Ex parte Storey

• Decision Date: 02 October 2019
• Docket Number: NO. WR-75,828-02,WR-75,828-02
• Parties: EX PARTE Paul David STOREY, Applicant
• Court: Texas Court of Criminal Appeals

584 S.W.3d 437

EX PARTE Paul David STOREY, Applicant

NO. WR-75,828-02

Court of Criminal Appeals of Texas.

Filed October 2, 2019

ORDER

Per Curiam.

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

In September 2008, a jury convicted Applicant of the offense of capital murder for murdering a person in the course of robbing him. TEX. PENAL CODE § 19.03(a)(2). The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Storey v. State , No. AP-76,018, 2010 WL 3901416 (Tex. Crim. App. Oct. 6, 2010) (not designated for publication). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Storey , No. WR-75,828-01, 2011 WL 2420707 (Tex. Crim. App. June 15, 2011) (not designated for publication). After Applicant unsuccessfully pursued relief in federal habeas court, the trial court set an execution date for April 12, 2017.

On March 31, 2017, Applicant filed this subsequent application for writ of habeas corpus raising six claims for relief. On preliminary review, we found that the following four claims arguably satisfied the requirements of Article 11.071, § 5 :

2. The State of Texas denied Applicant his right to due process under the Fourteenth Amendment to the Constitution of the United States by arguing aggravating evidence the prosecution knew to be false.

3. The prosecution introduced false evidence, thereby depriving Applicant of a fair punishment trial and in violation of the Fourteenth Amendment to the Constitution of the United States.

4. The State of Texas denied Applicant his right to Due Process under the Fourteenth Amendment to the Constitution of the United States by suppressing mitigating evidence.

5. By arguing false aggravating evidence and suppressing mitigating evidence, the State of Texas has rendered the death sentence in this case unreliable under the Eighth and Fourteenth Amendments to the Constitution of the United States.

These claims arise from a statement that a prosecutor made during closing argument at the punishment phase of trial that "all of [the victim's] family and everyone who loved him believe the death penalty is appropriate." Applicant contends that he recently discovered that the parents of the victim were opposed to the death penalty and they communicated their views to the State prior to trial. Applicant asserts that he meets Section 5 because the factual basis of these claims was unavailable on the date he filed his initial writ application. TEX. CODE CRIM. PROC . Art. 11.071, § 5(a)(1).

Because the record was not sufficient to determine with assurance whether Applicant could have previously discovered the evidence complained of in these claims, on April 7, 2017, we stayed Applicant's execution and remanded this case for the trial court to develop the record. We ordered the trial court to make findings of fact and conclusions of law regarding whether the factual basis of these claims was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. We further instructed the trial court to review the merits of the claims if it determined that the factual basis was not ascertainable through the exercise of reasonable diligence.

Following a three-day hearing in September and October 2017, the trial court adopted Applicant's proposed findings of fact and conclusions of law. The trial court found that the remanded claims met Section 5 and had merit, and it recommended that punishment relief be granted. We disagree.

On post-conviction review of habeas corpus applications, the convicting court is the "original factfinder" and this Court is the "ultimate factfinder." Ex parte Thuesen , 546 S.W.3d 145, 157 (Tex. Crim. App. 2017), citing Ex parte Reed , 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In most circumstances, we defer to the trial judge's findings of fact and conclusions of law because the trial judge is in the best position to assess the credibility of the witnesses. Id. We will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record. Id. But if our independent review of the record reveals circumstances that contradict or undermine the trial judge's findings and conclusions, we can exercise our authority to enter contrary findings and conclusions. Id.

At the hearing on remand, the prosecutors testified that they told trial counsel about the victim's parents' anti-death penalty views prior to trial. However, the prosecutors acknowledged that those discussions were not documented or formalized. Trial counsel testified that they could not remember if the State told them this information. We defer to the trial court's credibility choice in favor of trial counsel and the finding that the State did not inform trial counsel about the victim's parents' anti-death penalty views.

One of the prosecutors testified that he told trial counsel that the victim's parents "preferred not to be contacted." But that prosecutor further testified that he told trial counsel "that they were certainly free to contact them" if they wished to do so.

Robert Ford, who was Applicant's habeas counsel on his initial writ application, is now deceased. The trial court found that Ford did not know that the victim's parents opposed a death sentence for Applicant. This finding is not supported by the record. Applicant did not present any evidence showing what Ford did or did not know regarding the victim's parents' anti-death penalty views. The victim's father testified that he has disclosed his anti-death penalty views to "anybody that wants to know or has ever asked me." This testimony undermines the trial court's finding that the factual basis of the remanded claims was not ascertainable through the exercise of reasonable diligence prior to the filing of the initial writ application. And although the trial court found that Ford generally "had a strong reputation for his diligence," Applicant presented no evidence showing that Ford was diligent in his particular case.

Based on our own review, we conclude that Applicant has failed to meet his burden to show that the factual basis for the remanded claims was unavailable on the date he filed the previous application. With regard to Claims 2, 3, 4, and 5, Applicant has failed to satisfy the requirements of Article 11.071, § 5.

We have also reviewed Applicant's claims that newly discovered evidence "compels relief" (Claim 1) and the State violated the Fourteenth Amendment by seeking death in this case (Claim 6). With regard to these claims, we find that Applicant has also failed to satisfy the requirements of Article 11.071, § 5. Accordingly, we dismiss all of Applicant's claims as an abuse of the writ without reviewing the merits.

IT IS SO ORDERED THIS THE 2^ND DAY OF OCTOBER, 2019. Publish

Hervey, J., filed a concurring opinion in which Keasler, Richardson and Newell, JJ., joined.

Yeary, J., filed a dissenting opinion in which Slaughter, J., joined.

Walker, J., filed a dissenting opinion in which Slaughter, J., joined.

Keel, J., concurred.

CONCURRING OPINION

Hervey, filed a concurring opinion in which Keasler, Richardson, and Newell, JJ., joined.

I join the Court in dismissing Applicant's writ application because he cannot overcome the Section 5 subsequent writ bar. I write separately to briefly address Judge Yeary's suggestion that order briefing on whether the State's closing argument, which is not evidence, amounted to the knowing use of false evidence against Applicant. I also write separately to address a better analytical framework, Applicant's Brady claim, and the Crime Victims' Rights Act.

I.

This case is not a false-evidence case because no evidence of the family's preference was introduced at trial. That should be the end of the analysis. There is no question of whether Applicant's claim fits neatly within our false-evidence jurisprudence; it does not fit at all, even in some "yet-to-be-fully-articulated way," and asking the parties to brief a claim which Applicant can never win is an exercise in futility. Dissenting Op. at 443 (Yeary, J.).

II.

Instead of taking the radical step of possibly recognizing a new due-process ground for relief based on a legal fiction fabricated by this Court, we could apply longstanding, well-settled precedent from the United States Supreme Court.

It is well established that comments and conduct by a prosecutor during trial or at a sentencing proceeding might amount to prosecutorial misconduct depriving a defendant of due process. Romano v. Oklahoma , 512 U.S. 1, 12–13, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (death-penalty sentencing proceeding); Miller v. State , 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (trial) (citing Darden v. Wainwright , 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ). A prosecutor's improper trial comments violate the Fourteenth Amendment if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden , 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) ). A prosecutor's improper sentencing comments violate the Fourteenth Amendment if they so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. Romano , 512 U.S. at 12, 114 S.Ct. 2004. This test is necessarily a general one because in these types of cases the State did not deny a defendant "the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of that right."¹ Id.

Instead of resorting to creating some kind of novel,...