Two of the six jailhouse witnesses who testified
at trial subsequently recanted, saying they had been given
cigarettes, television privileges and alcohol, and one of them had
been allowed conjugal visits with a girlfriend, in exchange for
their accusations against Mr. Spence.
Mr. Spence's post-conviction lawyers from the now-closed
Texas Resource Center organized a blind panel study in which five
experts -- odontologists -- said the bite marks could not be matched
to Mr. Spence's teeth.
Mr. Sutton, the governor's criminal justice
adviser, said the verdict was fair and the death penalty was
With Governor Bush running for president, and the
Texas death penalty system under heavier scrutiny, one of Mr.
Spence's post-conviction lawyers, Raoul Schonemann, says ruefully
that Mr. Spence is receiving more attention now than he did when his
lawyers were fighting to save his life.
"David certainly wanted us to persist in trying
to bring out the truth," Mr. Schonemann said. "I've always been
willing to answer questions. But I feel very conflicted. It's
competing with my time for our people who are living."
David Wayne SPENCE
The prosecutors for the State of Texas allegedly
withheld evidence presenting a more likely candidate in a murder
case leading to the execution of an innocent Waco man.
The hit-man in a botched murder-for-hire case professed his
innocence as he was led to the death chamber on April 3, 1997.
As he was being strapped to the gurney, David Wayne Spence, 40, of
Waco, TX, turned to his victims’ families and maintained his
innocence in his last words.
“First of all I want you to understand I speak
the truth when I say I didn’t kill anyone,” Spence said. “Honestly,
I have not killed anyone. I wish you could get the rage from your
hearts and you could see the truth and get rid of the hatred.”
Spence was sentenced to death by injection on Oct. 11, 1984
following a long trial process that convicted him in the 1982
stabbing deaths of Kenneth Franks, 18, of Waco, and Jill Montgomery,
17, of Waxahachie.
On Nov. 21, 1983 the McLennan County grand jury
indicted four men on capital murder charges related to the apparent
murder-for-hire case. Along with Spence, three Waco men were named
in the indictments: Muneer Mohammed Deeb, 24; Gilbert Melendez, 28;
and Tony Melendez, 24. The Melendez brothers pleaded guilty and
received life prison terms while both Spence and Deeb maintained
The bodies of Franks, Montgomery
and Raylene Rice, 17, also of Waxahachie were found in a wooded area
of Speegleville Park at Lake Waco on July 13,1982. The girls were
found bound and nude with their throats slashed and all three teens
had been repeatedly stabbed. Bite marks on Montgomery’s body led to
In spite of the damaging forensic evidence and
testimony linking Spence to the crime, Waco attorney Russell D. Hunt,
Sr was convinced of Spence’s innocence.
convicted on jailbird testimony that was bought and paid for with
conjugal visits and such,” Hunt said. “The State was trying somebody
who was probably innocent.”
Hunt maintained that the testimony was invalid
because prosecutors allowed inmates special privilages in return for
testimony incriminating Spence and Deeb.
Deeb was innocent, just like Spence was innocent,” Hunt said. “All
they wanted was a scapegoat to blame and then to forget about.”
McLennan County trial testimony originally showed that Deeb hired
Spence and two other men to kill his girlfriend, Gayle Kelley, so
Deeb could collect insurance that he had taken out on her. Spence
and his accomplices, however, mistook Montgomery for the intended
victim and stabbed her to death along with her two companions.
Although Deeb was also sentenced to death by injection, after
serving nine years on death row, he was acquitted. While this gave
Hunt hope for Spence’s acquittal, Montgomery’s mother, Nancy Wiser,
“I thought ‘My God, they’ve just
let another one go,’” Wiser said.
Hunt said that
Spence was not granted acquittal because the State withheld evidence
that could have potentially cleared him in the crime.
“This is the first case that I’ve dealt with where bad testimony was
allowed and the State withheld evidence,” Hunt said. “I wish I could
have seen all the information that the State was withholding.
Actually, the evidence presented a more likely candidate in the
One of the most gruesome and shocking murders in
Central Texas, Spence’s case would inspire an award-winning book,
Careless Whispers by Carlton Stowers, and a made-for-TV movie. Hunt
also said that Fred Dannon of “The New Yorker” is writing a book on
David Wayne SPENCE, Petitioner-Appellant,
Gary L. JOHNSON, Director, Texas Department of
Institutional Division, Respondent-Appellee.
Nos. 94-20212, 94-20213.
United States Court of
Appeals, Fifth Circuit.
March 29, 1996.
Appeals from the United States District Court for the Southern
District of Texas.
Before POLITZ, Chief Judge, and
DAVIS and JONES, Circuit Judges.
EDITH H. JONES,
In 1982, David Wayne Spence
tortured and stabbed to death three teenagers in Waco, Texas. He has
been convicted and sentenced to die for two of the murders in Texas
courts and has been denied habeas corpus relief by the federal
district court. Spence now seeks relief from this court. We find no
reversible error and affirm.
On the morning of July 13, 1982, Jill Montgomery and Raylene
Rice drove to Waco to pick up and cash Jill's paycheck from the Fort
Fisher Ranger Museum and to meet their friend Kenneth Franks. Later
that day, the three drove to Koehne Park, located on the banks of
They were never seen alive again by their loved ones.
Their bodies were found in a wooded area of Speegleville Park,
across the lake from Koehne Park, a day later. Their last moments
are recorded in the record of the two trials.
After arriving at the park, Kenneth, Jill, and Raylene
encountered Spence and his cohorts, Anthony (Tony) and Gilbert
Melendez. The six "hung out" together for some time drinking beer
and smoking marijuana joints. After a few hours, in the evening,
Spence persuaded the group to go to a convenience store and buy more
beer. En route in his car, Spence attempted to grab Jill's breast.
When she resisted, they argued heatedly. Spence then warned Kenneth
and Jill he was going to "get even" with them "for some dope that he
[Kenneth) had burned me for." Kenneth denied he had "burned" Spence
Instead of driving to the convenience store, Spence turned and
drove back into a wooded area in Koehne Park. After everyone got out
of the car, he produced a knife and in vile terms ordered Jill and
Raylene to undress. The girls immediately complied. Spence then
forced Jill to walk with him to another part of the park. Gilbert
ordered Raylene to get into the car. Gilbert then raped her.
Spence told Anthony to bring Kenneth, forcibly, to where he was
with Jill, so that Kenneth could watch him rape Jill. Spence forced
Jill to the ground, sat on her legs, and rubbed her breasts with his
knife. He then raped her while Kenneth and Anthony watched. After
Spence finished, Anthony traded places with him and raped Jill.
Spence marched Kenneth back to the car where he raped Raylene.
After this rape, Spence returned to Jill. He cut her breasts and
repeatedly stabbed her. At some point, Spence bit off one of Jill's
nipples. He then handed his knife to Anthony, telling him to stab
Jill. When Spence believed that Anthony was not properly stabbing
her, Spence took back his knife and finally inflicted the lethal
Spence then returned to the car and stabbed Kenneth to death.
After this second murder, Spence grabbed Raylene and repeatedly
stabbed her. He also ordered Tony to stab her. He then bit her body
several times and rammed a piece of wood --which he referred to as
his "lovestick" -- into her vagina.
