Ex parte Turner

• Decision Date: 19 January 1977
• Docket Number: No. 52589,52589
• Citation: 545 S.W.2d 470
• Parties: Ex parte Donna TURNER.
• Court: Texas Court of Criminal Appeals

Page 470

545 S.W.2d 470

Ex parte Donna TURNER.

No. 52589.

Court of Criminal Appeals of Texas.

Jan. 19, 1977.

Cleatus M. Phelan, McKinney, Frank Maloney and Philip A. Nelson, Jr., Austin, for appellant.

Tom O'Connell, Dist. Atty. and Verla Sue Holland, Asst. Dist. Atty., McKinney, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

This is a post conviction habeas corpus proceeding under Art. 11.07, V.A.C.C.P., seeking petitioner's release from a conviction and five year sentence on December 5, 1973, in the 199th Judicial District Court of Collin County, Texas, for the offense of sale of heroin, which was affirmed by this Court in a per curiam opinion, No. 49,293, decided January 22, 1975. Petitioner filed an application for writ of habeas corpus in said trial court on March 27, 1975, upon which an evidentiary hearing was held in said trial court and record thereof forwarded to this Court. By per curiam opinion said relief requested was denied by this Court on December 8, 1975, but on motion for rehearing we instructed the trial court to conduct an additional evidentiary hearing allowing petitioner to call Duane Hamilton, with the right of both parties thereafter to produce any additional evidence desired. Such has been done and this Court now has before it for consideration said original application, two amended applications, the evidence presented in trial court at the trial court's initial evidentiary hearing and at said additional hearing, and the trial court's findings of fact filed at the conclusion of each of said hearings.

Petitioner contends that: (1) Evidence favorable to her defense was suppressed; (2) she was denied the right of confrontation and cross examination of witnesses; and (3) she was denied her right to compulsory process.

The evidence at said hearings reveals that petitioner's conviction was for selling a narcotic drug, to-wit: heroin, to Robert J. Harden on or about the 18th day of June, 1973, and that the State's entire proof of said offense by petitioner consisted of the testimony of Harden, an undercover narcotic agent of the Department of Public Safety; that on June 18 petitioner and her husband, Tommy Turner, arrived at Mary Lou Harrington's house in Plano, where Tommy Turner told Harden in petitioner's presence that he and she were going to pick up some 'jive' and did he want any and they left the house returning later that evening, at which time Harden had another conversation with the Turners wherein petitioner said, 'We have some pills left. Do you want them? They are good. One dime pill will get you off real good'; that he, Harden, gave Tommy Turner $110.00 at said time for which he received from Turner eleven pieces of tinfoil containing heroin and that neither Harrington nor Hamilton was present at either of said conversations, and Hamilton was not in any way a party to the offense.

Petitioner testified that on said day, after phone calls to the Turner residence, she and her husband went to the Harrington residence and were met by Mary Lou Harrington; that shortly thereafter Hamilton and Harden arrived; That she saw Hamilton hand her husband Tommy Turner some money; that she heard no conversation, saw and knew of nothing else and made no statements; that she and her husband left the house and proceeded to Dallas, where said Tommy Turner entered someone's house while she stayed in the car; that they then returned to the Harrington residence, where she was escorted on a tour through the house, and that she had no knowledge of any sale of drugs.

Thus, the guilt or innocence of petitioner resolved itself down to the question of whether the jury believed petitioner or Harden was telling the true story. Since the petitioner carried the heavy onus of an accused's obvious motive to fabricate, any fact or circumstance from which a juror might reasonably infer motive for said Harden to fabricate or a willingness to do so or that might tend to corroborate petitioner's version was critical to petitioner's defense.

Based upon its evidentiary hearings in this habeas corpus proceeding, the trial court made findings of fact that can be summarized as follows:

1. That The State suppressed the fact that Harden effected Hamilton's release from jail on June 13, 1973, just five days prior to the alleged offense.

2. That Harden deliberately suppressed evidence that he contacted Sgt. Matthews of the Plano Police Department to effect said release of Hamilton from said jail.

3. That said Sgt. Matthews accomplished Harden's requested release by contacting Assistant District Attorney Dunn and having Dunn sign Hamilton's bail bond.

4. That said Assistant District Attorney Dunn testified at petitioner's trial that his making of said bond was at the request of Officer Mock.

