Opinion
NO. WR-75,828-02
10-02-2019
EX PARTE PAUL DAVID STOREY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-3-011020-1042204-B IN CRIMINAL DISTRICT COURT NO. 3 FROM TARRANT COUNTY
YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined. DISSENTING OPINION
During her final summation at the punishment phase of Applicant's capital murder trial, the prosecutor made the following statement:
And it should go without saying that all of the Jonas's [the victim's] family and everyone who loved him believe the death penalty is appropriate.It is bad enough that there was no evidence in the record to support this statement. Applicant now claims that, as it later turned out, it was also patently false.
We remanded this cause for additional record development with respect to whether Applicant's various claims satisfied Article 11.071, Section 5(a)(1), and instructed the trial court to proceed to the merits should it find no abuse of the writ under that provision. Ex parte Storey, No. WR-75,828-02, 2017 WL 1316348 (Tex. Crim. App. Apr. 7, 2017) (not designated for publication); TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1). At an evidentiary hearing on remand, the victim's parents testified that, not only were they opposed to the death penalty in the abstract, they were also specifically opposed to the State's efforts to obtain the death penalty for Applicant's murder of their son. They also maintained that they informed the prosecutors that they opposed the death penalty, both generally and as applied to Applicant, during their initial meeting with the State. While this testimony did not go entirely un-impeached during the writ hearing, the convicting court has recommended that we find that the State's rebuttal evidence lacks credibility. While it may be tempting to rely on information developed at the hearing, we must first decide whether we agree with the trial court's determination that the pleadings in this case satisfy the requirements of Section 5(a)(1). For this reason, I will restrict my own consideration of the issue of initial habeas counsel's "reasonable diligence" to the facts contained in the writ application itself.
Applicant has filed a subsequent post-conviction application for writ of habeas corpus, alleging (among other things) that the prosecutor's statement constituted the knowing use of false evidence and that the failure to disclose its falsehood constituted suppressed evidence that was favorable to the defense, under Brady v. Maryland, 373 U.S. 83 (1963). While Applicant's allegation does not fit neatly within either the jurisprudence of false evidence or that of the suppression of favorable evidence for Brady purposes, it would not be a stretch to conclude that the prosecutor's statement, if indeed false, violates due process in some yet-to-be-fully-articulated way that is analogous to both of these theories.
Today the Court dismisses Applicant's various claims on the grounds that he "has failed to meet his burden to show that the factual basis for the remanded claims was unavailable on the date he filed" his initial application for post-conviction habeas corpus relief, and therefore "failed to satisfy the requirements of Article 11.071, [Section] 5." Court's Order at 5; see TEX. CODE CRIM. PROC. art. 11.071, § 5(a) (prohibiting courts from entertaining the merits of a claim raised in a subsequent post-conviction writ application unless the application "contains sufficient specific facts establishing that" the factual basis for the claim was unavailable when a previous writ application was filed). It is not self-evident to me, however, that the writ application fails to "contain sufficient specific facts" to establish unavailability. In my view, the Court should at least file and set this cause to better explain how it comes to that conclusion. The Court seems to conclude that Applicant's initial writ counsel did not exercise "reasonable diligence" to investigate such a claim prior to filing Applicant's original post-conviction writ application. Court's Order at 4-5; see TEX. CODE CRIM. PROC. art. 11.071, § 5(e) (a factual basis was previously unavailable if it "was not ascertainable through the exercise of reasonable diligence" prior to the due date for a previous capital writ application). There is reason to doubt the propriety of the Court's conclusion, and we would benefit from additional briefing from the parties.
Specifically, there is reason to doubt—whatever the ordinary parameters of "reasonable diligence" might ultimately prove to be in a habeas corpus investigation—that Applicant's initial habeas counsel should have been required to investigate the veracity of assertions of fact that the prosecutor made during her closing argument. The United States Supreme Court has made it clear that due process will not tolerate the imposition of a diligence requirement upon a habeas applicant who claims deliberate and persistent prosecutorial misconduct. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004) ("When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight."). And that is, in essence, what Applicant appears to claim has happened here.
In Banks, the State of Texas failed to disclose, both at trial and at any point during the subsequent post-conviction proceedings, that one of its principal punishment phase witnesses had testified falsely. Id. at 678, 680 & 683. It was not until Banks finally obtained discovery of the State's file and an evidentiary hearing during federal habeas corpus proceedings that he uncovered the falsehoods, as well as the State's persistent failure to disclose them. Id. at 684-85. The federal district court granted Banks a new punishment-phase hearing, while affirming the guilt phase of his trial. Id. at 686-87. In the appeal that followed, the State argued that Applicant should not have been granted an evidentiary hearing in federal court because he had not pursued his Brady claim with sufficient diligence during the state post-conviction habeas corpus proceedings, and the Fifth Circuit agreed. Id. at 688.
