Martin, Garland Leon AKA Butch Martin

In the Court of Criminal
Appeals of Texas
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No. WR-93,211-01
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EX PARTE GARLAND “BUTCH” MARTIN,
Applicant

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On Application for Writ of Habeas Corpus
Cause No. CR24,279-A
From the 142nd District Court
Midland County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

Twenty-five years ago, in 1999, Applicant was charged with and
convicted by a jury for the capital murder of his wife, Marcia Pool, his
stepson, Michael, and his daughter, Kristen. They each died inside their
home after it caught fire and burned on February 25, 1998. Applicant
was sentenced to three life terms for these crimes.
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Applicant now claims, in his initial post-conviction application for
writ of habeas corpus, that he is entitled to relief from his conviction on
several grounds. The Court grants relief on the basis that Applicant is
actually innocent. Majority Opinion at 1. It does so in spite of the fact
that the convicting court recommended denying relief on that ground.
And perhaps because it grants actual innocence relief, the Court avoids
discussing whether relief is appropriate for Applicant’s other claims, on
which the convicting court recommended granting relief, including
Applicant’s claims that: (1) newly discovered scientific evidence proves
by a preponderance of the evidence, as required by Code of Criminal
Procedure Article 11.073, that had that evidence been available at the
time of his trial, he would not have been convicted, and that (2) material
false evidence was used against him at his trial and there is a
“reasonable likelihood” that it affected the judgment of the jury.
I dissent to the Court’s decision because, according to the
standard announced in Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim.
App. 1996), Applicant has not shown entitlement to actual innocence
relief. I also disagree with the convicting court’s conclusion that
Applicant is entitled to relief on his Article 11.073 new-scientific-
evidence claim and his false evidence claim, because he has not shown,
even by a preponderance of the evidence, that the new scientific evidence
presented in this proceeding would have caused a different result, and
he has not shown a reasonable likelihood that the evidence from his trial
that he claims to have been false affected the judgment of his jury.
Finally, I agree with the convicting court that Applicant is not entitled
to relief on any of his other claims.
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I. BACKGROUND
For purposes of evaluating Applicant’s claims, it will be helpful to
understand the evidence presented at his trial as consisting of two
distinct kinds. The first and most prominent kind was historical-fact-
based testimony. This consisted of evidence showing that Applicant’s
family died inside their home when it burned down, that Applicant had
the motive, the intent, and the opportunity to kill his wife and children
by burning down their house with them in it when they died, and that
Applicant’s highly suspicious behavior and odor at and around the time
of the fire demonstrated that he was indeed responsible for their deaths.
The other kind of evidence was scientific-conclusion-based testimony.
This consisted of testimony by experts which tended to demonstrate
scientific bases to conclude that the fire that burned down Applicant’s
family’s home was intentionally set and that Applicant’s family was
rendered unconscious inside the home by someone who did not want
them to escape the fire.
A. Evidence of the First Kind—Historical-Fact-Based
The court of appeals’ opinion, from Applicant’s direct appeal,
summarized the evidence of the first kind as follows:
There is evidence that Pool and Appellant had a volatile
relationship. Pool’s mother, Mary Stephens (“Stephens”),
testified about events of a July 1997 evening where Pool
and her children were dropped off at Stephens’ home by
Appellant, who immediately left, and Pool was beaten so
badly she had to be taken to the hospital. Pool told her
mother that Appellant had beaten her. Appellant later
apologized to Stephens concerning the incident, and said
“it never was going to happen again.” On the day of the fire,
Pool called her mother and asked her if she would come
pick up Pool and her children so the children could take
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baths and eat some lunch. Stephens arrived about 12:15
p.m. and was helping the children put their shoes on when
she heard an argument between Appellant and Pool. Pool
told Appellant she was planning on leaving him and
intended to take the children with her. According to
Stephens, Appellant replied, “If you try to leave me again,
I’m going to kill you and your . . . f-----kids.” Appellant, Pool,
and the children spent the day at Stephens’ home, and
returned to their home around 4:30 p.m.
Dana Hendry testified that she visited with
Appellant and Pool on February 24, 1998. Pool asked
Hendry if she would take her and the children to her
mother’s house so she could end her relationship with
Appellant. Appellant responded to this by stating that he
would not allow Pool to leave him again, and if she tried,
he would kill her. Sammy Carr testified that the night
before the fire, he and Appellant were drinking, and
traveled to a nearby store to purchase beer. While at the
store, Appellant had a confrontation with his employer,
Junior Boiles, which left him in a bad mood. When Sammy
and Appellant returned to Appellant’s house, Appellant
stated he could burn up the house, and he actually tried to
light the grass on fire with his cigarette lighter. After Carr
told him to stop, Appellant told him he was only joking.
Finally, James Wood testified that Appellant had once
offered to help him burn down a trailer Wood wanted
removed in an effort to collect insurance money. A few days
prior to the fire, Wood had observed Appellant with a fire
in his barbecue pit. Appellant, standing five or six feet
away from the pit, was squirting lighter fluid into the fire.
Around 6 p.m., Robert McGuairt passed by
Appellant’s home, and saw Appellant walking towards his
house with a container in his hand. About 6:30 p.m.,
Appellant’s friend Stacy Carr, arrived to pick him up to do
some work in preparation for building a fence on the land
of Dr. William Maurer. Carr honked his horn when he
arrived at Appellant’s home, and as Appellant exited the
house, Carr noticed something unusual. He testified, “He
came out the door backwards with his back to me. He
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opened the door eight, ten inches, squeezed through, and
then shut the door.” Appellant and Carr arrived at Dr.
Maurer’s around 6:45 p.m., took the measurements, and
left between 6:50 p.m. and 7 p.m. As Carr was taking
Appellant back to his home, a highway patrol vehicle
overtook and passed them, and Appellant stated, “I hope
they are not going to my house.” As they came closer to the
location of Appellant’s house, Appellant stated that he
hoped it was not his house on fire. Carr immediately
noticed smoke and flames. At one point, after arriving at
the house, Appellant threw a ladder through a front
window of the house which accelerated the fire. While they
were in front of the house, a deputy heard Appellant tell
his father, “I won’t be [f-----] her anymore.” Appellant
appeared emotionless when he said this.
On the evening of the fire, Appellant was
transported to [a] psychiatric hospital in San Angelo. The
ambulance attendants both remembered that Appellant
had an odor about him that was not associated with the
fire. One of the attendants described the odor as smelling
like paint thinner or charcoal lighter fluid.

