Court's Findings of Fact and Conclusions of Law

COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Having considered Applicant’s “First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071,” the Respondent’s “Original Answer,” Applicant’s “Reply to Respondent’s Original Answer to Applicant’s Article 11.071 Application for Writ of Habeas Corpus,” Applicant’s “Second Renewed Request for Access to State’s Evidence,” Applicant’s “Renewed Motion for Hearing,” Applicant’s “Motion for Reconsideration,” Applicants “Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing,” official court documents and records, and the Court’s personal experience and knowledge, the Court makes the following findings of fact and conclusions of law:

HISTORY OF THE CASE

Applicant is confined pursuant to the judgment and sentence of the Criminal District Court No. 3 of Dallas County, Texas, in cause number F96-39973-J, in which Applicant was convicted by a jury of the capital felony offense of capital murder, specifically, the murder of Damon Routier, a child under six years of age. (CR: 2). See Tex. Penal Code Ann. §19.03(a)(8)(Vernon 1994). The jury answered the special issues submitted so as to support the imposition of a death sentence, and this Court therefore assessed punishment at death, as required by law. (CR: 220-21). See Tex. Code Crim. P. Ann. art. 37.071, §2(b)(1)(Vernon Supp. 2003); Tex. Code Crim. P. Ann. art. 37.071, §2(e)(1)(Vernon Supp. 2003).
The Court of Criminal Appeals affirmed Applicant’s conviction and death sentence in a unanimous opinion. Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003).

APPLICANT’S CLAIMS

In her Application for Writ of Habeas Corpus, Applicant raises the following grounds for relief:

(1) whether she is actually innocent of the crime for which she was convicted;

(2) whether a defective reporter’s record of the trial denies her rights to due process of law;

(3) whether she received ineffective assistance of counsel from her team of lawyers due to:

• a conflict of interest on the part of Doug Mulder;
• an unreasonable investigation on the part of the defense team;
• the failure to object to allegedly inadmissible evidence of her character;
• the failure to object to allegedly inadmissible hearsay;
• the failure to object to testimony regarding statements made by Applicant while she was in a hospital;
• a failure to object to the prosecutors interfering with access to witnesses;
• the failure to offer a surveillance video tape depicting a prayer service earlier in the day of the “silly string” party;

(4) whether the cumulative effect of her defense team’s actions violated her rights;

(5) whether prosecutorial misconduct deprived her of a fair trial;

(6) whether the prosecution violated Brady v. Maryland by failing to disclose favorable evidence that:

• would impeach FBI agent Alan Brantley;
• would impeach trace evidence analyst Charles Linch;
• and would demonstrate that Applicant was not a future danger.

(7) whether the prosecution failed to correct false testimony from Charles Linch;

(8) whether the cumulative effect of alleged misconduct by the prosecution deprived Applicant of a fair trial; and

(9) whether the Texas death penalty system is unconstitutional on its face.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF I

In Ground for Relief I, Applicant claims she is “actually innocent” of the crime for which she was convicted. (Application at 13-23).

Applicable Law – Actual Innocence

1. In order to sustain a claim of “actual innocence,” a habeas applicant must prove by clear and convincing evidence that no reasonable juror would have convicted her in light of newly discovered evidence. Ex parte Franklin, 72 S.W.3d 671, 675-77 (Tex. Crim. App. 2002).

2. Applicant claims the lower standard of preponderance of the evidence as set out in Schlup v. Delo, 513 U.S.298 (1995) applies to her actual innocence claim. (Application at 13-16).

3. The Supreme Court distinguished “substantive” innocence claims from “procedural” innocence claims in Schlup. The Court specifically noted that Schlup’s claim would not provide him relief, but merely provided a “gateway” for review of otherwise barred claims presented in his successive habeas petition. Schlup, 513 U.S. at 315 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)).

4. The Court finds that the instant habeas proceeding involves Applicant’s initial writ application, and therefore, her claims cannot be barred for abuse or subsequent use of the writ.

5. The Court concludes that Applicant’s claim is a “substantive” claim of innocence, and therefore Applicant must prove by clear and convincing evidence that no reasonable juror would have convicted her in light of newly discovered evidence. See Franklin, 72 S.W.3d at 677; see also Schlup, 513 U.S. at 317.

Fingerprint Evidence
The Jantz Report, the Wertheim Report, and the Jantz Affidavit

6. Applicant claims that new fingerprint evidence demonstrates that a previously unidentified bloody fingerprint found on the coffee table belonged to an adult. (Application at 17-18).

7. Two lifts of this print were admitted into evidence at trial. (SX. 845I & 85J; RR.34: 2030).

8. Based on the testimony of James Cron, and the writ evidence of Dr. Richard Jantz and Pat Wertheim, the court finds that the fingerprint lacks sufficient points of comparison to make a comparison and that the fingerprint most likely was deposited by a child or adult female.

9. The Court finds that Jantz’s method is not a sound or accepted basis to identify or exclude an individual as having deposited a smudged, bloody fingerprint such as that in the instant case.

10. The Court finds that Cron’s trial testimony about the fingerprint was accurate. .

11. The Court finds that the technique Jantz used to prepare his report is not typically used by forensic anthropologists.

12. The Court finds that Wertheim’s critique of Jantz’s report is credible and persuasive.

13. The Court concludes that Applicant has failed to demonstrate that Jantz’s technique is valid, or that Jantz properly applied the technique in examining the fingerprint evidence in this case.

14. The Court concludes that Jantz’s report would be inadmissible under Texas Rule of Evidence 702.

15. The Court further finds that Applicant has always claimed that an unknown adult male was the real perpetrator of the murders. (See, e.g., RR.34: 2564-65; 2568; RR.44: 4468).

16. The Court finds that the tables in Jantz’s report each state that the most likely depositor of the print was an adult female. (Applicant’s Writ Exhibit 4, Table 2, Table 5, Table 8).

17. The Court finds that Jantz’s report therefore undermines Applicant’s claim that an unknown adult male murdered her children.

