March-April 2013

Not so squirrely after all

Alan Curry

Assistant District ­Attorney in Harris County

One of my favorite movies is Up, the Pixar film in which an elderly man and a boy travel to South America in a house carried along by countless helium balloons. I know, I know: an unlikely scenario. But it is an animated movie, and anything can happen in an animated movie.
    When the man and the boy reach their destination, they are confronted by an evil genius who has trained several dogs to be his servants. These well-trained dogs can speak through a device on their collars so that humans can understand them, but they are still dogs, with the same instincts and desires of regular dogs. They are especially distracted by squirrels, even when the bushy-tailed critters are nowhere to be seen. The dogs will be talking about something, then suddenly stop and yell, “Squirrel!” with all the attention and earnest of a trained hunting dog.
    As prosecutors, we oftentimes hear defense counsel alert us to their clients’ actual innocence or an unknown person’s guilt. If you’re a prosecutor for any amount of time, you will hear it quite often and with increasing frequency. You will tire of the claims, as you hear them repeatedly, and find out that there is very little substance to most of them, which are nothing more than phantom squirrels.
    But unlike cartoon dogs in a movie, defense counsel making such claims cannot be ignored. For every phantom squirrel in our practice, there is always the possibility of a Michael Morton or an Anthony Graves, and we have to ensure that an actually innocent person has not in fact been wrongly convicted. This special attention is never more important than in circumstantial evidence cases. And that brings me to the David Temple case.

Circumstantial case
I have prosecuted a couple of thousand cases on appeal, but the David Temple case—where he murdered his wife, who was several months pregnant—proved to be one of the most circumstantial cases that I have ever handled. From the very beginning, the defendant and his various attorneys have proclaimed Temple’s innocence, and, from the very beginning, they have pointed to the guilt of a teenage neighbor. As prosecutors, we should be prepared to respond to claims of actual innocence and third-party guilt at whatever stage these claims occur. We should not summarily reject them, but they should be closely examined because we have a duty to see that justice is done.
    On January 11, 1999, Belinda Temple, who was seven months pregnant with her second child, was found murdered in her upstairs master bedroom closet at her home in Katy. She had been shot in the back of the head with a 12-gauge shotgun some time in the afternoon. There were signs of forced entry to the residence, and no murder weapon was ever recovered. After Belinda had arrived home that afternoon, her husband, David Temple, left the house with their young son and traveled to various locations throughout the city. He and his son returned to the residence later in the afternoon, and he then alerted neighbors to an apparent burglary and called the police soon thereafter.
    The defense would have us believe that a burglar wielding a shotgun had shot and killed Belinda while David and his son were away. They believe that a teenage boy, Riley Joe Sanders, who lived next door, had committed the crime with a shotgun that perhaps belonged to his family. And the boy in fact had skipped school on that particular day with some of his friends, and the police knew that these boys were suspected of committing burglaries and smoking marijuana. Sanders may have even had a motive:  He disliked Belinda Temple for being a strict disciplinarian at school, where she was a teacher, and at home, where she complained about the boys leaving beer bottles lying around. Sanders was investigated by the police, and he repeatedly failed polygraph exams.
    But the facts of the case are not quite that simple. Police almost immediately realized the burglary had been staged. Glass had been broken at the apparent point of entry at the back door, but the glass was strewn about on the floor as if it had been broken after the door had already been opened. Drawers were opened in various locations in the residence, but nothing was disturbed. A television had been moved from a table to the floor, but it was still plugged into the wall. Jewelry was left out in the open in the bedroom where Belinda was killed, and jewelry was left on Belinda’s body. Nothing appeared to have been stolen from the residence.
    Perhaps the most important factor was the Temples’ dog. This dog was notorious for violently barking when strangers drew near the Temples’ backyard. Because of the dog, David’s neighbor was prevented from following David into the house to investigate the apparent burglary. Similarly, responding officers were prevented from entering the backyard and the residence until David moved the dog into the garage. Even in the garage, the dog continued to bark ferociously. But throughout the entire afternoon of the offense, no one in the neighborhood heard the Temples’ dog barking, even though people were walking and moving along the street throughout the entire afternoon, returning from work and school. No stranger could have reasonably gotten past the dog to commit a burglary of the Temples’ residence.
    And David Temple had motive for killing his pregnant wife. He had entered into a romantic relationship with a fellow teacher at his school, where he was a coach. On New Years Eve, he spent the entire holiday with this other woman, even though he told everyone else, including his pregnant wife, that he was going hunting. On January 5, 1999, the other woman talked about ending her romantic relationship with David, but three days later David informed the woman that he was in love with her. She stated that she felt the same way. Immediately after Belinda was murdered, David was unusually calm. He later showed a great deal of interest in how all of these tragic events were affecting the other woman. David and this other woman eventually renewed their relationship, and they were married.

