OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Applicant, Billy Ray Bryant, was convicted of capital murder and sentenced to confinement for life without the possibility of parole. Applicant argues that he received ineffective assistance of counsel at his trial. We will grant relief.

BACKGROUND

The facts of this case primarily involve two families and their acquaintances living near the Texas-Oklahoma border in Red River County. Johnny Victory (Johnny) was married to Stella Walls Victory (Stella), and Kenneth Raulston (Kenneth) was married to Sarah Raulston (Sarah). The Victorys had three children who were involved in this case: Jonathan, Aaron, and Dalinda. At the time of the incident, Jonathan, ten, was the oldest, Dalinda was nine, and Aaron was eight.

In 1987, both couples separated. Johnny began living with Sarah, and later, Kenneth began living with Stella. Sarah subsequently retained an attorney to initiate divorce proceedings and obtained a temporary restraining order against her husband Kenneth. The evening of February 10, 1987, the three Victory children, Johnny, and Sarah, ran some errands and went to eat at a nearby Pizza Hut. After eating, Johnny, Sarah, and the Victory children returned to Sarah's home in Red River County. It was about 9:00 p.m. Aaron rode with Johnny in his car and Jonathan and Dalinda rode with Sarah in her car. Shortly after Johnny and Sarah exited their vehicles, they were shot and killed. Johnny was shot in the head twice, and Sarah was shot in one arm and her head.

The lead investigator, Texas Ranger Almond, took approximately 70 photographs of the scene, collected 34 physical exhibits, and submitted a final report 60 or 70 pages in length. About 35 to 40 people were interviewed during the investigation, including the Victory children, who were interviewed multiple times. Throughout the interviews, the children told police that on the night of the murders they saw Kenneth, a man named Mitchell Dickey (Mitchell), and one other individual named Tom. And although Ranger Almond testified at first that none of the children could identify "Tom," he later changed his testimony and stated that Jonathan identified a man in a lineup named Jim Ed Monkhouse as the Tom the children saw that night. Despite that identification, the ranger testified that Monkhouse was excluded as a suspect. Ranger Almond did believe, however, that a third shooter was involved, but he did not believe that the third shooter was a person named Tom as the kids had stated in 1987.1 After completing his investigation of the murders, Ranger Almond testified that there was no evidence implicating Applicant or anyone else in the crime.

Nonetheless, within a year a grand jury indicted Kenneth and Mitchell for capital murder.2 After the indictments were returned, Kenneth died in an automobile accident while allegedly attempting to force Stella off of a road after the two had an argument. He collided head-on with another car, killing the occupants, a young boy and his father. The State eventually dismissed the capital-murder indictment against Mitchell.3

The case was cold until a new sheriff, Terry Reed, was elected. He reopened the investigation into the double homicide about 19 years after the State elected not to pursue the indictment against Mitchell, and Kenneth had died in the automobile accident. The new investigation uncovered several things. First, DNA testing was performed on a beer can found at the scene in 1987, which had only Kenneth's fingerprint on it. Second, information had come to light from a person incarcerated with Mitchell — Donnie Miller — who told investigators that Mitchell had told him that he personally used a shotgun to murder Johnny and Sarah.4 Investigators interviewed Mitchell after receiving the information from Donnie Miller. When Mitchell spoke with investigators, he initially maintained that he knew nothing about the murders. Later, however, after being told that he failed a polygraph test, he admitted that he was involved, but he implicated Applicant and stated that he acted only as the get-away driver. Aaron gave a new statement that "mainly focused in on Mitchell ..." but also indicated that other people were present the night of the murders, including Applicant. Finally, Janie Mussett (Janie), Applicant's live-in girlfriend at the time of the murders, was interviewed by police once the case was reopened, and after being told that she also failed a polygraph test, she signed a written statement implicating Applicant.

Applicant was indicted by a Red River County grand jury for capital murder. After a two-day trial in January 2008, Applicant was convicted and sentenced to confinement for life without the possibility of parole. He appealed to the Texarkana Court of Appeals, which affirmed his conviction. See Bryant v. State, 282 S.W.3d 156, 176 (Tex.App. — Texarkana 2009, pet. ref'd). We refused his petition for discretionary review.5

Applicant then filed an application for a writ of habeas corpus. On January 12, 2011, we held his application in abeyance and ordered the convicting court to make findings of fact and conclusions of law as to whether Dalinda, Johnny's daughter, committed perjury when she changed her testimony as a rebuttal witness and implicated Applicant after testifying favorably for Applicant. See Ex parte Bryant, No. WR-74,973-01, 2011 WL 199058 (Tex.Crim. App. Jan. 12, 2011) (per curiam) (not designated for publication). On September 12, 2012, after receiving the supplemental record from the convicting court, we determined that Applicant's perjury claim was without merit. See Ex parte Bryant, No. WR-74,973-01, 2012 WL 4048839 (Tex. Crim.App. Sept. 12, 2012) (per curiam) (not designated for publication). However, instead of denying the application, this Court held the application in abeyance again and ordered the trial court to make additional findings of fact and conclusions of law as to whether Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Id. The convicting court, after making additional findings, recommended that we deny relief. We subsequently filed and set Applicant's case for submission. See Ex parte Bryant, No. WR-74,973-01, 2014 WL 467830 (Tex.Crim.App. Feb. 5, 2014) (per curiam) (not designated for publication).

APPLICANT CAN RAISE HIS POSTCONVICTION-POLYGRAPH CLAIM

In this Court, Applicant has briefed one ineffective-assistance-of-counsel claim:6 whether Applicant's trial counsel was ineffective because of his repeated failures to object to polygraph evidence about Janie. However, before we address the merits of Applicant's claim, we must address a threshold issue raised by the convicting court in its findings of fact and conclusions of law: Whether the court of appeals already ruled on the merits of the polygraph claim, thereby precluding our review under Ex parte Acosta, 672 S.W.2d 470, 472 (Tex.Crim.App.1984).