Martin v. State, No. 08-99-00268-CR, 2000 WL 1793190, at *2–3 (Tex.
App.—El Paso Dec. 7, 2000, pet. ref’d) (not designated for publication).
B. Evidence of the Second Kind—Scientific-Conclusion-Based
The court of appeals then summarized the evidence of the second
kind as follows:
Dale Little was the Fire Marshall for Midland County. His
responsibilities include[d] fire investigation and
prevention. He confirmed the fatalities in the fire. After his
investigation, Little concluded that the fire started in the
back part of the house, and was not caused by an electrical
malfunction. He opined that an ignitable liquid had been
poured by the back door, and had been ignited.
Little contacted Ron Kellough, a fire investigator in
Midland for assistance. Kellough went to the scene and
looked at it for about an hour. He told Little he noticed a
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“pour pattern” just inside the back door of the west
bedroom. He did not believe the fire could have started
outside on the porch.
John Corn was a Lab Director for Armstrong
Laboratories in Arlington, Texas, a company that
specializes in detecting accelerants from fire debris
samples. He tested debris from this fire, and detected
Norpar, a substance used in lamp oils, and deparaffinated
kerosene, a substance used in charcoal lighter fluid. He
testified that Norpar is used in pesticides, but that he
found no evidence of pesticides in the samples, and that
Norpar is not used in carpet or plastics. He testified that
deparaffinated kerosene is not used in carpet, plastics, or
anything commonly in use in a home.
Dr. David Hoblit was the Chief Medical Examiner in
Lubbock County. He performed an autopsy of Pool and her
son, Michael Stephens, and concluded that both had
suffered blunt force trauma to the head not associated with
the injuries sustained in the fire. Both Pool and Michael
Stephens ultimately died of carbon monoxide poisoning.
Kristen Martin was examined by another pathologist, and
the cause of her death was determined to be carbon
monoxide poisoning.
Dr. Harold Gill-King was a forensic anthropologist.
He examined the body of Michael Pool and determined that
he had suffered a blunt-force trauma to the head not
associated with the fire. He also found it curious that the
child was discovered in a supine position, as most fire
victims are usually prone because they are trying to escape
the fire. He opined that fire victims found in a supine
position have been incapacitated prior to the fire.

