IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-97,370-01
EX PARTE DESHAWN FORTEE BROWN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1630565-A IN THE 179th DISTRICT COURT
HARRIS COUNTY
Finley, J., filed a dissenting opinion in which Parker,
J., joined.
DISSENTING OPINION
This is an unusual whodunit case. Applicant and Devin Francis were both
in a vehicle that evaded from Harris County Deputy Constable Matthew
Buenrostro before running a red light, crashing into another car, and colliding with
a concrete pillar under a highway underpass. Francis died from his injuries
sustained as a result of the crash, but Applicant survived.
BROWN DISSENT — 2
Applicant was indicted for the offense of felony murder. See Tex. Penal
Code § 19.02(b). The State’s theory at trial was that Applicant was the driver of
the vehicle and, while committing the felony offense of evading arrest with a motor
vehicle, Applicant committed an act clearly dangerous to human life—running the
red light—causing Francis’s death. Applicant’s defensive theory was that he was
not the driver of the vehicle. But the jury did not believe him, and he was convicted
and sentenced to thirty years’ confinement.
In the instant habeas application, Applicant argues that his trial counsel,
Pete Justin, was ineffective for six different reasons, see infra at 38, 78–94
(discussing Applicant’s ineffective assistance of counsel claims). The habeas court
held an evidentiary hearing, considered the trial evidence as well as Applicant’s
proffered habeas evidence, and, with the benefit of argument from both the State’s
and Applicant’s habeas counsel, signed lengthy, detailed findings of fact and
conclusions of law recommending this Court deny habeas relief.
This Court instead grants relief without much explanation: “However,
based on the record, this Court has determined that trial counsel’s performance
was deficient and that Applicant was prejudiced.” Ante at 2 (Court’s Op.). This
conclusion is unsupported by the record and should be soundly rejected. Rather, I
BROWN DISSENT — 3
would defer to the habeas court’s findings of fact and conclusions of law that are
supported by the record and recommend relief be denied. I respectfully dissent.
I. Trial Evidence
On May 5, 2019, Deputy Buenrostro was patrolling Harris County Precinct
5 and was parked at the intersection of North Eldridge Parkway and Memorial
Drive. Below is a screenshot from State’s Exhibit 1, Deputy Buenrostro’s dash
camera, at the 0:00 timestamp, depicting the intersection in question.
Deputy Buenrostro testified that while he was sitting at the intersection, he
“observed a vehicle coming from the — from the far left lane, which was a left
turn only lane, enter the intersection while the light was red. I then initiated, or
activated my emergency lights and proceeded behind the vehicle. The vehicle then
took off at a very high rate of speed.” State’s Exhibit 1 depicts Deputy Buenrostro
BROWN DISSENT — 4
stopped for approximately twenty-five seconds before the vehicle in question, a
black Ford Fusion, enters the frame at timestamp 0:25.
Deputy Buenrostro then began to pursue the Fusion. Here is the video at
timestamp 0:30.
BROWN DISSENT — 5
Deputy Buenrostro testified that the speed limit on North Elridge Parkway is 35
miles per hour but that the fleeing Fusion was traveling above 80 miles per hour.
Below are the still shots of timestamps 0:35 and 0:40.
BROWN DISSENT — 6
And again, State’s Exhibit 1 at timestamp 0:45.
At this point, Deputy Buenrostro testified that the Fusion was approaching the
intersection of North Elridge Parkway and the Katy Freeway service road. State’s
Exhibit 1 at timestamp 0:48 below.
BROWN DISSENT — 7
Deputy Buenrostro testified that the Fusion entered the intersection, running a
second red light. The Fusion hit another vehicle attempting to turn left to go
eastbound on the Katy Freeway service road. Below is State’s Exhibit 1 at
timestamp 0:49.
Followed by the collision one second later at timestamp 0:50.
BROWN DISSENT — 8
Five seconds after impact, at timestamp 0:55, Deputy Buenrostro’s vehicle has
almost entered the intersection. The white vehicle has come to a rest against the
curb after completing a full 360-degree spin. The Fusion is behind the white
vehicle, at rest having collided with a concrete pillar under a highway underpass.
Deputy Buenrostro enters the intersection at timestamp 0:58.
BROWN DISSENT — 9
He then proceeds into the intersection and repositions his vehicle to block traffic,
facing the crashed Fusion. He parks his vehicle at timestamp 1:07.
At trial, Deputy Buenrostro testified that he never lost sight of the vehicle as he
was pursuing it. The above videographic evidence supports this testimony.
The following testimony was elicited about Deputy Buenrostro’s actions
after the crash:
Q. So once the collision occurred what did you do next?
A. I — I got on the radio and advised our dispatch of the accident
at the intersection. I then pulled up in view so I can view the
black vehicle, parking my vehicle. I then exited, and walked up
to the black vehicle and observed the driver in the driver’s seat
and started to render aid the best I could until EMS could get
there.
Q. Now, when you walked up to the driver’s seat, did you see
someone behind that wheel?
BROWN DISSENT — 10
A. Yes.
Q. Who was that?
A. Deshawn Brown.
* * *
Q. Do you recall what color shirt he was wearing?
A. It was like a mixture of green and blue, if you mixed the two
colors together.
Q. As you’re walking up to the vehicle, or on your dash cam, can
you see someone peeking out from under the driver side
airbag?
A. Yes.
Q. What color shirt are they wearing?
A. It looks like a green-ish blue color.
* * *
Q. Now, did you see that person come from underneath that
airbag?
A. Yes.
Q. Does it appear that they are in the driver’s seat?
A. Yes.
Q. How did they ultimately exit that vehicle?
A. Through the rear driver’s side window . . . The defendant
exited the vehicle from the rear driver’s side window. He
BROWN DISSENT — 11
crawled from out of the driver’s side seat into the rear of the
vehicle and then exited from the rear driver’s side window.
This testimony reflects State’s Exhibit 1 at timestamp 1:17. Applicant’s head first
poked out one second sooner, at 1:16.
And again at timestamp 1:19, but zoomed in.
BROWN DISSENT — 12
Deputy Buenrostro then walked up to the passenger side of the vehicle. He
testified:
Q. At any point did you walk up to the vehicle and see someone
in the passenger’s seat?
A. Yes, I did.
Q. And through your investigation were you able to get an identity
of who that passenger was?
A. Yes.
Q. What was their name?
A. Devin Francis.
Q. And can you just describe for the jury how they were
positioned when you came up on that vehicle?
A. So whenever I walked up to the vehicle I walked up to the
passenger’s side, I observed Mr. Francis in the passenger’s
seat with his head against — head and back against the driver’s
side door.
Q. Just for clarity, was it the driver’s side door?
A. I mean the passenger’s side door. The passenger’s side door,
half of his body was still in the passenger’s seat, while the other
half had been, well, from the legs down had been laid across
the vehicle all the way over to — into the driver’s seat of the
vehicle.
Q. So just for clarification, when you say half of his body, was he
sitting with his back up against that passenger door?
A. That is correct.
BROWN DISSENT — 13
Q. And his legs were across the center console?
A. That is correct.
Q. Was he able to get himself out of that vehicle?
A. He was not.
Q. How did he get out of the vehicle?
A. He had to be extracted by the — once EMS and fire arrived on
scene they had to extract him from the vehicle.
Q. What is extraction, what does that mean?
A. They had to physically get him out of the vehicle. He was
trapped inside the vehicle, could not get the door open. He had
to be pulled out from the vehicle.
Q. Did it appear that he was injured?
A. Yes.
Q. Did it appear that he was unable to climb out of the vehicle or
move around in the vehicle like the defendant could?
A. That is correct.
On cross-examination, Deputy Buenrostro testified:
Q. And describe again for me, or for the jury, how the — the
person that you say you claim was in the passenger’s seat,
okay.
A. Okay.
Q. How is he positioned?
BROWN DISSENT — 14
A. He was positioned with — so whenever I walked up to the
passenger’s side he was positioned with his head — head and
back on the passenger’s side door with his upper half from
head to waste [sic] was still in the passenger’s seat, but I’m
assuming due to the crash his body got turned and was — his
lower half was on top of the center console.
Q. The lower — you’re talking about his leg?
A. From the waist down, correct.
Q. Okay. So, would you agree with me that the impact of this
collision was fairly severe?
A. Yes, very severe.
* * *
Q. Let’s just assume for purposes of my question that the
passenger was sitting in the passenger’s seat. When you
observed the passenger, his body had been completely turned
around, if, in fact, he was sitting in the passenger’s seat,
correct?
A. Completely turned around? No.
Q. Turned around sideways I mean?
A. Turned sideways, yes.
* * *
Q. Do you know whether or not anybody crawled out from
underneath that body?
A. The body —
BROWN DISSENT — 15
Q. You didn’t see anybody crawl out from underneath the body,
did you?
A. Whose body are you referring to?
Q. The deceased?
A. Did anyone crawl from —
Q. Did you see anyone crawl out from underneath that body?
A. No.
* * *
Q. So what exactly was he doing the first time you saw him?
A. He was in the passenger’s seat, and he had moved the —
moved the airbag out from in front of his face and was just still
in the — in the driver’s seat of the vehicle.
Q. Then what - then what did he do?
A. After that he started to crawl back in — crawl into the rear of
the vehicle. At that point he then was helped — was — I guess
you could say escorted out of the vehicle by the other deputy
that arrived on scene next.
Q. Well, he was kind of helped out or pulled out and threw on the
sidewalk, correct?
A. That is correct.
* * *
Q. The — I just want to clear up one thing. The person you claim
to be the passenger, or person you found on the passenger’s
side, okay?
BROWN DISSENT — 16
A. Yes.
Q. He wasn’t pinned in the vehicle, like from the front of the
vehicle, the vehicle was pinned up against the column and he
couldn’t open the door, right?
A. The door could not be opened and I wasn’t — I didn’t want
to, you know, attempt to remove him through the window, just
because I didn’t know the extent of his injuries, I didn’t want
to move him around too much. I just kept telling him try to stay
still. Tried to keep him awake, because like I said earlier, he
was going in and out of consciousness. There was times where
I was asking him questions and I would get no response. There
was times I was asking him questions and all I would get was
just a groaning sound.
Q. Right. But I just want to clarify, when you testified earlier he
was extracted from the vehicle, it wasn’t that the vehicle in the
course of the crash came down on him and kept him in his seat.
It was because the door was up against the column and you
couldn’t open the door, right?
A. The door had hit the column, but the door couldn’t be opened
just because due to the accident.
Q. Okay.
A. There was no way to open the vehicle, like to pull, like, pull the
vehicle — pull the door open from the vehicle.
The State introduced several photographs from the scene of the crime. Deputy
Buenrostro testified that he spent approximately six hours on the day of the
offense at the scene of the crash. State’s Exhibits 12 through 15 can be found in
Appendix A of this opinion.
BROWN DISSENT — 17
Next, the State called Harris County Deputy Constable T-Gre Fields, who
testified that he arrived second on scene to assist with traffic control and to render
aid to the individuals involved in the crash. To provide context for Deputy Fields’s
testimony, below is State’s Exhibit 1 at timestamp 2:51. Deputy Fields can be seen
holding up the driver’s side airbag.
Deputy Fields testified:
Q. Okay. Let’s play the dash cam. Publishing State’s Exhibit No.
1 at 2:46.
(Video playing.)
Q. Pausing there, what did you just do in this camera?
A. I just looked inside to see who was in the vehicle and see.
Q. And what did you have to move to look inside that vehicle?
BROWN DISSENT — 18
A. The airbag.
Q. Is it fair to say the airbag is blocking the view into the vehicle?
A. Yes.
Q. And so when you touched the airbag, you moved that airbag,
are you able to see inside?
A. Yes.
Q. And where are — that man with the blue and green shirt, the
light green shirt, do you know who I’m talking about?
A. Yes.
Q. Are you able to see the color of the shirt of the man in the
driver’s seat?
A. Yes.
Q. And what color was that shirt?
A. It was like a green, greenish color, blue color.
Q. Okay.
A. Yeah.
Q. So when you move that airbag, where are his feet?
A. They’re right there under the steering wheel.
Q. Right by, like, on the driver’s seat by the steering wheel?
A. Yeah.
Q. Because now he’s trying to climb in the back; is that right?
BROWN DISSENT — 19
A. Yes.
Q. Now, when you move that airbag do you hit anyone’s feet?
A. No.
Q. Are you able to actually see the passenger when you move the
airbag?