Applicant argues that the court of appeals did not address the merits of his claim on appeal because it held that the record was "silent" as to the issue. See Bryant, 282 S.W.3d at 172. He also asserts that, assuming the court of appeals did rule on the merits of his claim, he has brought forth new evidence, namely the affidavit response from trial counsel and a voicemail from trial counsel to Applicant's current counsel, that allows him to reurge his claim. Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.Crim.App.2004) (holding that although an appellant raised an ineffective-assistance-of-counsel claim on direct appeal and a court of appeals ruled on the merits of the claim, that appellant's claim could be properly raised again in a postconviction proceeding if he provides additional evidence to prove his claim). The State does not appear to resist Applicant's reurging of his claim to this Court.7

We need not decide whether the court of appeals rejected Applicant's claim on the merits because we hold that his claim falls within the ambit of the Nailor exception in light of the new evidence presented. Therefore, Applicant's claim is not barred, and he may reurge it now. We now turn to Applicant's claim.

APPLICANT'S CLAIM

Applicant argues to this Court that his trial counsel was ineffective. Specifically, Applicant alleges that his counsel was deficient for repeatedly failing to object to references to Janie's polygraph test and the results of that test, and Applicant was prejudiced by trial counsel's deficiency.

First, Applicant asserts that trial counsel's failure to object to the repeated mentioning of Janie's polygraph test was objectively unreasonable because of this Court's past decisions and decisions of other Texas courts across the State. He cites a litany of decisions stating that the fact that a person took a polygraph test and the results of such a test are never admissible.8 Thus, Applicant concludes, trial counsel's error was deficient as a matter of law because the evidence was not admissible even by stipulation of the parties. He also argues that trial counsel's failure to object was not a strategic decision supported by the record or prevailing professional norms. As to professional norms, Applicant asserts that this Court, and other appellate courts in Texas, have held defense counsel deficient who allowed "unfettered bolstering" of witnesses and patently objectionable testimony to be elicited in front of a jury.9 As to Applicant's assertion that trial counsel had no reasonable trial strategy, Applicant cites two pieces of evidence. First, he directs us to his trial counsel's affidavit in which he stated that he should have objected to the polygraph evidence. Second, Applicant cites a voicemail from trial counsel to Applicant's current counsel, allegedly discussing the admission of the polygraph evidence and stating,

This lends credence to Applicant's contention that his trial counsel had no reasonable strategy when he allowed the polygraph evidence to be elicited. In addition, the allegation that trial counsel, a witness in these postconviction proceedings, engaged in ex parte communication with the judge is troubling. Applicant's habeas counsel was sufficiently concerned about the communication that, once he was made aware of it, he filed a motion to recuse the judge, but the motion was denied.

Finally, Applicant argues that he was prejudiced by his trial counsel's deficient conduct because, if trial counsel had objected and requested a mistrial, it should have been granted. See Long v. State, 10 S.W.3d 389, 398-99 (Tex.App. — Texarkana 2000, pet. ref'd) (citing Nichols v. State, 378 S.W.2d 335, 337-38 (Tex.Crim.App. 1964) (stating that it is "highly prejudicial" to introduce into evidence that someone took a polygraph test, that "no instruction from the court [can] remove" that prejudice, and that the judge erred by not granting appellant's motion for new trial); Banda v. State, 727 S.W.2d 679, 682-83 (Tex.App. — Austin 1987, no pet.)).

The State responds that "[t]he history of this Court's dealings with polygraph evidence is long but not very complicated. For more than sixty years, this Court has not once wavered from the proposition that `the results of polygraph examinations are inadmissible over proper objection because the tests are unreliable.'" State's Brief, No. WR-74,973-01, at 20-21 (quoting Leonard v. State, 385 S.W.3d 570, 577 (Tex.Crim.App.2012) (op. on reh'g)). However, the State argues that for this Court to hold that defense counsel's representation amounted to deficient conduct, this Court "must necessarily hold that, under all circumstances, the failure to object to polygraph examinations [falls] below an objective standard of reasonableness, and comprised per se ineffective assistance [of counsel]." Further, the State asserts that there was a strategic reason for not objecting to the polygraph evidence, and it relies on the findings of fact from the convicting court to support its assertion.

Alternatively, the State asserts that Applicant cannot meet the prejudice prong of the Strickland test because this Court has held that a defendant is prejudiced only when the fact that a defendant or a crucial witness took a polygraph test and the results of that test came to light at trial. Compare Tennard, 802 S.W.2d at 683-84, with Robinson v. State, 550 S.W.2d 54, 59-60 (Tex.Crim.App. 1977) and Nichols, 378 S.W.2d at 336-37.10 Furthermore, the State argues that Applicant "did not, and could not, establish that the result would have been different in the present case because other individuals" saw Applicant, Aaron identified Applicant as the man who murdered his father, and Janie and Mitchell were not the sole witnesses at trial to prove Applicant's guilt nor were they crucial witnesses.

THE POLYGRAPH EVIDENCE

Janie was called by the State during its case-in-chief as its sixth witness. The State began by asking her a few preliminary questions, including whether she remembered giving a statement on May 1, 2007. She answered that she did remember giving such a statement, but she also stated that "a lot of things I said in that statement is (sic) not true, because I was scared." The State then went through Janie's statement asking her if she had made each allegation contained in the statement.11 She denied making many of the statements, including the ones inculpating Applicant. And when Janie also denied being threatened by Applicant, the State elicited further testimony from Janie that Sheriff Reed told her that it would be better if she proved her story by taking a lie-detector test. The State then asked Janie if she had proven her story by taking the polygraph test. Janie responded that "[t]hey didn't show [the results] to me." The only objection raised by the defense during Janie's testimony was to the admission of her written statement12 and not the evidence that Janie took a polygraph test or the possible results of the test. Trial counsel also failed to ask for a limiting instruction for the written statement initialed by Janie. On cross-examination, Janie testified that, at the time of the murders, she was Applicant's girlfriend and that she lived with him and some other family members. She further testified that Applicant was at home the night of the murders. At the end of cross-examination, the defense asked Janie to "[t]ell the jury what the truth is." Janie reiterated that Applicant did not commit the crime, that he was at home the night of the murders, that she had no reason to lie, and that the officers "said I took the test and I flunked the test." The defense never objected to the State's introduction of evidence about Janie taking a polygraph test or the results of that test. Then, the defense directly questioned Janie about the polygraph test she took.

