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

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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 3<strong>75</strong>). 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
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 and 26: TEX. CODE OF CRIM. PROC. Art. 19.06
Page 27 and 28: TO THE COURT OF CRIMINAL APPEALS OF
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: owling alley and Bloomfield entered
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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NO. AP-75,363 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ...

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