A. Yes.
Q. Now, did his feet, when you move that airbag did you touch his
feet?
A. No.
Q. And when I say that, ultimately you did get a chance to look at
the passenger, right?
A. Yes.
Q. Okay. And how was he positioned in that car?
A. He’s positioned with his back to the, hmm, passenger door.
Q. Okay. So if I’m in the passenger seat, I would be turned
sideways with my back to the door?
A. Yes.
Q. Okay. And his feet — was he injured when you arrived on the
scene, the passenger?
A. Yes, he was unconscious.
* * *
BROWN DISSENT — 20
Q. And so when you saw that passenger and you saw how he was
laying, you mentioned where was his back?
A. It was to the passenger door.
Q. And where was his — his body, where was his butt sitting?
A. Repeat the question.
Q. What seat was he sitting in?
A. The passenger seat.
Q. Okay. And it’s not — was he sitting on the center console?
A. No.
Q. Was he sitting on the floor?
A. No.
Q. The dashboard?
A. No.
Q. Where was he sitting?
A. He was in the passenger seat.
On cross-examination, Deputy Fields testified:
Q. And can you describe for the jury what — when you said that
the — who you believed to be the passenger was lying diagonal
across the passenger’s seat, what did you mean by that?
A. It was — he was positioned, like, with his back, I don’t know,
it was almost like he was — it was something was broken, I
BROWN DISSENT — 21
don’t know, it was a weird way, but his back was laying to the
passenger door.
Q. And where were his feet at?
A. I can’t recall where his feet was, but I remember where his back
was.
Q. Well, you — I’m not trying to quarrel with you. You used the
term diagonally. What did you mean by that?
A. The top portion of his body was turned. It looked like he was
bent.
Q. And where were his feet at?
A. I can’t recall where his feet was, but I just remember his body,
the way his body was positioned.
On re-direct examination, the State introduced through Deputy Fields additional
photographs of the crash scene. State’s Exhibits 25, 27, and 28 can be found in
Appendix B of this opinion.
The State then called Houston Police Department Officer Hunter Pulling.
Officer Pulling testified that he reported to the scene of the crash and performed
an inventory of the Ford Fusion at the scene. Officer Pulling testified:
Q. So when you walked around that black vehicle what did you
observe inside?
A. When I walked around the passenger side of the vehicle in
plain view on the passenger floorboard I observed a handgun,
a pistol.
BROWN DISSENT — 22
Q. Okay. And as you got further into an inventory search later on
that night did you discover anything else inside that vehicle?
A. Yes. It was brought to my attention that there was a second
pistol located inside the passenger door, so I went to see for
myself, and as soon as I walked up to the passenger side I
looked in the door and there was a second pistol.
Q. And ultimately when you conducted the inventory search were
you able to look inside that vehicle in different places?
A. Yes.
The State introduced photographs of both firearms found in the Ford Fusion.
They are included in Appendix C of this opinion. Officer Pulling testified that
when he ran the serial number of one of the firearms—the one located inside the
passenger door— it returned as stolen.
On cross-examination, Applicant elicited the following testimony:
Q. Did you find a pair of shoes in the front seat?
A. I observed a pair of shoes, yes.
Q. And where were they located at?
A. Where?
Q. Yes.
A. I believe it was the passenger floorboard.
Q. And did you notice in the video when you looked at it, did you
notice how when he was laying out, when Mr. Brown was
BROWN DISSENT — 23
laying on the ground he didn’t have — didn’t have any shoes
on?
A. I did not pay attention to his feet.
Q. Oh. All right. And you certainly wouldn’t know whether or not
those shoes fit Mr. Brown or not, would you?
A. Can you repeat that, please.
Q. You wouldn’t know whether or not those shoes fit Mr. Brown
or not, would you?
A. I would not, no.
* * *
Q. Do you recall at this time whether or not the deceased, Mr.
Francis, do you recall whether or not he had shoes on?
A. He did not actually. I do remember that.
Q. He didn’t — you remember him not having shoes but you
don’t remember whether or not Mr. Brown had shoes or not?
A. No, sir, because when I first got on scene my direct attention
was to the passenger.
* * *
Q. In the course of your investigating automobile accidents, are
bodies often or sometimes shifted around during the course of
an accident, in the force of an accident?
A. Yes, if they’re not wearing their seat belts.
* * *
BROWN DISSENT — 24
Q. Well, was — your observation, was Mr. Francis wearing a seat
belt?
A. I — could not tell you if he was or wasn’t from initially being
on the scene.
The State then introduced evidence that Applicant was later transported to
a hospital and consented to a blood draw. Houston Police Department Sergeant
David Rose testified that he collected the airbags from the Ford Fusion to facilitate
testing to determine who the driver of the vehicle was. Deputy Rose testified that
“if there is DNA on [a driver’s side] airbag, whether it’s blood, sweat, skin cells,
things of that nature, it is almost entirely going to be that driver unless other people
go into the car after the crash,” which is why it is important for responding officers
to wear gloves to “not put our DNA on the airbag.” On cross-examination,
Applicant elicited the following admission:
Q. Officer, if somebody’s got — the airbag is deployed and
somebody is bleeding and they’re attempting to get out of the
vehicle and they touched or had that blood on the airbag, is that
possible?
A. I’m not sure I understand your question. You’re saying is it
possible if that blood is from somebody touching it that is
trying to get out of the vehicle?
Q. Yes.
A. It is quite possible something like that could happen, but that
particular pattern, to me, indicates where it is in the center —
BROWN DISSENT — 25
a lot of times when we see people trying to get out of airbags
there’s blood splatter from the person bleeding rubbing up
against it, so we would see smears, we would see drops. We
wouldn’t necessarily see that center pattern.
Houston Police Department Officer D. Hoang testified that he was assisting
Sergeant Rose in the collection of the airbags from the vehicle. Officer Hoang
testified that he and Sergeant Rose collected the side, front, and curtain airbags
from both the driver’s and passenger’s side of the vehicle for analysis.
The State then called Fatima Flores Perez, a production lead at the Houston
Forensic Science Center in the forensic biology division. Perez testified that she
screened the items of evidence submitted by the police in this case for possible
contact DNA and for possible blood. She testified that any items that
presumptively tested positive for human blood were sent for further DNA testing.
Additionally, she testified that cuttings from airbags were sent for further testing
for touch DNA.
The State then called Marcel Weigel, a forensic analyst for the biology
department of the Houston Forensic Science Center. Weigel testified that he did
the DNA interpretation of the cuttings collected from the evidence in this case.
Weigel also testified that he compiled his results in a report, which was introduced
BROWN DISSENT — 26
as State’s Exhibit 54 at Applicant’s trial. As relevant here, Weigel observed the
following about the DNA results in this case:
Item 9.1.1 (Portion of swabs from front of “Driver’s Airbag Steer
Wheel”)
A mixture of DNA from at least four contributors . . . was
obtained from [the steering wheel airbag]. . . . The DNA results are
approximately 6.46 octillion 1 times more likely if they originated from
[Applicant] and three unknown, unrelated individuals than if they
originated from four unknown, unrelated individuals. Based on the
likelihood ratio, this provides very strong support that [Applicant] is
a contributor to the DNA from this item.
Item 9.2.1 (Portion of stain from
Driver’s Airbag Steer Wheel”)
Item 10.2.1 (Portion of stain from side A of “Driver’s Side
Curtain Airbag”)
Item 10.4.1 (Portion of stain from side B of “Driver’s Side
Curtain Airbag”)
A single-source male DNA profile was obtained from these
items. The DNA results are approximately 12.3 octillion times more
likely if they originated from [Applicant] than if they originated from
an unknown, unrelated individual. Based on the likelihood ratio, this
provides very strong support that [Applicant] is a contributor to the
DNA from this item. 2
1
An octillion is 1 followed by 27 zeros, written as 1,000,000,000,000,000,000,000,000,000. 2
Weigel confirmed that, unlike the Item 9.1.1. above, the samples in this group originated from a single individual.
BROWN DISSENT — 27
Item 10.1.1 (Portion of swabs from side A of “Driver’s Side
Curtain Airbag”)
A mixture of DNA from at least four contributors, at least two
of whom are male, was obtained from this item. This mixture was
resolved assuming four contributors. The DNA results are
approximately 11.4 octillion times more likely if they originated from
[Applicant] and three unknown, unrelated individuals than if they
originated from four unknown, unrelated individuals. Based on the
likelihood ratio, this provides very strong support that Applicant is a
contributor to the DNA from this item. 3
Item 10.3.1 (Portion of swabs from side B of “Driver’s Side
Curtain Airbag”)
A mixture of DNA from at least three contributors, at least
three of whom are male, was obtained from this item. This mixture
was resolved assuming three contributors. The DNA results are
approximately 235 septillion 4 times more likely if they originated
from [Applicant] and two unknown, unrelated individuals than if
they originated from three unknown, unrelated individuals. Based on
the likelihood ratio, this provides a very strong support that
[Applicant] is a contributor to the DNA from this item.
Item 11.1.1 (Portion of swabs from front of “Passenger Front
Airbag”)
A mixture of DNA from at least three contributors, at least two
of whom are male, was obtained from this item. This mixture was
resolved assuming three contributors. The DNA results are
approximately 66.2 quadrillion 5 times more likely if they originated
from [Applicant] and two unknown, unrelated individuals than if
3
Weigel testified that it was “possible” that someone reaching into the vehicle before the airbag was cut out could potentially be a contributor to the DNA left on the airbag. 4
A septillion is 1 followed by 24 zeros, written as 1,000,000,000,000,000,000,000,000. 5
A quadrillion is 1 followed by 15 zeros, written as 1,000,000,000,000,000.
BROWN DISSENT — 28
they originated from three unknown, unrelated individuals. Based on
the likelihood ratio, this provides very strong support that Applicant
is a contributor to the DNA from this item. 6
Item 11.2.1 (Portion of stain from “passenger Front Airbag”)
Item 12.1.1 (Portion of stain from side A of “Passenger Side
Curtain Airbag”)
Item 12.2.1 (Portion of stain from side B from “Passenger Side
Curtain Airbag”)
A single-source male DNA profile of unknown origin . . . was
obtained from these items. [Applicant] is excluded as a contributor to
this DNA profile.
(My emphasis). On cross-examination, Weigel confirmed that while Applicant
was excluded as a contributor from the stains on the passenger airbags, he could
not say whether Francis was a contributor because no sample of Francis’s blood
was provided for testing.
The State then called Dr. Paulyann Maclayton, an assistant medical
examiner at the Harris County Institute of Forensic Sciences, who testified about
Francis’s autopsy. The autopsy report was admitted at trial as State’s Exhibit 70.
Dr. Maclayton testified that when Francis was examined, “there were areas of
physically bleeding under the skin from bruises, and there were also fractures of
6
Weigel testified that it would be “possible” to leave contact DNA by touching the airbag if someone in the driver’s seat contacted the airbag while trying to move into the backseat.
BROWN DISSENT — 29
the ribs and the clavicle and the sternum, and there was 400 milliliters of blood in
the right pleural cavity” where the right lung is located. Dr. Maclayton testified
that the “significance” of these findings was “blunt force trauma of the chest,
enough resulting in bleeding, extensive internal bleeding.”
For victim identification purposes, the State called Kimberly Callegari,
Francis’s mother. On cross-examination, Applicant elicited the following
testimony:
Q. The black car that crashed, you’re familiar with the black car,
right?
A. Yes.
Q. What kind of car was that?
A. Ford Fusion.
Q. And whose car was that?
A. It was Devin’s.
Q. How long had Devin owned it?
A. Maybe about six weeks. He had just gotten it.
Q. And did you ever see Devin driving it?
A. Yes, sir.
But on redirect examination, the State established:
BROWN DISSENT — 30
Q. Who was the car registered to?
A. Myself and, hmm, Devin’s girlfriend.
Q. Okay. So Devin wasn’t on the vehicle registration; is that
correct?