Next, the State called to the stand United States Secret Service Agent Mark VanderVlugt, who administered the polygraph test for Janie. During direct examination, Agent VanderVlugt never mentioned the polygraph test or its results directly. Rather, he testified that, initially, Janie did not want to tell the truth,13 but that a couple of hours later she told investigators that Applicant had confessed to her after she became emotional. On cross-examination, the defense asked VanderVlugt how he knew "what the truth was," but the State objected because "[t]here's a federal law that prevents [VanderVlugt] from talking about what was performed on her at the time, the polygraph test." Thus, the State raised the issue of Janie taking a polygraph test again, this time in its objection that VanderVlugt could not specifically testify about the lie-detector test Janie took or the results of that test. However, once again the defense did not object, ask for an instruction to disregard, or a mistral.

Janie's polygraph test and the results of that test were brought up again by the State when Sheriff Reed was recalled to the stand. This time, however, Janie's polygraph test and its results were expressly discussed. The State asked Sheriff Reed whether investigators had a reason not to believe Janie's story, and he responded that, when "she took the polygraph test, it indicated deception." The Sheriff then explained why Agent VanderVlugt was involved in the investigation and how he could know whether Janie was telling the truth to investigators: Agent VanderVlugt "administered the polygraph test."

On redirect, the State again elicited testimony about Janie and the polygraph test she took:

The defense did not object to any of the testimony regarding Janie taking a polygraph test or failing it, although Sheriff Reed definitively testified that the police would have stopped investigating Applicant if the polygraph results had not indicated that Janie lied about Applicant being home the night of the murders. Sheriff Reed's testimony that the police would have stopped investigating Applicant if Janie had not indicated deception seems to directly contradict the State's argument that Janie was not a crucial witness.

HABEAS PROCEEDINGS

Trial counsel submitted an affidavit answering each of Applicant's claims of ineffective assistance of counsel. In response to Applicant's polygraph claim, trial counsel stated:

In addressing Applicant's polygraph claim, it appears that the convicting court concluded that, despite counsel's statement that he should have objected, counsel had a trial strategy, which was to avoid drawing more attention to the evidence by not objecting when it was raised. Furthermore, the court concluded that not objecting fell within the wide range of reasonable assistance and should not be considered deficient.

THE LAW

The Sixth Amendment to the United States Constitution guarantees an accused the assistance of counsel to prepare a defense. See U.S. CONST. amend. VI. The Sixth Amendment right to counsel has been interpreted as "the right to the effective assistance of counsel." Robinson v. State, 16 S.W.3d 808, 812 (Tex.Crim.App. 2000) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). In Strickland, the United States Supreme Court explained that a claimant can prove that he received ineffective assistance of counsel by showing that his counsel's representation was deficient and that the deficient performance caused him prejudice. Ex parte Cockrell, 424 S.W.3d 543, 545 (Tex.Crim. App.2014) (citing Strickland v. Washington, 466 U.S. 668, 690-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim. App.1986).

A claimant can prove deficient performance by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. An objective standard of reasonableness is defined by prevailing professional norms at the time of trial. See id. at 688, 104 S.Ct. 2052. However, because of the difficulty of assessing attorney conduct in hindsight, and because one defensive theory for a crime may work with one attorney and jury but not another, there is a presumption that the trial attorney's performance conformed to prevailing professional norms at the time of trial — i.e., the challenged action "might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). In other words, depending on the circumstances and strategy employed, certain representation by counsel that may fall below an objective standard of reasonableness in one trial may not in another. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.App.2005).

Furthermore, appellate scrutiny of the performance of counsel is highly deferential, and trial counsel's performance is assessed by the totality of the circumstances as they existed at the time of trial, not with the benefit of hindsight or by relying on only isolated circumstances at trial. See Ex parte Flores, 387 S.W.3d 626, 633-34 (Tex.Crim.App.2012). A claimant must generally prove deficiency using affirmative evidence in the trial record sufficient to overcome the presumption that the challenged action was sound trial strategy. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App.2011). However, "when no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflect[s] the trial counsel's subjective reasons for act[ing] as [he] did." Andrews, 159 S.W.3d at 102.

To prove prejudice, a claimant must establish a "reasonable probability" that the result of the proceeding would have been different if counsel had not been deficient.14 Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Whether there is a reasonable probability that confidence in the outcome of the trial is undermined can turn on evidence adduced at trial because "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696, 104 S.Ct. 2052.

DISCUSSION

A. It is not deficient as a matter of law to allow the introduction of polygraph evidence.

Polygraph evidence is generally excluded from courtrooms because the reliability of such tests remains unproven and jurors could attach undue credibility to a test that purports to sort truth from fiction, a role for which a factfinder is more properly suited. See Leonard, 385 S.W.3d at 577-81, 583 (chronicling the history of the use of polygraph tests in Texas and holding that polygraph evidence amounts to "scientifically unreliable facts or data"). However, we need not hold, as the State argues, that if Applicant's defense attorney's failures to object were deficient, the conduct of all similar attorneys failing to object would also fall below an objective standard of reasonableness. Instead, we hold that, although the introduction of polygraph evidence almost always falls below an objective standard of reasonableness because most attorneys will have no reasonable strategy in allowing the introduction of such evidence, we cannot categorically exclude the possibility that a trial attorney, under certain circumstances, could use the admission of polygraph evidence to his client's favor. We do find, however, for the reasons explained below, that Applicant's trial counsel was deficient in this case.

B. Defense counsel was deficient.

Defense counsel stated that he should have objected to the polygraph evidence. However, he went on to state that, "since the subject was broached by the State, I felt it would be in the minds of the jurors" and that Janie "had assured me her testimony would be favorable to [Applicant] and it was." The convicting court took a slightly different view of trial counsel's representation and concluded that trial counsel did have a strategy in not objecting to the assortment of polygraph evidence: "[C]ounsel made the determination not to draw more attention to the evidence by lodging an objection."

