Ex parte Castellano

• Decision Date: 29 September 1993
• Docket Number: No. 1497-92,1497-92
• Citation: 863 S.W.2d 476
• Parties: Ex parte Alfred CASTELLANO.
• Court: Texas Court of Criminal Appeals

Page 476

863 S.W.2d 476

Ex parte Alfred CASTELLANO.

No. 1497-92.

Court of Criminal Appeals of Texas En Banc.

Sept. 29, 1993.

Mark Stevens and Stephanie Barclay, San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., Edward F. Shaughnessy, III, and Daniel Thornberry, Asst. Dist. Attys., San Antonio, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of arson pursuant to Tex.Penal Code Ann. § 28.02. Punishment was assessed at five years confinement, probated. Tex.Code Crim.Proc.Ann. art. 42.12. The Court of Appeals affirmed. Castellano v. State, No. 04-86-00061-CR (Tex.App.--San Antonio, October 30, 1987) (not published). Appellant subsequently filed two applications for writ of habeas corpus in the convicting court but in each instance the habeas judge denied the writ. On January 9th, 1992, the new presiding judge of the convicting court issued a writ of habeas corpus on appellant's third application and held a hearing. However, the habeas judge denied relief and the Court of Appeals affirmed. Castellano v. State, No. 04-92-00149-CR (Tex.App.--San Antonio, August 26, 1992) (unpublished). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in finding that the prosecution did not have imputed knowledge of a witness' perjured testimony. ¹ We will reverse.

I.

Other than appellant, the only witness during the writ hearing was Clemencia Jiminez. After the hearing, the habeas judge made the following written findings of fact and conclusions of law:

FINDINGS OF FACT

1. Judicial notice of the testimony at the original trial and the papers filed in this cause was taken.

2. Maria Sanchez was fired as an employee of the Applicant's business after an accusation of theft was made against Maria Sanchez. Maria Sanchez told Clemencia Jiminez that she was angry at the Applicant and that she wanted to get revenge. Her plan was to tape record conversations with Applicant and then alter them to make it appear that the Applicant had burned one of his business locations. Maria Sanchez asked Clemencia Jiminez to corroborate her story and falsely accuse Applicant. Clemencia Jiminez was taken to the District Attorney's office and was 3. Chris Fragozo, a police officer with the City of San Antonio, attempted to enlist Clemencia Jiminez as a witness against Applicant and aided Maria Sanchez in altering the tape recordings offered into evidence. The tapes were altered to appear that the Applicant was admitting to the arson when in fact he had no knowledge of its commission.

interviewed by assistant district attorney Ed Sargologos where she told him that she did not know anything about the fire. After the Applicant's conviction, Maria Sanchez told Clemencia Jiminez the (sic) her help was not needed after all and that Maria Sanchez had gotten the Applicant without her help.

4. Clemencia Jiminez was a credible witness and her testimony was neither contradicted nor rebutted.

5. The perjured testimony set out by page and line in the "Defendant's Proposed Findings of Fact and Conclusions of Law" are adopted herein as the Court's findings.

6. Maria Sanchez and Chris Fragozo collaborated together and without their testimony and the altered tapes, there is insufficient evidence to sustain a finding of guilt in this case.

CONCLUSIONS OF LAW

1. The Court's jurisdiction was properly invoked pursuant to Article 1, Section 12 of the Texas Constitution and Chapter Eleven of the Code of Criminal Procedure.

2. The Applicant is restrained of his liberty.

3. The Applicant has been denied Due Process and Due Course of Law, but in the absence of Case law as precedent the Applicant's Writ is Hereby denied. ²

Additionally, at the conclusion of the hearing, the habeas judge verbally explained his denial of relief:

I find, also, from the preponderance of the evidence, that the district attorney's office did not participate or have direct knowledge of [the perjured testimony] at the time the trial was had.

Which brings us to the point, as far as the law is concerned, I find no authority in the State of Texas to grant a Writ of Habeas Corpus merely on the fact that perjured testimony was used. The cases cited in the application research that I have done indicates that if the state had knowingly used the testimony a different result would obtain.

