Ex parte Kimes

• Decision Date: 24 November 1993
• Docket Number: No. 71564,71564
• Citation: 872 S.W.2d 700
• Parties: Ex Parte Scott KIMES.
• Court: Texas Court of Criminal Appeals

Page 700

872 S.W.2d 700

Ex Parte Scott KIMES.

No. 71564.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 24, 1993.

Douglas Tinker, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

A jury convicted applicant Scott Kimes of murder for remuneration or the promise thereof, a capital offense under Texas Penal Code § 19.03(a)(3). The jury was unable to answer the second special issue; therefore, the trial court assessed punishment at life imprisonment. See Tex.Code Crim.Proc. art. 37.071(e) (1987). The Thirteenth Court of Appeals affirmed applicant's conviction. Kimes v. State, 740 S.W.2d 903 (Tex.App.--Corpus Christi 1987). We ordered applicant's post-conviction application for writ of habeas corpus ¹ filed and set for submission to consider whether the prosecutor's failure to turn over evidence consisting of offense reports and accompanying witness affidavits naming the State's key witness as a suspect in the commission of the offenses outlined in the reports constituted a violation of applicant's right to due process of law under the Fourteenth Amendment to the United States Constitution. ²

Applicant filed his writ application in the 214th District Court of Nueces County, the court in which he was convicted of capital murder. We received the application and ordered it set for submission. We then directed the convicting court to conduct an evidentiary hearing to give applicant an opportunity to prove allegations contained in his application, and instructed that court to make findings of fact. See Tex.Code Crim.Proc. art. 11.07, § 2(d). After receiving the trial court's initial findings of fact and conclusions of law, we directed the trial court to conduct a second evidentiary hearing to further develop the facts pertinent to applicant's case. The trial court held a second evidentiary hearing, and we have received the trial court's supplemented findings of fact and conclusions of law. Because the convicting court's findings of fact, in relevant part, are supported by the record, they will be accepted, in relevant part, by this Court as correct. See Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Crim.App.1989). According to the trial court's findings and the record before us, the facts relevant to applicant's claim are as follows:

Prior to his trial, applicant filed a motion requesting production of exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). During the trial, the State's key witness, Anthony Shaw, testified that applicant had made a number of incriminating statements to him, including an outright solicitation to participate in the murder. The prosecutor's office received, prior to applicant's trial, police reports detailing certain felony offenses, including two burglaries and a sexual assault, and accompanying witness affidavits identifying Shaw as the suspect. The prosecutor failed to disclose these materials to applicant or his counsel.

Anthony Shaw and applicant were roommates at the time of the murder. Shaw testified that applicant asked him to participate in the murder. Shaw testified that applicant "had an offer for a thousand dollars to kill somebody and he wanted me to participate in it." Shaw testified that applicant later made statements suggesting that the intended victim was Helga Berrott, who applicant was convicted of murdering. Shaw testified that when he returned to the apartment on the morning of August 20 and pulled his motorcycle next to applicant's motorcycle, he could "feel heat coming off of [applicant's motorcycle]." Shaw also testified that upon his return to their apartment early on the morning of August 20, 1986, the date of the murder, applicant told him, "[i]f anybody asks you why the bikes are warm, tell them we just went out to breakfast." Finally, Shaw testified that on the day after the murder, as applicant was moving out of the apartment, applicant told him, "[t]here's only three people that know about this: George, ³ me, and you."

In its findings of fact and conclusions of law, the trial court determined that the State had a duty to disclose the offense reports and accompanying witness affidavits to applicant. The court also found that "applicant and his attorney both had knowledge of the facts which were the subject matter of the offense reports that the State failed to disclose." Finally, the court found that the State delivered the offense reports and accompanying witness affidavits to Hendon's trial counsel at Hendon's separate trial at which Shaw also testified, that Hendon's trial counsel failed to utilize this evidence, that Hendon's trial counsel challenged Shaw's credibility with other evidence, and that "the jury convicted ... Hendon of capital murder in spite of the development of all of these challenges to ... Shaw's credibility." The trial court concluded: "Evaluating the omitted evidence in the context of the entire record, the court concludes that even if it had been disclosed [to applicant at his trial], the result of [his] trial would not have been different."