We first note that any assurances that Janie may have given to trial counsel that her testimony would be favorable are irrelevant because trial counsel is not accused of having engaged in deficient conduct by calling Janie to the stand. And to the extent that trial counsel and the convicting court assessed Janie's testimony as favorable to Applicant, we address that question in the prejudice inquiry explained below.

The habeas judge found that trial counsel's trial strategy not to object was reasonable because he wanted to avoid drawing attention to the polygraph evidence. Such a strategy is commonly cited in ineffective-assistance-of-counsel cases and for good reason. That strategy may be particularly useful when, for example, only a passing, but possibly objectionable, reference is made and the defense attorney believes that the reference would largely go unnoticed. However, such a strategy loses its efficacy and becomes less reasonable when, as in this case, opposing counsel repeatedly draws the jury's attention to the objectionable evidence. In addition, it is difficult to conceive of how defense counsel was effectuating a reasonable strategy not to draw attention to the polygraph evidence when he also asked questions about Janie's polygraph test.

Based on our examination of the entire record, we hold that trial counsel's performance was deficient. We now turn to whether Applicant was prejudiced.

B. Applicant was prejudiced in light of trial counsel's deficient performance.

On these specific facts, the record supports the conclusion that Applicant has shown that he was prejudiced by his trial counsel's deficient conduct. This is especially true because the other evidence of guilt adduced at Applicant's trial was weak. See Strickland, 466 U.S. at 696, 104 S.Ct. 2052. Consequently, trial counsel's failure to object to the admission of the existence and results of a polygraph test taken by Janie prejudiced Applicant because, without that testimony, there is a reasonable probability that the outcome of the trial would have been different. Moreover, if Applicant's trial counsel had asked for a mistrial based on the inadmissible polygraph evidence, the trial court should have granted it. See Nichols, 378 S.W.2d at 337-38 (stating that revealing the fact that a polygraph test was taken is "highly prejudicial" and "no instruction from the court [can] remove it" and that "the learned trial judge fell into error in not granting appellant's motion for a mistrial").

To prove its case, the State relied primarily on the testimony of witnesses changing stories from earlier statements, changes in testimony at trial, and the existence and results of polygraph tests.15 With respect to polygraph evidence, the State heavily relied upon copious amounts of testimony about the existence of polygraph tests and their results16 to rebut the two defensive theories that Applicant had an alibi, and that this case was too old with too little evidence to convict him. The polygraph tests and results thereof of both witnesses — Mitchell and Janie — were discussed throughout both the State's case-in-chief and during its closing arguments. At trial, the prosecution noted that Mitchell, Applicant's codefendant, had indicated deception during a polygraph test when he stated that he knew nothing about the crime but, once confronted with his results, he "broke down" and "asked the police to pull up a chair" so that he could tell them the truth. Although the defense elicited testimony that Mitchell had passed two earlier polygraph tests in 1987 during which he denied knowing anything about the murders, the State sought to establish Mitchell's credibility by reconciling the different test results. The State proposed that, despite three tests, two of which were administered in connection with the original investigation and resulted in evidence favorable to Applicant and one of which was administered only after the investigation was reopened and resulted in favorable evidence to the State, the machines operated correctly. The State argued that Mitchell failed the third polygraph over the same subject matter because he had grown a "conscience," and his subsequent confession implicating Applicant must have been true because of his new "conscience."17 The prosecution also tried to minimize the fact that, in exchange for testifying against Applicant in 2008, Mitchell would plead guilty to murder (instead of capital murder), be sentenced to five years of confinement to run concurrently with other state sentences he was already serving (instead of a sentence of life confinement), and be parole eligible potentially much sooner than if he were convicted of capital murder.

With respect to Janie and polygraph evidence, to combat what was expected to be favorable testimony for Applicant and to corroborate the testimony of the codefendant Mitchell, the prosecution elicited testimony that Janie had taken a polygraph test, which indicated deception when she denied knowing anything about the murders. For example, at trial the State asked Sheriff Reed, "If it ha[d] turned out that [Janie] passed the lie detector test and [Applicant] was in fact home and she was telling the truth, that would have been the end of it. Right?" The sheriff responded, "That's correct." In other words, if the police believed Janie, and not the results of the polygraph test she took, the police would have eliminated Applicant as a suspect. And the State urged the jury to believe what the police believed — that lie-detector tests are reliable for identifying truth and discarding fiction. The State also relied heavily on polygraph evidence with respect to Janie and the inference that the statement initialed by Janie after she was told she failed the polygraph test was the "real truth."18 This emphasis continued during closing arguments, as it did with respect to Mitchell's polygraph tests.

This case was well known in the area because of the gruesome nature of the murders, the fact that the murders took place in a small town and involved two couples that had separated and begun seeing each other's spouses, and the fact that no one had ever been prosecuted for the murders in the intervening twenty-year period.19 The judge even suggested that jurors could write a book about the case because "[c]apital offenses that have these long gaps, well, they are known on occasion to end up in book form, so who knows." And as Sheriff Reed testified, many people were interviewed about the murders and gave their opinions about what could have happened. Mitchell testified at trial that "there's probably been a thousand different stories told, a thousand different statements given by everybody involved in [the case]." There appears to be some truth to that statement. Ranger Almond's original investigation, at best, implicated Kenneth and Mitchell — both of whom were identified by the children as at the house the night of the murders. However, Kenneth was killed in an automobile accident, and the State eventually dismissed the capital-murder indictment against Mitchell due to insufficient evidence and in light of the deal he struck with the State. It appears that it was not until Mitchell, Aaron, and Dalinda changed their stories that it was possible to prosecute Applicant. However, Mitchell testified against Applicant to receive a minimal sentence and to be parole eligible as soon as possible, the State was concerned that Aaron would not testify against Applicant at all, and Dalinda testified in favor of Applicant until she was recalled as a rebuttal witness and completely changed her testimony.20