18. The Court finds that Wertheim compared the latent print, State’s Exhibit 85I and 85J, to the print cards of all the paramedics, police, forensic technicians, and others who were in the crime scene from the time the murder was reported until the officer who collected the print left the crime scene. Of all those people, the only finger of a person that could not be excluded as contributing the print was Applicant’s right ring finger. (State’s Writ Exhibit 2 at 3).

19. The Court finds that Jantz’s report does not exclude the possibility that Applicant deposited the unidentified print.

20. The Court finds Applicant has failed to prove by a preponderance of the evidence that Jantz’s report is affirmative evidence of Applicant’s innocence.

Fingerprint Evidence
Affidavit of Glenn M. Langenburg and Report of Robert C. Lohnes

21. The Court has reviewed the Affidavit from Glenn M. Langenburg, dated July 24, 2003, and the Report from Robert C. Lohnes, dated June 3, 2003, attached to Applicant’s Second Renewed Request for Access to State’s Evidence, filed July 29, 2003.

22. The Court finds that the source of the bloody fingerprint located on a door from the crime scene cannot be individualized due to insufficient characteristics. (Langenburg Affidavit at 7).

23. The Court notes that multiple persons were present in the crime scene after the report of the crime and prior to the collection of evidence in this case.

24. The Court finds that Langenburg’s Affidavit does not account for the possibility that one of the other persons known to be in the crime scene deposited the bloody print in question.

25. The Court finds that Lohnes’s Report states that he examined a latent print developed with black powder “left on a portion of a door.” (Lohnes Report 6/3/03).

26. The Court finds the Lohnes’s Report states that he identified the print as belonging to Darin Routier, specifically the second joint of Darin Routier’s left middle finger. (Lohnes Report 6/3/03).

27. The Court finds that the record demonstrates that Darin Routier lived in the home and was present in the home at the time of the murders. (See, e.g., RR.28: 311-12; RR.44: 4872-73).

28. The Court finds that the presence of Darin Routier’s fingerprint inside his own home is not to be unexpected.

29. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Affidavit and Lohnes’s Report establish that any adult in addition to Applicant or Darin Routier were present in the home at the time of the offense.

30. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that fact is affirmative evidence of Applicant’s innocence.

31. The Court finds that Langenburg’s Affidavit and Lohnes’s Report are not affirmative evidence of

Applicant’s innocence.
Fingerprint Evidence
Reports No. 1 and No. 2 of Glenn Langenburg

32. Applicant has attached Glenn Langenburg’s Report No. 1, dated May 5, 2002, and Report No. 2, dated December 14, 2003, to her Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing filed on January 23, 2004.

33. The Court finds that Langenburg’s Report No. 1 states that he examined a bloody fingerprint from a door. The report states that the fingerprint had insufficient quantity and quality of ridge detail to identify the source, but had sufficient quantity and quality of ridge detail to exclude Applicant as the source of the print. (Langenburg Report No. 1).

34. The Court finds that Langenburg’s Report No. 1 relates to the same fingerprint discussed in Langenburg’s Affidavit and reaches the same conclusion stated in the Affidavit. (Compare Langenburg Report No. 1 with Langenburg Affidavit).

35. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report establishes that any adult in addition to Applicant or Darin Routier were present in the home at the time of the offense.

36. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that that fact would be affirmative evidence of Applicant’s innocence.

37. The Court finds that Langenburg’s Report is not affirmative evidence of Applicant’s innocence.

38. The Court finds Applicant has failed to plead and prove facts, which if true, entitle her to relief. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998) (citing Ex parte Maldonando, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985)).

39. In the alternative, the Court makes the following findings, assuming arguendo that Langenburg’s Report No. 1 refers to a different fingerprint than that referred to in Langenburg’s Affidavit.

40. The Court finds that Langenburg’s Report No. 1 does not account for the possibility that one of the other persons known to be in the crime scene deposited the bloody print in question.

41. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 1 establishes that an intruder was present in the home at the time of the offense in addition to Applicant and Darin Routier.

42. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that fact would exonerate Applicant.

43. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 1 is affirmative evidence of Applicant’s innocence.

44. Langenburg’s Report No. 2 states that he examined another fingerprint, a latent fingerprint developed with black powder, located beneath the bloody fingerprint examined in Report No. 1. (Langenburg Report No. 2).

45. Langengburg states that this print is either a palm or finger joint print that is suitable for comparison. (Langenburg Report No. 2).

46. The Court finds that Langenbug’s Report No. 2 does not account for the possibility that persons known to be in the house prior to the crime could have deposited the latent print in question.

47. The Court finds that, as the latent print in question is not bloody, it cannot be connected to the crime.

48. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 2 establishes that an intruder was present in the home at the time of the offense.

49. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print examined in Langenburg’s Report No. 2, it would constitute affirmative evidence of Applicant’s innocence.

50. The Court finds that Langenburg’s Report Report No. 2 is not affirmative evidence of Applicant’s innocence.

Affidavit of Darlene Potter

51. Darlene Potter’s Affidavit states that she saw two “suspicious” men on near an “S” curve on Dalrock Road in Rowlett after 2:00 am on the night of the murders. (Applicant’s Writ Exhibit 14).

52. The Court finds that Potter executed her Affidavit on July 10, 2002, over six years after the offense. (Applicant’s Writ Exhibit 14).

53. The Court finds that Potter did not provide this information to the police at the time of the offense.

54. The Court finds that the men in question were walking in a direction that led away from the Routier home prior to the murders.

55. The Court finds that David Nabors’ Affidavit (State’s Writ Exhibit 3) identifies three possible locations matching that description of the areas where Potter saw the “suspicious” men: 7609 Dalrock Road, 8705 Dalrock Road, and 8900 Dalrock Road.

56. The Court finds that the aerial maps attached to Nabors’s Affidavit show that 7609 Dalrock Road is 5861 feet (1.1 miles) away from the Routier home at 5801 Eagle Drive, and 8705 Dalrock Road is 8505 feet (1.6 miles) away. (State’s Writ Exhibit 3, Map 1, Map 2).

