No.

86-452-K26D EX PARTE IN THE 26TH JUDICIAL DISTRICT COURT OF MICHAEL MORTON Applicant WILLIAMSON COUNTY, TEXAS

AGREED PROPOSED FINDINGS OF FACT & CONCLUSIONS OF LAW

In accordance with Articles 11.07 and 11.65 of the Texas Code of Criminal Procedure, the parties hereby agree and stipulate to the following Agreed Proposed Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Applicant filed an application for writ of habeas corpus on October 3, 2011. In it, he alleges, inter alia, that new scientific evidence, previously unavailable at trial, entitles him to relief. 2. On August 13, 1986, Christine Morton was murdered in her home in Williamson County, Texas. She was found bludgeoned to death in her bed. Evidence collected from the Morton home included a bedsheet, Christines nightgown, fingernail scrapings, fingerprint evidence, hair, vaginal swabs, oral swabs, and rectal swabs. On August 14, 1986, some distance from the Morton home near a construction site, a bandana was collected by a member of Christines family and submitted to police. 3. On February 17, 1987, Applicant was convicted of the murder of his wife and sentenced to life imprisonment. On December 14, 1988, the Third Court of Appeals affirmed Applicants conviction. Morton v. State, 761 S.W.2d (Tex. App.Austin 1988). Applicant filed a petition for discretionary review which was denied by the Court of Criminal Appeals on September 27, 1989. Morton v. State, No. PD-027989. 4. On March 22, 1990, Applicant filed an application for habeas corpus relief requesting that the bedsheet from the crime scene be tested. On June 5, 1991, the Court of Criminal Appeals granted Applicants request to test the bedsheet. Testing revealed that Applicants semen was present on the bedsheet and Applicants application was denied. Ex parte Morton, No. WR-21,383-01. Applicant filed two subsequent applications for habeas corpus relief which were both denied without written order. Ex parte Morton, No. WR-21,383-02 & WR-21,383-03. 5. On February 11, 2005, Applicant filed a Motion for DNA Testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. Applicant sought testing of hair, vaginal swabs, oral swabs, rectal swabs, fingerprints, fingernail scrapings, the 1

victims nightgown, the bandana, a hair recovered from the bandana, and evidence from a case involving an unsolved murder which occurred near the proximity of the Morton home six years earlier. 6. On August 15, 2006, the trial court granted Applicants motion in part ordering testing of the hair, vaginal swabs, oral swabs, rectal swabs, nightgown and fingernail scrapings. However, the trial court denied testing of the bandana, hair from bandana, fingerprint evidence and evidence from the nearby murder. 7. On March 7, 2008, the trial court entered findings of fact and conclusions of law stating that the DNA tests performed pursuant to the Courts order of August 15, 2006, were inconclusive except that Applicant could not be excluded as a donor of the hairs found in Christine Mortons right hand. 8. The trial court found and concluded further that had the results of the DNA testing performed pursuant to the Courts 2006 order been available at trial, it is not reasonably probable that [Morton] would not have been convicted of the offense of murder. 9. On July 24, 2008, the trial court entered a subsequent order clarifying its denial of Applicants request to test the fingerprint evidence and the evidence in the nearby murder. Applicant filed a notice of appeal. On January 8, 2010, the Third Court of Appeals in Austin issued an opinion affirming in part and reversing in part the trial courts order denying DNA testing of the remaining items. The Court of Appeals held that the proposed DNA testing on the bandana satisfied the requirements of Chapter 64 and should be tested, but that the fingerprint evidence and evidence from the nearby murder should not be tested because those items were not covered by Chapter 64. In re Morton, No. 03-08-00585-CR (Tex. App.Austin, delivered January 8, 2010).

10. On May 19, 2010, the trial court entered an order for DNA testing of the bandana. 11. On June 30, 2011, Orchid Cellmark issued a report indicating that the bandana had a bloodstain and that the DNA profile obtained from the bloodstain is consistent with the partial DNA profile obtained for Christine Morton. The report also indicated that the DNA profile of a hair found on the bandana was consistent with the partial DNA profile obtained for Christine Morton. Finally, the report stated that scrapings were taken from the topside of the bandana and that the DNA profile found on the scrapings belonged to an unknown male. Applicant was excluded as the source of the male DNA from the bandana. 12. The unknown male DNA profile was uploaded into CODIS and a hit was made to a convicted felon whose sample had been entered into the national CODIS system through Californias database. The State learned the identity of that individual (hereinafter known as John Doe to protect the integrity of the ongoing investigation) on August 19, 2011. 13. On September 26, 2011, a hearing was held during which the Court informed the parties it had been contacted by the Travis County District Attorneys Office regarding DNA evidence collected from a crime scene in an unsolved Travis County murder case (the Travis County Murder). The Travis County Murder also involved an adult female victim who was murdered in her home, and occurred after the Christine Morton murder and after Applicants conviction and incarceration. 14. The information provided by the Travis County District Attorneys Office indicated that, according to the DNA data for John Doe maintained in the CODIS database, the DNA profile found on the bandana collected near the Morton home was consistent with the DNA profile of a pubic hair found at the Travis County Murder crime scene that is, that the DNA profile from both crime scenes was consistent with John Doe 15. Subsequent testing by the Texas Department of Public Safety on a known DNA sample from John Doe has confirmed that the DNA profile found on the bandana collected near the Morton home and the hair collected from the Travis County Murder scene are consistent with one another, and belong to someone other than Applicant. 16. On September 28, 2011, the Travis County District Attorneys Office informed the Court that DPS had analyzed the known sample from John Doe and confirmed the initial information provided by the CODIS, i.e., that John Does DNA profile is consistent with the DNA profile of the hair recovered from the Travis County Murder crime scene. DPS further reported that the estimated population frequency of the profile found on the pubic hair is 1 in 983 million Caucasians. 17. On September 29, 2011, Orchid Cellmark issued a supplemental report regarding the male DNA found on the bandana in the Morton case, in light of DNA data provided by DPS regarding John Does known DNA sample. Orchid Cellmark concluded that

