Ex Parte Chavez

• Citation: 213 S.W.3d 320
• Decision Date: 22 November 2006
• Docket Number: No. AP-75245.,AP-75245.
• Parties: Ex parte Adrian CHAVEZ, Applicant.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

213 S.W.3d 320

Ex parte Adrian CHAVEZ, Applicant.

No. AP-75245.

Court of Criminal Appeals of Texas.

November 22, 2006.

Rehearing Denied January 31, 2007.

Randy Schaffer, Houston, for Appellant.

Baldwin Chin, Assistant District Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, KEASLER, HERVEY and COCHRAN, JJ., joined.

We filed and set this post-conviction application for writ of habeas corpus, brought pursuant to Article 11.07 of the Code of Criminal Procedure,¹ in order to consider the recommendation of the convicting court that the applicant receive a new punishment proceeding on the basis of evidence of actual innocence. The convicting court did not recommend that the applicant be granted a new guilt-phase proceeding. We hold that, at least on the facts presented in this application, a new punishment proceeding is not warranted under the guise of actual innocence, or any other due-process principle, and we deny relief.

THE FACTS

The applicant was indicted and tried for capital murder, but convicted of the lesser offense of aggravated robbery, and sentenced to fifty-five years in prison. His conviction was affirmed on direct appeal.² The case involved the home invasion of a drug dealer, who was fatally shot during the course of the incident. Two witnesses who were present testified at trial that the applicant was the shooter. One claimed that he recognized the applicant when, at one point, the applicant pulled down the bandana that had been covering his face. The other identified the applicant because he claimed to recognize the applicant's voice and his physique. The applicant testified to an alibi, but he was unable to produce any corroborating witnesses.

While the jury was out deliberating the applicant's guilt or innocence, the applicant informed his trial counsel for the first time that he had indeed been involved in the robbery, but only as the wheel-man rather than one of the home-invaders. He denied being the shooter. At the applicant's request, his trial counsel arranged a meeting with the prosecutor so that they could convey this information to her. Before the applicant and his counsel could conclude their meeting with the prosecutor, however, the jury returned its verdict of guilty. Later, after the jury returned its punishment verdict and the trial court pronounced sentence, the applicant's trial counsel conducted an informal colloquy on the record with the applicant to establish these facts.

In the course of its subsequent investigation, the State identified other witnesses, previously unknown to the State who could testify that two other individuals had admitted to perpetrating the home invasion, one of whom was the actual shooter in the case rather than the applicant. Both of those individuals were subsequently charged with, and pled guilty to, aggravated robbery, and each was assessed a thirty-year sentence. Even so, both of the witnesses who originally identified the applicant as the shooter in the case have submitted affidavits in which they assert that they still believe, based upon their perceptions of the event, that the applicant is the one they saw kill the drug dealer, and that they would testify again to that effect. The prosecutor at the applicant's trial has also submitted an affidavit in which she asserts that at the time of trial, she had no knowledge of any evidence that the applicant was not the shooter, and no reason to disbelieve or distrust the witnesses who testified against him at his trial.

In its recommended findings of fact and conclusions of law, the convicting court has concluded that, because of the "newly discovered evidence" that someone other than the applicant was the shooter, the applicant is entitled, not to a new trial, but to a new punishment proceeding.³ "The totality of the circumstances undermines the [convicting] court's confidence in the sentence of 55 years. See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)." We filed and set the cause to consider this recommendation. Especially given the particular circumstances of this case, we decline to follow it.

THE LAW

In Ex parte Elizondo,⁴ this Court held for the first time that, because the incarceration of an innocent person violates the Due Process Clause of the Fourteenth Amendment, a bare claim of actual innocence is cognizable in state post-conviction habeas corpus proceedings. We recognized, however, that in order to obtain relief on this basis, a habeas applicant must satisfy an "extraordinarily high" standard of proof.⁵ He must "unquestionably establish" his innocence; that is to say, he must show by clear and convincing evidence that, presented with both the inculpatory evidence at trial and the newly discovered or available evidence of innocence, no reasonable juror would have convicted him.⁶ Utilizing this standard, we granted Elizondo a new trial, and have subsequently granted other new trials, albeit rarely, on the basis of actual innocence.⁷ And in Ex parte Tuley⁸ we held that a guilty plea does not foreclose a habeas applicant from asserting actual innocence.

