The following is an excerpt from the court documents of the United States Court of Appeals, Fifth Circuit.
Cobb and Beunka Adams committed two armed robberies in August 2002. On the night of September 2, 2002, they committed a third. Armed with a shotgun, and wearing masks and gloves, they entered a convenience store known as BDJ's. Nikki Ansley (Dement)1 and Candace Driver were working as clerks that night. Also present in the store was a frequent customer, Kenneth Vandever. Ansley and Driver were made to stand together behind the cash register. Cobb and Adams demanded money. Driver opened the cash register drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all of the money. Vandever, the customer, began to walk out the front door, but was ordered to join Ansley and Driver behind the register.
Cobb and Adams then decided to take Ansley, Driver, and Vandever as hostages. Driver was ordered to surrender the keys to her Cadillac, which was parked outside, and the three hostages were forced into the vehicle. Adams drove to a remote, open pasture known as the “pea patch.” Everyone got out of the car, and Adams forced Driver and Vandever into the trunk while Cobb held the gun. Adams took Ansley into a wooded area and raped her. Cobb and Adams then told the three hostages that they could wait for a little while, and then leave, but soon Cobb and Adams changed their minds. After debating what to do, Cobb and Adams tied up the women hostages with their shirts and forced them to kneel by the vehicle. They began to walk away with Vandever, intending to allow him to come back later to untie Ansley and Driver. Soon they returned, however, and forced Vandever to sit by the other two victims.
After Vandever began to protest, Cobb shot him. Vandever fell forward, screaming that he had been shot. Either Cobb or Adams then shot Ansley and Driver.2 Ansley and Driver both fell forward as well, and pretended to be dead. Adams started kicking Ansley, and Cobb joined in. Cobb lifted Ansley up by her ponytail, and he and Adams put their lighters up to her face. After satisfying themselves that the three victims were dead, Adams and Cobb left the scene and went to the residence of Adams's cousin.
Vandever died, but Ansley and Driver survived. After regaining consciousness, they managed to get to safety. Ansley sustained a shotgun wound to her left shoulder, numerous broken ribs, and a collapsed lung, which required her to spend almost two weeks in the hospital. After undergoing emergency surgery, she identified Cobb and Adams from a photo lineup. Driver, who suffered a gunshot wound to her lower lip, was able to identify Adams, but not Cobb, from a photo lineup while in the hospital. Adams's cousin contacted the police and disclosed Cobb's and Adams's whereabouts. They were arrested at Adams's cousin's home on September 3, the day after Vandever's murder. Adams surrendered, but Cobb resisted arrest and had to be subdued. Under questioning, Cobb confessed to shooting Vandever and to participating in the robbery and kidnaping.
On September 23, 2002, Cobb was indicted for capital murder under Tex. Penal Code § 19.03(a)(2) (murder in the course of committing, inter alia, kidnaping and robbery). His trial began on January 5, 2004. On January 23, 2004, he was sentenced to death.
During the guilt-determination phase of the trial, Cobb admitted to participating in the robbery and kidnaping and to shooting Vandever. He testified, however, that Adams pressured him into committing the murder, threatening to kill Cobb if he refused to take part in killing the three hostages. The state cast doubt on this portion of Cobb's testimony by getting him to admit on cross-examination that he did not mention any coercion by Adams when he first confessed to the authorities. Moreover, the other surviving witnesses did not corroborate Cobb's testimony that Adams threatened him.
The state also rebutted Cobb's duress defense by calling William Elmer Thomsen to testify. Thomsen was incarcerated with Cobb at the Cherokee County Jail. Thomsen testified that, during several jailhouse conversations he had with Cobb at this time, Cobb extensively discussed Vandever's murder as well as the robberies that he and Adams committed. Thomsen testified that Cobb “thought armed robberies were the way to go. It's fast, quick, easy money.” According to Thomsen's testimony, Cobb also told him that he and Adams had plans to rob a Whataburger in the near future, had they not been caught and arrested. Thomsen also testified that Cobb confided in him that he planned at his trial to blame the murder on Adams by testifying that Adams had threatened to kill him if he did not take part in shooting the hostages.
On cross-examination, the defense asked Thomsen whether he had received a deal from the state in exchange for his testimony. Thomsen avowed that he had not. He testified that when he contacted the district attorney to offer his testimony against Cobb, the charge he was facing for being a felon in possession of a firearm had already been dismissed.3 Thomsen was still in jail, however, for violating the terms of his probation for a prior offense. Although Thomsen insisted that he did not receive any benefit from the state for his testimony, he did concede that the district attorney's office contacted his parole officer on his behalf.