5. That he, the trial judge at petitioner's trial, relied on Harden's denial of the existence of any relationship with Hamilton in denying petitioner the right to call Hamilton as a witness on the ground of Hamilton's claim of his privilege against self incrimination.

6. That Hamilton's said Fifth Amendment claim was, in fact, without substance.

Though this Court has the ultimate power to decide matters of fact in habeas corpus proceedings, generally if the trial court's findings of fact are supported by the record, they should be accepted by this Court. Ex parte Davila, Tex.Cr.App., 530 S.W.2d 543; Ex parte Lemay, Tex.Cr.App., 525 S.W.2d 1; Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566.

The State contends that of the few questions pertaining to Hamilton and Matthews it permitted Harden to answer instead of preventing same by its objections, none of Harden's answers to same was a specific positive falsehood, but such is not the ultimate issue as to evidentiary support for the findings that the State suppressed the fact of Harden's effecting Hamilton's release from jail a few days prior to the alleged offense. Any trier of fact deciding the ultimate issue of State suppression of said fact was entitled to consider the totality of the following evidence and actions of Harden, the Assistant District Attorney who testified in the case, and the witness Sgt. Matthews and all reasonable inference therefrom.

Harden testified that he couldn't recall the first time he met Hamilton; that he didn't recall going to the Harrington house with Hamilton on June 18, 1973; that he didn't recall Hamilton's making telephone calls on that date; that he couldn't recall if he conversed with Sgt. Matthews regarding Hamilton on June 18th, 17th or 16th; that Hamilton was not in any way a party to the offense. When asked on cross examination as to whether he had conversed with Sgt. Matthews about Hamilton, the Assistant District Attorney immediately objected on the ground of immateriality and was sustained. On being asked on cross examination whether he recalled any conversation with Sgt. Matthews about Hamilton back through history, the Assistant District Attorney immediately objected upon the ground that such was improper and was sustained. At said trial when Plano Police Sgt. Matthews was asked on cross examination if Hamilton furnished information, the Assistant District Attorney immediately interrupted the question, claiming the privilege to forbid inquiry as to any informer, which claim was sustained by the court, and upon said Sgt. being asked thereafter on cross examination as to whether he made arrangements to get Hamilton out of jail, the Assistant District Attorney objected on the ground such was immaterial and was sustained. Another Assistant District Attorney Robert Dunn, testified at said trial that he made Hamilton's bond at the request of a Plano policeman named Johnny Mock, and when asked if such wasn't unusual for a member of the District Attorney's staff to make a bond, the Assistant District Attorney immediately objected on the ground that such had nothing to do with the case and was sustained.

The evidence at said evidentiary hearings in this proceeding revealed the true facts to be that said Assistant District Attorney Dunn posted bond for Hamilton at the request of Sgt. Matthews and that Sgt. Matthews so requested same because Harden called him and asked that he do so.

Although at the first evidentiary hearing petitioner presented positive testimony by Sgt. Matthews given at a later trial that it was he who requested Assistant District Attorney Dunn to post bond for Hamilton and the trial court so found same as a fact, neither at said hearing nor at the second evidentiary hearing did the State produce Officer Mock or said Dunn to contradict Matthews' testimony or explain Dunn's mistake in regard thereto. Under such set of facts, we must presume that said Officer Mock's testimony would have verified the testimony of Sgt. Matthews at the subsequent trial which was admitted at the first evidentiary hearing. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967).

At the last of said evidentiary hearings, Hamilton, after assurance of immunity, admitted his acquaintance with Harden, but very evasively testified that he Could not recall: how long he had known Harden; if he was working for Harden as an informant in 1973; whether he was instructed by Harden to call Turner in order to get Turner to buy heroin for him; whether he told Turner that he wanted Turner to buy heroin for him; whether he had a conversation with Turner outside petitioner's presence; whether he introduced Turner to Harden; whether he was in jail on June 13, 1973, or ever requested Harden to obtain his release; the purpose of his invitation to Harrington's house or the time and date; his possessing heroin on any occasion or any of his sources of heroin, though he admitted having been an addict; how he got the money to supply his habit; any discussion with Harden concerning his release on June 13, 1973; how his bond was made on June 13, 1973; or any meeting with Harden...