v.

THE STATE OF TEXAS

ON DIRECT APPEAL

Keasler, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Womack, Johnson, Hervey, and, Cochran, JJ., joined. Price and Holcomb, JJ., concurred without opinion.

O P I N I O N

STATEMENT OF FACTS

Irvan was indicted for murdering twenty-three-year-old Michelle Shadbolt while in the course of committing and attempting to commit aggravated sexual assault on or about February 14, 1987. The evidence at trial showed that, at the time of the offense, Shadbolt and her two-year-old daughter were living in a house across the street from Irvan's parents' house. Shadbolt and Irvan had lived across the street from each other for many years, and Irvan had been friends with Shadbolt's younger brother since early childhood.

Shadbolt and her husband, Jack, had separated about six weeks before her murder, and Jack had moved out of the house and into his mother's house nearby. Shadbolt's father and stepmother also lived close by, and on the evening of February 13, 1987, Shadbolt took her daughter to their house for the night so Shadbolt could go out and play bingo with some friends. She dropped off her daughter at about 5:15 p.m. and said that she would return to pick her up at 7:30 the next morning. When Shadbolt failed to arrive at 7:30 a.m. on February 14th, her stepmother called her house, but no one answered. She then drove to Shadbolt's house at about 7:45 a.m. When she opened the unlocked front door, she saw Shadbolt's bloody body lying on the living room floor and ran to a neighbor's house to call the police.

Anthony Rossi of the Harris County Sheriff's Department was the lead detective in the case. Rossi testified that there were no signs of forced entry and that the television was turned up very loud. There was a large amount of blood in the foyer, leading him to conclude that "some type of scuffle" occurred there. Shadbolt was lying on her side on the living room floor, wearing only a blood-stained T-shirt that had been pulled up around her neck. She had multiple stab wounds and a large neck laceration. Rossi testified that there was a vacuum cleaner on the floor next to Shadbolt, and its cord, which was "probably . . . twisted around during a struggle," was "somewhat wrapped around her." Also lying on the floor nearby were a pair of panties, some crumpled newspaper, a trophy, and a large-bladed knife underneath a pair of shorts. Blood on the trophy led Rossi to believe it was "[p]ossibly used as a bludgeon instrument." Shadbolt's purse, wallet, and money were in the kitchen, but a large-bladed knife was missing from the butcher block.

Rossi testified that he thought that "[o]ne heck of a struggle" took place in the living room and Shadbolt "fought very hard." He also testified that he observed "bloody fingermarks" on Shadbolt's "rear end," which he believed were indicative of someone "trying to hold her up" in order to "rape her." He further observed blood in and around the toilet bowl in Shadbolt's bathroom, which he thought was consistent with someone washing off blood in the toilet.

Pete F. Schroedter, a fingerprint expert with the Harris County Sheriff's Department, processed the knife and trophy for fingerprints. He found "smudges . . . lacking any detail for identification purposes" on the knife. He found what appeared to be a portion of a palm print on the trophy, but it lacked sufficient detail for him to make an identification. Deputy Randy Schield and the FBI were also unable to identify any fingerprints.

Medical examiner Dwayne Wolf testified that Shadbolt's death was caused by "multiple sharp force injuries." She had seventeen stab wounds on her body, some of which perforated her heart, diaphragm, and liver. She also had a large, horizontal, incised wound to the front of her neck, and some "superficial cutting wounds" in the neck area, including a superficial incised wound on the back of her neck. She suffered multiple blunt force injuries to the top of her head that were consistent with being struck with the base of the trophy. She had several bruises on her face, and abrasions on her face, knees, and shoulder that were consistent with "carpet burn." Sperm was detected on swabs taken from her vagina and rectum, although there was no visible trauma to these areas.

Shadbolt's brother, Michael Masters, testified that Irvan was outside Shadbolt's house when he arrived there on the morning of February 14th, shortly after Shadbolt's body was discovered. Irvan attempted to comfort Masters both at the scene and later at Shadbolt's funeral, where Irvan served as a pallbearer.

Police questioned Shadbolt's friends who were playing bingo with her the night of February 13th and determined that Shadbolt left to go home at around 2:50 a.m. About a week after Shadbolt's murder, Rossi met with Shadbolt's husband Jack, who denied involvement and provided saliva, hair, and blood samples. Rossi considered Jack to be the prime suspect because he and Shadbolt were separated at the time of her death, but Rossi did not have evidence to charge him with capital murder.

Rossi transferred to another division a few years later, and Detective Marcel Dionn began working on the case. Dionn asked Shadbolt's mother, Jacqueline Barrett, if she could provide the names of any other persons who might have been involved in Shadbolt's murder. Barrett named Irvan and another individual, Timothy Darden. Dionn interviewed Irvan at the police station on May 17, 1989. Irvan made a statement wherein he said that he had known Shadbolt for about fifteen years and they "were just friends and it was never any type of other relationship." He stated that, a few days before Shadbolt's murder, he had returned to his parents' house after working an offshore job. He had a ten-minute conversation with Shadbolt in front of her house a day or two before the murder, wherein she talked about "her kid" and "never said anything about her and Jack." After they talked, he went back to his parents' house and "didn't see [Shadbolt] alive again." On the night of the murder, he was "at home with [his] mother and didn't go anywhere." His mother woke him up the next morning and told him "something was wrong over at [Shadbolt's]." When he went outside, Masters walked up to him, told him Shadbolt was dead, and started crying.

Shadbolt's case remained unsolved for years, until Detective Roger Wedgeworth with the "cold case squad" of the Harris County Sheriff's Department began investigating it again in 1998. In November 1998, Wedgeworth sent evidence to the Orchid Cellmark (formerly GeneScreen) laboratory for DNA testing and comparison to Jack. Orchid Cellmark determined that Jack was excluded as a contributor of the DNA on Shadbolt's vaginal and rectal swabs. Wedgeworth's partner, Harry Fikaris, then asked Barrett if she could think of anyone else who might have murdered Shadbolt. Barrett again named Irvan and Darden. She also told the detectives about an incident that occurred when Irvan once spent the night with Masters at their house. Shadbolt was sixteen and Irvan was thirteen at the time. After everyone had gone to bed, Barrett heard Shadbolt scream, "Stop it. Leave me alone." Barrett went to Shadbolt's room, where she saw Shadbolt sitting in bed with the covers "up against her as if she was protecting herself." Irvan was sitting on the floor acting "real coy." Shadbolt acted "real scared" and told Barrett that Irvan touched her. Barrett brought Shadbolt into her room and told Irvan to either stay in Masters' room or to go home. After that incident, Irvan never spent the night at their house again.

At some point after DNA testing excluded Jack, Masters called Irvan and asked him if he knew or heard of anyone who might have killed Shadbolt. Masters testified that Irvan "broke down and cried and said he didn't have anything to do with it," even though Masters did not accuse Irvan of anything.

Irvan and Darden both consented to give saliva samples to Wedgeworth and Fikaris in early 2000. The samples were sent to Orchid Cellmark for DNA testing. William J. Watson of Orchid Cellmark testified that Irvan's DNA profile was consistent with the DNA profile on Shadbolt's rectal swab. A "probable pubic hair" taken from Shadbolt's fingernail scrapings was compared to Shadbolt, Irvan, and Darden, but did not match any of them. Darden was excluded as a contributor to all pieces of evidence where a DNA profile could be obtained.

Katherine Elizabeth Long with Orchid Cellmark performed additional DNA testing a few weeks prior to trial. Long concluded that Irvan's DNA profile was consistent with the DNA profile on Shadbolt's rectal and vaginal swab sticks.

Irvan's former girlfriend Tamara Llamas testified that she and Irvan spent one night alone on the beach in Galveston in February or March 1987. As they were drinking alcohol and talking, Irvan told Llamas he had raped and killed Shadbolt. He explained that he was sitting and drinking in his driveway when he saw Shadbolt come home, then he went over to her house to try to have sex with her. When she refused, he "got carried away" and stabbed her. He said Shadbolt "fought real hard" and scratched him, and there was blood everywhere. He said he took some jewelry from Shadbolt's home and returned to his house through his bedroom window.

Llamas testified that she did not believe Irvan and "just thought he was bragging," and she told only her friend Rhonda Reiner what he said a few months later. When Irvan was charged with capital murder, Reiner persuaded Llamas to tell police about Irvan's admission. Llamas acknowledged that she was a convicted drug dealer and murderer serving four life sentences in a federal prison in Fort Worth, but testified that she received no promises in exchange for her trial testimony. She testified she was initially reluctant to come forward, but she changed her mind because she did not want Shadbolt's daughter "to grow up thinking that her father had done it."