The high-profile trial
After much investigation and after the case had been closed and then re-opened, Kelly Siegler, a long-time assistant district attorney with the Harris County District Attorney’s Office, took over the case. She had handled many high-profile cases for the office in the past, and she had gone up against David Temple’s attorney, Dick DeGuerin, as well. (Mr. DeGuerin was himself no stranger to high-profile cases.)
    Both sides presented all of the facts detailed above during a very lengthy, hotly contested trial. Kelly Siegler and her co-counsel, Craig Goodhart, carefully put all of the many pieces together to show that David Temple must have been the person who murdered Belinda Temple. He had the motive and the opportunity. Riley Joe Sanders testified as the State’s last witness, and he was vigorously cross-examined by Mr. DeGuerin. Presented with all of this evidence and the competing theories, the jury found David Temple guilty of murder in November 2007, and he was sentenced to life in prison.

The appeals process
Of course, the defense appealed David Temple’s conviction, and that is where I came in. Stanley Schneider joined Dick DeGuerin on the appeal, and I responded to the 70-page brief that raised 80 points of error. The brief challenged the sufficiency of the evidence, but it also challenged Kelly Siegler’s actions and inactions throughout the entire proceedings. As it had at trial, the defense made claims that Kelly had committed Brady violations concerning Riley Joe Sanders. But the defense had more than enough to suggest that this teenage boy was the person who actually committed the murder of Belinda Temple. It took me about six months to respond to all of the allegations in the very lengthy brief, but the appellate courts proved to be primarily concerned about only one thing—the sufficiency of the evidence to support David Temple’s murder conviction. On December 21, 2010, the Fourteenth Court of Appeals upheld that conviction, but the justices were badly split over what standard of review should be applied.1 The Court of Criminal Appeals granted David Temple’s petition for discretionary review on January 11, 2012, seeking to review only the sufficiency of the evidence.
    Once again, our briefs before the Court of Criminal Appeals were very lengthy, even though they focused only on the sufficiency of the evidence to support the murder conviction. The oral argument before the court was held on June 20, 2012, and it was very lively. However, based upon the questioning from the court, it did not appear that the court was ready to overturn a jury verdict unless there was a very good reason. What I did not know at that time was that the defense was working on another way to bring relief to their client, even while the direct appeal was still pending.
    It seems that in May, a young man contacted Mr. DeGuerin and allegedly presented an alternate version of the facts that would implicate Riley Joe Sanders and perhaps some of his friends in the murder of Belinda Temple. I did not learn about this individual until after the oral arguments had been completed. Even though I doubted the credibility of this individual’s claim, especially because he had come forward for the first time more than 13 years after the murder, I believed (and still do believe) that the claim needed to be investigated. And it was: Our office hired a special prosecutor, Brad Beers, to investigate, and the Harris County Sheriff’s Office conducted its own investigation.
    While Mr. Beers was still conducting his investigation, the sheriff’s office was pursuing its own investigation, and the direct appeal before the Court of Criminal Appeals was still pending, the defense decided to file a new claim for relief before the trial court. On September 10, the defense filed an “Out-of-Time Motion for New Trial or Alternative Application for a Writ of Habeas Corpus.” The defense wanted to have a full evidentiary hearing on the claims of the young man who had come forward 13 years after the murder, and they wanted to explore alleged Brady violations by Kelly Siegler.
    If you have prosecuted cases on appeal for any length of time or if you have handled post-conviction writs of habeas corpus, you know that a defendant cannot file an out-of-time motion for new trial after the time for the filing of a motion for new trial has expired. And a defendant cannot file an application for a writ of habeas corpus while the direct appeal is still pending. As earnest as the defense might have been in claiming David Temple’s innocence, they did not have a legal leg to stand on. Although a prosecutor’s office should always be willing to see an innocent man exonerated, I would never feel comfortable hiding behind a procedural rule to keep relief from being granted to such a man. We are now all too familiar with cases like Morton and Graves—but the Temple case is not that type of case.
    The various investigations quickly revealed that there was very little substance to the story told by the individual who came forward some 13 years after Belinda Temple’s murder, and the Brady claims raised by the defense had all largely been addressed both at trial and on direct appeal. So I filed a reply to Schneider’s and DeGuerin’s request for a hearing on a motion for new trial or a writ of habeas corpus, pointing out that the trial court did not have jurisdiction to rule on either claim for relief, and that both claims should be dismissed for that reason. But I did not want to leave the public with the impression that the defense had uncovered a valid actual innocence or Brady claim. I wanted to respond on the merits to the defense’s claims as well.
    As they have done from the very beginning, the defense has continued to place a great deal of emphasis on the tight timeframe in which David Temple would have had to murder his wife and travel to various locations throughout the city of Katy (not necessarily in that order). That narrow window has always been an issue in the case, and it was presented to the jury. But even though the defense has tried from the very beginning to place the blame for Belinda Temple’s murder upon one or more teenage boys, the defense has still yet to present anything that explains how one or more teenage boys were able to commit the murder of Belinda Temple within that same tight timeframe—all while not be seen by anyone and successfully interacting with the Temples’ very aggressive dog. So once again, my reply to the defense’s latest motions included the lengthy facts of this case to show that David Temple was still the person who had committed this horrible crime. (See the timeline at the bottom of this page for more details on what happened the afternoon Belinda was killed.)
    My reply also included an affidavit from the lead trial prosecutor, Kelly Siegler. She was understandably upset by all of the allegations that the defense had once again leveled against her. Kelly reviewed the entire file all over again, just as she had done numerous times so many years before. She then prepared a very detailed affidavit in which she refuted each and every one of the defense’s allegations and in which she challenged the credibility of the new evidence that the defense was presenting. Almost from the very beginning, Kelly has been attacked mercilessly by the defense. To be sure, she tries a hard case, and she is quite aggressive, but keep in mind that Kelly Siegler is the same prosecutor who was appointed to look into the Anthony Graves case and recommended his exoneration.
    I myself have been an appellate prosecutor for over 24 years, and I would be the first person to suggest relief for David Temple if I thought he deserved it. I have gotten to know Belinda Temple’s family, and I have gotten to know her a little from reading and hearing about her. She was a beautiful young woman who was carrying her second child, and she did not deserve to be brutally murdered in her own home. I want to make sure that the person who committed this heinous crime spends the rest of his life in prison. I believe that person is David Temple, but I will always keep my eyes open, as all prosecutors should.
    The trial judge agreed with the State that he did not have jurisdiction to address to the defendant’s out-of-time motion for new trial or the application for a writ of habeas corpus, and he dismissed the defense’s motions. The defense attempted to get a court of appeals to force the trial judge to hold a hearing by way of a petition for a writ of mandamus, but the court of appeals refused. The defense attempted to file a writ of habeas corpus with the Court of Criminal Appeals while the direct appeal was still pending, but that was also rejected. The Court of Criminal Appeals upheld David Temple’s murder conviction on January 16, 2013. There were no dissents. One would assume that the defense will now be filing a proper application for a post-conviction writ of habeas corpus, and this office will be prepared to respond when it comes.