57. The Court finds that the distances described in the previous finding are straight lines cutting through numerous houses, fences, streets, and parking lots. (State’s Writ Exhibit 3, Map 1, Map 2).

58. The Court finds that from the Routier home at 5801 Eagle Drive the driving distance was 2.3 miles to 8900 Dalrock Drive, approximately 2 miles to 8705 Dalrock Drive, and approximately 1.23 miles to 7609 Dalrock Drive. (State’s Writ Exhibit 3).

59. The Court finds that Potters delay in executing her affidavit and failure to report what she witnessed at the time cast doubt on the veracity of her allegations.

60. The Court finds that the affidavits demonstrate that the men had no connection to the instant offense.

61. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Potter’s affidavit proves that anyone other than Applicant was responsible for or involved in the murders.

62. The Court finds that Potter’s Affidavit in not affirmative evidence of Applicant’s innocence.

Evidence Regarding Insurance Scam

63. Applicant has attached to her Application affidavits from Darin Routier, Richard Reyna, and Robbie Kee stating that Darin tried to find someone to burglarize his house prior to the murders there. (Application at 19-20; Applicant’s Writ Exhibits 13, 12, 6).

64. The Court finds that Darin vigorously disputed the State’s evidence that the family was in financial difficulty, but admitted that his business had slowed, he was behind on his taxes, he was behind on his office rent, and he had large credit card debts. (RR.42: 4248-57; 4354-56; 4364; R.43: 4445).

65. The Court finds that the State presented expert testimony at trial from FBI Special Agent Alan Brantley that the crime was inconsistent with a property crime but consistent with a murder committed by a person close to the children. (RR.40: 3655-97).

66. The Court finds that readily visible valuable items like jewelry were left undisturbed during the crime. (SX. 15 E & 15 F).

67. The Court finds that Applicant has adduced no evidence nor pointed to evidence in the record that demonstrates that the crime was an attempted burglary or robbery rather than a murder.

68. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Darin Routier’s Affidavit, Richard Reyna’s Affidavit, or Bobbie Kee’s Affidavit prove that anyone other than Applicant was responsible for or involved in the murders.

69. The Court finds that the affidavits are not affirmative evidence of Applicant’s innocence.

Affidavit of Samuel Palenik

70. Applicant has attached the Affidavit of Samuel Palenik to her Application stating that, based upon his review of the trial record, further testing of the debris recovered from the knife seized from the Routier’s kitchen might be “more definitive.” (Applicant’s Writ Exhibit 10).

71. At trial, Charles Linch testified that he found debris on a knife seized from the Routiers’ kitchen that was consistent with test fibers he recovered from the cut window screen in the Routiers’ garage. (RR.37: 2905-28; SX 117).

72. The State argued at trial that the fibers on the knife showed that Applicant staged the crime scene to make it appear that an intruder committed the offense. (RR.46: 5229-30).

73. Palenik’s Affidavit also states that it is “possible” that the debris found on the knife came from the fingerprint brush used to fingerprint the knives. (Applicant’s Writ Exhibit 10).

74. The Court finds that fibers from the fingerprint brush used by the Rowlett Police at the crime scene are not consistent with the debris found on the knife. (RR.37: 3038-39; 3054-56). The fibers from the brush were of 25% greater diameter than the screen fragment fibers, 12.5 microns as opposed to 10 microns. (RR.37: 3055).

75. The Court finds that the trial record does not indicate that the Rowlett Police processed the knife block or knives for fingerprints. (RR.34: 1979-2096; 2016-17; 2078-79).

76. The Court finds that the knife and knife block were not printed by the Rowlett Police. (State’s Writ Exhibit 3).

77. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Palenik’s affidavit demonstrates that anyone other than Applicant is criminally responsible for the offense.

78. The Court finds that Palenik’s affidavit is not affirmative evidence of Applicant’s innocence.

Affidavit of Terry Laber

79. Applicant attached the Affidavit of Terry Laber to her Application in support of her actual innocence claim. (Application at 21-22; Applicant’s Writ Exhibit 7).

80. Laber viewed Applicant’s nightshirt prior to trial and removed four samples prior to Tom Bevel, the State’s blood spatter expert, observing the shirt. (RR.37: 2819; 2821-22).

81. The Court finds that Laber does not reveal the results of any tests he performed on the samples in his Affidavit. (Applicant’s Writ Exhibit 7).

82. At trial Tom Bevel testified that he examined five bloodstains on Applicant’s nightshirt, and that four of these five stains contained both Applicant’s blood and the blood of Damon or Devon. (RR.39: 3340-56; 3344; 3347; 3345-46; 3348-50; 3352).

83. The Court finds that the five bloodstains in question were consistent with blood being “cast off” the knife as Applicant stabbed her children. (RR.39: 3344-50; 3352; 3354-56).

84. The Court finds that some of the four stains consisting of both the blood of Applicant and her children could have resulted from Applicant’s blood being deposited on top of the blood of one of the children’s blood. (RR.39: 3343-46). Bevel testified that at least one of the stains, however, did not appear to be an “overlaid” stain. (RR.39: 3348).

85. The Court finds Bevel testified that, if the stains were “mixed” rather than overlaid, then Applicant was already bleeding when Damon and Devon were stabbed. (RR.39: 3488; 3490-91).

86. The Court finds that Applicant’s blood in the stains could have come from self-inflicted wounds on her arm as well as from her neck, and therefore her neck wound could have been inflicted after she killed her children. (RR.39: 3549).

87. Laber states in his Affidavit that Applicant’s blood landing precisely atop the blood of her sons in the stains “would have required an extremely unlikely sequence of events.” (Applicant’s Writ Exhibit 7, “12.a”, p.5).

88. Applicant’s lead trial counsel argued to the jury how difficult it would be for spots of Applicant’s blood to land atop spots of her children’s blood four separate times. (RR.46: 5303).

89. The Court finds that Laber’s affidavit does not state that his opinion regarding these bloodstains is anything more than common sense.

90. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the nightshirt demonstrate that anyone other than Applicant is criminally responsible for the offense.