Irvan's ex-wife Shanna Stryjek testified that Irvan "would go into a rage" when she declined to have sex with him and would hit and break things and call her degrading names like "bitch," "whore," "slut," and "cunt." Stryjek testified that she refused when Irvan attempted to have anal sex with her a few times, and she once had to "kind of force him to stop." She testified that they saw Shadbolt's daughter when she was about four or five years old, and Irvan refused to look at the child. Stryjek once asked Irvan about Shadbolt, and Irvan stated "she was a bitch, that she was snotty and she thought she was better than everybody else." Stryjek asked Irvan if he ever dated her and he said no and that he "hated her." He told Stryjek that the night Shadbolt died he was out with his friend "George" and returned home between 1:00 and 2:00 a.m. He told Stryjek he did not know anything happened to Shadbolt until his mother came into his room in the morning and said police were putting yellow tape around her house.

Defense witness Daniel Rinehart, who worked on the cold case squad with Wedgeworth and Fikaris, testified about his additional fingerprint processing of evidence using the "amido black dye method." Rinehart testified that he found a "small area with ridge detail" on the trophy. He testified that the print "was not suitable to include and identify an individual," but it "was suitable enough to eliminate suspects that the prints were compared to." Rinehart was able to eliminate Jack and Irvan. He was not able to eliminate Darden, but he was not able to positively identify him as the person who left the print.

Defense witnesses Connie Summers, Darlene "Dede" Hughes, and Marylou Brady all testified that Llamas had a bad reputation for truthfulness and was not worthy of belief under oath. Hughes also testified that she saw Irvan and Shadbolt together in a convenience store at some point in January or February 1987, before Shadbolt's death. The defense then re-called Wedgeworth, who testified that a deputy used a chemical process to look for blood under the surface of the paint around Irvan's bedroom window. A small "droplet sized" spot was detected, so they cut out the portion where the spot was located and sent it to Orchid Cellmark for DNA analysis. Orchid Cellmark reported that Irvan and Shadbolt were excluded as contributors.

SUFFICIENCY OF THE EVIDENCE

Irvan acknowledges that "semen recovered from [Shadbolt] matched [Irvan's] DNA profile." He argues that this "supports a conclusion that [Irvan] and [Shadbolt] had engaged in sexual intercourse," but does not "support an inference that [Irvan] had sexually assaulted [Shadbolt] nor that he had caused her death." Irvan asserts that medical examiner Dwayne Wolf's testimony that there was no evidence of trauma to Shadbolt's vagina or rectum supports a finding of consensual sex. However, trauma to the genitalia is not a required prerequisite for proving sexual assault. Wolf testified that the absence of such trauma "doesn't mean anything," and "sometimes you see injuries; sometimes you don't."

Irvan argues that "Wolf agreed that [Shadbolt] could have engaged in sexual intercourse the day before her death." While Wolf agreed with defense counsel that "consensual sex may have taken place" and that the death "may have taken place later," he also testified that "numerous sperm were present" in both the vagina and rectum, and because "[s]perm degrades over a period of time, particularly in the rectal canal . . . it ha[d] to be relatively fresh." Wolf explained that "[s]perm are more stable in the vaginal canal than they are in the rectum" because "there is more bacteria in the rectal vault." Wolf agreed it was "probably true" when defense counsel suggested that sperm could remain in the vagina up to seventy-two hours, but he testified it could probably not remain in the rectum that long and still be classified as "numerous spermatozoa present."

Irvan also argues that Wolf and Detective Rossi gave conflicting testimony regarding blood evidence. Rossi testified there were "bloody fingermarks" on Shadbolt's "rear end," which he believed were indicative of someone "trying to hold her up" in order to "rape her." Wolf testified it was "a pattern of a hip laying in a pool of blood, so that you have a rim of blood surrounding an area that was pressed against the floor in this case." But Irvan fails to acknowledge that Rossi and Wolf were referring to two different photographs of Shadbolt when they made these statements. Wolf referred to State's Exhibit 50, a photograph of Shadbolt's body after it was received by the medical examiner. The photograph, which is neither close-up nor particularly detailed, is a side view of Shadbolt lying on her back on the autopsy table. In contrast, Rossi referred to State's Exhibit 34, a photograph of Shadbolt's body as it was found at the crime scene, which is a back view of her body from her shoulders to her "rear end." The jury was able to view these photographs and to take the testimony of Wolf and Rossi into account when viewing them.

Irvan points out that he was excluded as the person who left the hair under Shadbolt's fingernail and the fingerprint on the trophy. However, both Wedgeworth and Watson testified that the hair could have come from a source other than Shadbolt's attacker. Schroedter testified that an excessive amount of blood could be an impediment to leaving a print, and that the available methods for processing bloody fingerprints were somewhat limited in 1987. Rinehart was able to eliminate Irvan as the person who left the "small area with ridge detail" on the trophy, but he also testified there were other prints that were unidentifiable.

Finally, Irvan alleges that "the forensic investigation in this case was incomplete and unreliable." He claims that the police failed to perform DNA testing or fingerprint processing on several pieces of evidence. Irvan's speculation regarding further investigation does not establish the evidence actually introduced at trial was insufficient to prove his guilt. The evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. Points of error one, two, and three are overruled.

CONFIDENTIAL COMMUNICATION PRIVILEGE

(a) Confidential communication privilege.

(1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person.

(2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during their marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.

Before trial, Irvan filed a motion entitled, "Defendant's Notice of Intention to Invoke Confidential Communication Privilege Between Husband and Wife Pursuant to Texas Rule of Evidence 504(a)." There was a hearing on the motion outside the presence of the jury at trial. Irvan testified at the hearing that he was married to Shanna Stryjek from December 4, 1987 to September 9, 1995, that he did not intend to disclose to anyone the private conversations they had during their marriage, and that he wanted to exercise his privilege to prevent Stryjek from disclosing the confidential communications he made to her during their marriage. The trial judge overruled Irvan's motion and granted a running objection to Stryjek's testimony.

Irvan specifically complains that Stryjek was improperly permitted to testify that, while they were married, Irvan: (1) called her degrading names like "bitch," "slut," "whore," and "cunt"; (2) told her Shadbolt "was a bitch, that she was snotty and she thought she was better than everybody else" and he "hated her"; and, (3) told her he "was really out with [his friend] George" and "got home about 1:00, 1:30, 2:00" on the night Shadbolt was murdered, although "he told the police that he was at home all night with his mother." Stryjek testified that Irvan called her degrading names when she refused to have sex with him and that they were alone when he divulged his feelings about Shadbolt and his whereabouts on the night of her murder. Irvan testified he did not intend to disclose his private communications with Stryjek while they were married.

The most compelling evidence against Irvan was his admission to Llamas and the physical evidence showing his DNA profile matched sperm recovered from Shadbolt's body. Other significant evidence consisted of Barrett's testimony regarding Irvan's unwelcome intrusion into Shadbolt's room several years before the murder and Masters's testimony regarding Irvan's reaction when Masters asked him about the murder years later.

Irvan's statement that he "was really out with [his friend] George" and "got home about 1:00, 1:30, 2:00" did not have much significance when viewed in light of all of the evidence. Irvan told police he was "at home with [his] mother and didn't go anywhere," and he told Llamas that he was sitting outside and drinking in his driveway when Shadbolt came home. Shadbolt's friends told police that she left to go home at around 2:50 a.m., and Detective Rossi theorized she was murdered sometime after 3:00 a.m. Even if Irvan had been out with "George" until 2:00 a.m., he still would have been "at home" in time to commit the crime. Although Irvan's statement to Stryjek showed that he lied to police, the discrepancies between his statement to police and his admission to Llamas also served to prove the same point.

CONFRONTATION

In points of error seven through eleven, Irvan argues that "the trial court committed constitutional error by not allowing [his] counsel to confront and cross-examine Tamara Llamas" regarding: (1) "her full criminal history"; (2) "her customary practices and habits of employing juveniles in interstate trafficking and distribution of marijuana"; (3) "her customary practices and habits of employing minors to transport weapons across state lines in furtherance of her criminal activities"; (4) "her customary practices and habits of making false criminal accusations against others"; and, (5) "her customary practices and habits of hiring others to kill witnesses against her in pending criminal prosecutions." Irvan specifically argues that the trial judge violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Texas Constitution.

The State called Llamas as a witness and questioned her regarding her criminal history. Llamas acknowledged she was presently serving four concurrent life sentences in federal prison for conspiracy to distribute and possess with intent to distribute marijuana, interstate travel with intent to commit murder for hire, use of a firearm during and relating to a drug-crime death, and tampering with a witness by killing. She testified that she pleaded guilty to all four federal offenses. She testified that she had a previous Maryland conviction for misdemeanor theft and two previous Texas convictions for unauthorized use of a motor vehicle, one of which was a misdemeanor and one of which was a felony. She further testified that she had a probation revocation in Texas.