A. No, no.
And on recross examination:
Q. Let me make sure. I mean, I own my daughter’s car but I
couldn’t — I can’t take a foot in it, okay. So who — you’re
saying it was Devin’s car, he drove the car, right?
A. Yes.
The State’s final witness was Harris County District Attorney’s Office
Investigator Owen Bledsoe, the accident reconstructionist in Applicant’s case.
Investigator Bledsoe testified that he sought a search warrant to obtain the crash
data from the Fusion. The crash data (or CDR, “crash data retrieval”) showed
the following about the acceleration and braking of the Ford Fusion immediately
prior to the crash:
Q. So how fast was the defendant traveling 5 seconds before the
crash?
A. He was traveling approximately 92 miles per hour, 92.6 miles
per hour.
* * *
BROWN DISSENT — 31
Q. Now, the closest information we have to the time of impact is
— what speed was he traveling at?
A. Time 0 was showing about 81 miles per hour, the 81.8 that you
see.
* * *
Q. What can we see right before the crash occurs with the
accelerator?
A. That it’s 99 percent.
Q. Let’s talk about the braking. What can we tell about the brakes
from this information?
A. So, on that left-hand side it said the service brake on or off. You
have off at about the 5-second mark and then I think the next
stamp would be negative 4.5 seconds out. So I think it’s — yes,
negative 4.5 seconds out. And it shows that the brake is on. So
that’s just a quick tap of the brake essentially.
Q. Does it appear that the majority of the few seconds of the data
that we have that the brakes were not being applied?
A. Yes, sir.
Q. So would that be consistent with him not stopping at that
intersection at North Eldridge and 1-10?
A. Yes, sir, that would be consistent.
As to the deployment of the airbags, Investigator Bledsoe testified:
Q. So if somebody was sitting in the driver seat, we would expect
the side curtain airbag to make contact with them at
employment?
BROWN DISSENT — 32
A. Yes, sir.
Q. And if somebody’s sitting in the driver’s seat we would expect
the driver’s steering wheel bag to make contact with them?
A. Yes, sir.
Q. And if somebody’s sitting in the passenger seat you would
expect the same thing to occur, that side curtain airbag to make
contact with them?
A. Yes, sir.
Q. And we would expect it for the side passenger airbag, is that
correct, that would be to come out of the dash?
A. Yes, sir.
Q. Now, that being said, if somebody is repositioning themself in
a vehicle or climbing into the back seat, if they make — is it
possible for them to make contact with that passenger side
airbag? And I want to differentiate the side curtain one from
the one coming from the dash.
A. So the dash one, yeah, if you’re reaching around and fumbling
in a wrecked mangled car you could touch those front airbags,
both of them.
Detective Bledsoe testified about his opinion as to how the crash occurred:
Q. I want to talk about, through your investigation were you
ultimately able to come up with a conclusion as to how the
crash occurred?
A. Yes, sir, I was.
Q. What was that conclusion?
BROWN DISSENT — 33
A. That the Ford Fusion was traveling in northbound lane 3 of 3,
was struck on that driver’s side door as indicated that AOI no.
1, the area of impact is what that statement, they were struck
on that, you know, that driver’s door, and then the vehicles
continued on with the Ford Fusion striking the concrete pillar
on the passenger’s side, which is where that AOI no. 2 is
showing, and then after a rotation, actually the Lexus actually
spun a rotation, hit the curb line as you can see right there, and
unit one sees final rest position.
Q. And when we say AOI, what are we talking about there?
A. The area of impact, so that’s where the two vehicles met.
Q. So ultimately the fact that that Ford Fusion entered the
intersection on a red light caused that white Lexus to collide
with that vehicle?
A. Correct.
Detective Bledsoe then testified about his opinion regarding whether Applicant
and Francis could have switched seats during the crash:
Q. Now, based on your investigation and everything that you
reviewed in this case, would it be possible for the driver of the
vehicle to be removed from the driver’s seat and placed
underneath the passenger in the passenger’s seat?
A. No, sir, that’s not possible.
Q. And what’s the basis of that opinion?
A. The basis on that is if you have the passenger sitting in the
passenger’s seat and the driver, if they did collide, and let’s say
end up hitting the concrete pillar as they did, there shouldn’t
BROWN DISSENT — 34
be a swapping of seats or anything like that. I mean, if you’re
going to land on a passenger you can land on a passenger.
And after looking at the dash cam, you can see the Precinct 5
officer arriving in a 15-second timetable I think it was, and you
can see the person move directly off the driver’s seat, and he
is not moving very fast at all because he has injuries you can
see from the video. He gets pulled out of the back window
actually, because the driver door was already impacted from
the airbag number one, so he couldn’t even open the door. I
mean, it’s just — you see the driver, the officer was there on
top of him in no time. There’s no way, there’s not enough time
for a person to swap. He’s injured. He’s not moving that fast
at all.
On cross-examination, Applicant elicited the following testimony:
Q. The car — the car — did the car spin around?
A. The Ford Fusion?
Q. Yes.
A. No, sir.
Q. So just — just a return, just turned a bit and then hit the —
well, it hit the column?
A. He gets hit in the intersection, and with the roadway markings
you can kind of follow the path. If you look at the photos, he
hits the curb, goes airborne a little bit, because you lose
roadway markings through the photos, and hits on the side
against the concrete pillar.
Q. Would the striking of that pillar, that concrete pillar, would
that cause all the airbags to go off?
BROWN DISSENT — 35
A. That would cause front and side, yes, because of how hard it
was.
* * *
Q. Okay. Now, if — let’s just say when the Ford Fusion hit the
Lexus, and then went sideways, hit the curb, hit the pillar, what
are the purpose of seat belts?
A. To restrain the driver.
Q. So people can’t fly out of the car or things like that?
A. Yes, sir.
Q. Now, what’s the — or what’s the difference inside a vehicle in
a high-speed accident when someone is restrained and
someone’s not restrained, with seat belts?
A. In a high-speed, there’s a possibility for ejection if you’re not
wearing seat belts.
Q. And can’t — so it’s your testimony it’s impossible for
somebody — let me rephrase that. If you have two bodies in a
car that are unrestrained and an accident of this speed, aren’t
these bodies going to be flying around in that car?
A. Just —
Q. I don’t mean flying around in the air, but violent movement of
these two bodies, right?
A. Those bodies could move, yes, sir.
Q. And how much time elapsed between when the police officer,
the first officer arrived at the scene, how much time elapsed
between then and when you say you see somebody look out —
look out the passenger — or the driver’s window?
BROWN DISSENT — 36
A. 20 seconds I think it was.
Q. About 20 seconds, right?
A. Yeah.
Q. If you don’t mind, let’s take a look at the clock right here,
okay?
A. Okay.
Q. Starting now.
(Pause.)
Q. About 20 seconds, right?
A. Yes, sir.
Q. I should ask you if you can see that far. I can barely see that far.
A. I can see.
Q. So during that period of time you don’t know what was going
on inside that car at all, do you?
A. I can’t see in the video.
* * *
Q. And then if your testimony is directed by the State that the way
— well, explain how Mr. Brown’s DNA or blood would get
onto the passenger airbag, front airbag?
A. The passenger front airbag?
Q. Yes.
BROWN DISSENT — 37
A. I mean, DNA’s all over your body. A person could reach and
touch or do anything.
Q. Or — or he could be — he could be sitting in the passenger’s
seat too, right?
A. Not in this case.
Q. It’s not possible to be sitting in the front passenger seat and get
your DNA on the front passenger airbag?
A. If you’re sitting in the passenger you would expect it to be.
Q. Sir, you don’t know where he was sitting, do you?
A. Yes, sir, in the driver’s seat.
Q. Did you ever see him sitting in the driver’s seat?
A. I actually do, when he looks out the window, the only way he
could be looking out of it is by sitting in that driver’s seat.
Q. So you’re basing all your visual looking at the video and the —
looking at the video from the dash cam, right?
A. Basing it off the dash cam from the video of the Precinct 5
vehicle.
* * *
Q. Which police officer is the wheel witness?
A. Should be Buenrostro, the person that was — initiated the
vehicle pursuit, he got out on video from his patrol vehicle and
walks around the vehicles and looks at the persons involved.
Q. At that point in time Mr. Brown was already trying to get out
of the back, wasn’t he?
BROWN DISSENT — 38
A. Yes, sir.
Q. Okay.
A. But —
Q. So where is the — how — he didn’t see him at the wheel, did
he?
A. He saw him in the driver seat because we can see that on the
video.
Q. Do you know how he got on the driver’s seat?
A. I’m assuming he sat in it when he first got in the car.
Q. And do you know whether or not the owner of that car or
anybody else ever drive this car?
A. No, sir, I don’t.
Based on all of this evidence, the jury ultimately rejected Applicant’s defense that he
was not the driver, and Applicant was convicted of felony murder and sentenced to
thirty years’ confinement.
II. Habeas Claims
Relevant to his ineffective-assistance-of-counsel claim, Applicant raises six
sub-claims: (1) Trial counsel was ineffective for failing to investigate Applicant’s
claim that he was not the driver at the time of the crash; (2) Trial counsel was
ineffective for failing to hire experts to challenge the State’s forensic evidence; (3)
Trial counsel was ineffective for failing to have the decedent’s DNA compared to
BROWN DISSENT — 39
the DNA on the airbags; (4) Trial counsel was ineffective for failing to investigate
or present a concurrent causation defense; (5) Trial counsel was ineffective for
failing to object to testimonial autopsy evidence in violation of the Confrontation
Clause; and (6) Trial counsel was ineffective for failing to object to improper
argument at closing.
III. Habeas Evidence
a. Lay-witness affidavits
Applicant signed an affidavit in support of his claims. In his affidavit,
Applicant avers that he was not driving the Ford Fusion on the day of the crash,
but rather that Francis was. Applicant states that he was wearing Adidas slides on
the day of the crash, and Francis was wearing Adidas tennis shoes. Applicant
further states that he told his trial counsel about this fact, as well as witnesses that
would have corroborated that Francis was driving the Ford Fusion earlier on the
day of the crash. He also states that a rose gold-colored cell phone found on the
passenger floorboard next to the Adidas slides belonged to him. Several lay
witnesses that are friends or family members of Applicant signed affidavits
supporting Applicant’s claims.
On direct appeal, Applicant challenged the denial of a motion for new trial
which alleged ineffective assistance of trial counsel for failing to adequately
BROWN DISSENT — 40
investigate Applicant’s role in this case. Applicant specifically included affidavits
from a friend, his sister, his wife, and his mother in support of his motion for new
trial. The trial court denied Applicant’s motion for new trial, and the court of
appeals affirmed. Brown v. State, No. 01-23-00197-CR, 2024 WL 3941067, at *7
(Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet.). The court of appeals
reasoned:
In sum, [Applicant]’s new-trial motion presented lay testimony from
friends and family who did not witness the car crash and their
opinions that [Applicant] was not driving based on photos taken after
the crash. In contrast, the State presented evidence from multiple law
enforcement officers who either witnessed the accident or responded
immediately after, along with forensic and reconstruction experts, all
of whom testified [Applicant] was driving. In light of the State’s
evidence presented at trial, [Applicant]’s evidence attached to his
new-trial motion, even if it had been introduced at trial, likely would
not have changed the outcome. Thus, [Applicant] has not alleged
facts to show the second prong of the Strickland test, that but for his
trial counsel’s errors, the result of his trial would have been different.
Id. at *5 (internal citation omitted).
To the extent Applicant re-urges this lay-witness claim as an independent
basis for post-conviction habeas relief, this claim was raised and rejected on direct
appeal and is not cognizable on habeas. Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.
Crim. App. 2004). Consequently, only Applicant’s newly discovered evidence is
considered.
BROWN DISSENT — 41
b. Michael D. Freeman
Freeman is a consultant in forensic medicine and was hired by Applicant to
“provide expert opinions . . . with the specific goal of determining whether
[Applicant] was most probably the driver or passenger” during the crash.
Freeman asserts that “it is a physical impossibility for [Francis] to have been in
the passenger seat at the time of the crash, and thus it is certain that [Applicant]
was not driving at the time of the crash but rather was in the front passenger seat.”
