Prible v. Lumpkin

• Decision Date: 08 August 2022
• Docket Number: 20-70010
• Citation: 43 F.4th 501
• Parties: Ronald Jeffrey PRIBLE, Petitioner—Appellee, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

43 F.4th 501

Ronald Jeffrey PRIBLE, Petitioner—Appellee,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellant.

No. 20-70010

United States Court of Appeals, Fifth Circuit.

FILED August 8, 2022

James Gregory Rytting, Philip Harlan Hilder, Hilder & Associates, P.C., Houston, TX, Gretchen Neusel Scardino, Attorney, Scardino, L.L.P., Austin, TX, for Petitioner-Appellee.

Ari Cuenin, Judd Edward Stone, II, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Jefferson David Clendenin, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellant.

Before Dennis, Elrod, and Duncan, Circuit Judges.^*

Stuart Kyle Duncan, Circuit Judge:

Early in the morning of April 24, 1999, Esteban "Steve" Herrera and Nilda Tirado were shot to death in their Texas home. The killer doused Tirado's partially nude body with accelerants and set her on fire. Fumes from their mother's burning corpse asphyxiated the couple's three young daughters, who were sleeping upstairs. The prime suspect was Ronald Jeffrey Prible, who was later indicted for capital murder.

A state jury heard evidence connecting Prible to the killings. Prible had been involved with Herrera in robbery and drug dealing. Prible was drinking and shooting pool in Herrera's garage on the night of the murders. Prible's semen was found in Tirado's mouth. And while in prison Prible confessed to the murders to Michael Beckcom, a murderer and repeat jailhouse snitch who admitted he was angling for a lower sentence in another case.

The jury convicted Prible and sentenced him to death. After a decade of federal proceedings, including extensive discovery and an evidentiary hearing, the district court issued Prible a writ of habeas corpus and granted him a new trial. We reverse.

I. BACKGROUND

A. Murders and Investigation

In spring 1999, Prible and Herrera wanted to open a bar. To raise capital, Prible robbed banks and gave the proceeds to Herrera, who bought and sold drugs. Prible robbed six banks of about $46,000.

On the night of April 23, 1999, Herrera, his brother-in-law Victor Martinez, and Prible drank beer and shot pool in Herrera's garage. They went to a club and returned to Herrera's shortly after 2:00 a.m. They talked in the driveway as Herrera and Prible smoked marijuana. Sometime before 3:30 a.m., Martinez left, and Herrera and Prible returned to the garage to play pool.

Around 6:30 a.m., neighbors saw smoke pouring from Herrera's house and garage. They kicked open a door to the garage, found Herrera dead, face-down in a pool of blood, and called 9-1-1. First responders found Tirado dead, face-down on the couch in the den wearing only a t-shirt with blood around her head. Her corpse was so burnt "it was hard to tell who she was." First responders also found the couple's three young daughters dead upstairs.

Prible immediately became a suspect. That day, police visited his parents' house, which was less than a mile away, and asked to speak with him. Prible accompanied police to the precinct, where he gave a DNA sample and two written statements. He first explained that he and Herrera played pool after Martinez left until about 4:00 a.m. when Tirado "came out into the garage and gave a look at [Herrera]." Prible "knew it was time to leave," so Herrera drove him to his parents' house, where he went directly to bed and slept until 1:30 p.m. But when asked, "[w]hat if some of your semen is in or on Nilda[?]," Prible changed his story. In his second statement, Prible said he and Tirado had sex and she performed oral sex on him in the bathroom while Herrera was outside. He said they had previously "mess[ed] around" and kissed a few times, but this was the first time they had sex. He did not initially tell the "entire story" to spare Tirado's reputation.

The ensuing investigation revealed no signs of forced entry. Herrera and Tirado were each executed with a close-range nine-millimeter gunshot to the back of the neck—which the medical examiner described as "assassin wound[s]." The bullets were fired from the same gun. The children died from soot and carbon monoxide inhalation.

Arson investigators determined a flashfire had been lit with accelerants in the den. They found next to Tirado's body a plastic gasoline container, a roll of paper towels soaked in an accelerant, an aerosol can, and a gallon-size metal can of Kutzit, an extremely flammable tile-glue solvent. They found more Kutzit cans in the garage and a storage shed behind the house. Tirado's burns indicated accelerants were poured on her and ignited after she was shot.

