. 806.
The prosecution had an opportunity to and in fact did cross examine Reid. (6 CR
1646-70). Thus, barring his admission did not serve the purpose of the hearsay rule. The
ruling was “arbitrary” in the same sense that the rules Justice Alito reviewed in Holmes
were arbitrary. The rules reviewed in Holmes, like the rule applied to exclude Reid’s
statements, arbitrarily deprived the defendant of his constitutional right to present a
defense. 126 S. Ct. at 1731-32, 1735. Specifically, just as in Holmes, the trial court’s
arbitrary evidentiary ruling completely prevented Soffar from presenting an “alternative
67
The prosecution did nothing to call into question Reid’s admission to killing four people in a bowling alley on
Route 290. Whether Soffar’s putative admission to the crime (with Bloomfield) or Reid’s admission was true was
purely a question for the jury. Cf. Holmes, 126 S. Ct. at 1731 (reversing conviction obtained through preclusion of
evidence of third-party guilt, despite that third party denied his guilt and self incriminating statements).
40

68
perpetrator” theory.
The one-sided presentation of evidence resulting from the court’s rulings was the
picture of an unfair trial. Although appellate counsel contends that the Reid evidence
demonstrates that Max Soffar is not guilty, that is not the issue for this Court to decide.
Instead of opining on “whether it believe[s] the defendant’s defense was credible,” this
Court should consider whether “‘a jury could . . . properly convict [Soffar] absent the
opportunity to hear the proffered testimony bearing upon the theory of defense and weigh
its credibility along with the other evidence in the case.’” Miller, 36 S.W.3d at 506
th
(quoting United States v. McClure, 546 F.2d 670, 673 (5 Cir. 1977) (emphasis added)).
Clearly, the answer is no.
The Deprivation of Appellant’s Right to Present a Defense Was Not Harmless.
The trial court’s error in precluding the introduction of Paul Reid’s admission
violated Soffar’s constitutional rights and was not harmless beyond a reasonable doubt.
Under the test for constitutional error, this Court must reverse Soffar’s conviction “unless
[it] determines beyond a reasonable doubt that the error did not contribute to the
68
This Court has stated that the exclusion of evidence may establish a constitutional violation: “(1) when a state
evidentiary rule categorically or arbitrarily prohibits the defendant from offering relevant evidence that is vital to his
defense; or (2) when a trial court erroneously excludes relevant evidence that it is a vital portion of the case and the
exclusion effectively precludes the defendant from presenting a defense.” Ray v. State, 178 S.W.3d 833, 835 (2005)
(citing Potier v. State, 68 S.W.3d 657, 659-62 (Tex. Crim. App. 2002). Appellant has demonstrated a constitutional
violation under the second test, and the first is no longer an accurate statement of the law. Potier focused on whether
the rule itself was arbitrary, rather than whether the court’s application of the rule was arbitrary. 68 S.W.3d at 666
(rejecting constitutional claim because the trial court’s action barring non-hearsay was merely the
“misinterpretation” of a non-arbitrary rule). Holmes, decided after both Potier and Ray, rejected this type of
analysis. See Holmes, 126 S. Ct. at 1735 (“Interpreted in this way, the rule applied by the State Supreme Court [but
which was otherwise permissible] does not rationally serve the end that the . . . rule and its analogues in other
jurisdictions were designed to promote . . . .”) (emphasis added). Clearly, the arbitrary application of an otherwise
permissible rule to preclude defense evidence is just as detrimental to a defendant’s rights and to the trial’s truthseeking
process as an inherently arbitrary rule.
41

conviction or punishment.” TEX. R. APP. P. 44.2 (a). See also Chapman v. California,
69
386 U.S. 18, 24 (1967) (same). Further, even if this court finds only non-constitutional
error, the error was not harmless. For non-constitutional error, the question is whether
the error affected substantial rights . . . . No party should have a burden to prove harm
from an error, and there ordinarily is no way to prove “actual harm.” . . . In general, we
look to the severity of the error . . . , to measures taken to cure the error, and to the
certainty of conviction without the error.
State v. Anderson, 182 S.W.3d 914, 918-19 (Tex. Crim. App. 2006) (emphasis added). As
demonstrated below, here, no measures were taken to cure the error, it was severe, and the
state cannot now show any certainty of conviction absent the error in excluding Reid’s
admission – particularly when combined with Reid’s strong resemblance to the perpetrator
and his presence in Houston on the night of the robbery murders.
The trial court’s preclusion of Reid’s admission to the Fairlanes robbery-murder
was not harmless under any standard. Constitutional error can be “harmless if [the
admissible] evidence of the defendant’s guilt is overwhelming.” Anderson v. State, 717
S.W.2d 622, 628 (Tex. Crim. App. 1986). The prosecution’s case against Soffar was far
from overwhelming. On the contrary, it was extraordinarily weak. As the Fifth Circuit
stated after reviewing virtually identical evidence from Soffar’s first trial:
No eyewitness testimony placed either Soffar or Bloomfield at the crime scene. No
fingerprints lifted from the crime scene matched the fingerprints of either Soffar or
Bloomfield. Nothing was taken from the crime scene and later found in the possession
of either Soffar or Bloomfield. No blood or hair samples were found at the crime
69
In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court made clear that the burden of proving harmless
error falls on the prosecution. Id. at 297 (holding that “the State has failed to meet its burden of establishing, beyond
a reasonable doubt, that the [constitutional error] was harmless”).
42

scene that matched those of Soffar or Bloomfield. The gun used to commit this crime
was neither found nor introduced into evidence. Neither Soffar nor Bloomfield were
linked to a weapon of the same caliber as the bullets recovered from the crime scene.
Nothing Soffar told the police in his statements led the police to discover any evidence
they did not already have relating to the bowling alley murders.
Soffar, 368 F.3d at 479. These observations are equally true of the second trial, where the
only evidence against Soffar were his own highly questionable statements.
Soffar’s statements themselves were implausible in light of the crime-scene
evidence, the forensic evidence, the ballistics evidence, and the statements that the only
surviving witness, Garner, provided to the police shortly after the shootings. As
demonstrated more fully in the Statement of Facts, all of this evidence, as summarized in
the following chart, conflicted with Soffar’s putative confession.
Varying Fact Putative Soffar Confession The credible evidence, including
Garner’s statements
Number of
perpetrator(s)?
70 71
2 1
Use of
Disguises?
How
perpetrator(s)
entered?
Location of
Cash Taken?
T-shirt and ladies stockings used to
72
hide perpetrators’ faces.
Perpetrators walked through open door
with gun. 74
Snack bar and underneath counter.
76
Lone perpetrator wore no
disguise. 73
Manager opened locked door to
help lone perpetrator feigning car
75
trouble using a white jug/pitcher.
Neither from snack bar nor under
counter; only from control booth
cash register. 77
70
See (30 RR 161).
71
72
73
74
75
76
77
See (32 RR 63, 79, 100-01).
See (30 RR 161).
See (32 RR 89-90, 134-35).
See (30 RR 161).
See (32 RR 71-75, 79-80, 83, 10-06, 137-38, 144-46; 26 RR 184; 27 RR 90-91, 101; 43 RR State’s Exhibit 39).
See (30 RR 162-63).
See (26 RR 177-79).
43

Victim kicked?
78
Young woman kicked in head.
79
No one kicked. No one injured
apart from bullet wounds. 80
Number of
shots fired?
When money
taken?
81 82
5 4
After shooting victims
Before shooting victims
83 84
Configuration
of victims on
floor when
shot?
Straight line from the front doors in
following order: male, female, male,
male. 85
Victims in semi-circle in following
order from front door: female,
male, male, male. 86
The unreliability of the Soffar statements was predictable. Knowing Soffar from
his time as an informant, Sgt. Clawson believed that he was “just not trustworthy,” and his
assertions could never be relied upon to obtain a warrant. (29 RR 103-05; 129, 134).
Soffar’s brains were “fried” from drug use. (29 RR 134). He was like a ten- or elevenyear-old
child. Id. Soffar did not appear to understand that this was a serious case, a
capital case. (29 RR 163). Soffar asked Sgt. Clawson about possible reward money early
on during the interrogation, (29 RR 186), consistent with Soffar’s perpetual search for the
87
“big score” in his life. (29 RR 131).
78
See (30 RR 162).
79
80
81
82
83
84
85
86
See (32 RR 69, 84, 86, 110-11, 130).
See (28 RR 18-21; 27 RR 234).
See (30 RR 162).
See (28 RR 90; 33 RR 65-66, 127-28; 32 RR 69-70, 129).
See (30 RR 162).
See (32 RR 69, 84-85, 107-08, 111-12, 126-28).
See (30 RR 161).
See (33 RR 86-89; 109-10; 31 RR 155-56).
87
False confessions are amongst the leading causes of wrongful convictions. See http://www.innocenceproject.org/
understand/False-Confessions.php (Last visited April 19, 2007) (noting that 25% of DNA exonerations involve
convictions based upon false confessions). Empirical evidence suggests that persons, like Soffar, who are
impulsive, have low intelligence, have low self esteem, are prone to fantasy and disassociation, and/or are addicted
to drugs, (6 RR 33-37; 4 RR 80-81, 88-89), are the most likely candidates for false confessions. GISLI GUDJONSSON,
The Psychology of Interrogations and Confessions: A Handbook, 381, 388, 390, 396, 418-30 (2003).
44

Other evidence confirmed that Soffar was the type of person who would falsely
confess. Soffar falsely claimed responsibility for a well-publicized burglary the night
before the robbery murders, which the media had reported was possibly connected to the
Fairlanes robbery murders. (30 RR 25, 189; 26 RR 183; 43 RR Defense Exhibit 59). By
the time Soffar had made this claim, other suspects had already been arrested and charged
with the burglary. Id. Similarly, the police learned that Soffar’s confessions to other area
robberies, in which he again inculpated Bloomfield as an accomplice, were also false. (31
RR 26-28). During the police interrogation regarding the Fairlanes crime, Sgt. Clawson
observed Det. Schultz interviewing Soffar and noted that Soffar was unable to say
anything about the building, the roadway, or the “turn around” near the bowling alley. (29
RR 150-51). In a diagram Det. Schultz worked on with Soffar, Schultz had to draw in
88
much of the crime scene, including the counter inside the bowling alley. (29 RR 151).
Det. Schultz’s interrogation made Sgt. Clawson concerned whether the police were
obtaining accurate information. (29 RR 166). After the Schultz interrogation, in which
Soffar inculpated Bloomfield and not himself, no other interrogations were recorded,
raising the question whether unreliable interrogation tactics continued. (30 RR 176-78).
Against the backdrop of a prosecution case lacking “clear objective evidence of
Soffar’s guilt,” 368 F.3d at 478-79, any additional relevant evidence the defense could
offer was likely to tip the scales enough to create a reasonable doubt. Chapman, 386 U.S.
88
Similarly, Det. Williamson drew most of the parts of the diagram he used in his interrogation with Soffar. (31 RR
61-62, 128-29, 131).
45

at 25-26 (observing that an error is less likely to be harmless if the case is a close one).
And a confession by a third party to the crime is particularly powerful evidence in favor of
the accused. See House v. Bell, __ U.S. __, 126 S. Ct. 2064, 2084 (2006) (finding
sufficient showing of “actual innocence” based in part on evidence of a third party
confession). A third party’s resemblance to the possible perpetrator and other evidence of
his guilt combine even more powerfully as a defense. 89
Here, when combined with evidence that: 1) Reid’s July 1980 photograph was a
virtual match with the composite prepared by Garner, compare (43 RR Defense Exhibit
38) with (45 RR Joint Exhibit 6), as set forth, supra, at 35, 2) Reid was in Houston at the
time of the Fairlanes robbery murders, and 3) Reid’s wife could not account for his
whereabouts on the night of the crime, Reid’s admission to killing four people in a
bowling on Route 290 might well have created a reasonable doubt, leading to acquittal.
Without this error permeating the trial, conviction would have been far from certain –
indeed it would have been unlikely. Anderson, 182 S.W.3d at 918-19. This Court simply
cannot conclude that preclusion of this evidence did not make any difference, beyond a
reasonable doubt or otherwise. Chapman, 386 U.S. at 24.
Moreover, by successfully moving to exclude the Reid evidence, the prosecution
was able to argue to the jury that the defense “didn’t bring you any evidence that someone
89
See Wilson v. Firkus, 457 F. Supp. 2d 865, 891 (N.D. Ill. 2006) (finding unconstitutional preclusion of third
party’s similar modus operandi in other crimes and resemblance to description of assailant not harmless where
habeas “[p]etitioner’s confession did not match the victim’s testimony in a very key aspect . . .” and where
admission of the evidence “would have lent credibility to Petitioner’s contentions that someone else committed the
crime and may very well have tipped the scale in his favor”).
46

other than the Defendant committed this crime.” (35 RR 9). This argument alone shows
that the exclusion of the Reid evidence was not harmless by either standard because the
prosecution would not have made it were it not for the reasonable possibility that lack of
alternative perpetrator evidence would affect the outcome. See Fulminante, 499 U.S. at
297-98 (citing prosecution’s argument in summation as evidence that error was not
harmless); Chapman, 386 U.S. at 25 (similar).
The court’s ruling, the lack of any measures to cure the error, Anderson, 182
S.W.3d at 919, and the prosecution’s argument, all combined to leave the jury with the
following picture: that there was no credible evidence that the offense was committed by
an alternative perpetrator. This picture was false. Kept from the jury was evidence that
Reid – not Max Soffar – committed the crime. It is impossible to eliminate the reasonable
possibility that this constitutional and evidentiary error substantially contributed to the
90
verdict. This Court must reverse.
Appellant’s Second Point of Error
(a) The trial court violated Appellant’s constitutional right to present a defense by
refusing to grant immunity to a witness who would have testified that Paul Reid told
him during a crime that Reid had shot four people in a bowling alley on Route 290.
(b) The trial court violated Appellant’s constitutional right to present a defense by
failing to compel Cook to testify because his invocation of the right against self
incrimination was improper.
Assuming arguendo that this Court rejects Appellant’s First Point of Error, this
90
This harmless error analysis presented above assumes that the trial court’s ruling precluding evidence of Reid’s
modus operandi in the highly similar Tennessee crimes was correct. If, as Appellant argues in Appellant’s Third
Point of Error, infra, those rulings were wrong, the cumulative harm of precluding all of the Reid evidence further
supports the conclusion that the court’s error was not harmless. See Appellant’s Twenty-first Point of Error, infra.
47

Court should find that the trial court erroneously failed to uphold Soffar’s right to present
a defense by refusing to require Stewart Cook to testify. The court had two legal means to
obtain such testimony. First, the court could have ordered “use immunity” for Cook.
Smith v. State, 70 S.W.3d 848, 860 (Tex. Crim. App. 2002) (defining “use immunity”).
Second, even if the court determined that Cook’s statement was not against interest and
immunity was not warranted, it should have ruled that Cook’s invocation of the right
against self incrimination was improper. The court’s failure to utilize either option was
prejudicial error. Reversal is required.
(a) The trial court violated Appellant’s constitutional right to present a defense by
refusing to grant immunity to a witness who would have testified that Reid stated
during a Houston armed robbery that he had shot four people in a bowling alley on
Route 290.
A trial court must grant immunity without the prosecution’s consent if it is
necessary to uphold a defendant’s right to compulsory process. See U.S. Const. amends.
VI; XIV; Norman v. State, 588 S.W.2d 340, 345 (Tex. Crim. App. 1979) (finding error in
refusal to grant “immunity for [the] informant” and a “denial of appellant’s Sixth
91
Amendment right to compulsory process and [to] present[] a defense”); Miller v. State,
36 S.W.3d 503, 506 n.4 (2001) (citing Norman). This case falls within the narrow class of
cases where ordering immunity was required to uphold the right to present a defense. 92
91
Although Norman’s rationale might have been that the invocation of the right against self incrimination in that
case was ill founded, 588 S.W.2d at 344, by its own terms, Norman spoke of granting immunity to uphold a
defendant’s right to present a defense, as did the Miller opinion when it cited Norman in 2001. Miller, 36 S.W.3d at
506 n.4.
92
Standard of Review: The trial court’s refusal to grant immunity or to rule that Cook’s invocation of his right
against self incrimination was improper implicated Appellant’s Constitutional right to present a defense. Review of
this question of constitutional law is de novo. See Lilly v. Virginia, 527 U.S. 116, 137 (1999); Guzman, 955 S.W.2d
48

Defense counsel’s request was for “use immunity,” not transactional immunity. (13
CR 3793, 3796-3797, 3799, 3802). “Use immunity” is immunity from the State’s use of
self-incriminating statements (and their fruits) made during a witness’s compelled
93
testimony. Smith, 70 S.W.3d at 860. In Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir.
1983), the Fifth Circuit stated that a constitutional right to immunized testimony would
exist to remedy prosecutorial “abuse of the immunity process.” The Autry ruling requires
a showing that “the state had no legitimate purpose for refusing immunity and did so to
deprive the defense of essential exculpatory testimony.” Id. at 1402.
Appellant easily meets the Autry test. At trial, the prosecution acknowledged that
the State knew about the attempted capital murder/attempted robbery about which Cook
would testify (during which Reid made his admission) when Reid and Cook pleaded guilty
to a robbery in 1982. (30 RR 84). Moreover, the prosecution received Cook’s affidavit in
2000. (5 RR 227; 30 RR 80-81). By never prosecuting him during the twenty-four years
since he committed the crime, the State proved it had no legitimate purpose for refusing
Cook immunity.
at 87. De novo review is also appropriate because “the resolution of [this] question of law [did] not turn on an
evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601.
93
By contrast, “transactional immunity” is immunity from prosecution for any crime related to the compelled
testimony. Id. TEXAS CODE OF CRIMINAL PROCEDURE Article 32.02, addresses, if anything, transactional immunity.
Article 32.02 states that “the State may, by permission of the court, dismiss a criminal action . . .” “Transactional
immunity” refers to the State refraining from bringing charges, rather than dropping them. Apparently, however,
courts cite the statute in refusing to grant immunity because providing transactional immunity would sometimes
require dismissing a criminal action already commenced. See, e.g., Smith v. State, 708 S.W.2d 518, 520 (Tex. Crim.
App. – Houston 1986, pet ref’d) (citing Art. 32.02). “Use immunity,” however, is clearly not implicated by TEXAS
CODE OF CRIMINAL PROCEDURE ARTICLE 32.02, and neither requires the dismissal of a criminal action nor even
requires a prosecutor to refrain from prosecution. No other provision of the Code of Criminal Procedure addresses
immunity.
49

When asked its position, the prosecution offered no legitimate reason for
withholding immunity. (24 RR 4-5). Instead, it merely argued that the court could not
grant immunity over its objection. Id. The State wholly lacked a legitimate justification
for withholding immunity. It claimed no prosecutorial interest in a crime it had known
about for twenty-four years because it had none. The State then capitalized on the Court’s
refusal to grant immunity by arguing to the jury that the defense failed to prove that
someone else was responsible for the Fairlanes robbery murders. (35 RR 9). The
inescapable inference from its conduct and words is that the prosecution withheld
immunity from Stewart Cook to keep him from relaying to the jury that someone else had
admitted to the crime. See Virgin Islands v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)
(finding deliberate intent to distort fact-finding process because the witness would have
been “severely damaging” and the prosecution gave no justification for not immunizing
the witness). Such an abuse of the immunity process required the trial court to intervene
and uphold Appellant’s constitutional rights. The trial court’s failure to do so was error.
Moreover, even absent abuse of the immunity process, granting immunity is
required when: 1) immunity is properly sought; 2) the witness is available; 3) the witness’s
testimony is exculpatory; 4) the testimony is essential; and 5) the prosecution has no
strong countervailing interest. See United States v. Cohen, 171 F.3d 796, 801-02 (3d Cir.
1999). Cook’s testimony clearly meets this test. Immunity was properly sought for
testimony which could have inculpated him in an attempted capital murder, which has no
statute of limitations. See TEX. CODE CRIM. PROC. Arts. 12.01 §§ 1 (A), 12.03 (a). Cook
50

was available. (26 RR 91-94). His testimony was certainly exculpatory and essential to
Soffar’s case where Soffar’s attempted defense was that someone else was guilty of the
offense, and where the prosecution specifically argued to the jury that the defense had
failed to bring forth evidence of an alternative perpetrator. (35 RR 9). Finally, the State
has shown absolutely no interest in prosecuting Cook for either the Fairlanes murders (in
which he was not a suspect) or for his 1982 crime with Reid.
Thus, even if the Court finds no abuse of the immunity process, this Court should
hold that the trial court erred in denying Appellant’s request to order immunity for Cook.
(b) The trial court violated Appellant’s constitutional right to present a defense by
failing to compel Cook to testify because his invocation of the right against self
incrimination was improper.
In arguing against immunity, the prosecution suggested that Cook no longer was in
jeopardy of prosecution for his 1982 robbery and attempted murder. (30 RR 84-85).
Defense counsel responded by seeking an order directing Cook to testify and a ruling that
he had no Fifth Amendment privilege. Id. After the trial court refused to grant immunity
and refused to allow admission of Cook’s affidavit as a declaration against interest,
defense counsel again asked the trial court to declare that Cook’s invocation of the right
against incrimination was improper and to compel him to testify. (32 RR 40-44). Defense
counsel cited Max Soffar’s constitutional rights to compulsory process and to present a
94
defense. (32 RR 44). The court denied Appellant’s motion without ever determining
whether Cook’s invocation of his Fifth Amendment rights was proper. (30 RR 84-85; 32
94
Defense counsel’s perseverance underscores the crucial nature of Reid’s admission to the defense case.
51

RR 43-44).
A witness’s ability to rely on the Fifth Amendment privilege against self
incrimination to avoid testifying is not absolute. Hoffman v. United States, 341 U.S. 479,
486 (1951). “The witness is not exonerated from answering merely because he declares
that in so doing he would incriminate himself[;] his say-so does not of itself establish the
hazard of incrimination. It is for the court to say whether his silence is justified . . . and to
require him to answer if it clearly appears to the court that he is mistaken.” Id. (internal
citations and quotation marks omitted) (emphasis added). A trial court’s role in
determining whether the privilege is properly invoked is crucial when the privilege
threatens “‘the right to present a defense.’” Norman, 588 S.W.2d at 345 (quoting
Washington v. Texas, 388 U.S. 14, 19 (1967)). See also Reese v. State, 877 S.W.2d 328,
337 (Tex. Crim. App. 1994) (finding error where trial court sustained witness’s claim
against self-incrimination because it was “too broad and therefore . . . spurious”).
In Norman, this Court criticized the trial court’s failure to determine whether a
witness properly invoked the right against self incrimination. 588 S.W.2d at 344. As in
Norman, the court below erred in accepting Cook’s invocation of his right against
incrimination without the necessary inquiry and without finding that the invocation was
proper. Cook’s invocation of his Fifth Amendment rights did not “itself establish the
hazard of incrimination.” Hoffman, 341 U.S. at 486. It was for the trial court to say
whether his “silence [was] justified.” Id. And it could not do so without conducting “a
searching inquiry into the validity and extent of [Cook’s] Fifth Amendment claims.”
52

United States v. Waddell, 507 F.2d 1226, 1228 (5th Cir. 1975). However, the trial court
here made no inquiry. When Cook testified that he “believe[d] that any testimony might
incriminate [him] regarding possible acts that were committed back in 1982, 83,” (26 RR
92), the court asked him nothing about this belief or anything else. (26 RR 91-94).
Moreover, the court failed to ask the prosecution, which had authority both over
Soffar and Cook’s Harris County cases, whether Cook had a legitimate basis for fearing
prosecution for a 24 year-old crime. The prosecutors were duplicitous about Cook’s
exposure. When the issue was whether Cook’s statement was against his penal interests,
the prosecution implied that Cook would not be prosecuted because the “State was aware
of those aggravated robberies” when Cook pleaded guilty to them. (30 RR 84). When the
issue was the propriety of Cook’s invocation of his Fifth Amendment rights, however, the
prosecution argued that “based upon the advice of counsel . . . [Cook has] invoked [the]
Fifth Amendment privilege [and] does have liabilities in that situation.” (30 RR 85). The
trial court should have directly asked the State for its position on Cook’s exposure and
required a straight answer. By not doing so, the court enabled the prosecution to take
contradictory positions. It could successfully oppose both Appellant’s motion to introduce
Cook’s statement as a declaration against interest and his alternative motion for a ruling
that Cook’s invocation of his right against self incrimination was improper. This type of
gamesmanship must not be countenanced.
The court’s failure to rule on the validity of Cook’s invocation of his Fifth
Amendment rights and failure to conduct a searching inquiry by asking Cook and the State
53

about Cook’s perceived criminal exposure for the 1982 crime violated Max Soffar’s
constitutional right to present a defense and to compulsory process.
For the reasons stated in Appellant’s First Point of Error, the court’s constitutional
error was not harmless beyond a reasonable doubt. This Court must reverse.
Appellant’s Third Point of Error
The trial court denied Max Soffar his constitutional right to present a defense by
precluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texas and
Tennessee crimes, which marked him as the perpetrator of the remarkably similar
Fairlanes robbery-murders.
Paul Reid is on death row for killing seven people in Tennessee in three different
robbery-murders at business establishments. Reid’s modus operandi in those cases was
remarkably similar to the Fairlanes robbery-murders, which were committed: 1) in a
nearly identical way, 2) on a night when Reid was living in Houston and his wife could not
account for his whereabouts, (30 RR 78) and 3) by a perpetrator strongly meeting Reid’s
description. Compare (43 RR Defense Exhibit 38) with (45 RR Joint Exhibit 6). The trial
court violated Max Soffar’s constitutional right to present a defense by precluding this
compelling evidence. Holmes, 126 S. Ct. at 1731. Without this evidence, Max Soffar did
not have a fair trial and the jury lacked the information it needed to determine where the
truth lies. Washington, 388 U.S. at 19.
Factual Background. The Fairlanes robbery murders occurred on a Sunday. (26
RR 42). By feigning car trouble, a single perpetrator entered the bowling alley after it had
been closed. (32 RR 66, 71-74, 75, 79-80, 83, 101, 103-04, 136-38, 144). The perpetrator
54

wore no mask or disguise. (32 RR 89-91, 131-34). He made each of his victims lie face
down and shot them in the head only after completing his robbery. (32 RR 69-70, 80, 84-
85, 106-07, 112, 124, 126-29). The perpetrator discarded their wallets on a nearby
roadway. (27 RR 119). The perpetrator was white, just over six feet tall, (32 RR 83, 131-
32). His hair was light brown, worn combed back, revealing his complete forehead, and
cut just below the ears on the side and at the collar on the back. (32 RR 132-33; 135). He
was stronger and heavier than the surviving victim, Garner, who weighed one hundred and
fifty-five pounds. (32 RR 133).
Paul Reid’s crimes in Tennessee possessed remarkably similar characteristics. As
described by Det. Postiglione, who investigated his crimes there, “Reid displayed a
distinctive modus operandi in his crimes in Tennessee – he would gain entry to an
establish[ment] at a time when the establishment was closed but employees were still
present, by causing employees to let him in. [] Reid would steal cash and coins, often
having an employee access the register or safe. [] Reid would then kill or attempt to kill all
employees present at the time of the robbery, with a preference for forcing the employees
to lie on the floor, face down, and then shooting them execution style, with a gun shot to
95
the head.” (9 CR 2553, 2561 (affidavit of Det. Patrick Postiglione)). See also Appendix
A (chart summarizing similarities amongst Reid’s robbery murders).
95
Reid’s method with Cook in their thirty to forty robberies was similar. (5 CR 1483). The two men would target
businesses on the weekends, believing that more cash would be available. Id. They often entered businesses under
some pretext and near closing time, and the businesses’ employees were often forced to get on the floor before they
fled. Id. See, e.g., (8 CR 2304) (describing Reid’s admission to law enforcement to such a crime).
55