When defense counsel questioned her, Llamas again acknowledged she pleaded guilty to four federal offenses. Defense counsel attempted to ask her if she was actually guilty of the federal offenses and if the federal government dismissed any other cases as a result of her federal plea bargain. The State objected to this as improper impeachment, and the trial judge sustained the objection. Defense counsel argued outside the presence of the jury that he should be permitted under Texas Rules of Evidence 405(b) and 406 to ask Llamas about specific instances of conduct and her "character trait" of attempting to manipulate the criminal justice system. Under Texas Rule of Evidence 608(b), the trial judge ruled that defense counsel could not ask Llamas about specific instances of conduct. Defense counsel later made a bill of exceptions listing the "information that should have been allowed in front of the jury," including the specific details of Llamas' federal offenses, the other federal cases that were dismissed as a result of her federal plea bargain, the fact that she filed false charges against two other people, and her attempt to hire a hit man to kill her own sister.

RIGHT TO PRESENT A MEANINGFUL DEFENSE

In point of error twelve, Irvan argues that the trial judge violated his due process right to present a meaningful defense "by not allowing [Irvan's] counsel to present evidence that, shortly before her death, [Shadbolt] had instructed Dede Hughes, a witness, not to tell anyone that [Shadbolt] and [Irvan] were observed 'together.'" Irvan argues that this evidence "would have rebutted the State's claims that there was no evidence of a relationship between [Irvan] and [Shadbolt]," "would have explained the absence of any statements by [Irvan] regarding his relationship with [Shadbolt]," and "could [have rebutted] the State's allegations that any sexual activity was not consensual."

In points of error thirteen and fourteen, Irvan argues that the trial judge violated his due process right to present a meaningful defense by not allowing defense counsel to present "evidence that Detective Rossi had learned in his investigation that [Shadbolt] had told Jack Shadbolt, her estranged husband, two days before her death that they would never get back together" and "evidence of the basis upon which Detective Rossi continued his investigation of Jack Shadbolt as a prime suspect in this case." Irvan argues that "the trial court erred in excluding this evidence as 'hearsay' as it was not presented for the truth of its contents but for the fact that it explained the basis of Rossi's belief that Jack Shadbolt was a murderer . . . and [Irvan's] state of mind regarding his need to protect and keep his relationship with [Shadbolt], a married woman, secret." He also contends that the evidence would have refuted the State's argument that there was no relationship between Irvan and Shadbolt.

Rossi testified at trial that it was possible that Shadbolt knew her attacker because there were no signs of forced entry. Rossi further testified that Jack Shadbolt was the first potential suspect because he was Shadbolt's spouse and they had been recently separated. Defense counsel continued to question Rossi as follows:

Q. Did you learn anything else while there at the scene about their relationship that helped strengthen that possibility?

A. He was an alcoholic.

Q. Okay. You recall that you learned it there while you were at the initial scene?

A. Yes, sir.

Q. Okay. Anything else about their relationship?

A. I don't recall anything else.

Q. Did you ever learn that they weren't ever going to get back together again?

[PROSECUTOR]: Judge, I am going to object to that. That's going to be hearsay.

THE COURT: Sustained as to the form of the question.

Q. Isn't it true, Detective Rossi, that you learned through your investigation that Michelle Shadbolt had told her husband two days--

[PROSECUTOR]: Objection. That's hearsay.

THE COURT: Let him finish the question.

Q. -- two days before this killing that she had told her husband they were not going to get back together?

THE COURT: Your objection is sustained.

[DEFENSE COUNSEL]: Judge, may I respond?

THE COURT: Yes, sir.

[DEFENSE COUNSEL]: First of all, this is cross-examination. And he has been allowed to talk about his theory based upon what he has learned. And I think it is a valid place to cross-examination [sic], valid question.

THE COURT: The objection is sustained.

Q. Did you learn anything else about the relationship between the two, at the time, that strengthened your resolve that he was a possible suspect?

[PROSECUTOR]: Judge, I object to anything that calls for a hearsay answer.

THE COURT: Sustained as to the form of the question.

Q. Did you learn anything else about the relationship, yes or no, if you recall?

A. No, sir, I don't recall.

LESSER-INCLUDED OFFENSE

In point of error fifteen, Irvan complains that the jury should have been instructed on the lesser-included offense of murder. Defense counsel made the following request at trial:

Judge, it is our position that through a question of the medical examiner on either redirect or re-redirect by [the prosecutor], she had asked the medical examiner whether or not it was consistent or it could be consistent with the fact that there was no trauma to Miss Shadbolt's vulva, vagina or anal/rectal area that could be consistent with somebody having been killed and then having the sexual assault take place. And I believe his response was something to the effect, well, that might explain why there were no injuries, but who knows, or something to that effect.

We believe that that evidence brought out and put in front of the jury by the State would raise the lesser included offense of murder in that you would have a murder, but you can't have the sexual assault that would take place after the fact. You might have abuse of corpses, something like that, but certainly not a capital murder.

* * *

THE COURT: I will deny that request.

The medical examiner, Dwayne Wolf, testified that "sometimes you see injuries, sometimes you don't see injuries, if a woman is sexually assaulted" and "[i]f there are no injuries it doesn't mean she wasn't sexually assaulted." The prosecutor asked Wolf on re-direct examination if there would be fewer injuries to a woman's genitalia "if the rape happened when she was dead." Wolf replied: "There would probably be less injuries. I am not sure that - - I am not sure that that is known." When questioned by defense counsel on re-cross examination, Wolf testified: "if [Shadbolt] was sexually assaulted, we don't know when that occurred, while she was becoming unconscious because she was bleeding from her neck wound, or at the height of the struggle. There is no way to know." Defense counsel asked, "In other words, you can't tell whether the sexual assault, if there was one, occurred at the time of the killing, occurred earlier or occurred after death, for that matter?" Wolf replied in the affirmative.

The jury could not rationally acquit Irvan of capital murder and convict him only of murder merely because the medical examiner could not pinpoint the exact timing of the sexual assault. There was other evidence showing that Irvan murdered Shadbolt in the course of committing aggravated sexual assault. Rossi testified he observed "bloody fingermarks" on Shadbolt's "rear end," which he believed were indicative of someone "trying to hold her up" in order to "rape her." Llamas testified Irvan told her that he "raped" and "killed" Shadbolt. Llamas also explained that Irvan said he went to Shadbolt's house to try to have sex with her, he "got carried away" when she refused, she "fought real hard," and he stabbed her. Irvan has failed to satisfy the second requirement of the test; therefore, the trial judge did not err in refusing his request for an instruction on the lesser-included offense of murder.

RESIDUAL DOUBT INSTRUCTION

In point of error sixteen, Irvan argues that the trial judge violated the Eighth Amendment to the United States Constitution when the judge denied his "request for an instruction allowing the jurors to consider any residual doubt as a mitigating circumstance when answering the mitigation special issue." He contends that the trial judge denied "his right to place all mitigating evidence, including the 'circumstances of the offense[,]' within the jury's effective reach in deciding whether a life sentence is more appropriate than the death penalty."

This is your last chance. If there is some question in your mind, this is your last chance to do something about it. Because that day in the future when you hear on television, well, they are killing [William] Irvan next Thursday, if the thought even runs through your mind, what if that bloody print on the trophy that bludgeoned Michelle Shadbolt, what if that was the killer's print?

And even more crucial, what if those probable pubic hairs under her fingernails belonged to her killer? What if? Because they are going to kill [William] Irvan tomorrow or Thursday or whatever day.

If you are even thinking what if about that right now, if that thought has crossed your mind this is your last chance to do something about that, because that is part of the circumstances of the offense that you are to consider all these cases.

Don't think it is not possible to make a mistake on the issue of guilt or innocence. It is absolutely possible. So, if you think there is any possibility based on the evidence as you heard it, that there is a possibility that someone else did this, there is a possibility that Tamara Llamas is a liar, then your last chance to avoid possibly causing an innocent person to be put to death is today. And you may consider those things as circumstances of this offense.

And you don't have - - all of you do not have to agree on what mitigation is. It is if there are five of you that think the fact that we can take him out of drug society is mitigation and five of you worried about the evidence, you-all don't have to agree on what it is, as long as there are 10 of you.

I would ask you to seriously, seriously look into your hearts and consider those things before you answer this question.

Thank you, ladies and gentlemen.

TEXAS DEATH-PENALTY STATUTE

In his final two points of error, Irvan argues that the Texas death-penalty statute violated his rights under the Eighth Amendment to the United States Constitution. In point of error seventeen, Irvan alleges that "the absence of a third sentencing alternative of life without parole" did not allow the jury to give effect to his mitigating evidence. In point of error eighteen, he contends that he "was sentenced to death upon less than proof beyond a reasonable doubt of the continuing threat special issue, because the Texas [d]eath penalty statute did not provide jurors with the sentencing option [of] life without parole."