Id. at *3.
II. THE CURRENT PROCEEDING
Applicant filed an application for a writ of habeas corpus in the
convicting court in October of 2002. The writ was received by this Court
for the first time, however, in October of 2021. The convicting court
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found that, “[f]or unknown reasons,” the district clerk did not forward
the application to this Court until then.
Applicant filed an amended application in July of 2022. On
remand from this Court, the convicting court made findings that former
counsel for Applicant was working on “several other tracks not
memorialized in the record” and that “the constant back and forth
between the court, [former counsel for Applicant], and the State,”
alongside “active case developments,” caused delays in its resolution. 1 I
find no reasonable explanation for the extreme delay in prosecuting this
application for habeas relief.
Nearly twenty years elapsed between the filing of the initial
application in this case and its first presentation to this Court in October
of 2021. There is inevitable degradation in the quality and reliability of
evidence over such an extended period of time. Still, I endeavor here to
explain why Applicant’s claims should be denied on their merits.
A. Actual Innocence
In his twelfth ground, Applicant alleges that he is actually
innocent. The convicting court’s findings rejected that claim. But this
Court grants relief on that ground. I cannot agree with the Court’s
assessment. Applicant has not demonstrated an entitlement to actual
innocence relief, even under the standard announced by this Court in
Elizondo.
Even though Applicant presents evidence in this proceeding that
tends to rebut the scientific-conclusion-based evidence presented in his

1 Even though these might arguably seem like an explanation, they are

so general, non-specific, and conclusive, as to amount to no explanation at all.
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trial, and he presents new evidence tending to rebut the truthfulness of
certain other science-based testimony presented at his trial, he presents
no evidence to rebut the evidence of the first kind described above: the
very compelling historical-fact-based evidence presented against him at
his trial. This evidence showed that Applicant’s family died inside their
home when it burned down, that Applicant had the motive, the intent,
and the opportunity to kill his wife and children by burning down their
house with them in it when they died, and that Applicant’s highly
suspicious behavior and odor at and around the time of the fire
demonstrated that he was indeed responsible for their deaths. Having
failed on habeas to present any evidence at all rebutting historical-fact-
based evidence against him, Applicant also fails to show that no rational
juror would have convicted him.
B. New Science
In his first and second grounds, Applicant relies on new science.
In his first ground, he argues that new scientific arson evidence
demonstrates that ignitable liquids discovered in fire debris are
commonly found in everyday household products and are not indicative
of arson. In his second ground, he argues that new scientific arson
evidence demonstrates that the “pour pattern” evidence relied upon by
the arson investigators has been entirely debunked. The convicting
court recommends granting relief on these claims. I disagree with that
court’s assessment.
Applicant bases his claim for relief on these grounds on Article
11.073 of the Texas Code of Criminal Procedure. This Court has said
that an applicant can obtain relief under Article 11.073 if he can show
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by a preponderance of the evidence that he would not have been
convicted had the new scientific evidence been available at the time of
trial. TEX. CODE CRIM. PROC. art. 11.073(b); Ex parte Hightower, 622
S.W.3d 371, 372 (Tex. Crim. App. 2021).
Applicant’s claim is not persuasive. Applicant’s new science
evidence relates only to the evidence of the second kind described above.
Its only tendency is to rebut the testimony presented at trial by experts
to demonstrate a scientific basis for the conclusion that the fire that
burned down Applicant’s family’s home was intentionally set. But the
defense also presented rebuttal evidence of a similar nature at the time
of trial, and that did not make a difference.
Even though the new scientific evidence presented here seems
somewhat more compelling than that which was presented at trial, it
still is not conclusive. It would still need to be weighed by a jury. It also
does not show that the fire in Applicant’s house was not intentionally
set. It only tends to rebut the scientific evidence presented at Applicant’s
trial suggesting that it was. And, even though it could have served to
rebut the scientific arson evidence presented at Applicant’s trial, it does
not rise to the level of evidence that would have caused a different result.
Even if the new evidence were conclusive and would require a
determination that the ignitable liquids discovered in the fire debris
were definitively not accelerants, and that what fire investigator
Kellough saw in the remains of the fire was not a “pour pattern,” the
most devastating and compelling evidence of Applicant’s guilt presented
at his trial would remain. And that evidence showed that Applicant’s
family died inside their home when it burned down, that Applicant had
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the motive, the intent, and the opportunity to kill his wife and children
by burning down their house with them in it when they died, and that
Applicant’s highly suspicious behavior and odor at and around the time
of the fire demonstrated that he was indeed responsible for their deaths.
Applicant’s new scientific evidence does nothing at all to rebut that
highly compelling evidence, and it is that evidence that likely persuaded
the jury to find Applicant guilty in this case.
C. False Evidence
In his third, fifth, and sixth grounds, Applicant claims that his
conviction was based on false evidence. In his third ground, he argues
that the evidence presented at his trial by forensic anthropologist, Dr.
Gill-King, showing that his son suffered “blunt force trauma[,]” was
false. In his fifth ground, he argues that former pathologist David
Hoblit, who the convicting court found has since lost his license and was
sentenced to prison for 18 months, 2 testified falsely about injury to
Pool—Applicant’s wife. And in his sixth ground, Applicant argues that
Hoblit similarly testified falsely about injury to Applicant’s son. The
convicting court also recommends granting relief on these claims. But
once again, I disagree with that court’s assessment.
“Only the use of material false testimony amounts to a due-
process violation.” Ex Parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim.
App. 2014); see also Ex parte Chaney, 563 S.W.3d 239, 263–64 (Tex.
Crim. App. 2018). In a habeas claim alleging the use of material false
testimony, the Court must decide: “(1) whether the testimony was, in

