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

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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
Page 1 and 2: NO. AP-75,363 IN THE COURT OF CRIMI
Page 3 and 4: TABLE OF CONTENTS Page Identity of
Page 5 and 6: Appellant’s Ninth Point of Error
Page 7 and 8: (a) The trial court committed rever
Page 9 and 10: TABLE OF AUTHORITIES FEDERAL CASES
Page 11 and 12: Giglio v. United States, 405 U.S. 1
Page 13 and 14: Napue v. Illinois, 360 U.S. 264 (19
Page 15 and 16: United States v. Lewis, 592 F.2d 12
Page 17 and 18: Bufkin v. State, 207 S.W.3d 779 (Te
Page 19 and 20: Matamoros v. State, 901 S.W.2d 470
Page 21 and 22: Smith v. State, 70 S.W.3d 848 (Tex.
Page 23 and 24: Vasquez v. State, 919 S.W.2d 433 (T
Page 25: TEX. CODE OF CRIM. PROC. Art. 19.06
Page 29 and 30: answered special issue No. 3, the "
Page 31 and 32: STATEMENT OF FACTS Midnight on July
Page 33 and 34: front doors was Felsher (the only f
Page 35 and 36: police he could probably identify h
Page 37 and 38: At Max Soffar’s retrial, the tria
Page 39 and 40: officer interpreted as meaning that
Page 41 and 42: owling alley and Bloomfield entered
Page 43 and 44: took their wallets. (30 RR 163). Af
Page 45 and 46: 24 then allegedly showed them the g
Page 47 and 48: 9) Soffar did not mention the ruse
Page 49 and 50: Alvin at approximately 9 or 10:00 a
Page 51 and 52: 33 could find in the family’s med
Page 53 and 54: When Soffar was given positive atte
Page 55 and 56: as Soffar’s childhood, focusing o
Page 57 and 58: justification to block its admissio
Page 59 and 60: shot him. Id. In his sworn affidavi
Page 61 and 62: 1980, providing a foundation for in
Page 63 and 64: 53 Burks, 876 S.W.2d at 904-05. Coo
Page 65 and 66: inquiry by Cook, who had no connect
Page 67 and 68: court had relied on state evidentia
Page 69 and 70: affidavit. (26 RR 91-94). The prose
Page 71 and 72: 68 perpetrator” theory. The one-s
Page 73 and 74: scene that matched those of Soffar
Page 75 and 76: Other evidence confirmed that Soffa
Page 77 and 78:
other than the Defendant committed
Page 79 and 80:
Defense counsel’s request was for
Page 81 and 82:
was available. (26 RR 91-94). His t
Page 83 and 84:
United States v. Waddell, 507 F.2d
Page 85 and 86:
wore no mask or disguise. (32 RR 89
Page 87 and 88:
101 to lie in a group, either in a
Page 89 and 90:
proposed a crime-scene expert who c
Page 91 and 92:
were remarkably similar to the Fair
Page 93 and 94:
operandi inadmissible. This Court h
Page 95 and 96:
First Point of Error. Precluding Re
Page 97 and 98:
Exhibits 58, 60). See also (45 RR 3
Page 99 and 100:
the defense could not point to the
Page 101 and 102:
In any event, there was evidence sh
Page 103 and 104:
esult was a prosecution case untest
Page 105 and 106:
43 RR Defense Exhibits 7, 8, and 9
Page 107 and 108:
testimony (via admission through st
Page 109 and 110:
1970-1980 Representation of Women A
Page 111 and 112:
CODE CRIM. PROC. Arts. 19.01; 19.06
Page 113 and 114:
and Appellant’s right to a fair c
Page 115 and 116:
section and due process claims. See
Page 117 and 118:
RR 19). Because the State failed to
Page 119 and 120:
159 including Sims’s shirt, bulle
Page 121 and 122:
degree of negligence involved, the
Page 123 and 124:
ecause of factual insufficiency. Wa
Page 125 and 126:
present a defense. Because the pros
Page 127 and 128:
Finally, ineffective counsel missed
Page 129 and 130:
Sgt. Clawson and Officer Willoughby
Page 131 and 132:
State’s Exhibit 108). The content
Page 133 and 134:
[accused’s] statement to be a req
Page 135 and 136:
protecting the rights of suspects d
Page 137 and 138:
Following Appellant’s second puta
Page 139 and 140:
617 S.W.2d 211, 221 (Tex. Crim. App
Page 141 and 142:
unimpeached, or contradicted.” Th
Page 143 and 144:
198 (Tex. Crim. App. 1977). Failure
Page 145 and 146:
to instruct the jury on this issue
Page 147 and 148:
202 circumstantial evidence charge)
Page 149 and 150:
the defendant proffers in support o
Page 151 and 152:
ight to present reliable evidence o
Page 153 and 154:
Court should set aside Soffar’s d
Page 155 and 156:
introduce relevant mitigating evide
Page 157 and 158:
out of place) and (3) that the atte
Page 159 and 160:
(d) The trial court committed rever
Page 161 and 162:
considering, and may not refuse to
Page 163 and 164:
PROCEDURE Article 37.071, by the Si
Page 165 and 166:
element of a greater offense.” Ri
Page 167 and 168:
eyond a reasonable doubt. The trial
Page 169 and 170:
polled and stated unanimous agreeme
Page 171 and 172:
the difference between life and dea
Page 173 and 174:
231 and 430% more than San Antonio.
Page 175 and 176:
seek the execution of death-eligibl
Page 177 and 178:
Crim. App. 1986). Where a preponder
Page 179 and 180:
243 law was the only plausible reas
Page 181 and 182:
Conclusion and Prayer WHEREFORE, PR
Page 183 and 184:
Appendix A Shared Characteristics C
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