IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

AND
ST
THE 21 JUDICIAL DISTRICT COURT
BASTROP COUNTY, TEXAS
EX PARTE
RODNEY REED,
Applicant.

Writ Cause No. 50, 961

Trial Cause No. 8701

_________________________________________________________
MOTION FOR DEPOSITION OF CURTIS DAVIS
_________________________________________________________
Applicant Rodney Reed files this Motion to take the deposition of Curtis
Davis in order to fully develop the facts alleged in his Supplemental Application
filed with this Court on June 8, 2016. Because Mr. Reeds counsel was not
provided with a copy of the CNN interview, and was only permitted to review
limited portions of the interview, a Deposition is necessary to more fully develop
the factual record regarding Officer Daviss role in the investigation and his
account of his conversations with Jimmy Fennell on April 23, 1996.
A.

Mr. Reed has been provided with only limited access to Officer Daviss
interview.
As discussed in the Supplemental Application, Officer Davis sat for an

interview with CNN in the spring of 2016 in which he discussed the April 23, 1996
conversation in which Mr. Fennell told him what happened on the night of April

22, 2016. A CNN producer later permitted undersigned counsel Bryce Benjet and
his legal assistant to view the portion of the videotaped interview in which Officer
Davis recounted his conversation with Mr. Fennell. The producer also allowed a
brief review of the transcript of the entire interview. During this brief review, the
producer held the transcript and paged through it in the presence of Mr. Benjet and
his legal assistant. As the producer paged through the transcript, he described the
subject matter of each page. Mr. Benjet was unable to read the transcript during
this brief review, but could see enough over the producers shoulder to verify that
the general description provided was accurate. The only portion of the transcript
that Mr. Benjet was permitted to read in total were the pages that corresponded
with video shown to him detailing Officer Daviss conversation with Mr. Fennell
on April 23, 2016.
B.

A deposition is warranted so this Court may consider a more complete

record regarding Fennells statements to Officer Davis.
Because CNN has restricted access to its interview with Officer Davis, Mr.

Reeds Supplemental Application relied only on the verification of counsel to

prove what Mr. Fennell said during his interview. While this Court may rely on
the allegations made in the Supplemental Application in determining whether Mr.
Reed should be granted a hearing on his claims, the record is far from ideal. For

example, it does not appear1 that Officer Davis was asked whether he shared Mr.
Fennells account of his whereabouts on April 22, 1996 to other officers
investigating Stacey Stitess murder or if he was aware that Fennell later gave a
different story to police and in his testimony. Although these questions and others
would certainly be appropriate in the context of a hearing on Mr. Reeds claims,
this Courts weighing of whether the pending habeas applications meet the
procedural requirements for consideration under section 5(a)(1) and 5(a)(2) of
Article 11.071 would be greatly aided with the more fulsome record that can be
established through a deposition.
Nor would a deposition impose a significant burden on Officer Davis.
Officer Davis voluntarily sat for a lengthy interview with CNN, knowing that his
statements would be part of a nationally televised news program. Having
unilaterally offered his account to the news media, Officer Davis cannot credibly
complain that a deposition covering essentially the same subject matter would
impose a burden when weighed against the benefit to this Court and these
proceedings by developing a complete record on which to decide the merits of Mr.
Reeds innocence and other constitutional claims.

The CNN producer did not mention any such questioning when summarizing those portions of the interview which
were not provided to counsel.

This Court has both the inherent and statutory authority to order depositions
at this stage of the proceedings to enable habeas applicants to fully develop facts
supporting claims for relief under Article 11.071 and 11.073 of the Code of
Criminal Procedure. As discussed in Mr. Reeds pending Motion for Discovery or
in the Alternative Petition for Depositions Under Rule of Civil Procedure 202, trial
courts routinely grant limited discovery in habeas proceedings for the purpose of
developing claims prior to the granting of a hearing. See October 19, 2015,
Supplemental Clerks Record at 5-41. Moreover, the Court must have the
authority to grant limited pre-hearing discovery to ensure that the other rights to
post-conviction review afforded through Articles 11.071 and 11.073 of the Code of
Criminal Procedure are both meaningful and not arbitrarily denied in violation of
Due Process and the Eighth Amendment. See id.; Harris v. Nelson, 394 U.S. 286
(1969); Ford v. Wainwright, 477 U.S. 399, 414 (1986); Skinner v. Switzer, 562
U.S. 521 (recognizing potential procedural due process claim for arbitrary denial of
access to post-conviction DNA remedy). Absent the opportunity to ask Officer
Davis about his conversations with Mr. Fennell at a hearing, a deposition is
required so that Mr. Reed is not arbitrarily deprived of his right to post-conviction
review of this substantial claims in violation of Texas law and the aforementioned
rights under the United States Constitution.

Respectfully submitted,

/s/ Bryce Benjet_____________

BRYCE BENJET
State Bar No. 24006829
THE INNOCENCE PROJECT
40 Worth St. Suite 701
New York, New York 10013
(212) 364-5340
(212) 364-5341 (fax)
ANDREW F. MACRAE
State Bar No. 00784510
LEVATINO|PACE LLP
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
(512) 637-8563
(512) 637-1583 (fax)
Attorneys for Applicant Rodney Reed

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Motion for Deposition of Curtis Davis has been served on the attorneys for the
State both through the e-filing electronic service system as well as via Federal
Express, on this 10th day of June 2016, addressed to:
Matthew Ottoway
Assistant Attorney General
300 West 15th St.
Austin, Texas 78701

Bryan Goertz
Bastrop District Attorney
804 Pecan St.
Bastrop, Texas 78602

/s/ Bryce Benjet___________________

Bryce Benjet