While Spence remained with the bodies, Anthony and Gilbert drove
to Spence's mother's home and exchanged the car for Gilbert's
pick-up truck. During their absence, Spence bound the bodies. When
the Melendezes returned, the trio threw the bodies into the back of
the truck and, at Spence's direction, drove to Speegleville Park.
They dumped the dead teenagers' bodies apart from each other in an
off-the-road area. In placing Kenneth's body, Spence boasted to Tony
that the police "were going to freak out when they find this boy
because he will be sitting up." Spence and the Melendez brothers
divided up several hundred dollars Spence had taken from Jill's
The tortured bodies of Jill, Raylene, and Kenneth were found the
From the federal habeas record, it transpires that intensive
investigation of the highly publicized murders yielded no clear
suspects, leading the Waco Police Department to reduce the case to
inactive status in September. That is to say, the department no
longer committed extraordinary resources to the case. One dogged
police officer, Truman Simons, volunteered to pursue the
investigation and continued to work on it even after he changed jobs
and became a jailer employed by the McLennan County Sheriffs Office.
After January 1993 [sic], a newly elected district attorney, Vic
Feazell, encouraged the investigation. By late March 1993 [sic],
Simons persuaded Gilbert Melendez to confess his involvement and
that of Spence in the crimes. Gilbert and Anthony Melendez, Spence
and Muneer Deeb were indicted for the capital murders in November
1983. Spence was tried first in McLennan County for killing Jill,
while his second capital murder prosecution was moved to Brazos
County. The evidence in the two trials differs somewhat, as will be
II. JUDICIAL PROCEEDINGS
In July 1984, Spence was convicted in the 54th Judicial District
Court of McLennan County for the capital murder of Jill Montgomery.
Following a separate punishment hearing, the jury affirmatively
answered the court's special issues required by the former Texas
Code of Criminal Procedure Article 37.071. Accordingly, the court
sentenced Spence to death. The Texas Court of Criminal Appeals
affirmed Spence's conviction and sentence, Spence v. Texas, 795 S.W.2d
743 (Tex.Crim. App.1990) (en banc), cert. denied, 499 U.S. 932, 111
S.Ct. 1339, 113 L.Ed.2d 271(1991). Spence then filed an application
for a writ of habeas corpus with the convicting court. The court
adopted the State's response as its findings and recommended relief
be denied. The Texas Court of Criminal Appeals denied relief based
on the trial court's findings, Ex parte Spence, Application No.
15,346-03 (Dec. 12, 1991).
In September 1985, Spence was convicted after a change of venue
in the 85th Judicial District Court of Brazos County for the capital
murder of Kenneth Franks. Again, after a separate punishment hearing,
Spence was sentenced to death. The Texas Court of Criminal Appeals
affirmed his conviction and sentence, Spence v. Texas, No. 69,554 (Tex.Crim.App.1990),
cert. denied, 501 U.S. 1239,111 S.Ct 2875, 115 L.Ed.2d 1038 (1991).
Spence's application for a writ of habeas corpus was denied by the
Texas Court of Criminal Appeals based on the trial court's
recommendation. Ex parte Spence, Application No. 15,346-03 (Dec. 12,
In December 1991, Spence filed federal petitions for writ of
habeas corpus regarding each conviction and sentence. The petitions
were assigned to one judge. After reviewing his allegations in each
case, the court denied the petitions in separate opinions and orders
dated April 29, 1992. Spence filed a voluminous motion to alter or
amend the judgments.
The district court consolidated its proceedings
and ordered an evidentiary hearing on Spence's allegations that the
State had suppressed material exculpatory evidence. The parties
agreed the best way to develop the evidentiary record was through
depositions and affidavits, followed by massive briefing and oral
argument. Numerous depositions were taken and numerous affidavits
submitted. After the hearing, the district court re-entered, with
very brief opinions, its earlier judgments denying habeas corpus
This court granted certificates of probable cause to appeal,
heard consolidated oral argument, and treats both cases in this
opinion. For convenience, the claims raised in the Kenneth Franks
case are discussed first, followed by the Jill Montgomery case
 This court reviews the district court's legal conclusions de
novo, applying the same standard as the district court, and its
factual conclusions for clear error. Amos v. Scott, 61 F.3d 333,
337-38 (5th Cir.), cert. denied, --- U.S. ---, 116 S.Ct. 557, 133
L.Ed.2d 458 (1995) (citations omitted). "A finding of fact is
clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a firm and
definite conviction that a mistake has been committed." In re
Henderson, 18 F.3d 1305, 1307 (5th Cir.), cert denied, --- U.S. ---,
115 S.Ct. 573,130 L.Ed.2d 490 (1994) (internal quotations and
A. Spence's Claims Regarding Kenneth Franks's Murder
Critical to evaluating Spence's claims is a general
understanding of the evidence offered at the trial for capital
murder of Kenneth Franks.
By the time of the Kenneth Franks trial, both Gilbert and Tony
Melendez had agreed to testify for the state, each having pled
guilty to two life sentences while the third capital murder
indictment hung over their heads. The State introduced expert
evidence identifying Spence as the source of Jill's bite injuries.
The State also offered incriminating statements Spence had made to
Regina Rosenbaum and inmate David Puryear. Spence's defense was
predicated on the lack of conventional demonstrative evidence
connecting him to the crime; the internal and mutual inconsistencies
in the testimony and statements of Gilbert and Tony Melendez; the
asserted lack of corroborating evidence for the Melendez brothers'
version of events; and the unreliability of the State's forensic
odontology evidence. The defense also sought to show that Gilbert's
truck was inoperable on the night of the crimes and that people
present in Koehne Park that evening did not recall seeing Spence's
group with the victims.
Challenging the constitutionality of his conviction, Spence
contends that (1) the State failed to disclose some benefits Gilbert
Melendez received for his testimony; (2) the State knowingly
presented perjured testimony from Gilbert and David Puryear; (3) the
State suppressed Waco Police Department reports from citizens who
believed they possessed evidence linking other persons to the
murders; (4) the federal district court erred in not granting a
hearing on the reliability of the State's odontology evidence; and
(5) the district court failed to evaluate the cumulative effect of
the above violations.
1. Gilbert Melendez's Testimony
Spence argues that the State violated Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to
disclose certain privileges and benefits Gilbert Melendez received
in exchange for his testimony. The standards for a Brady violation
are well settled. In Brady, the Supreme Court held that "the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or punishment, irrespective of the good faith or bad
faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-97. The Court
further established in Giglio v. U.S., 405 U.S. 150, 154-55, 92 S.Ct.
763, 766, 31 L.Ed.2d 104 (1972), that:
"when the reliability of a given witness may well be determinative
of guilt or innocence, nondisclosure of evidence affecting
credibility falls within the general rule of Brady.... Here, the
Government's case depended almost entirely on [one witness's]
testimony. [The person's] credibility as a witness was therefore an
important issue in the case, and evidence of any understanding or
agreement as to a future prosecution would be relevant to his
credibility and the jury was entitled to know of it."
Id. at 154-55, 92 S.Ct. at 766.