Aside from the voluminous polygraph evidence and the assertion that the witnesses told the truth after "failing" polygraph tests, the only other evidence that the State could rely on to prove Applicant's guilt were the new, changed statements of Aaron and Dalinda.21 Both of the witnesses' testimony ultimately contradicted their earlier statements given in 1987. Dalinda initially testified in accordance with her 1987 story that she did not see Applicant at the crime scene the night of the murders, but later on rebuttal she testified that the Tom to whom the children had referred in 1987 was Applicant.22 This testimony was also contrary to the evidence that in 1987 Jonathan had identified Tom as Jim Ed Monkhouse. The State's reliance on Dalinda's change of heart was made apparent when it urged the jury to conclude that Dalinda did not tell the truth before the trial in 2008 because she was not strong enough to tell the truth, but by the time she testified as a rebuttal witness she finally was "brave enough" to remember that Applicant committed the murders.23 The State was worried, however, that Aaron would not even implicate Applicant with his testimony.24 Despite that concern, Aaron deviated from his statements given in 1987 and testified that he saw Applicant the night of the murders with Kenneth, and that he did not know a man named Tom. His explanation for his sudden reversal and his lie about Tom was that "[w]e was taught not to tell. And my daddy also told us not to tell on anything, and that was a big part of it." However, Aaron never fully explained why he waited two decades to tell the truth about who murdered his father; he said only that he was "tell[ing] on" Applicant because "[h]e killed my daddy, you know." The State paraphrased Aaron's statement during closing arguments, "He has come here, and why did he say he was here? He's not here after anything. He says he wants to set things straight because that guy killed his daddy, and he wants to make things right after twenty-one years." The State, like Aaron, did not have an explanation for why Aaron waited almost twenty-one years "to set things straight."

Unlike Mitchell, Janie took a single polygraph test and was told, but not shown, that she indicated deception. That evidence would have left the jury with the impression that statements given by Janie in 1987 and during the polygraph test were untrue, but anything in the statement (which implicated Applicant) that she initialed after taking the test and being told that she failed must be true, but the defense failed to object. Moreover, the polygraph evidence was crucial because the existence and results of Janie's polygraph test greatly undercut Applicant's rebuttal to the written statement. Instead of the jury fulfilling its role by resolving the factual disputes in the case, the State's introduction of the polygraph evidence encouraged the jury to abdicate its role as factfinder and, instead, to rely on the polygraph machine to ascertain who was telling the truth. See Nichols, 378 S.W.2d at 337-38 ("We think it fair to observe that the only reason that anyone would possibly take a lie detector test would be to determine whether or not they were telling the truth."). In addition, aside from that evidence, the State relied almost exclusively on the changed stories of two witnesses to the crime and whose new testimony was contradicted by not only their own prior statements given in the case but also contradicted other statements given in 1987. However, those witnesses were not subjected to polygraph tests, unlike Mitchell and Janie.

We hold that, based on the facts of this case, Applicant's defense counsel was deficient, and that there is a reasonable probability that, but for the testimony adduced at trial regarding Janie's polygraph examination, the results of such testing, and the changed stories of two witnesses, the jury could have reached a different result. Under Strickland, that is sufficient to undermine confidence in the outcome of the trial, and Applicant is entitled to a new trial.

CONCLUSION

Applicant has shown by a preponderance of the evidence that his trial counsel was deficient and that the deficiency prejudiced him. As a result, Applicant is entitled to relief. The judgment in cause number CR01125 in the 102nd District Court of Red River County is set aside, and Applicant is remanded to the custody of the Sheriff of Red River County.

KELLER, P.J., filed a dissenting opinion.

WOMACK, J., concurred in the result.

KELLER, P.J., filed a dissenting opinion.

The habeas court recommends that relief be denied, and I believe that the recommendation is supported by the record. By my reading of the record, (1) there is compelling evidence that applicant is guilty even without considering Janie's written statement and (2) the polygraph evidence would not have changed the jury's view of Janie's testimony.

A. Compelling Evidence

Although some of the evidence that I will recount below was contradicted at trial and on habeas, I believe there is a significant amount of incriminating evidence that creates a compelling case for applicant's guilt.

1. Relationships

Applicant was not a stranger that happened to be implicated by Mitchell; applicant had significant connections with members of the Victory and Raulston families. Janie, whose polygraph test is the primary subject of applicant's claims, is Stella Victory's sister and Aaron, Dalinda, and Jonathon's aunt. Applicant was Janie's live-in boyfriend at the time of the murders and the three children knew him. Moreover, applicant "ran with" Kenneth Raulston, and he and Kenneth together "jacked" Mitchell Dickey on a large amount of drugs that Mitchell had fronted out to applicant.

2. Motive

Applicant had at least two motives for killing Johnny Victory. First, on Christmas Eve, Johnny beat up Stella, who was the sister of his (applicant's) girlfriend Janie. Stella was also the girlfriend of his friend Kenneth. On Christmas Day, there were a "bunch of guys" with "lots of guns" at Stella's house. Stella's brothers were there, as was applicant. "They" discussed killing Johnny. Aaron overheard applicant and Kenneth talking about killing Johnny.

Second, Johnny stole cash, barrels of expensive methamphetamine precursors, and counterfeit money plates from Kenneth. Dalinda thought that applicant "had a fuss" with Johnny over the things that came up missing because that's what she had been told over the years.

3. Eyewitnesses

Several witnesses testified that applicant participated in murdering Johnny and Sarah or that applicant was present when the murders were committed. Mitchell claimed that he, applicant, and Kenneth drove to Johnny and Sarah's house and parked nearby. Mitchell said he waited in the car while applicant, who carried a shotgun, and Kenneth went to the house. Mitchell soon heard gunshots and ran to the carport, which would have been when Stella's children saw him. Mitchell testified that applicant and Kenneth killed Johnny and Sarah.

