Texas Board of Pardons and Paroles: Grant Brian Davis a new trial to prove his innocence!
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Brian Davis was sentenced to death for a crime he did not commit. He is innocent! On May 7, 2002 he came within two hours of execution. Currently Brian is in the Polunsky Unit in Livingston, TX.
On August 13, 1991, the body of Michael Foster was found at his apartment around noon by his neighbor. Dr. Eduardo Bellas, an assistant medical examiner for Harris County, determined that Mr. Foster had been stabbed a total of 11 times, of these 10 were fatal stab wounds. All stab wounds were consistent with being inflicted by one knife, having 1 sharp edge and 1 blunt edge. The wounds were not inflicted with a dagger type knife with 2 sharp edges. Dr. Bellas testified that Foster died sometime after 1:00am on August 13, 1991.
A little after 2:00am on August 10, 1991, Foster was seen leaving the Pik 'N Pak with a white male with shoulder length hair and a thin red headed female in an old Camaro. Brian Davis was identified later primarily by a single photo of a tattoo shown to the owner of the Pik 'N Pak; he could only tentatively pick him out from a photo spread. Tina McDonald was identified from photos shown to the owner.
On August 17, 1991, Brian and Tina were arrested on an unrelated charge and taken to Harris County jail. Both were appointed counsel on this charge. Shortly after their arrest, Detective Smith's investigation of Foster's murder began to focus on Brian and his wife, Tina McDonald. Smith informed Sheriff's Deputy Strickland at the jail of developments in the investigation of Foster's murder. Smith and his partner, Detective Hendrix, made regular visits to Tina.
Smith and Strickland implemented a plan, which eventually led to Brian giving a videotaped confession. Strickland had the authority to move Brian and Tina around in jail and allowed them to communicate with one another, even though they were co-defendants as well as Suspects in the Foster murder. Smith also discussed the current status of the Foster investigation numerous times during September, October and November 1991 and informed Tina if a case was filed it would be for capital murder. He told her that she had been positively identified as being with Foster the last time he was seen alive, that Foster's property was recovered from her car, that red hair matching hers was found in Foster's hand, and that her handwriting sample was comparable to that found at the cime scene. McDonald admitted to writing on Foster's apartment wall and actually wrote the exact words for the detective. Smith told her all evidence pointed to her and none of the evidence linked Brian to the crime.
Approximately, 6 to 7 times from Sept. 16 to Nov. 19, 2001,Strickland would bring Brian to his office then relay to the jailer on Tina's floor and Tina would call Brian from a phone on her cell block. Tina told Brian she was afraid she would be charged with capital murder because all evidence pointed to her while Brian could not be linked at all. Brian and Tina were also allowed a face to face communication while sitting outside a courtroom.
On November 19, 1991, Brian requested to see Smith and told Smith that he would confess in exchange for immunity for Tina, if he could be moved from administrative segregation, and have a contact visit with Tina, but his main concern was immunity for Tina. Brian was known to have a low IQ and a very strong attachment to Tina with a need to protect her. Smith told Brian he would have to get with the DA's Office about his request and that he believed Tina was involved in Foster's murder. Brian was moved from administrative segregation shortly after his confession.
On November 21, 1991 Smith took Brian to a magistrate who Mirandized him. These warnings were videotaped. The judge warned Brian that he would be charged with capital murder but Casey O'Brien, an assistant District Attorney, interrupted and said they HAD NOT decided what the case should be.
Brian gave a lengthy confession, but at several points on the tape he is clearly confused on the facts. He stated he stabbed Foster with a double-edged dagger at Foster's home, which is contradicted by the testimony of Dr. Bellas regarding the wounds as being inflicted by a single edge with blunt edge knife. Detectives Smith and Hendrix tried to correct Brian on this issue and Brian states that he pulled a second knife from his pocket and used both knives to stabb Foster . Remember all evidence shows all stab wounds were inflicted with one knife with one single edge.
The time of death described by Brian is also at least 40 hours off. Brian's confession stated the murder occurred early in the morning of August 10, 1991, but Dr. Bellas' testimony places the time of death after 1:00am on August 13. On the videotape, Smith refers to this time disparity as a "problem" and tries to correct Brian's statement somehow to match the physical evidence.
(Brian's taped confession stated that he and Tina had gone to the Pik N Pak to see a friend's band play on Friday Sept. 9 and that they were at Foster's apartment after they left on the early morning of Sept. 10. Brian's friends confirmed that he had been there on Friday night. The detectives talked to this friend and referenced it in Investigative Reports.)
A motion to suppress this confession was made at Brian's trial in June 1992. Tina McDonald was called to testify by Brian's trial attorney, Alan Myrtle, who was involved with his first capital defense. Other than stating her name for the record, Tina exercised her Fifth Amendment right not to testify.
Tina McDonald was never charged with capital murder or any other charge for her involvement in Foster's murder. On June 26, 1992, ten days after Brian was sentenced to death she was granted immunity for any actions regarding Foster and then pled guilty to another offense (aggravated robbery). This offense was the August 17, 1991 attempted robbery and murder of Steven Sherman with a knife. Brian was never prosecuted in the case of Steven Sherman.
In 2011 DNA Testing was finally done on the three hairs collected from Michael Foster's hand. None of the hairs belonged to Brian Davis. The three hairs did not belong to Tina MacDonald but there was other evidence linking her to the crime including handwriting. To date the three hairs which came from two different people have not been identified. Michael Foster grabbed hair from two different individuals during the struggle. Brian Davis has no physical link to this crime, no DNA or fingerprints.
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