After the jury convicted Cobb of capital murder, the sentencing phase of Cobb's trial began. Salient here are two special issues that the jury was required to answer. First, the jury had to determine whether it was probable that Cobb would commit future criminal acts of violence that would constitute a continuing threat to society. If the jury answered this question in the affirmative, it had to determine whether mitigating circ*mstances made a sentence of life imprisonment without parole more appropriate than a death sentence. Tex.Code Crim. Pro. art. 37.071.
The district court summarized the evidence presented to the jury at the sentencing phase as follows:
The prosecution put on evidence of Cobb's other criminal conduct prior to the capital murder, including the testimony of the victims of the two previous armed robberies. They also presented testimony from several law enforcement officials who testified that Cobb had a bad reputation as far as obeying the law. They presented additional testimony from Ansley about the severity of her physical and emotional injuries. They presented testimony about the possibility of escape from prison, and they presented the testimony of Dr. Tynus McNeel, a psychologist who opined that Cobb fit the profile of a sociopath, a person who did not care about the welfare of other people and whose condition would be incurable. They also offered the testimony of Cobb's juvenile probation officer, who testified that Cobb assaulted one of his boot camp supervisors, that he was not afraid of people in authority, that his mother had difficulty controlling him, and that his reputation as a law abiding citizen was bad.
The prosecution also recalled Thomsen. This time, he testified that Cobb told him that when he learned that the two girls survived he was mad, because if they had died he probably wouldn't be in jail. He further testified that Cobb never expressed any remorse, which is why Thomsen was in court testifying. Thomsen stated that Cobb said that he got almost like a rush when he shot Vandever. This testimony caused Cobb to stand up and say “You lying son of a b****, I never said no such thing,” whereupon the trial judge excused the jury and warned Cobb, “If you expect to remain in this courtroom for the remainder of this trial you will stay in your seat and keep your mouth shut.” After the jury returned, Thomsen testified that Cobb told him that if he were put in the same situation, he would do it again. Asked if Cobb ever said whose shotgun he used, Thompsen [sic ] answered that Cobb said it was his, then added that Cobb “traded some gram of powder cocaine to some guy here in Rusk for it.” Thomsen also testified that Cobb discussed escaping from jail “Numerous times. He said if he ever had the chance and could figure out how to do it he would.” The defense did not cross-examine Thomsen.
The defense offered first the testimony of Cobb's adoptive mother, Edna Bell, who explained that Cobb and two of his brothers had been placed in foster care because their mother was unable to care for them, and that she decided to adopt all three of them. Bell described all three boys as having serious emotional problems from the beginning of her caring for them. She testified that she once visited the boys' mother's house and found it in horrific condition, with roach infestation. Several witnesses testified that Cobb's biological mother had alcohol and drug addiction issues and that as a result, her children suffered from abuse and extreme neglect. Bell testified that she loved and cared for the boys, and obtained psychological treatment for them, but they all had acute problems growing up. Bell testified that on one occasion Cobb protected her from a physical assault by one of his brothers.
Cobb testified that he started using drugs at age twelve. He also testified that the reason he changed from doing burglaries to doing armed robberies was because he was in debt to a drug dealer and needed money quickly, and Adams suggested that armed robberies were an easier and better way to make money.
The defense also offered expert testimony that Cobb suffered some brain damage from his mother's alcohol and drug use while she was pregnant with him.
Cobb v. Thaler, No. 2:08–CV–123, 2011 WL 672333, at *5–6 (E.D. Tex. Feb. 15, 2011) (citations omitted).
On the morning before closing arguments, the state discovered that it had not provided the defense with a letter written by the district attorney to Thomsen's parole officer. The district attorney's staff found the letter in the file of Cobb's co-defendant, Adams. The state then provided a copy of the letter to the defense. Dated January 10, 2003, the letter states:
TO WHOM IT MAY CONCERN:
Re: Wiliam Thomsen
Please be advised that this office will not seek prosecution of the above individual for the offense of Unlawful Possession of Firearm by Felon.
If anything further is needed please contact this office.
Sincerely,
Elmer C. Beckworth, Jr.
Although it received this letter the day before closing arguments, the defense chose not to move to reopen the case to introduce the letter into evidence. In its closing, the defense argued:
The other person who testified was Mr. Thomsen. He had a lists [sic ] of felonies. You remember all the stuff that he testified—that he testified to. He got a deal. Some reason of [sic ] another, you know, miraculously, convicted felon with several actual convictions, person having been in TDCJ. Who knows what kind of enhancements could have been derived from that? Miraculously decide not to show up at the examining trial or not to prosecute him any further. He had an awful lot to gain. As far as people who said, Why would he say these things? When Richard was—why would Richard say these things to people? He knew, Richard knew before he ever got to the jail that there were survivors. He talked to Ranger Flores, you know. The jail house snitches and so forth aren't always reliable and sometimes information is just not received properly or misunderstood. There is no reason for him to say that, he already knew that.