None of the three Tennessee businesses Reid robbed were open to the public or
96
showed signs of forced entry. Thus, as at Fairlanes, Reid devised a way to either force or
97
deceive his way into these businesses. Like the Fairlanes, two of the Tennessee
98
businesses, Baskin-Robbins and McDonald’s, were robbed after closing time at night.
Reid also had initially attempted to rob the other one, Captain D’s, at night, but this plan
failed, and he had to return and rob that business the next morning, before it had opened
99
for business. Like the Fairlanes, the Captain D’s and McDonald’s were robbed on
weekends, which was also consistent with Reid’s methodology when he was committing
robberies in Houston in the late 1970’s and early 1980’s. (5 CR 1483).
100
Reid never wore a mask or shielded his face during his robbery-murders. He was
described in his Tennessee crimes much the same as the Fairlanes perpetrator was
described: a large white male, with slicked or pushed back hair, long in the back. Reid I,
91 S.W.3d at 262-63; Reid III, 213 S.W.3d at 805. Reid would use a gun to force people
96
Reid I, 91 S.W.3d at 261 (witness found doors locked when he appeared for work at Captain D’s before bodies
discovered); Reid II, 164 S.W.3d at 297 (witness arrived to find door unlocked after business closed and employees
missing); Reid III, 213 S.W.3d at 805.
97
Reid I, 91 S.W.3d at 263 (eyewitness saw Reid standing outside Captain D’s talking to one of the victims with a
white paper in his hand at 8:50 a.m.); Reid III, 213 S.W.3d at 805.
98
Reid II, 164 S.W.3d at 298 (eyewitness account showed Reid committed robbery of Basking-Robbins store after
it closed at 10:00 p.m.); Reid III, 213 S.W.3d at 805-06 (Reid robbed the McDonald’s in Tennessee after the late
night shift on a Saturday). See also Reid II, 164 S.W.3d at 300 (Reid suggested to coworker robbing fast food
establishment in the middle of the night, when there were no witnesses); Reid III, 213 S.W.3d at 806 (same).
99
Reid I, 91 S.W.3d at 261-62 (Captain D’s robbery in Tennessee occurred before opening time on a Sunday, the
morning after Reid had attempted to enter at night under the guise of applying for a job).
100
Reid I, 91 S.W.3d at 263 (observing that Reid was seen outside without a mask on); Reid II, 164 S.W.3d at 298
(stating that Reid was observed in the store without a mask on prior to the robbery’s occurring); Reid III, 213 S.W.3d
at 805; (5 CR 1484).
56

101
to lie in a group, either in a walk-in freezer or on the floor. As at the Fairlanes, the
victims were “probably” shot with a revolver. Reid I, 91 S.W.3d at 261, 264. At the
Tennessee trial relating to the shooting of the McDonald’s employees, testimony
established that Reid owned a small caliber handgun. Reid III, 213 S.W.3d at 806. As at
the Fairlanes, the robbery witnesses were shot in the head execution style. Reid I, 91
S.W.3d at 261; Reid III, 213 S.W.3d at 805.
Reid’s “signature” on the Captain D’s and McDonald’s robbery/murders was so
strong that the Tennessee trial judge trying the Captain D’s case ruled that the testimony of
an eyewitness of the as yet untried McDonald’s robbery/murder could be introduced in the
Captain D’s trial on the issue of identity. (8 CR 2349-57). In support of this ruling, the
Tennessee court cited the testimony of Det. Postiglione, (8 CR 2354), and emphasized the
similarities: the description of the suspect (“[o]ne large male, white, dark hair”); both
robberies “occurred on Sunday”; both businesses were closed as well as locked at the time
of the robberies; “[n]o forced entry was used at either locations”; and all six victims were
“required to lay on stomach” and were shot in the head. Id. The Tennessee court found
that the McDonald’s evidence was “highly probative on the issue of identity in the Captain
102
D’s trial.” (8 CR 2355).
At the sentencing phase of Reid’s trial on the McDonald’s crime, the jury heard
101
Reid I, 91 S.W.3d at 261 (stating that both victims were found shot dead and lying face down on the floor in the
walk-in cooler); Reid III, 213 S.W.3d at 805 (observing that the four victims were ordered at gunpoint to lie
face-down on the floor before they were shot). See also (5 CR 1483-84 (Cook affidavit reporting that this was Reid’s
tactic in Houston, although they did not typically shoot)).
102
Subsequently, the court reversed itself, not on the merits of the question, but based solely on the danger that
admission of this evidence would be found to be unduly prejudicial on appeal. (8 CR 2276-77).
57

about Reid’s 1984 Texas robbery conviction from a Texas Assistant Attorney General.
Reid III, 213 S.W.3d at 806. In addition,
Detective Postiglione pointed out the similarities between the crimes in this case and
those that the defendant had committed earlier at a nearby Captain D’s restaurant.
According to the officer, the two separate criminal episodes took place at fast food
restaurants. Both occurred on a Sunday while the restaurants were closed. In each
instance, the restaurants had been locked following the crimes. In addition, there was
no sign of forced entry at either restaurant. The defendant had used a small caliber
weapon and in each incident, the victims were forced to lie face down in an isolated
area of the restaurant before they were murdered. Each of the murder victims suffered
two gunshot wounds to the head. Detective Postiglione testified that the modus
operandi in each case was unlike any other that had been used in Davidson County in
at least fifteen years.
103
Id. at 806-07.
Soffar’s counsel sought to introduce evidence of Reid’s modus operandi to show
that Reid committed the Fairlanes crime. Emphasizing Soffar’s constitutional right to
present a defense, (5 RR 233-34; 9 RR 20-23), counsel provided the information about
Reid set forth above in written motions, accompanied by extensive documentation in
supporting exhibits. (5 CR 1442- 6 CR 1672; 8 CR 2227-2366). To serve judicial
economy, the defense proposed to introduce the voluminous information about Reid’s
criminal history in Tennessee and Texas through two “summary” witnesses, see TEX. R.
EVID. 1006, one for each state. (5 RR 230-34). As an example, defense counsel presented
an affidavit from Det. Postiglione. (10 RR 3; 9 CR 2553-61). Defense counsel also
103
Tennessee would undoubtedly disagree with the Soffar prosecution’s arguments that not even the Tennessee
crimes were similar. (9 CR 2548). See also State v. Reid, 2005 WL 1315689, *49 (Tenn. Crim. App. Nashville
2005) (“The State cited to fourteen similarities between the Captain D’s crimes and the McDonald’s crimes to
establish that the crimes were committed in a similar fashion in a common scheme or plan. The trial court did not err
in permitting Det. Postiglione to testify as to the similarities in the crimes to establish the . . . aggravating
circumstance.”), aff’d, 213 S.W.3d 792 (2006).
58

proposed a crime-scene expert who could testify about the similarities between the
Tennessee crimes and the Houston crime. (10 RR 3). The court’s ruling precluding the
admission of such evidence appeared to be based on hearsay, rather than any question
about whether Reid’s crimes in Tennessee were sufficiently similar. (5 RR 234; 6 CR
1671-72; 9 RR 20 (noting that its concern was about hearsay, “not how similar [the
crimes] are”). Thereafter, defense counsel offered two alternatives solutions, some six
weeks before the trial commenced. (10 RR 11). First, counsel proposed bringing in
witnesses with direct knowledge of the crimes in Tennessee. Id. Second, counsel
proposed that the court could take judicial notice of the facts found by the Tennessee
courts on appellate review and allow an expert to testify about such facts. Id. The court,
however, announced that it would not reconsider its ruling. Id. As a result, the jury
convicted Max Soffar of capital murder without ever hearing evidence that a Houston man
who fit the description of the perpetrator had committed crimes strikingly similar to the
Fairlanes robbery murders.
Argument. Under TEXAS RULE OF EVIDENCE 404 (b), a party may introduce
evidence of a person’s “other crimes” to establish the identity of the actual perpetrator of a
crime where, as here, that issue is in dispute. See, e.g., Johnson v. Texas, 68 S.W.3d 644,
650-52 (Tex. Crim. App. 2002) (upholding the use of Rule 404 evidence to prove identity
104
during crime spree). The “extraneous offense must be so similar to the charged offense
104
See also Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996) (allowing the state to introduce 404 (b)
evidence of murder in a different state to establish identity); JUDGE CATHY COCHRAN, TEXAS RULES OF EVIDENCE
HANDBOOK 238 (6th ed. 2005).
59

as to mark the offenses as the” person’s “handiwork.” Id. at 650-51.
The rule is often applied to allow admission of other crimes evidence against a
105
defendant to prove identity. See, e.g., id.; Lane, 933 S.W2d at 519. As courts have
noted, however, Rule 404 “should cut both ways and benefit an accused in appropriate
circumstances just as it does the State.” Renfro v. State, 822 S.W.2d 757, 759 (Tex. App.
– Houston 1992, pet. ref’d). Indeed, because “risks of unfair prejudice do not appear”
when it is the defense seeking to introduce the evidence, the burden of admissibility for
“other crimes” evidence is lower for defendants. 1 CHRISTOPHER B. MUELLER & LAIRD C.
106
KIRKPATRICK, FEDERAL EVIDENCE § 115, at 685, 684-87 (West 2005). See also
COCHRAN at 264. This lowered burden unquestionably applies to cases, like this one,
where a third party suspect has “committed one or more additional offenses that are
107
strikingly similar to the charged offense[.]” MUELLER ET AL., § 115 at 685.
Under any burden of admissibility, Reid’s crimes in Tennessee mark him as the true
108
perpetrator of the Fairlanes robbery murders. His Tennessee and earlier Houston crimes
105
Here, where the events in question are very highly unusual, and the similarities to Reid’s crimes are
overwhelming, the repetition of events also makes it likelier that Reid committed the Fairlanes murder than that the
similarities were caused by chance. See Fox v. State, 115 S.W.3d 550, 559-62 (Tex. App. – Houston 2002, pet.
ref’d) (noting that Texas courts accept the defendant’s use of the chances doctrine).
106
TEXAS RULE OF EVIDENCE 404 is derived from and shares many characteristics with FEDERAL RULE OF
EVIDENCE 404. See COCHRAN, at 236-37.
107
See also United States v. Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991) (allowing “reverse 404(b)” evidence to
negate proof of identity and collecting cases); United States v. Cohen, 888 F.2d 770, 777 (11th Cir. 1989) (“When
the defendant offers similar acts evidence of a witness to prove a fact pertinent to the defense, the normal risk of
prejudice is absent”); United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1970) (lower standard of admissibility
applies to defendant’s proffered other crimes evidence due to defendant’s “right to present a vigorous defense”);
Wilson v. Firkus, 457 F. Supp. 2d 865, 891 (N.D. Ill. 2006) (granting habeas relief where state court precluded thirdparty
guilt defense based on third party’s other similar crimes); United States v. Stamper, 766 F. Supp. 1396, 1406
(W.D. N.C. 1991) (noting lower standard); State v. Garfole, 388 A.2d 587, 591 (N.J. 1978) (similar).
108
Standard of review: De novo review is required because “the resolution of [this] question of law [did] not turn
on an evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601. In addition, the trial
60

were remarkably similar to the Fairlanes murders in: (1) selection of the target, (2) time of
the robbery, (3) method of entry, (4) position of victims on the floor, (5) manner of
109
execution of the victims, and (6) disposal of the victim’s wallets by the roadside. See
Appendix A. The trial court appeared to agree, focusing its concerns only on a perceived
(though, as shown below, ultimately non-existent) hearsay problem. (9 RR 20). And the
Tennessee court that tried Reid found that the similarities of the crimes in Tennessee were
“highly probative on the issue of identity.” (8 CR 2355).
In the court below, the prosecution argued to the trial court that Reid’s Tennessee
robbery-murders were not “distinctively” similar to the Fairlanes robbery-murders. (9 CR
2544, 2547). The prosecution’s arguments addressed the weight, not the admissibility of
the Reid evidence. Mere differences between crimes do not defeat admissibility. Instead,
the requirement is “some distinguishing characteristic common to both [the other crime(s)]
and the offense for which the accused is on trial.” Walker v. State, 588 S.W.2d 920,
923-24 (Tex. Crim. App. 1979) (emphasis added) (citations omitted). “[R]emoteness or
dissimilarity do not per se render an extraneous offense irrelevant.” Thomas v. State, 126
S.W.3d 138, 144 (Tex. App. - Houston 2003, pet ref’d).
Therefore, the “extraneous offense and the charged offense can . . . be different
offenses, so long as the similarities between the two offenses are such that the evidence is
relevant.” Id. For example, it is irrelevant that in his Baskin Robbins robbery-murder,
court’s preclusion of the Reid evidence implicated appellant’s constitutional right to present a defense. Review of
this question of constitutional law is de novo. See Lilly, 527 U.S. at 137; Guzman, 955 S.W.2d at 87.
109
See Reid I, 91 S.W.3d at 262 (content of victim’s wallet found on roadside).
61

Reid departed from his ordinary modus operandi when he took the young counter workers
110
from the store and stabbed them in a park. Reid II, 164 S.W.3d at 297-98. Other parts
of this crime remained similar, including the mode of entry, and that the crime took place
at night after the establishment had closed. Id. The differences in the Baskin Robbins
crime certainly did not render Reid’s “signature” illegible.
When combined with Reid’s resemblance to the perpetrator described by Greg
Garner, his crimes in Tennessee and Houston “show a nexus between the crime charged
and the alleged alternative perpetrator.” State v. Wiley, 74 S.W.3d 399, 406 (Tex. Crim.
App. 2002) (internal quotes and citations omitted). A sufficient nexus exists when
evidence shows that the alternative perpetrator exists, resembles the defendant, and his
other crimes were sufficiently similar to be introduced as reverse 404 (b) evidence. Id. at
407 n.20 (citing Stevens, 935 F.2d at 1401-06 (finding error in identification case to
exclude testimony by another victim that a different person resembling the defendant
assaulted her in similar manner in a nearby location)). Here, Reid fit the description of the
111
assailant, and his modus operandi fit the Fairlanes robbery murders like a glove.
The prosecution also argued that the difference in time and proximity between the
Fairlanes robbery murders and Reid’s Tennessee robbery murders rendered Reid’s modus
110
In addition to using a gun, Reid was known to have used knives in connection with his murderous assaults. (8 CR
2311; 2328; 2358; 2360-61).
111
As shown elsewhere, the Reid declaration against interest should have been permitted. Appellant’s First and
Second Points of Error. Although Reid’s description, presence in Houston, and modus operandi were certainly
enough to establish a nexus, his declaration against interest even further strengthens the nexus. The present Point of
Error stands apart from the first two, but Appellant urges the Court to consider the powerful defense case which
could have been presented had both Reid’s declaration against interest and his modus operandi been admitted.
62

operandi inadmissible. This Court has allowed admission of 404(b) evidence based on
similarities between crimes despite time gaps and differences in location. Lane, 933
S.W.2d at 519 (allowing the state to introduce 404(b) modus operandi evidence from a
decade earlier in Kansas). As this Court has stated, “‘[t]he common distinguishing
characteristic may be the proximity in time and place or the common mode of the
commission of the offenses.’” Johnson, 68 S.W.3d at 651 n.25 (quoting Ransom v. State,
503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (emphasis added in Johnson)). Here, the
“common mode” is certainly present. In any case, the prosecution below greatly
overstated the difference in time and proximity. (9 CR 2548). In fact, the proximity
criterion actually favored admissibility, for all four crimes occurred in the vicinity of
Reid’s whereabouts. As for the difference in time between the 1980 and 1997 crimes,
Reid spent at least eight of the intervening years in prison. (8 CR 2328). Subtracting the
time Reid was in prison and could not commit these types of crimes, as would be
appropriate in analogous contexts, see TEX. R. EVID. 609 (b), results in a shorter period of
time between the crimes occurring a decade apart in Lane. (17 years (period between
crimes) – 8 years (Reid’s time in prison) = 9 years).
Reid’s stamp is unmistakable. He left it in Texas. He left it in Tennessee. The jury
should have known about it before being asked to convict Max Soffar.
Furthermore, the court’s hearsay concerns were groundless. Responding to these
concerns (5 RR 234), defense counsel proposed to present the testimony of witnesses with
direct knowledge of Reid’s crimes. (10 RR 11-13). In other words, the defense proposed
63

to employ the method typically used by the prosecution, i.e., live witnesses. See, e.g.,
Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980). Obviously, testimony from
witnesses with direct knowledge would not implicate the hearsay rule.
Additionally, to the extent that the court wanted to minimize the amount of time the
jury would spend listening to such testimony, defense counsel proposed two viable
options. First, the court could have taken judicial notice of the facts found by the
Tennessee appellate courts. (10 RR 11). See, e.g., Adams v. Adams, 787 S.W.2d 619, 620
(Tex. App. - San Antonio 1990, no pet.) (taking judicial notice of Tennessee Supreme
Court decision). Second, the court could have permitted a summary witness with direct
knowledge of the investigation of Reid’s lengthy criminal history. See TEX. R. EVID.
112
1006. A summary witness to establish Reid’s signature would have been particularly
appropriate given that the State has never challenged the reliability of the allegations
against Reid in Texas or Tennessee. See, e.g., (9 CR 2544-51) (arguing that Reid’s crimes
are not “distinctively similar,” not that they did not occur or that accounts of them are
unreliable). In short, the court had three eminently reasonable and appropriate options: it
could have allowed witnesses with direct knowledge of Reid’s criminal acts; it could have
allowed a summary witness; or, it could have taken judicial notice of facts found by the
Tennessee courts. Instead, it precluded this vital defense evidence.
The essential nature of the right to present a defense is explained in Appellant’s
112
For example, Det. Postiglione testified at Reid’s trial to the similarities amongst Reid’s crimes, including his
Texas robbery from 1982. Reid III, 2005 WL 1315689, at *12.
64

First Point of Error. Precluding Reid’s modus operandi evidence for no legitimate reason
denied Max Soffar his right to present a defense. Holmes, 126 S. Ct. at 1731. Without
admitting evidence regarding either Reid’s modus operandi or his confession to Cook,
evidence of his presence in Houston in 1980 and resemblance to the perpetrator were
meaningless. The court’s ruling below was arbitrary because it served no legitimate state
interest or rule. Id. It was highly prejudicial because it deprived Soffar of a powerful
defense. See Ray, 178 S.W.3d at 835. The court’s rulings allowed the prosecutor to argue
to the jury that the defense had not presented evidence that someone else was responsible.
(35 RR 9). The one-sided result was not a fair trial. For the reasons stated in the harmless
error analysis in Appellant’s First Point of Error, the trial court’s constitutional error was
not harmless by any standard.
Appellant’s Fourth Point of Error
The trial court violated Max Soffar’s constitutional right to present a defense and
basic evidentiary rules by precluding evidence showing that the Houston media
broadcast details of the crime contained in Soffar’s putative confession which the
prosecutor claimed only the perpetrator could have known.
The credibility of Soffar’s purported confession was the most important question in
this case. The prosecution argued to the jury that the confession was credible because
Soffar knew details only the perpetrator could have known. (35 RR 11, 21-25). But the
jury never learned that in July and August of 1980 the Houston media widely broadcast
these details. (43 RR Defense Exhibits 58-60). Over defense objections citing
Appellant’s constitutional right to present a defense (30 RR 100-06; 31 RR 114-16; 33 RR
65

4-5), the trial court excluded this vital evidence, depriving the jury of the information it
needed to determine the truth. The court’s ruling deprived Appellant of “a meaningful
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(internal citation omitted). See also Appellant’s First, Second, and Third Points of Error,
incorporated herein. Reversal is required.
Factual Background: Between July 14, 1980, and August 1, 1980, the Houston
television and print media widely publicized details of the robbery murders, including the
following: 1) four people had been shot execution style; 2) one man had survived;
3) one of the victims was a female, who was shot in the cheek; 4) money was taken from a
cash register; 5) the shootings took place at the Fairlanes Windfern bowling center;
113
6) a .357 magnum was used; 7) reward money was available; and 8) the bowling alley
was burglarized the night before. See (43 RR Defense Exhibit 58-60 (chart summarizing
114
media sources and information provided); 43 RR Defense Exhibit 66). The images
broadcast by the media included the following: 1) the exterior of the bowling alley,
including the Fairlanes Windfern sign and how the building was situated on the parking
lot; 2) the interior of the building; 3) a closeup of Greg Garner’s gunshot wound, showing
its location; and 4) the bodies of the victims inside the bowling alley; (43 RR Defense
113
Notably, although knowledge of the type of gun used was disseminated to the public in 1980, the prosecution
specifically argued that Soffar could not have known a .357 magnum was used if he were not guilty. (35 RR 22-23).
114
The defense proffered this evidence to explain how Soffar knew various details of the crime. The burglary the
night before the robbery murders and the reward money were relevant for different reasons. The reward money was
relevant to the defense theory that Soffar began talking about the robbery murders and falsely accusing Bloomfield
in order to get the reward money. (29 RR 186). The coverage about the burglary was relevant to show that Soffar
falsely confessed to crimes he heard about in the media, like both the Fairlanes robbery murders and the Fairlanes
burglary the night before.
66

Exhibits 58, 60). See also (45 RR 3; 43 RR Defense Exhibits 63-71 (articles accompanied
by business record affidavits)).
Soffar’s statements include all the foregoing details. See, e.g., (29 RR 186-87; 30
RR 21-23; 150-52; 160-64; 43 RR State’s Exhibit 1A (p. 26-27)). They do not, however,
include information not publicly broadcast. They reflect only information that anyone
could have known from the extensive media coverage of this case.
Soffar repeatedly told Det. Schultz that he had heard about the Fairlanes robbery
murders in the “paper” and on the “news.” (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37;
30 RR 95-96). Appellant’s sister, Jackie Soffar Butler, testified that Appellant’s family
typically watched Channel 13 eyewitness news on television and that the family
subscribed to the HOUSTON POST. (32 RR 238-40).
The defense theory of the case was that Max Soffar had falsely confessed and that
he had obtained the details of his confession from the media. Thus, the defense sought to
cross examine the interrogating police officers regarding the details of the crime broadcast
to the public (30 RR 100-09), and was prepared to introduce evidence that various media
sources broadcast these details through the testimony of a witness who could summarize
115
the voluminous information contained in the various media reports. (33 RR 4-5, 7).
The defense argued that the evidence was admissible to support the defense position that
the information Max Soffar provided to the police reflected nothing more than information
115
Videotapes of the television stories and photocopies of the newspaper stories had been authenticated in the state
habeas evidentiary hearing in 1994. (33 RR 4).
67

oadcast to the general public. Id. See also (31 RR 4-8). Initially, the prosecution had
agreed to this witness, but it later changed its position. (31 RR 4). The trial court
precluded the evidence over defense objections that the court was violating Appellant’s
right to present a defense. (33 RR 5). Although the trial judge did not state the basis for
her ruling, see id., she had earlier suggested that the evidence would be irrelevant without
evidence that Max Soffar had specifically seen the media coverage. (31 RR 6). When the
court precluded the evidence (33 RR 4-5; 43 RR Defense Exhibits 58-60, 63-71), the
defense sought the alternative remedy of admitting only evidence of stories from the
HOUSTON POST and Channel 13 Eyewitness News. (33 RR 5). Defense testimony had
established that Max Soffar and his family regularly watched that newscast and read that
newspaper. (32 RR 238-40). The prosecution did not object to this alternative, (33 RR 4-
5), and had even suggested in an earlier proceeding that the applicable test was whether
Soffar had seen the media stories he sought to introduce. (31 RR 4-5). The court,
however, rejected this alternative remedy. (31 RR 8). In its summation, the prosecution
argued that Appellant’s confession was reliable because it contained details only the
perpetrator could have known. (35 RR 11; 22-23).
Argument: The trial court precluded evidence that was essential to the defense
theory that Appellant’s confession was unreliable. The court’s rulings violated basic state
116
evidentiary law and the constitutional right to present a defense. Without this evidence,
116
Standard of Review: De novo review is required because “the resolution of [this] question of law [did] not turn
on an evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601. In addition, the trial
court’s preclusion of this evidence implicated Appellant’s constitutional right to present a defense, also requiring de
68

the defense could not point to the contents of media reports as the source of the
information in Soffar’s custodial statements. And due to the trial court’s erroneous
rulings, the prosecution was able to argue to the jury that Soffar’s statement contained
details known only to the perpetrator. (35 RR 11, 22-23). The court’s rulings were
fundamentally unfair and require reversal.
The TEXAS RULES OF EVIDENCE rules mandate the admission of all logically
117
relevant evidence. Newspaper articles not offered for the truth of the matters asserted
are relevant and admissible to show public knowledge of those matters, and constitute
118
admissible non-hearsay evidence.
This basic evidentiary principle has been applied to precisely the same factual
circumstances at issue here. See Woods v. State, 696 P.2d 464, 470 (Nev. 1985). In
Woods, the defendant appealed the trial court’s “refusal to admit a set of newspaper
articles . . . to show that all the details provided [his confession] could have been gleaned
from news accounts of the murder.” Id. As here, the state argued in its summation that
the “confession . . . contained information which only the murderer could have known.”
Id. The Nevada Supreme Court reversed. It explained that newspaper articles are
novo review. See Lilly, 527 U.S. at 137; Guzman, 955 S.W.2d at 87.
117
See Crank v. State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988), overruled on other grounds, Alford v.
State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993). See also Montgomery v. State, 810 S.W.2d 372, 375 (Tex.
Crim. App. 1990) (citing Crank).
118
See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 759 (Tex. 1998) (“[W]hen the occurrence
of criminal activity is widely publicized, a landlord can be expected to have knowledge of such crimes.”) (emphasis
added). See also In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1170-71 (5th Cir. 1979) (holding “that the
plaintiffs knew or should have known in 1968 and 1969 of the allegations of the Bray complaint [because it had been
] publicized in numerous issues of numerous trade publications”); Forsythe v. State, 664 S.W.2d 109, 115 (Tex.
App. – Beaumont 1983, pet ref’d) (“An exception to the hearsay rule is applicable when the proffered evidence tends
to show knowledge, intent, or belief of the party, when such evidence is material to the case”).
69

admissible if they are offered for the “fact of their publication.” Id. It also rejected the
trial court’s rationale “that there was no evidence that [the defendant], who did not testify,
had read any of the news accounts.” Id. The court held that the articles were relevant and
admissible because they showed that the details of the crime were public knowledge,
refuting the prosecution’s argument to the jury that defendant’s confession contained
details known only by the true perpetrator. Id.
Woods is by no means an anomaly. See, e.g., Bethany v. State, 152 S.W.3d 660,
669 (Tex. App. – Texarkana 2004), pet. ref’d) (“In his admissions to Miller and Bunn,
days after the murder, he gave details not released on television news reports.”). Evidence
of the publication of details of a crime, or lack thereof, is often introduced under the theory
119
that reliable accounts contain details not known to the public. None of these precedents,
nor any discovered by counsel, requires direct evidence of exposure to a particular
publication before a jury may draw the reasonable inference that a person was on notice of
a widely-published fact. Indeed, under facts identical to the trial below, the Nevada
Supreme Court in Woods completely rejected such a requirement. 696 P.2d at 470.
Whether the evidence showed that Soffar had seen a particular story in the media bears on
the weight the jury should accord the media evidence, not its admissibility.
119
Lord v. Wood, 184 F.3d 1083, 1088 (9th Cir. 1999) ("Trial counsel . . . suggested that [the accused] had come up
with the details of the alleged confessions by reading newspaper stories about [the] murder"); People v. Dominick,
182 Cal. App. 3d 1174, 1199 n.17 (1986) (affirming where witness’s “testimony was corroborated by the wealth of
details he provided concerning the murders, details that could not have been provided by media accounts”); State v.
McCormick, 778 S.W.2d 48, 52 (Tenn. 1989) (finding defendant’s confession reliable because several “accurate
details were not released to the media, particularly the number of shell casings found, the precise location of the
wounds, the caliber of the weapon, and the check found on the victim”).
70

