DAVID MARK TEMPLE v. THE STATE OF TEXAS (2025)

DISSENTING OPINION

In 2007, Appellant was convicted of the murder of his wife Belinda Temple and was sentenced to life in prison. We affirmed his conviction on direct appeal, finding that the evidence was legally sufficient to support the conviction.¹ Two years later, in 2015, Appellant filed an application for a writ of habeas corpus, alleging in relevant part that the State suppressed materially favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that his trial counsel was ineffective for failing to adequately examine Kenneth Temple, Appellant's father. We granted Appellant habeas relief on his Brady claim and remanded for a new trial.²

Appellant's retrial ended on August 6, 2019, with a jury again finding Appellant guilty of murder. Once again, Appellant was sentenced to life in prison. Appellant timely appealed and the court of appeals affirmed.³ Appellant timely filed the instant petition for discretionary review. Because Appellant's retrial was infected with the same error from his first trial, I would grant the first ground of Appellant's petition for discretionary review and reverse the judgment of the court of appeals. Because the Court does not, I respectfully dissent.

I. Background

On January 11, 1999, Belinda Temple was shot to death in the home where she lived with Appellant. The perpetrator had held a shotgun to the back of her head and pulled the trigger. Appellant was indicted for Belinda's murder in February 2005. At trial, the State presented evidence that Appellant had motive to murder his wife because they were having marital problems, and he was having an affair. Appellant's defense involved blaming another suspect, Riley Joe Sanders, arguing that Sanders had motive and opportunity to murder her instead. Appellant also argued that the timeline of events established at trial did not allow Appellant enough time to commit the murder.

The timeline of the day of Belinda's death was critical to Appellant's defense and is critical to Appellant's instant petition for discretionary review. On the day of her death, Belinda took Evan, her and Appellant's son, to Evan's daycare before work. Later in the morning, Evan's daycare called Belinda and asked her to pick him up because Evan was running a fever. Belinda tried to get in touch with Appellant but could not. Belinda picked up Evan during her lunch break, and Appellant arrived at their home to watch Evan around 12:30 p.m. so that Belinda could return to work. Belinda left work around 3:30 p.m. and drove to Appellant's parents’ home to pick up soup for Evan. According to Appellant, he and Evan left when Belinda arrived at home so that she could rest. Appellant took Evan to two different parks and then to the store. Surveillance video showed Appellant and Evan arriving at the store at 4:32 p.m. and leaving at 4:38 p.m.

Several witnesses’ testimonies established that Belinda likely died around 4:30 p.m.: Belinda's twin sister called Belinda's home phone number at 4:38 p.m. and received no answer; two neighborhood boys heard a loud noise that sounded like a gunshot between 4:30 and 4:40 p.m.; the neighbors’ dog was found barking at the fence between their yard and the Temples’ yard between 4:30 and 4:45 p.m.; and a neighbor saw the same dog barking at the fence around 4:30 p.m. Appellant contended at trial that he would not have had time to murder Belinda, clean up, dispose of the murder weapon, and still be on the surveillance video at 4:32 p.m. Kenneth's testimony was essential to corroborate this timeline and support Appellant's defensive theory.

a. Kenneth Temple's Trial Testimonies

Kenneth Temple initially told law enforcement on January 11, 1999, that Belinda had arrived at his house at 3:45 p.m. and left around 3:55 p.m. It would have taken approximately 15 to 20 minutes for Belinda to drive from Kenneth's house to her own house. This meant that Belinda would have arrived at her home between 4:10 and 4:15 p.m.

At Appellant's 2007 trial, Kenneth testified for the defense. In his trial testimony, he deviated from his statement to law enforcement and testified that Belinda arrived at his house on January 11, 1999, at 3:32 p.m. and left at 3:45 p.m. Factoring in the driving time, this meant that Belinda would have arrived home between 3:55 and 4:00 p.m.

Before Appellant's second trial, Kenneth was deposed for fear he would be unavailable to testify because of his health problems. At his recorded deposition, Kenneth testified to the timeline he originally gave to law enforcement and deviated from in his 2007 trial testimony. The State impeached Kenneth with his 2007 trial testimony. At Appellant's second trial, over Appellant's objection, the State played Kenneth's entire deposition, including the inconsistent statements.

b. Appellant's 2015 habeas proceedings

At issue in Appellant's 2015 habeas application was the State's failure to timely disclose approximately 1400 pages of offense reports generated by at least five detectives. These reports related to Sanders, the alternate suspect that defense counsel attempted to establish at trial. In opposing Appellant's Brady claim, the State argued that these offense reports were disclosed and were not illegally suppressed. We concluded that the habeas record established that the reports were not timely disclosed. Temple, 2016 WL 6903758, at *4. We distinguished Little v. State,⁴ finding that while Brady relief is inappropriate where evidence was turned over in time for the defendant to use it in his defense, “this rule is applicable only if the defendant ‘received the material in time to use it effectively at trial.’ ” Id. at *3 (citing Little, 991 S.W.2d at 866). In Appellant's case, defense counsel was not given access to the reports until trial. We ultimately found that “although defense counsel was able to raise at trial the defensive theory that there was an alternate perpetrator, that effort was limited and hampered by the State's failure to turn over to the defense the police offense reports containing favorable evidence that would have allowed a more effective presentation of an alternate suspect.” Id.