91. The Court finds that Laber’s allegations regarding the nightshirt are not affirmative evidence of Applicant’s innocence.

92. Laber’s Affidavit also alleges that blood spatter on the vacuum cleaner was inconsistent with Applicant pushing the vacuum cleaner around while bleeding from her wounds. (Applicant’s Writ Exhibit 7 at 11.a).

93. The Court finds that the State’s blood spatter expert, Tom Bevel, testified that some of the blood spatter on the vacuum cleaner was deposited while it was standing upright, and some was deposited while it was lying on its side on the floor. (RR.38: 3302-3306).

94. The Court finds that Laber’s allegations appear to be consistent with Bevel’s trial testimony regarding the vacuum cleaner.

95. Applicant testified at trial that she used the vacuum cleaner to support herself after she received her wounds. (RR.44: 4874-76; 4877).

96. Darin Routier also testified that Applicant used the vacuum cleaner to support herself after she was wounded. (RR.42: 4298-4300).

97. The Court finds that Laber’s allegations regarding the vacuum cleaner are contradicted by Applicant’s and Darin’s sworn trial testimony.

98. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the vacuum cleaner demonstrate that anyone other than Applicant is criminally responsible for the offense.

99. The Court finds that Laber’s allegations regarding the vacuum cleaner are not affirmative evidence of Applicant’s innocence.

100. Laber’s Affidavit also alleges that a broken wineglass on the kitchen floor was not consistent with a person smashing or throwing the glass onto the floor as part of a staged crime scene. (Applicant’s Writ Exhibit 7 at 11.b).

101. The Court finds that James Cron found broken glass from a wine glass on the floor of the Routier kitchen. Some of the glass was located on top of bloody footprints, but was not itself bloody. (RR.34: 2212-13; 2217-18). Broken glass was also found beneath the overturned vacuum cleaner in the kitchen. (RR.34: 2216-17).

102. James Cron testified that he examined a wine rack in the Routier kitchen but could not shake or bump any of the wine glasses loose without all of the glasses falling out. (RR.35: 2251; 2392).

103. The Court finds that, during cross-examination, James Cron testified that there was broken glass on top of the wine rack. (RR.35: 2397-98)

104. Darin Routier testified that there was broken glass in an ice bucket atop the wine rack, as well as the top of the rack itself. (RR.42: 4330).

105. Applicant’s attorneys argued that the broken glass in the ice bucket and on top of the wine rack demonstrated that an intruder knocked a glass out of the rack as he fled the Routier home after committing the murders. (See RR.46: 5314).

106. The Court finds that Laber’s allegations regarding the wine glass are cumulative of trial testimony adduced by Applicant’s trial counsel.

107. The Court finds that Laber’s allegations regarding the wine glass do not address the testimony that fragments of the broken wine glass were found underneath the vacuum cleaner, or that unbloodied fragments were found atop Applicant’s bloody footprints. (Applicant’s Wirt Exhibt 7 at 11.b).

108. The Court notes that Laber’s allegations regarding the broken wine glass are conclusory and give no insight as to the basis of his allegations. (Applicant’s Writ Exhibit 7 11.b).

109. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the broken wineglass demonstrate that anyone other that Applicant is criminally responsible for the offense.

110. The Court finds that Laber’s allegations regarding the broken wineglass are not affirmative evidence of Applicant’s innocence.

Applicant’s Writ Evidence Does Not Establish Actual Innocence

111. A habeas applicant must adduce affirmative evidence of innocence to establish actual innocence; mere impeachment or raising doubt is insufficient. See Ex parte Franklin, 72 S.W.3d at 675, 678. Affirmative evidence of innocence includes such things as trustworthy witness recantations, exculpatory scientific evidence, trustworthy eyewitness accounts, and critical physical evidence. See id. at 678 n.7.

112. The Court finds and concludes that, to be affirmative evidence of innocence, evidence must prove more than the mere presence of others at a crime scene or that others have motive to commit a crime. Such evidence must also prove that the habeas applicant was in fact not criminally responsible for committing the offense. See Tex. Penal Code Ann. §§7.01, 7.02.

113. The Court notes its previous findings pertinent to the claims encompassed within this Ground for Relief and finds that Applicant has failed to prove by a preponderance of the evidence the existence of affirmative evidence of Applicant’s innocence, scientific or otherwise.

114. The Court finds that Applicant has failed to prove by clear and convincing evidence that no reasonable juror would have convicted her in light of the evidence attached to her Application and associated filings.

115. The Court concludes that Applicant is not entitled to relief as to Ground I and recommends that relief be denied.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF II

In her second ground for relief, Applicant contends that the reporter’s record in this case is manifestly defective, rendering any post-conviction review inadequate and violating due process.

116. The Court of Criminal Appeals ordered this court to conduct an independent review of the reporter’s record prepared by Sandra Halsey to ensure that it conformed to what occurred at trial.

117. This Court, with the agreement of the State and defense counsel, appointed veteran court reporter Susan Simmons to independently review the Halsey record and submit a revised record (“Simmons record”). The Court finds that this Court held twenty-seven post-trial hearings on the matter of the accuracy of the record.

118. The Court finds that Simmons explained the reporting process at one of the many hearings held on this issue. (AR13: 10-17).

119. The Court finds that Simmons was provided with Halsey’s final, printed version of the reporter’s record, as well as Halsey’s translation disks, paper steno notes, audiotapes, and a packet of handwritten notes Halsey had made in the courtroom. (AR13: 18). Simmons then compared Halsey’s printed record against the audiotapes. (AR: 23-24). When she came to a portion of the audiotape she was uncertain of, she would refer to the paper steno notes. (AR13: 24). Using this process, Simmons wrote her corrections on the Halsey record in red ink. (AR13: 23-24).

120. The Court finds that Simmons then used a scopist to type the “red-lined” corrections on copies of the translation disks. (AR13: 25-27). The scopist printed the corrected pages onto paper and gave those back to Simmons. (AR13: 27-28). Simmons compared the printed page to her “red-lined” Halsey record to make sure all the changes had been made by the scopist. (AR13: 28-29). Finally, Simmons generated an index. (AR13: 29-30).