In any event, there was evidence showing Appellant’s exposure to the media
reports he sought to introduce at trial. The prosecution itself provided direct evidence that
Max Soffar had heard about the Fairlanes robbery murders in the “paper” and on the
“news” before his putative confessions. (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37; 30
RR 95-96). This evidence provided a more than adequate basis for the jury to infer that
Soffar had heard about widely-published media reports of the crime. Therefore, the trial
court erred by not allowing evidence of the media reports Soffar sought to introduce.
Furthermore, even if this Court rejects the argument that all of the relevant
published media reports preceding Soffar’s confession were admissible, this Court should
hold that the trial court erred in precluding introduction of those media stories which the
evidence shows that Soffar saw, i.e., the HOUSTON POST and Channel 13 Eyewitness news
stories. (33 RR 4-5). It is beyond dispute that the testimony establishing the Soffar
household’s exposure to these media outlets supports a reasonable inference that Max
Soffar knew about the information.
The trial court’s preclusion of relevant evidence diminishing the reliability of
Soffar’s confession was constitutional error on two bases. First, the ruling violated
120
Appellant’s constitutional right to present a defense. See U.S. Const. amends. VI; XIV.
Showing that the details of Soffar’s putative confession were disseminated by the media
was crucial to his defense that his confession was not reliable and “defendant’s claim of
120
The numerous precedents reversing convictions due to a violation of the constitutional right to present a defense
are reviewed in Appellant’s First Point of Error; they are incorporated here but, for efficiency and economy, will not
be repeated.
71

121
innocence.” Crane, 476 U.S. at 690. The trial court’s ruling precluding this evidence
lacked “any rational justification,” id., because it precluded valuable defense evidence
without serving any legitimate end. Holmes, 126 S. Ct. at 1731. The impact of the ruling
was particularly harsh given that he was prohibited from presenting evidence of third-party
guilt. See Appellant’s First through Third Points of Error. See Ray, 178 S.W.3d at 836 n.1
(noting danger in “precluding altogether the presentation of the defensive theory”). Soffar
could neither argue that someone else was responsible for the crime nor that his confession
merely repeated details he had heard from the media.
Second, when the prosecution at a criminal trial asks the trier to infer facts on which
its case depends, the defendant cannot constitutionally be foreclosed from responding with
evidence and argument that factually throws the inference into doubt. Kelly v. South
Carolina, 534 U.S. 246, 248, 252 (2002); Shafer v. South Carolina, 532 U.S. 36, 51
(2001); Rock v. Arkansas, 483 U.S. 44, 51-55 (1987); Crane, 476 U.S. at 689-91; Skipper,
476 U.S. at 5 n.1. The trial court’s ruling foreclosed Appellant from casting doubt on the
prosecution’s assertion that his putative confession was reliable because it contained
details known only to the true perpetrator. (35 RR 11, 22-23). This ruling was a violation
of Appellant’s rights to due process, compulsory process, and to present a defense. The
121
In Crane, the United States Supreme Court reversed a conviction because the jury was not allowed to consider
proffered evidence that the defendant was a “young, uneducated boy” whose confession was obtained through
coercive circumstances. Id. As here, “[s]uch evidence was especially relevant . . . [because] [p]etitioner’s entire
defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier
admission of guilt was not to be believed.” Id. The “especially relevant” evidence precluded in Crane would have
provided that jury a basis to determine that the defendant’s confession was unreliable; similarly, the wide-spread
publication of the details contained in Soffar’s confession before Soffar ever gave his confession certainly would
have provided the jury a basis to find Soffar’s confession unreliable.
72

esult was a prosecution case untested by the “‘crucible of meaningful adversarial
testing.’” Crane, 476 U.S. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656
(1984)).
Erroneously precluding this crucial defense evidence was not harmless by any standard.
The error was not harmless under either the standard for constitutional error or the
122
standard for non-constitutional error. The defense’s theory that Soffar had falsely
confessed had support in the recorded statements he made to the police that he had heard
about the crime on the news. (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37; 30 RR 95-96).
It was also supported by: (1) Soffar’s false claim (which police witnesses conceded was
false) to have committed the burglary at the Fairlanes the night before the murders, (30 RR
25, 189); (2) Sgt. Clawson’s testimony that Soffar, a former paid police informant, (29 RR
105-06), was “just not trustworthy,” (29 RR 129); and (3) evidence that Soffar lacked
specific information about the crime. (29 RR 147-48; 164-66; 31 RR 60-66; 128-29).
Showing the jury that the content of the news stories was the same as the content of
Soffar’s statements would have transformed a plausible defense theory into one
overwhelmingly supported by compelling evidence.
Moreover, absent the court’s error, the prosecution would not have been able to
mislead the jury by arguing that Soffar’s confession was reliable because he was able to
122
The inherent weaknesses in the prosecution’s case are detailed at length in the harmless error section of
Appellant’s First Point of Error; those weaknesses are incorporated here, and, for reasons of efficiency and economy,
will not be repeated. As the Fifth Circuit emphasized in reviewing the all but identical facts from Soffar’s first trial,
the prosecution’s case was built upon Soffar’s confession. Soffar, 368 F.3d at 479.
73

give details about the inside of the bowling alley that could only be known by the
perpetrator. (35 RR 11, 22-23).
Given the prosecution’s argument in summation, the thin case on which it
prosecuted Appellant, and the importance of this evidence to the defense case, the
prosecution cannot demonstrate with any certainty that the court’s preclusion of this
crucial defense evidence did not have an impact on the jury’s finding. Anderson, 182
S.W.3d at 918-19. And the prosecution certainly cannot prove that this constitutional error
was harmless beyond a reasonable doubt. This Court must reverse.
Appellant’s Fifth Point of Error
(a) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated equal
protection.
(b) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated due process
and Appellant’s right to a fair cross section.
A Harris County grand jury selected by the “key man” system – a system long
recognized as “susceptible of abuse,” Castaneda v. Partida, 430 U.S. 482, 497 (1977) –
indicted Max Soffar in 1980. (SCR 4). Appellant sought to quash the indictment on the
ground that the grand jury selection system discriminated against women and Hispanics.
(6 CR 1738-1820). At a pretrial hearing, he introduced unchallenged evidence showing
that Harris County systematically discriminated against women and Hispanics in (1)
summoning individuals for grand jury service; (2) selecting individuals for grand jury
service; and (3) selecting forepersons and alternates. See (7 RR 126-58; 6 CR 1738-1820;
74

43 RR Defense Exhibits 7, 8, and 9 (Affidavits of Professor Harold J. Hietala and Lucille
A Stiffler, and Curriculum Vitae of Professor Hietala)). In addition, he demonstrated
systematic discrimination against women in selecting jury commissioners. Id.
The trial court denied the motion on the merits. (7 RR 158). This ruling violated
Max Soffar’s, Harris County women’s, and Harris County Hispanics’ equal protection and
due process rights, as well as Max Soffar’s due process and fair cross section rights. See
U.S. Const. amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§ 3, 3a, 10, 13, 15, 19. 123
(a) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated equal
protection.
The trial court’s rulings denying Soffar’s motion to quash violated the equal
protection and due process rights of Appellant, Harris County women, and Harris County
Hispanics. See Rose v. Mitchell, 443 U.S. 545, 554 (1979) (racial discrimination in
selection of grand jury forepersons poses potential for harm and requires reversal of
124
defendant’s conviction); Castaneda, 430 U.S. at 501. A prima facie case of a violation
of the equal protection clauses of the federal and state constitutions is met by
demonstrating: “(1) the group is a recognizable, distinct class, singled out for different
123
Standard of review and preservation. This Court reviews de novo mixed questions of fact and law, including
constitutional challenges to the composition of grand juries. See Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App.
2000) (reviewing de novo grand jury equal protection claim and performing its own statistical analysis); Guzman,
955 S.W.2d at 87. Appellant preserved the claims set forth herein by filing the motion to quash in the court below
and by presenting compelling evidence demonstrating the merits of the claims. See (6 CR 1738-43; 7 RR 126-58).
124
The remedy mandated by the Supreme Court in Rose – that “the conviction be set aside and the indictment
returned by the unconstitutionally constituted grand jury be quashed,” 443 U.S. at 551 – does not “depend on any
infringement of the petitioners’ right to fundamental fairness, nor on whether the defendant was prejudiced in fact”
because the “injury is to the jury system, to the law as an institution, to the community at large, and to the processes
th
of our courts.’” Johnson v. Puckett, 929 F.2d 1067, 1071 (5 Cir. 1991) (citing Rose, 443 U.S. at 556). See also
th
J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 128 (1994); Mosley v. Dretke, 370 F.3d 467, 477 (5 Cir. 2004).
75

treatment; (2) the degree of underrepresentation is calculable by comparing the proportion
of the group in the total population to those called to act . . . over ‘a significant period of
time’; [and] (3) the selection procedure is susceptible of abuse.” Mosley v. Dretke, 370
F.3d 467, 475-76 (5th Cir. 2004) (citing Rose, 443 U.S. at 565). As demonstrated below,
Appellant met each of these requirements.
“If the defendant makes such a prima facie showing, the burden shifts to the state to
rebut that showing.” Mosley, 370 F.3d at 476. See also Johnson, 929 F.2d at 1072. In this
case, the State made no attempt to rebut Appellant’s prima facie case, and accordingly
failed to overcome the showing of discrimination.
1. Prima Facie and Unrebutted Evidence of Exclusion of Women. Max
Soffar established that Harris County discriminated against women in the grand jury
selection process during the years 1970 through 1980, and the State offered nothing to
rebut this showing. Accordingly, the trial court committed reversible error by denying the
motion to quash.
(A). Women are a distinct class. Women are a recognizable, distinct class. See
J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 128 (1994) (so holding); Duren v. Missouri,
439 U.S. 357, 364 (1979). Max Soffar has standing to assert the claims of women who
suffered this discrimination. See, e.g., Campbell v. Louisiana, 523 U.S. 392 (1998).
(B). Women were under-represented over a significant period of time. Soffar
satisfied the second prong of the Rose test by introducing statistical evidence of the underrepresentation
of women in the grand juror selection process. He presented the unrebutted
76

testimony (via admission through stipulation of an affidavit of fact attached to his motion
to quash) of Harold J. Hietala, professor emeritus in the Departments of Anthropology and
Statistical Science at Southern Methodist University. Dr. Hietala presented evidence of
statistically significant under-representation of women in the selection of commissioners,
in the grand jury pool, in the grand jury, and in the selection of forepersons in Harris
County in the period 1970 through 1980. See (43 RR Defense Ex. 8) (Underrepresentation
of Minority Groups); (6 CR 1738, 1805).
Courts accept Statistical Decision Theory (“SDT”) as a valid statistical technique
125
for analyzing equal protection claims. SDT determines whether an observed pattern of
under-representation is “statistically significant,” or unlikely due to chance. One SDT
method is to examine whether the difference between the expected result and the observed
126
result is greater than two or three standard deviations. See, e.g., Castaneda, 430 U.S. at
496-97 n.17 (“[I]f the difference between the expected value and the observed number is
greater than two or three standard deviations, then the hypothesis that the jury drawing
127
was random would be suspect to a social scientist.”). Another common SDT method is
125
Alston v. Manson, 791 F.2d 255, 257-59 (2d Cir. 1986) (SDT is appropriate technique for analyzing equal
protection claims and aims “to determine if chance alone could account for a meager representation of minorities”);
Jefferson v. Morgan, 962 F.2d 1185, 1189-90 (6th Cir. 1992) (same). See also Castaneda, 430 U.S. at 496 n.17
(employing SDT in equal protection case); Hietala Affidavit at 8 (43 RR Defense Ex. 8) (SDT calculates “the
probability that the under-representation is the result of random chance”).
126
Coates v. Johnson & Johnson, 756 F.2d 524, 536 n.11 (7th Cir.1985) (“The ‘standard deviation’ is a number that
quantifies the degree to which disparities spread out above and below the mean of distribution, thus describing the
probability that chance is responsible for any difference between an expected outcome and the observed outcome in
a sample consisting of two groups (a binomial distribution). The greater the number of standard deviations, the less
likely it is that chance is the cause of any difference between the expected and observed results.”).
127
See also Waisome v. Port Authority, 948 F.2d 1370, 1376 (2d Cir. 1991) (noting that a finding of two standard
deviations is statistically significant); Ovalle, 13 S.W.3d at 782-83 (concluding that three standard deviations is the
benchmark for statistical significance and performing its own statistical analysis); Hazelwood School District v.
United States, 433 U.S. 299, 311 n.17 (1977) (“a fluctuation of more than two or three standard deviations would
77

to calculate the probability value (the P value). “A (P) value below .05 is generally
considered to be statistically significant, i.e., when there is less than a 5% probability that
the disparity was due to chance.” Coates, 756 F.2d at 537 n.13; Segar v. Smith, 738 F.2d
1249, 1282-83 (D.C. Cir. 1984) (a 0.05 P value (a 5 percent chance that the occurrence is
random), which translates to 1.96 standard deviations, is sufficient to establish prima facie
case of discrimination). 128
Equal protection analysis requires a statistical showing of discrimination “over a
significant period of time.” Mosley, 370 F.3d at 475-76. Here, Soffar presented data taken
from an eleven-year period, from 1970 through 1980. See Castaneda, 430 U.S. at 496
n.17 (finding 11-year period significant); Hobby v. United States, 468 U.S. 339, 341
(1984) (7 years significant). Cf. Ramseur v. Beyer, 983 F.2d 1215, 1233 (3d Cir. 1992)
(finding two-year period analysis insufficient). Application of statistical decision theory to
the data in this case indisputably establishes a violation of equal protection.
The following chart summarizes the statistical data demonstrating the drastic underrepresentation
of women in Harris County amongst jury commissioners, the grand jury
pool, actual grand jurors selected, and grand jury forepersons: 129
undercut the hypothesis that decisions were being made randomly with respect to race”) (citation omitted).
128
Another important statistical methodology courts use to assess equal protection claims is absolute disparity.
Absolute disparity measures the difference between the percentage of the protected class in the general population
and the percentage of the protected class selected. (6 CR 1751). An absolute disparity of 10% or more establishes a
prima facie showing of discrimination. See, e.g., Jones v. Georgia, 389 U.S. 24, 25 n* (1967) (14.7%); Rideau v.
th
Whitley, 237 F.3d 472, 486 (5 Cir. 2000) (noting Supreme Court decisions using 18% and 14.7%); United States v.
th
th
Tuttle, 729 F.2d 1325, 1327 (11 Cir. 1984) (noting that 10% is the minimum necessary showing in 11 Circuit).
129
As explained further in the chart’s first row, the calculations of standard deviations and number of deviations
between the expected and the observed are based on the data in the record and this Court’s formulae in Ovalle, 13
S.W.3d at 781-83, nn. 22-30, also used by the Supreme Court in Castenada, 430 U.S. at 496 n.17.
78

1970-1980
Representation of
Women Among
Components of
Grand Jury System:
Number
Within
Category
(6 CR
1805):
Expected
Number
of
Women
130
Observed
Number
of Women
(6 CR
1805):
Standard
Deviation
for
Comparison
131
No. of
Standard
Deviations
Between
Expected
and
Observed
132
Probability
Absent
Purposeful
Discrim -
ination
(P-value) (6
CR 1805):
Jury
Commissioners
633 316
(.5 x 633)
108
133
12.58
134
16.6 less than
0.0000001 135
Grand Jury Pool 2,480 1,240
(.5 x
2,480)
844
136
24.90
137
15.9 less than
0.0000001 138
Selected for Grand
Jury
Grand Jury
Forepersons
1,644 822
(.5 x
1,644)
132 66 (.5 x
132)
563
139
20.27
140
12.8 less than
0.0000001 141
11
142
5.74
143
9.6 less than
0.0000001 144
130
See e.g., Castenda, 430 U.S. at 496 n.17 (calculating the expected number by multiplying the total number of
persons by the percentage of the population that is Mexican-American). See also, Ovalle, 13 S.W.3d at 782 nn.23 &
24 (applying the same calculations to grand jury challenge in Hidalgo and Navarro counties).
131
See e.g., Castenda, 430 U.S. at 496 n.17 (defining the standard deviation for binomial distributions “as the square
root of the product of the total number in the sample . . . times the probability of selecting a Mexican-American . . .
times the probability of selecting a non-Mexican-American”; Ovalle, 13 S.W. 3d at 782 n.29 (using same
calculation); see generally, Robert V. Hogg, Introduction to Mathematical Statistics, 59, 158 (6th ed. 2004).
132
See, e.g., Ovalle, 13 S.W.3d at 782 n.30 (calculating number of standard deviations by dividing the observed
deviation (expected number minus observed number) by the standard of deviation for the comparison).
133
Here, the standard deviation, 12.58 (rounded), is the square root of the product of 633, the total number in the
sample, times the probability of selecting a woman (0.50) times the probability of selecting a man (0.50).
134
The observed deviation, 208.5, is approximately 16.6 standard deviations (12.5797 x 16.5742 = 208.498).
135
There was a 32.94 % absolute disparity between the percentage of women in the Harris County population and
the percentage who were selected as jury commissioners, id., another strong showing of an equal protection
violation. See, e.g., Jones v. Georgia, 389 U.S. 24 (1967); Rideau, 237 F.3d at 486; Tuttle, 729 F.2d at 1327.
136
The standard deviation, 24.90 (rounded), is the square root of the product of the total number in the sample
(2,480) times the probability of selecting a woman (0.50) times the probability of selecting a man (0.50).
137
138
The observed deviation, 396, is approximately 15.9 deviations (24.8997 x 15.9037 = 395.9974).
The absolute disparity between the percentage of women in the population and the percentage of women
summoned was 15.97%, id., another indisputable demonstration of an equal protection violation.
139
The standard deviation, 20.27, is the square root of the product of the sample size, 1,644, times 0.50 times 0.50.
140
The observed deviation, 259, is approximately 12.8 deviations (20.2731 x 12.7755 = 258.9989).
141
The absolute disparity between the percentage of women in the population and the number of women selected as
grand jurors in the years 1970 through 1980 was 15.75%. Id.
142
143
144
The standard deviation, 5.74, is the square root of the product of the sample size, 132, times 0.50 times 0.50.
The observed deviation, 55, is approximately 9.57 standard deviations (5.7446 x 9.5743 = 55.0005).
The absolute disparity for this category was 41.67%.
79

The difference demonstrated between the expected and actual number of women in
the grand jury pool, among jury commissioners, among actual grand jurors selected, and
among grand jury forepersons ranges from between nine and sixteen-plus standard
deviations. These statistics overwhelmingly establish a prima facie case of discrimination
in each of the above categories. See Castenada, 430 U.S. at 496, n.17. Calculation of the
probability value (the P-value) for each of these categories also shows that the probability
that the under-representation of women in the period from 1970 through 1980 was due to
chance was less than 0.0000001. Aff. of H. J. Hietala, Exhibit 7 (6 CR 1805) (p <
.0000001). The P-values here of .0000001 translate to an approximately one in 10 million
chance that the occurrence was random. They are highly significant and far exceed the
level of significance generally considered significant. (6 CR 1751-52, 1805).
These
statistics indisputably establish a prima facie case of discrimination against women in the
selection of jury commissioners, assembly of the grand jury pool, selection of the grand
jury, and selection of grand jury forepersons. Put plainly, “[h]appenstance is unlikely to
produce th[ese] disparit[ies].” Miller-el v. Cockrell, 537 U.S. 322, 342 (2003).
(B). System Susceptible to Abuse. As the United States Supreme Court has held, “a
selection procedure that is susceptible of abuse . . . supports the presumption of
discrimination raised by the statistical showing.” Castaneda, 430 U.S. at 494-95 (citation
omitted). During the years in question, Harris County employed a “key man” system
under which the district court judges had unfettered discretion to appoint jury
commissioners who in turn had unfettered discretion to select grand jurors. See TEX.
80

