Court of Criminal Appeals Grants Habeas Relief to Kerry Max Cook on Actual-Innocence Claim in 1977 Smith County Murder

The decision

On June 19, 2024, the Court of Criminal Appeals of Texas granted habeas corpus relief to Kerry Max Cook on his claim that he is actually innocent of the June 1977 murder of a woman in her Tyler apartment. The conviction at issue was entered in 1999, when Cook pleaded no contest to murder on the eve of a fourth trial and received a twenty-year sentence with credit for time served. The court held that newly discovered DNA evidence, together with evidence of false testimony and State misconduct, “amount to affirmative evidence that unquestionably establishes [Cook’s] innocence,” and that “no rational jury would convict [Cook] in light of the new evidence.”

The opinion by Judge Richardson was joined by five judges. Presiding Judge Keller concurred in the judgment only, Judge Keel concurred without opinion, and Judge Yeary filed a dissenting opinion. The habeas court had recommended granting relief on Cook’s false-testimony claim but denying his actual-innocence claim.

Background

According to the opinion, the victim’s roommate discovered her body on the morning of June 10, 1977. The roommate had returned home between 12:30 and 12:45 a.m., glimpsed a male figure in the victim’s bedroom for seconds, said “Don’t worry, it’s only me,” and gone to bed, assuming the man was the victim’s boyfriend—her married former supervisor at a Tyler university, with whom the opinion says she had a long-term affair. In a sworn statement that day, the roommate described a tanned, slender man in white shorts with “silver hair cut in a medium touching the ear fashion that men wear.” Fingerprints matching Cook were found on the exterior of the patio sliding door, positioned so that investigators concluded they were made from inside the apartment.

Cook was convicted of capital murder and sentenced to death in 1978. The State’s case included the roommate’s identification of Cook; testimony by Sgt. Doug Collard of the Tyler Police Department that the prints were 6–12 hours old; and a jailhouse witness, Edward Jackson, who testified that Cook confessed and denied having any deal with prosecutors. The court affirmed in 1987 but reversed in 1991 after the United States Supreme Court vacated its judgment.

In 1991 and 1992, the opinion states, the State disclosed for the first time exculpatory material withheld for more than thirteen years, including a plea deal that reduced Jackson’s murder charge to manslaughter with a two-year sentence, grand jury testimony that Cook had visited the victim’s apartment days before the murder, prior inconsistent statements by a witness who had been with Cook that night, and a written statement by Collard that his opinion on the prints’ age was one for which “no proof or testing exists, it cannot be supported.” Jackson testified at a 1992 pretrial hearing that he had lied at the first trial “to save [himself].” A second trial in 1992 ended in a mistrial after the jury deadlocked. Cook was convicted and sentenced to death again in 1994, and the court reversed in 1996 on due-process grounds.

In April 1999, DNA testing excluded Cook as the source of semen on the victim’s underwear; the profile was consistent with the former supervisor. A hair with a bloody root recovered from the victim’s body, which a 1977 analyst had found did not match Cook or the victim, was destroyed by the State before the DNA testing Cook requested could be performed. In April 2016, under a grant of immunity, the former supervisor admitted having sex with the victim less than two days before her death—contradicting his testimony at two trials and in depositions—and acknowledged knowing of a book, The Sexual Criminal, in the university library.

Cook filed the present Article 11.07 application in September 2015, raising five grounds. The parties stipulated that Cook was entitled to relief on his claim that the former supervisor’s false testimony violated due process; the State opposed actual innocence in the stipulation and later stated it was silent on the issue. In August 2016, the habeas court concluded that the new evidence did not affirmatively prove innocence and that “a reasonable juror could, based on all evidence now before the court, rationally find the defendant guilty.”

The court’s reasoning

The standard

The court stated that “[e]stablishing a bare claim of actual innocence is a Herculean task.” Quoting Ex parte Brown, it said relief requires proof “by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence.”

Weaknesses in the State’s case

The court found the State’s timeline “practically impossible.” Taking the State’s witnesses together, it calculated that Cook, dropped off at the far side of the complex around 12:30 a.m., had “a maximum of roughly 12 minutes (and probably much shorter than that)” to enter the apartment and inflict wounds that the State’s own experts described as prolonged and physically demanding.

On identification, the court noted the roommate’s limited line of sight, her initial statement that she saw no facial features, and her failure to identify Cook at two pretrial hearings and before the grand jury—testifying at one hearing, “I will not swear under oath who it was.” Her identification emerged after she saw Cook in a courthouse elevator during a break in that hearing; before the second trial, an assistant district attorney and a detective showed her two photographs, one of them of Cook.

The court found the fingerprints showed only that Cook was in the apartment at some time; none appeared in the bedroom or on the weapons, none contained blood particulates, and withheld grand jury testimony that Cook had visited the apartment days earlier offered an innocent explanation.

The court concluded that the State’s classification of the crime as a “disorganized” lust murder and its criminal profile did not fit Cook and were undermined by a 2016 affidavit from FBI Supervisory Special Agent Gregg McCrary. It found the alleged confession reported by reserve deputy Bob Wickham thirteen years after the fact to be uncorroborated and inconsistent.

Finally, the court found the DNA results connected the former supervisor to the bedroom, proved he had lied under oath, and, together with his knowledge of The Sexual Criminal, directed suspicion toward him.

Misconduct and conclusion

The court wrote that “no rational juror can trust a prosecuting party proven to have engaged in repeated deception,” and that where the State “relies on numerous misrepresentations to contrive a conviction,” that weighs in favor of actual innocence. It stated in a footnote that it did “not hold the current prosecutors for the State in any way responsible for the past events in this case.” Relying on Ex parte Miles, Ex parte Chaney and Ex parte Mayhugh, the court concluded: “Putting all the evidence together, the State fails to show anything more than Cook just being in the wrong place at the wrong time to his extreme misfortune.”

Claims not decided

“Because we grant relief on his claim of actual innocence, we need not address his remaining due process claims.” The court thus did not adjudicate the false-testimony claim on which the parties had agreed, or the claims concerning withheld DNA information and the destroyed hair.

Separate opinions

Presiding Judge Keller wrote that the habeas court’s recommendation of a new trial “is supported by the record” and that she would grant a new trial on that basis, but she disagreed that Cook had shown actual innocence under Ex parte Elizondo. She wrote: “Applicant has failed to satisfy this standard because four items of evidence, at least when they are combined, would allow a reasonable juror to find him guilty.” She identified Wickham’s unrecanted testimony about an admission, the roommate’s unrecanted identification, fingerprints indicating Cook was inside the apartment, and Cook’s statements to several people denying he knew the victim. Because, in her view, “the only judicial remedy for actual innocence is the granting of a new trial,” she styled her opinion as a concurrence: “Consequently, I concur only in the Court’s judgment granting a new trial.”

Status

The court held that Cook “has met the burden required for actual innocence and relief is hereby granted.” The majority opinion describes the relief as setting aside Cook’s conviction; Presiding Judge Keller’s concurrence characterizes the judgment as granting a new trial. The decision was widely reported by outlets including The Texas Tribune, The Dallas Morning News, Texas Monthly and CNN.