Aaron testified at trial that on the night of the murders, Johnny was carrying him up to the house. When Johnny set him down, Aaron heard a shot and he saw Johnny and Sarah fall. Aaron stopped by his dad, and then ran and hid in the carport. From there, he saw applicant and Kenneth. Applicant and Kenneth each had a gun in his hand.1

In 2007, Dalinda gave a written statement about what happened on the night of the murders. In it she says, "I saw a man look through the back living room window. The man had a full beard and collar [length] hair. His hair was black. He had on a red and black checkered coat. I knew Bill Bryant because I had seen him on several different occasions prior to that night. I remember saying to my brothers that the man looking in the window was Bill Bryant or I asked them if it was Bill Bryant. I did think at the time that the man looking in the window was Bill Bryant."

When Dalinda first testified at trial, she said she did not know if applicant was one of the murderers. The next day, as the judge at the habeas hearing put it, "in dramatic testimony in the rebuttal, as she sat in this witness stand, she turned and pointed at Mr. Bryant identifying him as the killer of one of her parents." During this later testimony, Dalinda said she was scared, and that she wasn't even living at home because she was scared for her life and her son's life. She had always known it was applicant, but her mother, Stella, said it wasn't him. Dalinda thought it was because Stella was trying to protect them.

Dalinda worked for applicant when she was twenty-two (thirteen years after the murders) and her brothers hated the fact that she was around him all the time. When asked why she was friends with applicant, she said that she couldn't act like she was scared of him because "what if he would have killed" her if she had shown any kind of fear.

Dalinda testified more than once that she did not know if "it was him," but she also explained that testimony when she ultimately said that "it was him." Dalinda testified that she knew in the back of her mind that it was applicant, but she pushed it away. She explained that she always knew it was applicant, but she did not want to believe it because she did not want herself and her kids to be in danger. She said, "You have to go through something like that to understand why you would do that. It's unexplainable."2

Jonathon did not testify at trial, but after the case was reopened, he told law enforcement that there were other people present at the murders, and he believed applicant was one of them. In spite of trying to convince the kids that "it wasn't him," Stella later told Jonathon that "it was him."

4. Weapon

There was evidence that applicant was in possession of a weapon that could have caused the murders. Johnny and Sarah were killed with a shotgun. Johnny had both birdshot and buckshot in his head, which could have been caused by a double-barrel shotgun. Applicant sold two rifles and a double-barrel shotgun to a man in Oklahoma a few months after the murders.

5. Threats/Statements Showing Consciousness of Guilt

Applicant made threats and engaged in conversations after the murder that suggested his own consciousness of guilt. Before the murders, Mitchell had burglarized Kenneth's house (where Johnny and Stella were living) as part of an insurance scam. After the murders, Mitchell went to prison for the burglary. Mitchell's mother testified that three or four months after Mitchell went to prison, applicant came to her house in New Mexico with a man named Denny Donaldson and threatened Mitchell's parents. Applicant told them that they'd better tell "Mitchell, little son of a bitch, to keep his mouth shut." The reason that Mitchell's parents had moved to New Mexico in the first place was that, because of an earlier threat, they were afraid for their family. They were told that applicant was going to shoot them.

One time, Dalinda was run over by a flatbed trailer, and applicant came over and picked her up. When he did, he asked if she thought he did it (killed her father), and she said "no." It was the only time the murders ever came up between them.

When the capital-murder warrant against applicant was issued and it appeared in the newspaper, applicant left home. United States Marshals were unable to find him at first because he was turning his cell phone on and off. Applicant also called people to try to find out what they were going to be able to testify about him. One of the people he contacted was Dalinda. The United States Marshals were able to trace the call and track applicant to a Days Inn in Paris, Texas, where he was hiding out.

B. Janie's Statement

After the case was reopened, Janie was interviewed by Special Agent VanderVlugt of the United States Secret Service. Initially, she told him that applicant was home the night of the murders, but after taking a polygraph test and being told she failed, she gave a written statement in which she implicated applicant in the murders. At trial she disavowed the parts of her statement that implicated applicant. In light of the other evidence of applicant's guilt outlined above, Janie's recantation of her written statement would not have made any difference, even without the reference to her failing a polygraph test. I do not think that the jury would have believed Janie's recantation.

Janie's written statement was witnessed and signed by two law-enforcement officers. She put her initials at the beginning and end of each paragraph and she signed it at the end. I have appended a copy of the statement to this opinion. In comparing this statement with her trial testimony, I do not think it is remotely likely that the jury would have credited her testimony instead of the written statement.

A sheriff, a Texas Ranger, and a Secret Service agent all testified that Janie had said what was in her written statement. They testified that they did not coerce her and that she gave the statement voluntarily. The prosecutor took them line-by-line through the statement and they confirmed that she said each sentence that inculpated applicant.

Janie had nothing to gain by implicating applicant, but plenty to lose. The written statement itself explains why Janie would later recant: "Bill told me that if I ever told anyone that he and Kenneth killed Johnny and Sarah, he would hurt me. I understood this to mean that he would hurt me, my children and my family." Sheriff Reed said that when Janie was at the Sheriff's office twenty years after the murders, she was still afraid of applicant.

At trial, Janie said that she signed the written statement because she was scared: "There was cops over there." As to its truthfulness, she said, on the one hand, "A lot of things I said in that statement is not true, because I was scared."3 There are a number of statements that she specifically admitted making, but said were not true. On the other hand, she also said about certain things in the statement, "That's put on that paper, but I didn't say that right there."4 Also, "What was said didn't get on that piece of paper."5 In other words, according to Janie, the officers were able to make her say things that were not true because she was scared, but apparently they could not make her say everything they wanted so they added it themselves.

In order for the polygraph evidence to have changed the outcome of this trial, it would have had to move the jury from a level of confidence less than "beyond a reasonable doubt" to "beyond a reasonable doubt." I believe that the jury would have credited the written statement instead of Janie's testimony even if the polygraph evidence had not been introduced. In light of the lack of credibility of her trial testimony and in view of the other evidence of applicant's guilt, I do not believe that applicant has met his burden to show that he is entitled to relief.

