New trial denied despite impugned evidence

The state’s highest criminal court this week split over whether a ballistics expert’s testimony was material to a 1992 Harris County death penalty verdict resulting from a fatal drug rip-off.

It was the second unusual death penalty decision in a week that saw the execution of serial killer Anthony Shore postponed just hours before it was scheduled to happen. Area district attorneys agreed Wednesday to stay Shore’s death sentence to investigate possible claims he was involved in another capital crime.

Also on Wednesday, the Texas Court of Criminal Appeals handed down a ruling denying 47-year-old Arthur Brown a new trial or new sentencing phase because a Houston police analyst overstated the proof that two guns connected to Brown were involved in the shooting of six people during a drug deal 25 years ago.

The high court, with a single judge dissenting, said the analyst’s possibly inaccurate testimony was not material to the jury’s decision.

Appeals Judge Elsa Alcala authored the dissent, writing that she agreed with former Harris County District Judge Mark Kent Ellis, who ruled that the firearms evidence introduced at Brown’s trial was false or misleading.

“I agree with the (trial) court’s determination that this evidence was not only false or misleading but also material,” she said. Alcala wrote that she would support a new trial, a new punishment phase or even a new hearing to further flesh out the issue.

The 1993 death penalty verdict came back to Harris County last year because of a recent law allowing inmates to take advantage of scientific breakthroughs that were not available during their original trials.

4 killed, others wounded

During a hearing in front of Ellis last year, attorneys for Brown argued that two guns that had been linked to him were not used to kill four people and injure two others during a large-scale cocaine deal.

Brown was convicted of running drugs from Houston to Alabama with two other men. The trio allegedly decided to cut out the middlemen and went into a southwest Houston cocaine deal with the intent to kill.

Court records show that Brown, along with Marion Dudley and Tony Dunson, arranged to buy 3 kilograms of cocaine from Rachel Tovar and her estranged husband, Jose Tovar.

When the three went to Tovar’s home in the 4600 block of Brownstone for the deal, they tied up the couple and four other people — friends and neighbors who were in the house coincidentally. All six were shot in the head. Four people were killed: Tovar’s husband Jose; 19-year-old Jessica Quinones, who was seven months pregnant; Audrey Brown, 21; and 17-year-old Frank Farias. Rachel Tovar survived along with family friend Nicholas Cortez.

Cortez said Dudley shot him and Jose Tovar with a .357-caliber Magnum handgun, according to court records. Dudley was sentenced to death and has been executed. Dunson was convicted and sentenced to life in prison.

Prosecutors alleged Brown used a .38-caliber revolver to shoot Farias, Quinones and Audrey Brown, who was no relation to Arthur Brown.

Prosecutors relied heavily on testimony from Brown’s sister who said he admitted to her that he killed six people. She later said that testimony was coerced after hours of being interrogated. Brown’s latest appeal centers on whether bullets at the scene actually match guns recovered during investigations of Alabama drug dealers known to associate with Brown.

Dissenting opinion

The majority of the Court of Criminal Appeals ruled that the HPD ballistics expert believed his analysis, which was verified by another police expert, that the bullets matched the recovered pistols. And, the court said, even if the HPD expert was wrong, there was enough other evidence to convict Brown and sentence him to death.

At hearings last year, independent fire arms experts hired by Brown’s legal team disputed the HPD analyst testimony, countering that testing of the bullets fired during the crime were inconclusive.

Alcala argued that the testimony was inaccurate and bolstered weak and questionable evidence. If jurors had known that the ballistics results that painted Brown as the shooter were questionable, she said, it may have affected the verdict.