CODE CRIM. PROC. Arts. 19.01; 19.06; and 19.34; (6 CR 1740; 7 RR 135). As numerous
courts, including the Supreme Court, have held, this “key man” system is clearly
145
susceptible to abuse.
Because Appellant satisfied all three parts of the Rose test, the burden shifted to the
State to rebut the showing. Mosley, 370 F.3d at 475-76. The State made no attempt to do
so. Accordingly, the trial court committed reversible error by denying Appellant’s Motion
to Quash.
2. Prima Facie and Unrebutted Evidence of Exclusion of Hispanics
Appellant also established that Harris County’s system of selecting forepersons and
alternates discriminated against Hispanics during the years 1970 through 1980, and the
state offered nothing to rebut this showing.
Max Soffar satisfied the first prong of the Rose test because Hispanics are a
recognizable, distinct class. Castenada, 430 U.S. at 494; Hernandez v. Texas, 347 U.S.
475, 478-79 (1954). In addition, Soffar satisfied the second prong of the Rose test by
introducing unrebutted statistical evidence of the under-representation of Hispanics in the
selection of forepersons and alternates. (6 CR 1805). For the years 1970 through 1980,
Hispanics over the age of eighteen comprised approximately 13.72% of the population in
146
Harris County. During this period one hundred and thirty-two grand jury forepersons
145
Castenada, 430 U.S. at 484, 494, 497 (“key man” system for selecting jurors, under which judge selects jury
commissioners who in turn select prospective jurors, is susceptible to abuse); Cassell v. Texas, 339 U.S. 282, 287
(1950) (jury commissioners’ subjective selection of jury venire provided an opportunity for discrimination); Mosley,
370 F.3d at 478-70 (similar to Patrida); Johnson v. Puckett, 929 F.2d 1067, 1072 (5th Cir. 1991) (similar).
146
Dr. Hietala calculated the percentage of the population classified as Hispanic using census data and adjusting the
data to include only those individuals over age 18. See Aff. of H.J. Hietala, Exhibit 6 (6 CR 1791-1804).
81

and alternates were selected in Harris County. Id. Of those 132, based on the population
147
data, it would be expected that approximately 19 of the selected forepersons or
alternates would be Hispanic. In fact, there were only seven Hispanic forepersons during
this time period. Id. The difference between the expected number of Hispanics, 19, and
the observed number 7, is 12, approximately three standard deviations, a statistically
148
significant difference. Similarly, the P-value is less than 0.0008, again indicating the
statistical significance of the under-representation. Id.
Appellant also satisfied the third prong of the Rose test because, as explained
above, the Harris County system of selecting forepersons from 1970 through 1980,
whereby the district court judges appointed grand jury forepersons who in turn selected
grand jurors, was susceptible to abuse. See TEX. CODE CRIM. PROC. Art. 19.34; (6 CR
1740); Mosley, 370 F.3d at 478-70; Johnson, 929 F.2d at 1072.
Because Appellant established under Rose a prima facie case of discrimination
against Hispanics in selection of forepersons and alternates, the burden shifted to the state
to rebut this showing. The state made no attempt to do so. Therefore, the trial court
committed reversible error by denying the Motion to Quash.
(b) The trial court committed reversible error by denying Max Soffar’s motion to
quash the indictment because the grand jury selection process violated due process
147
13.72% of 132 = 19.
148
The standard deviation is 4.07, which rounded is the square root of the sample size (140) times the probability of
selecting a Hispanic person (0.1372) times the probability of selecting a non-Hispanic person (0.8628). See (6 CR
1805). The observed deviation, 12, is approximately 3 standard deviations (2.9988 x 4.0709 = 12.2078)). The
absolute disparity between the percentage of Hispanics in the population and the percentage of Hispanics selected as
forepersons or alternates was 8.72%. Id.
82

and Appellant’s right to a fair cross section.
The United States and Texas Constitutions guarantee criminal defendants that their
jury commissioners, grand jury forepersons and alternates, and grand jury pools will be
selected from a fair cross section of the community, in accordance with representational
149
due process values. See U.S. Const. amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§
150
10, 13, 15, 19.
The test for establishing a prima facie case of a fair cross section violation is
“essentially the same” as the test for establishing a prima facie equal protection violation.
Hernandez, 24 S.W.3d at 851. An appellant must show: “1) that the group alleged to have
been excluded is a ‘distinctive group’ in the community; 2) that the representation of this
group in venires from which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and 3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364;
Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim. App. 1996). “[O]nce the defendant has
made a prima facie showing of an infringement of his constitutional right to a jury drawn
from a fair cross section of the community, it is the State that bears the burden of
149
Carter v. Jury Comm. of Greene County, 396 U.S. 320, 338 (1970) (“State[s] may no more exclude Negroes
from service on the jury commission because of their race than from the juries themselves.”); Mosley, 370 F.3d at
478-70; Hobby v. United States, 468 U.S. 339, 346 (1984); Johnson, 929 F.2d at 1072.
150
See Hernandez v. State, 24 S.W.3d 846, 851 (Tex. App. - El Paso 2000, pet. ref'd) (“Sixth amendment requires
that grand . . . juries be selected from a fair cross section of the community” (citing Taylor v. Louisiana, 419 U.S.
522, 530 (1975)); Weaver v. State, 823 S.W.2d 371, 372, n.5 (Tex. App. – Dallas, 1992, pet. ref’d) (both the Sixth
Amendment of the United States Constitution and article 1, section 10 of the Texas Constitution require that grand
jury venires represent a fair cross section of the community); see also United States v. Deering, 179 F.3d 592, 597
th
(8 Cir. 1999) (Sixth Amendment right to grand jury from fair cross section). Cf. Duren, 439 U.S. at 359 (applying
fair cross section of the community requirement to include women).
83

justifying this infringement by showing attainment of a fair cross section to be
incompatible with a significant state interest.” Duren, 439 U.S. at 368.
Max Soffar satisfied all three of these prongs with respect to (1) discrimination
against women in the selection of jury commissioners; (2) discrimination against women
when summoning grand jurors; (3) discrimination against women in the selection of grand
jury forepersons and alternates
151
; and (4) discrimination against Hispanics in the selection
152
of grand jury forepersons and alternates. The State failed to meet its burden of
justifying this infringement by showing attainment of a fair cross section to be
incompatible with a significant state interest. Accordingly, the trial court committed
reversible error by denying the Motion to Quash.
First, both women and Hispanics are distinctive groups. See, e.g., Duren, 439 U.S.
at 364; Castenada, 430 U.S. at 494. Second, the representation of each of these groups is
not fair and reasonable in relation to the number of such persons in the community. As
discussed in the section on Equal Protection, supra, Statistical Decision Theory analysis
powerfully shows significant under-representation of women and Hispanics in various
stages of the grand jury selection process discussed. The same conclusion is inescapable
153
under absolute disparity analysis, the methodology frequently used to assess fair cross
151
But see Hobby v. United States, 468 U.S. 339 (1984) (defendant could not assert that discrimination in grand jury
foreperson selection violated his due process rights in part because foreperson had only ministerial duties and was
selected from grand jurors already chosen); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (“as in
Hobby, the foreman in this case was selected from grand jurors that had already been chosen, and the foreman
possessed only ministerial duties in addition to his normal duties as a grand juror”).
152
153
But see cases cited supra in the preceding footnote.
As noted above, absolute disparity measures the difference between the percentage of the protected class in the
general population and the percentage of the protected class selected. (6 CR 1751).
84

section and due process claims. See, e.g., People v. Burgener, 62 P.3d 1, 22 (Cal. 2003).
An absolute disparity of 10 percent or more indisputably satisfies Duren’s second prong.
See Jones, 389 U.S. at 25 n* (absolute disparity of 14.7% establishes violation); Rideau,
237 F.3d at 486 (noting Supreme Court decisions using 14.7% and 18%); Tuttle, 729 F.2d
at 1327 (holding that 10% is the minimum showing). Appellant satisfied Duren’s second
prong for women and Hispanics in the categories listed in the below chart:
Category
Women Jury Commissioners
1970-80
Absolute Disparity (% of protected class in
general population – % of protected class
selected)
32.94% (50-17.06)
Women Jury Commissioners 1980 22.37% (50-27.63)
Women in Grand Jury Pool 1970-80 15.97% (50-34.03)
154
Women in Grand Jury Pool 1980 6.11% (50-43.89)
Women Grand Jury Forepersons and
alternates 1970-80
Women Grand Jury Forepersons and
alternates 1980
Hispanic Forepersons and alternates
1970-80
Hispanic Forepersons and alternates
1980
41.67% (50-8.33)
16.67% (50-33.33)
155
8.72% (13.72-5)
156
13.72% (13.72-0)
154
The P-value, less than 0.02, (6 CR 1805), indicated that this difference was statistically significant. Coates, 756
F.2d at 537 n.13 (7th Cir.1985) (“For large samples, statistical significance at a [P-value] in the range below 0.05 or
0.01 is ‘essentially equivalent' to significance at the 2 or 3 standard deviation level.”). The standard deviation, 8.70,
is the square root of the product of the sample size, 303, times .50 times .50. (6 CR 1805). The observed deviation,
18.5, id., is a statistically-significant 2.13 deviations (8.7034 x 2.1256 = 18.4999).
155
This under-representation is statistically significant. See subsection (a) (2) (B), supra, (discussing the P-value,

Third, by showing that the key-man system utilized at the time of his grand jury
was a highly discretionary one, susceptible to abuse and open to discrimination, Max
Soffar also met his burden of demonstrating that the under-representation of women and
Hispanics was due to their systematic exclusion. Duren, 439 U.S. at 364.
Because Appellant established all three elements of the prima facie case with
respect to the under-representation of women (in the selection of jury commissioners, the
grand jury pool, and forepersons and alternates) and Hispanics (in the selection of
forepersons and alternates), the burden shifted to the State to rebut the discrimination. The
State failed to introduce any evidence rebutting the prima facie case and, accordingly, the
trial court erred by denying the Motion to Quash.
Conclusion. By denying the Motion to Quash, the court violated Appellant’s,
Harris County women’s, and Harris County Hispanics’ equal protection and due process
rights, and Appellant’s due process and fair cross section rights. Reversal is required.
Appellant’s Sixth Point of Error
(a)
(b)
The State’s failure to preserve exculpatory evidence violated Appellant’s
rights to due process and a fair trial under the United States Constitution.
The State’s failure to preserve exculpatory and valuable evidence violated
Appellant’s rights to due course of law under the Texas Constitution.
The trial court violated Max Soffar’s rights to due process and due course of law
when it overruled his objection to facing trial after the state had lost critical evidence. (9
were no Hispanic forepersons. The P-value, less than 0.011, indicated statistical significance. The standard
deviation, the square root of 15 times 0.1372 times 0.8628, was 1.33. The difference between the expected number,
2.058 and the observed number, 0, was 2 – less than two standard deviations. Note, however, that this sample shows
the difficulty of testing with small sample sizes: it would be impossible for the difference to be greater than two
standard deviations, given that it is not possible to have a smaller number of Hispanics than zero.
86

RR 19). Because the State failed to preserve crucial defense evidence, Appellant was
denied his constitutional rights to due process, due course of law, and a fair trial. U.S.
Const. amends. VI, XIV; Tex. Const. Art. I, §§ 10, 19.
(a) The State’s failure to preserve exculpatory evidence violated Appellant’s
right to due process and a fair trial under the United States Constitution.
The Fourteenth Amendment to the UNITED STATES CONSTITUTION forbids states
from destroying or losing exculpatory evidence, and forbids the bad-faith destruction or
loss of potentially exculpatory evidence. See Illinois v. Fisher, 540 U.S. 544 (2004); see
also Jackson v. State, 50 S.W.3d 579, 588-89 (Tex. App. – Ft. Worth 2001, pet. ref’d).
Where the State destroys or loses evidence which is both material and exculpatory on its
face, a due process violation is established. United States v. Moore, 452 F.3d 382, 388
(5th Cir. 2006) (citing Illinois v. Fisher). Where the lost or destroyed evidence is only
potentially exculpatory, a due process violation is established by showing bad faith on the
part of the state. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Moore, 452 F.3d at 388.
Here, the State lost or destroyed evidence that was both exculpatory and material to
Soffar’s case at the guilt and punishment phases. In fact, most of the missing exculpatory
evidence was directly related to the “stark inconsistencies between Garner’s description of
the shootings and the one that the officers testified that Soffar gave them.” Soffar, 368
F.3d at 471. See also id. at 456, 488 (Appendix A). Having won in the Fifth Circuit,
Soffar’s success in the retrial would turn on whether the jury believed the account
attributed to him or found a reasonable doubt based on Garner’s contrary statements. The
87

missing evidence went to the heart of resolving this conflict. 157
The police lost four audiotapes of Garner’s statements. (8 RR 3-44; 28 RR 145-
46; 2 CR 507; 7 CR 1978). The tapes were exculpatory on their face because their
contents differed so “dramatically” with the theory of guilt propounded by the State.
Soffar, 368 F.3d at 456. The prosecution and its “expert” attacked Garner’s account as
158
confused and a product of “potential” amnesia. (28 RR 108-48). The missing tapes
were critical to the jury’s adequate assessment of the State’s claim.
The police also failed to preserve the water jug officers found out of place on the
control counter at the bowling alley. (26 RR 183-85; 27 RR 91). The police should have
known of the jug’s potential relevance when they processed the scene because the
Fairlanes manager, Jim Peters, was present and could have told the police that the jug was
out of place and therefore significant. (26 RR 184). Because the police did not ascertain
its importance and preserve this jug, the defense could not test it for fingerprints or DNA
which the perpetrator, who wore no gloves, might well have left. (33 RR 30). The State’s
failure to preserve the jug prejudiced Soffar’s ability to exonerate himself.
Other missing evidence was relevant to whether there were four or five shots fired,
157
The trial court stated it was denying Appellant’s motion to dismiss (and for other alternative remedies) due to lost
and missing evidence because it raised a “legal question.” (9 RR 19). The court made no findings of fact. The
standard of review is, thus, de novo. Moff, 154 S.W.3d at 601.
158
Testifying for the prosecution, Dr. Leon Gildenberg claimed that his reading of transcripts of Garner’s statements
“demonstrated” the type of concern he had about Garner’s memory. (28 RR 114). Had the tape of those interviews
not been lost, the defense would have been able to test Dr. Gildenberg’s assertions by allowing the jury to hear how
Greg Garner spoke in those interviews, his level of certainty, and whether his voice betrayed confusion.
88

159
including Sims’s shirt, bullets and bullet fragments. (33 RR 19, 58-59, 63,158; 35 RR
160
43-56; 43 RR State’s Exhibit 192; 2 CR 514-16). In addition, pieces of carpet and
carpet padding the police had cut out from around the four bullet holes had all been lost.
(43 RR State’s Exhibit 197). The prosecutor and defense expert agreed that this evidence
161
was relevant to whether four or five shots were fired. See (9 RR 16; 33 RR 84).
The State’s failure to preserve exculpatory evidence violated Max Soffar’s right to
162
due process. Remedies include dismissal, United States v. Cooper, 983 F.2d 928 (9th
Cir. 1993), or, in less egregious cases, an adverse inference instruction where evidence is
lost or destroyed. See Youngblood, 488 U.S. at 51; United States v. Wise, 221 F.3d 140,
156 (5th Cir. 2000). This Court should reverse and render a judgment in Appellant’s favor
or order such other relief as justice may require.
159
Sims’s shirt was also important because he spent a lot of time with the perpetrator. (32 RR 73, 80, 104, 137, 139,
145). For example, he went outside with the perpetrator to deal with his car trouble, id., and emptied the cash
register at the perpetrator’s demand. (33 RR 84-85; 107-08). Because the shirt was lost, the defense could not have
the shirt tested to determine whether the perpetrator had left biological evidence, including DNA, on Sims’s shirt.
Such testing could not have been done in 1981 even if Soffar had then had effective counsel investigating the case.
160
By the time of Appellant’s retrial, the police had destroyed the larger piece of carpet from which the carpet
squares had been cut. (8 RR 37-38; 2 CR 531). Because the smaller carpet squares had been cut around the bullet
holes in the carpet, this evidence would have been valuable to the defense to corroborate that Garner had correctly
described the position of the victims during the shooting, not Max Soffar. (Compare 45 RR Joint Exhibit 3 with 43
RR State’s Exhibit 207/Defense Exhibit 32; 30 RR 161). A chart the State admitted as Exhibit 129 in the first trial,
which demonstrated the position of the bullet holes in the carpet, would have served a similar purpose, but it too had
been lost. (2 CR 504, 6 RR 75-76; 7 RR 10).
161
Although during the argument on the lost evidence motion the prosecutor argued to the court that lost evidence
bearing on whether there were four, five or more shots was completely irrelevant because the number of shots was
irrelevant, (9 RR 15), he argued to the jury that the issue was important and that the defense expert’s testimony that
five shots were fired (as Garner had said in his statements) represented a “magic bullet” theory. (35 RR 22, 96).
Whether there were four or five shots fired was an important factual issue for the jury. Soffar, 368 F.3d at 476
(citing importance of ballistics expert on this issue).
162
If this Court finds any of this evidence not exculpatory on its face, it should find a due process violation due to
the State’s bad faith in losing “potentially” exculpatory evidence. The State knew at Soffar’s original trial that the
weight of the projectiles and fragments only added up to four bullets, not five. (7 CR 2133-34 (notes of assistant
district attorney who prosecuted the case in 1981); 7 CR 2100 (HPD Firearms Section Worksheet)). It also
possessed Greg Garner’s account, which so dramatically differed from its trial theory at the first trial.
89

(b) The State’s failure to preserve exculpatory evidence violated Appellant’s
right to due course of law under the Texas Constitution.
In his concurring opinion in Youngblood, 488 U.S. at 60-61, Justice John Paul
Stevens wrote that “there may well be cases in which the defendant is unable to prove that
the State acted in bad faith, but in which the loss or destruction of [potentially exculpatory]
evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally
unfair.” Id. Numerous states have adopted Justice Stevens’s rationale and rejected the
163
bad-faith standard when interpreting their state constitutions.
This Court, too, should abandon Youngblood’s impractical bad-faith test by
interpreting the Texas constitutional guarantee of due course of law to provide greater
protections. See Tex. Const. Art. I, §§ 10, 19. This Court is not bound by Youngblood,
see Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998), and should follow other
jurisdictions enunciating a standard that protects the rights of criminal defendants when
the state negligently loses or destroys important evidence. The appropriate approach
under the Texas due course of law provision was recently set forth by Pena v. State, 166
S.W.3d 274, 281-82 (Tex. App. – Waco 2005), rev’d 191 S.W.3d 133 (Tex. Crim. App.
164
2006). If “potentially useful” evidence is lost or destroyed, the court must balance the
163
See,e.g., Ex Parte Gingo, 605 So. 2d 1237, 1241 (Ala. 1992); Thorne v. Dept. of Public Safety, 774 P.2d 1326,
1330-31 (Alaska 1989); State v. Morales, 657 A.2d 585, 591-92 (Conn. 1995); Lolly v. State, 611 A.2d 956, 960
(Del. 1992); State v. Matafeo, 787 P.2d 671, 673 (Haw. 1990); Williams v. State, 50 P.3d 1116, 1126 (2002); State v.
Chouinard, 634 P.2d 680, 683 (N.M. 1981); State v. Barnett, 543 N.W.2d 774, 777-778 (N.D. 1996); State v.
Cheeseboro, 552 S.E.2d 300, 307 (S.C. 2001); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999); State v. Gibney,
825 A.2d 32, 42-43 (Vt. 2003); State v. Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1999).
164
This Court reversed the intermediate appellate court in Pena, not on the merits, but because the parties never
briefed the state constitutional issue in the intermediate court. State v. Pena, 191 S.W.3d 133 (Tex. Crim. App.
2006). The intermediate court is now considering briefing on the state constitutional issue. State v. Pena, 192
S.W.3d 684 (Tex. App. – Waco 2006). Even though the court did not allow full briefing, its reasoning remains
90

degree of negligence involved, the significance of the destroyed evidence, and the
sufficiency of the other evidence in support of the conviction. Id. at 282.
The missing evidence in this case is certainly exculpatory. It includes powerful
evidence going to the heart of whether the jury should have believed Garner’s statements
or Soffar’s statement. Moreover, even if this Court finds some or all of the evidence
merely “potentially useful,” reversal of Soffar’s conviction and dismissal of the indictment
is warranted given the volume of the lost evidence, the fact that only inexcusable neglect
165
could have led to its loss in this capital case, and that the remaining evidence in the case
was far from overwhelming. Soffar, 368 F.3d at 478-79. This Court should reverse and
render, or order other appropriate relief.
Appellant’s Seventh Point of Error
Rooted in a completely unreliable confession, Appellant’s conviction rests on legally
and factually insufficient evidence and violates his right to due process of law.
Max Soffar’s conviction was built upon a confession dramatically at odds with the
sole eyewitness’s description of the crime and with the other testimonial and physical
evidence. Soffar, 368 F.3d at 456. Soffar’s putative confession came after he spent three
days of isolation in police custody and after he signed two substantially different and lessinculpatory
statements. None of Soffar’s putative statements was written in his own hand
persuasive. The Pena court insightfully discussed the need for greater police incentives to preserve evidence and the
concomitant damage to defendants’ rights when they fail to do so, as evidenced by the rash of lost and disturbed
evidence in crime labs across the country, including Houston. Pena, 166 S.W.3d at 280-81.
165
The police witness called upon to find lost evidence stored in the police property room provided no other
explanation than that the District Attorney’s Office had checked out some of the evidence and that all of the records
of the evidence, except log books, had been destroyed. (8 CR 33-39).
91

or stated in his own words; instead, the police typewrote the statements for his signature.
Only part of the first day of interrogation was recorded, and the little evidence available
about the police interrogations indicated that officers fed Soffar information, including a
description of the layout inside and outside of the bowling alley. (29 RR 147-51, 164-66;
31 RR 61-62, 128-29). The police officer who knew Soffar well as a police informant –
and who was called upon when other officers hit a “brick wall,” (29 RR 187-88) –
described him as “just not trustworthy” and as having “fried brains” and the mentality of a
ten-year-old child. (29 RR 129, 134).
This Court may reverse a conviction based upon legally insufficient evidence,
Jackson v. Virginia, 443 U.S. 307, 319, 326 (1979), or factually insufficient evidence.
Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). This Court should hold
the purported confession unreliable as a matter of law. Various factors, individually or in
combination, make it unreliable, including: (1) the circumstances under which it was
taken; (2) its failure to comport with the physical and testimonial evidence; (3) its failure
to contain any information not already known by the police; and (4) the fact that Soffar
166
gave numerous versions of the events. Moreover, because the State’s proof is not
legally sufficient to identify Soffar as the perpetrator without his confessions, this Court
should reverse his conviction because it is based on legally insufficient evidence. In the
alternative, this Court should act as a “thirteenth juror” and reverse Appellant’s conviction
166
See, e.g., People v. Brensic, 509 N.E.2d 1226, 1231-32 (N.Y. 1987) (finding confession “unreliable as a matter of
law,” where it was “the product of the custodial questioning of a 15-year-old boy for six and a half hours, without
his parents’ knowledge, by two police detectives,” which contained “numerous versions of the events that led to
[victim’s] death”).
92

ecause of factual insufficiency. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App.
2006). When a conviction appears “manifestly unjust” or “clearly wrong” because the
“great weight and preponderance of the (albeit legally sufficient) evidence contradicts the
jury’s verdict,” a new trial must be ordered. Id. For the reasons stated above, this is the
rare case which meets this exacting standard.
Appellant’s Eighth Point of Error
The trial court violated Appellant’s constitutional right to present a defense by
repeatedly precluding evidence which undermined the prosecution's case and
impeached the police investigation.
At Max Soffar’s trial, the trial court repeatedly violated his constitutional right to
present a defense, effectively blocking each new attempt to salvage what remained of the
defense that both his confession and the police investigation were unreliable. See also
U.S. Const. amends. VI; XIV; Appellant’s First Point of Error, incorporated herein
(collecting cases); Ray, 178 S.W.3d at 836 n.1 (cautioning against “precluding altogether
167
the presentation of the defensive theory”).
First, the court repeatedly blocked cross examination designed to vindicate Soffar’s
constitutional right to prove that his confession was unreliable. Crane, 476 U.S. at 690.
(29 RR 163-64 (precluding Clawson’s testimony that he was concerned that Soffar “could
168
not provide any details about the bowling alley” during custodial interrogation); 30 RR
167
A de novo standard of review is required because “the resolution of [this] question of law [did] not turn on an
evaluation of the credibility and demeanor of a witness,” Moff, 154 S.W.3d at 601, and because the trial court’s
preclusion of this evidence implicated Appellant’s constitutional right to present a defense. Lilly, 527 U.S. at 137;
Guzman, 955 S.W.2d at 87.
168
By contrast, defense objections to police officers testifying that it “appeared” that Max Soffar “understood” his
Miranda rights were overruled. (29 RR 55-56).
93

117-20 (precluding testimony from police witnesses about inconsistencies within Soffar’s
statements); 31 RR 157-58 (precluding police testimony that Soffar’s statement kept
changing from August 5 to 7, 1980)).
Second, the court refused to allow Soffar to attack the police investigation as
169
unreliable. Kyles v. Whitley, 514 U.S. 419, 446 (1995) (finding due process violation
where prosecution suppressed evidence which defense could have used to “attack[] the
reliability of the [police] investigation”). The information provided in Garner’s police
statements should have been the foundation of their investigation. Instead, they focused
solely on Max Soffar, whose purported information was “dramatically at odds” with the
information from Garner. Soffar, 368 F.3d at 456. A proper police investigation may well
have led to someone else being charged with the crime.
Third, just as the court precluded the admission of evidence of Reid’s statement
against interest, Tex. R. Evid. 803 (24), the court precluded the admission of evidence that
people other than Reid and Soffar had admitted to the crime. (31 RR 17 (precluding
testimony that other people confessed to the Fairlanes robbery murders); 31 RR 101-03
(precluding evidence that other suspects admitted to the crime to authorities)).
The trial court’s rulings violated Appellant’s rights to due process of law and to
169
See (31 RR 15-16 (precluding testimony that the police “tip line” for the Fairlanes robbery murders, which had
numerous callers, received no calls saying Max Soffar was the perpetrator); 31 RR 34 (precluding testimony that
Latt Bloomfield was never charged with the crime); 31 RR 157 (precluding police testimony that Greg Garner’s
diagram of the bodies showed his own body in the same position as unaccounted for bullet hole, corroborating his
own statements and undermining Soffar’s); 31 RR 158 (precluding police testimony comparing Soffar’s statement
with Greg Garner’s); 32 RR 169, 172, 174, 179; 34 RR 14-15 (precluding police testimony about Greg Garner’s
non-transcribed statements, introduced not for the truth of the matter asserted but to show that Garner’s earlier
transcribed statements were consistent with the answers he provided during weeks of police interviews)).
94

present a defense. Because the prosecution’s evidence was extraordinarily thin, the court’s
error was not harmless under any standard. Chapman, 386 U.S. at 24; Anderson, 182
S.W.3d at 918-19.
Appellant’s Ninth Point of Error
The court deprived Appellant of his rights under the Confrontation Clause by
admitting testimonial hearsay evidence never properly tested in the crucible of cross
examination.
The Confrontation Clause forbids the introduction of an absent witness’s prior
testimony unless “the defendant had an adequate opportunity to cross-examine” the
witness in the prior proceeding. U.S. Const. amends. VI; XIV; Crawford v. Washington,
541 U.S. 36, 57 (2004) (citing Mancusi v. Stubbs, 408 U.S. 204, 213-216 (1972) (other
citations omitted)). Where the State seeks to introduce such testimony, it has the burden
170
of establishing that the prior opportunity to cross examine was adequate. The State
failed to meet that burden when it introduced the testimony of Lawrence Bryant from the
171
first trial, and the trial court denied Max Soffar his right to confrontation when it
admitted into evidence Bryant’s prior testimony over defense objections. 172
Max Soffar did not have an adequate opportunity to cross examine Bryant in the
first trial because Soffar was represented by constitutionally-ineffective counsel. Soffar,
368 F.3d at 480. As this Court has stated, “[w]hether the requisite opportunity existed in a
170
Russell v. State, 604 S.W.2d 914, 919-20 (Tex. Crim. App. 1980) (citing Carver v. State, 510 S.W.2d 349, 351
(Tex. Crim. App. 1974)).
171
(32 RR 5; 2 CR 525-26; 6 CR 1717). Bryant’s testimony alleged that Soffar spoke about bowling alley murders
during a drug transaction.
172
Because this is a purely legal question and raises a constitutional claim, the standard of review is de novo.
Guzman, 955 S.W.2d at 89.
95

particular proceeding depends upon” a number of factors, including “intimations of
ineffective assistance of counsel.” Russell, 604 S.W.2d at 921. See also Mancusi, 408
U.S. at 214-15 (stating that adequate prior opportunity would not exist if ineffectiveness
caused the omission of a“significantly material line of cross-examination”).
As the Fifth Circuit held, Appellant’s counsel was ineffective in 1981 by failing to
elicit the “readily evident stark inconsistencies between [Greg] Garner’s description of the
shootings and the one that the officers testified that Soffar gave them.” Soffar, 368 F.3d at
471. Counsel’s ineffectiveness led to the forfeiture of a significant line of cross
examination of Bryant. For example, ineffective counsel in 1981 missed the opportunity
to elicit that Soffar allegedly told Bryant that “as he was going out[,] somebody got in his
way or something like that.” (2 CR 681 (Bryant’s signed statement to the police)). Garner
reported nothing like this in any of his statements. Ineffective counsel also failed to elicit
that Soffar allegedly claimed to Bryant that “he seen the money laying there.” (2 CR 681).
In fact, the evidence establishes that no “money” was “laying” anywhere. On the contrary,
Garner reported that the perpetrator took the money from the cash register, (32 RR 69, 84-
85), and manager Jim Peters reported that money was never left anywhere but in the office
or in the cash registers. (26 RR 178-79). Eliciting these stark inconsistencies would not
only have shown that Appellant’s putative statements were false but also would have
established that his various alleged statements to the police and Bryant were all different
173
from one another, further undermining their credibility.
173
Soffar never claimed in any of his putative statements to the police that any money was “laying” there or that
someone got in his way while he was leaving.
96