Applicant now argues that the offense reports and accompanying witness affidavits identifying Shaw as the suspect were exculpatory material under Brady v. Maryland. He asserts that the reports and affidavits were "of a discoverable nature and that [they were] exculpatory and went to the credibility of ... Shaw." Applicant's writ application fails to state explicitly what use he could have made of the offense reports and witness affidavits. He merely argues that the materials could have been used to attack Shaw's "credibility." From the record of the hearing held May 21, 1993 in the trial court, it appears that applicant envisions two avenues for impeaching Shaw's "credibility" with the offense reports and witness affidavits. First, applicant argued at the hearing that the offense reports and affidavits could have been used to show Shaw's bias in favor of the State, in that the jury could have inferred, after being presented with these materials, that Shaw was willing to cooperate with the State in exchange for leniency concerning the burglaries and rape. Second, applicant argued at the hearing that he could have used the materials to show that Shaw was "lying" when he testified against applicant.

Under Brady v. Maryland, a prosecutor has an affirmative duty to turn over material, exculpatory evidence. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Impeachment evidence is included within the scope of the term "exculpatory evidence." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Evidence withheld by a prosecutor is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Id. at 682, 105 S.Ct. at 3383. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. Id. Thus, under Bagley, a due process violation has occurred if: 1) the prosecutor failed to disclose evidence; 2) the evidence is favorable to the defendant; and 3) the evidence is material, such that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different. Id.; see also Thomas v. State, 841 S.W.2d 399 (Tex.Crim.App.1992).

A prosecutor does not have a duty to turn over evidence that would be inadmissible at trial. Iness v. State, 606 S.W.2d 306, 310 (Tex.Crim.App.1980). Evidence offered by a party to show bias of an opposing witness should be excluded if that evidence has no legitimate tendency to show bias of the opposing witness. Galvan v. State, 129 Tex.Crim. 349, 86 S.W.2d 228, 229-30 (App.1935); see also 98 C.J.S. Witnesses § 568 (1957). ⁴

A writ applicant has the burden of proving the facts which would entitle the applicant to relief. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App.1985). In this case, applicant must prove the three elements required under Bagley to show a due process violation resulting from the prosecutor's failure to turn over the offense reports and accompanying witness affidavits. Relying on the trial court's findings of fact, we conclude that prong one has been satisfied in this case, in that the prosecutor failed to turn over the offense reports and witness affidavits to applicant. Concerning prongs two and three of the Bagley analysis, we conclude that these elements have not been satisfied.

Nothing in the record indicates that Shaw was aware, prior to applicant's trial, that he was a suspect in the burglaries and rape. The record does not show that Shaw was arrested for these offenses, or that he was ever questioned about them by the police. The record is inconclusive as to the issue of Shaw's subjective knowledge of his status as a suspect. Therefore, applicant's argument that the offense reports and accompanying affidavits could have been used to impeach Shaw for bias is unpersuasive, given the absence in the record of any proof that Shaw knew of his status as a "suspect" in the commission of the burglaries and rape. The offense reports and witness affidavits have no legitimate tendency to show that Shaw was biased in favor of the State.

Applicant also argues that he could have used the offense reports and witness affidavits to show that Shaw was "lying" when he testified at applicant's trial. The hearing record is unclear as to precisely how applicant would have used the materials to show that Shaw was "lying." Generally, the offense reports and witness affidavits would not have been admissible to show Shaw's capacity for truthfulness or untruthfulness. See TEX.R.CRIM.EVID. 608; H. Wendorf, et al., Texas Rules of Evidence Manual VI-42--VI-45 (1991). We are otherwise unable to evaluate fully applicant's argument, with respect to his...