A consensual search of Prible's residence revealed guns, ammunition, a semi-automatic pistol magazine that did not fit any of the guns, and a pay stub for nine-millimeter ammunition. The magazine "could have" fit the murder weapon, and the pay-stub ammunition was consistent with the ammunition used to kill Herrera and Tirado.

Investigators examined the scene for "trace evidence," including blood, hair, and fingerprints. An arson investigator opined that the perpetrator could have traces of soot, smoke, or accelerants on his clothes, shoes, or skin. No such evidence linked Prible to the crime, however. And Prible had an alibi: a twelve-year-old next-door neighbor said she observed Prible and Herrera that night talking in Prible's driveway sometime after 1:00 a.m.

A swab of Tirado's mouth revealed sperm cells, the DNA of which matched Prible's. But Tirado's closest friends dismissed the notion of an affair. They claimed Tirado had recently told them that Prible "gave her the creeps," "[s]he didn't like him," and "she was tired of him being [at her home]."

B. State Trial Proceedings

1. The State's case

A month after the murders, Prible pled guilty to bank robbery in federal court. He was sentenced to 63 months' imprisonment and sent to the Federal Correctional Complex in Beaumont, Texas. In May 2001, the court reduced his sentence to 36 months, setting his release for May 2002.

The State of Texas charged Prible with capital murder in July 2001. A Harris County grand jury indicted him in August 2001. Assistant District Attorneys Kelly Siegler and Vic Wisner tried the case a year later.

The State presented evidence at trial that: (1) Prible was the last person seen with Herrera at the house before the murders; (2) Prible and Herrera's struggling business venture supplied a motive; (3) the bullets that killed Herrera and Tirado were fired from the same gun; (4) Prible's semen was deposited in Tirado's mouth shortly before her death; (5) a fire was set to destroy physical evidence, including Prible's DNA; and (6) Prible admitted to fellow inmate Michael Beckcom that he committed the murders. Prible v. State , 175 S.W.3d 724, 730 (Tex. Crim. App. 2005). Prible's claims in this habeas action center around Beckcom's testimony and the semen-DNA evidence. We describe that testimony and evidence in detail below.

2. Beckcom's testimony

At trial, Beckcom testified to his lengthy criminal history, including his murder of a federal witness. He explained that he had testified in several cases for sentence reductions and was testifying against Prible in exchange for Siegler's writing a letter to his prosecutor in California. He had been placed in protective custody once word spread that he was testifying against Prible.

Beckcom described the nature of his relationship with the prosecution as an informant. He learned of Siegler through his cellmate, Nathan Foreman, and first contacted her about Prible's case in October 2001. Beckcom understood from their conversation that "the only way for [Siegler] to be interested" was if he knew "[s]pecifics about the case, facts." So Beckcom "sought to find out as much as [he] could." After Prible confessed to him, Beckcom and Siegler met for about an hour in early December 2001. He gave her a letter with the information he had. They spoke "[t]wo or three times" thereafter about Siegler's recommending a sentence reduction.

Beckcom testified that he and Foreman met Prible through a shared acquaintance and the three eventually became close friends. They engaged in "general conversation" before Prible asked about Beckcom's murder case. Prible slowly began to offer details of his own case "in bits and pieces of conversations." Prible mentioned police found his DNA on Tirado but "[e]verybody knew they were messing around." When Beckcom asked about the murder weapon, Prible replied, "asphalt's good some times for hiding things." Prible emphasized his service in the Marine Corps and implied he would murder for hire. As they grew closer, Beckcom asked more direct questions. Prible "softened up a little bit" and shared more details after Beckcom said he did not care if Prible committed the murders.

Prible confessed to Beckcom and Foreman on November 24, 2001. He described how during an argument he shot Herrera, Tirado ran into the den to call the police, Prible followed and shot her too, and then he set a fire "to cover his tracks." Prible explained, "[Herrera] took $250,000 of my hard-earned money" and "was going to kill me, so I handled my business." Prible looked in the house for the drug money, "but it wasn't there." When asked how he got in and out without being seen, Prible said "his parents lived a couple miles from there so it wasn't far." Referring to his military service, he added, "it was a high intensive, low drag maneuver. That's what I was trained for, in and out. I'm a ghost." Prible continued, "Anybody that can go in a house and take out a whole family and get out without being seen is a bad mother fucker and I'm that mother fucker." To corroborate Beckcom's relationship with Prible, the State introduced a photograph of Prible, Beckcom, and Foreman in the Beaumont visiting room the day Prible confessed.

The defense cross-examined Beckcom about his criminal record and history as an...