Appellant also raised an ineffective assistance of counsel claim in his habeas application, which we found was intertwined with his Brady claim. Kenneth's trial testimony, the same testimony at issue in Appellant's instant petition for discretionary review, was at issue in Appellant's ineffective assistance of counsel claim. Specifically, Appellant claimed that his trial counsel failed to correct Kenneth's testimony by refreshing his recollection with Kenneth's initial statement to law enforcement. Trial counsel agreed that he made a mistake by failing to do so and that his mistake harmed Appellant. We concluded that “the State's failure to timely disclose favorable evidence to the defense handicapped defense counsel's overall performance and caused him to lose focus of the importance of this critical piece of evidence” and that “such deficiency was the direct result of the State's Brady violations.” Id. at *4.

Judge Yeary filed a concurring opinion. While Judge Yeary would not have granted Appellant Brady relief, Judge Yeary would have granted Appellant relief on the basis of ineffective assistance of counsel:

Defense counsel failed to properly prepare Kenneth to testify consistently with his written statement with respect to a particular fact that was vital to the optimal presentation of his original defensive posture in the case. He was also unprepared to impeach Kenneth in the event that he persisted in testifying differently than his written statement. I would hold that these failures constituted an omission that fell below the standard of reasonable professional competence.

Id., slip op. at 46 (Yeary, J., concurring).

II. Discussion

I would grant the first ground of Appellant's petition for discretionary review and reverse the judgment of the court of appeals because the court of appeals’ decision conflicts with prior decisions of the Supreme Court of the United States and of this Court.

a. Applicable Law

A new trial is generally sufficient to remedy the State's illegal suppression of favorable evidence in violation of Brady because a defendant is permitted to use and develop the previously suppressed evidence in the new trial. Ex parte Davis, 957 S.W.2d 9, 14 (Tex. Crim. App. 1997). However, while a retrial may be possible, when certain testimony is “tainted by the State's prior misconduct,” the admission of such testimony at retrial “casts serious doubts as to the fairness of [the retrial] and the reliability of the proceeding against [defendants].” Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1996). And, in a retrial, a trial court has a duty to ameliorate the taint of the State's previous misconduct, to ensure that the defendant is given a fair trial. Id. at 637 (Baird, J., concurring in part) (“[I]t is necessary to identify and then neutralize the taint of the State's misconduct by tailoring the relief to assure, if possible, a fair trial.” (citing United States v. Morrison, 449 U.S. 361, 365 (1981))).

b. Analysis

The court of appeals found the trial court did not abuse its discretion by admitting Kenneth's 2007 testimony because “no court had said that a Sixth Amendment violation had occurred.” Temple, 2025 WL 1799799, at *12. But this ignores the only reason we declined to grant Sixth Amendment relief: because counsel's deficiency “was the direct result of the State's Brady violations.” Temple, 2016 WL 6903758, at *3. We were clear that the Brady taint extended to Kenneth's incorrect testimony, which harmed Appellant:

Had Kenneth (a defense witness) testified consistently with his prior statement (of which defense counsel had possession long before trial)—that Belinda left Applicant's parents’ house at 3:55 p.m. and drove the 15 minutes to her house—this evidence would have supported the defensive theory that Applicant did not have time to commit the murder, clean up afterwards, ditch the murder weapon, and still be on a store surveillance camera with his son at 4:32 p.m.

Id. Ameliorating the taint of the State's prior misconduct in Appellant's second trial would have been simple: all the trial court had to do was exclude the portion of Kenneth's deposition that included his 2007 testimony. But the jury in Appellant's second trial was allowed to hear the very evidence that only existed because of the State's Brady violations in the first place. See id.

Appellant relies on Harrison v. United States, 392 U.S. 219 (1968), to support his contention. There, the government introduced Harrison's confession to law enforcement at his first trial, and Harrison testified in his own defense to contradict the confession. The court of appeals reversed his conviction, finding that the confession had been obtained illegally and should have been excluded. At his second trial, Harrison elected not to testify in his defense, and the State instead read his testimony from the first trial to the jury. The Supreme Court of the United States held that Harrison's testimony at his first trial was impelled by the State's misconduct and should have been excluded from his second trial: “the essence of forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Id. at 222 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)).