We affirm the judgment of the trial court.

Delivered: June 7, 2006.

1. Tex. Penal Code � 19.03(a).

2. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

3. Art. 37.0711, � 3(g).

4. Art. 37.0711, � 3(j).

5. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).

6. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

7. Weaver v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14^th Dist.] 1993).

8. TEX. R. APP. P. 33.1.

9. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

10. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

11. Id.

12. See Weaver, 855 S.W.2d at 121 (holding that the marital communication privilege of Rule 504(a) applies to utterances and not to acts); see also Carter v. State, 550 S.W.2d 282, 286 (Tex. Crim. App. 1977), overruled on other grounds by Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980).

13. TEX. R. APP. P. 44.2(b).

14. King, 953 S.W.2d at 271.

15. TEX. R. APP. P. 33.1.

16. TEX. R. EVID. 801.

17. TEX. R. APP. P. 33.1.

18. TEX. R. APP. P. 33.1.

19. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (holding error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions).

20. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

21. Id.

22. Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992).

23. Id. at 672; Rousseau, 855 S.W.2d at 672; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

24. Moore, 969 S.W.2d at 8.

25. Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000).

26. TEX. R. APP. P. 33.1.

27. Id.

28. Franklin v. Lynaugh, 487 U.S. 164, 174 (1988).

29. Blue v. State, 125 S.W.3d 491, 502-503 (Tex. Crim. App. 2003).

30. Arnold v. State, 873 S.W.2d 27, 39-40 (Tex. Crim. App. 1993).

31. Art. 37.0711, 3(c).

William Darin Irvan possibly innocent in Texas

Innocent in Prison Project International - iippi.org

The Case

Case No: 864,928
Date of the Crime: February 14, 1987
Date of Conviction: December 5, 2003
Sentence: Death Penalty
for one count of capital murder.

Course of Proceedings

On January 3, 2001, William Darin Irvan was charged by indictment with the offense of murder of Michelle Shadbolt on or about February 14, 1987, by stabbing her with a knife during the commission or attempt to commit aggravated sexual assault, in violation of Tex. Penal Code Secs. 19.02(b)(1) and 19.03(a)(2). Approximately three years later and sixteen (16) years after her death, Irvan was convicted by a jury of the offense of capital murder, as charged in the indictment. The jury then answered three statutory special issues, "Yes," "Yes," and "No," resulting in the mandatory imposition of the death penalty.

A direct appeal of Irvan's conviction and sentence followed in the Texas Court of Criminal Appeal. On appeal, Mr. Irvan challenged the sufficiency of the evidence against him. On June 7, 2006 the Texas Court of Criminal Appeals affirmed Mr. Irvan's conviction and sentence. William Darin Irvan v. State of Texas, No. AP-74,853, WL (Delivered, June 7, 2006) (unpublished).

Statement of Facts - The Trial

Kathy Masters testified that on February 14, 1987, the victim, Michelle Shadbolt, who had been married to Jack Shadbolt, was living alone with her young daughter, Ashley. Michelle and her husband had been separated for approximately six weeks. She had brought her daughter to Master's home at approximately 5:30 p.m. on February 13, 1987 and had agreed to return the next morning at 7:00 a.m. to pick up her daughter. Masters became concerned when Michelle did not arrive at her home as agreed and went to Michelle's home to check up on her stepdaughter. Masters discovered that the front door was unlocked and observed Michelle with her throat cut lying on the floor.

Deputy William Hilden, of the Harris County Sheriff's Department (HCSD) was dispatched to Michelle's home. The deceased was lying on her left side wearing only a T-shirt which had been pulled over her shoulders. There appeared to be blood everywhere. Hilden spoke with Masters, secured the scene, and made a phone call to Mary Sengbusch, a friend of Michelle, who had spent the previous evening with her, playing bingo. Sengbusch had last seen and talked to Michelle around 2:50 a.m. on February 14, as she returned to her home following the bingo game.

Michael Masters testified that he had known Mr. Irvan since the age of three as they had grown up in the same neighorhood; Irvan's house was "catty-corner across the street," from Michelle, Master's sister. After arriving at her home, upon request of the police, Masters saw Irvan outside. At the time, Irvan was wearing a long-sleeved shirt. Irvan tried to comfort Masters, and cried along with him as they sat on the curb.

Masters also observed Jack Shadbolt, Michelle's estranged husband, at the scene "at some point that same morning," and also heard Jack crying. Masters testified that before that morning he had not known that his sister and Jack had separated and were living apart.

Masters testified that Irvan was a pallbearer at Shadbolt's funeral, several days following her death. Additionally, Masters stated that "after the DNA come back on Jack [Shadbolt] and cleared Jack," Irvan broke down and cried, "I didn't do it or have anything to do with it." Masters admitted that he had always suspected Jack Shadbolt, Michelle's husband, as her killer "prior to the time that he was cleared."

Jacqueline Barrett, Michelle's biological mother, testified that her daughter married Jack Shadbolt in April, 1983 and the couple produced a daughter, Ashley. Barrett stated that because of Jack's "drinking problems," her daughter had been separated from her husband prior to her death for approximately six weeks. Barrett also testified that Michelle had remained in the home on Doverfield with Ashley, while her husband had moved out to his mother's home. Barrett recounted that she had last spoken to Michelle on February 11, 1987 and it was her belief that at the time of her death, her daughter did not have any interest in dating other men.

Barrett had known Irvan since 1970; he had grown up in the neighborhood with her own children. Irvan was "compassionate" to her son Michael. Barrett also noted that, upon request, she had provided police with the names of possible suspects, Irvan and Tim Darden, "he was always kind of what I would call unsavory." Darden hung out with Irvan and appeared "real sneaky". "I saw him [Darden] up until she was killed and then he disappeared."

Barrett explained that she had also provided Irvan's name to police because she knew "he had been around my kids as they were growing up, and I knew that he had been in trouble before."

Barrett admitted that she had also suspected that Jack Shadbolt was the person who had killed her daughter. At the time of Michelle's death, Barrett asserted that Michelle and Jack had not reconciled.

Detective Anthony Rossi testified that in 1987 he had been the lead detective in the investigation. Walking into the house of the deceased, Rossi observed the foyer floor heavily stained with blood, and immediately noticed that there was a shoe print in the blood, possibly from a tennis shoe. When he closed the front door Rossi noticed blood on the lower area of the door. The foyer, or entryway was open to the living room, and as he walked in, Rossi observed the body of Michelle lying on her left side on the floor, somewhat in the middle of the living room.

There was blood everywhere and Rossi could see that the body had multiple stab wounds and a large laceration on the neck. Next to Shadbolt, was a vacuum cleaner weighing approximately 20 pounds and some "wadded up newspaper." The vacuum cord appeared to have been "tangled up" around the body; the back of the vacuum cleaner bag was somewhat covering the top of her head and was up against her forehead.

Additionally, close to Michelle's body, Rossi observed a bloodied trophy, bloodied sofa pillow, a pair of panties, a two-hole white button on a cushion, a child's patent leather shoe, a pair of orchid colored shorts, and a butcher knife with a handle of approximately five inches and an 8-inch blade underneath the shorts, within two feet of the body.

While Rossi testified that there did not appear to be any signs of forced entry into Michelle's home, it was apparent that a serious scuffle or struggle had occurred. Michelle appeared to exhibit a carpet burn on her right shoulder; her T-shirt had been pulled off her torso and lay around her neck exposing her breasts. There was blood on her fingers. Rossi thought that the trophy, with its bloodiest base, had possibly been used to bludgeon Michelle. Such use was consistent with Michelle's apparent head wounds. Rossi also noted that the televisiion was on when he entered the home; its volume was very high.

Rossi explained that the clothes Michelle had worn earlier in the day were piled on the floor of her bedroom. Thus, she had disrobed immediately upon her return home and had put on her night clothes, panties, a red shirt and no bra. Additionally, Michelle was still wearing her jewelry, earrings and a gold ring.

Rossi observed a butcher block with "a big-bladed knife missing" in the kitchen. On the counter, Rossi also found Michelle's purse with a checkbook and $23.50 in currency, as well as a pledge sheet and currency in the amount of $34.65 with approximately 21 checks to the Cystic Fibrosis Foundation. Thus, Rossi did not believe that Michelle had been killed during the course of a robbery or burglary. Rossi noted that there did not appear to be any blood in the bedroom or in the kitchen.

In response to questions regarding blood found along the ring of the toilet bowl in Michelle's bathroom, Rossi opined that her killer may have used the toilet bowl to wash off any blood. When the prosecutor pressed him for additional speculation, asking "what else?" if a sexual assault had occurred, Rossi answered, "Oh, semen."

