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Tracy Brown

Other Harris County, Texas exonerations with inadequate legal defense
On November 8, 1990, police arrested 27-year-old Tracy Brown and three others on charges of selling cocaine at the J. Thomas Lounge in Houston, Texas.

Police said that Donald LeBlanc, a police undercover officer, went to the lounge to buy cocaine. LeBlanc said that when he mentioned his quest to Brown, who was outside the lounge, Brown escorted him inside and led him to Russell Thomas and Barbara Williams.

LeBlanc said that Thomas sold him a rock of cocaine for $20 and that as he left the lounge, Brown asked him to share it. LeBlanc said he refused, but he did purchase a crack pipe from Brown for $3.

Thomas, Williams and another man, Thomas Erving, were also arrested. All were charged with delivery of cocaine. Thomas and Williams pled guilty. The charges against Erving were dismissed.

In October 1991, Brown went to trial in Harris County Criminal District Court. Thomas and Williams testified for the defense. Both told the jury that Brown did not come inside the lounge at any time. Both admitted selling a $20 rock of cocaine to LeBlanc, who they did not know was a police officer. Williams said that Brown was outside the lounge sweeping out the gutter to prevent flooding.

On October 21, 1991, a mistrial was declared when the jury was unable to reach a unanimous verdict.

Brown went to trial a second time a year later before a different judge and with a different defense attorney. Before jury selection, his defense attorney, Fred Reynolds, requested a delay to be certain that Thomas and Williams would be present. In response to a subpoena, Williams had in fact appeared in court on Monday of the week of trial. After giving the process server a phone number and her assurances that she would be available on a one-hour call, Williams left.

However, when she did not appear in court, it turned out that the phone number belonged to someone else. The trial judge, James Keeshan, said he was “inclined to begin the trial since it's scheduled to start this week,” but added that he would provide the defense “any assistance that I can to locate the witnesses and bring them to the courtroom” or give any “necessary delay” to get the witnesses to the courtroom.

Judge Keeshan noted that if the witnesses were not present, the defense would not be denied the use of their testimony at Brown’s first trial. During the trial, Thomas appeared and testified, as he did in the first trial, that Brown was not involved in the drug sale and was not in the lounge.

When Reynolds called for Williams to come forward to testify, she was not there. Rather than attempt to introduce Williams’s testimony from the first trial, Reynolds finished the case without her testimony.

During closing argument to the jury, Williams arrived. But Reynolds declined an offer from the judge to reopen the evidence portion of the trial to allow Williams to testify.

During the closing argument, Reynolds made matters worse when he told the jury: “There's no doubt that that person, the officer who was masquerading as a dope head, was assisted in his quest to buy some dope by [Brown]. It is undisputed, if you believe the officer, that this man asked him for a piece of the dope he bought for directing him to the pusher. It's undisputed. Does that make this man [Brown] a pusher?”

Reynolds called Thomas “a parasite,” essentially discrediting the only witness who said Brown was not involved in the drug deal.

On September 2, 1992, the jury convicted Brown of delivery of a controlled substance. He was sentenced to 10 to 35 years in prison.

In his direct appeal, Brown raised two primary issues—the failure of his lawyer to get Williams to testify or to introduce her testimony at his first trial as well as the closing argument that essentially conceded his guilt.

In November 1993, the 1st District Court of Appeals upheld Brown’s conviction, rejecting both of his claims that his trial was unfair.

He filed a petition for review with the Texas Court of Criminal Appeals. On January 12, 1994, while that petition was pending, Brown, acting without a lawyer, filed a state law petition for a writ of habeas corpus challenging his conviction. The prosecution opposed the motion and on January 26, 1994, the trial court dismissed the habeas petition.