Freeman states that this conclusion is based on “the recent finding of DNA
transfer evidence on the driver’s side frontal airbag and side curtain airbag from
both Mr. Francis and Mr. Brown. The fact that the DNA was found on the airbag
indicates that it was transferred at the time of, rather than prior to the crash.”
Freeman further claims that the initial frontal impact during the crash would have
caused the occupants to move “forward inside the vehicle and toward the
deploying airbags.” The second collision—into the underpass barrier—would
have caused “both occupants [to be] thrown to the right, and toward the passenger
side.”
Freeman also makes the following assertions:
5. [Francis] was found lying against the passenger side door,
with the only physically plausible explanation for his final position in
the vehicle and his DNA evidence on the driver’s side airbags is that
BROWN DISSENT — 42
he was initially in the driver’s seat during the first impact and was
ejected from the driver’s seat into the passenger seat after the airbag
deployments, and during the second impact.
6. [Applicant]’s DNA was also found on the driver’s side
airbags; however this finding is explained by [Applicant]’s post-crash
movement to self-extricate out the driver’s side of the vehicle, rather
than his pre-crash position. Because the passenger side of the vehicle
was inaccessible after the crash due to the position of the vehicle
against the barrier, [Applicant] had no choice but to attempt to exit
the vehicle via the driver’s side. When his head is first seen on the
dash cam images it is obvious from the orientation of his head that he
is on his hands and knees having crawled into the driver’s seat (as he
is oriented in a perpendicular position relative to the long axis of the
car, and prone [face down] position), rather than in a seated position
with his head rotated to the left.
7. [Francis]’s DNA was not found on the passenger side
frontal airbag, which is also consistent with his position in the
driver’s seat during the initial frontal impact.
c. Jeff Gurvis
Jeff Gurvis is a blood stain pattern analyst. Applicant hired him to analyze
“the blood stain evidence on the driver’s side steering wheel air bag” as well as
Deputy Rose’s trial testimony.
In his affidavit, Gurvis states:
[T]he blood stains on Item 9 are in fact swipes and transfers
(smears), and could have been caused by someone who is bleeding
that rubs up against the air bag as they attempt to exit the vehicle. I
do not agree with Rose’s testimony about Item 9.2.
BROWN DISSENT — 43
I also believe that defense counsel should not have asked this
law enforcement officer about blood evidence, and should have
instead hired an expert on blood stain analysis to opine on Item 9.2.
If I had been called to testify in this case, I would have said that
Item 9.2 is a smeared blood stain that could have been caused by a
bleeding person rubbing up against the air bag.
d. DNA Testing
The Houston Forensic Science Center issued a report on May 21, 2025.
The Report details findings made after Francis’s blood and DNA were tested
against the items taken from the Ford Fusion. The Report shows:
Item 9.1.1 (Portion of swabs from front of “Driver’s Airbag Steer
Wheel”)
The DNA results are approximately 919 septillion times more
likely if they originated from [Francis] and three unknown, unrelated
individuals than if they originated from four unknown, unrelated
individuals. Based on the likelihood ratio, this provides very strong
support that [Francis] is a contributor to the DNA from this item.
The DNA results are approximately 50.6 septendecillion7
times more likely if they originated from [Francis], [Applicant] and
two unknown, unrelated individuals than if they originated from four
unknown, unrelated individuals. Based on the likelihood ratio, this
provides very strong support that [Francis] and [Applicant] are
contributors to the DNA from this item.
7
A septendecillion is 1 followed by 54 zeros, written as 1,000,000,000,000,000,000,000,000, 000,000,000,000,000,000,000,000,000,000.
BROWN DISSENT — 44
Item 9.2.1 (Portion of stain from “Driver’s Airbag Steer
Wheel”)
Item 10.2.1 (Portion of stain from side A of “Driver’s Side
Curtain Airbag”)
Item 10.4.1 (Portion of stain from side B of “Driver’s Side
Curtain Airbag”)
[Francis] is excluded as a possible contributor to the DNA
from these items.
Item 10.1.1 (Portion of swabs from side A of “Driver’s Side
Curtain Airbag”)
The DNA results are approximately 19.0 billion 8 times more
likely if they originated from [Francis] and three unknown, unrelated
individuals than if they originated from four unknown, unrelated
individuals. Based on the likelihood ratio, this provides very strong
support that [Francis] is a contributor to the DNA from this item.
The DNA results are approximately 1.70 duodecillion9 times
more likely if they originated from [Francis], [Applicant] and two
unknown, unrelated individuals than if they originated from four
unknown, unrelated individuals. Based on the likelihood ratio, this
provides very strong support that [Francis] and [Applicant] are
contributors to the DNA from this item.
Item 10.3.1 (Portion of swabs from side B of “Driver’s Side
Curtain Airbag”)
The DNA results are approximately 118 septillion times more
likely if they originated from [Francis] and two unknown, unrelated
8
A billion is 1 followed by 12 zeros, written as 1,000,000,000,000.
9
A duodecillion is 1 followed by 39 zeros, written as 1,000,000,000,000,000,000,000,000,000, 000,000,000,000.
BROWN DISSENT — 45
individuals than if they originated from three unknown, unrelated
individuals. Based on the likelihood ratio, this provides very strong
support that [Francis] is a contributor to the DNA from this item.
The DNA results are approximately 12.5 septendecillion times
more likely if they originated from [Francis], [Applicant] and an
unknown, unrelated individual than if they originated from three
unknown, unrelated individuals. Based on the likelihood ratio, this
provides very strong support that [Francis] and [Applicant] are
contributors to the DNA from this item.
Item 11.1.1 (Portion of swabs from front of “Passenger Front
Airbag”)
Based on the likelihood ratio result, [Francis] is excluded as a
possible contributor to the DNA from this item.
Item 11.2.1 (Portion of stain from “Passenger Front Airbag”)
Item 12.1.1 (Portion of stain from side A of “Passenger Side
Curtain Airbag”)
Item 12.2.1 (Portion of stain from side B from “Passenger Side
Curtain Airbag”)
The DNA results are approximately 13.0 octillion times more
likely if they originated from [Francis] than if they originated from an
unknown, unrelated individual. Based on the likelihood ratio, this
provides very strong support that [Francis] is a contributor to the
DNA from these items.
e. Dr. Audrey Nath
Dr. Audrey Nath is a physician specializing in neurology. She serves on the
faculty of the University of Texas Medical Branch. Dr. Nath avers that “while
BROWN DISSENT — 46
[Francis] sustained several blunt force injuries from the motor vehicle collision,
these injuries on their own would be unlikely to cause immediate cardiorespiratory
arrest within minutes of the accident.” She further states that the administration
of midazolam “likely had a major role in triggering the cardiorespiratory arrest
that led to [Francis]’s death. Additionally, the presence of promethazine in his
system likely caused a synergistic effect of both medication, making it likely that
these two medications worked together in causing cardiorespiratory arrest[.]” Dr.
Nash concludes:
The injuries caused by the car crash, including hemothorax, would
have been survivable by a general, 90% survival rate. The
administration of the midazolam, in conjunction with the
promethazine in the patient’s system, may have been sufficient by
itself to cause respiratory depression, leading to cardiac arrest even
in the absence of the injuries caused by the crash, including
hemothorax.
IV. Habeas Testimony
a. Applicant’s March 26, 2023 affidavit
Applicant signed a handwritten affidavit, which avers:
My name is Deshawn Brown I went to trail [sic] and once [sic]
convicted of felony murder. The conviction arose from a police
chase. I was passenger in the car, the driver was Devin Francis. Devin
was my friend, I’ve known Devin since I was 20 years old. Devin ran
a red light on Eldridge and the constable seen [sic] it, the police turns
on their lights and he speeds off. He says, “I can’t go back to jail, I
can’t go back to jail.” That’s when we go under I-10 and Eldridge
BROWN DISSENT — 47
and got hit from the driver side. The car drifted a distance and we hit
the pillar under the freeway which makes the passenger door
impossible to open. I used my upper body strength to get out the back
window behind the driver seat due to my hip being broke (right). A
police-man and pedistrian [sic] held me get out the car.
I did not testify because my attorney advised me not to testify. Had I
testified I woulda [sic] told the facts that I told here. Trevion was with
us before we went on Eldridge (Trevion Callegari). I told my attorney
about Trevion my attorney never talked to Trevion neither did he
testify in trail [sic].
b. Trial counsel’s affidavit
The habeas court signed an order requiring trial counsel to file an affidavit
responding to a list of questions proposed by Applicant. The questions and
answers are reproduced below:
1. When were you appointed to represent Deshawn Brown?
Answer: I was retained by Mr. Brown
2. What actions did you take to conduct an independent investigation
of Applicant’s claim that he was the passenger, not the driver?
Answer: Reviewed all the discovery including the videos
3. Did you ever consult with an independent accident reconstruction
expert during your investigation?
Answer: No
4. If you consulted with an independent accident reconstruction
expert, provide the name and contact information for the expert you
consulted with.
BROWN DISSENT — 48
Answer: I did not consult with an accident reconstruction
expert
5. If you did not consult with an independent accident reconstruction
expert, why didn’t you?
Answer: I did not feel that one was necessary
6. Did you consult with an independent blood spatter analyst during
your investigation?
Answer: No
7. If you consulted with an independent blood spatter expert, provide
the name and contact information for the expert you consulted with.
Answer: Did not consult one
8. If you did not consult with an independent blood spatter expert,
why didn’t you?
Answer: Did not think one was necessary
9. Did you ever request the HFSC to compare Francis’s DNA to the
DNA found on the airbags?
Answer: No
10. If you requested the HFSC to compare Francis’s DNA to the
DNA found on the airbags, please describe your communication
regarding this matter.
Answer: I did not contact them
11. If you did not request the HFSC to compare Francis’s DNA to
the DNA found on the airbags, why didn’t you?
Answer: Did not feel it was necessary
BROWN DISSENT — 49
12. Would it have been important to know that Francis’s DNA was
on the Driver’s Airbag Steering Wheel?
Answer: Yes
13. Would it have been important to know that Francis’s DNA was
on the Driver’s Side Curtain Airbag?
Answer: Yes
14. Would it have been important to know that Francis was excluded
as a possible contributor to the DNA on the swabs from the front of
the Passenger Front Airbag, while Applicant was a contributor?
Answer: Yes
15. Did you consult with an expert regarding the cause of death?
Answer: No
16. Would it have been important to know that while Mr. Francis
sustained several blunt force injuries from the motor vehicle
collision, these injuries on their own would be unlikely to cause
immediate cardiorespiratory arrest within minutes of the accident?
Answer: Yes
17. Would it have been important to know that the injuries caused by
the car crash, including hemothorax, would have been survivable by
a general 90% survival rate?
Answer: Yes
18. Would it have been important to know that the administration of
the midazolam, in conjunction with the promethazine in the patient’s
system, may have been sufficient by itself to cause respiratory
depression, leading to cardiac arrest even in the absence of the
injuries caused by the crash, including hemothorax?
BROWN DISSENT — 50
Answer: Yes
19. Explain why you did not object to Dr. Paulyann Maclayton’s
testimony about the autopsy results, which violated the
Confrontation Clause.
Answer: If I did not I do not know why
20. Explain why you did not object to the prosecutor providing an
opinion to the jury as to Mr. Brown’s guilt during their closing
argument. (During the State’s closing argument, the prosecutor
stated, “We want reasons why someone does something. We don’t
have to prove that. And we will never know. We just know he did it.”
(4 R.R. at 138)).
Answer: If I did not, I should have
21. What attempts did you make to interview individuals who
observed Francis driving that vehicle earlier on the day of the
incident to corroborate Applicant’s passenger status in the vehicle?
Answer: To my knowledge there were not any
22. What attempts did you make to discover individuals who could
testify to identify Applicant’s Adidas slides, and his cell phone that were discovered on the passenger side of the vehicle to support his
claim that he was the passenger?
Answer: I believe that was testified to
23. Did you ever ask Deshawn Brown for a list of people who may
have witnessed Francis driving that vehicle earlier on the day of the
accident?
Answer: I do not remember
BROWN DISSENT — 51
24. Did you ever attempt to interview Austen Hill? If so, please
provide information on the dates and times you attempted to speak
with him. If you did not, why not?
