Ex parte Chavez

• Decision Date: 20 June 2012
• Docket Number: No. AP–76,665.,AP–76,665.
• Citation: 371 S.W.3d 200
• Parties: Ex Parte Adrian CHAVEZ, Applicant.
• Court: Texas Court of Criminal Appeals

371 S.W.3d 200

Ex Parte Adrian CHAVEZ, Applicant.

No. AP–76,665.

Court of Criminal Appeals of Texas.

May 23, 2012.

Rehearing Denied June 20, 2012.

Randy Schaffer, Houston, for Appellant.

Lynn Hardaway, Asst. D.A., Houston, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

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

Applicant, Adrian Chavez, seeks relief from his fifty-five-year sentence for aggravated robbery. This is applicant's first subsequent application for a writ of habeas corpus. SeeTex.Code Crim. Proc. art. 11.07, § 4. Applicant claims that a new legal basis that was previously unavailable when he filed his first habeas application entitles him to consideration of, and relief on, his due-process false-testimony claim. See id. § 4(a)(1). Although we find that applicant is not procedurally barred from raising his claim, we conclude that he has failed to establish a due-process violation by the State's unknowing use of false testimony at his trial. We deny relief.

I. Background

A. Facts

In the early hours of July 1, 1997, a group of four or five men unlawfully entered a house by kicking in the door. The intruders wore bandanas over their faces, and at least two of the men carried guns. During the invasion, one of the armed men fatally shot Alex Parisi, an occupant of the home. The intruders stole drugs and money and fled the scene. Two of Parisi's roommates, Vernon Cameron and Christopher Lewis, were home that evening and witnessed the shooting. Both men identified the shooter as applicant. Cameron told police that the shooter pulled down his mask immediately after he opened fire on Parisi and that he recognized him as applicant. Lewis, who was also in the bedroom where Parisi was shot, said that he recognized applicant's voice and build. Cameron testified that he had met applicant on “many occasions,” and Lewis testified that he had known applicant for years.

Applicant was charged with capital murder,¹ and the State introduced at trial, among other evidence linking applicant to the offense, Cameron's and Lewis's testimony. Applicant testified that he was at home asleep at the time of the offense. The jury found applicant guilty of the lesser-included offense of aggravated robbery.²

During the punishment phase, the State introduced evidence casting applicant in an unfavorable light, including evidence of his role as the primary planner of the offense; testimony regarding his lack of remorse following the offense; his false testimony in which he denied participation in the offense; and a prior history of violent behavior and crime, including felony offenses he committed while on bond for the capital-murder charge in this case.

The following morning, after the jury had retired to deliberate, applicant admitted to his counsel, for the first time, that he had participated in the offense, but only as the driver of the getaway vehicle. Defense counsel arranged for applicant to meet with the prosecutor to provide the names of the other individuals who were involved in the offense “to see if it would in any way influence the ultimate disposition in terms of sentencing in this matter.” During this meeting, however, the jury returned with a verdict assessing applicant's punishment at fifty-five years' confinement.³ The trial court denied his motion for new trial, and his conviction was affirmed on direct appeal. See Chavez v. State, No. 14–98–00696–CR, 2000 Tex.App. LEXIS 3055 (Tex.App.—Houston [14th Dist.] May 11, 2000, pet. ref'd) (not designated for publication).

After applicant was convicted, the State's attorneys received what they considered to be credible information from two witnesses, previously unknown to the State, that two other men had admitted to perpetrating the offense, one of whom admitted to having shot Parisi. One of those men also stated that applicant had devised and coordinated the offense, and the other man stated that applicant remained in the getaway vehicle during the course of the offense. Both of those men pleaded guilty to, and were convicted of, aggravated robbery with a deadly weapon for this offense. Because of this post-trial discovered evidence showing that applicant was not in the house during the offense, applicant filed a writ of habeas corpus contending that the roommates' testimony identifying him as the shooter was false.

