Ex parte Adams

• Decision Date: 01 March 1989
• Docket Number: No. 70787,70787
• Citation: 768 S.W.2d 281
• Parties: Ex parte Randall Dale ADAMS, Applicant.
• Court: Texas Court of Criminal Appeals

Page 281

768 S.W.2d 281

Ex parte Randall Dale ADAMS, Applicant.

No. 70787.

Court of Criminal Appeals of Texas,

En Banc.

March 1, 1989.

Randy Schaffer, Houston, for appellant.

John Vance, Dist. Atty., Leslie McFarlane, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

DUNCAN, Judge.

This is an application for a writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. An extensive hearing was held by the trial court who made findings of facts and conclusions of law.

The applicant was originally convicted in 1977 of the capital murder of Robert Wood, a Dallas police officer, and assessed the death penalty. Based upon the testimony elicited in applicant's trial, the Dallas police officer was shot and killed by the driver of an automobile he and his partner had stopped for failing to have its headlights turned on. The State's main witness was David Harris, who was sixteen years old at the time of the offense. ¹ According to Harris, several days prior to the murder he had stolen the car involved in the murder, as well as the murder weapon from a neighbor in Vidor, Texas. After leaving Vidor he soon made his way to Dallas where he picked up the applicant, who was hitchhiking. Harris stated that after he had picked up the applicant they drove around during the day prior to the murder drinking and smoking marihuana. That evening they went to a movie. After leaving the movie, with the applicant driving the stolen automobile, they were stopped by the police. Harris, fearing he would be identified, slumped down in the front seat. According to Harris, as the police officer approached the car the applicant reached under the front seat, where he knew the stolen pistol was located, removed the weapon and shot Officer Wood several times. Then they drove off.

Harris testified that after the murder, he left the applicant at his motel and returned to Vidor the next day. While in Vidor Harris was arrested for the theft of the car and released to his parent's custody. Afterwards, he bragged to his friends that he had killed a Dallas police officer. Several days later Harris was again arrested after the Vidor police heard of his comments about the Dallas police officer. After again being taken into custody Harris changed his story and told the police that the applicant had shot Officer Wood.

The applicant testified in his own behalf and in summary stated that Harris had left him at his motel after the movie and that he was not with Harris when Officer Wood was killed.

In rebuttal, the State called three witnesses. Emily Miller testified that she and her husband, Robert, drove past the scene of the shooting after the assailant's car had been stopped but before the police officer was shot. She and her husband both specifically identified the applicant as being the only person present in the suspect vehicle. The other rebuttal witness was Michael Randel who stated that he saw two people in the car and specifically identified the applicant as being the driver.

The applicant's conviction and sentence of death was affirmed by this Court. Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979). The United States Supreme Court, however, reversed the applicant's death sentence when it concluded that § 12.31(b), Tex.Penal Code was being unconstitutionally utilized to exclude prospective, qualified jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Upon reacquiring jurisdiction of the case and consistent with the Supreme Court's opinion, this Court granted the applicant a new trial. During the interim, however, at the request of the Dallas District Attorney, then Governor Clements commuted the applicant's death sentence to a life sentence. Thereafter, on the State's Motion for Rehearing, the applicant's conviction and life sentence were affirmed. Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981).