121. The Court finds that the use of audiotapes is a double-check for accuracy and a common, standard practice among reporters. (AR13: 32; AR26: 26).

122. The Court finds that the deficiencies in the Halsey record were caused by a lack of proper editing, rather than an inability to report a trial. (AR13: 34).

123. The Court finds that Simmons did not have an audiotape for the first 54 pages of volume 10, although Simmons concluded that a tape existed at one time. (AR26: 7, 10, 18).

124. The Court finds that, although Simmons did not have an audiotape of the first 54 pages of Volume 10, the pages flowed smoothly, there did not appear to be gaps or lapses, and the steno notes appeared to cover everything in that portion of the record. (AR26: 12, 18).

125. This Court finds that Simmons believes the record is an accurate reconstruction of the steno notes. (AR26: 19, 26-27).

126. The Court finds that Simmons did not feel comfortable certifying the first fifty-four pages in Volume 10 as an accurate transcription of what occurred in the trial proceedings without an audiotape. (AR26: 13, 26). Rather, Simmons stated that they were a true and accurate transcription of Halsey’s notes of the proceedings. See Routier v State, 112 S.W.3d 554, 562 (Tex. Crim. App. 2003).

In her habeas application, Applicant complains that Susan Simmons created a “wholly new reporter’s record” using “unauthenticated and often poor-quality audio tapes.” (Application at 30). Applicant also complains that the record is incomplete due to the fifty-four uncertified pages in Volume 10.

Completeness of the Record

127. The Court finds that Applicant’s complaint that the record is incomplete was raised in her second point of error on direct appeal. There, Applicant argued she was entitled to a new trial under appellate rule 34.6(f) because the uncertified portion of the record, the first 54 pages of volume 10, had been “lost or destroyed” through no fault of her own.

128. The Court finds that the Court of Criminal Appeals decided the issue against Applicant, concluding that Applicant did not show that the uncertified portion of the record was necessary to her appeal. See Routier, 112 S.W.3d at 571-72.

129. Complaints addressed on direct appeal cannot be relitigated on habeas review. See Ex parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App. 1998).

130. This Court concludes that a habeas applicant cannot rely on appellate rule 34.6(f) to obtain a new trial on the ground that a portion of the habeas record has been lost or destroyed because subsection (3) requires an appellant to show that the lost or destroyed portion of the record is necessary to the appeal’s resolution. TEX. R. APP. P. 34.6(f)(3).

131. Applicant fails to present any particular legal rationale for her complaint on habeas. She simply asserts, without reference to any authority, that the record is not certified in its entirety and, therefore, is manifestly defective. (Application at 24).

132. To the extent Applicant may be relying on appellate rule 34.6(f) to challenge the habeas record, this Court concludes her ground for relief should be denied. See TEX. R. APP. P. 34.6(f).

133. To the extent Applicant is relying on rule 34.6(f) to challenge the record filed on direct appeal, this Court concludes her ground for relief is procedurally barred because it was addressed on direct appeal and overruled. See Ramos, 977 S.W.2d at 617.

134. Procedural errors or statutory violations are not cognizable on a writ of habeas corpus. Ex parte McCain, 67 S.W.3d 204, 209 (Tex. Crim. App. 2002).

135. The Court finds that, to the extent Applicant may be relying on appellate rule 34.6(f) to challenge the habeas record, her claim is not cognizable.

136. Alternatively, this Court adopts the findings and conclusion made by the Court of Criminal Appeals pertaining to Applicant’s complaint about the uncertified portion of Volume 10. Routier, 112 S.W.3d at 570-72.

137. In addition, three prosecutors and Applicant’s original appointed defense attorney have tendered affidavits regarding the substance of the proceedings that occurred in those uncertified fifty-four pages confirming that the Simmons record is a substantively accurate transcription of what occurred in the courtroom. (State Writ Exhibits 4, 5, 6, and 7).

138. The Court finds that Applicant has presented no evidence that the first 54 pages of Volume 10 of the Simmons record are incomplete or inaccurate in any way.

139. The Court finds that Applicant fails to prove that the uncertified portion of the first 54 pages of Volume 10 renders the record manifestly defective or insufficient for meaningful habeas review.

140. The Court finds that the first 54 pages of Volume 10 are a substantively accurate transcription of what occurred in the courtroom on that day.

Accuracy and Reliability of Entire Record

Applicant next complains, without supporting legal authority, that the Simmons record is manifestly defective because it is a wholly new record created by using unauthenticated, poor quality audiotapes.

141. The Court finds that this complaint was raised on direct appeal.

142. The Court finds that the Court of Criminal Appeals rejected these claims on direct appeal. Routier, 112 S.W.3d at 564-570.

143. Accordingly, this Court concludes that they are procedurally barred from habeas review and will not be addressed. See Ramos, 977 S.W.2d at 617.

144. In the alternative, this Court adopts the findings and conclusion made by the Court of Criminal Appeals on direct appeal pertaining to Applicant’s complaint about the reliability and accuracy of the entire record. Routier, 112 S.W.3d at 564-70.

Adherence to Due Process

Applicant next complains she was not permitted to develop her objections to the record in the trial court, in violation of due process. She cites Chessman v. Teets, 354 U.S. 156 (1957) to support her claim.

145. The Court finds that this complaint was raised and rejected on direct appeal. In her fourth and fifth points of error, Applicant complained that the procedure used by this trial court violated federal due process and, specifically, Chessman v. Teets.

146. The Court finds that the Court of Criminal Appeals held that Chessman did not support her claim, and that Applicant received ample notice and opportunity to present live witnesses regarding her objections to the Simmons record. Routier, 112 S.W.3d at 572-574.

147. Thus, this Court concludes that Applicant’s complaint that she was not given the opportunity to develop “crucial” information regarding the accuracy of the record is procedurally barred and will not be addressed. See Ramos, 977 S.W.2d at 617.

148. Alternatively, this Court adopts the findings and conclusion made by the Court of Criminal Appeals pertaining to Applicant’s complaint about violations of federal due process. Routier, 112S.W.3d at 572-74.