Finally, ineffective counsel missed the opportunity to impeach more forcefully and
clearly Bryant’s damaging claim on direct that Soffar said he shot three people and that he
was responsible for the robbery. (32 RR 12-13, 31-34). An adequate cross examination
would necessarily have elicited from Bryant in a clear way that Bryant’s actual statement
to the police was that Soffar stated “if I told you who did it you wouldn’t believe me,” and
that “three people got shot in the back.” (2 CR 681 (emphasis added)). 174
Because a violation of the right to confrontation affects “the framework within
which the trial proceeds, rather than simply [causing] error in the trial process itself,”
Arizona v. Fulminante, 499 U.S. 279, 310 (1991), this Crawford violation was a
“structural error,” not subject to harmless error analysis. See id. In the alternative, the
State cannot prove that the admission of Bryant’s non-confronted testimony was harmless
beyond a reasonable doubt. Chapman, 386 U.S. at 24. The prosecution’s case was
extraordinarily weak. See Appellant’s First Point of Error (harmless error discussion),
supra. The State relied on Bryant’s testimony extensively in summation, underscoring its
importance to the prosecution case. (35 RR 13-14, 81-85, 88-89). This error was not
harmless. Reversal is required.
Appellant’s Tenth Point of Error
(a)
(b)
(c)
The police violated Soffar’s Fifth Amendment rights by continuing their
custodial interrogation after he invoked his right to remain silent.
Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid any
purported waiver of his right to counsel.
The police obtained Soffar’s statements by failing to honor his invocation of
174
That “three people got shot in the back” is also inconsistent with the crime-scene evidence establishing that four
people were shot in the head.
97

(d)
(e)
the right to counsel under the Fifth Amendment.
Under Texas law, the police were required to clarify whether Soffar wanted
counsel, if his invocation was ambiguous.
Soffar’s statements were involuntary and should have been suppressed.
Factual Background. On August 5, 1980, Officer Raymond Willoughby pulled
over Soffar, who was on a stolen motorcycle, in League City, Texas. (4 RR 20, 26). 175
176
After Soffar was arrested and read his Miranda rights, he allegedly stated that he was
not going to prison over any bike and that the police should check with Houston for
“bigger” things. (4 RR 74). See also (4 RR 37). Soffar claimed that he had information
about “the bowling alley murders” in Houston, and asked to speak with Sgt. Bruce
Clawson of the Galveston County Sheriff’s Office. (4 RR 37-39). Sgt. Clawson was
called to assist in Soffar’s interrogation, (4 RR 97), and his paper work indicated that he
was called due to Soffar’s refusal to talk. (5 CR 1296).
As Sgt. Clawson’s paid informant, (4 RR 94), Soffar provided information about
narcotics sales in exchange for money and for assistance when Soffar got into legal
trouble. (4 RR 95, 117). Sgt. Clawson knew that Soffar suffered from a drug problem,
acted impulsively and child-like, had a poor grasp of reality, and displayed an unusual
177
eagerness to please those in positions of authority. (4 RR 117-19). Sgt. Clawson knew
178
that Max Soffar considered him a friend and trusted him. (4 RR 123-24).
175
176
All record citations are to the pretrial suppression hearing.
Miranda v. Arizona, 384 U.S. 436 (1966). The police read Soffar his Miranda rights several times during
subsequent interrogations. See, e.g., (5 RR 72).
177
178
Indeed, Soffar was a police informant for three to four police departments. (4 RR 120).
Sgt. Clawson’s brother, Detective Michael Clawson, also used Soffar as an informant. (6 RR 31-32). Michael
Clawson found Soffar’s information useless because it was not truthful, and found Soffar amenable to suggestion
during interrogation. (6 RR 33-37). Officer James Palmire acknowledged that Appellant was impulsive, acted on
the spur of the moment, did not give thought to the consequences of his actions, and had a history of illegal drug use.
98

Sgt. Clawson and Officer Willoughby escorted Soffar to a magistrate for his
“magistrate” warnings, (4 RR 42-44), which referred to the only charge at the time:
unauthorized use of a motor vehicle. (4 RR 62). Upon returning to the police station,
Officer Willoughby noticed that Soffar’s eyes were bloodshot, his pupils dilated, his
speech slurred, and he smelled of alcohol, (4 RR 53-54) – even though Soffar had been
pulled over approximately forty minutes before. (4 RR 58-59).
Soffar told Sgt. Clawson that he did not wish to talk to Officer James Palmire, who
had called Soffar a “punk” as part of a good cop/bad cop routine. (4 RR 76, 82, 91, 102).
Sgt. Clawson left with Officer Palmire and returned with Det. Schultz. (4 RR 104). Det.
Schultz noted that Soffar looked disheveled, as though recovering from intoxication. (4
RR 200-01). He knew that Soffar had spent three years in Austin State Mental Hospital.
(4 RR 204; 43 RR State’s Exhibit 1A at 10). Soffar told Det. Schultz that the police had
subjected him to a “little threat,” but Det. Schultz did not investigate it. (4 RR 208).
Det. Schultz spoke with Soffar until Soffar no longer desired to speak and the
interrogation “hit a brick wall.” (4 RR 131-32). Sgt. Bruce Clawson then took over,
questioning his informant in private. (4 RR 107-08). Soffar asked Sgt. Clawson how to
get an attorney. (4 RR 107-08; 7 RR 93-95). Sgt. Clawson responded by asking Soffar
whether he could afford an attorney, id., even though that he knew that Soffar could not
afford an attorney (7 RR 102-04). Soffar asked Sgt. Clawson how long it would take to
get a public defender. (4 RR 107). Clawson responded that he did not know, maybe a
(4 RR 80-81, 88-89).
99

179
day, a week, or a month. (4 RR 108). Soffar asked Sgt. Clawson whether he thought he
should get an attorney and Clawson responded “if you’re guilty talk to the police and if
you’re not guilty you should get an attorney.” (4 RR 109). Finally, when Soffar asked
Sgt. Clawson if he was on his own, Sgt. Clawson confirmed that Soffar was on his own.
(4 RR 110). Soffar responded, “I’m on my own.” (7 RR 94).
After digesting Sgt. Clawson’s answers to his questions, Soffar spoke with Det.
Schultz again and provided his first statement, which was tape recorded. (4 RR 110).
This statement led to follow-up interrogations, yielding two additional typewritten
statements, as Soffar remained in isolation in police custody on August 6 and 7, 1980.
The interrogation sessions leading to the second two statements were neither tape recorded
nor transcribed. (5 RR 93). Instead, the substance of the sessions was summarized by
detectives and presented to Soffar as written statements for his signature. (5 RR 70-71; 7
RR 31-32, 39-40, 174-75; 43 RR State’s Exhibit 109, 110).
Soffar stated during his initial interrogation by Det. Schultz that he knew about the reward
for information in the bowling-alley murders case. (43 RR State’s Exhibit 1A at p. 36). In
addition, Det. Schultz answered Soffar’s questions about the details of the crime, including
how many people were shot, their ages, and whether anyone survived. Id. at 29-30.
Thereafter, in Soffar’s first signed statement, he claimed that he and Latt Bloomfield
burglarized a bowling alley and that they returned the next night when Bloomfield entered
the bowling alley with a pistol while Soffar waited outside and heard shots. (43 RR
179
Sgt. Clawson knew that in Harris County a suspect had to be released or charged within seventy-two hours, but
claimed not to make any “correlation” between this fact and the availability of counsel. (4 RR 108-09).
100

State’s Exhibit 108). The content of the second statement was similar. (43 RR State’s
Exhibit 109). When he asked Soffar to sign the statements, Det. Schultz knew that two
other suspect had confessed to the burglary of Fairlanes on the night before the robbery
murders. (4 RR 190-91). Similarly, the police knew that Soffar falsely confessed to other
robberies with Bloomfield when they took him for a ride around Houston after his second
statement. (5 RR 112; 7 RR 38, 69-71). After Soffar became upset when the police told
him that they had released Bloomfield for lack of evidence, Soffar signed his third
statement. (5 RR 86-87; 7 RR 41-43). In this detailed typewritten statement, Soffar for
the first time inculpated himself (as well as Bloomfield) in the shooting of four people
during a bowling alley robbery. (43 RR State’s Exhibit 110).
(a) Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid any
purported waiver of his right to counsel.
As noted above, when Soffar asked about his right to counsel, Sgt. Clawson said on
the first day of interrogation that it could take up to a month to get an attorney, told Soffar
he was on his own, told him to get a lawyer only if he was innocent, and inappropriately
questioned whether Soffar could afford an attorney. As the Supreme Court has held, “any
evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course,
show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at
476. Cf. Missouri v. Seibert, 542 U.S. 600, 613-14 n.5 (2004) (forbidding misleading
180
tactics which render the warnings ineffective).
180
A trial court’s ruling on a motion to suppress is generally reviewed for abuse of discretion. Balentine v. State, 71
S.W.3d 763, 768 (Tex. Crim. App. 2002). Although a trial court’s determination of historical facts supported by the
record is entitled to deference, where, as here, the issues before the appellate court involve the constitutional
101

When faced with an ambiguous or equivocal statement regarding an attorney, a
police officer may “clarify whether or not he actually wants an attorney,” or continue
questioning him. Davis v. United States, 512 U.S. 452, 460-61 (1994). Neither Davis nor
any other authority, however, allows the government to respond to such a statement by
misleading the suspect about his right to counsel in violation of Miranda’s prohibition
against using trickery to obtain a waiver. Indeed, both this Court and the Fifth Circuit
181
expressly forbid such conduct.
Clawson’s statements rendered any purported waiver(s) unknowing, involuntary,
and unintelligent in violation of Soffar’s Fifth Amendment rights. Accordingly, the trial
court erred in failing to suppress the signed statements.
(b)
The police obtained Soffar’s statements by failing to honor his invocation of
the right to counsel under the Fifth Amendment.
If an accused “indicates in any manner and at any stage of [custodial interrogation]
that he wishes to consult with an attorney before speaking there can be no questioning.” 182
See also U.S. Const. amends. V; XIV; TEX. CODE CRIM. PROC. Art. 38.22. The issue is
whether “‘a reasonable police officer in the circumstances would understand the
implications of the undisputed facts, such deference is inapplicable. Guzman, 955 S.W.2d at 89.
181
See Thompson v. Wainwright, 601 F.2d 768, 770, 772 (5th Cir. 1979) (disapproving of an interrogating officer's
statement to the defendant that “if he told an attorney [his story] first he would not be able to talk to [the officers]
and tell [them] his side of the story,” and warning that “any” explanation offered by an interrogating officer about
the consequences of speaking with counsel is “perilous and, if given, must not be materially incorrect” and that
“advice about what is best for the suspect to do is for counsel, not the interrogator, to give”); Russell v. State, 727
S.W.2d 573, 577 (Tex. Crim. App. 1987) (citing Thompson and holding that “an interrogating officer may not use
the guise of clarification in order to coerce or intimidate the accused into making a statement”). On habeas review,
the Fifth Circuit rejected Max Soffar’s claim that Clawson’s conduct violated his Miranda rights. Soffar v. Cockrell,
300 F.3d 588 (5th Cir. 2002).
182
Miranda, 384 U.S. at 444-45; Ochoa v. State, 573 S.W.2d 796, 800 (Tex. Crim. App. 1978) (holding that
“Miranda [should be read] literally; where a defendant indicates in any way that he desires to invoke his right to
counsel, interrogation must cease”).
102

[accused’s] statement to be a request for an attorney.’” Dinkins v. State, 894 S.W.2d 330,
352 (Tex. Crim. App. 1995) (quoting Davis, 512 U.S. at 459). Courts look to the totality
of the circumstances surrounding the interrogation, the suspect, and the invocation to
determine whether an accused’s statement can be construed as an invocation of his right to
counsel. See Dinkins, 894 S.W.2d at 351. Even without an explicit request for an
183
attorney, an accused’s statements may constitute an invocation of his right to counsel.
183
See Ochoa, 573 S.W.2d at 800-801 (recognizing that although the defendant did not make a “formal request” or
absolute demand for a lawyer, he invoked his right to counsel by stating he “might possibly want to talk to an
attorney” or he “probably ought to talk to a lawyer”); Stanton v. State, 953 S.W.2d 832, 834-835 (Tex. App. –
Amarillo 1997, no pet.) (finding invocation of right to counsel when accused stated that “‘he was not doing any
tests’” and “‘you are trying to incriminate me and without an attorney’”; the Court held that there was “no question
that appellant plainly expressed his desire for an attorney”).
184
Max Soffar invoked his right to counsel. Soffar asked Sgt. Clawson how he could
get an attorney, how long it would take for a public defender to appear, and whether he
was “on his own.” (4 RR 107-10; 7 RR 94). Sgt. Clawson knew that Soffar trusted him
and considered him a friend. (4 RR 122-24). He also knew Soffar’s serious mental
limitations. (4 RR 117-19). Moreover, Sgt. Clawson came to speak with Soffar privately
184
when other officers had hit a “brick wall” with Soffar. (4 RR 131-32). Under “the
totality of the circumstances,” Soffar invoked his right to counsel. Ochoa, 573 S.W.2d at
800-801; Stanton, 953 S.W.2d at 834-835. Because any reasonable police officer would
have interpreted Soffar’s statements as a request for counsel, the police were prohibited
from interrogating him until counsel was present. Miranda, 384 U.S. at 473-74. The
subsequent statements Soffar signed without counsel should have been suppressed.
The request for counsel Soffar conveyed to Clawson (his sometime handler) during an entire conversation about
getting an attorney was far clearer than the isolated and ambiguous statement in Davis, 512 U.S. at 462 (finding
insufficient invocation of right to counsel where suspect merely said once, “Maybe I should talk to a lawyer,” and
thereafter clarified that he did not want a lawyer).
103

(c) The police violated Soffar’s Fifth Amendment rights by continuing their
custodial interrogation after he invoked his right to remain silent.
Hitting a “brick wall” with Soffar, (4 RR 131-32), Sgt. Clawson recorded in his
written report that Soffar “refused to talk.” (5 CR 1296). See also (7 RR 91 (“Max
stopped talking to” Det. Schultz and to Sgt. Clawson)). A defendant invokes his right to
cut off questioning during custodial interrogation merely by indicating that he does not
185
want to answer questions. See, e.g., Michigan v. Mosley, 423 U.S. 96, 101-02 (1975).
Once Soffar invoked that right, the police were obligated to “‘scrupulously honor’” it.
Maestas v. State, 987 S.W.2d 59, 61-62 (Tex. Crim. App. 1999) (quoting Mosley, 423 U.S.
at 103-04). Instead, the police sent Sgt. Clawson, whom Soffar trusted, to continue the
interrogation despite Soffar’s invocation of his right to remain silent. The resulting signed
statements obtained thereafter should have been suppressed as a violation of Soffar’s Fifth
Amendment rights.
(d)
Under Texas law, the police were required to clarify whether Soffar wanted
counsel, if his invocation was ambiguous.
If this Court determines that Soffar did not invoke his right to counsel with
sufficient clarity under Davis, supra, it should hold as a matter of Texas law that the police
186
were required to clarify whether Soffar wanted counsel. Texas has a long history of
185
See also Kelly v. Lynaugh, 862 F.2d 1126, 1130-31 (5th Cir. 1988) (holding that a suspect invoked his right to
remain silent by declining to talk); Hearne v. State, 534 S.W.2d 703, 704 (Tex. Crim. App. 1976) (finding Miranda
violation where the accused did not want to talk to a police officer, but the police officer persisted in questioning the
accused until the accused confessed).
186
See, e.g., State v. Chew, 695 A.2d 1301, 1316-18 (N.J. 1997) (requiring police officers to clarify an ambiguous
request for counsel or cease questioning as a matter of New Jersey constitutional law); State v. Hoey, 881 P.2d 504,
523 (Haw. 1994) (adopting four-judge concurrence in Davis which would require police to clarify an ambiguous
request for counsel or cease questioning as a matter of Hawaiian constitutional law).
104

protecting the rights of suspects during custodial interrogation. The Texas legislature has
codified Miranda and, long before Miranda, required that suspects be forewarned that
187
their statements could be used against them.
This Court should continue its strong protection of the rights of suspects during
custodial interrogation, hold that Texas constitutional and statutory law required the police
to cease questioning or clarify whether Soffar wanted counsel, and suppress his
statements. See Tex. Const. Art. I, § 10; TEX. CODE OF CRIM. PROC. Art. 38.22.
(e) Soffar’s statements were involuntary and should have been suppressed.
To be voluntary, a confession must be “the product of an essentially free and
unconstrained choice.” Culombe v. Connecticut, 367 U.S. 568, 602 (1961). See also U.S.
Const. amends. V; XIV. To determine the voluntariness of a statement, courts look to the
totality of the circumstances surrounding the statement. Jurek v. Estelle, 623 F.2d 929,
939 (5th Cir. 1980); Penry v. State, 903 S.W.2d 715, 748 (Tex. Crim. App. 1995).
The totality of the circumstances here shows that: 1) the police knew that they were
188
dealing with a “child-like” suspect, with a poor grasp of reality, who was accustomed to
seeking approval from authority figures as an informant; 2) when the police hit a “brick
wall” in the interrogation, they sent in the officer whom Soffar trusted the most, Sgt.
Clawson, his handler when he acted as an informant; 3) Soffar asked about his right to
counsel and only signed statements after being misled about that right;
187
White v. State, 289 S.W.2d 279, 281 (Tex. Crim. App. 1956) (citing, inter alia, TEX. CODE OF CRIM. PROC. Art.
727; Reese v. State, 151 S.W.2d 828, 839 (Tex. Crim. App. 1941) (citing McVeigh v. State, 62 S.W. 757, 757 (Tex.
Crim. App. 1901))).
188
The United States Supreme Court has recognized that mental illness is a significant factor in the voluntariness
calculus. Colorado v. Connelly, 479 U.S. 157, 181 (1986); see also Jurek, 623 F.2d at 937.
105

4) Soffar was isolated in police custody during three days of on and off interrogation;
5) Soffar was intoxicated when he first mentioned the bowling-alley murders and was
coming down from the intoxication near the time the police hit the “brick wall;” 6) Soffar,
who was ordinarily paid for his information, knew about the reward money for
information about the robbery murders; and 7) Soffar’s third statement, in which he made
a detailed claim that he and Bloomfield were responsible for the robbery murders, was
dramatically different from his earlier statements that only Bloomfield was responsible,
substantially increased the possibility that he would be subjected to the death penalty, and
occurred only after the police purposefully notified Soffar that they had released
Bloomfield in an apparent attempt to goad Soffar into providing more information.
These circumstances directly mirror the circumstances under which the United States
Court of Appeals for the Fifth Circuit came to the “inescapable conclusion” that a
“mentally deficient” defendant’s confession was involuntary. Jurek, 623 F.2d at 942.
Soffar’s confession, too, was involuntary and should have been suppressed.
Harmless Error Analysis. Soffar’s signed statements were the lynchpin of the case
against him. Without them, there was absolutely no proof of his involvement in the
robbery murders. The court’s unconstitutional admission of his statements was clearly not
harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.
Appellant’s Eleventh Point of Error
The trial court committed reversible error by admitting Appellant’s alleged oral
statements in violation of Texas Code of Criminal Procedure 38.22.
106

Following Appellant’s second putative statement to the police, the police took
Appellant to two bowling alleys: (1) the Fairlanes-Bunker Hill; and (2) the Fairlanes-
Windfern, where the robbery murders had taken place. They went to Bunker Hill to “see
what his reaction would be,” (30 RR 151), and Appellant allegedly stated “that this did not
look like the right place.” (30 RR 152). The police then took Appellant to the Fairlanes-
Windfern “to see what his reaction would be,” and Appellant allegedly said that “this
looked like the correct location.” (30 RR 152-53). Because these oral statements resulted
from custodial interrogation and were not recorded, as required by TEXAS CODE OF
CRIMINAL PROCEDURE Article 38.22 § 3 (a)(1), the trial court erred in admitting them into
189
evidence over the defense’s objections. (30 RR 151, 153). See also (31 RR 70).
Under Texas statutory law, “[n]o oral [] statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal proceeding
unless [] an electronic recording . . . is made of the statement.” TEX. CODE CRIM. PROC.
Art. 38.22 § 3 (a) (1). The police admitted to purposely eliciting Appellant’s putative oral
statements at the two bowling alleys during the course of a “tour” designed to collect
evidence. (30 RR 150-53). Thus, the oral statements were the product of custodial
interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); Bush v. State, 697
S.W.2d 397, 403 (Tex. Crim. App. 1985) (finding custodial interrogation because “trip in
189
Although defense counsel did not cite the recording requirement of Article 38.22 chapter and verse and failed to
object the second time the oral statements were erroneously admitted, (31 RR 70), he certainly placed the court on
notice of the problem with admitting these oral statements in the first instance. To the extent that this Court finds
otherwise, it should find defense counsel ineffective because there could be no strategic reason for this error. See
Appellant’s Twentieth Point of Error.
107

190
whole appeared to be geared to obtaining this information from the appellant”).
These oral statements were not recorded (30 RR 176-78), and “the trial court erred
in permitting [their] introduction as direct evidence of appellant’s guilt.” Wortham v. State,
704 S.W.2d 586, 589 (Tex. App. – Austin 1986, no pet.). Given the extraordinarily weak
nature of the prosecution’s case, the prosecution’s reliance on these oral statements in
summation, (35 RR 24, 61, 83, 85-86, 88), and that nothing was done to cure the error, the
error of admitting this evidence was not harmless. Anderson, 182 S.W.3d at 918-19.
Appellant’s Twelfth Point of Error
The prosecution deprived Appellant of a fair trial by making several factually
inaccurate or misleading arguments to the jury.
The prosecution’s misleading lines of argument at Soffar’s trial violated his
constitutional right to due process of law and to a fair trial on several grounds, including:
191
1) they misrepresented the truth, see Napue v. Illinois, 360 U.S. 264, 269-72 (1959); and
2) they impermissibly shifted the burden of proof to Soffar to prove that his statements
were unreliable and that someone else committed the crimes. See, e.g., McKenzie v. State,
190
See also United States v. Webb, 755 F.2d 382, 389 (5th Cir. 1985) (finding statements not involving express
questioning “reasonably likely to elicit an incriminating response, and [the officer] should have known that such a
response was reasonably likely”); Drury v. State, 793 A.2d 567, 571 (Md. 2002) (confronting accused with physical
evidence of crime is functional equivalent of interrogation); People v. Ferro, 472 N.E.2d 13, 17 (N.Y. 1984) (same).
191
See also Miller v. Pate, 386 U.S. 1, 6-7 (1967) (granting writ of habeas corpus where prosecutor falsely argued to
jury, and presented evidence, that paint on article of clothing was actually blood); Giglio v. United States, 405 U.S.
150, 153 (1959) (similar); Mooney v. Holohan, 294 U.S. 103, 112-14 (1935); United States v. Blueford, 312 F.3d
962, 968 (9th Cir. 2002) (“[I]t is decidedly improper for the government to propound inferences that it knows to be
false, or has very strong reason to doubt[.]”); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993)
(granting new trial because prosecutor misled jury); United States v. Dailey, 524 F.2d 911, 917 (8th Cir. 1975)
(same); Periu v. State, 490 So. 2d 1327, 1328-29 (Fla App. 3d Dist. 1986) (same); People v. Moya, 529 N.E.2d 657,
659 (Ill. App. 1 Dist. 1988) (reversing where “prosecutor argued that defendant's mother was not in court because
she did not want to lie on his behalf,” when, in fact, the defense had been precluded from explaining her absence).
108