 To establish a Brady claim, a habeas petitioner must
demonstrate that (1) the prosecution suppressed evidence, (2) the
evidence was favorable to the petitioner, and (3) the evidence was
material. U.S. v. Ellender, 947 F.2d 748, 756 (5th Cir.1991) (citations
omitted). In assessing the materiality of suppressed evidence, the
Supreme Court explained that "evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different."
U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d
481 (1985). "A 'reasonable probability' is a probability sufficient
to undermine confidence in the outcome." Id., at 682, 105 S.Ct. at
3383. Recently, the Court further observed that a "reasonable
probability" of a different result is shown when the non-disclosure
"could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the jury verdict." Kyles v.
Whitley, --- U.S. ---, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)
(footnote omitted). "[A] showing of materiality does not require
demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant's acquittal."
Id. at ---, 115 S.Ct. at 1566. Finally, the materiality inquiry is
applied to "the suppressed evidence collectively, not item-by-item."
Id. at ---, 115 S.Ct. at 1567.
 Fifth Circuit decisions have expanded upon these statements,
holding that "[t]he materiality of Brady evidence depends almost
entirely on the value of the evidence relative to the other evidence
mustered by the State." Smith v. Black, 904 F.2d 950,967 (5th
Cir.1990), judgment vacated on other grounds, 503 U.S. 930, 112 S.Ct.
1463, 117 L.Ed.2d 609 (1992). "[W]hen the testimony of a witness who
might have been impeached is strongly corroborated by additional
evidence supporting a guilty verdict, the undisclosed evidence is
generally not found to be material." Wilson v. Whitley, 28 F.3d
433,439 (5th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 754,130
L.Ed.2d 653 (1994). Similarly, when the undisclosed evidence is
merely cumulative of other evidence, no Brady violation occurs. See
Allridge v. Scott 41 F.3d 213, 218 (5th Cir.1994), cert. denied ---
U.S. ---, 115 S.Ct. 1959, 131 L.Ed.2d 851(1995).
 Regarding Gilbert Melendez, Spence complains that the State
failed to disclose that (a) Gilbert's initial cooperation was
induced by the prosecution's insinuation that he could be granted
immunity from prosecution for truthfully assisting the state; (b)
the then-district attorney Feazell and investigator Simons orally
promised not to oppose Gilbert's release on parole; and (c) Gilbert
received special privileges with his girlfriend while in the
McLennan county jail leading up to his trial testimony. Because the
State does not deny the nondisclosure of this information, the issue
before this court is whether the evidence is material. Like the
district court, we conclude it is not. Before addressing Spence's
specific allegations, it is important to set forth several
overriding considerations against finding the undisclosed evidence
to be material.
First, Gilbert's testimony was supported by other
evidence presented at Spence's trial. Gilbert's eyewitness-testimony
was closely corroborated by his brother Tony, whose testimony has
not been attacked at all by Spence. It was also consistent with the
State's autopsy reports, [footnote: 1. Gilbert testified, for
instance, about Spence's use of the "lovestick", which inflicted
injury consistent with the vaginal injuries observed on Raylene.],
the testimony of Regina Ann Rosenbaum and David Puryear [footnote:
2. At Spence's direction, Puryear, a fellow inmate, decorated a
bandana for Spence with pictures of a blonde and a brunette girl,
like the victims, and a knife.], and the odontological evidence [footnote:
3. We later address Spence's challenges to some of this evidence and
his contention that Gilbert's and Puryear's testimonies were
Second, the undisclosed evidence is cumulative of other evidence
impeaching Gilbert. Gilbert admitted at trial his prior convictions
for assault with intent to murder and aggravated sexual assault,
both of which resulted in prison terms. Gilbert further testified
that he had been charged with three counts of capital murder for the
deaths of Jill, Raylene, and Kenneth. He stated that he had received
two life sentences in prison in exchange for his testimony against
Spence, and that he had accepted the plea bargain to avoid facing
the death penalty.
Also at trial, Spence's lawyer questioned Gilbert
extensively about inconsistencies between his testimony and
statements made to investigators about the crimes in March and April,
1983. Gilbert conceded that portions of his previous statements
relating details of the murders had not been true, in part because
he was initially concealing his brother's role. Thus, the jury was
amply informed about Gilbert's criminal record, his inconsistent
statements, and his motives for testifying. Defense counsel
emphasized Gilbert's untrustworthiness in closing arguments.
Third, the State presented other evidence of Spence's guilt.
Most prominent was the testimony of Tony Melendez to essentially the
same gruesome facts of the murders. Consistent with the Melendez
brothers' testimony of the manner of the victims' deaths, the Dallas
County medical examiner testified that Jill, Raylene, and Kenneth
had sustained multiple stab wounds and that the bite marks on Jill's
and Raylene's bodies had been inflicted near the time of their
Also, the State presented evidence that Spence had made
general admissions of guilt soon after the murders. A few weeks
after the murders, he told Regina Ann Rosenbaum and others present
in his apartment that he had taken some girls to Lake Waco and raped
them; no other similar crime was reported to police. Spence told
David Puryear that he had committed the Lake Waco murders and was
glad he had done so. Further, the State's forensic odontological
expert concluded that the bite marks on Jill's and Raylene's bodies
were inflicted by Spence. Even Spence's rebuttal expert in this
field could not rule out the possibility that Spence's teeth caused
the wounds, although he believed there was too little evidence to
support a firm conclusion.
[5-7] Keeping in mind the general state of the evidence, we
address Spence's specific Brady arguments regarding Gilbert Melendez.
[footnote: 4. Repeatedly, Spence asserts that because the federal
district court did not specifically address certain underlying facts
related to his claims, e.g. the potential offer of immunity to
Gilbert or the photos of Gilbert and his girlfriend in the D.A.'s
office, the court did not adequately analyze the case. We
The court took extraordinary measures in
permitting Spence to embark on voluminous discovery pursuant to his
motions for new trial after the court's first opinions in these
habeas cases were written. Detailed additional briefing was
undertaken. The court held a hearing on the post-trial motions and
then concluded that his original opinions were still valid. The
record reflects the court's efforts to uncover, not obfuscate, the
facts. That his conclusions on rehearing do not mirror the vehemence
of Spence's arguments is no criticism of their ultimate accuracy.]
(i) Spence contends that the State violated Brady by not
disclosing its initial "overtures" of immunity, which induced
Gilbert to testify against him. This argument is unpersuasive.
As the federal habeas testimony shows, the State's initial
immunity offer to Gilbert was based on his telling the complete
truth about the murders. Gilbert admits that he did not tell the
complete truth in his early statements and thus foreclosed any
chance of immunity. Having misled the police in his early statements,
Gilbert was left with two choices: he could refuse to cooperate and
face prosecutions for capital murder, or he could plea bargain and
avoid the death penalty. Gilbert chose the latter course and
explained his plea bargain to the jury. Even if the state's overture
toward immunity might have influenced Gilbert's decision to make his
initial statements, that effect could hardly be considered material
to the jury's consideration of his truthfulness after they had
learned of his plea bargain. Any hint that Gilbert might have
originally falsely incriminated himself had vanished.