The Simmons Affidavits Do Not Change the
Outcome Reached by the Court of Criminal
Appeals Regarding the Accuracy of the Record

149. Applicant asks this Court to reconsider her claims on habeas review in light of an affidavit she obtained from Susan Simmons in August 2002. (Applicant’s Writ Exhibit 1).

150. The Court notes that, in response to the Simmons affidavit of August 2002, the State submitted an affidavit signed by Simmons in January 2003. (State’s Writ Exhibit 8). The Court finds that the January 2003 affidavit is consistent with and supports the Court of Criminal Appeals’ rulings on direct appeal.

151. This Court finds that the Simmons affidavit signed in August 2002 adds no facts that would change the outcome reached by the Court of Criminal Appeals on the matter of the accuracy and legality of the reporter’s record.

152. This Court concludes that Simmons’ averment that Halsey’s conduct was “unethical and unprofessional” does not change the analysis and outcome in the Court of Criminal Appeals opinion on direct appeal.

153. The Court finds that Applicant has failed to provide habeas proof that the record is incomplete or inaccurate.

154. Given the facts relied upon in the Court of Criminal Appeals’ opinion on direct appeal and the facts asserted in Simmons’ January 2003 affidavit, the Court concludes that the assertions in Simmons’ August 2002 affidavit regarding Halsey’s notes and Simmons’ inability to certify a portion of volume 10 would not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

155. In the August 2002 affidavit, Simmons next states that she did not intend to certify the non-verbal answers to the voir dire questions or the parenthetical notations regarding the presence or absence of attorneys. Simmons states she cannot certify parenthetical descriptions of non-verbal facts because those facts were not recorded on audiotape. (Applicant’s Writ Exhibit 1).

156. The Court of Criminal Appeals addressed the accuracy of the parentheticals and the recording of non-verbal communication in its opinion on direct appeal.

157. This Court finds that the parentheticals taken down at trial were accurate. To the extent that Simmons made any changes to the parentheticals, this Court finds that they were not material changes. See id. at 568.

158. Accordingly, this Court concludes that the assertions in Simmons’ August 2002 affidavit regarding parentheticals and non-verbal communication would not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

159. Next, Simmons asserts in her August 2002 affidavit that she has no personal knowledge of who made the audiotapes she used to edit the record or of what may have been done to them before they were placed in her custody. (Applicant’s Writ Exhibit 1).

160. The Court finds that the Court of Criminal Appeals’ opinion on direct appeal addressed these concerns about the audiotapes. Routier, 112 S.W.3d at 567-568.

161. The Court of Criminal Appeals noted that testimony from the hearings supports a finding that the tapes were authentic.

162. The Court finds that nothing in Simmons’ August 2002 affidavit changes Simmons’ opinion reflected in her testimony about the quality of the tapes.

163. This Court concludes, therefore, that the statements in Simmons’ affidavit regarding her lack of knowledge as to the authenticity, completeness, and accuracy of the tapes do not change the analysis or decision reached by the Court of Criminal Appeals on direct appeal.

164. The Court of Criminal Appeals also noted in its opinion that Applicant did not present any expert testimony about alteration of tapes and has not requested an expert to test the tapes for alteration. Id. at 567.

165. Likewise, this Court finds that Applicant has failed to present any habeas proof, either by expert or lay witness, regarding the possible alteration of the tapes.

166. The Court further finds that Applicant fails to assert, much less prove, that the audiotapes are inauthentic, inaccurate, or incomplete.

167. Accordingly, this Court finds that the tapes are authentic, complete, and accurate. See Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000) (noting that videotape can be authenticated by its contents, appearance, and surrounding circumstances).

168. On direct appeal, the Court of Criminal Appeals addressed Applicant’s complaint that the Simmons record is a new record that consists only of a transcription of the tapes. Routier, 112 S.W.3d at 563. The Court disagreed with Applicant’s characterization of the Simmons record as a new record, and concluded that it is a corrected transcription of the notes taken at trial by Halsey, which notes were within the range of competent reporting. Id. at 564, 567. The Court rejected all of the legal authority cited by Applicant for the proposition that the tapes should not have been used to correct the record. Id. at 564-567.

169. Accordingly, this Court concludes that the assertions in Simmons’ August 2002 affidavit regarding her use of the tapes in preparing the record do not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

170. This Court finds that the record produced by Simmons was a corrected transcription of Halsey’s trial notes, which were within the range of competent and accepted reporting.

Conclusion

171. As a general rule, habeas corpus should not be used to re-litigate matters that were addressed on appeal. A previously litigated issue is subject to collateral attack, however, where the prior judgment is subsequently rendered void or where the Court has decided to apply relief retroactively after a subsequent change in the law. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).

172. The Court finds that Applicant has not alleged or shown that the Court of Criminal Appeals’ decision on direct appeal has been rendered void or that there has been a change in the law. Applicant merely asks this Court to reconsider her claims on habeas in light of an affidavit she obtained from Simmons on August 2002.

173. Pursuant to the discussion above, this Court concludes that Simmons’ affidavit of August 2002 contains no new, crucial evidence affecting the analysis or decisions made by the Court of Criminal Appeals on direct appeal regarding the accuracy of the record.

174. Applicant states in her Reply to the State’s Answer that the procedural bars do not apply because this habeas proceeding “involves” issues that were not and could not have been raised on direct appeal, including actual innocence, ineffective assistance of counsel, and prosecutorial misconduct.

175. The Court disagrees with Applicant’s interpretation of the procedural bar. The Court notes that the procedural bar relied on in Ramos, 977 S.W.2d at 617 prohibits a habeas Applicant from relitigating matters raised and rejected on direct appeal.

176. The Court finds that, here, Applicant seeks to relitigate the matter of the accuracy of the record, and her objections to the record are identical to or substantively the same as the objections she raised on direct appeal. The fact that she would use the record to present claims on habeas different from the claims made on direct appeal does not alter the fact that it is the accuracy of the record she seeks to relitigate.