Answer: I do not recognize that name
25. Did you ever attempt to interview Christian Kirby? If so, please
provide information on the dates and times you attempted to speak
with him. If you did not, why not?
Answer: I do not recognize that name
26. Did you ever attempt to interview Daija Campbell, Applicant’s
sister, to see if she could identify the Applicant’s phone and shoes
from the crime scene photographs of the vehicle? If so, please provide information on the dates and times you attempted to speak with her.
If you did not, why not?
Answer: I do not recall interviewing her
27. Did you ever attempt to interview Larhonda Brown, Applicant’s
wife, to see if she could identify Applicant’s phone and shoes from
the crime scene photographs of the vehicle?? If so, please provide
information on the dates and times you attempted to speak with her.
If you did not, why not?
Answer: I talked to her buy [sic] I have no indea [sic] when
28. Did you ever attempt to interview LeShica Byrd, Applicant’s
mother, to see if she could identify Applicant’s phone and shoes from
the crime scene photographs of the vehicle? If so, please provide
information on the dates and times you attempted to speak with her.
If you did not, why not?
Answer: No
BROWN DISSENT — 52
c. Trial counsel’s habeas testimony
Applicant’s trial counsel, Pete Justin, testified at the habeas hearing. On
direct examination, Justin testified:
Q. Has the applicant ever told you that he was not the driver of
that car?
A. Yes, yes.
Q. And when did he first tell you that?
A. I think the very first time I started representing him and the
case had to go on for one or two years. But he’s never told me
that he was the driver.
* * *
Q. And in your affidavit you indicated that you reviewed
discovery including videos in this case, correct?
A. Correct. I did the discovery, all we had, plus I think two videos
I remember specifically. I think — I think I saw — I think I
viewed three but I’m not sure. Two, I’m positive of.
Q. Generally speaking, you’re aware of — or you’re familiar with
the Harris County defense portal, right?
A. Yes.
Q. And so when you referred to the videos that you reviewed,
would those be the videos that were on the defense portal?
A. I’m not sure. I kind of remember giving a — I had — I had told
you-all on the affidavit or I said I hadn’t had any — hadn’t got
any private investigators but I had — Chris Wendenburg was
appointed. You know, he was — I got funds for him. Okay?
BROWN DISSENT — 53
And I think — I think I remember giving him a flash drive but
I’m not positive.
Q. And but is it fair to say that one of the videos you reviewed in
this case was a dash-cam video?
A. Yes.
* * *
Q. Okay. So, now, when the applicant first told you that he was
not the driver of the car, what steps did you take to try to
investigate that claim?
A. Well, I read through the police report and there’s another
video that has him — or I’m not sure it’s him. But there’s
another video that you can see where there’s a head comes up
from, looks like it’s from the driver’s side. I think he tried to
get out through the rear window. And then that’s about it, I
guess.
Q. So is there another video in addition to the one that you just
watched that you’re referring to?
A. Yes.
Q. And where was that video — where did you obtain that video
from?
A. I’m sure from the State.
Q. Okay.
A. There’s a video — clear video that you see the car at the crash
and you see a hand come up. You can’t tell who it is. You see
a hand come up. It comes up on the driver’s side and that’s
who the police were saying was him.
BROWN DISSENT — 54
* * *
Q. So you reviewed this second video in order to investigate the
applicant’s claim that he was not the driver. What else did you
do?
A. Well, I asked — I asked Deshawn where — you know, where
they were coming from and that kind of — where they were
coming from and why they were driving so fast.
Q. What did he say?
A. He told me they had just done a drug deal, him and his friend,
the guy that died. They had just done a drug deal and, in fact,
about 50 feet from the — or so from the accident — accident
scene there was a bundle of marijuana, which didn’t come —
didn’t come in at trial.
Q. And that was going to be my next question. The fact that a
bundle of marijuana was found about 50 feet from the accident
scene, you successfully kept that out at trial, right?
A. That’s correct.
Q. But — and it’s true that firearms were also found inside the
vehicle, right?
A. I think so. I’m not positive of that.
* * *
Q. Now, did the applicant ever give you the names of anybody
who would be able to corroborate his claim that he was not the
driver of the vehicle?
A. No.
BROWN DISSENT — 55
Q. Did the applicant ever tell you that either any friends or family
of his had seen him earlier that day not driving the vehicle?
A. No.
Q. Do you recognize the name Austen Clark Hill?
A. No.
Q. Do you recognize the name Christian Mark Kirby?
A. No, not by name.
Q. Not by name. Okay. Do you recognize the name LeShica Byrd?
A. Not by name.
Q. Do you recognize the name Daija Campbell?
A. Not by name.
Q. Do you recognize the name Larhonda Brown?
A. Is that his wife?
* * *
Q. And his wife, his mother, during your representation, none of
them came to you with information about, I guess, any events
that would have been relevant to that theory — and what I
mean by that is the theory that he was not the driver. None of
them gave you any information that was relevant to that during
your representation of him?
A. None, not at all.
* * *
BROWN DISSENT — 56
Q. Did you ever consider hiring a crash reconstructionist?
A. I did not.
Q. Why not?
A. Probably should have.
Q. Well, let me ask you this —
A. Let me rephrase that. I didn’t think we needed one. Hindsight
is 20/20 — hindsight is 20/20; I should have got one.
Q. Why didn’t you think you needed one at the time?
A. Well, I did need one. I’m getting confused. Why did I — why
did I think I needed one at the time?
Q. Correct. At the time of your representation when you’re
preparing for trial, you said you didn’t think you needed a
crash reconstructionist expert. Why not?
A. Well, because I thought it was pretty clear how the accident
happened. It’s pretty obvious how the accident happened. No
dispute in that.
Q. What about a blood spatter expert?
A. Pardon?
Q. What about a blood spatter expert?
A. No. No.
Q. Did you think one was necessary at the time of trial — or when
you were preparing for trial, did you think one was necessary?
BROWN DISSENT — 57
A. I thought the results of the blood spatter evidence was enough
to support our case that he was not the driver. I may be wrong
but that’s what I thought.
* * *
Q. Now, did the applicant ever tell you that in the car, after the
police turned on their lights and siren, that the complainant
stated, “I can’t go back to jail, I can’t go back to jail.”
A. Say it again.
Q. Sure. Did the applicant ever tell you in the car, after the police
turned on their headlights — I’m sorry, their lights, Devin
stated, “I can’t go back to jail, I can’t go back to jail.”
A. Is that in the transcript? I don’t remember that.
Q. Did the applicant ever tell you that?
A. No, not that I remember, no.
Q. Did your — did the applicant ever admit to you that the vehicle
— they were, in fact, fleeing from the police?
A. Yes.
Q. Did he ever outright admit driving the vehicle to you?
A. No. He never — he never said he drove the vehicle. He always
— always — always insisted he wasn’t the driver.
Q. Do you recognize the name Trevion Callegari?
A. No. Is that a policeman or a person?
Q. Did the applicant ever tell you he was with a person named
Trevion Callegari earlier that day?
BROWN DISSENT — 58
A. No.
Q. Did the applicant ever ask you to speak with his wife, his sister,
or his mother about the day of the offense?
A. No, but I saw them many times in court. And then he — for —
I guess for the first part of it, after I represented him, he was in
custody and then eventually he made bond. And then when
he’d go to court, he was with I think his wife and other – other
family members, I guess, or friends.
Q. And did the applicant ever tell you who the vehicle was
registered to?
A. No, not —
Q. Did you know who the vehicle was registered to?
A. I think it’s in my file but I’m not sure. I don’t want to say for
sure.
* * *
Q. Did the applicant ever tell you he wanted to testify?
A. No.
Q. Do you recall what your advice was with regard to whether he
should testify?
A. I don’t recall what it was. Probably was not to testify but I
don’t want to say for sure. I don’t remember.
On cross-examination, Justin testified:
Q. What actions did you take during that four-year period to
investigate applicant’s constant claim that he was not the
driver of the vehicle?
BROWN DISSENT — 59
A. Okay. Well, not a constant claim but other than what I’ve
already testified to, again, the videos and the police reports.
Q. But outside of reviewing the State’s evidence, what
investigation did you do on your own —
A. I just answered you.
Q. Do —
A. I said I reviewed — nothing — none, I guess, would be the
answer to that.
Q. So you did no investigation outside of reviewing the State’s
evidence?
A. No. Caveat, except I did discuss the case a little bit and go over
some of the videos with Chris Wendenburg. He didn’t — he
never conducted any kind of investigation. I don’t think he
ever even submitted a pay voucher.
Q. So you discussed it with your investigator?
A. Yes.
Q. You’re saying the investigator in this case never did an
investigation?
A. As far as I know, that’s correct.
Q. Now, what investigation did you do to make the determination
that an independent accident reconstruction expert would not
be helpful in your case?
A. Well, I didn’t — investigation. I looked at the videos and I
didn’t think an accident investigator was needed. So I —
BROWN DISSENT — 60
Q. Do you have personal experience evaluating accidents to
determine who a driver or passenger would be?
A. Of course not.
Q. Do you think that having an expert that could evaluate when
there’s multiple collisions and dispute about who’s the driver
and passenger and blood spatter, do you think it would be
helpful to have an expert review all that?
A. I don’t think — I don’t think an accident investigator could
have determined where the people were after the accident
occurred. That was my opinion.
* * *
Q. Okay. Now, you were stating that you believe the blood spatter
evidence was significant in this case, correct?
A. Was significant?
Q. Was important?
A. Yes. Yes, ma’am.
Q. Did you believe it would be helpful to have a blood spatter
expert review it since it was so important?
A. In hindsight, 20/20, yes. At the time I didn’t think we needed
it.
Q. What investigation did you do to determine that an expert
wouldn’t be needed?
A. I read the detailed police report that detailed — and I think the
DNA also, on a blood splatter — and I could be wrong. I’m
trying from memory, but I believe we had blood splatter, some
blood splatter evidence of Deshawn on the passenger side, if
BROWN DISSENT — 61
I’m remembering correctly. I tried to read it last night but I got
a little confused on redirect versus looking at it again but that’s
my memory.
Q. So you believed based on that evidence alone that you would
have enough to create reasonable doubt in the mind of the jury?
A. Yes, partly. Not everything, but.
Q. Now, did you ever request the Houston Forensic Science
Center to compare Francis, the complainant’s, his DNA to the
DNA found on the airbags?
A. No.
Q. And you understand that they only did a comparison of Mr.
Brown’s DNA to the DNA found on the airbags?
A. If — you asked me if I remembered, I said no. If it’s in the file,
then that’s correct.
Q. Do you think it would be important to know if the
complainant’s DNA was on the driver’s side airbag?
A. Yes.
* * *
Q. Would it have been important to know, if true, that while Mr.
Francis sustained several blunt-force injuries from the motor
vehicle collision, these injuries on their own would be unlikely
to cause immediate cardiorespiratory arrest within minutes of
the accident?
A. I guess it would have been nice to know but I’m not sure what
that has to do with the case is my question.
BROWN DISSENT — 62
Q. You understand that the State has to prove that the accident,
the engaging in evading arrest, was what caused the death,
correct?
A. Yes.
Q. So determining the cause of death is part of the State’s case,
correct?
A. Yes.
Q. So if you could raise a reasonable doubt as to the cause of death
and the jury were to find that to be a reasonable doubt, they
would have to vote not guilty, correct?
A. I don’t know. I didn’t — the report you’re reading from was
not in the file, was it? It has to have — that’s what you’re
asking me, correct?
Q. Well, yes, we’re asking you what would have been important
to find out as part of your strategy because you said you didn’t
think it was important to consult with an expert regarding the
cause of death.
A. I never considered consulting an expert for cause of death. And
if I’d have known — if I had been given a copy of that report
that you’re reading from, I certainly would have gone further
with it. It never occurred to me.
* * *
Q. Would it have been important to know, assuming that it is true,
that the injuries caused by the car crash, including
hemothorax, would have been survivable by a general 90
percent survival rate?
A. Yes, it would have been important.
BROWN DISSENT — 63
Q. Would it have been important to know, if it is true, that the
administration of midazolam in conjunction with the
promethazine in the patient’s system may have been sufficient
by itself to cause respiratory depression leading to cardiac
arrest even in the absence of the injuries caused by the crash?