C. Why Didn't The Children Speak Up Earlier?

They were scared of applicant. Mitchell was a criminal. Kenneth was a violent man who was involved in manufacturing methamphetamine, counterfeiting money, and setting up an insurance scam. Johnny was himself extremely violent and was also involved in stealing drug precursors, counterfeit plates, and money. Nevertheless, the children promptly implicated Kenneth and Mitchell. This is why: Applicant wanted to kill them; Kenneth didn't. Mitchell testified at trial that it was his impression that applicant wanted to kill them and Kenneth saved their lives. At the scene of the murders, Kenneth and applicant were arguing behind one of the children, and Kenneth was telling the kids to get into the house. Even after the three men left the house and went back to the car, Kenneth and applicant were arguing about the kids. Applicant wanted to go back and kill them because they had witnessed the murders, and Kenneth wanted to leave them alone. Applicant was the only one the children felt threatened by, so he was the only one whose identity they hid.6

Moreover, at least one of them did speak up earlier, although not to the authorities. Aaron told his Aunt Pat-Johnny's sister-and he told his psychiatrist.

Finally, like Janie, Aaron and Dalinda had no motive to falsely accuse applicant and nothing to gain by doing so. If anything, Dalinda had a reason not to falsely accuse him because he had given her a job when she needed one.

D. Conclusion

It took over twenty years to get the witnesses against applicant to come forward and testify against him. Janie, Dalinda, Mitchell, and Mitchell's parents were afraid of him because he killed Johnny and Sarah, threatened to kill the children, threatened to kill Janie and her family, and threatened to kill Mitchell and his parents. They are still afraid of him.

The Court says that the record supports the conclusion that applicant has established prejudice, but because the habeas court recommended denying relief, the record should be viewed in the light most favorable to that recommendation. While there is evidence in this case that would support a recommendation to grant relief, there is more than enough evidence to support a recommendation to deny relief. The habeas judge was also the trial judge, and it is obvious from the record that he remembers the trial testimony vividly. I would deny relief.

I respectfully dissent.

Attachment

deep breath and relax, and these attorneys have some questions they want to ask you. You're among friends and neighbors, so just take a deep breath and relax.

AARON PAUL VICTORY

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. VARLEY:

Q Go ahead and introduce yourself to the jury.

A I'm Aaron Paul Victory.

Q Aaron Paul Victory?

A Yes, sir.

Q The acoustics in this large room, it's hard to hear, so if you don't hear me, let me know, and speak where they can all hear you on the jury. Okay?

A Yes, sir.

Q And where are you currently residing?

A Presently in Oklahoma State Penitentiary.

Q And why are you in the state penitentiary?

A For eluding and burglary.

Q Eluding?

A Yes, sir.

Q okay, what did you do?

A I got pulled over, sir, and they told me to stop and I didn't, and I ran. And when I was on something, I seen a four-wheeler and I jumped on the four-wheeler and I took off, and they finally caught me and I'm in prison for it now.

Q Eluding, and stealing a four-wheeler?

A Yeah, I saw the four-wheeler there and I got on it and left.

Q Okay. You are the son of Johnny Victory. Is that right?

A Yes, sir.

Q And your mama was...

A Stella Victory.

Q And is she still alive?

A No.

Q And your sister is Dalinda, and your other brother is Jonathan? Is that right?

A Yes, sir.

Q We're talking about something that happened way back in 1987. Okay? When your dad and Sarah Raulston were murdered. Do you remember that?

A Yes, sir.

Q Where had you been just prior to going back to or going to Sarah's house?

A We was at the Pizza Hut in Idabel, eating pizza.

Q Idabel, at Pizza Hut?

A Yes, sir.

Q Okay, and who was with you?

A My brother and sister, Dalinda Victory and Jonathan Victory, and Sarah Raulston and my dad, Johnny.

Q Okay, and I'm assuming that y'all left the Pizza Hut.

A Yes, sir.

Q And where did you go to then?

A We went back to Sarah's store, which is right outside the line.

Q By the state line?

A Yes, sir.

Q Okay.

A And we stopped there and got some munchies and stuff.

Q Did you...

A And we headed on back.

Q Okay, whose car were you in?

A My father's.

Q And what about Jonathan and Dalinda? Who were they riding with?

A Sarah.

Q Okay, and what happened when you got to the house? I'm assuming you went to Sarah's house?

A Yes, sir. We pulled up — Sarah was in front of me and my dad, and we pulled up in Sarah's driveway and it was a big dog there, and my daddy told me to sit in the car. We sat in the car and Sarah got out and tied the dog up, and then we all — we got out of the car.

Q `Okay.

A And then my daddy grabbed me and the groceries and we started on up to the house.

Q Ummm-hmmm.

A And as we was going up, my daddy sat me down and 1 could hear a shot and my daddy and Sarah fell down, and then me and — I ran to the freezer. I stopped by my dad first, because I didn't know — I didn't think my dad could get hurt.

Q You didn't think your dad could get hurt?

A And then there's a deep freezer in back of the carport, and more eventually I ended up — I ran around to the end of it in the back of the carport. Just hid my head. I ran around the end of it and Jonathan was there, too.

Q So you and Jonathan were there by yourselves?

A Yeah.

Q Where was Dalinda? Do you remember?

A No, at the time I don't, because I'm scared and I don't know what's going on or nothing. And as I was sitting there, I saw this armadillo start to come out. The carport comes in this way, and on the side of that, and the armadillo comes and I look up.

Q What do you do after you see the armadillo?

A I just kind of look up to see what's going on, because I'm real scared.

Q What do you see going on?

A I see two men.

Q You see two men?

A Yeah.

Q Do you know these men?

A Yeah.

Q Who do you see?

A I see Kenneth Raulston and Bill Bryant.

Q You see Bill Bryant there?

A Yes.

Q And did either one of them have a gun in their hand?

A Yes.

Q Who had the gun in their hand?

A Bill, and the other one had — one had one and the other one had one, holding it like this (indicating).

Q How did you know Bill? How do you know Bill?

A From I remember seeing him and mama and my cousins.

Q He was around?

A Yeah.

Q And you're sure after all these years that it was Bill Bryant that you saw?

A Well, I also had seen him around Kenneth Raulston prior to my dad getting back to my mom. So he would come over to our house over in Paris where Kenneth Raulston and my mom lived.

Q Yes.

A And they would come over there.