(ii) Spence next argues the State violated Brady by not
disclosing that Truman Simons, then a deputy sheriff, and Vic
Feazell, then the district attorney of McLennan County, orally
promised they would not oppose Gilbert's release on parole from his
two concurrent life sentences in prison. The state now concedes that
such oral promises were made and have been complied with by those
two individuals. Nevertheless, the fact that such promises were made
is not material on the record before us.
No reasonable jury would
have believed Gilbert fabricated his testimony -- incriminating
himself and his brother in kidnapping, rape, and murder -- and
pleaded guilty to two life sentences in prison based on oral
promises that two individuals would not oppose his parole efforts
some time inthe distant future. Such promises were hardly a
guarantee that Melendez would be paroled, nor did they bind future
McLennan County officials.
(iii) Spence's last assertion, concerning the State's failure to
disclose that Gilbert received unsupervised visits with his
girlfriend while in the McLennan County jail, is also without merit.
Even if the allegations are true, no reasonable jury would have
believed that Gilbert fabricated his testimony and statements given
over the course of two and a half years, from March 1983 to trial in
September 1985, just to receive a few conjugal visits. This evidence
is not material
2. Perjury Allegations
Spence contends the State violated Napue v. Illinois, 360 U.S.
264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by failing to correct
perjured testimony given by Gilbert and David Puryear. In Napue, the
Supreme Court held that a prosecutor's knowing use of, or deliberate
failure to correct, perjured testimony, violates a defendant's
Fourteenth Amendment rights. 360 U.S. at 271, 79 S.Ct. at 1178-79.
However, the Supreme Court also established that a defendant will
only receive a new trial if there is a reasonable likelihood that
evidence of the perjury would have affected the guilty verdict. U.S.
v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). We
conclude the district court did not clearly err in finding that
neither Gilbert's nor Puryear's trial testimony was perjured.
Further, we conclude that Spence's claims, even if proven, would
have not have affected the jury's verdict.
a. Gilbert's Testimony
 Spence argues Gilbert's trial testimony was perjured because
he told an extravagant tale in his 1993 federal habeas deposition
concerning how then-deputy sheriff Simons helped him fabricate his
statements, changing the details of the murders allegedly to match
revelations in the ongoing investigation. The district court was
unpersuaded that perjury had been promoted, and so are we. First, as
has been repeated, Gilbert's trial testimony incriminated himself
and his brother for multiple murders, kidnappings, and rapes, for
which they each received two life sentences in prison. The third
capital murder indictment remains outstanding. It seems highly
unlikely that Gilbert, having accepted such consequences as these,
would retain any incentive to fabricate his testimony about the
Second, that Gilbert's 1993 deposition was given under oath is
not dispositive. His trial testimony was also sworn. Given these
conflicting sworn statements, the district court did not clearly err
in finding the trial testimony more convincing. The Fifth Circuit
has often noted that "[r]ecanting affidavits and witnesses are
viewed with extreme suspicion by the courts." May v. Collins, 955
F.2d 299, 314 (5th Cir.), cert denied, 504 U.S.901, 112 S.Ct. 1925,
118 L.Ed.2d 533 (1992) (internal citations and quotations omitted).
Third, the differences between Gilbert's and Tony's trial
testimony only concern details of their involvement in the murders,
leading even Spence, in his appellate brief, to concede their
similarity in relating the basic course of events. Spence's hideous
cruelty permeates the testimony of each man in graphic and
startlingly parallel particulars, e.g. Spence's systematic torture
of Jill, the tag team rapes of both girls, Spence's insistence that
Kenneth watch as he raped Jill, and Spence's gleefully sitting
Kenneth's body upright at Speegleville Park.
From the discrepancies
in Gilbert's and Tony's testimony, one could more reasonably
conclude that there was no fabrication. If Simons or Feazell had
masterminded a conspiracy falsely to convict Spence, surely their
efforts would have been designed to harmonize the brothers' versions
of the murders as closely as possible. Fourth, as Gilbert's
testimony was corroborated by other evidence presented at Spence's
trial, the probability that the state knowingly presented false
testimony further diminishes.
b. David Puryear's Testimony
 Spence contends Puryear's trial testimony that Spence told
him to draw on a bandana a picture of a knife and two girls -- one
blonde like Raylene and one brunette like Jill -- was perjured. [footnote:
5. Spence's brief does not charge that Puryear lied in quoting
Spence's admission that he committed the Lake Waco murders.]
conclude the district court's factual finding that Puryear did not
commit perjury is not clearly erroneous. Spence bases his assertion
on an affidavit from Puryear's former brother-in-law, Steve Moore,
stating that Puryear told Moore he had lied at Spence's trial. [footnote:
6. Contrary to Spence's assumption, the district court did not make
a factual finding that Moore's account was the correct version of
events or that Puryear lied at Spence's trial.] Not only does this
affidavit relate inadmissible hearsay, but the record shows Puryear
wrote an unsolicited letter to prosecutor Ned Butler stating his
willingness to testify against Spence. Puryear's letter asserted he
was not seeking any "deal" for his testimony. Spence's argument that
Puryear committed perjury because he did not tell the Waco police
about the bandana when initially interviewed is also not dispositive.
The omission does not prove he lied at trial, but may only
demonstrate he was reluctant to "get involved" when first approached.
See Smith v. Black; 904 F.2d at 961.
3. Police Reports
Spence contends that the State violated Brady by not disclosing
Waco Police Department reports that might have implicated other
persons in the murders, and that the district court applied
erroneous standards in evaluating this argument. We reject these
a. Standard of Materiality
 Before considering materiality, we address the district
court's legal approach. The district court concluded that the
undisclosed evidence was not material because under Texas law it
would not have been admissible at trial. The Fifth Circuit has
expressly found otherwise in Sellers v. Estelle:
In addressing the issue of materiality, the Magistrate found
that [statements in police reports] would have been inadmissible,
hence these reports were immaterial. Such a conclusion is
unwarranted. First, by enabling the defense to examine these reports,
[the petitioner] may have been able to produce witnesses whose
testimony or written statements may have been admissible. Second,
the evidence here suppressed was material to the preparation of the
petitioner's defense, regardless of whether it intended to be
admitted into evidence or not. 651 F.2d 1074, 1077 n. 6 (5th
Cir.1981), cert. denied, 455 U.S. 927, 102 S.Ct. 1292, 71 L.Ed.2d
472 (1982) (citations omitted). Nonetheless, the court's error was
harmless, as will be seen.
Second, Spence contends the district court erred in interpreting
Brady's materiality standard as a result-oriented inquiry. The
Supreme Court recently clarified that Brady is not a sufficiency of
Bagley's touchstone of materiality is a "reasonable probability"
of a different result, and the adjective is important. The question
is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence. A "reasonable probability" of a
different result is accordingly shown when the Government's
evidentiary suppression "undermines confidence in the outcome of the
Kyles, --- U.S. at ---, 115 S.Ct. at 1566 (internal quotations and
citations omitted). Taken as a whole, the district court's opinion
did not narrow the Brady standard. The court's analysis begins, at
page 2, by quoting Bagley to require a petitioner "to show that the
suppressed evidence is material in that 'there is a reasonable
probability that had the evidence been disclosed to the defense, the
result of the proceeding would have been different' (emphasis added
and citation omitted)." We have no reason to believe the court
deviated from this standard simply because he repeated it in a
shortened version later in the opinion, doubtless, it seemed
needlessly repetitious to include the entire Brady materiality
formula in discussing each of Spence's claims.