617 S.W.2d 211, 221 (Tex. Crim. App. 1981); See also U.S. Const. amends. V, VI, XIV.
The prosecution’s argument fell far outside the permissible bounds of proper argument.
See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Moreover, the court
violated Max Soffar’s right to due process of law when it condoned the prosecution’s
improper argument over defense objection. (35 RR 82). 192
First, during summation, the prosecution misled the jury by arguing that “with this
well prepared defense if” mental health records existed to support the defense contention
that Soffar had been admitted to Austin State Mental Hospital because of a mental
problem, “we would have them” and that Soffar’s commitment was a “criminal”
commitment. (35 RR 82). In fact, the prosecution knew full well that such records existed
and that the commitment was non-criminal: it had cited directly to Soffar’s Austin State
193
medical records in its pretrial submissions. (8 CR 2205, 2394).
Second, after precluding defense evidence that the media broadcast details about
the crime, see Appellant’s Fourth Point of Error, the prosecution argued to the jury that the
confession was credible because Soffar knew details known only to the perpetrator. (35
194
RR 11, 22-23). Third, unfairly capitalizing on the preclusion of the Paul Reid evidence,
the prosecution argued in summation that the defense “didn’t bring you any evidence that
192
Although the defense did not object to the prosecution remarks that only the perpetrator could have known the
details in Soffar’s putative confession and that the defense presented no evidence of an alternative perpetrator, these
errors are not waived because the prosecution’s argument was “so egregious that no instruction to disregard could
possibly cure the harm.” Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989).
193
Soffar’s Austin State Mental Hospital records were introduced in the penalty phase of the trial as a joint exhibit.
(45 RR Joint Exhibit No. P-1). The records establish that the commitment was civil. Id.
194
See, e.g., Paxton v. Ward, 199 F.3d 1197, 1213 (10th Cir. 1999) (granting habeas corpus relief where
prosecutor’s “objections had prevented” defendant from presenting evidence which the prosecutor later argued in
summation that the defendant should have offered if his defense were credible).
109

someone other than the Defendant committed this crime.” (35 RR 9). Fourth, the
prosecution improperly commented on Soffar’s failure to testify with its comment about
Soffar’s failure to adduce evidence of a third party’s guilt and its claim that Soffar “didn’t
195
bring . . . any evidence that [he] falsely confessed to this. Id.
Because the prosecution’s evidence was thin and the issues of the reliability of the
confession and identity of the perpetrator were central, the court’s error was not harmless
under any standard. Chapman, 386 U.S. at 24; Anderson, 182 S.W.3d at 918-19.
Appellant’s Thirteenth Point of Error
(a) The trial court committed reversible error by refusing to instruct the jury that it
should disregard Appellant’s putative confession if the State failed to prove he
waived his right to remain silent and to counsel during custodial interrogation.
(b) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s putative confession if it found the confession untruthful.
(c) The trial court committed reversible error by refusing to instruct the jury to
disregard Soffar’s putative confession if it found that intoxication rendered his
confession involuntary.
(d) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s confession if it was the fruit of an illegal police threat.
(e) The trial court committed reversible error by refusing to instruct the jury not to
hold against Appellant any delay in prosecuting this case.
(f) The trial court committed reversible error by refusing to instruct the jury that it
could draw an adverse inference against the State if its explanation for losing
important evidence was inadequate.
(g) The trial court denied Max Soffar his constitutional right to avoid ex post facto
punishment by refusing to instruct the jury on the more demanding standard of
proof for circumstantial evidence applicable at the time of the crime.
“[A] defendant is entitled to an instruction on every issue raised by the evidence,
whether produced by the State or the defendant, and whether it be strong, weak,
195
See also Griffin v. California, 380 U.S. 609 (1965) (forbidding comment on defendant’s failure to testify on Fifth
Amendment grounds); Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987) (same).
110

unimpeached, or contradicted.” Thompson v. State, 521 S.W.2d 621, 624 (Tex. Crim. App.
1974). Ignoring this principle, the trial committed reversible errors by refusing to instruct
the jury on the issues set forth below in violation of Soffar’s constitutional rights to
present a defense and to due process of law, as well as Texas statutory law. See U.S.
196
Const. amends. VI, XIV; Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999).
(a) The trial court committed reversible error by refusing to instruct the jury that it
should disregard Appellant’s putative confession if the State failed to prove he
waived his right to remain silent and to counsel during custodial interrogation.
TEXAS CODE OF CRIMINAL PROCEDURE Art. 38.22 § 7 requires trial judges to
instruct the jury that the prosecution must prove a defendant’s knowing, voluntary, and
intelligent waiver of his Miranda rights beyond a reasonable doubt, if the issue is raised by
197
the evidence. See, e.g., White v. State, 779 S.W.2d 809, 827 (Tex. Crim. App. 1989). A
trial court’s refusal to do so when requested by the defense is reversible error. See White
v. State, 289 S.W.2d 279, 281 (Tex. Crim. App. 1956); Bandy v. State, 159 S.W.2d 507,
508 (Tex. Crim. App. 1942).
Here, the evidence clearly raised an issue as to the validity of the Soffar’s waiver of
his right to counsel and to remain silent. When the police “hit a brick wall” during
Soffar’s custodial interrogation because he refused to talk (43 RR Defense Exhibit 25),
they asked Sgt. Clawson – who knew Soffar as an informant – to persuade him to talk. (29
196
Defense counsel preserved these claims. (14 CR 4083-4103; 34 RR 3-11). The standard of review applied to a
“trial court’s decision to deny a requested defensive instruction . . . [requires appellate courts to] view the evidence
in the light most favorable to the defendant’s requested submission,” rather than applying “the usual rule of appellate
deference to trial court rulings.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006) (emphasis added).
197
See also Corwin v. State, 870 S.W.2d 23, 34 n.15 (Tex. Crim. App. 1993); Moon v. State, 607 S.W.2d 569, 571
(Tex. Crim. App. 1980); TEX. CRIM. JURY CHARGE § 12:900.14.
111

RR 182-83, 187-88). Soffar asked Sgt. Clawson a series of questions about his right to
counsel, (29 RR 114-17), and Sgt. Clawson provided “misleading” answers, Soffar, 300
F.3d at 596, including telling Soffar that it could take up to a month to get an appointed
lawyer. (29 RR 115). See also Appellant’s Tenth Point of Error.
Even if this Court should disagree with Appellant’s Tenth Point of Error, the
validity of Soffar’s purported waiver of his right to remain silent and to counsel remained
a factual issue for the jury under Texas law. Three judges on the Fifth Circuit found
Soffar’s waiver invalid, Soffar, 300 F.3d at 609-10 (DeMoss, J., dissenting), and the split
in the Fifth Circuit undeniably demonstrates that reasonable jurors could have found that
the State failed to prove that such waivers were valid beyond a reasonable doubt. The trial
court erred by refusing to submit this issue to the jury. (14 CR 4092).
Because Soffar suffered far more than “some harm” from the court’s instructional
error, and because his putative confession was the lynchpin of the prosecution’s case, this
error was not harmless under any standard. Chapman, 386 U.S. at 24; Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Reversal is required.
(b) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s putative confession if it found the confession untruthful.
When the credibility of a defendant’s confession is central to his claim of
innocence, the jury must be permitted to pass on the credibility of the confession. See U.S.
Const. amends. VI; XIV; Crane, 476 U.S. at 690; Myre v. State, 545 S.W.2d 820, 825
112

198
(Tex. Crim. App. 1977). Failure to instruct the jury that it must find a confession “true
[and] correct” is error. Anzaldua v. State, 502 S.W.2d 19, 23 (Tex. Crim. App. 1973).
Here, evidence of Soffar’s overall lack of credibility, his false confessions to burglarizing
the bowling alley the night before the robbery murders and to committing other robberies
with Bloomfield, and the dramatic inconsistencies between his putative confession and the
other evidence warranted such an instruction. By refusing to instruct the jury on this issue,
(9 CR 2458; 34 RR 3), the trial court deprived Appellant of his constitutional right to
present a defense, United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir. 1979), and
deprived the jury of the guidance it needed to do its job. Because Soffar’s conviction is
rooted in his confession and because the court’s failure to give this instruction severely
harmed Soffar’s defense that the confession was false, the court’s error was not harmless
under any standard.
(c) The trial court committed reversible error by refusing to instruct the jury to
disregard Soffar’s putative confession if it found that intoxication rendered his
confession involuntary.
An instruction that the jury must disregard a confession rendered involuntary by
intoxication, when raised by the evidence, is crucial to a jury’s decision on voluntariness.
See, e.g., Murray v. State, 505 S.W.2d 589, 592 (Tex. Crim. App. 1974); TEX. CRIM. JURY
CHARGE. § 12.900.13. Here, the evidence clearly raised the issue of whether Soffar was
intoxicated. Soffar stated during his initial interview with Det. Schultz that he was then
198
See also Wilson v. State, 451 So. 2d 724, 726 (Miss. 1984) (noting defendant’s right to “have the jury pass upon
the factual issues of [confession’s] truth and voluntariness and upon its weight and credibility”) (emphasis added)
(citation omitted).
113

“coming down” from a narcotic high. (30 RR 55-55). The trained police officer who
arrested Soffar stated that he had blood-shot eyes and slurred speech, and that he smelled
of alcohol. (29 RR 49-50). The officer suspected that Soffar was under the influence of
alcohol and some type of drug. (29 RR 42-43). These undisputed facts raised the issue of
intoxication. Thus, an instruction on the effect of intoxication on the voluntariness of
Soffar’s statements was required.
See Thompson, 521 S.W.2d at 624. The court erred in
refusing to issue this instruction. (14 CR 4089). The error caused more than “some
harm,” Almanza, 686 S.W.2d at 171, and is not harmless under any standard. Properly
instructed, the jury could have disregarded Soffar’s initial statement on August 5, 1980,
and any fruits thereof, including his subsequent statements.
(d) The trial court committed reversible error by refusing to instruct the jury to
disregard Appellant’s confession if it was the fruit of an illegal police threat.
Soffar told Det. Schultz that another officer had given him “a little verbal threat”
during his interrogation. (43 RR State’s Exhibit 1A at 22). TEXAS CODE OF CRIMINAL
PROCEDURE Art. 38.23 forbids the introduction of a confession (or any fruits thereof)
obtained through violations of Texas or federal law. Threatening a defendant to obtain a
confession violates both Texas and federal law, see. e.g., Miranda, 384 U.S. at 476, and
when evidence showing a threat is introduced, an instruction on this issue is required. See,
e.g., Patterson v. State, 847 S.W.2d 349, 351-53 (Tex. App. – El Paso 1983, pet. ref’d).
See also TEX. CRIM. JURY CHARGE § 12:900.16. Because the threat issued to Soffar
undoubtedly contributed to his decision to make a statement, the court’s erroneous refusal
114

to instruct the jury on this issue was reversible error under any standard.
(e) The trial court committed reversible error by refusing to instruct the jury not to
hold against Appellant any delay in prosecuting this case.
Max Soffar was tried in 2006 for a 1980 crime. Because the jury might well have
improperly inferred that Soffar caused this 26-year delay, the defense requested that the
jury be instructed not to hold any delay in prosecuting the case against him. (14 CR
4086). The prosecution did not oppose this instruction, so long as the State was not
blamed for the delay. (34 RR 5-9). The trial court, however, refused this instruction. (34
RR 9). By so doing, the court created an impermissible risk of prejudice to Appellant,
199
denying him a fair trial on the facts in evidence. See U.S. Const. amends. VI; XIV.
This error was not harmless under any standard.
(f) The trial court committed reversible error by refusing to instruct the jury that it
could draw an adverse inference against the State if its explanation for losing
important evidence was inadequate.
In Youngblood, 488 U.S. at 57-58, the Court held that the State’s loss of potentially
exculpatory evidence is not a due process violation unless the defense proves the loss was
caused by the State’s bad faith. Id. The instruction given in Youngblood informed the jury
that if it “found the State had destroyed or lost evidence, they might ‘infer that the true fact
is against the State’s interest.’” Id. at 54 (quoting trial transcript). Because the State lost or
destroyed important evidence in this case without an adequate explanation, (8 RR 325-41;
26 RR 183-87; 27 RR 90-91; 7 CR 1978), the defense requested an instruction, similar to
199
Cf. Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989) (“Upon a timely request, a defendant who
does not testify during the punishment phase is entitled to an instruction that the jury is not to draw any adverse
inference from his failure to testify.”).
115

the one given in Youngblood that required the jury to “weigh the explanation, if any, given
for the loss or unavailability of the evidence” and to draw an “inference unfavorable to the
200
State” if it found that “any such explanation [was] inadequate.” (14 CR 4102). Asking
201
jurors to draw such an inference here was a legitimate defense raised by the evidence.
As but one example, while the State attempted to argue that Garner was confused or
suffering from amnesia during his police interviews, (28 RR 113-15; 35 RR 91), it lost
crucial evidence with a tendency to resolve this conflict – the actual tapes of Garner’s
interviews. (8 RR 35-41). Appellant should have received the benefit of a fair jury
instruction on whether the jury could infer that the tapes were favorable to the defendant if
it found the State’s explanation inadequate. The trial court’s erroneous preclusion of this
instruction denied Appellant his constitutional right to due process and to present a
defense, and was not harmless under any standard. See U.S. Const. amends. VI; XIV.
(g) The trial court denied Max Soffar his constitutional right to avoid ex post-facto
punishment by refusing to instruct the jury on the more demanding standard of
proof for circumstantial evidence applicable at the time of the crime.
In Soffar’s 1981 trial, the jury was given a circumstantial evidence instruction, as
was then required under Texas law for cases like this one, built upon circumstantial
evidence. See Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981) (abolishing
200
The Youngblood instruction is a version of standard instruction in Arizona. See, e.g., State v. Tucker, 759 P.2d
579, 588 (Ariz. 1988) (citing State v. Willits, 393 P.2d 274 (1964)).
201
See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721-22 (Tex. 2003) (citing “roots going back to the
English common law” and “Texas jurisprudence for over a century,” for the proposition that a “jury instruction
regarding spoliation is proper when a party has deliberately destroyed evidence or has failed to either produce
relevant evidence or explain its nonproduction”) (emphasis added).
116

202
circumstantial evidence charge). The circumstantial evidence charge requires that “all
the facts (that is, the facts necessary to the conclusion) must be consistent with each other
and with the main fact sought to be proved” and that the prosecution’s evidence “exclude,
to a moral certainty, every other reasonable hypothesis except the Defendant’s guilt.” (14
CR 4083 (quoting instruction from 1981 trial)). The trial court refused Appellant’s request
for this circumstantial evidence instruction, id., and instead told the jury to require proof
beyond a reasonable doubt, without defining that standard. (14 CR 4111).
202
This Court decided Hankins in November of 1981. Soffar was convicted on March 31, 1981.
203
The Ex Post Facto Clause of the United States Constitution forbids states from
applying laws which “alter[] the legal rules of evidence, and receive[] less, or different,
testimony, than the law required at the time of the commission of the offence, in order to
convict the offender.” Carmell v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v.
Bull, 3 U.S. 386, 390 (1798) (explaining U.S. Const., Art. I, § 10)). At the time of the
offense in 1980, the burden of proof for cases built solely on circumstantial evidence
required all of the facts to be consistent and the exclusion to “a moral certainty” of every
“reasonable hypothesis except the defendant’s guilt.” (14 CR 4083). Under the standard
applied at Appellant’s 2006 trial, however, the prosecution was neither required to prove
203
that all of the facts were consistent nor required to exclude to a moral certainty every
reasonable hypothesis except guilt. This standard of proof is more “‘rigorous.’” Hankins,
646 S.W.2d at 198 (quoting State v. LeClair, 425 A.2d 182, 184 (Me. 1981)). The court’s
The facts of this case amply demonstrate why requiring all of the facts to be consistent is a higher burden of
proof than that required in non-circumstantial cases. Given the dramatic difference between Garner’s statements and
those attributed to Soffar, the prosecution might well have failed to meet this standard in the retrial, even if it
technically met the lesser burden of merely showing proof beyond a reasonable doubt.
117

efusal to instruct the jury on circumstantial evidence lowered the prosecution’s burden of
proof from that required at the time of the offense, and violated the Ex Post Facto Clause
of the United States Constitution.
Because this constitutional error constituted a structural defect in the trial, reversal
is automatic. Arizona v. Fulminante, 499 U.S. 279, 309 (1991). In the alternative, the
prosecution cannot prove that the error was harmless beyond a reasonable doubt,
Chapman, 386 U.S. at 24, because it was impossible to eliminate every reasonable
hypothesis except the defendant’s guilt and to show that all of the facts are “consistent
with each other and with the main fact sought to be proved.” (14 CR 4083).
Appellant’s Fourteenth Point of Error
(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights to
present relevant mitigating evidence under a residual doubt theory by precluding
evidence that Paul Reid was responsible for the Fairlanes robbery murders.
(b) The court deprived Appellant of his rights under Texas law to present mitigating
evidence under a residual doubt theory by precluding evidence that Paul Reid was
responsible for the Fairlanes robbery murders.
(c) The court deprived Appellant of his constitutional rights to present powerful
mitigating evidence when it precluded the introduction of sworn affidavits from
witnesses who had died since the first trial.
(d) The court deprived Appellant of his constitutional right to present relevant
mitigating and rebuttal evidence when it repeatedly precluded such evidence.
The trial court violated Max Soffar’s constitutional rights and rendered his
sentencing phase fundamentally unfair when it precluded the categories of mitigating
evidence set forth in the subheadings above.
Law of General Applicability. In Tennard v. Dretke, the Court reiterated that “a
State cannot preclude the sentencer from considering any relevant mitigating evidence that
118

the defendant proffers in support of a sentence less than death . . .” 542 U.S. 274, 285
(2004) (internal quotation marks and citation omitted)). Relevant mitigating evidence
includes “any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). Once this “low threshold for
relevance is met, the ‘Eighth Amendment requires that” such evidence be admitted.
Tennard, 542 U.S. at 285 (quoting Boyde v. California, 494 U.S. 370, 377-378 (1990)).
In Green v. Georgia, after the defendant had been convicted of capital murder, he
sought during the sentencing phase to introduce a statement that his confederate had made
to a third party that he (the confederate) had alone committed the murder (i.e., without the
defendant). 442 U.S. 95, 97 (1979). The trial court precluded admission of the statement
as hearsay, and the defendant was sentenced to death. Id. The United States Supreme
Court noted that the confession was reliable, reaffirmed its holding in Chambers that the
Constitution forbids states from “‘mechanistically’” applying the hearsay rule “‘to defeat
the ends of justice,’” and held that the Constitution prohibited the State from barring use of
the confession at the defendant’s capital sentencing hearing. Green, 442 U.S. at 97
(quoting Chambers, 410 U.S. at 302). See also United States v. Fields, __ F.3d __, 2007
WL 926864, * 14 (5th Cir. Mar. 29, 2007) (holding that Confrontation Clause does not
apply to capital sentencing proceedings because of the “particular importance of
individualized sentences in capital cases[;] we will not free freeze the evidential procedure
of sentencing in the mold of trial procedure where, as here, challenged testimony is
119

elevant only to a sentencing authority’s selection decision”) (internal quotation marks and
204
citation omitted).
(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights to
present relevant mitigating evidence under a residual doubt theory by precluding
evidence that Paul Reid was responsible for the Fairlanes robbery murders.
The trial court violated Soffar’s constitutional right to present all relevant
mitigating evidence when it precluded him from introducing evidence that Paul Reid
committed the bowling alley murders at the sentencing phase of Soffar’s trial – including
Reid’s admission to shooting four people in a bowling alley on Route 290 and his modus
operandi in crimes strikingly similar to the Fairlanes robbery murders. (37 RR 38-41).
The Supreme Court recently left open whether capital defendants have a
constitutional right to introduce residual doubt evidence at sentencing. Oregon v. Guzek,
205
546 U.S. 517, 126 S. Ct. 1226 (2006). In Guzek, the Court declined to answer that
question because, inter alia, the defendant had an opportunity to present the evidence
during the guilt phase but did not do so. Id. at 1233. By contrast, Soffar was prohibited
from introducing the Reid evidence at the guilt phase of his trial. See Appellant’s First,
Second, and Third Points of Error, supra. Thus, Soffar’s case squarely presents the
question left open in Guzek. The answer must be that defendants have a constitutional
204
The standard of review for the preclusion of mitigation evidence, a constitutional and legal issue not involving a
credibility determination, is de novo. Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d at 87.
205
In 2003, this Court cited the plurality opinion in Franklin v. Lynaugh, 487 U.S. 164, 167 (1988), for the
proposition that the “federal constitution does not require reconsideration by capital sentencing juries of ‘residual
doubts’ about a defendant’s guilt.” Blue v. State, 125 S.W.3d 491, 502 (Tex. Crim. App. 2003) (citing Franklin).
The Blue decision was before the Supreme Court in Guzek clarified that “Franklin did not resolve whether the
Eighth Amendment affords capital defendants such a right.” Guzek, 126 S. Ct. at 1232. Moreover, in Blue, this
Court did not address whether a defendant may introduce evidence of residual doubt or argue its significance to the
jury because the defendant in that case was permitted to do both. 125 S.W.3d at 502-03.
120

ight to present reliable evidence of innocence at the sentencing phase when the defense
was unable to present such evidence during the guilt phase, through no fault of its own.
Any other rule would violate the Eighth Amendment and offend “the evolving standards
of decency that mark a maturing society,” Roper v. Simmons, 543 U.S. 551, 561 (2005).
Under the constitution, capital defendants must be allowed to introduce reliable 206
evidence tending to establish residual doubt during capital sentence proceedings if they
attempted and were unable to introduce the evidence at the guilt phase. This rule,
moreover, is constitutionally required in Texas where, to secure a sentence of death, the
state must prove future dangerousness, i.e. that “there is a probability that the defendant
would commit criminal acts of violence that would constitute a continuing threat to
society.” TEX. CODE CRIM. PROC. Art. 37.071, § 2 (b)(1). Any evidence offered by the
defense tending to disprove such future dangerousness – including evidence that the
defendant was not guilty – would certainly be relevant and admissible in a Texas
sentencing proceeding. Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986).
This Court should hold under the federal constitution that the preclusion of relevant
mitigation evidence in a capital sentencing hearing is structural error and can never be
207
harmless. See Nelson v. Quarterman, 472 F.3d 287, 314-15 (5th Cir. 2006). See also
206
Like the unconstitutionally-precluded evidence in Green, 442 U.S. at 97, the Reid evidence the defense sought to
introduce was reliable. Appellant incorporates by reference all of the previous arguments demonstrating its
reliability and admissibility, set forth in Appellant’s First, Second, and Third Points of Error, as though set forth
completely in the present point of error.
207
See also Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood
and Misapplied, 28 Ga. L. Rev. 125, 149 (1993); Louis D. Bilionis, Moral Appropriateness, Capital Punishment,
and the Lockett Doctrine, 82 J. Crim. L. & Criminology 283, 316-326 (1991) (explaining that Lockett violation can
never be harmless). See also State v. Kleypas, 40 P.3d 139, 272-73 (Kan. 2001) (similar), overruled on other
grounds, State v. Marsh, 102 P.3d 445 (Kan. 2004), rev’d on other grounds, Kansas v. Marsh, 544 U.S. 1060
(2006). Although this Court recently indicated that the preclusion during the sentencing phase of relevant mitigation
121

U.S. Const. amends. VIII; XIV; Tex. Const. Art. I, §§ 10, 13. In the alternative, because
the State cannot prove beyond a reasonable doubt that the jury would have sentenced
Soffar to death if it had known about the Reid evidence, his death sentence must be set
aside. Chapman, 386 U.S. at 24.
(b) The court deprived Appellant of his rights under Texas law to present mitigating
evidence under a residual doubt theory by precluding evidence that Paul Reid was
responsible for the Fairlanes robbery murders.
In the alternative, this Court should hold under Texas statutory and constitutional
law that residual doubt evidence is admissible at the sentencing phase of a capital trial.
See Tex. Const. art I, §§ 10, 13, 19; TEX. CODE. OF CRIM. PROC. 37.0711 § 3 (e). This
Court is not bound by the Supreme Court’s decisions on the issue of residual doubt, see
Hulit, 982 S.W.2d at 437, and should follow numerous of its sister jurisdictions in
208
allowing defendants to present residual doubt evidence in mitigation. Texas’s interests
in minimizing the possibility of executing an innocent person would be served by
permitting residual doubt evidence at capital sentencing trials under Texas law. This
evidence can be harmless, Halprin v. State, 170 S.W.3d 111, 116 (Tex. Crim. App. 2005), it did so without any
analysis of this question and only as an alternative holding to the primary holding that the preclusion of the
mitigation evidence was not error. Accordingly, the persuasive authorities cited above, including the recent Fifth
Circuit decision cited in the text, and not Halprin, should be followed.
208
See, e.g., Smith v. Black, 904 F.2d 950, 968-69 (5th Cir. 1990); United States v. Honken, 378 F. Supp. 2d 1040,
1041 (N.D. Iowa 2004) (and cases cited therein); United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001)
(same); State v. Webb, 680 A.2d 147, 188-189 (Conn. 1996); Barnes v. State, 496 S.E.2d 674, 688 (Ga. 1998)
(holding that “evidence that concerns the defendant’s guilt or innocence cannot be excluded by the trial court, even
though a guilty verdict has already been rendered in the guilt/innocence phase”); State v. Hartman, 42 S.W.3d 44,
53-56 (Tenn. 2001) (reversing defendant’s death sentence due to preclusion of residual doubt evidence). See also
Recommendation 2, Chap. VII, Duty of Judge and Role of Jury, Mandatory Justice: Eighteen Reforms to the Death
Penalty, The Constitution Project, (judge should instruct jury that it may consider lingering doubt as mitigating
factor) (http://pewforum.org/deathpenalty/resources/reader/23.php3) (last visited April 19, 2007); Stephen P.
Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563
(1998) (demonstrating that “‘[r]esidual doubt’ over the defendant’s guilt is the most powerful ‘mitigating’ fact’” for
juries considering a death sentence).
122

Court should set aside Soffar’s death sentence because the exclusion of the Reid evidence
cannot be deemed harmless under any standard.
(c) The court deprived Appellant of his constitutional rights to present powerful
mitigating evidence when it precluded the introduction of sworn affidavits from
witnesses who had died since the first trial.
Had Zelda Soffar been alive for her son’s retrial in 2006, she would have testified at
the sentencing phase about Soffar’s psychological, toxin-sniffing, and academic problems,
important information which ineffective counsel did not elicit in the first trial. (45
Defense Punishment Exhibit 14 (affidavit of Ms. Soffar)). Carl Amdur, Soffar’s maternal
uncle, was also dead by the time of the retrial and had similarly executed an affidavit 209
about Soffar’s difficult upbringing, psychological problems, and toxin sniffing as a child.
210
(45 Defense Punishment Exhibit 12)). The trial court violated Appellant’s constitutional
211
rights by refusing his request to introduce these witnesses’ sworn affidavits into
evidence during the sentencing phase. (40 RR 64; 45 Def. Punishment Exhibits 12-13).
See U.S. Const. amends. VI, VIII, XIV.
Rigid application of the hearsay rule cannot be used to block relevant hearsay
evidence. Wiggins, 539 U.S. 510, 537 (2004); Green, 442 U.S. at 97. Moreover, due
process of law and basic fairness demand an equitable solution when a litigant is unable to
209
The affidavit establishes that Soffar’s original trial attorneys never contacted Amdur. (7 CR 2120).
210
Soffar objected on Sixth, Eighth and Fourteenth Amendment grounds to the prosecution seeking the death
penalty twenty-six years after the crime because crucial witnesses, including Carl Amdur and Zelda Soffar, had died.
(2 CR 500, 532-44). The trial court overruled this objection. (9 RR 19-20). See also Appellant’s Twenty-Second
Point of Error (proffer brief).
211
In other contexts, this Court has generally viewed sworn affidavits as reliable evidence. See Cates v. State, 120
S.W.3d 352, 355 (Tex. Crim. App. 2003) (setting forth requirement for evidentiary hearing on validity of warrant).
123