Q Who would?

A Bill Bryant and Kenneth Raulston and some of their friends. They would come over there when my mom got hurt, and they would come over there and stay after my mom got hurt.

Q When you say got hurt, she got hurt because your dad beat her up? Is that what happened?

A I guess.

Q All you know is she got hurt?

A Yeah, that's all I know. My mom was hurt.

Q And did you ever hear them talking when they were there, talking about doing something?

A Yeah, they talked about killing my dad and stuff.

Q Did you hear Kenneth and Bill talking about killing your dad?

A Yeah, Kenneth mostly. Kenneth was the one boasting about it, because my dad pushed Kenneth to the ground a little bit, you know. He was a pretty rough man, and he caught him a couple of times fooling around a little bit.

Q Kenneth was messing with your mom?

A Yeah, and so Kenneth was pretty mad, I guess, at my father.

Q Okay, and but you're sure — let me ask you this. Y'all gave statements back then when you were kids. You gave your statement to the juvenile probation officer, I believe.

A Yes, sir.

Q And a guy probably talked to you. In fact, then you didn't say — you know, you used the word Tom. You said something about Tom. Do you know a man named Tom?

A No, sir. Sir, the way we was raised, what I'm doing now, I'm going against everything I've ever known. We didn't go in there and call police. We was taught not to tell. And my daddy also told us not to tell on anything, and that was a big part of it.

Q Are you taking a big risk, you feel, by sitting in that chair today, telling these people what happened?

A Yeah, when I get back to prison, they'll be talking and they don't like snitches in the world I live in.

Q Let me ask you this. I think the Texas Ranger and the Sheriff came up to visit you one time, and you wouldn't talk to them.

A No, sir.

Q And it was found out that they had even come to visit you about this.

A Yes, sir, they did.

Q Did you get a visit then?

A Yes, they called me a day and a half, two days later. I went to the bathroom and here come the Brotherhood. They come in...

Q You say the Brotherhood. What does that mean?

A It's the Aryan Brotherhood. The Aryans, and they had got word how the Texas Rangers come up and talked to me about all this, and they called me a snitch so I started fighting. I got a pretty good stomping over that, and that's what happened on that deal.

Q Okay. Nobody promised you anything? You're not getting anything out of this. Why are you testifying,

A He killed my daddy, you know.

Q Is that the man sitting over here next to this lawyer that killed your dad?

A Yeah.

Q May the record reflect he identified the defendant as the man who killed his father?

THE COURT: Ladies and gentlemen, the record will so reflect.

Q I pass the witness.

CROSS EXAMINATION

BY MR. MEEHAN:

Q Mr. Victory, how old are you sir?

A Excuse me, sir?

Q How old are you?

A I'm twenty-nine as of yesterday.

Q And you say you're in prison for eluding and burglary. Is that right?

A Yes, sir.

Q And the first time you went to prison was what, 2003?

A Yes, sir.

Q And that was for false impersonation?

A Yes, sir.

Q Was that in Oklahoma?

A Yes, sir.

Q And you went to prison in 2004 for carrying a firearm during probation.

A No, sir, when I went down the first time, I went on carrying a firearm, also.

Q You got two years and four years?

A All of them CC.

Q And another four years for knowingly concealing stolen property.

A Yes, sir.

Q And then in November of 2005, you got twelve years for grand larceny. Is that right?

A Yes, sir.

Q That's a theft, stealing stuff.

A Yeah, stealing.

Q And then you got five years for grand larceny at the same time. Is that right?

A Yes, sir.

Q And five years for second degree burglary at the same time.

A Sir, I have to go back on the five years. I got twelve years on all my cases when I was eluding. I don't know where the five come from, but it's all twelve. It's all seventeen, and I got twelve and five years probation.

Q In Oklahoma I think you get probation after you have been in the penitentiary. Is that right?

A Yes, sir.

Q I'm just looking at the different offenses, and I understand they are all running at the same time or running concurrently; but there was two grand larceny, two second degree burglary, burglary of an automobile, eluding or attempting to elude a police officer for five years and the same offense for twelve years. Then a second degree burglary for twelve years and another second degree burglary for twelve, burglary of a motor vehicle for twelve years, and then they've got something here for felon with a firearm. Does that all sound familiar to you?

A Yes, sir.

Q And do you remember giving a statement initially, after your father was killed, like the next day or two?

A In the statement — I don't remember much of a statement.

Q Do you remember doing that, though?

A Yeah, I remember talking to officials and stuff.

Q And that was just a day or two after it happened.

A I don't know if it was a day or two or what, but I remember doing it.

Q Did they talk to you more than once?

A Yes, sir.

Q And at that time you were eight years old. You weren't a guy that had been to prison two or three times at that point. Is that right?

A That's right.

Q And you don't remember telling them that Kenneth Raulston was there?

A Excuse me, sir?

Q Do you remember telling them that Kenneth Raulston was there?

A Yes, sir.

Q Do you remember telling them that Tom was there?

A Yes, sir.

Q And did you ever tell them that Mitchell Dickey was there?

A Yes — I don't remember, sir, about Mr. Dickey.

Q Did you know Mr...

A Yes.

Q Dickey?

A Yes, sir.

Q And you have never told anybody that Bill Bryant was involved until today? Is that right?

A Excuse me, sir?

Q Have you told anybody this story that Bill Bryant was involved in this thing until today?

A No, sir, I told my aunt. My aunt that got us back, my Aunt Pat. My dad's sister. I told her. She contacted people, I guess, and told them, and I told my psychiatrist.

Q Your psychiatrist?

A Yeah.

Q And you loved your daddy, obviously.

A Yes, sir.

Q You would like to get back at whoever hurt him.

A Not to get back, sir, no. Just for them to pay for what they did. I don't want to get back at nobody, sir.

Q Thank you, Mr. Victory. I'll pass the witness.

MR. VARLEY: No further questions.

THE COURT: Sir, you may stand down. Call your next, Mr. Varley.

MR. VARLEY: I call Janie Mussett.

JANIE MUSSETT

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. VARLEY:

Q State your name, please.