Spence focuses on undisclosed police reports that implicated
Terry ("Tab") Harper as a suspect, and suggested that a drug deal
motivated Kenneth's murder. [footnote: 7. Spence also contends the
state violated Brady by not disclosing police reports containing
statements by persons in Koehne Park the night of the murder stating
that they did not see Spence or the Melendez brothers or hear any
screams. This evidence is not material because, at most, it would
have been cumulative of defense testimony at trial from several
people who had visited the park and neither noticed the defendants
nor heard screams.]
b. Reports on Terry "Tab" Harper
 Spence contends the State violated Brady by suppressing
Waco Police Department reports indicating Terry "Tab" Harper was a
suspect. We reject this claim; information in the police reports,
even if admissible evidence, does not undermine confidence in the
jury's verdict. While Spence's argument accepts as true all of the
reports that tried to link Harper to the murders, it ignores
contradictory reports. The investigating officers, whose depositions
are in the federal habeas record, unanimously concluded that the
murders were not drug-related, that they were not consistent with
Harper's prior criminal behavior, and/or that he had an alibi.
Harper was well-known as a bully, and the officers testified that
whenever a high-profile crime occurred locally, young people would
call the police station and associate Harper with the incident.
Harper was brought to the police station and questioned about the
Lake Waco murders but then released for lack of evidence. Spence
highlights reports made to the police by two witnesses to whom
Harper allegedly bragged about killing someone, but the reports
furnish no other "evidence" of Harper's involvement. In short, had
Spence been given these police records and presented his theory
regarding Harper at his trial, the State could have countered with
other facts exonerating Harper. Thus, nondisclosure of the Tab
Harper reports does not undermine confidence in the jury's verdict;
is not material.
c. Kenneth Franks's Alleged Drug Use
 Spence next argues the State violated Brady by failing
to disclose police reports suggesting that Kenneth Franks was in
debt over drugs and was a "known drug associate" of Harper. These
reports, inadmissible by themselves, are not material and would not
have supported a defense theory that the murders reflect a failed
drug deal. Spence's argument again ignores reports and evidence that
contradicted his drug deal theory.
The autopsy report indicated no
evidence of drugs in Kenneth's body, and the police could not find
any persons who would verify that Kenneth was a drug dealer or a
customer or supplier of Tab Harper. The police unanimously concluded
the murders were not drug-related, because of their viciousness and
the fact that the bodies were not hidden or disposed of. Spence's
assertions that Koehne Park was a location known for teenage drug
use and that Jill had cashed her paycheck before going to the park
hardly raise an inference that Kenneth was murdered because of drugs.
d. Cumulative Effects of Suppressed Information
[13,14] Kyles reminds us that the determination of the
materiality of withheld evidence must be made "collectively, not
item-by-item." Kyles --- U.S. at ---, 115 S.Ct. at 1567. So that no
misunderstanding arises, we have considered cumulatively the
significance of the withheld evidence -- Gilbert Melendez's benefits
for testifying, police reports on Tab Harper, reports on Kenneth
Franks's status as a drug user and on Koehne Park witnesses --
against the state's total case on Spence.
In stark distinction to
the result of such a comparison in Kyles, the defense does not
profit here. The strength of Tony Melendez's testimony is
unchallenged, while that of Gilbert is only somewhat weakened.
Spence's statements against penal interest to Rosenbaum and Puryear
remain unassailed, while the status of hotly contested bite injury
testimony is not changed. Without credible support, the Kenneth
Franks-as-drug-dealer scenario could easily have backfired on the
defense as a shoddy tactic to blacken the victim's reputation.
police set no store by the reports of Tab Harper's involvement after
they investigated it; there is no reason to suspect defense counsel
could have challenged their work based only on innuendo from the
police reports. The Koehne Park witnesses would have repeated
testimony that came out at Spence's trial through other visitors to
the park. Kyles presents a wholly different picture on the
cumulative effect of withheld testimony. As the court summed up the
withheld evidence there:
But confidence that the verdict would have been unaffected
cannot survive when suppressed evidence would have entitled a jury
to find that the eyewitnesses were not consistent in describing the
killer, that two out of the four eyewitnesses testifying were
unreliable, that the most damning physical evidence was subject to
suspicion, that the investigation that produced it was
insufficiently probing, and that the principal police witness was
insufficiently in-formed or candid.
--- U.S. at ---, 115 S.Ct. at 1575. The jury, the Court believed,
might legitimately have been led to wonder whether Kyles or his
erstwhile friend "Beanie," the voluntary police informant, was best
situated to have committed murder. In this case, the withheld "evidence"
is of a decidedly less significant cast, and, even if disclosed, it
would not have undermined Tony's testimony and other evidence
already recited. We do not believe that the cumulative effect on
Spence's defense of withheld information was reasonably likely to
have affected the jury verdict.
4. Odontological Evidence
Spence argues that the district court erred in not holding a
hearing on his challenge to the admission of testimony by the
State's forensic odontologist, Dr. Homer Campbell, and that it erred
in excluding Spence's expert reports challenging Dr. Campbell's
testimony. We reject these arguments.
 To receive an evidentiary hearing, a habeas corpus
petitioner must allege facts which, if proven, would entitle him to
relief. Lavernia v. Lynaugh, 845 F.2d 493, 501 (5th Cir.1988). "The
court need not blindly accept speculative and inconcrete claims as
the basis to order a hearing." Id. (internal quotations and
citations omitted). "Nor is a hearing required when the record is
complete or the petitioner raises only legal claims that can be
resolved without the taking of additional evidence." Id.
 Spence contends that, because he submitted materials
challenging Dr. Campbell's methodology and conclusions, the district
court should have held a hearing to determine whether the admission
of Dr. Campbell's testimony violated the Eight Amendment's
requirement of "heightened reliability" under Johnson v. Mississippi,
486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Johnson is,
however, inapplicable to the instant case. In Johnson, the Supreme
Court vacated the death sentence because the jury had been allowed
to consider evidence that was false. Id. at 585, 108 S.Ct. at 1986 (emphasis
added). [footnote: 8. Furthermore, in Johnson, the Supreme Court
specifically noted that the false evidence was "the sole piece of
documentary evidence of any relevance to [the State's] sentencing
decision." Id. at 585, 108 S.Ct. at 1986. In the instant case, much
other evidence demonstrated Spence's guilt.] In the instant case,
Spence does not raise a question over whether Dr. Campbell's
testimony is false, but rather over what weight the jury should have
accorded his testimony. Spence's argument that Dr. Campbell had
misidentified the remains of another woman likewise does not expose
his testimony against Spence as false.
Spence is simply trying to relitigate this aspect of his defense
eleven years too late. At trial, Spence introduced his own forensic
odontologist, Dr. Gerald Vale, a leading expert in the field. Dr.