177. The Court concludes therefore that Applicant’s complaints about the accuracy of the record are barred to the extent they were raised and addressed on direct appeal, irrespective and independent of any other claims made in the habeas application.

178. This Court also finds and concludes that Applicant has failed to allege and prove facts about the record that might entitle her to relief. See Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998). Applicant simply asks this Court to assume the Simmons record is “manifestly defective” based upon the procedure by which it was created.

179. This Court finds that, after nearly five years of reviewing the appellate record in multiple post-conviction proceedings, Applicant has not presented evidence from any source showing that something happened at trial that is not adequately reflected in the Simmons record.

180. This Court finds and concludes that the record in this case has been proven to be accurate and sufficiently complete in every respect to permit Applicant a fair review of her appeal and of her application for writ of habeas corpus.

Grounds for Relief III and IV

In Ground for Relief III, Applicant claims that she was denied her right under the Sixth Amendment to effective assistance of counsel at trial. (Application at 27-88). In Ground for Relief IV, Applicant claims that the cumulative effect of her trial counsel’s actions violated her constitutional rights. (Application at 88-89).

Conflict of Interest

Applicant claims that she was denied effective assistance of counsel because her lead trial counsel, Doug Mulder, had a conflict of interest. Specifically, Applicant claims that Mulder had a conflict because he previously represented Darin Routier at a show-cause hearing regarding a gag order and because he agreed not to implicate Darin Routier as a condition of his employment. (Application at 27-39).

Procedural Bar

181. The Court notes that claims that are raised and considered on direct appeal may not be relitigated in a habeas corpus proceeding. See Ex parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App. 1998).

182. The Court finds that Applicant claimed on direct appeal that Mulder had a conflict of interest because he had previously represented Darin Routier at a show cause hearing on a gag order. (State’s Response Exhibit 20, Table of Contents of Applicant’s Brief on Direct Appeal).

183. The Court finds that the Court of Criminal Appeals considered and rejected Applicant’s claim of a conflict of interest based upon Mulder’s representation of Darin Routier at the show cause hearing. See Routier v. State, 112 S.W.3d 554, 579-86 (Tex. Crim. App. 2003).

184. The Court therefore concludes that Applicant’s claim that Mulder had a conflict of interest based upon his prior representation of Darin Routier at the show cause hearing is procedurally barred.

The Trial Record and Habeas Evidence Do Not Establish
A Conflict Of Interest

185. In the alternative, the Court finds that neither the trial record nor the habeas evidence establishes a conflict of interest.

186. The Court notes that a criminal defendant can show a violation of her right to effective assistance of counsel if she demonstrates that her lawyer had “an actual conflict of interest that adversely affected [her] lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To meet this test, she must show that her counsel: (1) was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997).

Trial Record

187. The Court finds that the record demonstrates that Mulder represented Darin Routier at a show-cause hearing held on the trial court’s pre-trial gag order. (RR.8: 7-8).

188. The Court finds that, at the time of the show-cause hearing, Applicant was represented by appointed counsel Douglas Parks. (RR.8: 7-8).

189. The Court finds that at the show cause hearing Mulder was employed by Applicant’s mother, Darlie Kee, and that he was also representing Darin Routier at Kee’s request.

190. The Court finds that Mulder did not call Darin as a witness during the show-cause hearing and offered no evidence on his behalf. (RR.8: 12).

191. The Court finds that Mulder had no direct knowledge of Darin’s actions that were alleged to have violated the gag order. (RR.8: 12).

192. The Court finds that the issue at the show-cause hearing was whether Darlie Kee, Darin Routier, or Chief Knowles of the Dallas Sheriff’s Office violated the pre-trial gag order by discussing the facts of the murder case. (RR.8: 7-13).

193. The Court finds that the trial judge did not find Darin in violation of the gag order because he did not discuss the facts of the case. (RR.8: 12-13).

194. The Court finds that Mulder requested to be substituted as Applicant’s counsel approximately one month later, on the first day of general voir dire. At that time, Mulder stated that he also represented Kee as a “consultant,” but did not state that he represented Darin Routier. (RR.10: 10).

Habeas Evidence

195. Applicant has attached an Affidavit from her husband, Darin Routier, to her Writ Application. (Applicant’s Writ Exhibit 13).

196. The Court finds that Darin Routier states in his Affidavit that he talked to several people between March and May of 1996 about perpetrating an insurance scam burglary on his home and that he fought with Applicant on the night of the murders and that she asked for a separation. (Applicant’s Writ Exhibit 13).

197. The Court finds that Darin did not tell Mulder about the alleged insurance scam plan or the alleged fight on the night of the murders. (Applicant’s Writ Exhibit 13).

198. Darin states in his Affidavit that he discussed the murder case against Applicant with Mulder several times between July and October of 1996 and that Mulder agreed not to cast blame upon Darin for the murders if Mulder were hired to represent Applicant. (Applicant’s Writ Exhibit 13).

199. Darin states in his Affidavit that he believed Mulder was his attorney based upon comments made by Mulder prior to Mulder being hired to represent Applicant. (Applicant’s Writ Exhibit 13).

200. The Court finds that Darin does not claim in his Affidavit that he provided Mulder any specific confidential information about him that Mulder could not (or did not) use to Applicant’s benefit at trial. (Applicant’s Writ Exhibit 13).

201. The Court finds that Darin’s Affidavit does not reflect that he believed Mulder was his attorney during the trial. (Applicant’s Writ Exhibit 13).

202. Applicant has attached the Affidavit of Darlie Kee, her mother, to her Writ Application. (Applicant’s Writ Exhibit 5).

203. The Court finds that Darlie Kee states in her Affidavit that “Mulder assured us that, if he was in charge of the case, he would not” blame Darin Routier for the murders. (Applicant’s Writ Exhibit 5).

204. The Court finds that Darlie Kee’s Affidavit and Darin’s Affidavit do not reflect that Applicant did not participate in the decision to choose a trial strategy other than “blame Darin.” (Applicant’s Writ Exhibits 5; 13).