Meanwhile, Brown had discovered that procedurally, a habeas petition was not allowed until his direct appeal was complete. Because his petition for review was pending, Brown realized his appeal was not yet complete. Brown was hampered because he was in prison. Nevertheless, on January 27, 1994—unaware that the trial court had dismissed his habeas petition a day earlier, Brown filed a motion in the trial court to voluntarily dismiss his habeas petition. That motion was granted in the trial court.

On February 16, 1994, the Court of Criminal Appeals received the trial court’s denial of the petition and entered an order dismissing the habeas petition. Two days later, on February 18, 1994, the court of appeals received the order voluntarily dismissing the petition.

It was too late.

The court did not recognize Brown’s voluntary dismissal, which would have preserved his right to file a subsequent habeas petition. Unfortunately for Brown, the law did not allow him to file another habeas petition unless he discovered a new issue or new evidence. He had lost his chance to seek habeas relief based on his defense lawyer’s missteps, no matter how egregious.

He was procedurally unable to refile his habeas petition.

That two-day difference created a legal nightmare for Brown that took 30 years to unsort.

While incarcerated, Brown studied the law. He was released on parole—a 25-year parole term—on October 3, 2000.

He never gave up. In January 2021, Brown, acting without a lawyer, filed another habeas petition. The Harris County Public Defender’s Office was appointed to represent him.

In February 2021, assistant public defender Bob Wicoff asked the Criminal Court of Appeals to reconsider its 1994 denial of Brown’s habeas decision. That motion was granted as was a motion to dismiss Brown’s second habeas petition so that the public defender’s office could do an extensive investigation and file a new habeas petition.

In August 2021, assistant Harris County public defender Carol Camp filed a 475-page habeas petition, including exhibits, seeking to overturn Brown’s conviction.

“Here, Mr. Brown’s trial counsel completely negated the innocence defense he attempted to present (albeit incompletely, because he failed to present the live or former testimony of Barbara Williams) by conceding Mr. Brown’s guilt during closing argument,” the petition declared.

Attached to the petition was a statement from Brown. “While I was incarcerated, I lost ten years of my life that I would otherwise have devoted to starting a career and a family,” he said. “After being released on parole in 2000, I spent a year in a halfway house, where I was required to complete a drug treatment program. When I was released from the halfway house, I came to Houston, where I had no friends, family, or support system. I had to start from scratch and overcome the effects of being institutionalized in prison for the previous decade. I focused on finding a job and starting a family. Then, September 11, 2001 happened and flipped everything upside down.”

Brown married a woman with two children, and they had a child of their own. He went to Lone Star College and in 2019, he obtained a paralegal degree. However, he was not allowed to sit for the state licensing examination because he was still on parole.

During the intervening years, Brown filed public records requests for the police reports in the case in an attempt to find something that he could hinge onto another habeas petition. “Despite my repeated requests, I was never provided with a copy of my offense report and the other records I asked for,” Brown declared. “Not being able to obtain this information severely impaired my ability to investigate the facts of my case, to interview witnesses, and to further develop the record. Dealing with the State made me feel hopeless and depressed.”

He said he spoke to defense attorneys about taking up his case, but he could not afford the $3,500 to $5,000 fee that the lawyers requested.

“Being on active parole for 25 years is crushing my chances to find a job,” Brown said. “There is a company that does background checks on applicants. Once a prospective employer finds out my criminal history and that I am still on parole, I am unable to proceed further in the application process.”

He said he had been denied more than 100 jobs.

On December 2, 2021, the trial court recommended that the writ be granted, ruling that Brown’s “conviction and sentence were improperly obtained.”

On June 22, 2022, the Texas Court of Criminal Appeals granted the writ and vacated Brown’s conviction. On July 29, 2022, the prosecution dismissed the case.

– Maurice Possley

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Posting Date: 12/12/2022
Last Updated: 12/12/2022
Most Serious Crime:Drug Possession or Sale
Additional Convictions:
Reported Crime Date:1990
Sentence:10 to 35 years
Age at the date of reported crime:27
Contributing Factors:Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No