B. Applicant's First Application for Writ of Habeas Corpus

Applicant filed his first application for a writ of habeas corpus challenging the validity of his conviction and sentence in light of the newly discovered evidence of innocence, namely, that someone other than applicant was the shooter.⁴See Ex parte Chavez, 213 S.W.3d 320, 321 (Tex.Crim.App.2006) (“ Chavez I ”). The convicting court recommended a new punishment proceeding only, concluding that the “totality of the circumstances” undermined its confidence in the fifty-five-year sentence. Id. at 322. We, however, held that applicant was not entitled to relief under the actual-innocence framework or any other due-process principle then available. Id. at 321.

This Court analyzed applicant's claim using the rubric of actual innocence. Chavez I, 213 S.W.3d at 322. We acknowledged, however, that it was “odd to speak in terms of being ‘actually innocent’ of a particular punishment” that is within the statutorily provided range of punishment for an offense and considered whether applicant would be entitled to a new punishment hearing based on “any other principle of due process.” Id. at 323. In discussing the applicability of any other due-process principle, this Court analyzed applicant's issue in the context of the State's failure to disclose “material exculpatory evidence” and determined that the record did 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.” Id. at 324. We also observed that it was applicant's fault that the jury was misinformed because “he knew the true extent of his involvement in the offense” and “affirmatively misled his own counsel and chose to testify, apparently falsely, to an alibi in an attempt to escape criminal liability altogether.” Id. at 325.

After considering various factors—including the State's and applicant's roles in supplying the misinformation, the witnesses' sworn statements that they would provide the same testimony in a new trial, and the fact of applicant's acquittal from capital murder and the lesser-included offense of murder—we concluded that applicant had failed to “unquestionably establish” that the jury was materially misinformed as to his involvement in the offense and denied relief. Id. at 326.

C. Applicant's Second Application for Writ of Habeas Corpus

Applicant has now filed a subsequent application, in which he claims that a new legal basis warrants further review of his false-testimony claim. SeeTex.Code Crim. Proc. art. 11.07, § 4(a)(1). He cites Ex parte Chabot, in which we explicitly held, for the first time, that admission of false testimony could violate an applicant's due-process rights, even when the State was unaware at the time of trial that the testimony was false. 300 S.W.3d 768, 772 (Tex.Crim.App.2009).⁵ He argues that, now that a claim of unknowing use of false testimony is cognizable on habeas, the admission of Cameron's and Lewis's false testimony entitles him to a new trial on punishment, despite that the State neither knew nor should have known that their testimony was false. The State responds that, assuming applicant's claim meets the new-legal-basis requirement and that the testimony is false, applicant fails to establish harm given that he was acquitted of the murder charges, citing our analysis in Chavez I. See Chavez I, 213 S.W.3d at 325–26.

In its findings of fact and conclusions of law, the trial court found that the new evidence “revealed that the applicant was not one of the shooters although he was an active participant in the planning and execution of the instant offense.” It did not decide whether Chabot constituted a new legal basis under Article 11.07, Section 4(a)(1), but found that “even if the applicant establishes that the legal basis for his habeas claim was not available when” he filed his first habeas application, “the evidence does not establish that witnesses Cameron and Lewis intended to provide false testimony or that they thought their trial testimony was inaccurate.” It further found that applicant failed “to demonstrate harm in light of the applicant's admission of involvement in the instant offense; the court's inclusion of a parties charge; and the jury's finding that the applicant was guilty of the lesser offense of aggravated robbery.” It concluded, therefore, that applicant “has not established a violation of his due process rights based on the State's unknowing presentation of alleged perjured testimony” and recommended denying relief.

II. Jurisdiction Over Subsequent Habeas Application with New Legal Basis

A. Subsequent–Application Statutory Procedural Requirements

Under Texas law, this Court may not consider the merits of a subsequent application for a writ of habeas corpus unless the application satisfies one of two statutory exceptions. SeeTex.Code Crim. Proc. art. 11.07, § 4. One such exception is applied when an 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.

Id. § 4(a)(1). In his initial application, applicant argued that “[e]ven if the State presented the false testimony in good faith, the due process/due course of law provisions of the...