Ex parte Salinas, 69183

• Decision Date: 23 November 1983
• Docket Number: No. 69183,69183
• Citation: 660 S.W.2d 97
• Parties: Ex parte Robert R. SALINAS, Appellant.
• Court: Texas Court of Criminal Appeals

Page 97

660 S.W.2d 97

Ex parte Robert R. SALINAS, Appellant.

No. 69183.

Court of Criminal Appeals of Texas En Banc.

Nov. 23, 1983.

George Scharmen, San Antonio, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is a post-conviction application for writ of habeas corpus brought under Article 11.07, V.A.C.C.P.

Applicant was convicted of the offense of sale of heroin. His punishment, enhanced by allegation and proof of a prior felony conviction, was assessed by the court at 30 years' imprisonment. On appeal his conviction was affirmed in Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976).

Appellant filed his habeas corpus application in the convicting court alleging:

"Petitioner is illegally detained in that he was convicted in violation of the due process clause of the 14th Amendment to the United States Constitution, the compulsory process clause of the 6th Amendment to the United States Constitution, and Art. I, Sec. 10 of the Texas Constitution because the State of Texas deliberately concealed a material witness, Jimmy Levine, whose testimony would have been beneficial to the defendant and would have created a reasonable doubt of guilt that did not otherwise exist when evaluated in the context of the entire record of testimony in cause no. 72-CR-1877 in the 186th Judicial District Court of Bexar County, Texas."

Applicant also alleged Levine was the same Jimmy Levine, the missing witness involved in Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974), and Varela v. State, 561 S.W.2d 186 (Tex.Cr.App.1978). See also Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976).

On appeal of applicant's conviction this court wrote:

"Grounds of error two and three assert that appellant was deprived of his right to compulsory process for witnesses by reason of deliberate interference by the State. He contends that the San Antonio Police Department caused the witness Levine to leave San Antonio and secrete himself so as to escape the process of the court and thereby make his testimony unavailable. Appellant produced no evidence to that effect, but he requests this court to take judicial notice of certain testimony summarized by this court's opinion in White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974)."

This court declined to consider the testimony in White because an appellate court will not go to the record of another case for the purpose of considering testimony not shown in the record of the case before it, because while White and applicant's case involved some of the same witnesses, they involved different defendants and different offenses, and because of the ruling in White (517 S.W.2d 543).

On appeal this court also rejected applicant's contention the trial court erred in overruling applicant's fifth motion for continuance based on the unavailability of Levine. Noting, inter alia, that the trial occurred 33 months after arrest, this court found a lack of diligence in attempting to locate Levine. It was stated:

"If the evidence does not indicate a probability that the witness can be secured by a postponement, or if it appears that a continuance due to the absence of the witness would delay the trial indefinitely, the motion may be properly denied--. In addition, we note that appellant's motion did not allege that the testimony could not be procured from any other source known to the defendant, as is specifically required by Art. 29.07, Vernon's Ann. C.C.P...."

It is well settled that allegations in a motion for continuance, though they must be sworn, are not self-proving. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981). The applicant offered no evidence in support of his motion for continuance on the basis of the missing witness, Levine. His assertions in the motion as to how he expected Levine to testify were not a proffer of evidence. See Article 40.09, § 6(d)(1), V.A.C.C.P.

At trial the State offered the testimony of undercover officer Albert Chevera, his immediate supervisor, Detective Odis Doyle, and the chemist, Jesus Almaguer. The applicant then offered for the first time the testimony of Investigator Charles Steffano and his attorney as to efforts to locate Levine. There was no dispute as to the State's version that applicant sold heroin to Chevera. Applicant did not testify.

After the filing of the post-conviction application for writ of habeas corpus, the convicting court filed its findings of fact and conclusions of law. Such order indicated a hearing was held and evidence stipulated. It appears certain excerpts from the trial testimony of undercover officer Chevera and Detective Doyle were offered in support of the stipulations as well as the quoted testimony of Police Lt. Slocum taken from the opinion in Varela v. State, 561 S.W.2d 186, 188 (Tex.Cr.App.1978). The said findings stated in part:

"4. That in the stipulated facts, the State and defense agree to the following:

"a. That Albert Chevera, Preston Slocum and Odis Doyle were involved in the investigation of and the prosecution of the Petitioner for the offense for which he was convicted.