Rossi interviewed neighbors and potential witnesses, canvassing the neighborhood for clues. These included Sam and Brenda Farquhar, Robert White, Pauline Shadbolt, Michelle's mother-in-law, and Jack Shadbolt (Michelle's estranged husband), as well as Mary Sengbusch, Michelle's co-worker at Shell Oil Co. who had played bingo with Michelle on the night of her death.

Within a week of the killing, on February 21, 1987, Rossi called Jack Shadbolt, Michelle's estranged husband, to the Sheriff's Office, so that he could interview him and "check his alibi" Jack, an alcoholic, was Rossi's prime suspect. While Jack Shadbolt did answer Rossi's questions at first, he appeared "very nervous" and his breath reeked of alcohol. Rossi noted that Shadhold had a "hickey" on his neck at this interview and asked Jack "who his girlfriend was". Shadbolt did not provide an answer or respond at all.

On this same occassion, Rossi secured Jack Shadholt's signed consent for the taking of his saliva, head and pubic hair, and blood, as well as his fingerprints. However, when Rossi attempted to get a written statement from Jack about where he was and what he was doing in the early morning hours of February 14, Jack only provided about a page and a half of information. Even during that time, Rossi stated that the latter appeared very nervous; he kept jumping out of his chair and walking away without saying anything. Then, Jack Shadbolt abruptly left the interview, excusing himself to "use the restroom."

When Jack had not returned after 15 minutes or so, Rossi went looking for him. Rossi found him in the lobby of the building. Jack informed Rossi that he had telephoned an attorney and was awaiting his arrival. When the attorney arrived, he spoke briefly with Rossi and departed with Jack. Rossi understood that both would return and make "a fresh start" on the uncompleted statement. However, that did not happen. Rossi could not "clear" Jack Shadbolt as the prime suspect in the case.

Rossi testified that on May 27, 1987, he returned to the scene, accompanied by a private investigator, hired by Michelle's family to see, if they could find anything the Sheriff's Office had "missed". Rossi walked through the scene again, took some blood scrapings from the bathroom vanity and dining room wall, and submitted them to the Texas Department of Public Safety (DPS) laboratory for blood typing. Additionally, Rossi requested that possible latent fingerprint samples, also submitted to the DPS, be compared with those of Jack Shadbolt.

By August 13, 1987, Jack Shadbolt was still a prime suspect in this case. On that date, Rossi arrested Jack Shadbolt pursuant to a misdemeanor hot check warrant, as a ruse, to question him further in this murder case. Jack refused to answer any questions. Shortly thereafter, Rossi was transferred to the Internal Affairs Division and did not continue his investigation in this case. Rossi admitted taht he was never able to "clear" Jack Shadbolt as the perpetrator in the case.

Rossi admitted that while Jack Shadbolt had claimed to be together with neighbors, the Farquahrs and the Whites, throughout the evening of Michelle's death, Rossi discovered that Shadbolt had parted from their company at 9:30 p.m. There were no witnesses to corroborate Jack Shadbolt's alibi on the night in question except his mother who admitted that she could hear her son in the shower on the morning of February 14, 1987. (Mrs. Shadbolt was not called as a witness in this trial.)

Upon cross-examination, Rossi admitted that he knew that complainant and Jack Shadbolt had separated and that the latter was not living in the home. There was no evidence of forced entry into the home which indicated to Rossi that Michelle knew her killer. Rossi also stated that he had learned in the course of his investigation that Jack Shadbolt was alcoholic and remained a prime suspect in this case. (Over the State's hearsay objection regarding the basis of Rossi's ongoing investigation and consideration of Shadbolt as a prime suspect, Irvan was precluded from asking Rossi whether he had discovered that Michelle had informed Shadbolt two (2) days prior to her death that "they would never get back together.")

Rossi also admitted that while he had observed the bloody shoe print in the foyer of the crime site, he was unaware of any attempt by personnel at the scene to preserve or "collect" the print for later comparison with the shoes of any other person. As far as he knew, no one ever attempted to determine the size of the shoe that would have made the bloody print. While Rossi testified that Deputy Schield assisted in processing the evidence at the scene, he was unsure whether multiple "blood spots" observed on the front door were actually tested to determine whether they were, in fact, human blood. Rossi opined that based upon the location of possible blood on the door, it was possible that a scuffle had occurred with the door open.

Rossi also admitted he did not know whether Schield had attempted to collect any fingerprints from the trophy at the scene. Moreover, while the vacuum cleaner cord found draped around Michelle's body might have been used to subdue her, Rossi did not see any ligature marks on Michelle's body or any knots in the vacuum cleaner cord. Rossi said he did not believe that the vacuum cleaner was used in Michelle's homicide. Rossi also noted that a "wadded newspaper" at the scene contained blood and he deduced that "the assailant or the assailants" had attempted to wipe the blood off their hands during or immediately after the crime had been committed.

Rossi was unsure whether any attempt had been made to lift fingerprints from the newspaper or any other newspapers at the scene for identification of possible suspects. While Rossi testified that a butcher knife was "probably the murder weapon", he was unaware of any attempts made to locate and/or lift fingerprints therefrom.

Rossi stated that Michelle's bedcovers had been collected by investigators for possible evidence including blood, semen, pubic hair, head hair, and foreign hair. Rossi testified that based upon the absence of blood evidence in Michelle's bedroom, it was possible that sexual intercourse had occurred in Michelle's bedroom and that her killing had occurred in another room. Rossi admitted that he did not know whether a sexual assault of the complainant had, in fact, occurred. (While he noted that semen was recovered from Michelle during her autopsy, he agreed that this finding was solely evidence of the act of sexual intercourse and not necessarily evidence of a sexual assault.) Rossi did not observe any bruises on complainant and explained that the allegation of an underlying possible sexual assault of Michelle was "just a theory".

Upon redirect examination and over objection, Rossi testified that he "could not separate out the sexual assault [of Michelle] from [her] killing, that Michelle's shirt wound around her neck was moved either during a struggle or in an attempt to subdue her, while the removal of her underwear was not necessary to commit her killing."

While Rossi agreed that the bloody commode in Michelle's bathroom may have been used to wash off the assailant's groin area and that the toilet seat was found up, he acknowledged that there was no evidence of blood splashed on the floor surrounding the commode, which would likely have been there if the assailant had been a rapist and had washed himself in the commode.

Peter F. Schroedter, HCSD civil administrator of the automated fingerprint identification system (A.F.I.S.), testified that in April, 1987, he undertook fingerprint work in this case, No. 87-027084, to test a knife and three pieces of a trophy received from Deputy Schield. "The only thing that was found on that particular object was just essentially smudges, a print lacking any detail for identification purposes." Schroedter also analyzed a trophy, which he received in three cylindrical pieces. Schroedter developed one print, a portion of a palm, containing ridge detail with seven or eight characteristics. Schroedter stated that based upon the number of characteristics, he was not comfortable making an identification.

Schroedter also testified that post-1987, other print enhancing techniques had been developed including "the amino black system," although he did not employ them in this case. Thus, Schroedter chose to send the "unidentifiable" print to the FBI for possible identification and comparison with known prints belonging to Jack Shadbolt. While no identification of the holder of the print could be made by the FBI despite the fact that the FBI "recovered" two latent prints, and the print submitted had remained "unidentified", the FBI examiner was able to employ the recovered print to eliminate Jack Shadbolt as the person who had left the print on the trophy. Thus, Schroedter conceded that the print/prints recovered were good enough to compare with Irvan's, Timothy Darden's or anybody else's for elimination purposes.

Maurita Howarth, former DPS criminalist, testified that in 1987 she was asked to perform forensic serology analysis on hair and fluid samples belonging to Jack Shadbolt. On February 25, 1987, Howarth received five separate evidence submissions from Rossi of hair and fluid samples belonging to Jack Shadbolt including a tube of blood, a saliva sample, and four hair samples. Of the latter, two were pulled known hairs and tow were combings of loose hairs.

On the following day, Howarth received for analysis a fitted sheet, a flat sheet, a pillow and pillowcase, fingernail scrapings from Michelle as well as a pulled pubic hair and a pulled head hair sample, a packet marked foreign body material, and six cigarette butts. While Howarth tested the bed sheet provided, she testified that the testing was solely for the presence of semen. There was none! No other testing of the sheet was undertaken.

On March 5, 1987, Howarth received for analysis additional samples recovered from Michelle in the course of the performance of her autopsy, including a blood sample, vaginal, oral and anal swabs. Additionally, on March 12, 1987, Howarth received a sample from a stain from a knife, a sample of a stain from a piece of trophy, a control sample, a vial of hair from a knife, and from the wall of Michelle's dining room area and a scaping from the face of the bathroom vanity. All of these items were analyzed for body fluids to determine some of the genetic markers that might have been present.