205. Applicant has attached the Affidavit of Doug Parks to her Writ Application. (Applicant’s Writ Exhibit 11).

206. The Court finds Parks was Applicant’s appointed counsel prior to Mulder’s substitution in the case. (Applicant’s Writ Exhibit 11).

207. The Court finds that Parks states in his Affidavit that he was concerned that Mulder’s representation of Darin at the show-cause hearing presented a conflict of interest. (Applicant’s Writ Exhibit 11).

208. Parks states in his Affidavit that he planned to implicate Darin as a defensive strategy and believed that such a strategy was required in a zealous defense of Applicant. (Applicant’s Writ Exhibit 11).

209. On September 30, 2003, the Court designated the following controverted issue for resolution pursuant to Article 11.071, §§8(a) and 9(a): “did defense counsel, Douglas Mulder, make an agreement with Darin Routier and/or Darlie Kee not to offer as a possible defense the theory that Darin Routier committed the offense.” (Order Designating Issues).

210. The Court notes that, on October 1, 2003, the Court ordered Mulder to provide the Court with an Affidavit responding to the allegations of Darin Routier and Darlie Kee that he made a promise not to blame the offense on Darin. (Order to Produce Affidavit).

211. On October 31, 2003, Mulder filed an Affidavit with the Court in response to the Court’s Order.

212. The Court finds that Mulder states in his Affidavit: “There were absolutely no restrictions on my representation of Ms. Routier with respect to Darin Routier or anyone else.” (Affidavit of Douglas Mulder).

213. The Court finds that Mulder states in his Affidavit that Darlie Kee asked him to represent Darin Routier on the day of the show-cause hearing on the gag order, that the hearing was very brief, and “[t]hat single incident was the extent of my representation of Mr. Routier.” (Affidavit of Douglas Mulder).

214. Applicant has attached the Affidavit of Sarilda Routier, Darin Routier’s mother, to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

215. The Court finds that Sarilda Routier states in her affidavit that Darlie Kee and Darin Routier told her, prior to hiring Doug Mulder, that Mulder told them “he would not present a ‘blame Darin” defense if hired to represent [Applicant].” (Affidavit of Sarilda Routier, signed November 5, 2003).

216. Applicant has attached the Affidavit of Kenneth Waits to her Renewed Motion for an Evidentiary Hearing, signed November 6, 2003.

217. The Court finds that Kenneth Waits states in his affidavit that he and his wife Melanie attended a hearing in the case prior to Mulder taking over the case and that either Darin Routier or Darlie Kee said “that one of the advantages in hiring Doug Mulder was that he had agreed not to ‘go after’ Darin Routier as the defense (sic) of the case.” (Affidavit of Kenneth Waits, signed November 5, 2003).

218. Applicant has attached the Affidavit of Melanie Waits to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

219. The Court finds that Melanie Waits states in her Affidavit that she attended a hearing in the case prior to Mulder taking over the case and that she heard Darin Routier talking “about hiring Doug Mulder and at one point he said about the court-appointed attorneys: ‘I’m their scapegoat. At least if I hire Doug Mulder, that won’t be [Mulder’s] plan.’” (Affidavit of Melanie Waits signed November 5, 2003).

220. Applicant has attached an Affidavit of her mother, Darlie Kee, to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

221. The Court finds that Darlie Kee states in her Affidavit: “In meetings Darin Routier and I had with Doug Mulder to discuss his representing my daughter, [Applicant], both Darin and I made it clear to Mulder that if he was hired, we did not want him to present a defense at trial that would point the finger at Darin Routier as the actual murderer. Mulder was well aware of this expectation and he said nothing to indicate that he would not meet this expectation.” (Affidavit of Darlie Kee, signed November 5, 2003).

222. The Court notes that Darin Routier, Darlie Kee, and Sarilda Routier are all family members of Applicant and actively supported Applicant at trial, and any rational fact finder would consider the possibility that their affidavits may be colored by bias.

223. The Court finds that Darin Routier, Darlie Kee, and Sarilda Routier did not execute their affidavits accusing Mulder of a conflict of interest until several years after the conviction, even though Applicant began to complain of a conflict of interest during the litigation on the appellate record in 2000.

224. The Court finds that the affidavits of Kenneth Waits and Melanie Waits support the inference that the Waits are “supporters” of Applicant rather than neutral bystanders.

225. The Court finds that Applicant’s habeas evidence does not foreclose the possibility that the decision to hire Mulder was based upon his willingness to attempt a trial strategy other than one that blamed the offenses on Darin.

226. The Court finds that Darlie Kee’s affidavit, attached to the writ application, indicates that the decision regarding the “blame Darin” defense was one of trial strategy because it states that “[Mulder] was not buying in to the theory that Darin was involved in this crime.” (Applicant’s Writ Exhibit 5).

227. The Court finds that Melanie Waits’s affidavit also indicates that the decision regarding the “blame Darin” defense was one of trial strategy because it states that blaming Darin was not “[Mulder’s] plan.” (Affidavit of Melanie Waits, signed November 5, 2003).

228. The Court finds that Applicant has attached no habeas evidence demonstrating that she was not involved in the decision to adopt the strategy to blame the offenses on an intruder rather than Darin.

229. The Court finds that Mulder is an attorney, and that attorneys are deemed to recognize and avoid conflicts of interest because the law and ethical rules require them to do so. See, e.g., Sullivan, 446 U.S. at 346.

230. The Court finds that Mulder, as an experienced trial attorney, would understand the difference between a trial strategy to blame the offense on an intruder rather than Darin and an agreement to protect Darin.

231. The Court is familiar with Mulder, finds that Mulder is a credible witness, finds the statements in the affidavit to be worthy of belief, and accepts the statements contained in the affidavit as true and correct.

232. The Court finds that Applicant has failed to prove by a preponderance of the credible evidence that Mulder’s employment as Applicant’s counsel was contingent upon his agreement not to implicate Darin Routier in the murders.

233. The Court concludes that Mulder’s employment as Applicant’s counsel was not contingent upon his agreement not to implicate Darin Routier in the murders.

Not Actively Representing Competing Interests

234. The Court notes that an actual conflict of interest exists on