"b. Chevera was the officer that is alleged to have made the buy of heroin from the Petitioner, Odis Doyle was his field supervisor and Preston Slocum was the Police Lieutenant in charge of the narcotics division at the time.

"c. A person by the name of Jimmy Levine ... was the informer of the police and was also involved in the investigation of the Petitioner.

"d. Jimmy Levine was present during the alleged sale of heroin by the Petitioner in this case.

"e. Petitioner and his counsel attempted to subpoena Jimmy Levine for his testimony at the trial on the merits in cause number 72-CR-1877. See the discussion of the Motions for Continuance at 542 S.W.2d 866.

"f. Jimmy Levine was not served with subpoena and did not appear at the trial on the merits in cause number 72-CR-1877. For what reason is not disclosed by any record anywhere." ¹

The court found that despite the stipulations in "e" and "f" above there was a serious question as to whether Levine actually left San Antonio because of suggestions by Preston Slocum or any other officer based on the stipulated testimony of Slocum taken from Varela v. State, which was the only evidence offered bearing on the issue. ²

The trial then concluded:

"It is my finding as a matter of fact that this does not rise to the level required for the State to be charged with secreting a witness to the offense. The officers did not instigate it, and without that the factual requirements for suppression fails."

Issues concerning the missing witness Levine have been presented to this court a number of occasions. See, e.g., Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974); Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); Varela v. State, 561 S.W.2d 186 (Tex.Cr.App.1978). All of these convictions were affirmed. It appears that Levine, a police informer, assisted undercover agent Chevera in making cases resulting in 144 indictments against 138 individuals.

In White v. Estelle, 685 F.2d 927, 928 (5th Cir.1982), the court in affirming the federal district court's judgment granting habeas relief wrote:

"This is another case involving the disappearance of a material witness, the undercover police informant Jimmy Levine. The disappearance of Levine and the State's role in his disappearance are detailed in Hernandez v. Estelle, 674 F.2d 313 (5th Cir.1982), where this court reiterated the rule that the deliberate concealment by the State of a material witness violates due process when the missing witness' testimony 'circumstantially derived from and evaluated in the context of the entire record, would create a reasonable doubt of the defendant's guilt that did not otherwise exist.' "

Applicant apparently relies upon Hernandez v. Estelle, supra, and White v. Estelle, supra. ³

The facts as to Slocum's actions are somewhat similar in the instant case as in White and Hernandez. We disagree, however, with the Fifth Circuit panel's conclusion in Hernandez that Slocum was fully aware that his conversation with Levine would render a material witness unavailable at trial, and was a deliberate State concealment of Levine. We have addressed that issue in other cases. ⁴ It should be kept in mind that this was not a situation where the missing witness was being "hidden out" or concealed by the prosecution who knew at all times the whereabouts of the witness. Here Slocum was undoubtedly concerned about the safety of Levine at the time of the narcotics raid. It is easy to say that the police should be concerned about the safety of their employees, but there are other methods of protecting witnesses than the one used when there is no enumeration of the methods and no showing they were available. It should be remembered that not all local law enforcement agencies have available fancy publicly funded witness protection programs as does the federal government.

Even if it is conceded, however, that there was a deliberate concealment by the State, due process is not violated under the Hernandez rule of the Fifth Circuit, unless the missing witness' testimony "circumstantially derived from and evaluated in the context of the entire record, would create a reasonable doubt of the defendant's guilt that did not otherwise exist." Like the Fifth Circuit in Hernandez, we are in the difficult position of determining the value of Levine's testimony without the benefit of the testimony itself, as one knows, of course, what Levine would say should he suddenly appear over 11 years later. The Fifth Circuit in Hernandez indicated that under the circumstances the court could look to the record for circumstantial indicia of what Levine's testimony would be. The court then wrote:

"Levine's state-induced absence at the time of trial raises the suspicion at least...