212
protect his rights through no fault of his or her own. Max Soffar was on trial for his life
twenty-six years after the crime and, through no fault of his own, was unable to present
crucial mitigation evidence via the testimony of live witnesses. Basic notions of fairness,
due process of law, and the Eighth Amendment required that the court afford him an
alternative opportunity to present this evidence. Thus, the court’s rulings violated
Appellant’s constitutional rights. The preclusion of relevant mitigation evidence
constitutes structural error and can never be harmless. See Nelson, 472 F.3d at 314-15. In
the alternative, because the precluded mitigation evidence was crucial to Soffar’s defense
against the death penalty, the court’s error was not harmless beyond a reasonable doubt.
Chapman, 386 U.S. at 24.
(d) The court deprived Appellant of his constitutional right to present relevant
mitigating and rebuttal evidence when it repeatedly precluded such evidence.
212
Cf. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002) (noting that new trial for newly discovered
evidence is warranted, inter alia, whenever that evidence was unknown or unavailable through due diligence at the
time of trial).
213
A capital defendant has a constitutional right to present mitigating evidence.
Moreover, when the State creates a false impression about an issue relevant to capital
sentencing, the defense must be permitted to rebut the State’s claim, even if the defense
may only do so through hearsay evidence and even if the defense does not have a Eighth
213
Amendment right to present the evidence. The trial court violated these basic precepts,
and the Eighth and Fourteenth Amendments, by repeatedly blocking Soffar’s attempts to
See Renteria v. State, 206 S.W.3d 689, 697-98 (Tex. Crim. App. 2006) (holding that “with the State having
opened the door to appellant’s remorse evidence, the exclusion of [his hearsay expression of remorse] violated due
process by preventing appellant from rebutting the State’s evidence and argument that appellant was unremorseful”
and citing, inter alia, Skipper v. South Carolina, 476 U.S. 1, 9-15 (1986) (Powell, J., concurring) (finding reversible
error because the defendant “was not allowed to rebut evidence and argument used against him”) (internal quotes
omitted)).
124

introduce relevant mitigating evidence and evidence introduced to rebut the prosecution’s
case for death:
• 36 RR 98-100 (precluding testimony from probation officer trained in rehabilitation and
214
treatment that Appellant needed in-house psychiatric treatment as a child);
• 37 RR 36-37; 14 CR 4122-23 (precluding evidence that the State’s method of execution
would cause undue pain and suffering by using a three-drug protocol previously outlawed
for the euthanasia of animals);
• 38 RR 46-47 (precluding testimony from Soffar’s cousin concerning whether Soffar had
contact with his rabbi and Soffar’s feeling about his sentence of death); 215
• 38 RR 52-53 (precluding testimony about conditions at Austin State Hospital, where
Soffar was hospitalized as a child, including details about its cockroach infestation);
•38 RR 75 (precluding testimony that Soffar’s admission records at Gulf Coast Trade
Center reflected heroic acts by Soffar prior to his admission), see Green, 442 U.S. at 97;
•38 RR 109-10 (precluding testimony offered under residual doubt defense, see subpoints
(a) & (b), supra, from trained police officer that police can impart information to suspects
about a crime through interrogation);
• 38 RR 118 (precluding testimony from Soffar’s sister, who attended school with him,
about his poor performance in elementary school);
• 38 RR 130 (precluding testimony from Soffar’s sister concerning why he did not learn
from his mistakes as well as she did);
• 38 RR 160 (precluding testimony from Soffar’s sister concerning why she did better in
school than he did);
214
Although the probation officer was trained and much more familiar with mental health issues than lay persons, it
is perfectly permissible even for lay witnesses with personal knowledge to testify that another person appeared
mentally ill or insane. See, e.g., Bigby v. State, 892 S.W.2d 864, 888-89 (Tex. Crim. App. 1994); Pacheco v. State,
757 S.W.2d 729, 733 (Tex. Crim. App. 1988) (citations omitted).
215
Soffar objected on Sixth, Eighth and Fourteenth Amendment grounds to the prosecution seeking the death
penalty twenty-six years after the crime because crucial mitigating evidence had been lost and crucial witnesses,
including Rabbi Ted Sanders, had died. (2 CR 499, 534). Thus, he had no other means of introducing evidence
about his rabbi. Moreover, evidence of Soffar’s feelings about his sentence of death was not offered for the truth of
the matter asserted but to show his inherent humanity. In any event, under Green, 442 U.S. at 97, the hearsay rule
did not trump Soffar’s Due Process and Eighth Amendment right to present this relevant mitigating evidence.
125

• 39 RR 8 (precluding testimony from Austin State Hospital worker that hospital was like
a “bad dream”);
• 39 RR 12-13 (precluding testimony about conditions of children placed in punitive “quiet
room,” in which Soffar had also been placed);
• 39 RR 20 (precluding testimony of child-care worker who had cared for Soffar on why
Soffar had picked fights with larger children);
• 39 RR 31-32 (precluding testimony from child-care worker that children could have been
treated better in Austin State Hospital in that the hospital could have “quit locking kids
naked in . . . solitary confinement . . . [and begun] feed[ing] them good”);
• 39 RR 94 (precluding testimony from nun who ministered to prisoners about letters
Soffar wrote to her indicating his spirituality and redeeming characteristics);
• 39 RR 96-102 (precluding use during mental health expert’s testimony of chart
summarizing toxins Soffar ingested as a child, which was derived from medical records,
prior testimony and affidavits of people with personal knowledge, and which was relied
upon by expert in forming in her opinion, and precluding testimony about such toxin use
216
as hearsay);
• 39 RR 156 (precluding expert testimony about the relationship of Soffar’s therapeutic
need for structure and his work as a police informant);
• 39 RR 228-29 (precluding mental-health expert testimony on the type of parenting
needed by a “child with attention deficit hyperactive disorder”);
• 39 RR 266-67 (precluding testimony by former Texas Department of Criminal Justice
(TDCJ) official that notorious inmate James Dumachete, who was housed with Soffar
when Soffar was alleged to have possessed shanks in prison, was a violent inmate on death
row for killing two men, and later killed a fellow inmate with a knife); 217
•39 RR 267-69 & 273 (precluding testimony to rebut evidence elicited by prosecution that
Soffar had a prison disciplinary charge for an “escape attempt,” including expert testimony
from former TDCJ official: (1) about the types of conduct which can lead to such a charge;
(2) that the charge did not mean that Soffar tried to escape (but rather that he was merely
216
See TEX. R. EVID. 705 (a) (allowing experts to disclose underlying facts or data supporting their opinion). See
also TEX. R. EVID. 703 (allowing experts to base opinions on otherwise inadmissible evidence if of the type
reasonably relied upon by an expert in that field).
217
See Executed Offender Information (http://www.tdcj.state.tx.us/statistics/deathrow/executed/dmochete.jpg (last
checked April 19, 2007)).
126

out of place) and (3) that the attempted escape charge was never sustained); 218
• 40 RR 32-33 (precluding evidence concerning Soffar’s correspondence with his wife
from which the jury could have inferred his strong relationship with his wife, his
redeeming qualities and inherent humanity).
As established, supra, the preclusion of this evidence constitutes structural error
and can never be harmless. Alternatively, because the mitigating and rebuttal evidence
precluded by the trial court was crucial to Soffar’s defense against the death penalty, the
court’s error was not harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.
Appellant’s Fifteenth Point of Error
The trial court violated Appellant’s constitutional and statutory rights by allowing
victim impact evidence related to a victim not named in the indictment.
For purposes of admissible victim impact testimony, a victim is the person named
in the indictment. See Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App. 1997). In
Cantu, this Court stated that impact evidence about a victim not named in the indictment
“serves no purpose other than to inflame the jury” and “that such evidence is irrelevant . . .
in the context of the special issues under Art. 37.071.” See also Haley v. State, 173
S.W.3d 510, 518 (Tex. Crim. App. 2005) (precluding victim impact testimony about a
victim of an extraneous offense); see also Tex. Code Crim. Proc. 37.0711. Here, Soffar
was convicted of the capital murder of Ms. Felsher, and was not charged with or convicted
of the murder of Mr. Sims. By allowing impact evidence related to Mr. Sims over defense
218
The defense certainly had a due-process right to rebut the prosecution’s assertion that Soffar had attempted to
escape. Renteria, 206 S.W.3d at 697-98. Moreover, to the extent that any portion of the expert’s testimony is
deemed hearsay, it was “invited hearsay.” See id. at 698 n.6 (citing Kipp v. State, 876 S.W.2d 330, 337, n.11 (Tex.
Crim. App. 1994) (discussing rule of optimal completeness as example of invited hearsay). See also Motion for a
New Trial (14 CR 4185-98) (discussing same doctrine).
127

counsel’s objection. (40 RR 43), the trial court violated Soffar’s constitutional rights to a
fair and reliable sentencing hearing. See U.S. Const. amends. VIII, XIV.
The testimony of Mr. Sims’s widow, Brenda Moebius, was highly prejudicial to the
defense. A young wife and mother of a one year-old at the time of Mr. Sims’s death, Mrs.
Moebius described Mr. Sims as follows:
He was a very kind person, very fun loving. When he was in high school he was on
the football team and the track team. . . . He [had been] a member of the Students
Parks and Recreation Society and in fact when [our son] was born [he] became the
youngest honorary member cause his dad would take him up there to the meetings and
play with him and be very active with him. He was just – he was my best friend; not
only my husband but my best friend.
(40 RR 43-44). Unlike in Cantu, 939 S.W.2d at 637, where, “the State did not even
mention [the victim impact testimony], much less emphasize it,” the State emphasized the
Sims victim impact evidence in summation. See also (41 RR 47, 57 (“Steve Sims never
got to see his son graduate, marry and [sic] him Steve become a [g]randfather.”)). Thus,
the prosecution cannot now prove that the introduction of this irrelevant and prejudicial
victim-impact evidence was harmless under any standard. Cantu, 939 S.W.2d at 637
(applying constitutional harmless error standard). See also Chapman, 386 U.S. at 24.
Appellant’s Sixteenth Point of Error
(a) The trial court committed reversible errors by refusing Appellant’s charge that
the jurors could not give “no weight” to the mitigating circumstances they found and
by charging them that “[i]f you find that there are any mitigating circumstances in
this case, you must decide how much weight they deserve, if any . . . ”
(b) The trial court committed reversible error by charging the jurors that they had
discretion to decide whether a circumstance was mitigating.
(c) The trial court committed reversible error by charging the jurors that a “yes”
vote to Special Issue Four required ten votes.
128

(d) The trial court committed reversible error by charging the jurors that their
answer to Special Issues One, Two, and Three, which presented factual questions,
“should reflect an individualized determination by each juror of the personal
culpability of the defendant.”
(e) The trial court committed reversible error by denying the Appellant’s written
and oral objections to the court’s charge and verdict form on the ground that the
indictment did not allege special issues one, two and three.
(f) The trial court committed reversible error by charging the jury on special issue
three (i.e., future dangerousness).
(g) The trial court committed reversible error by failing to instruct the jury to
disregard victim impact evidence not shown to be within the knowledge or
reasonable expectation of the defendant.
(h) The trial court committed reversible error by refusing to charge on residual
doubt as mitigating evidence.
As shown below, the trial court’s charge at Soffar’s penalty phase contained
numerous errors which, individually and cumulatively, violated his rights under the Sixth,
Eighth and Fourteenth Amendments to the U.S. Constitution, Article 1, §§ 10, 3, 3a, 13,
15 and 19 of the Texas Constitution, and this Court’s decisions. 219
(a) The trial court committed reversible errors by refusing Appellant’s charge that
the jurors could not give “no weight” to the mitigating circumstances they found and
by charging them that “[i]f you find that there are any mitigating circumstances in
this case, you must decide how much weight they deserve, if any . . . ”
The trial court committed reversible error by failing to give Appellant’s proposed
instruction charging the jurors that they could not give the mitigating circumstances found
by them “no weight.” (7 CR 2522; 40 RR 62). The trial court also committed reversible
219
Standard of Review applying to all subpoints. A “reviewing court must [first] determine whether the jury
charge contains error. Second, the court must determine whether sufficient harm resulted from the error to require
reversal.” Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). “The standard to determine whether
sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where
there has been a timely objection made at trial, an appellate court will search for only ‘some harm.’ By contrast,
where the error is urged for the first time on appeal, a reviewing court will search for ‘egregious harm.’” Abdnor v.
State, 871 S.W.2d 726, 731, 732 (Tex. Crim. 1994). To the extent that the Court finds any of these requests
unpreserved, counsel's assistance was constitutionally ineffective. See Appellant’s Twentieth Point of Error, infra.
129

error by charging the jurors: “[i]f you find that there are any mitigating circumstances in
this case, you must decide how much weight they deserve, if any . . .” (14 CR 4155). 220
Under the Eighth Amendment, although jurors may decide what weight to give a
mitigating circumstance, “they may not give it no weight by excluding such evidence from
their consideration.” See Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982) (emphasis
added)). The trial court’s errors caused Soffar “some harm” – indeed, egregious harm – by
unconstitutionally informing the jurors that they did not have to give any weight to his
proven mitigating circumstances. Reversal is required.
(b) The trial court committed reversible error by charging the jurors that they had
discretion to decide whether a circumstance was mitigating.
The trial court erroneously informed the jurors that “[a] mitigating circumstance
may include, but is not limited to, any aspect of the defendant’s character, background or
record or a circumstance of the crime that you believe could make a life sentence
appropriate in this case” and that “[y]ou shall consider mitigating evidence to be any
evidence that a juror might regard as justifying a life sentence.” (14 CR 4154-4156). In
other words, the trial court informed the jurors that they were legally entitled to decide
whether Max Soffar’s mitigating evidence was mitigating. The prosecutor, in closing
argument, made the same error. See (41 RR 10-11).
The Eighth Amendment gives jurors no such discretion. The United States
Supreme Court’s “cases have established that the sentencer may not be precluded from
220
Appellant preserved his objection to the error by proposing an instruction containing a correct statement of the
law. See TEXAS CODE OF CRIM. PROC. Article 36.15; Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App.
1996); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App.1996) (holding that preservation of error relating to
defensive issue in jury charge is made by objection or submission of requested charge to court).
130

considering, and may not refuse to consider, any constitutionally relevant mitigating
evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (emphasis added) (citations
omitted). Indeed, the Court has held that such mitigating circumstances as a defendant’s
troubled childhood (Eddings, supra) and drug use (Roberts v. Louisiana, 431 U.S. 633,
637 (1977)) are mitigating under the Eighth Amendment, that “evidence of good conduct
in jail …is …by its nature relevant to the sentencing determination,” and that impaired
intelligence is inherently mitigating.” Tennard, 542 U.S. at 285, 287 (citing Skipper, 476
U.S at 5). Here, Appellant presented inherently mitigating evidence of impaired
intelligence, a troubled childhood, drug addiction, and good conduct in jail.
Thus, the trial court committed errors by misinforming jurors that they could refuse
to treat Soffar’s mitigating evidence as mitigating. The error caused him egregious harm
by permitting the jury to refuse to consider mitigation. Reversal is required.
(c) The trial court committed reversible error by charging the jurors that a “yes”
vote to Special Issue Four required ten votes.
As Appellant objected below (14 CR 4139), the trial court’s charge that at least ten
221
jurors had to agree that the answer to Special Issue Four was “yes” before the jury could
find this issue violated his rights under the Sixth, Eighth, and Fourteenth Amendments,
which require that “each juror . . . be allowed to consider all mitigating evidence . . .[and
that] such consideration . . . may not be foreclosed by one or more jurors’ failure to find a
mitigating circumstance.” McKoy v. North Carolina, 494 U.S. 433, 443 (1990) (citing
221
Special Issue Four in the verdict form asked the jury to consider whether sufficient “mitigating circumstance or
circumstances [existed] to warrant that a sentence of life imprisonment rather than a death sentence be imposed?”
(14 CR 4166).
131

Mills v. Maryland, 486 U.S. 467 (1988)). But see Rousseau v. State, 855 S.W.2d 666, 687,
n.26 (Tex. Crim. App. 1993) (rejecting this claim).
The error clearly was not harmless because the jury was unconstitutionally misled
about whether a single juror could find and give effect to Appellant’s mitigating
circumstances. Therefore, Soffar must receive a new punishment trial.
(d) The trial court committed reversible error by charging the jurors that their
answer to Special Issues One, Two, and Three, which presented factual questions,
“should reflect an individualized determination by each juror of the personal
culpability of the defendant.”
Special Issues One, Two, and Three in the verdict form required the jury to answer
three factual questions: (1) whether Appellant’s “conduct . . . that caused the death of
Arden Alane Felsher was committed deliberately and with the reasonable expectation that
the death . . . would result?”; (2) whether the appellant “actually caused the [the victim’s]
death . . . , or if [not whether] he intended to kill Arden Alane Felsher or another or that he
anticipated that a human life would be taken?”; and (3) whether “there is a probability that
the defendant . . . would commit criminal acts of violence that would constitute a
continuing threat to society?” (14 CR 4160-65).
Despite the factual nature of these questions, the trial court charged the jurors that
“[y]our answers to the special issues should reflect an individualized determination by
each juror of the personal culpability of the defendant.” (14 CR 4156). This charge
lessened the state’s burden of proving the factual questions presented by special issues
one, two, and three beyond a reasonable doubt, as required by TEXAS CODE OF CRIMINAL
132

PROCEDURE Article 37.071, by the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and by Article 1, Sections 10, 3, 3a, 13, 15 and 19 of the Texas
Constitution. See Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi v. New Jersey, 530
U.S. 466, 477 (2000); Walton v. Arizona, 497 U.S. 639, 650 (1990) (statute may not
“lessen the State’s burden to prove every element of the offense charged, or in this case to
prove the existence of aggravating circumstances . . .”), rev’d on other grounds, Ring v.
Arizona, supra. That is, the instruction allowed the State to meet its factual burden with
irrelevant evidence regarding the defendant’s “personal culpability.”
Additionally, the instruction charged the jury to decide an extraneous issue not
contained in TEX. CODE OF CRIM. PROC. Art. 37.071. By its terms, this statute does not
permit the jury to decide the three special issues based upon “an individualized
determination by each juror of the personal culpability of the defendant.” Thus, the charge
was contrary to the intent of the Texas Legislature, infected the jury’s deliberative process
222
with an issue extraneous to the statute, and requires reversal. Moreover, the charge
permitted the jurors to decide the three issues through consideration of highly irrelevant
evidence (i.e., the defendant’s personal culpability) in violation of Texas Rules of
Evidence 401, 403 and 404, and due process. See McKinney v. Rees, 993 F.2d 1378, 1379
222
See Lanier Mem’l Hosp. v. Andrews, 809 So. 2d 802, 806-07 (Ala. 2001) (reversing because trial court’s
“statement did not contain the elements of the action” before the jury but instead “ introduced extraneous elements
and an extraneous duty that was not at issue”) (emphasis added); Martin v. State, 553 S.E.2d 827, 829 (Ga. Ct.
App. 2001) (forbidding “deliberate introduction of extraneous issues”). Cf. Stirone v. U.S., 361 U.S. 212 (1960)
(reversing conviction for obstruction of interstate commerce under the Hobbs Act, 18 U.S.C. § 1951, because the
indictment was improperly amended and the offense charged was impermissibly enlarged by the trial court’s jury
instructions); United States v. Milstein, 401 F.3d 53, 65 (2nd Cir. 2005) (“When the trial evidence or the jury charge
operates to broaden the possible bases for conviction from that which appeared in the indictment, the indictment has
been constructively amended. . . . Constructive amendment is a per se violation of the Fifth Amendment.”) (internal
quotation marks, brackets and citations omitted).
133

(9th Cir. 1993) (introduction of irrelevant evidence can violate due process).
The error caused Soffar egregious harm because the charge lessened the State’s
burden of proving the three issues, interjected an extraneous issue, and allowed
consideration of irrelevant evidence. Reversal is required.
(e) The trial court committed reversible error by denying the Appellant’s written
and oral objections to the court’s charge and verdict form on the ground that the
indictment did not allege special issues one, two and three.
The trial court committed reversible error by denying Appellant’s written and oral
objections to the court’s jury charge and verdict form regarding special issues one, two,
and three. See (1 CR 264-278; 6 RR 127-130; 14 CR 4141, 4147; 40 RR 62-63). As
Appellant argued below, his indictment was legally deficient because it did not contain
grand jury findings of these special issues. See Tex. Const. Art I, § 10; Ring v. Arizona,
536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.
Washington, 542 U.S. 296 (2004). But see Russeau v. State, 171 S.W.3d 871, 886 (Tex.
Crim. App. 2005) (holding that neither Apprendi nor Ring requires the state to allege
special issues in indictment), cert. denied, 126 S. Ct. 2982 (2006).
Under Article 1, § 10, in general, a criminal defendant need not “answer for a
criminal offense, unless on an indictment of a grand jury.” Under TEXAS CODE OF
CRIMINAL PROCEDURE Article 37.0711, a capital defendant can receive a death sentence
only if his jury finds the requisite special issues. Therefore, before the State may seek a
death sentence at a capital trial, a grand jury must find all charged special issues because
such issues (most often labeled aggravating factors) are “the functional equivalent of an
134

element of a greater offense.” Ring v. Arizona, 536 U.S. 584, 609 (2002) (internal
223
quotation marks omitted). In Ring, the Court held that statutory aggravating factors
224
making a defendant death eligible are elements of the charged capital offense. See also
State v. Fortin, 843 A.2d 974, 1033-35 (N.J. 2004) (holding that New Jersey Constitution
requires aggravating factors to be submitted to a grand jury in a capital case).
This Court must remand this case for imposition of a life sentence because the
State’s error in failing to obtain an indictment charging the special issues cannot be subject
to harmless error analysis and, even if it can be, the State cannot prove the error harmless
th
beyond a reasonable doubt. See United States v. Resendiz-Ponce, 425 F.3d 729 (9 Cir.
2005), rev’d on other grounds, __ U.S. __, 127 S. Ct. 782 (2007). Alternatively, this
Court should remand to allow the State to attempt to obtain a grand jury indictment
charging the requisite special issues. If the State were to obtain such an indictment, then
the Appellant would be subject to another punishment trial.
(f) The trial court committed reversible error by charging the jury on special issue
three (i.e., future dangerousness).
The trial court committed reversible error by overruling Appellant’s objection to
charging the jury that it had to find beyond a reasonable doubt a “reasonable probability
that the defendant would commit criminal acts of violence that would constitute a threat to
society.” TEX. CODE CRIM. PROC. Art. 37.0711 (3)(b)(2). See (1 CR 250-63; 6 CR 117-20;
223
Because of Ring, federal courts now agree that aggravating circumstances must be found by a grand jury under
the Fifth Amendment. See, e.g., United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) (en banc).
224
In Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), the Court ruled that “if the existence of any fact (other
than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact – no
matter how the State labels it – constitutes an element, and must be found by a jury beyond a reasonable doubt.”
135

40 RR 62-63). Appellant correctly argued that this instruction diluted the reasonable
doubt standard. Id. See also Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 477, and
Blakely v. Washington, 542 U.S. 296 (2004). But see Rayford v. State, 125 S.W.3d 521,
534 (Tex. Crim. App. 2003) (rejecting this claim).
In Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam), the Supreme Court held
that jury instructions violate due process when they dilute the state’s burden of proving
every element beyond a reasonable doubt. In Estelle v. McGuire, 502 U.S. 62, 72 (1991),
the Court held that the proper inquiry is whether there is a reasonable likelihood that the
jury applied the challenged instruction unconstitutionally.
Thus, the question here is whether there is a reasonable likelihood that the jury
applied the challenged instruction in a manner that diluted the State’s burden. There
clearly is. When non-lawyer jurors are faced with an illogical instruction like the one
mandated by Article 37.0711, they would naturally focus on the more familiar concept of
probability, to the detriment of a less familiar, legal term of art like “reasonable doubt.”
Moreover, non-lawyer jurors (and many lawyers) would find it impossible to figure out
how they were to determine if they were persuaded beyond a reasonable doubt that
something is more likely than not. Indeed, determining beyond a reasonable doubt that
something is more likely than not is an oxymoron. The end result is a reasonable
likelihood that jurors would answer yes to the future danger special issue if they were
merely persuaded that it was more likely than not that the defendant would be a danger in
the future. And that would substantially dilute the State’s burden of proving this issue
136

eyond a reasonable doubt.
The trial court erred by overruling Appellant’s objections to this instruction. The
State cannot prove the error harmless beyond a reasonable doubt. Reversal is required.
(g) The trial court committed reversible error by failing to instruct the jury to
disregard victim impact evidence not shown to be within the knowledge or
reasonable expectation of the defendant.
Over defense objection, the trial court failed to instruct the jury to disregard victim
impact evidence not shown to be within the knowledge or reasonable expectation of the
defendant. (14 CR 4145; 40 RR 62). The court’s failure was reversible error. See U.S.
Const. amends. V, VI, VIII, XIV; Payne v. Tennessee, 501 U.S. 808, 845 (1991) (Marshal,
J., dissenting) (arguing that introduction of victim impact evidence outside the knowledge
or reasonable expectation of defendant violates the Eighth Amendment); Tex. Const. Art.
1, §§ 3, 3a, 10, 13, 15, 19.
In Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002), this Court upheld the
admissibility of victim impact evidence “when that evidence has some bearing on the
defendant’s personal responsibility and moral culpability.” Id. at 335 (citing Mosley v.
State, 983 S.W.2d 249, 261-62 (Tex. Crim. App. 1998) (emphasis added)). In other
words, victim impact evidence is relevant only insofar as it has some bearing on the
defendant’s personal responsibility and moral culpability. If the defendant had no
knowledge or reasonable expectation of the character of the victim or of the impact of the
death on the survivors, the evidence does not speak to his personal responsibility and
moral culpability. The trial court’s failure to so instruct the jury was not harmless.
137