Howarth determined that the blood sample from Jack Shadbolt revealed that he was a "secretor". While Howarth's analysis of the anal swab from Michelle revealed the presence of semen, Howarth determined that the semen was that of a "nonsecretor" and/or was in insufficient quantity to be tested for genetic markers. Howarth also determined that there was no semen on the oral swab taken from Michelle. Nor was any semen detected on the vaginal swab or the bedspread.

Howarth's analysis of fingernail scrapings from the complainant and scrapings from a knife, trophy, and sample from the bathroom sink, respectively, revealed the presence of human blood. However, a vaginal swab from complainant was found to be inconclusive for the presence of human blood.

On cross-examination, Howarth admitted that while she had undertaken comparison of Jack Shadbolt's blood, semen, etc., with samples from other known individuals. Moreover, her analysis above "did not exclude Jack Shadbolt as a contributor to what was found on the anal swab." Howarth also noted that while the analysis of Michelle's fingernail scrapings revealed the presence of hairs, no analysis was undertaken to determine who the possible contributor might have been.

Randy Schield, HCSD, Identification Division, testified that on February 14, 1987, he was dispatched to collect evidence in this case. Schield photographed the scene and collected evidence, including a vacuum cleaner, one trophy, one pair of purple shorts, one knife located under the shorts, a button, several pieces of crumpled paper, one pair of panties lying under Michelle, one pair of panties from the couch, one handwritten note from the bathroom, a sheet and blankets from the bedroom, and some clothing from the floor next to the bed. Schield documented the scene and collected some of the blood evidence.

Schield also attended complainant's autopsy, took additional photographs, and documented her injuries as follows:"there were numerous stab wounds. There was a cut across the throat area and the right shoulder or something. There was a gib scrape. There were some wounds to the top of the head and I believe one to the back of the neck." Shield noted bruises and abrasions. Schield also recovered fingernail scrapings from the complainant, pulled head hair, pulled pubic hair, a vial of blood, and foreign material from her body. This evidence was sent for analysis to DPS.

Schield testified that he processed a vacuum cleaner and crumpled newspapers, recovered from the scene, for any latent prints. While Schield recovered two latent prints from the vacuum cleaner which he believed were of a nature that could not be identified, Schield nevertheless compared them to those of Jack Shadbolt, Irvan, Michelle and Timothy Darden, respectively. Schield testified that the prints recovered from the vacuum cleaner "did not match" those of Jack Shadbolt, that is, they were not his prints or there were not enough characteristics with which to compare to the latter's prints, "not enough to make a comparison or exclusion." Similarly, Schield asserted that the prints recovered from the vacuum cleaner also "did not match" those of Michelle or anyone else as they were not "just not good enough".

Schield testified that he recovered three prints from the crumpled newspapers "next to the green chair in the living room," which "were good enough for comparison" and were also compared with those prints belonging to Jack Shadbolt, Irvan, Michelle, and Timothy Darden, respectively. They did not match those of Michelle, Irvan, Jack Shadbolt, or Tim Darden.

Schield recounted that he processed a note found in Michelle's bathroom (between the commode and the wastepaper basket) for identifiable prints. A print processed from the note was compared with those belonging to Jack Shadbolt, Irvan, Michelle, and Timothy Darden, respectively. It matched those of Michelle.

Schield stated that he was asked to analyze a knife and a trophy, previously processed by Schroedter, above, for possible prints. Schield could not recover any prints from the knife but recovered one "poor quality" partial palm print from the trophy. It was then compared to those prints belonging to Jack Shadbolt, Irvan, Michelle, and Timothy Darden, respectively. However, Schield explained that he was unable to effect any identification as to those known prints. "It just wasn't sufficient enough of a print."

Upon cross-examination, Schield admitted that on June 21, 1991, Det. Dionn provided him with a known set of Irvan's palm prints and he was asked to compare those prints to the partial print recovered from the trophy at the scene. "They did not match." Additionally, on May 17, 2000, several months after Irvan had been indicted in this case, Schield again compared Irvan's prints with the recovered latent print on file. "They still did not match."

Upon cross-examination, Schield admitted that he had not recognized a possible bloody shoe print in the foyer of complainant's home and did not attempt to search or locate any shoes in complainant's home which have been consistent with the print left in the foyer. Additionally, while photographs depicting the entryway as well as a table with three drink glasses and a can of Coke, close to complainant's body, no mention of these objects was made in his report. Schield did not attempt to process any of these items for possible fingerprints.

Schield also admitted that he had not attempted to process the butcher block in Michelle's kitchen for possible fingerprints, despite the fact that he believed the butcher knife used by the killer came from the butcher block. Schield stated that he did not attempt to dust the kitchen area or countertop for possible fingerprints nor had attempted to process the doorknob or the inside of complainant's entryway door for any possible fingerprints. Similarly, Schield testified that he did not attempt to process Michelle's bathroom for possible prints until May, 1987, at the request of a private investigator.

Marcel Dionn, testified that in 1989, he replaced Rossi in this investigation. Dionn spoke with Rossi and Jackie Barrett, Michelle's mother. Dionn started investigating and following Jack Shadbolt. He also contacted and interviewed Irvan on May 17, 1989, together with Det. Bruce Johnson, in his office. Dionn obtained a one-paged, typed statement from Irvan. Over Irvan's objections, his statement was admitted into evidence and read before the jury. Over Irvan's objections, Dionn told the jury that Irvan had denied having any romantic relationship with Michelle, stated that they were "just friends", and said that he had last seen Michelle Shadbolt, two or three months prior to the Wednesday or Thursday (February 11 or 12, 1987).

Dionn confirmed that during this investigation, he had requested fingerprint comparisons between Irvan's known fingerprints and any prints recovered from Michelle's home.

Dr. Dwayne Wolf, a medical examiner with the Harris County Medical Examiner's Office (herinafter M.E.) testified that he reviewed the autopsy report and photographs in this case, No. 87-997, performed by Dr. Espinola on February 14, 1987. Additionally, in anticipation of trial, Wolf prepared several diagrams reflecting Michelle's wounds, including several superficial bruises and abrasions on her face and lips, (consistent with a struggle); carpet burns on her knees, a wound on her thigh, and blunt force injuries, bruises or abrasions on her arms and hands (defensive injuries), and a scrape or abrasion on Michelle's shoulder (consistent with a carpet burn - a superficial injury).

Wolf listed several "lethal" stab wounds or injuries which pierced Michelle's heart and lungs, perforated the chest cavity and the diaphragm, a stab wound to the upper right quadrant of the abdomen from a single-edged knife, a stab wound which penetrated complainant's liver in the upper quadrant of the abdomen, as well as stab wounds to the upper right back and the lower back.

There were also four wounds to the left side of Michelle's flank (none penetrated the peritoneal cavity), and stab wounds to the back of the neck. Wolf stated that the injuries or lacerations to the back of Michelle's head as well as the angular and parallel linear abrasions to her arm could have been caused by being struck with the edge of the trophy. Wolf noted that Michelle sustained a total of twenty (20) knife wounds to her body, including stab or incised wounds to her neck and four lacerations.

Wolf stated that Michelle's death was caused specifically by two sharp force injuries to the chest, three to the abdomen, and an incised wound to the neck. Wolf admitted that he could not determine whether Michelle's stab wounds and lacerations were caused by a single knife or different knives nor whether her injuries were caused by one assailant or multiple assailants. Wolf conceded that there was no evidence of ligature marks on complainant's body nor evidence of trauma to Michelle's genitalia, "nor to the vagina or the rectrum," nor to the anal-rectal area or Michelle's vulva.

Thus, Wolf admitted that Michelle may have engaged in consensual sexual intercourse while her death may have occurred later. Wolf could not confirm that Michelle had been sexually assaulted nor whether any sexual assault, if it had occurred, preceded or followed Michelle's death. Wolf also opined that Michelle may have engaged in sexual intercourse the day before her death.

Roger Wedgeworth, HCSD, cold case squad, testified that in October, 1998, he and his partner began to reinvestigate this case with the following assumptions: the murder weapon(s) consisted of a knife with a 13 inch blade and a trophy, also located at the scene; the "window of opportunity" was between 3:00 a.m. and 8:00 a.m. when Michelle's body was discovered. Wedgeworth still considered Jack Shadbolt as the prime suspect. As stated: "[The intent] ...was either to rule him in as the actual murderer or rule him out, clear him, if we could do that either way."

Wedgeworth secured all the physical evidence from the property room as well as the scene photographs and autopsy photos. Wedgeworth also determined that evidence still remained in the medical examiner's office, including tissue blocks, hair samples, and a rectal, vaginal, and oral slide, labeled No. 87-997. Wedgeworth obtained all the evidence previously sent to DPS laboratory, including a tube of blood and a sample of saliva belonging to Jack Shadbolt, a tube of Michelle's blood, six (6) cigarette butt cuttings, an envelope with a vaginal and rectal swab, a piece of oral swab, a cutting from the bloody gauze from the knife, two cuttings from blood gauze from the trophy, and scrapings from the bathroom vanity.