Vale spiritedly criticized Dr. Campbell's methodology and
conclusions, although, critically, Dr. Vale admitted he could not
rule out Spence's teeth as the source of the bite marks. Because
this evidentiary issue was fully and competently aired in the state
courts, no violation of fundamental fairness under the due process
clause has been shown. Bailey v. Procunier, 744 F.2d 1166, 1168 (5th
 Alternatively, Spence argues that the federal district
court erred in excluding reports from five other expert
odontologists who concluded that Dr. Campbell's testimony was
unreliable. But because Spence filed these reports after the
district court's discovery deadline, without explanation for his
untimely filing, the district court did not abuse his discretion in
refusing to admit the reports.
5. Cumulative Error Doctrine
[18,19] Finally, we reject Spence's argument that he is entitled
to relief for the "cumulative errors" in his trial. The cumulative
error doctrine provides relief only when the constitutional errors
committed in the state trial court so "fatally infected the trial"
that they violated the trial's "fundamental fairness." Derden v.
McNeel, 978 F.2d 1453, 1457 (5th Cir.1992) (en banc), cert. denied,
--- U.S. ---, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993). "Few
defendants, however, will succeed in demonstrating on collateral
review that their prosecutions merited such condemnation.... We
therefore have defined the category of infractions that violate
'fundamental fairness' very narrowly." Id. (citations omitted). In
determining whether the cumulative error doctrine provides relief,
we must "review the record as a whole to determine whether the
errors more likely than not caused a suspect verdict." Id. at 1458.
 In the instant case, Spence cannot demonstrate he was
deprived of a fundamentally fair trial. First, the undisclosed
evidence undermining Gilbert Melendez's credibility is not material.
The jury would not have reasonably believed Gilbert falsely
incriminated himself in the murders, for which he accepted two life
sentences in prison. Second, Spence failed to establish his claims
that Gilbert's testimony was fabricated or that the state knowingly
presented false testimony of Puryear. Third, Spence failed to
establish that police reports mentioning other suspects could
reasonably undermine the jury's verdict. Fourth, the admission of
Dr. Campbell's testimony did not violate the Eighth Amendment or due
process. Fifth, the trial record reviewed as a whole does not
suggest the jury's verdict is suspect.
Therefore, we affirm the district court's judgment denying
Spence habeas corpus relief regarding his conviction and sentence
for Kenneth Franks's murder.
B. Spence's Claims Regarding Jill Montgomery's Murder
Because the evidence at this trial was different from that in
the later capital murder trial, a brief summary is necessary to
place Spence's claims in perspective. No eyewitness or codefendant
testimony was offered in the first prosecution; Gilbert and Antonio
[sic] Melendez had not yet pleaded guilty. Instead, the state built
its case around the theory of a failed murder-for-hire plot spawned
by Muneer Deeb, co-owner of a Waco convenience store, to avenge his
jealousy over 16-year-old Gayle Kelley. Evidence suggested that
Spence, Deeb's friend, was persuaded to attempt to kill Gayle so
that Deeb could cash in an accidental death insurance policy Deeb
had recently purchased on Gayle. Murder victim Kenneth Franks was in
fact a close friend of Gayle and an antagonist of Deeb; had Gayle
not unexpectedly been placed on restriction at the Methodist Home in
Waco, she testified, she almost certainly would have been at Lake
Waco with Kenneth on the fatal evening. Other testimony suggested
that Gayle resembled victim Jill Montgomery and that Spence, though
he knew of Gayle from Deeb, did not necessarily know her on sight.
As the defense rightly pointed out, no hair or fiber evidence
from the victims was ever tied to Spence or his automobile. The only
forensic evidence against him was the hotly disputed testimony of
the state's odontologist that Spence's teeth produced the bite
injuries on Jill and Raylene. Instead, the bulk of the state's case
rested on incriminating statements from Spence himself.
About 1:30 a.m. the night of the murders, Spence told two
acquaintances that he had been at the lake or that he had been with
Tony earlier that evening. After the murders, Spence appeared
depressed, was drinking heavily and obliquely confessed to his
friend Dorothy Miles that he cut someone and might have killed
someone. Witnesses who contributed to the murder-for-hire theory
included Karim Qasem, the co-owner of the convenience store with
Deeb, and Spence's co-worker Ray Payne and his wife. Spence and Deeb
argued loudly in front of Payne and Qasem about the murder of a girl
named Gayle later in the summer, 1992: Spence was accusing Deeb
because he incorrectly thought the victim was Gayle Kelly. Spence
told Regina Rosenbaum within a few weeks after the Lake Waco murders
that he and his friends had raped two girls out at Lake Waco.
Significant reinforcement of the state's case was provided by
seven men who were inmates with Spence, five of them in the McLennan
County jail from September 1982 to March 1983, and two others,
Snelson and Ivy, at TDC later. At trial, the inmate witnesses all
testified to highly incriminating statements of various sorts made
by Spence, and they all denied receiving any promises or inducements
Inmate David Puryear described the bandana Spence asked
him to decorate and said that Spence told him he had committed the
Lake Waco murders and enjoyed doing it. Spence's defense consisted
of an attack on the weaknesses of the murder-for-hire theory, eg.
the fact that the accidental life insurance policy would not pay
Deeb in the event of Gayle's murder, and the possibility that Spence
knew Gayle on sight and could not have accidentally killed Jill
instead. Spence's attorneys tried to minimize the incriminating
effect of statements to Dorothy Miles, Regina Rosenbaum and David
They vigorously cross-examined the inmate witnesses about
the likelihood of deals received from the prosecution. They showed,
for instance, that Jennings just happened to keep notes of his
conversations with David Spence -- and David Spence only -- on a
legal pad in his cell. They intimated that Sypho had received a more
lenient sentence than he ought to for being a four-time felony
convict. They suggested that Jordan had been let out of prison soon
after he gave a statement against Spence. And they used Puryear's
testimony about the bandana, among other things, to intimate that
Truman Simons was planting rumors in the McLennan County jail that
effectively acquainted many of the inmates with facts about the Lake
Waco murders and enabled them to concoct stories about Spence.
Finally, they pointed out the patent inconsistencies between the
testimony of Snelson and Ivy concerning their motive for talking
with Spence about the crimes. [footnote: 9. The defense attempted to
offer testimony that two other men, James Bishop and Ronnie Breiton
[sic], could have committed the murders. This attempt fell apart
because Breiten's accuser, his stepmother, testified outside the
presence of the jury one day and, recanting her earlier statements,
refused to testify at all the next day. The state trial court was
not persuaded that the defense had offered evidence sufficient to
connect Bishop or Breiten to each other, much less to the Lake Waco
Regarding his capital conviction for Jill Montgomery's murder,
Spence principally contends that (1) the State failed to disclose
that inmates testifying against him received special privileges in
exchange for this cooperation; (2) the State knowingly presented
false testimony from the inmates; (3) the State suppressed evidence
implicating other persons in the murders; and (4) the district court
failed to evaluate the cumulative effectof the above violations. He
also repeats the argument, dealt with above, that the federal
district court erred in not granting a hearing on the admission of
the State's forensic odontologist's testimony.