in the absence of an identical twin, the male DNA from the topside of the bandana is identified as originating from [John Doe]. 18. The investigation into the unsolved Travis County Murder is still pending. However, there are additional facts and circumstances regarding the Travis County murder that have been provided to the Court by the Travis County District Attorney. That additional information, which has been filed under seal by Applicant, further supports the claim for relief agreed to by the parties herein. 19. DNA testing was not available at the time of Applicants trial. 20. The Travis County Murder occurred after Applicants trial. 21. The DNA test results in the Christine Morton case and the DNA test results in the Travis County murder case were unavailable, through no fault of either party, at the time of Applicants prior writ applications. 22. Further investigation into the murder of Christine Morton is warranted. 23. Under art. 11.07, a court may grant relief from a conviction based upon newly discovered evidence if it meets the standard described in Texas law. Ex Parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). 24. Because new DNA evidence, previously unavailable at trial or at the time of Applicants prior writ applications through no fault of either party, indicates that someone other than Applicant committed the offense in this case, Applicants conviction should be set aside under the authority set forth above. 25. In the interest of justice, the District Attorney has agreed to Applicants release on a personal bond pending the ruling of the Court of Criminal Appeals on the instant habeas corpus application. 26. Pursuant to the agreement of the parties, following the execution of these findings and conclusions, bond will be set at a hearing held as soon as practicable, in the presence of Applicant and his counsel, and Applicant will be immediately released from custody pursuant to a personal bond that places applicant under the supervision of a court officer and imposes conditions that prohibit him from leaving the State of Texas or contacting any investigator, police officer or prosecutor involved in this case or any witness or member of the victims family, except through his attorney or if those individuals confirm in writing to Applicants attorney that they wish to be in direct contact with Applicant. The court may impose any other condition that is reasonable. 27. Applicant may not apply for compensation from the State unless the indictment pending against him is dismissed, he is acquitted upon retrial or the governor grants a pardon on the grounds of innocence. Applicant understands that the State, following further investigation, may determine that a retrial is appropriate or that the indictment should be dismissed. 4

28. The trial courts findings and conclusions are limited to the allegations contained in Claim 1. The trial court, at this time, makes no findings on the other Claims, but reserves its authority to conduct a hearing and make findings on those claims but only should the Court of Criminal Appeals deny the findings and recommendations regarding Claim 1. If the Court of Criminal Appeals adopts these findings and grants relief, then Claims 2-7 shall remain unresolved. 29. In light of the parties agreement as to the foregoing grounds for relief, and their decision that expediting the adjudication of Applicants writ as to Claim 1 is in the interests of justice, both parties agree not to assert any procedural objections to any subsequent amendment of the writ application or the States response to the writ application both as to the newly discovered evidence of innocence claim (Claim 1) and all other claims (Claims 2 through 7) based on discovery of additional information, but only if the Court of Criminal Appeals denies Claim 1. The State reserves the right to file and supplement opposition papers with respect to Claims 2 through 7, upon discovery of additional information material to those claims, before the Court of Criminal Appeals rules on Claim 1, the uncontested claim. The State reserves its right to re-prosecute Applicant even if the Court of Criminal Appeals grants relief on Claim 1. Applicant reserves the right to amend, supplement, or otherwise modify the writ application filed on October 3, 2011 with respect to Claims 2 through 7 at any time prior to the Court of Criminal Appeals adjudication of Claim 1, including (but not limited to) amendments arising from information in the documents provided by the State to Applicants counsel on September 26, 2011, and discovery of any new information with respect to those claims while the application is pending. While the Court of Criminal Appeals is considering these proposed findings as to Claim 1, the parties may amend Claim 1 with new information only with consent of the Court. Finally, the parties have agreed to certain limited discovery as to Claims Two through Seven that may occur while the Court of Criminal Appeals is considering these proposed Findings as to Claim 1, which is set forth in a separate agreement executed by the parties and attached hereto under seal as Exhibit A.

RECOMMENDATION This Court recommends that the present habeas corpus application should be GRANTED. The District Clerk shall immediately transmit to the Court of Criminal Appeals these findings and conclusions as provided by law. The District Clerk shall make the clerks record and reporters record available to the Court of Criminal Appeals upon request. In addition, the Clerk shall attach the following documents: Indictment Judgment and Sentence 5

Signed on this ____ day of ____________________, 20_____.

_____________________________ Hon. Sid Harle Presiding Judge, Sitting by Assignment 26th Judicial District Court