In his application for writ of habeas corpus, the applicant presents thirteen grounds to support his request for a new trial. Among those urged by the applicant and pertinent to this opinion are the following paragraphs: Paragraph V claims that the applicant is not guilty of the offense; Paragraph VI asserts that the applicant was denied his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 10 of the Texas Constitution when he was prevented from cross-examining Harris relative to two burglaries and an aggravated robbery pending against him at the time of the trial; Paragraph VIII argues that his right to due process of law under the Fourteenth Amendment to the United States Constitution and due course of law under Art. I, § 19 of the Texas Constitution was infringed when the State suppressed Officer Wood's partner's initial description of the driver of the suspect automobile; Paragraph X claims that the applicant's right to due process and due course of law was violated when the State knowingly suppressed a prior inconsistent statement made by Emily Miller; Paragraph XI asserts that the applicant's rights to due process and due course of law were violated when the State knowingly suppressed evidence that Emily Miller had failed to identify the applicant in a police lineup and a police officer advised her that she did not identify the applicant and told her which person she should have identified; Paragraph XII, consistent with the preceding contention, claims that the applicant's conviction was obtained in violation of due process and due course of law when Emily Miller committed perjury when she testified outside the presence of the jury that she had identified the applicant in a police lineup; Paragraph XVII, in numerous sub-paragraphs claims that the applicant was denied effective assistance of counsel in violation of the due process clause of the Fourteenth Amendment and the due course of law provision in Art. I, § 19 of the Texas Constitution.

As previously noted, the trial court has provided us with findings of fact and conclusions of law and therein recommends that the request for habeas corpus relief based on the contentions found in Paragraphs VI, VIII, X, XI, XII of the application for writ of habeas corpus be granted and that Paragraph XVII be conditionally granted and concludes that the applicant should be afforded a new trial. He also recommends that the relief requested in the remaining paragraphs be denied.

In response, the State filed "State's Response to Applicant's Writ of Habeas Corpus" which states as follows:

Having reviewed the testimony of the evidentary hearing held in the above-styled and numbered cause, the State has no objection to the trial court's finding regarding the testimony of Emily Miller at the original trial and the finding that Applicant is entitled to a new trial.

Because of the State's response, we therefore find it necessary to discuss only those allegations asserted in Paragraphs X, XI and XII of the Application for Writ of Habeas Corpus. Initially, however, we will also review the findings made by the trial court in Paragraph V for reasons that will be apparent later in this opinion.

As previously noted, in Paragraph V the applicant claims that he is entitled to habeas corpus relief and a new trial because "he is innocent of the offense for which he was convicted." During the hearing on the applicant's writ of habeas corpus Harris recanted his trial testimony and attested to the innocence of Adams. Harris stated that he testified against the applicant during the trial because of promises made to him by the prosecutor, Douglas Mulder. Although Mulder disputes this testimony, it is uncontroverted that at the time of the trial Harris had pending against him in Vidor two burglary cases, an aggravated robbery case, and that a motion to revoke his juvenile probation had been prepared. It is further uncontroverted that after the applicant's trial those charges "disappeared." During the writ hearing, the applicant presented testimony from Sam Catrell, Chief of the Orange Police Department. During December, 1977, Catrell was an officer with the Vidor Police Department and arrested Harris on the burglary offenses and the aggravated robbery offense. He also testified that he acquired written confessions from Harris to those offenses, but those offenses were never actually filed. Catrell testified:

Because of the fact that at the time David [Harris] was a material witness in the offense in Dallas as to whether specifics of an agreement or any agreement, if any, were made, I don't know. It was just our understanding that David would come to Dallas and testify in the trial in Dallas. And there was some type of provisions made for him to go to some--whether it be--not necessarily an institutional setting, but some type of setting remove him from the environment. He in Vidar and possibly provide him some help from the problems he had. [sic et passim ]

Chief Catrell also testified that it was his understanding that Harris would not be prosecuted for the burglaries or the aggravated robbery and his probation would not be revoked. Catrell further stated that "with all certainty, he [Harris] was not ..." prosecuted for those offenses. In fact, according to Catrell, "[t]hey weren't filed with the District Attorney...." Consequently, it would have been legally impossible for Harris to have been prosecuted for the offenses if they weren't filed with the District Attorney.

Irrespective of whether a "deal" was struck with Harris in exchange for his testimony against the applicant it is uncontradicted that he was never prosecuted for those charges and actually enlisted in the Army after the applicant's trial. ²

Based in part on testimony and other evidence, Judge Baraka concluded that "Although the court cannot determine the applicant is 'innocent' of the Wood murder ["Since innocence is not a basis in Texas for a new trial ..."],...