On November 13, 1998, Wedgeworth submitted evidence, including Michelle's hair standards, Jack Shadbolt's hair standards, blood, and saliva, Michelle's vaginal, anal, and oral swabs and slides, empty envelopes of vaginal, anal, and oral swabs, pieces of oral swab, mucous-like substances from Michelle's hair, a bloody knife, blood scrapings from a vanity, a knife, as well as trophy, and cigarette butt cuttings, to GeneScreen, now Orchid Cellmark for DNA analysis and processing, specifically, to determine whether there was DNA present and to compare the DNA with that of Jack Shadbolt.

Over Irvan's objection, Wedgeworth informed the jury that as a result of DNA testing and analysis, Jack Shadbolt was ruled out as a semen donor. Thereafter, pursuant to conversation with Jackie Barrett, Wedgeworth focused his attention on Irvan and Timothy Darden, respectively.

Wedgeworth contacted Dionn who provided him with Irvan's date of birth, social security number, address, and a copy of his statement, dated May 17, 1989. Wedgeworth learned that while fingerprints previously recovered from the scene had been compared to those of Irvan and Darden, none of the prints recovered had matched those of Irvan, Darden or Jack Shadbolt.

On February 3, 2000, along with his partner, Harry Fikaris, Wedgeworth met Irvan who was informed of the renewed investigation and was asked for a DNA sample. Irvan provided a buccal swab, after signing and initialing a written consent form. On March 3, 2000, he and Fikaris traveled to a prison unit in Texas to interview a prisoner, Timothy Darden, who also provided a buccual swab for DNA testing.

On May 1, 2000, Wedgeworth spoke with Bill Watson at GeneScreen and over Irvan's objections, testified that Watson had ruled out Darden as a donor of the suspect DNA in this case. Additonally, Irvan's DNA "matched the suspect DNA that they had extracted from the anal slide of the victim."

Thereafter, Wedgeworth asked Watson to compare all the evidence recovered in this case, including the knife, trophy, evidence recovered from the scene, blood-stained newspapers, cigarette butts, fingernail scrapings, foreign blody material, hair slides, hair mounts, as well as evidence recovered from the autopsy, with DNA obtained from Irvan. On May 17, 2000, Wedgeworth submitted more evidence to GeneScreen which had been previously stored in HCSD's property room.

On May 26, 2000, Wedgeworth interviewed Jack Shadbolt, accompanied by his attorney. Wedgeworth tried to obtain a statement from Shadbolt regarding his activities immediately prior to the homicide. Shadbolt appeared to be very nervous and anxious despite Wedgeworth's reassurances that "he had been cleared by the DNA processing." Shadbolt provided a written statement in which he considered himself "still married" to Michelle.

On July 24, 2000, Wedgeworth re-interviewed Timothy Darden to establish a relationship history as it existed in 1987 between Darden and Irvan. Other family members and friends of Michelle were also interviewed in order to determine the relationship between Irvan and Michelle. Then, on January 3, 2001, Irvan was charged with capital murder of Michelle Shadbolt.

On January 25, 2001, Wedgeworth and Fikaris interviewed a federal prisoner, Tamara LLamas, at the request of her friend, Rhonda Reiner, who said that Llamas had information in this case. Llamas was serving four federal life sentences for solicitation of capital murder, capital murder of a government witness, and interstate trafficking of marijuana. Llamas provided Wedgeworth with a sworn statement, handwritten by Fikaris, in which she asserted that she and Irvan had been "boyfriend girlfriend" for a period of time.

On January 20, 1999, Wedgeworth resubmitted all recovered fingerprints to Danny Rinehart, a fingerprint analyst, and requested a comparison between the fingerprints recovered from the crime scene and those of Irvan and Timothy Darden, (but not Jack Shadbolt). "None of the recovered prints were the same as the defendant's [Irvan] or Timothy Darden."

While Wedgeworth conceded that Jack Shadbolt was ruled out as a murderer in this case solely because "he was not the person who had sex" with Michelle, Wedgeworth conceded that this finding did not necessarily rule him out as a murderer. Notably, Wedgeworth admitted that he had considered Jack Shadbolt as a prime suspect.

William Joseph Watson, director of Orchid Cellmark, Nashville, Tenn., formerly, GeneScreen, testified that known samples of DNA obtained from suspects, from the crime scene, and samples obtained at autopsy, had been tested and retested at his facility several times. Watson summarized test results obtained at various times. He recounted that in 1999, a limited DNA profile obtained from the male fraction of the sperm cells recovered, excluded Jack Shadbolt as the contributor of the stains on the rectal swab, rectal smear, vaginal swab and vaginal smear.

On April 3, 2002, testing of "additional evidence": a pubic hair fixed to a slide from a fingernail scraping of Michelle, was not a match to either Michelle, Irvan, or Timothy Darden. Watson confessed that no attempt was made to compare the DNA in the pubic hair with the sample obtained from Jack Shadbolt. "I don't recall why we didn't compare it. My guess is we conferred with the Sheriff's Department and decided not to test it."

Additionally, in February and March, 2000, Watson stated that testing was undertaken of blood stains from a knife recovered at the scene, of vaginal swabs and slides, of anal swabs and slides, a mucous-like substance on hair, fingernail scrapings, and several hairs, obtained at autopsy, as well as stains from newspaper, and buccal swabs obtained from Irvan and Timothy Darden. The tests revealed that only one blood stain sample of three recovered from the knife, above, matched Michelle's; the other two samples contained "insufficient" DNA for testing. Additionally, the female fraction of the rectal and vaginal swabs matched Michelle's.

Watson testified that Timothy Darden was excluded as the contributor of the male fraction of the sperm found in the vaginal and rectal specimens. Inconclusive results were obtained in testing the stains on the knife, the male fraction of the vaginal smear, the mucous-like substance on hair, and the stains on the newspapers. Watson explained that only a partial profile was obtained from the rectal smear obtained at autopsy which was "consistent" with Irvan's profile as the male contributor of the male fraction of the rectal smear. Similarly, while Irvan was "included" as a potential contributor of the male fraction of the vaginal swab, the male fraction of the vaginal smear was inconclusiv. Its statistical significance could not be determined.

While Watson testified that DNA testing in this case was completed in 2000, the report was not completed until 2002. Upon cross-examination, Watson admitted that no DNA testing was undertaken of the blood stain gauze swab obtained from the trophy at the scene, Item No. 12, report of March 23, 1999.

Katherine Long, a scientist at Orchid Cellmark, formerly GeneScreen, testified that several weeks prior to trial, she was asked to re-analyze and retest most of the evidence in this case, including paint scapings, a knife, a rectal swab, a vaginal swab, an oral swab, hair with a mucous-like substance, a tube of Jack Shadbolt's blood, cigarette cuttings, empty bindles from the vaginal and anal swabs, a portion of an oral swab from Michelle, a gauze blood sample from a trophy, gauze from a knife, a scraping from a vanity, buccual swabs from Michelle, fingernail scrapings from Michelle's left and right hand, hair slides from the fingernail scrapings, hair from the left hand fingernail scrapings, hair from the right hand fingernail scrapings, foreign body material, a newspaper with blood, a piece of newspaper with blood, a scraping from the west wall of the dining area, a scraping from the vanity of the hall bedroom, a trophy and a vacuum cleaner, and a tissue block from Michelle. Long stated that she employed thirteen (13) loci for her comparisons, more than the eight previously employed by Watson. Over Irvan's renewed objections, Long's report was admitted into evidence.

Long explained her test results, as follows: of the listed itmes tested, five had never previously been tested or analyzed. These included paint scrapings from the west wall of the dining area, from the vanity, the bathroom, the trophy and the vacuum cleaner, respectively. The DNA profile obtained from the scrapings of the bathroom vanity, from the stain of the trophy base, and from the vacuum cleaner, respectively, matched Michelle's. Long also testified that her analyses of the sperm recovered from the rectal and vaginal swab sticks at autopsy, "included" Irvan as a contributor. Long stated that her analyses resulted as well in two exclusions: the paint scrapings and the hair from the wheel of the vacuum cleaner served to exclude both Irvan and Michelle as contributors.

Long noted that the stains recovered from the base of the trophy were consistent with Michelle's DNA profile while the stains throughout the trophy were insufficient to produce a genetic profile. The fingernail scrapings and the hair slides of the fingernail scrapings were also consistent with Michelle's profile. [Note: The hair slides were not tested. Only one hair from Michelle's fingernail was tested and it did not match, or was not similar to William Irvan nor Michelle.]

Long testified that in her discretion, she chose not to test certain items, including the hairs recovered from beneath Michelle's fingernails (left and right hands). Long chose not to perform mitochondrial testing of these hairs. Long simply ignored the items not previously tested by Watson, including the hairs recovered from beneath Michelle's fingernails. Thus, any question regarding Jack Shadbolt's role as a suspect in this homicide was never investigated, once he had been excluded as a sperm donor!