1. Inmate Witnesses
Spence contends that the State violated Brady by failing to
disclose that the inmate witnesses were given special privileges for
their testimony against him, and that the district court applied
erroneous standards in evaluating the materiality of this suppressed
 In its opinion in this case, more than in the companion
case, the district court seems to emphasize a result-oriented
approach to materiality under Brady. As we have noted, Kyles re-emphasized
that the proper question is whether there is a reasonable
probability that the suppressed evidence could have affected the
verdict. Kyles, --- U.S. at ---, 115 S.Ct. at 1566. To the extent
the district court erred in applying the standard, however, the
error is harmless. Spence also contends the district court erred by
conducting a "piecemeal" analysis of his Brady claims. While it is
true that Brady violations must be considered for their cumulative
effect on the jury verdict, Lindsey v. King, 769 F.2d 1034 (5th
Cir.1985) [sic]. Spence's piecemeal argument is erroneously premised
on his contention that all seven inmate witnesses received
undisclosed privileges for their testimonies. The district court
rejected Spence's claims concerning Puryear and Sypho, and Spence
omits to mention that he did not assert that James Jordan ever
received undisclosed benefits or privileges. The magnitude of
cumulative Brady error is much smaller than Spence would have us
 Spence alleges the State violated Brady by failing to
disclose that the inmates who testified against him were given
special privileges -- such as conjugal visits, the ability to keep
food, alcohol, and drugs in their jail cells, access to "free world"
food and cigarettes, recommendations of leniency, and assistance in
gaining admission into the Federal Witness Protection Plan -- in
exchange for their testimony. At trial, each of the seven inmate
witnesses denied having received any privileges for his testimony.
Six years later, two of these witnesses recanted their testimony,
claiming in affidavits or depositions that they and other inmates
received such benefits. The district court found that only David
Snelson and Jesse Ivy received undisclosed privileges. The court
specifically rejected claims that David Puryear and Charles Sypho
received undisclosed inducements to testify. [footnote: 10. Spence's
broad complaint that the district court could not make credibility
findings about the inmate witnesses because it conducted a "paper
hearing," is without merit. Through his counsel, Spence had agreed
the best way to develop the evidentiary record for the hearing was
through depositions and affidavits. He cannot now complain about
this method. We also note that "the concerns about the inadequacy of
'trial by affidavit' are even more diminished in the context of a
factual dispute rooted in witnesses' claims that they perjured
themselves at trial." May v. Collins, 955 F.2d at 314.]
[23,24] At the outset, we reiterate that "recanting affidavits
and witnesses are viewed with extreme suspicion by the courts." Id.
(citations omitted). "In the [Fifth] [C]ircuit, a federal district
judge, faced with a motion for a new trial predicated upon the
contention that a witness has provided a recanting affidavit, must
compare the trial record with the affidavit of recantation and
determine for himself whether the affidavit is worthy of belief."
Id. In the instant case, the trial record shows that both the
prosecution and Spence's counsel questioned each inmate and former
inmate extensively about any agreements with the State. [footnote:
11. By the time of trial, Jennings, Jordan and Beckham had all been
released from prison, while Puryear, Sypho, Ivy and Snelson were
still incarcerated.] Each witness claimed he had received nothing
for his testimony. That some of these witnesses -- Snelson, Ivy, and
some other inmates who did not testify, now claim that the
testifying inmates received privileges for their testimony does not
make it so. Further, the law enforcement officers' testimony about
special privileges is conflicting. Given the competing testimony, it
would be difficult to hold the district court's factual findings
The court's treatment of Charles Sypho is illuminating: Spence
alleged that, Sypho received conjugal visits with his wife in
exchange for his testimony against Spence. Spence bases this claim
on affidavits from other inmates. Sypho, though, testified at
Spence's trial that he did not receive any inducements to testify.
Thus, even if he enjoyed a few conjugal visits, the district court
did not clearly err in finding they were not the inducement of his
testimony. Given the competing sworn statements, we uphold the
district court's finding. The district court also did not clearly
err in rejecting Spence's claim that David Puryear received
undisclosed assistance with his case for his testimony.
is identical to the one made regarding Spence's trial for Kenneth
Franks's murder. It depends on the hearsay affidavit of Puryear's
former brother-in-law, which was contradicted by Puryear's
unsolicited letter to prosecutor Ned Butler volunteering to testify
and disclaiming any "deal" for his testimony against Spence.
While we are bound by the district court's findings that Snelson
and Ivy received privileges that were undisclosed at trial, we also
conclude this evidence is not material under Brady. Both Snelson and
Ivy were effectively cross-examined by the prosecution, although not
on the subjects of conjugal visits or their potential eligibility
for the federal witness protection program. But even if these
inducements, made known to the jury, had caused them [sic] to
discount the two inmates [sic] testimony, this would not have been
reasonably likely to affect the verdict.
 The impact of the undisclosed evidence in this case is
distinct from the evidence that was held to require a new trial in
Giglio v. U.S., supra. In Giglio, the evidence undermined the
credibility of the only witness tying the petitioner to the crime.
To the contrary, the prosecution for Jill's murder did not depend on
the credibility of one or two witnesses, such as Snelson and Ivy.
Besides his challenged admissions to the inmate witnesses, Spence
made general admissions of guilt to other people. He told his
neighbor, Dorothy Miles, that he "might have killed somebody" and
that he "cut somebody."
Miles testified that Spence appeared
"troubled" and "depressed" during July and August of 1982, the
period right after the murders were committed. Regina Ann Rosenbaum
testified that, in late July or early August of 1982, Spence
recounted to her how he and "some friends" had gone to Lake Waco,
come across some "chicks," tied them up, and raped them. Spence has
never attacked the testimony of former inmate James Jordan, to whom
he confided not only his guilt but also striking details of the
offense and the possible motive of jealousy. [footnote: 12. Spence's
statements to Ray Payne about the murder of "Gayle" and his loud
arguments with Deeb about that murder implied that he knew of
sinister plans or plans gone awry relating to Gayle Kelley. Qasem
heard Deeb and Spence frequently discuss whether Gayle Kelley ought
to be killed for insurance, but Qasem did not take these
conversations seriously. Puryear's testimony concerning the blonde
and brunette on the bandana circumstantially incriminated Spence.]
Second, the State presented evidence consistent with the inmate
witnesses', Miles's, and Rosenbaum's testimony. The State's
pathologist testified that Jill's and Raylene's bodies had numerous
stab wounds on the chest, shoulders, and breasts. She also testified
that the girls' bodies had internal bruises on the genital areas
consistent with rape. Additionally, the State presented forensic
odontological evidence demonstrating that the bite marks on the
girls' bodies were consistent with Spence's dental impressions.
Third, the State presented evidence tying Spence to the time and
location of the murders. Todd Childers testified that Spence told
him he had been at Lake Waco the night of the murders. Clifford
Oliver testified he remembered Spence saying he had "been with Tony"
the night of the murders. Given the voluminous amount of testimony
and evidence in the trial record, we cannot conclude that the
state's failure to disclose certain privileges granted to some of
the inmate witnesses was material.
2. Perjury Claims
Spence's brief is long on vituperation and innuendo but precious
short of facts supporting his contentions that the State violated
Napue v. Illinois, supra, by knowingly presenting false testimony
from all of the inmate witnesses that they had received no
inducements and by assisting all of the inmates in fabricating their
testimony. Spence also urges that the district court applied
incorrect materiality standards in evaluating his Napue claims.