On petition for certiorari, however, the United States Supreme Court reversed the Fifth Circuit's judgment. It held that to impose a requirement of diligence upon a federal habeas applicant to pursue a Brady claim, even in the face of stubbornly persistent prosecutorial denials that any exculpatory or impeaching evidence remained undisclosed, was inconsistent with bedrock due process principles. See id. at 694 ("[I]t was . . . appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction."); id. at 696 ("A rule . . . declaring 'prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process."); id. at 698 ("It was not incumbent on Banks to prove [the State's] representations false; rather, Banks was entitled to treat the prosecutor's submissions as truthful.").
It is at least arguable that these same bedrock due process principles should be considered when we construe the meaning of "reasonable diligence" for purposes of making the determination whether Applicant's present arguments were "available" at the time when he filed his original post-conviction application for writ of habeas corpus in this case. If we were to conclude that these principles apply in a case like this, then the Court would be mistaken even to ask whether Applicant's original habeas counsel, Robert Ford (now deceased), ever tried to investigate the accuracy of the prosecutor's assertion during her final arguments at the punishment phase of trial—that all family members wanted Applicant to be executed. Assuming that the prosecutor's jury argument that the family had endorsed Applicant's execution was indeed false, the State has yet to "set the record straight" with respect to the veracity of that statement. Even as late as its original response asking this Court to dismiss Applicant's subsequent writ application for a failure to establish reasonable diligence, the State has failed to concede that the prosecutor's assertion was false.
Because "it is ordinarily incumbent on the State to set the record straight[,]" id. at 675-76, we should at least explore the possibility that "reasonable diligence" should not be read to embrace a requirement that original state habeas counsel must second-guess the truthfulness of a prosecutor's factual assertions during final argument in the punishment phase of a capital murder trial. I would at least file and set this cause and request additional briefing from the parties regarding this possibility. Because the Court does not, I dissent.
I do not mean to suggest that I believe it has yet been established, as a matter of fact, that the prosecutor's assertion was false. I mean only to convey that: 1) Applicant has pled facts to establish that it was false, and that the prosecutor knew it to be so; and 2) if those allegations of fact are true, then, in the absence of a concession by the State that the prosecutor's assertion was false, Appellant may well have alleged "sufficient specific facts to establish" the statutory "reasonable diligence" requirement that would authorize him to proceed to litigate his subsequent writ application. We may yet conclude upon full litigation of the issue that the assertion was not false after all, and the State might then prevail on the merits. But the question before us today is simply whether we agree with the convicting court's ultimate conclusion that Applicant should be allowed to proceed to the merits of his claims, given the strictures of Article 11.071, Section 5(a)(1) & (e).
I would also order additional briefing on the merits of Applicant's claims. Additional briefing would be appropriate because Applicant's claims do not readily fit the mold of either 1) the presentation of false evidence or 2) the suppression of evidence favorable to the defense under Brady. Indeed, on the surface, Applicant's claims do not seem to involve evidence at all; rather, they seem to involve some kind of error in the jury argument, occurring after the presentation of evidence was complete and the parties had closed.
The prosecutor assured the jury that all of the victim's family supported the State's attempt to obtain the death penalty for Applicant. Even assuming that this was objectively accurate, no evidence to that effect was introduced at trial. Applicant's trial counsel could therefore have objected—conceivably on at least three grounds. First, it constituted facts not in evidence, since no family member testified to that effect. See Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) ("A prosecutor may not use closing arguments to present evidence that is outside the record."). Second, it might be argued that the victim's family's belief that death would be the appropriate punishment for the victim's murder is irrelevant to the future dangerousness special issue, and that it inappropriately invades the jury's normative function under the mitigation special issue. TEX. CODE CRIM. PROC. art. 37.071, §§ 2(b)(1) & 2(e)(1). Third, such evidence has been held to be patently objectionable under the Eighth Amendment. Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016). Applicant could have—but did not—make a trial objection on any of these bases. Had they done so, the error inherent in the prosecutor's assertion might have been limited in concept to an ordinary jury-argument error, quite apart from the fact that it was false.
Whether the family thinks a death sentence for Applicant would be appropriate is simply irrelevant to the question whether he would continue to commit criminal acts of violence that would constitute a continuing threat to society. TEX. CODE CRIM. PROC. art. 37.071, § 2(b)(1). Whether it might be relevant to the jury's determination of the weight of the mitigating evidence is, perhaps, debatable. TEX. CODE CRIM. PROC. art. 37.071, § 2(e)(1). But even if relevant to the jury's mitigation determination, it is arguably more prejudicial than probative to the extent that it might cause a jury to simply abdicate its own normative judgment in favor of the family's preference, and it might be objectionable under Rule 403 for that reason. TEX. R. EVID. 403. In any event, the United States Supreme Court has held that evidence of the family's punishment preference in a death penalty case is objectionable under the Eighth Amendment. See Booth v. Maryland, 482 U.S. 496, 508-09 (1987) (testimony from family members in a capital case relating their opinions about appropriate punishment violates the Eighth Amendment); Bosse, 137 S. Ct. at 2 (applying Booth's holding to prohibit testimony from family members that a capital murder defendant should receive the death penalty).