Advice for prosecutors
Especially when you are working on appeal, I would strongly urge you to do something in your work as a prosecutor: Consider the victim and her family. Communicate with them, even if you are working on appeal. The appellate process is remarkably time-consuming, and it is very difficult for the average citizen to understand why the process takes so incredibly long. To be frank, it is hard for ME to understand on occasion, and I have been doing this for a long time. Consider how the victim’s family is feeling. How do you think Belinda Temple’s family felt when the Court of Criminal Appeals granted the defendant’s petition for discretionary review on January 11, 2012, the anniversary of Belinda’s murder? So many years had passed, and a great deal of time had gone by since the court of appeals had upheld the conviction—but it was still not over. How do you think that they felt when they heard that our office and the sheriff’s office were investigating whether the same teenage neighbor boy had committed Belinda’s murder, when a jury had rejected that same claim so many years before? They were angry and upset, and I frankly could not blame them. But that does not mean that I do not take their phone calls, and it does not mean that I chide them for their feelings while I am so busy. I always tried to explain as best I could what was happening. I was glad to do that in this case. Belinda Temple’s family is wonderful, and it has always been my honor to seek justice on Belinda’s behalf.
    Prosecutors always have a duty to see that justice is done. And that often and usually means that we should diligently seek to prove beyond a reasonable doubt that a man is guilty of a criminal offense. We have to know our facts well, even if the facts are as incredibly complex as they are in David Temple’s case. We have to put all of the pieces together for the jury, trial judge, and appellate courts. If the defense attempts unusual tactics, as they have in the David Temple case, we should be prepared to respond, and if necessary, try to stop them. We should not get distracted from our duty to see that justice is done.
    But do not ignore claims of actual innocence or Brady violations out of hand. They can be tiring, especially when we see them again and again, but examine them carefully nonetheless. If they deserve to be heard, then let them be heard.
    If you ever need assistance on claims like these, please feel to contact me. I would be glad to help.