Notwithstanding Spence's extremely one-sided characterization of
the depositions and affidavits before the federal habeas court, the
court did not accept his theory that Truman Simons orchestrated
false inmate testimony by seven witnesses against Spence. At best,
the court may have found that Snelson and Ivy, inmates who never
encountered Spence until he was sent to TDC, might have delivered
false testimony. The court's opinion moves on to the materiality
issue without expressly making findings that Snelson or Ivy perjured
themselves at trial or that the state knew of the perjury. As to
Puryear, the court finds only "inconsistencies", but no perjury or
knowing presentation of perjury by the state. In its rehearing
opinion, the court saw no need to modify these findings.
 The court did not clearly err in rejecting the broad claim
of mass-manufactured inmate testimony against Spence. There is no
support for it in any of the numerous law enforcement officers'
depositions, [footnote: 13. Some officers were generally critical of
Simons's investigative techniques and use of informant [sic].
Because of these troubling allegations, we have reviewed the record
carefully. These officers had limited involvement with Spence's case
in its critical stages. None have alleged that Simons "fed"
information to the inmate witnesses or aided them in fabricating
their testimonies.] including that of Jan Price because her
testimony, vehemently disputed by Simons in his deposition, does not
deal with this case. Spence also quotes selectively from depositions
of other officers who appear to criticize Truman Simons; those
quotations are not faithful to the overall context of their
statements. It should finally be pointed out that a conspiracy to
fabricate inmate testimony about incriminating statements made by
Spence could surely have first been identified and challenged at
trial rather than six years later in habeas proceedings.
But even if Snelson and Ivy testified falsely at trial, and even
if the district court incorrectly employed an outcome-determinative
approach to the materiality of their testimony, no constitutional
error occurred. Under the proper materiality standard, it is not
reasonably likely that Snelson's and Ivy's false testimony would
have affected the jury's judgment. Napue, 360 U.S. at 271, 79 S.Ct.
1178. This standard, concededly less onerous than the Brady
materiality standard, Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th
Cir.1993), is not met here. The quantity and quality of the evidence
against Spence, including his incriminating admissions to Rosenbaum,
Miles and the other inmates, and the circumstantial and forensic
odontology evidence, rendered Snelson's and Ivy's testimony
3. Police Reports on Other Suspects
As in the Kenneth Franks case, Spence contends that the State
violated Brady by failing to disclose Waco Police Department records
implicating other persons in the murders, and that the district
court applied an erroneous standard in evaluating this contention.
We need not repeat the previous discussion concerning nondisclosure
of reports about Tab Harper and Kenneth Franks's alleged drug
dealing. Those claims are also invalid here.
[27,28] New to this case is Spence's contention that the State
violated Brady by suppressing police reports implicating James
Russell Bishop and Ronnie Lee Breiten in the murders. Specifically,
the State does admit it did not disclose a police report that one
person stated he had seen a man resembling Bishop threatening
Kenneth over drug debts and a report suggesting Bishop and Breiten
were acquainted. However, we reject Spence's Brady contention; we do
not find the information in the reports exculpatory or material.
[footnote: 14. We agree that the district court erred in concluding
the undisclosed police reports were not material because they would
not have been admissible at Spence's trial. The Fifth Circuit has
held that inadmissible evidence may be material under Brady. Sellers
v. Estelle, 651 F.2d at 1077 n. 6. However, we also conclude this
error was harmless.]
First, Spence's materiality
argument is premised on his theory that Kenneth was murdered over
drugs. We have already rejected this assertion. Second, the State's
forensic odontological evidence eliminated Bishop as a suspect in
the murders. The State made dental impressions of Bishop's teeth,
compared the impressions to the bite marks on the Jill's and
Raylene's bodies, and concluded the two were not consistent. This
inconsistent odontological evidence rules out Bishop as a suspect.
As the Texas Court of Criminal Appeals explained,
[t]here is, however, unanimous agreement in the field of scientific
odontology that if even one point of dissimilarity is found between
the suspect's dentition and the bite mark, it may be said with
certainty that the suspect did not make the bite mark. Thus, that
suspect may be eliminated.
Spence v. State, 795
S.W.2d 743, 751 (Tex.Crim.App.1990) (en banc) (citations omitted),
cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991).
Third, the undisclosed police report indicating Breiten and Bishop
may have been acquainted cannot be material. The report documents
that, two days prior to the murder, Bishop cashed his paycheck at a
store where Breiten's wife worked. This fact is too tenuous to
undermine confidence in Spence's conviction. Further, Spence's
materiality argument regarding this report is premised on his
assumption that Breiten conspired with Bishop to commit the murders.
The odontological evidence eliminated Bishop as a suspect, and as
such, undermines Breiten as a co-conspirator. Because these reports
were not exculpatory of Spence, no Brady violation occurred from
4. Cumulative Effect of
the Undisclosed Information
 So that no
misunderstanding arises, we have considered cumulatively the
significance of the undisclosed evidence -- the special privileges
given to Snelson and Ivy, and the police reports on Tab Harper,
James Russell Bishop, Ronnie Lee Breiten, and Kenneth's alleged
status as a drug user -- against the State's total case against
Spence. Unlike in Kyles, supra, this evidence was not the basis for
the State's case and, taken cumulatively, does not undermine our
confidence in the jury's verdict. The State's case was based on
incriminating statements Spence made to Miles, Rosenbaum, Childers,
and Oliver. This testimony was reinforced with testimony from the
inmate witnesses who, other than Snelson and Ivy, have not recanted
their testimonies. The State also presented witnesses supporting its
murder-for-hire theory. Spence has not attacked any of these
witnesses. Additionally, the State presented the odontology
Thus, while the undisclosed evidence
regarding Ivy and Snelson may have weakened their testimonies,
Spence cannot undermine the testimonies of all the other witnesses.
The undisclosed police reports similarly would not have weakened the
State's case. As discussed regarding Kenneth's murder, the police
did not find credible the reports on Harper, and there is no reason
to believe Spence could have challenged their work based on the
reports. There is similarly no credible support for Spence's theory
that Kenneth and Jill were murdered because Kenneth was a drug
dealer. Further, the odontological evidence ruled out Bishop as a
suspect, and thus the police report about him would not have
affected the jury's verdict. Finally, the police report suggesting
Breiten may have been acquainted with Bishop hardly support's
Spence's theory that Breiten and Bishop conspired to commit the
5. Odontological Evidence
Spence contends that the district court erred in not holding a
hearing on his challenge to the admission of testimony by the
State's forensic odontologist, Dr. Campbell, and that it erred in
excluding Spence's expert reports challenging Dr. Campbell's
testimony. This contention is identical to the one raised regarding
Kenneth's murder. We have already rejected it.
6. Cumulative Error Doctrine
we reject Spence's contention that the district court erred in not
evaluating the cumulative effect of his above four allegations.
Taking his arguments as a whole, he was not deprived of a
fundamentally fair trial. The undisclosed evidence undermining
Snelson's and Ivy's credibility is not material. Spence cannot
establish his Napue claims or his Brady claims regarding the police
reports. We also concluded that the State's admission of Dr.
Campbell's testimony did not violate the Eighth Amendment.
Therefore, we affirm the district court's judgment denying Spence's
habeas corpus petition regarding Jill Montgomery's murder.
For the foregoing reasons,
we AFFIRM the district court's judgments.