Ex Parte Chabot

• Decision Date: 09 December 2009
• Docket Number: No. AP-75,940.,AP-75,940.
• Citation: 300 S.W.3d 768
• Parties: Ex parte Clay Reed CHABOT, Applicant.
• Court: Texas Court of Criminal Appeals

300 S.W.3d 768

Ex parte Clay Reed CHABOT, Applicant.

No. AP-75,940.

Court of Criminal Appeals of Texas.

December 9, 2009.

Bruce Anton, Sorrels, Udashen, & Anton, Dallas, TX, for Appellant.

Michael Logan Ware, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

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

This is a post-conviction application for a writ of habeas corpus brought pursuant to Article 11.07 of the Texas Code of Criminal Procedure. We agree with the convicting court's recommendation to grant relief.

The applicant was convicted of murder and sentenced to life imprisonment. On appeal, he alleged that the evidence was insufficient to corroborate the testimony of accomplice witness Gerald Pabst and that the trial court erred in admitting evidence of extraneous offenses. The Fifth Court of Appeals affirmed his conviction.¹

The applicant filed his first application for habeas relief in 1991, which we denied.

In this application, the applicant brings eight claims,² among them that Pabst, the State's chief witness, presented perjured testimony at trial, which would make his conviction a denial of due process as embodied in the Fourteenth Amendment to the United States Constitution.³ We grant relief.

Facts

On April 19, 1986, the victim, Galua Self Crosby, was found in her bed, in the home she shared with her husband, where she had been bound, gagged, sexually assaulted, and shot three times in the head.

According to Pabst's testimony at the applicant's trial, he and the applicant had gone to the victim's home looking for her husband about a recent drug deal. Although Crosby was home alone, the applicant went inside the house and demanded drugs and money. When the victim produced neither, the applicant threatened her with a gun. In his testimony, Pabst claimed that he had wanted to leave, that he repeatedly told the applicant that they should leave, that the applicant refused, and that he himself did not leave because he was scared of the applicant. The applicant told Crosby to go into the bedroom, where he made her lie face down on the bed, and ordered Pabst to tie her feet while he tied her hands. He then told Pabst to disconnect the television. While disconnecting the television in another room, Pabst heard Crosby say "No" and then heard gunshots from the bedroom. Pabst ran out of the house, and eventually the applicant joined him.

Applicant's Claim

The current application is based on the June 28, 2007 results of DNA testing done on the victim's vaginal slides, ordered under Code of Criminal Procedure Chapter 64. The applicant claims that this new DNA evidence establishes that Pabst's trial testimony was perjured. He points to the fact that "Pabst denied sexually assaulting or harming the victim in any way, claimed that he acted only under duress, and insisted that he was in another room of the house when these violent acts occurred." The DNA evidence, he says, contradicts this testimony because it excludes both the applicant and the victim's husband but matches Pabst's DNA profile. It shows, "at a bare minimum, that Pabst perjured himself when he claimed that he had no sexual contact with the victim, and eviscerates his credibility as a witness."

The applicant contends that jurors were specifically instructed that they were legally required to find Pabst's testimony true in order to convict the applicant. He also argues that Pabst provided the only evidence that directly placed him at the crime scene and that, "[g]iven the undeniable centrality of Pabst's testimony to the case as tried in 1986, that jury could not — and would not — have convicted Mr. Chabot without substantial reliance on Pabst's testimony and, accordingly, without first finding him to have been a truthful witness." He further argues that no rational jury would have found Pabst to be truthful had they known about the DNA evidence.

The applicant claims that, under Ex parte Carmona,⁴ due process is violated when a conviction based on (in his words) "a foundation of perjury by the State's chief witness" is allowed to stand. He maintains that here, due process requires that his conviction be vacated and a new trial ordered.

Article 11.07, Section 4(a)(1) Requirements

Under Texas law, this court may not consider the merits of or grant relief on a subsequent application for a writ of habeas corpus unless:

the application contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.⁵

The applicant did not raise this due-process claim in his first application for habeas relief. Nor could he have brought the claim. At the time he filed his first habeas application in 1991, neither the DNA testing nor Code of Criminal Procedure Chapter 64 was available as an avenue for relief. The applicant's due-process claim therefore meets the statutory requirements of Article 11.07, Section 4(a)(1) and is not procedurally barred.

Analysis of Due Process Claim

This court has held that the Due Process Clause of the Fourteenth Amendment is violated where the State knowingly uses perjured testimony to obtain a conviction.⁶ Is due process violated when the State has unknowingly presented perjured testimony? A plurality in Carmona held that a community-supervision revocation based solely on perjured testimony, unknown to the State at the time of revocation, to have violated the applicant's due process rights.⁷

The knowing use of perjured testimony is a trial error that is subject to a harmless error analysis.⁸ Under the applicable standard, the "applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment."⁹ Although the present case involves unknowing, rather than knowing, use of testimony, we see no reason for subjecting the two types of errors to different standards of harm.

In its response to the current application, the State conceded that Pabst presented perjured testimony at trial (as proven by the 2007 DNA test results), that Pabst was the State's primary witness whose testimony was critical to the State's case against the applicant, that Pabst's false testimony more likely than not contributed to the applicant's conviction and punishment, and that the applicant is entitled to relief in the form of a new trial.

The State submitted Proposed Findings of Fact and Conclusions of Law, which were adopted by the convicting court without a hearing. The Findings and Conclusions include the following:

• The 2007 DNA test results link Pabst to the vaginal sexual assault of Galua Self Crosby. Thus, they establish the falsity of Pabst's trial testimony denying that he sexually assaulted Ms. Crosby. They also establish the falsity of other evidence and argument offered by the State that Pabst was a non-violent person who could not have harmed Ms. Crosby.

• The State presented Pabst's testimony in the guilt phase of applicant's trial. Thus, the State used the false testimony against applicant.

• Although the State presented other evidence linking applicant to Ms. Crosby's sexual assault and murder, Pabst's testimony was crucial to the State's case at applicant's trial. The State predicated its trial theory on Pabst's testimony that he only helped bind Ms. Crosby and that applicant alone sexually assaulted and shot her. The State supported this theory by presenting the testimony of other witnesses who characterized Pabst as a non-violent person who would not harm a woman. Furthermore, Pabst's false testimony was the only purported eyewitness account...