(h) The trial court committed reversible error by refusing to charge on residual
doubt as mitigating evidence.
Appellant requested an instruction that the jury could consider any residual doubt
about his guilt as a mitigating circumstance. (2 CR 401-405; 8 RR 59). The court
committed reversible error by refusing the instruction.
As Appellant argued below, see id., he had a right under Texas law to this
instruction. See Tex. Const. art 1, §§ 10, 13, 19, 29; TEX. CODE. OF CRIM. PROC. 37.0711
§ 3 (e) (requiring capital sentencing juries to determine whether “sufficient mitigating
circumstance or circumstances [exist] to warrant a sentence of life imprisonment,”
including “the circumstances of the offense”). This Court should find as a matter of state
225
law that capital defendants have a right to a residual doubt instruction. Texas has a
compelling interest in minimizing the possibility of executing an innocent person.
Permitting jurors to consider residual doubt when deciding whether a defendant should be
executed will serve this crucial interest. This Court should reverse.
Appellant’s Seventeenth Point of Error
(a) The trial court committed reversible error under the common law and this
Court’s case law when it reassembled the jury to render a verdict after dismissal.
(b) The trial court’s reassembly of the jury violated Appellant’s federal and state
constitutional rights to due process of law, to be free of cruel and unusual
punishment and against double jeopardy.
(c) In the alternative, this Court should order an evidentiary hearing on any facts it
deems in dispute and dispositive of the issue.
Factual Background. After a death verdict was read, the jurors were individually
225
This Court is not bound by the Supreme Court’s decisions on the issue of residual doubt. Hulit, 982 S.W.2d at
437. Cf. note 208, supra (collecting cases in which state courts allowed residual doubt evidence under state law).
138

polled and stated unanimous agreement with it. (42 RR 4-5). The trial court ordered that
Appellant be delivered to State prison and “confined until the date of execution is
imposed.” Id. at 6. The trial court then discharged the jury: “Ladies and Gentlemen
you’re now released from the instructions of the Court and . . . you’re free to go.” Id. The
jury left the courtroom. Id. at 5-6 (“Jury excused”). After the jury departed, at the
prosecution’s urging and over defense objection, the trial court directed court personnel:
“Would you ask them to come back out.” Id. at 6-7.
Once the jury had returned and been reseated, the trial court told the reassembled
jury: “I’m sorry but I didn’t turn to the last page of the verdict form and it must be signed
226
also, if this is indeed your verdict. So if I could send you back with instructions to
complete the paperwork I would appreciate it.” Id. The jury left the courtroom and then
returned, with the last page of the verdict signed by the foreperson. Id. at 7-8. The trial
court once again discharged the jury, and the ex-jurors left the courtroom for a second
227
time. Id. at 8. (“Thank you again for your service and ya’ll truly are free to go now.”).
(a) The trial court committed reversible error under the common law and this
Court’s case law when it reassembled the jury to render a verdict after dismissal.
A discharged jury may be reassembled only if its members remain in the judge’s
actual presence and under his or her control. See Webber v. State, 652 S.W.2d 781, 782
(Tex. Crim. App. 1983) (“[w]hen the jury has not separated or have only momentarily
226
See TEXAS CODE CRIM. PROC. Art. 36.29 (a) (“Not less than twelve jurors can render and return a verdict in a
felony case. It must be concurred in by each juror and signed by the foreman.”).
227
See also (15 CR 4678) (docket sheet noting that the “jury was [] released from any further duties” and then
“brought . . . back into open court [for court] to admonish them to complete the jury . . . [and] was seated again [to]
turn[] over the completed charge”).
139

separated and are still in the presence of the court and it appears that no one has talked to
the jurors about the case, the court may recall the jurors to correct their verdict . . .”)
(emphasis added); West v. State, 340 S.W.2d 813, 815 (Tex. Crim. App. 1960) (same).
See also State v. Green, 995 S.W.2d 591, 612-13 (Tenn. Crim. App. 1998) (reversing and
emphasizing separation from the presence of the trial court and the opportunity for outside
contacts or influence and finding it irrelevant that less than two minutes passed before
228
jury's initial dismissal and jury's return to jury box).
Here, the trial court ordered the former jurors reassembled after they had left the
courtroom and left the court’s presence. In so doing, the court committed reversible error.
Webber, 652 S.W.2d at 782; West, 340 S.W.2d at 815.
(b) The trial court’s reassembly of the jury violated Appellant’s federal and state
constitutional rights to due process of law, to be free of cruel and unusual
punishment and against double jeopardy.
The jury’s reassembly also violated Soffar’s constitutional rights. See U.S. Const.
amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§ 3, 10, 13, 14, 15, 19. The reassembly of
a discharged jury violates the procedural fairness demanded by due process. See Fuentes
v. Shevin, 407 U.S. 67, 82 (1972). It is unfair to criminal defendants to discharge the jury,
allow the jurors to leave the courtroom and the court’s presence, and then reassembly them
as a jury. Commonwealth v. Johnson, 59 A.2d 128, 129, 131 (Pa. 1948).
In addition, regardless of how this Court would resolve this issue in a non-capital
case, this Court must resolve it in Max Soffar’s favor here because the resolution means
228
The long-standing traditional view is even stricter. See, e.g., West v. State, 92 N.E.2d 852, 855 (Ind. 1950).
140

the difference between life and death. As the United States Supreme Court has
emphasized, “[th]e fundamental respect for humanity underlying the Eighth Amendment’s
prohibition against cruel and unusual punishment gives rise to a special ‘need for
reliability in the determination that death is the appropriate punishment' in any capital
case." Johnson v. Mississippi, 486 U.S. 578, 584 (1988) (quotations omitted).
Furthermore, the reassembly of a discharged jury violates a criminal defendant’s
double jeopardy rights. See, e.g., People v. Henry, 639 N.W.2d 285, 317, 320 (Mich. Ct.
App. 2001) (affirming trial court’s refusal to reconvene jury because “the jeopardy that
had attached at the selection and swearing of the jury terminated with that panel’s
discharge”); People v. Rushin, 194 N.W.2d 718 (Mich. Ct. App. 1971) (same).
Because the trial court’s reassembly of the jury violated Appellant’s right against
double jeopardy, this Court should remand this case for imposition of a sentence of life
imprisonment. Alternatively, this Court should remand for another punishment trial. See
TEX. CODE CRIM. PROC. Art. 36.33.
(c) In the alternative, this Court should order an evidentiary hearing on any facts it
deems in dispute and dispositive of the issue.
If this Court for some reason decides not to remand this case for imposition of a
sentence of life imprisonment or for a new punishment trial, it should remand the case for
an evidentiary hearing on whether the jurors, after leaving the courtroom, remained an
undispersed unit within the control of the court and with no opportunity to mingle with or
discuss the case with others, including court personnel. See Summers v. United States, 11
th
F.2d 583, 586 (4 Cir. 1926) (setting forth this standard).
141

Appellant’s Eighteenth Point of Error
Prosecutors’ unfettered, standardless and unreviewable discretion under Article
37.0711 violates equal protection, due process and the Eighth Amendment.
Texas lacks statewide standards governing the discretion of local prosecutors to
seek or decline to seek the execution of death-eligible defendants, TEX. CODE CRIM. PROC.
229
Art. 37.0711, and only a few of Texas’s 254 counties purport to have such standards.
230
Harris County is not among them. (6 CR 1685, 1710). As a result, the decision whether
to seek the death penalty turns on “the willingness of the local prosecutor” to seek death.
Richard Willing and Gary Fields, Geography of the Death Penalty, USA TODAY, Dec. 20,
1999 at A1.
Harris County provides a glaring example of the disparities in Texas’s system. The
current and former Harris County District Attorneys have sought a death sentence
whenever there has been a “better than average chance” of a jury returning one. Mike
Tolson & Steve Brewer, Harris County is a Pipeline to Death Row, HOUSTON CHRONICLE,
Feb. 4, 2001 at A1. At a pretrial hearing in this case, the prosecution conceded that Harris
County District Attorneys seek the death penalty more often than other prosecutors as a
matter of personal opinion. (7 RR 186). As a result, Harris County has returned a vastly
disproportionate number of death sentences. Although the county has a similar per capita
murder rate as Dallas and San Antonio, it has 324% more death-row inmates than Dallas
229
See Lena G. Roberts, All over the Map: How an Accident of Geography Turns Texas' Death Penalty Scheme Into
Lethal Lottery (April 2003) (unpublished, on file with the Texas Defender Service).
230
The Harris County written policy provides that the District Attorney shall “personally” make the final decision
on whether to seek death without providing any guidance for that decision. Id.
142

231
and 430% more than San Antonio. And although it accounts for only about 12% of
Texas’s murders, Harris County has sentenced to death 29% of all death-sentenced
232
prisoners.
231
See (6 CR 1691-92 (basing calculations of statistics from the Federal Bureau of Investigation, FBI Uniform
Crime Reports by Metropolitan Statistical Area, available at http://www.fbi.gov/ucr/ucr.htm#cius (last visited April
19, 2007), from the Texas Department of Criminal Justice, Offenders on Death Row, available at
http://www.tdcj.state.tx.us/stat/deathrow.htm (last visited April 19, 2007), and from the 2000 Census, U.S. Census
Bureau, Population 2000, available at http://quickfacts.census.gov/qfd/states/48000.html (last visited April 19,
2007).
232
FBI Uniform Crime Reports, supra note 229, reports 1407 murders for all of Texas and 166 in Harris County
(166/1407 = 0.117982). The Texas Department of Criminal Justice, supra note 231, reports a total of 962 persons
sentenced to death row in Texas since 1976, and 282 persons from Harris County (282/962 = 0.293139). TDCJ,
Total Number of Offenders Sentenced to Death from Each County, available at
http://www.tdcj.state.tx.us/stat/countysentenced.htm (last visited April 19, 2007).
233
The trial court committed reversible constitutional errors by denying Appellant’s
motion to preclude application of the death penalty on equal protection, due process, and
233
Eighth Amendment grounds, and by denying his request for discovery to prove his
selective prosecution claim. (6 CR 1673-1712; 7 RR 187). See U.S. Const. amends. V,
VI, VIII, XIV; Tex. Const., Art. 1, §§ 13 & 19.
Equal protection. “[U]niform” and “specific” vote-counting standards are required
to prevent the arbitrary and disparate treatment of similarly situated people whose
fundamental right to vote is at stake. Bush v. Gore, 531 U.S. 98, 102, 106 (2000).
Because Texas’s death penalty system concerns a more fundamental right – the right to
234
life – the system must satisfy the equal protection principles enunciated in Bush and
must value the lives of all citizen equally. Just as a State may not, “by arbitrary and
disparate treatment, value one person’s vote over that of another,” Bush, 531 U.S. at 104-
But see Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004) (rejecting argument that unguided
prosecutorial discretion and variance among counties violates equal protection); Matamoros v. State, 901 S.W.2d
470, 478 (Tex. Crim. App. 1995) (en banc) (prosecutorial discretion to seek or forgo death penalty not
unconstitutional).
234
Furman v. Georgia, 408 U.S. 238, 359 (1972) (Marshall, J., concurring).
143

05, a state may not, by arbitrary and disparate treatment, value one person’s life over that
235
of another. Texas fails this test. Its law does not even provide an “abstract proposition”
or a “starting principle,” Bush, 531 U.S. at 106, as to how local prosecutors should make
these life-and-death decisions.
Due process. In determining the scope of the constitutional due process
protections, three factors must be balanced: (1) the private interest affected by the official
action; (2) the risk of an erroneous deprivation of such interest through the procedures
used and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the state’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail. Mathews v.
Eldridge, 424 U.S. 319, 334 (1976). Under this test, the discretion granted to Texas
prosecutors to seek or decline to seek a death sentence violates Appellant’s due process
rights. The interest at stake, the right to life, is the most fundamental of all. The lack of
standards increases the risk of an erroneous deprivation by failing to ensure that the death
penalty is applied only to individuals “who act with the level of moral culpability that
characterizes the most serious adult criminal conduct.” Atkins v. Virginia, 536 U.S. 304,
306 (2002). Statewide standards would reduce the risk of arbitrary application and could
be adopted with relative ease. Additionally, the State’s interest in granting prosecutors
unbridled discretion is minimal. Therefore, the standardless prosecutorial discretion to
235
Since Bush, numerous commentators have recognized that its logic prohibits standardless prosecutorial discretion
to seek or not to seek the death penalty against statutorily death-eligible defendants. See, e.g., Laurence Benner et.
al., Criminal Justice in the Supreme Court: An Analysis of United States Supreme Court Criminal and Habeas
Corpus Decisions (October 2, 2000 - September 30, 2001), 38 Cal. W. L. Rev. 87, 90-94 (2002).
144

seek the execution of death-eligible defendants in Texas violates due process.
Cruel and unusual punishment. Capital sentencers’ decisions must be guided by
standards that narrow and guide their discretion. In his trial testimony, Garner confirmed
that employees never kept a water jug on the control booth. (28 RR 189). See, e.g., Gregg
v. Georgia, 428 U.S. 153, 195 (1976). Because a prosecutor’s “decision whether or not to
seek capital punishment is no less important than the jury’s, . . . [his or her] ‘discretion
must be suitably directed and limited so as to minimize the risk of wholly arbitrary and
capricious action.’” DeGarmo v. Texas, 474 U.S. 973, 974-975 (1985) (Brennan, J.,
dissenting from denial of cert.) (emphasis added) (quoting Gregg, 428 U.S. at 189).
“Absent facts to the contrary,” Justice White would not assume that prosecutors would
“exercise [their] power in a standardless fashion.” Gregg, 428 U.S. at 225 (White, J.,
concurring). The arbitrary and capricious nature of standardless prosecutorial discretion to
236
seek or not to seek the death penalty, however, has now been demonstrated empirically.
The death penalty continues to be imposed in an arbitrary, freakish and discriminatory
manner in violation of the Eighth Amendment and the Texas Constitution. This Court
should reverse. Alternatively, this Court should remand for a hearing and order the
discovery on this issue sought by Appellant. (6 CR 1677-78).
Appellant’s Nineteenth Point of Error
The Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment and
236
See, e.g., Jonathan R. Sorensen & James W. Marquart, Prosecutorial and Jury Decision-Making in Post-Furman
Texas Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 743, 765 (1990/91) (after controlling for other factors,
Texas prosecutors are five times as likely to seek death sentences against defendants accused of murdering white
victims as those accused of murdering African-American victims, and twice as likely to seek death sentences against
defendants accused of murdering white victims as those accused of murdering Hispanic victims).
145

the Fourteenth Amendment’s Due Process Clause Prohibit Max Soffar’s Execution,
Given that He Has Spent Close to Twenty-Five Years Awaiting it.
237
Soffar has been on death row for close to 25 years. His lengthy and torturous
incarceration amounts to cruel and unusual punishment and violates his due process rights.
238
See U.S. Const. amends. VIII & XIV. See also Lackey v. Texas, 514 U.S. 1045 (1995)
(opinion of Stevens, J., respecting denial of certiorari); Foster v. Florida, 537 U.S. 990
(2002) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 525 U.S. 944
(1998) (Breyer, J., dissenting from denial of certiorari). At the time the U.S. Constitution
was written, over twenty-five years under sentence of death was clearly “unusual.” Id. at
944. During the past three decades, a number of jurists have recognized the torturous
239
effects of “death-row phenomenon.” Additionally, several foreign courts have found
240
death-row phenomenon cruel and inhumane. Thus, this Court must reform Soffar’s
death sentence to a sentence of life imprisonment.
Appellant’s Twentieth Point of Error
Appellant was denied the effective assistance of counsel because of counsel’s
prejudicial failures to object and protect Appellant’s rights.
Max Soffar was entitled to the effective assistance of counsel at trial. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.
237
Appellant was sentenced to death in March of 1981. (1 CR 15). In December of 2004, he won habeas relief, and
was sentenced to death again in March of 2006.
238
239
Defense counsel preserved this argument in a written pretrial motion. (2 CR 538-54).
See, e.g., Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J., concurring in the denial of certiorari);
Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of murder, the onset of
insanity while awaiting execution of a death sentence is not a rare phenomenon.”); Furman v. Georgia, 408 U.S.
238, 288-89 (1972) (Brennan, J., concurring).
240
See, e.g., Soering v. United Kingdom, 11 EUR. HUM. RTS. REP. 439 (1989) (refusing to extradite a German
national to face capital charges because of anticipated time that he would have to spend on death row).
146

Crim. App. 1986). Where a preponderance of the evidence in the record demonstrates that
there “is no plausible professional reason for a specific act or omission,” a claim of
ineffective assistance of counsel may be raised on direct appeal and sustained if there is
sufficient prejudice. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Here, the
“totality” of counsel’s errors prejudiced Appellant’s rights to a fair trial and requires
reversal. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).
First, counsel failed to object, or state all of the proper grounds for objection, to
some of the prosecution’s most blatantly unfair and impermissible arguments during its
guilt summation. As discussed in Appellant’s Twelfth Point of Error, supra, incorporated
herein, the prosecution argued that: 1) the defense had not presented any evidence of an
alternative perpetrator or false confession, (35 RR 9); 2) details in Soffar’s putative
confession could only have been known by the perpetrator, (35 RR 11, 22-23); and 3) that
there were no medical records to support the defense argument that Soffar’s
hospitalization in a mental hospital contributed to the likelihood of a false confession. (35
RR 82). All of these misleading arguments impermissibly shifted the burden of proof to
Soffar and misrepresented the truth. See, e.g., Napue v. Illinois, 360 U.S. 264, 269-72
(1959); McKenzie v. State, 617 S.W.2d 211, 221 (Tex. Crim. App. 1981). Counsel
objected only to the prosecution’s comment about the missing medical records, and then
cited only the burden-shifting grounds. (35 RR 82). If this Court rejects the argument in
Appellant’s Twelfth Point of Error that the prosecution’s arguments were so egregious that
“no instruction to disregard could possibly cure the harm,” Willis, 785 S.W.2d at 385, this
147

Court should find counsel ineffective for failing to object and/or failing to object on all
possibly meritorious grounds. Moreover, when the prosecution argued that the defense
had not presented evidence of an alternative perpetrator or of a false confession and that
details of Soffar’s “confession” could only have been known by the perpetrator, counsel
was ineffective for failing to move for a mistrial or to reopen the defense case to present
241
evidence of Reid’s guilt and the media dissemination of details of the crime. There was
no plausible professional reason for these failures because counsel had everything to gain
and nothing to lose by responding as an advocate to the prosecution’s improper arguments.
Counsel’s failures were constitutionally deficient and prejudicial. See, e.g., Thomas v.
State, 812 S.W.2d 346, 450 (Tex. App. – Dallas 1991, pet. ref’d) (finding ineffective
assistance due to failure to object to improper prosecution argument). Had counsel
objected successfully, there is more than a reasonable probability that the jury would have
found Soffar not guilty. Had counsel’s objection been overruled (or had the court
sustained the objection but denied a mistrial motion), counsel would have preserved a
meritorious appellate argument. Appellant’s Twelfth Point of Error, supra.
Second, counsel failed to object to penalty-phase instructions that violated
Appellant’s constitutional rights by nullifying the value of mitigation evidence,
introducing irrelevant factors, and reducing the prosecution’s burden of proof. See
242
Appellant’s Sixteenth Point of Error, subpoints (a), (b), and (d), supra. Ignorance of the
241
See Appellant’s Fourth Point of Error, supra, incorporated herein. See also Skipper, 476 U.S. at 5 n.1.
242
Counsel’s ineffectiveness is an alternative argument to the argument that counsel preserved the argument set
forth in subpoint (a) of Appellant’s Sixteenth Point of Error.
148

243
law was the only plausible reason for counsel’s quiet acquiescence. Counsel had
everything to gain and nothing to lose by objecting. No valid strategic reason can exist for
allowing a court to misinstruct a capital jury in a manner that makes it more difficult for
the defendant to win a life sentence. Had counsel objected successfully, there is a
reasonable probability that Soffar would have received a life sentence. Had counsel’s
objection been overruled, he would have preserved a meritorious issue for appeal.
Counsel’s ineffectiveness was prejudicial to Soffar’s right to a fair sentencing trial.
Third, if this Court finds that counsel waived the claim that the trial court erred
under TEXAS CODE OF CRIMINAL PROCEDURE Article 38.22 § 3 (a)(1) in admitting Max
Soffar’s oral statements, (30 RR 151-53; 31 RR 70), but see Appellant’s Eleventh Point of
Error, this Court should find counsel ineffective. Counsel’s purpose in the first instance in
lodging a statutory objection to the statements was to suppress them. Any failures in
articulation and follow-through were due to counsel’s ignorance of the law, not a strategic
purpose. But for counsel’s error, Soffar would have: (1) persuaded the court to suppress
the statements; or (2) preserved a meritorious appellate issue. See id.
Fourth, even though defense counsel clearly preserved an equal protection
challenge to the systemic discrimination against women and Hispanics in the selection of
the grand jury (see Appellant’s Fifth Point of Error, supra), if this Court rules otherwise,
defense counsel was ineffective for failing to do so. There could have been no plausible
243
See Ex parte Drinkert, 821 S.W.2d 953, 956 (Tex. Crim. App. 1991) (“Trial counsel’s failure to object to the
indictment, jury charge, and jury argument were not the result of a reasonable professional judgment, but rather of
ignorance of criminal procedure.”). See also Luchenburg v. Smith, 79 F.3d 388, 393 (4th Cir. 1996) (finding counsel
ineffective for failure to request an expanded jury instruction that more accurately described state law).
149

eason for such a failure. Had counsel succeeded in convincing the court, based on the
Equal Protection claim, the indictment would have been dismissed – clearly the goal of
counsel’s motion in the first instance. Had counsel failed, he would have preserved a
meritorious appellate issue. See id. But for counsel’s failure, there is more than a
reasonable probability of a different outcome on the motion to quash. But for counsel’s
unprofessional errors, there is a reasonable probability of either dismissal of the
indictment, an acquittal or a life sentence. Strickland, 466 U.S. at 687. When the
prejudice of counsel’s errors is combined, it is even clearer that the “totality” of counsel’s
errors prejudiced Appellant’s rights to a fair trial. Ex parte Nailor, 149 S.W.3d at 130.
Appellant’s Twenty-first Point of Error
This Court should reverse due to the cumulative harm of the errors.
If the Court finds two or more errors harmless, Appellant is entitled to reversal
due to the cumulative harm of the errors. See Chamberlain v. State, 998 S.W.2d 230, 238
(Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App.
1988) (considering cumulative effect of errors)).
150

Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, the Appellant, Max Soffar, prays
the Court of Criminal Appeals to uphold these points of error, reverse the judgement, and
enter an order barring further prosecution. In the alternative, the Court should reverse the
judgment and remand this case for a new trial. In the second alternative, the Court should
reverse the judgment and reform the sentence of death to a sentence of life imprisonment.
In the third alternative, the Court should reverse the judgment and remand this case for a
new sentencing hearing, or for such other relief as justice may require.
Respectfully submitted,
____________________________
BRIAN W. STULL
Practicing Pro Hac Vice
bstull@aclu.org
ACLU Capital Punishment Project
201 W. Main Street, Suite 402
Durham, NC 27701
Voice: (919) 682-9469
Fax: 919-682-5961
DAVID R. DOW
Bar No. 56064900
ddow@uh.edu
JARED P. TYLER
Bar No. 24042073
jptyler@texasdefender.org
Texas Defender Service
412 Main St. # 1150
Houston, Texas 77002
Voice: (713) 222-7788
Fax: (713) 222-0260
ATTORNEYS FOR APPELLANT
151

Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Brief for
Appellant has been mailed by First Class U.S. mail to:
Harris County District Attorney’s Office, Appellate Division
1201 Franklin Street, Suite 600
Houston, TX 77002-1923
On this 30th day of April, 2007.
_________________________________
BRIAN W. STULL
Staff Attorney
ACLU Capital Punishment Project
152

Appendix A
Shared
Characteristics
Captain D’s
Robbery
Murders
Baskin-
Robbins
Robbery
Murders
McDonald’s
Robbery
Murders
Fairlanes
Robbery
Murders
Single perpetrator?
1 2 3 4
Yes Yes Yes Yes
Mask or disguise?
5 6 7 8
No No No No
Employees forced to lie facedown
on floor?
Yes 9 10 11 12
No Yes Yes
13 14 15
Victims shot execution style? Yes No Yes
Yes 16
17 18 19 20
Signs of forced entry? No No No No
Establishment closed to the
public at time of crime?
21 22
Yes
Yes Yes 23 Yes 24
25 26 27 28
Crime committed on weekend? Yes No Yes Yes
Crime committed at night?
No 29 30 31
Yes Yes
Yes 32
Perpetrator description?
Large white
male, long
hair in back,
slicked or
pushed back. 33
Unknown
Tall, thin,
long hair,
baseball cap,
mustache. 34
White male,
over six feet
tall, with hair
worn comb
back and to
the collar in
the back. 35
Multiple Victims Yes Yes Yes Yes
Vicinity of Robbery Murders
Where Reid
then lived
Where
Reid then
lived
Where Reid
then lived
Where Reid
then lived
Disposal of victim’s wallets by
the roadside?
Yes 36 Unknown Unknown Yes 37

Appendix A
1. See, e.g., State v. Reid (“Reid I”), 91 S.W.3d 247, 261-62 (Tenn. 2002).
2. State v. Reid (“Reid II”), 164 S.W.3d 286, 298-99 (Tenn. 2005)
3. State v. Reid (“Reid III”), 213 S.W.3d 792, 805 (Tenn. 2005).
4. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144.)
5. Reid I, 91 S.W.3d at 263.
6. Reid II, 164 S.W.3d at 298.
7. Reid III, 213 S.W.3d at 805-06.
8. (32 RR 89, 134).
9. Reid I, 91 S.W.3d at 261.
10. Reid II, 164 S.W.3d at 297.
11. Reid III, 213 S.W.3d at 805.
12. (32 RR 69-70, 80, 84, 106-07, 112, 124, 126-29).
13. Reid I, 91 S.W.3d at 261.
14. Reid II, 164 S.W.3d at 297.
15. Reid III, 213 S.W.3d at 805.
16. (32 RR 70, 129; 27 RR 217-24).
17. Reid I, 91 S.W.3d at 261.
18. Reid II, 164 S.W.3d at 297.
19. Reid III, 213 S.W.3d at 805.
20. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144).
21. Reid I, 91 S.W.3d at 261.
22. Reid II, 164 S.W.3d at 297-98.
23. Reid III, 213 S.W.3d at 805.
24. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144).
25. Reid I, 91 S.W.3d at 261-62
26. Reid II, 164 S.W.3d at 297.
27. Reid III, 213 S.W.3d at 806.
28. (26 RR 42).
29. Reid I, 91 S.W.3d at 261-62. Although the robbery murders were committed around 8:50 a.m., Reid attempted
to gain entry into the establishment using a ruse the night before the crime. Id. In both instances, the establishment
was closed to the public. Id.
30. Reid II, 164 S.W.3d at 298.
31. Reid III, 213 S.W.3d at 805.
32. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144.)
33. Reid I, 91 S.W.3d at 262-63.
34. Reid III, 213 S.W.3d at 805. Reid was also described as of possible Hispanic dissent. Id.
35. (32 RR 83, 131-135).
36. Reid I, 91 S.W.3d at 262.
37. (27 RR 119).