1 See Temple v. State, 342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010, pet. granted).


Temple murder timeline

Sometime in 1998    David Temple told Belinda Temple that he was going on a hunting trip with some friends ­during the New Year’s weekend, but he instead used that opportunity to spend time with Heather Scott.
December 31, 1998    David Temple spent the holiday weekend with Heather Scott, and they continued their romantic relationship and engaged in sexual intercourse during that time.
January 5, 1999    Heather Scott talked with David Temple about ending their romantic relationship.
January 8, 1999    David Temple told Heather Scott that he had fallen in love with her, and she stated that she felt the same way.
January 11, 1999    The date of the offense
11:40 a.m.    Deborah Berger takes a phone call from ­daycare center, where her young son, Evan, is sick. ­Deborah tells Belinda Temple about the call.
11:55 a.m.    Belinda’s cell phone calls Alief School where David Temple works (the call lasts 32 seconds).
12:03 p.m.    Belinda’s cell phone again calls Alief School  (4:14 minutes).
12:08 p.m.    Belinda’s cell phone once again calls Alief School (1:04 minutes).
12:09 p.m.    Belinda’s cell phone yet again calls Alief School (59 seconds).
12:11 p.m.    Belinda’s cell phone again calls Alief School (34 seconds).
About Noon    Belinda picks up Evan at the daycare center. About the same time, Belinda called David Temple from home regarding Evan and needing relief.
12:30–12:40 p.m. David Temple arrives home.
1:00 p.m.    Belinda returns to school.
3:00 p.m.    Nothing unusual at the Temple home.
3:30 p.m.    Belinda finishes meeting at school.
3:32 p.m.    Belinda calls David Temple at their house to say that she is on her way home. After leaving school, Belinda went to her in-laws’ home to pick up some soup, and she left their residence at about 3:45 p.m. Belinda Temple is never heard from again.
3:40 p.m.     Nothing unusual in the neighborhood.
3:45 p.m.    Belinda gets home, and David Temple says that she is tired and wants to rest. “While she was resting, I took my son to the park, near my subdivision, and then to the grocery store and Home Depot.” The trip to the Brookshire Brothers grocery store and Home Depot are verified, but the trip to the park is not. David Temple and Evan leave their home, but it appears that Evan rode in David Temple’s pickup with no car seat.
4:00 p.m.    Nothing unusual in the neighborhood.
4:20 p.m.    Nothing unusual in the neighborhood. The Temples’ dog was not barking.
4:25 p.m.    The Parkers’ dog was barking and running up and down along the fence line. The Temples’ dog was not barking.
4:30 p.m.    Nothing unusual at the Temple home; the Temples’ dog was not barking. A four-door, light-colored sedan with two young men drove quickly out of the neighborhood.
4:32 p.m.    David Temple and Evan enter Brookshire Brothers on the other side of the Katy Freeway.
4:38 p.m.    David Temple and Evan leave Brookshire Brothers and walk toward parking lot.
4:38 p.m.     Brenda Lucas makes telephone call to ­Belinda Temple, but Belinda does not answer.
4:40 p.m.    Temple answering machine records Brenda Lucas’ call to Belinda. Some young children in the ­neighborhood claimed to have heard a loud boom that sounded like a gunshot.  No one else in the neighborhood reports hearing such a gunshot.
4:50–5:00 p.m.    Buck Bindeman sees David Temple at Katy Hockley Cut-Off and Morton Ranch Road intersection facing southbound, coming from an area north of the Brookshire Brothers, but after David Temple and Evan had already left Brookshire Brothers and coming from the area where David Temple’s parents lived and where he had often hunted.
5:10 p.m.    Nothing unusual in the neighborhood. David Temple’s dog was not barking.
5:10 p.m.    Temple answering machine records Kenneth Temple’s call asking about his grandson, “little man.”
5:14 p.m.    David Temple and Evan enter Home Depot.
5:25 p.m.    Angela Vielma sees the Temples’ blue pick-up and David Temple as garage door closes at Temple home. David Temple’s dog was not inside the garage, and it was not barking.
5:30 p.m.    Kenneth Temple called the Temple home again, received no answer, and left no further message.
5:40 p.m.    Maureen Temple called the Temple home, received no answer, and left no message. David Temple knocked on the Ruggieros’ door.
5:36 p.m.*    Mrs. Ruggiero’s call to 911.
5:38 p.m.    David Temple’s call to 911.
5:41 p.m.    Mr. Ruggiero could not make it into David Temple’s home because of aggressive and barking dog in the backyard.
5:42 p.m.    Mrs. Ruggiero called David Temple on the telephone but received no answer.
5:45 p.m.     Mr. Ruggiero called David Temple on the telephone but received no answer.
5:49 p.m.    Sergeant Gonsoulin and Deputy Johnson arrive at the Temple home.
5:54 p.m.    Sergeant Gonsoulin and Deputy Johnson could not enter Temple home because of barking and aggressive dog.

* Note: The discrepency between when Mrs. Ruggiero called 911 and when David Temple knocked on her door (that is, Temple would’ve had to knock on her door before she knew to call 911) is due to an inconsistency in the approximation of time from the record.