Ex parte Fierro

• Decision Date: 11 September 1996
• Docket Number: No. 71899,71899
• Citation: 934 S.W.2d 370
• Parties: Ex parte Cesar Robert FIERRO a.k.a. Cesar Roberto Reyna.
• Court: Texas Court of Criminal Appeals

Page 370

934 S.W.2d 370

65 USLW 2272

Ex parte Cesar Robert FIERRO a.k.a. Cesar Roberto Reyna.

No. 71899.

Court of Criminal Appeals of Texas En Banc.

Sept. 11, 1996.

Rehearing Denied Nov. 27, 1996.

David R. Dow, Jean M. Terranova, Houston, for appellant.

John L. Davis, Assistant District Attorney, El Paso, Matthew Paul, State's Attorney, Austin, for the State.

KELLER, Judge.

OPINION

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Applicant was convicted of capital murder and sentenced to death. We affirmed his conviction. Fierro v. State, 706 S.W.2d 310 (Tex.Crim.App.1986).

In his writ application, applicant contends that the State knowingly presented perjured testimony during a pretrial hearing on applicant's motion to suppress his confession. Applicant claimed during the suppression hearing, and has since maintained, that his confession was coerced by the threat that his mother and stepfather were being held by the Juarez police. The El Paso police officer who took applicant's confession, Al Medrano, testified at the suppression hearing that he had no knowledge that applicant's mother and stepfather were under arrest in Juarez and therefore could not have used that fact to coerce the confession. It was subsequently discovered that a supplemental offense report reflected that applicant's parents were in the custody of the Juarez police. We accordingly abated applicant's writ application and ordered the trial court to conduct a hearing and enter findings of fact and conclusions of law addressing applicant's allegations and any other matters it deemed relevant to disposition of the case. Ex Parte Fierro, No. 71,899, slip op. (Tex.Crim.App. Oct. 12, 1994) (unpublished).

After considering live testimony of seventeen witnesses, letter rogatory testimony, ¹ and numerous exhibits, affidavits and pleadings, the trial court entered findings of fact as follows:

1) That at the time of eliciting the Defendant's confession, Det. Medrano (now deceased) did have information that the Defendant's mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to said Det. Medrano's testimony at the pretrial suppression hearing.

2) That the District Attorney's Office did not withhold this Supplemental Offense Report from the attorneys for the Defendant.

3) That Det. Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979. There was no evidence produced to show that such practices are still taking place.

The trial court made the following conclusions of law:

1) That there is a strong likelihood that the Defendant's confession was coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano.

2) It is not the conclusion of this Court that the Defendant should be released from these charges, but that he should be retried by another jury who will then render a verdict based on all the evidence, both old and new that has been developed at these hearings.

Applicant urges that we adopt the findings of the trial court and grant him relief based upon his claim that the State used perjured testimony. After reviewing the record, we find that the trial court's factual findings are adequately supported. As a result of the trial court's findings and the evidence in the record, we conclude that applicant's due process rights were violated by Medrano's perjured testimony. ² But, because we conclude that the error was harmless, we deny relief. ³

Traditionally, on habeas corpus review involving federal constitutional error that is subject to a harmless error analysis, we have placed on the defendant the burden of proving, by a preponderance of the evidence, that the error contributed to his conviction or punishment. Ex Parte Dutchover, 779 S.W.2d 76, 78 (Tex.Crim.App.1989). See also Ex Parte Crispen, 777 S.W.2d 103, 109 n. 6 (Tex.Crim.App.1989) (plurality opinion) (Clinton, J. concurring). Ex Parte Barber, 879 S.W.2d 889, 891-892 (plurality opinion) & 893 (Meyers, J. concurring) (Tex.Crim.App.1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). We apparently made an exception in the case of "knowing use of perjured testimony" by holding that, when such is shown, the Rule 81(b)(2) harmless error standard applies. ⁴ Adams, 768 S.W.2d at 292. Castellano, 863 S.W.2d at 485. In applying Rule 81(b)(2), we relied upon Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), which held that error in the admission of perjured testimony was governed by a "materiality" standard identical to the harmless error standard announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), upon which Rule 81(b)(2) was based. Adams, 768 S.W.2d at 292. But Napue and Bagley both involved direct rather than collateral attacks. The Supreme Court has now clarified that the Chapman standard need not apply to collateral review of federal constitutional trial errors. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). ⁵