Similarly, Long also never tested the trophy recovered from the scene for DNA, other than that present in the bloodstains, although it was clear from Watson's testimony, that an individual, "slugging away and aggressively holding the trophy could cause deposits of DNA and a lot of cellular material" which could have been genetically tested.

William Irvan testified outside the presence of the jury solely to invoke the confidential marital communication privilege. Irvan stated that he was married to Shanna Irvan Stryjek from December 4, 1987 until September 9, 1995. Irvan advised that he wished to assert the confidential communication privilege regarding utterances made to Shanna Stryjek during their marriage. The court denied Irvan's motion to invoke the marital communication privilege.

Tamara Dayton Llamas, a federal prisoner, in continuous custody since 1996, testified that pursuant to her pleas of "guilty" in an agreement with federal prosecutors to avoid a death penalty, she was serving four (4) life sentences for her convictions for interstate travel with intent to commit murder for hire, use of a firearm during and relating to a drug crime death, tampering with a witness by killing her, and conspiracy to distribute and possess with intent to distribute marijuana. Llamas also admitted she had been previously convicted of theft and unauthorized use of a motor vehicle. Still, Llamas told the jury that she had not been promised anything by prosecutors, sheriffs or investigators, in return for her testimony.

LLamas said that she had known Irvan, "Diggy," for approximately 23 years and with Michelle, who had lived "catty corner" from Irvan's house. Shortly after giving birth to her daughter, Llamas became Irvan's girlfriend. Llamas and Irvan lived together for approximately four or five months. Llamas admitted that while Irvan was a "nice person", he was also jealous and possessive of her.

Llamas testified that in 1985, while pregnant with her second child, fathered by Shane Hughes, she moved to Maryland with Hughes and resided there for approximately three years. During this time, she visited her family in Houston and maintained contact with Irvan. In 1986, during a visit to Houston which lasted approximately "four or five" months, she dated Irvan; they would consume alcohol together and "partied". In the "middle of the latest of March, " 1987, Llamas accompanied Irvan to Galveston. They remained on the beach overnight, drinking alcohol and having sex. Although both were intoxicated, Irvan "admitted" that he had raped and killed Michelle.

Llamas could not recall details of the conversation, but noted that Irvan also told her that on the night of Michelle's death, while sitting in his driveway drinking, he watched Michelle as she returned home, and went to her house to have sex with her. "He said that he tried and that she didn't want to, ...that he got carried away, ...that he killed her, ...that he stabbed her." Llamas recounted that Irvan told her that he returned home though his bedroom window. Llamas did not believe Irvan nor gave police or Michelle's family this information.

Llamas explained that in 2000, while incarcerated in the federal penitentiary, her mother told her that Irvan had been charged in this case and that she then contacted the detectives, Wedgeworth and Fikaris. Llamas provided investigators with a statement. Llamas reiterated that she did not have anything tho gain by testifying and had not been promised anything by the prosecutors in this case in exchange for her testimony, nor that there was any "bad blood" between herself and Irvan.

Llamas conceded that Irvan had admitted raping and killing Michelle during their very first trip to Galveston, within an hour or two of their arrival, while drinking, talking and sleeping on the ground. Llamas added that Irvan had also admitted that he had taken jewelry, including a baby ring, from Michelle's home, that Michelle had fought hard and had scratched him. Llamas admitted that following Irvan's admissions of rape and murder, they had engaged in sexual intercourse; she did not see any scratches on Irvan's body.

Llamas denied seeking any benefit from the government for this testimony. However, opined that she believed that the prosecutors in this case could contact the federal authorities in her own case regarding a possible reduction in her sentence. Llamas also confessed that prior to her plea bargain agreements with the federal prosecutors in 1998, she had made no effort to "trade" information Irvan for a sentence reduction because at that time, she "still did not believe that Irvan had killed Michelle Shadbolt."

While Irvan's counsel attempted to impeach Llamas' veracity with her reputation for lying and her well-established character traits of manipulating the criminal justice system to her advantage, that is, with specific acts of misconduct including making and attempting to file false accusations against others, kidnapping and assault, soliciting and orchestrating the murder of a government witness to avoid the witness's testimony at her own trial, attempting to hire others to murder the husband of a witness against her, as well as her own sister, employing minors to traffic marijuana and arms, the trial court sustained the State's objections and precluded counsel from presenting this evidence to the jury.

Similarly, while Irvan's counsel attempted to cross-examine Llamas regarding her plea-bargain agreements with the federal prosecutors to avoid a death penalty, counsel was not permitted to ask about other federal felony offenses which had been dismissed as part of her plea bargain agreement, including her employing minors to traffic and transport marijuana and weapons across state lines, nor her activities in orchestrating and hiring hitmen to kill witnesses against her, specifically, Christi Edwards, killed in the presence of her 8 and 11 year old children by Llamas' nephew whom she paid $260.00 for this contract; and her making false criminal accusations against others, including family members. (Bill of Exception).

Shanna Stryjek, Irvan's ex-wife, testified that they had been married for seven years, December 4, 1987 to September 1, 1995, when they divorced. They had three children together, legally adopted by her present husband, Wayne Stryjek, upon terminating Irvan's parental rights. Stryjek first met Irvan in June, 1987, several months after Michelle's death, and had last seen him in 1997-1998. Stryek was contacted by investigators in this case in 1999-2000.

Stryek asserted that while married, Irvan attempted unsuccessfully to engage in anal intercourse with her on two separate occassions. At the second time, despite her refusal, Irvan "just tried to do it anyway... I had to kind of force him to stop." Stryek also testified that she always refused Irvan's "regular" sexual requests and he would become enraged; "he would start hitting things, breaking things, calling me names." Over Irvan's continued objections, Stryek repeated the names, including: "bitch, slut, whore," and "cunt."

Additionally, Stryjek repeated that Irvan hated Michelle, that while he had informed the police that he had been home on the night of Michelle's death, that he had been out with a friend, George, and had returned to his parents' home between 1:00 a.m. and 2:00 a.m., but had not seen anything and first becamse aware that something unusual had occurred, the next morning, as there was yellow tape around Michelle's home. Stryjek explained that Irvan had been living with his parents in a home directly across the street from Michelle's.

As Irvan could not smoke within his parents' home, he would climb up to the top of a brick extension, of his parents' home, with a view of the neighborhood, to smoke. Irvan could see Michelle's front door from this location. Thereupon, the State rested its case. Irvan's motion fro an instructed verdict, based upon the State's failure to prove tat he had killed Michelle Shadbolt during the course of committing or attempting to commit aggravated sexual assault, was denied.

Roger Wedgeworth, again informed the jury that based upon Llamas' statements, he tested paint around the designated window sill of Irvan's home. DNA testing revealed that neither Irvan nor Michelle were contributors of the genetic profiles contained within the paint scrapings from the window sill.

Daniel Rinehart, assisted Wedgeworth and Fikaris in their investigation and identified two items of evidence that required additional fingerprint processing, notably, a knife and a trophy. In 1999, following the application of an "amido black" staining process for fingerprints to the knife and trophy, Rinehart eliminated Jack Shadbolt and Irvan from the list of suspects who had left their fingerprints on these items. Rinehart could not eliminate Timothy Darden from the list of suspects.

Connie Summers testified that she was acquainted with Llamas and had known her for approximately 20 to 25 years. Summers stated that she was familiar with Llamas' family and friends; and knew her reputation for truthfulness and veracity. Summers testified that Llamas' reputation for truthfulness was "very bad".

Darlene Hughes, a.k.a. "Dede," testified that she was a younger sister of Tamara Llamas who had previously testified. Hughes had personally known Llamas all her life, was familiar with other family members and friends, and knew Llamas' reputation for truthfulness and veracity. Hughes stated that Llamas' reputation for truthfulness was "bad". Llamas was not worthy of belief under oath.

Hughes testified that she had known Irvan for approximately 22-23 years. She explained that she had met Irvan together with Michelle in a Stop-N-Go shop in the spring, 1987: some time after January 1, 1987 and prior to Michelle's death. Hughes spoke to both. Over the State's objection, Hughes was precluded from telling the jury that Michelle and Irvan had instructed her not to tell anyone that she had seen them together.

Marylou Brady testified that she was the mother of Billy Joe Brady and the grandmother of Tamara Llamas' daughter. Brady stated that she had known Llamas for approximately 20 years, was acquainted with Llamas's friends, family and associates, and knew her reputation for truthfulness and veracity. As stated: "Tamara has never been truthful to no one, no one. [Her reputation] is very bad."

Irvan did not testify at trial. The jury convicted Irvan of the offense of capital murder, as charged in the indictment.