A. That would have been important to know.
Q. Can you explain why you did not object to Dr. Maclayton’s
testimony about the autopsy results?
A. I thought it was admissible. I thought it was admissible. If I’m
wrong, I’m wrong.
Q. Did you know that he was not the person that conducted the
autopsy?
A. I don’t know offhand but I believe he’s — excuse me. Yes, I
think I did know, yes.
Q. And is it your understanding that the confrontation clause
would require the person that produced the result and the
report to be the one to testify so that he could be crossexamined?
A. I thought that was admissible. If I’m wrong, I’m wrong.
Q. If you had known that at the time, would you have objected?
A. Known what?
Q. I’m sorry? If you had known at the time that he was not the
person that authored the autopsy result and that would be
admissible under the confrontation clause, would you have
objected to him testifying?
A. You mean if I’d have known it was not admissible?
BROWN DISSENT — 64
Q. Uh-huh.
A. Well, obviously if I’d have known it was not admissible, I
would have objected.
Q. Can you explain why you didn’t object to the prosecutor
providing an opinion to the jury as to Mr. Brown’s guilt during
the closing argument?
A. That’s a big N-O. I can’t. I should have objected to that. I know
that’s not admissible. Usually I’d jump up 15 feet if somebody
said that but I didn’t apparently.
* * *
Q. Did you ever ask Mr. Brown for a list of people who may have
witnessed the complainant driving earlier the day of the
accident?
A. I don’t think so. I kind of (unintelligible).
Q. I’m sorry. I couldn’t hear you.
A. Never mind. Never mind.
Q. Your answer was I don’t think so?
A. No, they were buying drugs from somebody. There was
nobody there to witness that except them two.
Q. But what attempts did you make to identify people that could
have seen him driving? Did you ask Mr. Brown?
A. I asked — I asked — I know I asked him if they knew who the
drug dealer was, if I approached them. Nobody could give me
information.
BROWN DISSENT — 65
Q. Did you ask Mr. Brown if there’s anybody else that could have
seen the complainant driving earlier that day?
A. No.
* * *
Q. And in your notes in Defendant’s Exhibit No. 24, you write,
“Defendant tells Austen to take him to Devin’s,” correct?
A. I’m relying on you. If that’s what it says, that’s what it says.
Q. Okay. And it says, Drops defendant off outside of the
apartment. Devin pulls up at the same time. Austen sees
defendant get in Devin’s car.
A. Yes.
Q. So he did tell you that somebody else saw the complaining
witness driving that day?
A. Ma’am, it changed to — everything to a later deal. All that
stuff, he said he was doing a drug deal. That’s prior to him
telling me that. When he told me that, that stuff was moot. He
never — he never told me after — after he told me it was a
drug deal, he never told me again about these witnesses.
Q. Well, the drug deal was a separate matter from whether or not
other people had seen the complainant driving, correct? You
could have a drug deal and also the complainant could have
been driving?
A. Sure, you can.
Q. So when you had said previously that the defendant had never
given you names of other people at the scene, the complainant
driving earlier that day, that’s not true, correct?
BROWN DISSENT — 66
A. That’s correct.
Q. I’m sorry. What is your answer?
A. I’m saying that’s correct, I believe, yes.
Q. And when the State had asked you about friends and family can
be painted as biased easily, did you ever interview them about
the shoes and cell phone to see if they might be considered
credible regarding that matter?
A. No.
Q. So your decision not to present that information or look into
that wasn’t a strategy because you thought the jury wouldn’t
believe them?
A. No.
d. Jeff Gurvis’s habeas testimony
During the habeas hearing, Gurvis testified:
Q. [A]fter examining the photograph in Item 9.2 what did you
observe?
A. Well, I observed what I call four distinct areas of blood stains.
We have the one area where the annotation of 9 to 1 is in white.
So we have that stain that kind of — it spans from where the
annotation is through probably the first part of the cross stitch
and then we have on the other side of the cross stitch another
area. And then we have a third area down at the bottom
underneath the blackened annotation. Then there was — I
couldn’t associate directly a little bit more of the stain in
between the two cross stitches within the airbag that was just
below the upper boundary of the blackened annotation area. It
looks a little fairly distinct from the other areas. So I just
BROWN DISSENT — 67
termed that a fourth area. It all may be related, but I just looked
at those characteristics in those four district locations.
Q. And based on your training and experience what does that
indicate?
A. So I go to eliminate all but transfer and swipes as the pattern
classifications for these patterns. You see in the stain
underneath the blackened annotated area, you see some
striations or linear formations, which indicate movement and
that’s very characteristic found in swipes, which are
essentially types of transfer where there is motion applied
laterally across the surface in the deposition of the blood. And
then up in the upper portion in the blackened annotated area
those could be swipes or transfer. I couldn’t eliminate either of
those possibilities.
Q. Do you agree with investigator Rose’s trial testimony that the
stain in the center of the airbag showed that Mr. Brown was
seated behind the wheel at impact?
A. I did not evaluate any location of any victim or bleeding person
in this case. I simply looked at — reviewed the testimony that
the officer said that he would expect to see smears if there was
rubbing against the surface. And, you know, smears are kind of
a colloquial way of saying swipes and that’s precisely what we
have here. So it not — he indicated in his testimony that he
wouldn’t see the pattern that we’re seeing here, because it’s
somewhat different than smears and evidence of rubbing
against that airbag. So that’s a fundamental disagreement that
we have in this case.
Q. Was Investigator Rose’s testimony regarding the blood stain
pattern false?
A. It was wrong. So false, yes.
BROWN DISSENT — 68
On cross-examination, Gurvis testified:
Q. Is it a correct understanding of your opinion that it is possible
for swipes and transfers to be deposited by someone who is
bleeding and coming in contact with the airbag while trying to
exit a vehicle?
A. Yes.
Q. And you believe that it is not certain what Rose was referring
to when he stated, “We wouldn’t necessarily see that center
pattern.” Correct?
A. Correct. I do not know what he classified other than to infer
from the previous — from what he said previously in his
testimony that you would expect to see smears, but not
necessarily what he sees in that center pattern.
Q. Your testimony today that Rose testified falsely in this trial was
not contained in your report or your unsworn declaration,
correct?
A. Not in those words.
e. Michael Freeman’s habeas testimony
During the habeas hearing, Freeman testified:
Q. Were you able to make an expert determination of who at was
most probably the driver and who was most probably the
passenger of the crash?
A. Not from the injuries alone. I gathered more information when
I became more familiar with the facts in the case. When I first
reviewed the video evidence that gave me additional
information that began to indicate that there was evidence that
Mr. Brown was not the driver at the time of the crash. And
BROWN DISSENT — 69
then the most persuasive evidence was then the DNA testing
of the swabs and material that was on the airbags both on the
driver’s side and on the passenger’s side once matched to the
crash reconstruction and the biomechanics of how the
occupants would have moved to the crash. Once I put that
altogether I then did have an opinion that I felt very certain
about.
Q. First, what did you find significant about the DNA testing
results?
A. Most critically for me was the fact that there was swab
evidence that indicated contact on the driver’s side for both
Mr. Brown and Mr. Francis with the airbags on that side of the
vehicle.
Q. What did you notice about the DNA result regarding the
steering wheel airbag and the side curtain airbag?
A. Well, that both had evidence of contact between Mr. Brown
and Mr. Francis and that was very important given what I knew
about the nature of the crash and how an occupant who was in
the passenger’s seat would have been able to move or would
have been moved, I should say, by the crash, versus an
occupant in the driver’s seat, versus — and also take into
account the fact that Mr. Francis did not move after the crash,
after the vehicles came to a stop, but Mr. Brown did. So I had
an explanation for Mr. Brown depositing his DNA evidence
onto the drive’s side airbags, because we knew that was the
first place he was seen. But we don’t have evidence of how Mr.
Francis could have gotten DNA evidence on the airbag, unless
he was actually in the driver’s seat. If he was in the passenger’s
seat and stayed there during the crash and since he didn’t
move after the crash, there was no way for him to have gotten
his DNA from the passenger’s side over to the driver’s side,
because the nature of the crash would have moved the
BROWN DISSENT — 70
occupants first forward and into the airbags for the first crash
and then to the right after the second crash.
* * *
Q. And what was your final conclusion after reviewing all of the
evidence in this case?
A. Well, when I put together the occupant movement for how we
knew the occupants must have moved during the collision,
because that’s all dictated by the physics of the crash, as I said
the first collision would have thrown both of the occupants
forward into the airbags. Both of them are unrestrained. And
then the second collision would have thrown both of the
occupants to the right. The driver could have been injected
into the passenger seat. So that would explain how a driver —
an occupant can get their DNA on the airbag is if they were in
the driver’s side they could get their DNA on the driver’s side
airbag, both the side curtain and the frontal airbag, and then be
found in the passenger’s side after the second collision, which
would have thrown both occupants to the right. But if you had
an occupant who started in the passenger’s seat the first
collision would have thrown them forward into the
passenger’s airbag and the second collision would have thrown
them to the right into the passenger’s side curtain. But they
would have never come into contact with the driver’s side
frontal airbag or curtain during the collision. And we do know
that Mr. Brown did come in contact with that area and actually
bled onto the frontal airbag, because that was the way he was
trying to get out of the vehicle as the right side of the vehicle
was blocked.
On cross-examination, Freeman testified:
Q. What was the first crash? What did the Ford Fusion crash into?
BROWN DISSENT — 71
A. Crashed into another vehicle that turned in to the lane making
a left turn in front of the vehicle.
Q. Where was the point of impact on the Fusion?
A. It was the — it was the left front of the vehicle.
Q. Are you referring to your notes right now?
A. I am, yes.
Q. You said the left front of the Ford Fusion?
A. Yes.
Q. So it was not a head-on collision?
A. It had the dynamics of a head-on collision, because the vehicle
was traveling so fast. This wasn’t a T-bone, because the other
vehicle was traveling much, much slower than the Ford
Fusion.
Q. The impact was not solely on the front of the Fusion, correct?
A. That’s correct.
Q. And is it a correct understanding of your opinion that Francis
was in the driver’s seat at the time of that first impact?
A. Yes.
Q. And then is it a correct understanding of your opinion that
Francis was in the driver’s seat at the time of the second
impact?
A. Yes. That was the time he was ejected into the passenger seat.
BROWN DISSENT — 72
Q. And you testified that the frontal airbags deployed in the first
impact, correct?
A. That is correct.
Q. And that the curtain airbags deployed in the second impact?
A. Also correct, yes.
Q. Are you familiar with the CDR?
A. I’m trained by Bosh who actually make the CDR download.
Q. You actually make the downloads themselves?
A. Yes. I’m trained by law enforcement, in fact, in download
technology.
Q. What is the difference between CDR and EDR?
A. An event data recorder is the recorder itself. The CDR is the
report that comes from the two — the CDR is what the
software is called that is used for the download. And I
misspoke. The side curtain airbag deployed on the first crash
along with the frontal airbags.
* * *
Q. So in the first impact with the white SUV all the occupants in
the vehicle would move front and left, correct?
A. Yes, that is correct. Relative inside the vehicle.
Q. You previously testified on direct that they would only move
front, right?
A. No, I did not. If that’s what came out it is not what was
intended. They did not move only forward. They moved
BROWN DISSENT — 73
forward into the airbags, but their specific movement would
have been forward and to the left, because of what’s called the
principal direction of force of the crash.
Q. And how long after the point of impact did the airbags deploy?
A. About 30th of a second.
Q. Which airbags deployed in that first event?
A. The driver’s side and passenger’s side frontal airbag and the
driver’s side curtain and thorax bag. And I believe a knee
bolster bag as well. Let me refresh my memory, again. Looking
at my notes. Yes, driver knee bolster fired. So did the
passenger knee bolster. The side curtain from the driver’s
side, the thorax bag, the middle bag also on the drivers’s side
and then those — the first and second stage, because they’re
dual powered airbags of the frontal airbags both passenger and
driver’s side also fired.
Q. You previously testified on direct that the driver’s side curtain
airbag did not deploy in the first impact, correct?
A. Right. The passenger side did not.
Q. And my question was you previously testified on direct that the
driver’s side curtain airbag did not deploy in the first crash,
correct?