II.

In affirming the denial of relief, the Court of Appeals relied upon Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App.1972), and Cook v. State, 423 S.W.2d 313 (Tex.Cr.App.1968). The Court of Appeals assumed the habeas judge's finding of perjury was supported by the record but held that Huffman and Cook required "a showing that the State knowingly used false testimony." Castellano, slip op. pg. 3 (emphasis in original).

In holding that Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989), did not apply to the instant case, the Court of Appeals stated:

Mr. Castellano relies heavily on Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989); however, it is clear from the Court of Criminal Appeals opinion in Adams that a Dallas police officer knew about the witness's perjured testimony and such knowledge on the part of the police officer was imputed to the state. Id. at 287. Here, there is no finding of knowledge by the district attorney, either imputed or direct.

Castellano, slip op. pg. 4.

We granted review to determine whether the Court of Appeals had decided an important issue of state or federal law in conflict with our decision in Adams. Tex.R.App.P. 200(c)(3). See n. 1, supra.

III.

A prosecutor's knowing use of perjured testimony violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Mooney v. Holohan 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and, Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 178, 87 L.Ed. 214 (1942). See also, Thomas v. State, 841 S.W.2d 399, 402 (1992). In Mooney, the petitioner sought a writ of habeas corpus on the ground that he had been convicted through the use of perjured testimony and that evidence favorable to his defense had been suppressed by the prosecution. Id., 294 U.S. at 110; 55 S.Ct. at 341. In his application, Mooney set forth evidence which, he contended, proved the testimony against him had been perjured and that the prosecution knowingly used the perjured testimony. Id. The Supreme Court emphasized the detrimental effect of perjured testimony upon due process:

[Due Process], in safeguarding the liberty of the citizen against deprivation through the action of the state, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions ... It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.

Id., at 112, 55 S.Ct. at 342.

In Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), the Supreme Court considered a prosecutor's passive use of perjurious testimony. Alcorta was charged with murdering his wife. Alcorta admitted the murder but claimed it was done in a fit of anger after discovering his wife late at night in a parked car, kissing a man named Castilleja. Castilleja witnessed the murder and testified for the State. When questioned by the prosecutor about his relationship with the decedent, Castilleja denied any romantic involvement. Id., 355 U.S. at 28-29; 78 S.Ct. at 104. After Alcorta's conviction, Castilleja admitted that he gave false testimony at trial and that, prior to trial, he had informed the prosecutor about his affair with Alcorta's wife. Id., 355 U.S. at 30-31; 78 S.Ct. at 105. The Supreme Court extended the Mooney Rule to include the passive use of perjured testimony and held that the prosecutor's knowing failure to correct Castilleja's perjured testimony denied Alcorta due process. Id., 355 U.S. at 31, 78 S.Ct. at 105. See also, Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) and, Ex parte Adams, 768 S.W.2d 281, 288, 291 (Tex.Cr.App.1989).

In certain circumstances, knowledge of perjured testimony may be imputed to a prosecutor who lacks actual knowledge of the falsity. ³ Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Adams, 768 S.W.2d at 291. In Giglio, an Assistant U.S. Attorney promised Giglio's co-conspirator that, in return for his cooperation, he would not be prosecuted. Id., 405 U.S. at 151-152, 92 S.Ct. at 765. However, a different Assistant U.S. Attorney, unaware of the agreement with the co-conspirator, prosecuted Giglio. At trial, the co-conspirator perjured himself by denying he had any agreement with the Government. Id. The Supreme Court held the knowledge of the agreement with the co-conspirator was imputable to the Assistant U.S. Attorney who tried the case:

... [W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.

Giglio, 405 U.S. at 154, 92 S.Ct. at 766. The Court found Giglio was denied due process by the Government's failure to correct the co-conspirator's perjured testimony. Id.

The Giglio Rule of imputed knowledge has been extended to include police officers as well as prosecutors. In Adams, 768 S.W.2d 281, we noted that for the purposes of imputing knowledge to ...