While recognizing that certain principles of due process also apply at the punishment phase of a non-capital trial, we have hesitated to apply the nomenclature of "actual innocence" to due process violations that occur at the punishment phase. For example, a plurality of the Court eschewed the particular rubric of actual innocence, per se, when it held, in Ex parte Carmona,⁹ that the revocation of deferred-adjudication community supervision based upon admittedly perjured testimony violated the applicant's due process rights.¹⁰ And most recently, in Ex parte Rich,¹¹ we resisted applying an actual-innocence rationale to hold that the applicant was "actually innocent of being an habitual felony offender ... because of newly discovered evidence showing that he is being wrongfully imprisoned for a criminal history he did not have."¹² We observed that enhancement as an habitual offender based upon prior convictions that were not, in fact, felonies "does not involve the traditional hallmarks of actual innocence—newly discovered evidence showing that the defendant is being wrongfully imprisoned for a crime that he did not commit."¹³ We therefore employed an alternative basis to grant Rich relief. The question before us in the instant case is whether the applicant is entitled to a new punishment proceeding, either under our "actual innocence" precedents, as the convicting court has recommended, or any other operative principle of due process.

ANALYSIS

To begin with, we believe it is odd to speak in terms of being "actually innocent" of a particular punishment (say, fifty-five years) that is prescribed within the statutory range for the offense upon which an applicant has been convicted. We have frequently observed that the task of setting a particular length of confinement within the prescribed range of punishment is essentially a "normative" judgment.¹⁴ Aside from a few specific instances where the range of punishment depends upon the determination of discrete facts,¹⁵ "[d]eciding what punishment to assess is a normative process, not intrinsically factbound."¹⁶ Indeed, we have described the sentencer's discretion to impose any punishment within the prescribed range to be essentially "unfettered."¹⁷ Subject only to a very limited, "exceedingly rare," and somewhat amorphous Eighth Amendment gross-disproportionality review,¹⁸ a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal. For this reason, the concept of an applicant who may be "actually innocent" of a fifty-five year prison sentence is, to say the least, peculiar.¹⁹ We therefore eschew, as unhelpful to our analysis, the particular language of "actual innocence" as it might apply to the sentencer's assessment of punishment within the legislatively prescribed range.

But this does not end our due process analysis—far from it. What if the sentencer's normative judgment has been affirmatively misinformed? Putting aside the rubric of "actual innocence" for the moment, do principles of due process dictate that we hold that the first punishment proceeding was intolerably unfair and that a second punishment proceeding is therefore in order?²⁰ And does it matter, for due-process purposes, whether the fact that the sentencing entity was affirmatively misinformed can be attributed to some act or omission on the part of the State, or that the defendant may have had some complicity in generating the misinformation, or was aware of it but failed to correct it at trial when he reasonably could have?

The duty of the State to disclose material exculpatory evidence pertains to the punishment phase as well as the guilt phase of a criminal trial.²¹ Moreover, the Due Process Clause "makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence."²² Malfeasance of this kind on the part of any member of the prosecution "team" may be attributable to the State for due-process purposes.²³ The record in this cause does not reveal any act or omission on the part of the State or any of its agents that caused the applicant's sentencing jury to be misinformed about the true nature of his involvement in the offense. We fail to perceive any unfairness to the applicant on that account.

Furthermore, even in the context of the failure to disclose exculpatory evidence, we have held that there is no due process violation under circumstances in which the defendant himself already knew about the exculpatory facts.²⁴ In the instant case, the applicant knew the true extent of his involvement in the offense. Had he disclosed that information to his trial attorney sooner than he did, counsel could have attempted to...