2 No evidence suggests that Hoblit’s prosecution or sentence had
anything to do with his testimony in this case.
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fact, false, and, if so, (2) whether the testimony was material.” Weinstein,
421 S.W.3d at 665. The second prong in such a claim is “materiality,” it
is not “harm.” Id. False testimony is “material” only if there is a
“reasonable likelihood” that it affected the judgment of the jury. Id. The
applicant’s burden in a false evidence claim is to show these things by a
preponderance of the evidence. Id.
Applicant fails to meet his burden. To be sure, Applicant presents
some new evidence that could serve to rebut the accuracy of the
testimony he takes issue with from his trial. But the defense also
presented other evidence at his trial tending to rebut the accuracy of
that same testimony, and that did not make a difference. The new
evidence that Applicant relies upon is not conclusive evidence that the
testimony presented at his trial was false. 3 Instead, like all evidence, it
would have to be considered and weighed by a jury in addition to all the
other evidence presented at Applicant’s trial.
Also, this new evidence does nothing to rebut the very compelling
historical-fact-based evidence showing that Applicant’s family died
inside their home when it burned down, that Applicant had the motive,

3 For instance, Dr. Gill-King completed an affidavit regarding his trial

testimony in this case that Applicant’s son suffered “blunt force trauma.” In
that affidavit, Gill-King says he has no doubt that the jurors heard his
testimony as “Brady had been hit, and hit hard,” by another. But the convicting
court makes clear in its findings that Gill-King did not commit perjury.
According to the convicting court Gill-King “clearly had an opinion about what
caused that bruising[,]” but it concluded that Gill-King “did not possess” the
expertise to offer that opinion. Thus, the convicting court concluded, Gill-King
“gave the jury the false impression that his expertise included the area of soft-
tissue analysis when in fact it did not.” Findings of Fact and Conclusions of
Law, Finding # 114, at 47.
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the intent, and the opportunity to kill his wife and children by burning
down their house with them in it when they died, and that Applicant’s
highly suspicious behavior and odor at and around the time of the fire
demonstrated that he was indeed responsible for their deaths. It is this
evidence that most compellingly shows that Applicant is guilty, and it is
this evidence that the jury likely placed the most weight on in finding
him guilty. Therefore, I cannot conclude that Applicant’s new rebuttal
evidence was material in the sense that it creates a “reasonable
likelihood” that the evidence he claims was false affected the judgment
of the jury. Weinstein, 421 S.W.3d at 665; Chaney, 563 S.W.3d at 263–
64.
III. CONCLUSION
For all the reasons I have stated here, I respectfully dissent to the
Court’s order granting Applicant relief in this case. 4

FILED: May 22, 2024
PUBLISH

4 By finding Applicant actually innocent, the Court avoids discussing

his other grounds for relief. But the convicting court rejected Applicant’s actual
innocence ground and recommended granting relief on Applicant’s new science
and false evidence grounds. Like the convicting court, I have rejected
Applicant’s actual innocence claim, but unlike the convicting court, I have also
rejected his new science claim, and his false evidence claim. The convicting
court also rejected Applicant’s claims in his fourth, seventh, eighth, ninth,
tenth, and eleventh grounds. I agree with the convicting court that Applicant
has not shown himself to be entitled to relief on those grounds either.