Harrison can and should be expanded beyond “the narrow confines of [its] factual context.” McMann v. Richardson, 397 U.S. 759, 780 n.4 (1970) (Brennan, J., dissenting); see also Sweeten v. State, 693 S.W.2d 454, 458 (Tex. Crim. App. 1985) (applying the legal principles stated in Harrison to exclude Sweeten's testimony from his first trial because that testimony was impelled by the introduction of inadmissible evidence). In Harrison, the Supreme Court reaffirmed the rule that when “evidence to which instant objection is made has been come at by exploitation of that illegality,” the government has the burden to prove that such evidence was instead obtained “by means sufficiently distinguishable to be purged of the primary taint.” 392 U.S. at 226 (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)). This holding was grounded in a broad legal principle: a retrial is not an opportunity for the State to smuggle its earlier misconduct back into court. This principle should not be limited to the accused's testimony only. If a defendant's testimony must be excluded because it was “impelled by the prosecution's wrongful use of his illegally obtained confessions,” id. at 224, then surely the testimony of a lay witness whose “critical” testimony was likewise corrupted by suppressed exculpatory evidence must be excluded as well.

There is no evidence that Kenneth's testimony was obtained by means sufficiently distinguishable from the State's Brady violation to be purged of the primary taint. In fact, the record seems explicitly clear that his testimony was come at by exploitation of the State's Brady violation: Kenneth's testimony was only created because “the State's failure to timely disclose favorable evidence to the defense ․ caused [defense counsel] to lose focus of the importance of” Kenneth's testimony. Temple, 2016 WL 6903758, at *4. His testimony is therefore every bit the fruit of the Brady violation as Harrison's testimony was of the illegally obtained confession. To now permit the State to recycle that same tainted testimony is to allow the State to retain the benefit of its own constitutional breach.

Appellant's case is analogous to Cook, where this Court held that the State was not permitted to resurrect tainted testimony in a retrial after a Brady reversal. We overturned Cook's first conviction because the State suppressed materially favorable evidence, including inconsistent statements by a central prosecution witness. Id. at 626. The witness died before Cook's retrial, so Cook was foreclosed from investigating and developing the witness's contradictions. The State read the witness's testimony from the first trial at Cook's retrial anyway. We held that the use of the witness's testimony at Cook's retrial cast such serious doubts as to the fairness of the retrial and the reliability of the proceedings against him that reversal was warranted. Id. at 627. This same defect is present in Appellant's case: the State's prior misconduct precluded Appellant from curing Kenneth's inconsistent testimony at the first trial. Just as Cook required reversal because the State's earlier suppression infected the jury's consideration of the evidence, a reversal is required here because the State sought to introduce testimony that was itself the product of the original Brady violation.

I echo Judge Yeary’s concern from nine years ago, which places Kenneth's testimony squarely within the ambit of the State's prior misconduct:

Had defense counsel been less distracted by late-disclosed evidence and therefore better focused to prepare his witness, there is little reason to doubt that Kenneth would have reverted to his original time estimate. And had the jury heard and credited Kenneth's original time estimate, it might more readily have concluded that Applicant could not have had time to kill Belinda, and it may therefore have given more credence to the alternative hypothesis—in some respects, better supported by the evidence—that [Sanders] was the perpetrator.

Temple, 2016 WL 6903758 (Yeary, J., concurring). Put another way, in a trial without Brady violations by the State, a jury would never hear Kenneth's inconsistent testimony because trial counsel would adequately prepare him to testify. Or trial counsel would be prepared to refresh Kenneth's recollection with his statement to law enforcement, so the jury would consider it a mistake instead of as evidence undermining Appellant's defense. Instead, the jury was made to believe that Kenneth's testimony at the second trial, which tracked everything but his testimony during the tainted trial, was the mistake.

The State argues that to give Appellant relief would “expand the relief for the State's Brady violation to include the suppression of impeachment evidence of [Kenneth].” But the only reason any impeachment evidence exists at all is because of the State's Brady violation. The harmful effect of the State's Brady violations cannot be said to be cured when, at the purportedly curative retrial, the State is permitted to admit evidence that was tainted by the same violations. The taint of the first trial is then effectively incorporated into the second. In admitting Kenneth's entire deposition, including his impeachment with his 2007 testimony, the State was permitted to circumvent our prior ruling, and Appellant was again deprived of a fair trial.

III. Conclusion

I would grant the first ground of Appellant's petition for discretionary review and reverse the judgment of the court of appeals. In admitting Kenneth's testimony that we held was “the direct result of the State's Brady violations,” the trial court effectively circumvented the appropriate relief we granted Appellant for the State's Brady violation. I respectfully dissent.

FOOTNOTES

1.   Temple v. State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013).

2.   Ex parte Temple, No. WR-78,545-02, 2016 WL 6903758, at *4 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication).

3.   Temple v. State, — S.W.3d —, 2025 WL 1799799, at *29 (Tex. App.—Houston [14th Dist.] July 1, 2025).

4.   991 S.W.2d 863, 866 (Tex. Crim. App. 1999).

Finley, J., filed a dissenting opinion.