While some constitutional errors are not subject to a harmless error analysis, "they are the exception and not the rule." Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to a harmless error analysis." Id. at 579, 106 S.Ct. at 3106-07. An error is subject to a harmless error analysis unless it is "structural." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991). An error is "structural" only if it is the kind of error that affects the framework in which the trial takes place and defies analysis by harmless error standards. Id. at 309-310, 111 S.Ct. at 1264-65. The Supreme Court has recognized the following as examples of structural error: total deprivation of counsel at trial, a biased judge, the unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation at trial, and denial of the right to a public trial. Id. On the other hand, "trial" error is error which occurs during the presentation of evidence at trial, and may "be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless." Id. at 307-308, 111 S.Ct. at 1263-64. ⁶

The "knowing use of perjured testimony" is clearly error involving the presentation of evidence, and as such, carries all the hallmarks of trial error. The error is quite unlike the examples of structural error listed by the Supreme Court. Those examples defy quantitative comparison because the entire trial process is tainted by the constitutional violation. Not so with perjured testimony: ordinarily, there will also be non-perjured evidence, which would not carry the taint of the constitutional violation. Whether the perjured testimony harmed the defendant can be quantitatively assessed by examining the remaining evidence at trial and the effect of the perjured testimony upon that evidence.

Moreover, the fact that Bagley contains a materiality standard is an indication that Bagley error is not structural. This conclusion is buttressed by the fact that the Supreme Court has held the materiality standard for the knowing use of perjured testimony to be equivalent to the Chapman harmless error standard. See Bagley, 473 U.S. at 679 n. 9, 105 S.Ct. at 3382 n. 9. Moreover, the Supreme Court has held that the Bagley standard may be legitimately characterized as either a "harmless error" standard or a "materiality" standard: "Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to a harmless error review, it may as easily be stated as a materiality standard." Id. at 679-680, 105 S.Ct. at 3382. The Supreme Court made clear that, unlike error arising from admission of perjured testimony, error in the suppression of exculpatory evidence would be subject to a less stringent harmless error standard on direct appeal than that ordinarily accorded to federal constitutional trial errors. ⁷ 473 U.S. at 678-681, 105 S.Ct. at 3381-83. Hence, the Supreme Court appears to have at least implicitly held that the knowing use of perjured testimony is the kind of error that is subject to a harmless error analysis.

Because the materiality standard for perjured testimony is identical to the Chapman harmless error standard, a finding of materiality would obviate the need to conduct a harmless error analysis on direct appeal. The Supreme Court has not expressly addressed the issue of whether a separate harmless error standard applies on collateral review to the knowing use of perjured testimony. The Court has addressed the applicability of a separate harmless error standard to the suppression of exculpatory evidence. It rejected the standard in that context because the materiality standard for such error is already more lenient (to the State) than the federal habeas harmless error standard. Kyles v. Whitley, 514 U.S. 419, ---- and ---- n. 9, 115 S.Ct. 1555, 1567 and 1567 n. 9, 131 L.Ed.2d 490, 507 and 507 n. 9 (1995). ⁸ But, because the materiality standard for the knowing use of perjured testimony is the Chapman harmless error standard, the materiality standard is more stringent (on the State) than either the state or federal habeas harmless error standards. This leaves open the possibility of applying a separate harmless error standard on collateral review.

In fact, in the wake of Brecht (holding Chapman to be the inappropriate...