A. If I did, I misspoke. The driver’s side airbag — all the airbags
in the driver’s side deployed in the first crash, because it was
an angled crash and then the curtain and the thorax bag on the
right side deployed during the second crash.
Q. After the first impact the Ford Fusion starts sliding towards
that cement pillar and then that is the point of the second
impact, correct?
BROWN DISSENT — 74
A. Yes.
Q. And at the point of second impact all of the occupants would
be moving towards the right side within that vehicle, correct?
A. Correct.
And on re-direct examination, Freeman testified:
Q. Based on your review of all the evidence in this case would it
have been physically possible for Mr. Francis to have been in
the passenger seat at the time of the crash?
A. I want to make sure I understand the question. Would it be
physically possible for Mr. Francis to have been in the
passenger seat?
Q. Right?
A. Yes — I’m sorry, the passenger seat. That’s where I got
confused. Not at the time of the first crash, no. Sorry. It would
not have been physically possible for him to be in the
passenger’s seat, deposit his DNA on the driver’s side airbag
and the driver’s side side airbag, the frontal and side airbag and
then end up in the passenger’s seat again?
Q. So is it your opinion that Mr. Brown would have had to have
been the passenger at the time of the crash?
A. Yes. That is the only corollary is that it is just as impossible for
Mr. Francis to have been in the passenger’s seat at the time of
the crash as impossible for Mr. Brown to have been in the
driver’s seat at the time of the crash.
Q. Now, the State has talked about how when people get into an
accident and somebody dies that it is not uncommon for the
person that survives to have stated they were not driving,
correct?
BROWN DISSENT — 75
A. Yes.
Q. In this case is Mr. Brown’s protestation that he was not driving
true?
A. Yes.
f. Dr. Audrey Nath’s habeas testimony
During the habeas hearing, Dr. Nath stated the following regarding
Francis’s blunt force injuries:
[A] hemothorax in general has about a 90 percent survival rate across
the population. And since that’s a population number, we don’t
necessarily have a breakdown with that number as to if an elderly
person on a blood thinner may have been at higher risk of mortality
than a young person not on a blood thinner. But in general that would
be survivable, yes.
As to Francis’s cause of death, Dr. Nath testified:
Based on the review of the records, as well as the timing from the
video, it appears that he received the dose of the Midazolam, became
calm, and pretty quickly after that stopped breathing and went into
the cardiac arrest. So based on the timing it does not look like a time
course that would happen from a hemothorax with 400 liters of blood
in it. That should have been survivable, so in my opinion the timing
of the administration of the Midazolam and very quick respiratory
arrest and cardiac arrest, I think that the administration of the
sedative decreased his respiratory drive and caused his respiratory
arrest and subsequent cardiac arrest.
Dr. Nath concluded:
Q. Would the blunt force injuries alone have caused an immediate
death by that?
BROWN DISSENT — 76
A. Hemothorax on one side, right-sided pulmonary laceration,
bilateral rib fractures, bilateral pulmonary contusions and
abrasions to the hand and limbs by themselves would not cause
such a quick cardiorespiratory arrest.
Q. To a reasonable degree of medical certainty could the
administered drug alone be sufficient to cause Mr. Francis’
death?
A. Yes.
Q. From a medical perspective was there an agency in addition to
the crash that caused Mr. Francis’ death?
A. I want to understand the use of the word "agency" there.
Q. The medication. Just another way of asking could the
medication have caused his death?
A. Yes.
Q. To a reasonable degree of medical certainty were the injuries
from the crash clearly insufficient to cause death on their own?
A. Yes.
Q. Would you have been willing and available to testify in Mr.
Brown’s trial back in March or 2023 if asked to do so?
A. Yes.
On cross-examination, Dr. Nath testified that the 2 milligrams of
midazolam that Francis received was a standard dose and also stated that the
emergency responders did not do anything wrong by administering midazolam to
Francis.
BROWN DISSENT — 77
V. Analysis
a. General legal standards for ineffective assistance of counsel
To establish that trial counsel provided ineffective assistance, Applicant
bears the burden to demonstrate by a preponderance of the evidence that (1)
counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the first prong, Applicant must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the
prevailing professional norms. Id. at 687–88; Lopez v. State, 343 S.W.3d 137, 142
(Tex. Crim. App. 2011). There is “a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689. “[I]ndeed, strategic decisions made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.” Ex parte
Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012). “Counsel’s conscious
decision not to pursue a defense or to call a witness is not insulated from review,
but, unless a defendant overcomes the presumption that counsel’s actions were
based in sound trial strategy, counsel will generally not be found ineffective.” Id.
To satisfy the second prong, Applicant must show prejudice or “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
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the proceeding would have been different.” Id. at 694. A reasonable probability is
one sufficient to undermine confidence in the outcome. Lopez, 343 S.W.3d at 142.
“[I]t is not enough to show that trial counsel’s errors had some conceivable effect
on the outcome of the proceeding.” Flores, 387 S.W.3d at 633.
With respect to an allegation that an attorney failed to conduct an adequate
pre-trial investigation, Applicant must show what trial counsel would have
discovered with additional investigation. Mooney v. State, 817 S.W.2d 693, 697
(Tex. Crim. App. 1991). To show ineffective assistance of counsel for the failure
to object during trial, Applicant must show that the trial judge would have
committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53
(Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.
1996). The failure of trial counsel to object to admissible evidence does not
constitute ineffective assistance of counsel. Ex parte Jimenez, 364 S.W.3d 866, 887
(Tex. Crim. App. 2012); Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002)
b. Sub-claims 1-3: Trial counsel’s alleged failures to properly
investigate Applicant’s role in the offense
In the first three subclaims, Applicant raises related ineffective-assistanceof-counsel claims that center on his trial defense that he was not the driver of the
Ford Fusion at the time of the crash. In sub-claim 1, Applicant claims trial counsel
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was ineffective for failing to investigate that he was the passenger, not the driver.
In sub-claim 2, Applicant claims trial counsel was ineffective for failing to retain
an expert to challenge the State’s forensic evidence (specifically a crash
reconstructionist and a blood stain pattern analyst). And in sub-claim 3, Applicant
claims that trial counsel was ineffective for failing to request a forensic comparison
of Francis’s DNA to the DNA on the airbags.
The thrust of Applicant’s claims rests on three assertions. First, new testing
of the airbags show that the driver’s side steering wheel and curtain airbags tested
positive for Francis’s contact DNA. Second, Freeman’s claim that the trial and
habeas evidence establishes that it was “impossible for [Applicant] to have been
in the driver’s seat at the time of the crash.” Third, Gurvis’s claim that the blood
stain on the driver’s side curtain airbag “are in fact swipes and transfers (smears),
and could have been caused by someone who is bleeding that rubs up against the
air bag as they attempt to exit the vehicle.” Taken in their totality, Applicant’s
assertions are insufficient to meet Applicant’s burden under Strickland.
The DNA evidence. The new DNA evidence showed Applicant’s and
Francis’s DNA in the following locations:
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AIRBAG APPLICANT DNA FRANCIS DNA
Driver Curtain Positive Positive
Steering Wheel Positive Positive
Passenger Front Positive Positive
Passenger Curtain Positive Positive
But the blood stain DNA testing painted a different picture:
AIRBAG APPLICANT DNA FRANCIS DNA
Driver Curtain Positive Excluded
Steering Wheel Positive Excluded
Passenger Front Excluded Positive
Passenger Curtain Excluded Positive
Applicant—and Freeman—asserts that this new DNA testing disproves
that Applicant was the driver of the vehicle at the time of the crash. The logic of
the argument is this: Because the presumed passenger’s—Francis’s—contact
DNA was found on the driver’s side airbags, he must have been the driver of the
vehicle. But in reality, the new DNA evidence does not affect the jury’s necessary
finding in convicting Applicant: that Applicant was the driver of the vehicle.
Neither Applicant nor Freeman can explain how the presence of Francis’s contact
DNA necessarily means that Francis was the driver. All the DNA testing shows is
that the airbags tested positive for the presence of the DNA, not the timing of or
explanation for that DNA being there. In fact, all experts have uniformly testified
that there is no scientific methodology to ascertain the key question in this case:
when. When did the DNA get there? The contact DNA could easily be attributable
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to Applicant and Francis being jostled around the vehicle during the first and
second impacts to the Fusion, and the jury was entitled to conclude this. Because
Applicant cannot establish the timing of when the contact DNA was deposited,
Applicant necessarily fails to show how the presence of the DNA would have
changed the outcome of the trial.
Importantly, Applicant’s reliance on the contact DNA fails for two other
reasons. First, Applicant complains that his trial attorney did not request that
Francis’s DNA be compared to the DNA found on the airbags. But was
Applicant’s trial attorney constitutionally ineffective for failing to do so? “A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.
1992). Consider that, had Applicant’s trial counsel requested testing of Francis’s
DNA and such testing had confirmed that Francis’s DNA was not on any of the
airbags on the driver’s side of the vehicle, Applicant’s own trial attorney would
have effectively signed Applicant’s guilty verdict at trial. Sure, we now know what
the testing would have said. But at the time Applicant’s trial attorney had to make
the decision of whether or not to seek the testing, Applicant’s trial attorney could
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have reasonably concluded that testing that could have confirmed his client’s guilt
was not in the best interests of his client’s defense. Based on this, the habeas court
concluded that Applicant’s trial attorney was not unreasonable for not requesting
testing. That finding is supported by the record.
Second, Applicant fails to show how the presence of Francis’s contact DNA
on the driver’s side airbags would have been more compelling to a jury than a
single-source DNA profile from Francis’s blood on the passenger airbags that was
not on the driver’s side airbags. The testing performed prior to Applicant’s trial
and prior to the habeas hearing confirmed that the blood on the driver’s side
airbags belonged only to Applicant and the blood on the passenger side airbags
belonged only to Francis. The presence of single-source blood stains on each side
of the vehicle are only explainable by one set of facts: Applicant was the driver of
the vehicle and Francis was the passenger. It is difficult to imagine how a jury
would credit Applicant’s version of events—i.e., that he was the passenger but
somehow managed to extricate himself from the passenger side of the vehicle and
from under Francis’s body without having any of his blood or touch DNA on any
of the passenger side airbags. The far more believable set of facts is the reverse:
Applicant was the driver of the vehicle, was projected first to the left during the
initial crash and then to the right during the second crash and on top of Francis,
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and did not transfer any blood onto the passenger airbags because he moved off of
Francis back into the seat he was just occupying prior to the crash.
Freeman. At the habeas hearing, Freeman specifically testified that Francis
was in the driver’s seat during both impacts and was not ejected into the
passenger’s seat until the second impact:
Q. And is it a correct understanding of your opinion that Francis
was in the driver’s seat at the time of that first impact?
A. Yes.
Q. And then is it a correct understanding of your opinion that
Francis was in the driver’s seat at the time of the second
impact?
A. Yes. That was the time he was ejected into the passenger seat.
The habeas court found Freeman not credible. This finding is supported by the
record for several reasons.
First, Freeman’s opinions are internally inconsistent and are contradicted
by the evidence at trial. For example, in his affidavit, Freeman claimed:
The occupant movement in the decedent’s vehicle from the first
frontal impact would have been forward inside the vehicle and toward
the deploying airbags. This first collision would not have significantly
displaced either driver or passenger to the right or left inside the
vehicle.
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But in his habeas testimony, Freeman for the first time contradicted himself,
testifying that the movement of the occupants would have been to the front and to
the left. Or, for example, Freeman testified that the frontal and curtain airbags
“would have deployed at different points in time,” with the frontal airbags in the
first crash and the curtain airbags in the second crash. Yet, the CDR data directly
contradicted Freeman’s assertions. Additionally, Freeman testified that Francis’s
DNA was not found on the front passenger airbag. But when confronted with the
DNA evidence, Freeman stated:
Q. So you testified to the Court that Frances’ [sic] DNA was not
found on the front passenger airbag?
A. No. You testified to that. I didn’t testify to that.
The habeas court also found Freeman unpersuasive because he did not have a
scientific methodology to explain his findings. As explained at length above,
reliance on the post-conviction DNA testing is misplaced. Nobody, certainly not
Freeman, can explain when Applicant’s and Francis’s contact DNA was
transferred onto each of the airbags. The habeas court found Freeman
unpersuasive in part because he could not at any point explain his assertions. That
finding is supported by the record.