In an affidavit attached to Applicant's subsequent writ application, one of his trial attorneys explains that he did not object because "I believed that the Court would find that the argument was 'invited' by and in response to the testimony that we had introduced from members of [Applicant's] family asking that the jury spare his life. As I believed that the Court would ultimately overrule my objection on that basis, I did not want to provide the State with the opportunity to repeat or emphasize the argument in response to my objection."
But, of course, such errors would then be available on direct appeal, and not ordinarily the subject of a post-conviction application for writ of habeas corpus—much less a subsequent writ application. See Ex parte Moss, 446 S.W.3d 786, 788-90 (Tex. Crim. App. 2014) (holding that only category one claims, under the rubric of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), can be raised for the first time in an initial post-conviction application for writ of habeas corpus when it could have been, but was not, raised on direct appeal; but warning that even such a category one Marin claim may not be actionable in a subsequent writ application).
But Applicant now claims that it was also false, and the record supports the conclusion that Applicant's trial counsel did not know it was false. And that part of Applicant's pleadings injects additional due process considerations into the case, appropriate for consideration in post-conviction habeas corpus proceedings. Had Applicant's trial lawyers been aware that the prosecutor's family-endorsement argument was not just objectionable, but also false, they might well have been dissatisfied with merely objecting to it as facts outside the record or facts constitutionally inappropriate to the jury's punishment-phase function. They might have regarded a judicial instruction to the jury to disregard the prosecutor's argument as inadequately remedial.
Judge Hervey argues that, instead of conceptualizing this case along the lines of a false-evidence or suppression-of-mitigating-evidence theory of due process, we should analyze it under the rubric of cases such as Darden v. Wainwright, 377 U.S. 168 (1986), and Romano v. Oklahoma, 512 U.S. 1 (1994). But those cases are plainly distinguishable. Darden involved a prosecutor's runaway rhetorical flourishes during his summation, and the question was simply whether his rhetoric was so much more prejudicial than probative as to surpass the tolerances of due process. 377 U.S. at 179-83. In Romano, the State was permitted to introduce evidence that the defendant had previously received the death penalty from another jury in another case—which case was later reversed on appeal. The question was whether informing the jury of that prior death sentence rendered his subsequent capital punishment proceeding constitutionally unfair because it undermined the jury's sense of responsibility for determining the appropriateness of the death penalty for the second capital offense. Romano, 512 U.S. at 3. Neither of these cases involved an insertion before the jury of facts that were—not just hyperbolic or inflammatory or trivializing—but also false. If the prosecutor knowingly injected a falsehood into the punishment proceedings, that may well serve to reduce the level of materiality Applicant must satisfy in order to prevail on his due process claim. See Ex parte Lalonde, 570 S.W.3d 716, 726-27 (Tex. Crim. App. 2019) (Keller, P.J., concurring) (noting that the materiality standard for the knowing use of false evidence in a post-conviction habeas corpus proceedings "is the same as the harm standard for constitutional error on direct appeal"). Indeed, this potentiality is one reason, among many, that it would benefit the Court to file and set this cause and obtain briefing from the parties.
Instead, having been taken by surprise when the prosecutor made her false assertion, Applicant's trial counsel may well have preferred, had they known it was false, not merely to object to it and to seek an instruction to the jury to disregard it, but to actually refute it with—wait for it— evidence. They might have preferred to invoke Article 36.02 of the Code of Criminal Procedure to ask the trial court to reopen the evidence so that the parents (at least) could rectify the prosecutor's falsehood under oath. Of course, because the State had not told defense counsel that the parents actually opposed the death penalty for Applicant (or so Applicant claims), Applicant argues that this now-favorable evidence was suppressed, and Applicant's trial counsel did not know that asking the trial court to re-open the case for the introduction of rebuttal evidence was an option. In this sense, then, Applicant's claim seems at least analogous to a Brady claim, if not also a false-evidence claim. I would order the parties to brief both of these claims.
See TEX. CODE CRIM. PROC. art. 36.02 ("The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.") (emphasis added). --------
What I would not do is simply declare that Applicant's original writ counsel—who is now deceased and unable to respond to claims about his diligence—failed to diligently investigate the present claims, and dismiss the subsequent writ application on that basis. I would file and set the cause and order additional briefing, as indicated above. Because the Court does not, I respectfully dissent. FILED: October 2, 2019
PUBLISH