․
Mr. Thomsen. William Elmer Thomsen. Richard told you that he was always looking for a way to show a bruise or something so that he could claim that he was hurt in jail and sue the county. They didn't bring him back up here to deny that. I suspect that there were obviously claims or letters that he wrote somewhere along the line saying he had been hurt, this or that. He likes to fabricate evidence, information for his own benefit. I submit to you that's what he did when he talked about what he claimed Richard told him. Fabricated it for his own benefit. Number one, he gets a letter to his parole officer asking for leniency, We are not going to prosecute him. He has an examining trial to determine is there probable cause to hold him on his felon in possession of a firearm and the state doesn't even show up for the hearing; it's dropped, never to be brought up again.
Would you allow William Elmer Thomsen to pick up your kids or grandkids from kindergarten? Would you invite William Elmer Thomsen to your home for dinner? I think not. Then how in the world can you rely on his testimony in making a life or death decision? That's what the State is asking you to do. They're asking you to rely on Tynus McKnight—Tynus McNeel and William Elmer Thomsen to vote for a sentence of death.
The state then argued in its closing:
But he is asking, “How would you trust William Earl [sic ] Thomsen? Would you have him pick up your kids, do anything?” He is probably right, I wouldn't. But somebody is, he is now a supervisor where he works. And on whatever deal he got contacting the parole board or the parole officer, he was revoked and got several months in the other facility. But what is important about Thomsen besides the fact he was the only person to be in the position to hear what Cobb said in the jail, is how did he know about these other robberies in Jacksonville? How did he know the girls were on their knees praying? And how did he know this location was called the pea patch? That could have only come from one person, Richard Cobb.
After hearing closing arguments, the jury returned a verdict on January 16, 2004. In response to Special Issue No. 1—whether there was a probability that Cobb would commit criminal acts of violence that would constitute a continuing threat to society—the jury answered “yes.” In response to Special Issue No. 2—whether there were mitigating circ*mstances that warranted a sentence of life imprisonment instead of death—the jury answered “no.” On January 23, 2004, the state court sentenced Cobb to death.
Two months later, while reviewing the file of Cobb's co-defendant, Adams, the prosecutor discovered another letter. Dated December 26, 2002, this letter was written by Thomsen and sent to the district attorney. The full text of the letter is as follows:
Mr. Beckworth—
Greetings, Sir. I hope your holidays were enjoyable—
I'm sorry to bother you. Last check—Mon., 12–21–02 that Felony Possession of a firearm by a Felon and the parole hold were still on the computer holding me in jail. I have written my attorney Mr. Phifer 3 times this month reminding him that he needs to process the paperwork for the dismissal that occurred in Nov. on this gun charge. It was supposedly dismissed in Nov., however, I never received the paperwork stating it—
At our meeting in Mr. Hatch's office on 12–19–02 you agreed to completely clear this charge as well as to try to have the parole hold lifted so I could get released. Mr. Hatch tried to phone my parole officer—Roy Shamblin—directly after our meeting but was unable to locate him. As you know the parole hold cannot be lifted until the gun charge is paperwork clear—
The only reason I bother you with this is because all efforts by myself and my girlfriend to contact Mr. Phifer by letter and phone have gone astray—Could you please take steps to get Mr. Phifer in gear and have Mr. Hatch (remind him) to try contacting Roy Shamblin again—I realize the holidays have caused a slow process. I'm only asking for reminders for I'm sure everyone's mind is still in holiday mode—I would dearly love to at least spend New Years with my family.
Also—you asked a question at our meeting if Richard Cobb told me why they decided to take the girls and Kenneth after robbing that store? I now recall his answer was: They wanted the keys to a car—I believe [Adams] had removed his mask at this time and spoke Rich's name so they told the girls to come with them”! The girls said: “Please just take my car, here the keys, leave us here—we won't tell anything”! It's on my notes I gave Mr. Phifer. I just forgot it—you're welcome to those notes if you would like to bring them in as evidence—Thank you for your time Sir—
Sincerely,
William Thomsen
After receiving this letter, Cobb filed a motion for a new trial in which he claimed, inter alia, that the state committed a Brady violation by withholding the letter. The state trial court denied the motion. On direct appeal, the Texas Court of Criminal Appeals affirmed Cobb's conviction and sentence. Cobb v. State, No. AP–74875, 2007 WL 274206 (Tex.Crim.App. Jan 31, 2007) (unpublished). His subsequent state application for writ of habeas corpus was denied. Ex parte Cobb, No. WR–68192–01, 2007 WL 4306840 (Tex.Crim.App. Dec. 5, 2007) (unpublished). Cobb then filed a petition for a writ of habeas corpus in federal district court, in which he raised eleven claims. The district court denied relief on each claim. Cobb v. Thaler, 2011 WL 672333. The district court subsequently granted a COA for Cobb's Brady claim and this appeal followed.