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Second, Freeman’s credibility issues extend further than just the evidence.
On cross-examination, the State elicited evidence regarding Freeman’s prior
academic authorship:
Q. Dr. Freeman, did you write an article entitled Injury Pattern
Analysis as a Means of Driver Identification?
A. Yes. That’s one of my papers on the topic.
Q. In August 2004?
A. Can you tell me what journal it was published in?
Q. Laboratory Medicine?
A. That was actually my first publication on the topic.
Q: Dr. Freeman in that article you state, “It is a maxim among
experienced investigators of motor vehicle crashes that the
survivor invariably claims that the decedent was driving at the
time of the crash.” Correct?
A. I don’t remember the paper. It’s over 20 years ago. But I don’t
have any reason to doubt that what you’re reading came from
something that I wrote.
Q. Did you also write an article called Serious Head and Neck
Injury as a Predictor of Occupant Position in Fatal Rollover
Crashes?
A. Yes. Journal, please?
Q. Forensic Science International?
A. Yes, all right. I know which one that is.
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Q. In that article did you state, “Claims by a surviving occupant
that he was not driving at the time of the crash may not be
particularly believable”?
A. Same answer. I think I was probably mid-teens. So I don’t
remember everything in it. But I don’t have any reason to
doubt that was something I would have written and is in that
paper, I should say.
Q. Do you agree with that statement?
A. Sure. If somebody else has died and there is a potential from a
prosecution the person either was driving or was not driving.
So a protestation of, “I was not driving,” may be true and it
may not be true.
In other words, even Freeman himself has recognized the issues with Applicant’s
story. Moreover, Freeman’s credibility based on his past actions was called into
question during cross-examination on multiple occasions:
Q. Into 2017 a federal court excluded you as an expert in the field
of biomechanics ruling that you are not qualified to testify,
correct?
A. I would be shocked about that, since the New York — the
federal courts have ruled I am well qualified.
Q. Is it correct, yes or no, that you were excluded from federal
court in New Mexico in 2017?
A. I have no knowledge of that.
* * *
Q. And on November 30th of 2018, you were admonished by the
Texas Medical Board for you to cease and desist using the term
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epidemiologist because you had not completed the necessary
training to become a medical doctor and you were holding
yourself out as a doctor of medicine, correct?
A. I can’t answer that yes or no.
Q. Are you aware of the letter that the Texas Medical Board sent
you on November 30th of 2018?
A. They sent me no letter at any time.
Q. You were found to have committed the actions of cheating and
dishonest behavior at the University of Western State
Chiropractic College, correct?
A. If you’re referring to events forty years ago —
Q. Is it correct or not?
A. I can’t answer the question the way you’re asking it.
Q. You were suspended from the Western State Chiropractic
College for lying about clinical data, correct?
A. I can’t answer that question the way you asked it.
Q. Were you suspended from Western States Chiropractic
College for taking credits for seeing patients that you had not
actually seen?
A. That is correct.
The habeas court could have reasonably examined Freeman’s opinions in the
context of the trial evidence, weighing Freeman’s assertions against his personal
record, and reached the conclusion that Freeman was not credible.
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Overall, Freeman’s conclusions do not meaningfully challenge the State’s
evidence from Applicant’s trial. The jury already rejected Applicant’s defensive
theory and concluded that the evidence supported, beyond a reasonable doubt,
that Applicant was driving the Fusion at the time of the crash. Freeman’s contrary
opinion, mired by his credibility issues, does not get Applicant to Strickland’s
preponderance standard to show prejudice. Even assuming Applicant’s trial
attorney was constitutionally ineffective for failing to hire an expert, Applicant
fails to show how he was prejudiced. The habeas court’s findings saying as much
are supported by the record.
Gurvis. In his affidavit, Gurvis stated that the blood stains on a single airbag
“are in fact swipes and transfers (smears), and could have been caused by
someone who is bleeding that rubs up against the air bag as they attempt to exit
the vehicle.” Gurvis averred that he did not agree with Sergeant Rose’s trial
testimony. But for the first time in the habeas hearing, Gurvis characterized
Sergeant Rose’s testimony as “wrong” and “false.” The habeas court concluded
that Applicant failed to show that Sergeant Rose’s trial testimony was false or
misleading. That finding is supported by the record.
Moreover, Gurvis’s testimony changes nothing. Gurvis generally asserts
that the blood stain on the driver’s side airbag could have resulted from a bleeding
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passenger exiting the vehicle. State’s Exhibit 1, the dash camera, documents
Applicant’s efforts to exit the crashed vehicle through the driver’s side front
window. Deputy Buenrostro testified to this fact as well when he identified
Applicant as the individual who poked his head out of the vehicle for a few seconds
in the immediate aftermath of the crash. Even assuming Gurvis is correct in his
assertion that the blood stains on the airbag are “smears,” this claim does not
prove or disprove the location of either occupant in the vehicle prior to or after the
crash. The blood stain transfer could easily have occurred when Applicant, the
driver of the crashed vehicle, was attempting to exit.
In totality. Applicant’s habeas evidence fails to establish that but for trial
counsel’s ineffectiveness, the result of the trial would have been different, and the
jury would have found Applicant “not guilty.” Consequently, even assuming that
trial counsel’s conduct was ineffective (and there is substantial reason to refute
this), Applicant cannot meet his burden to show prejudice under the second
Strickland prong. Relief on these sub-claims should be denied.
c. Sub-claim 4: Concurrent causation defense
In his fourth sub-claim, Applicant argues that trial counsel was ineffective
for failing to investigate or present a concurrent causation defense. This claim
hinges on Dr. Nath’s evidence and testimony.
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As this Court has explained, “[t]he scope of causation under the Texas
Penal Code is broad, allowing courts to find causation where ‘the result would not
have occurred but for [the] conduct, operating either alone or concurrently with
another cause.’” Cyr v. State, 665 S.W.3d 551, 557 (Tex. Crim. App. 2022)
(quoting Tex. Penal Code § 6.04(a)). “Where two or more causes satisfy ‘but
for’ causation, a criminal defendant remains liable if [his] conduct was either
sufficient to have caused the result alone ‘regardless of the existence of a
concurrent cause,’ or both causes ‘together’ were sufficient to cause the result.”
Id. (quoting Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986)). To
receive a concurrent causation instruction, a defendant must show: (1) “an agency
in addition to the actor” was a “but for” cause of the result charged, and (2) some
evidence demonstrates his conduct is “clearly insufficient” to cause the harm and
the other concurrent cause is clearly sufficient to cause the harm. Id. (first citing
Tex. Penal Code § 6.04(a); then quoting Robbins, 717 S.W.2d at 351 n.2).
Applicant fails to meet either requirement under Cyr. During the habeas
hearing, Dr. Nath conceded that hemothorax can independently cause death.
Furthermore, the State highlighted that Francis had a coronary artery anomaly,
which can heighten the likelihood of death due to hemothorax. Moreover, Dr.
Nath never testified that the combination of midazolam and promethazine given
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to Francis was clearly sufficient to cause his death. Even if she had, Applicant
would have been faced with the conclusion that the only reason Francis received
any combination of medication was because of Applicant’s actions. A jury could
have reasonably relied on this evidence to conclude that Applicant was still guilty.
With this backdrop in mind, Applicant fails to overcome the presumption that
counsel’s decision not to pursue a particular defense was based in sound trial
strategy.
In any event, even if Applicant’s evidence rises to the level where the trial
court would have issued a concurrent causation instruction, Applicant still bears
the burden to show that the outcome of the proceeding would have been different.
Applicant fails to show by a preponderance of the evidence that the jury would
have found him “not guilty” if it had been instructed on concurrent causation.
Applicant fails to muster any evidence to support this conclusion. Consequently,
Applicant fails to show prejudice under Strickland. Relief on this sub-claim should
be denied.
d. Sub-claim 5: Confrontation Clause
In his fifth sub-claim, Applicant claims trial counsel was ineffective for
failing to object to testimonial autopsy evidence in violation of the Confrontation
Clause.
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Applicant is correct that forensic analysts may not testify as surrogates
regarding reports made by other analysis. Bullcoming v. New Mexico, 564 U.S. 647,
661 (2011). But an expert can testify to their own independent conclusions, even if
they examine data collected by another non-testifying analyst. Paredes v. State, 462
S.W.3d 510, 517–18 (Tex. Crim. App. 2015) (“For an expert’s testimony based
upon forensic analysis performed solely by a non-testifying analyst to be
admissible, the testifying expert must testify about his or her own opinions and
conclusions. While the testifying expert can rely upon information from a nontestifying analyst, the testifying expert cannot act as a surrogate to introduce that
information.”).
Throughout her trial testimony, Dr. Maclayton referred to her own review
and opinions. Though she did state that she agreed with the non-testifying medical
examiner’s findings, Dr. Maclayton formed her own independent opinion as to the
cause and manner of death of Francis. To the extent Applicant complains about
the admission of the physical exhibit—the autopsy report itself—any error is very
likely harmless in light of Dr. Maclayton’s testimony about her own independent
conclusions. See, e.g., Lawyer v. State, — S.W.3d —, No. AP-77,124, 2026 WL
1853845, at *9 (Tex. Crim. App. June 25, 2026) (finding harmless error for
Confrontation Clause violation because the complained-of evidence was
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“cumulative” of other properly admitted evidence). Applicant fails to show that
the jury would have found him “not guilty” had the autopsy report not been
admitted. Consequently, Applicant fails to meet his burden on either Strickland
prong. Relief on this sub-claim should be denied.
e. Sub-claim 6: Closing Arguments
In his sixth sub-claim, Applicant argues that trial counsel was ineffective for
failing to object to improper argument by the State during closing. During closing
arguments, the prosecutor argued to the jury:
We want reasons why someone does something. We don’t have to
prove that. And we will never know. We just know he did it.
Generally, proper jury argument falls within one of four areas: (1) a
summation of the evidence, (2) a reasonable deduction from the evidence, (3) an
answer to an argument of opposing counsel, and (4) a plea for law enforcement.
Kitchens v. State, 721 S.W.3d 467, 485 (Tex. Crim. App. 2025). Improper jury
argument is non-constitutional error and is disregarded unless it affects a
defendant’s substantial rights. Tex. R. App. P. 44.2(b); Freeman v. State, 340
S.W.3d 717, 728 (Tex. Crim. App. 2011). Harm suffered from improper jury
argument “requires balancing the following three factors: (1) severity of the
misconduct (prejudicial effect), (2) curative measures, (3) the certainty of
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conviction absent the misconduct.” Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.
Crim. App. 2000).
When read in context, the State’s closing argument stated:
Now I also want to talk about motive. We talked about this a lot in
voir dire, that we do not have to prove why someone does something.
There are senseless acts of violence in this world every day, and as
human beings we want to justify that. We want reasons why someone
does something. We don’t have to prove that. And we will never
know. We just know he did it. But in this case we were able to bring
you some evidence of maybe why the defendant chose to flee from
the police.
The State then discussed the two firearms found in the vehicle, one of which was
stolen, and argued that the stolen firearm could be a reason for which Applicant
evaded from law enforcement. See Kitchens, 721 S.W.3d at 485 (“a reasonable
deduction from the evidence”).
Even if the State’s argument was error, when read in context, this portion
of the State’s argument was harmless. The allegedly objectionable portion of the
State’s argument was just four lines of the State’s nine-page closing argument.
Applicant fails to show that the jury would have found him “not guilty” had trial
counsel objected during the State’s closing argument. Consequently, Applicant
fails to show prejudice under Strickland. Relief on this sub-claim should be denied.
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VI. Conclusion
Relief should be denied on the trial court’s findings and this Court’s
independent review of the record. On each of his ineffective-assistance-of-counsel
sub-claims, Applicant either fails to show that counsel’s performance fell below
an objective standard of reasonableness, or, alternatively, that he was prejudiced.
I respectfully dissent.
Filed: September 24, 2026
Publish
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Appendix A 10
10
See supra at 16.
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Appendix B 11
11
See supra at 21.
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Appendix C 12
12
See supra at 22.
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