Ex parte Weinstein

• Decision Date: 10 March 2014
• Docket Number: No. WR–78,989–01.,WR–78,989–01.
• Parties: Ex Parte Steven Mark WEINSTEIN, Applicant.
• Court: Texas Court of Criminal Appeals

421 S.W.3d 656

Ex Parte Steven Mark WEINSTEIN, Applicant.

No. WR–78,989–01.

Court of Criminal Appeals of Texas.

Jan. 29, 2014.

Rehearing Denied March 10, 2014.

Randy Schaffer, Houston, TX, for Applicant.

Devon Anderson, District Attorney Harris County, Houston, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

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

Applicant was convicted of murdering Jerry Glaspie. He filed a post-conviction application for a writ of habeas corpus, alleging that he was denied due process because (1) the State failed to disclose that its key witness, Nathan Adams, had hallucinations and delusions, and (2) the State presented false testimony when Mr. Adams lied about not having hallucinations and delusions. The habeas judge initially filed findings of fact and conclusions of law recommending that we deny relief, but we remanded the case and asked her to determine (1) whether Nathan Adam's testimony was false, and, if so, (2) whether applicant had shown a reasonable likelihood that the false testimony affected the judgment of the jury.¹ In revised findings, the judge found that the State unknowingly presented false testimony when Nathan Adams testified that he did not suffer from auditory or visual hallucinations. The judge also found that Mr. Adams was a key witness in establishing applicant's intent to murder. She concluded that there was a reasonable likelihood that the outcome of the trial would have been different had Mr. Adams admitted to having hallucinations.

We adopt the habeas judge's factual findings that Adams's testimony about his lack of delusions was false, but we conclude that applicant has failed to prove that Adams's false testimony was “material,” i.e., reasonably likely to have affected the jury's verdict.

I.

The evidence at trial showed that, in mid–2006, applicant and Jerry Glaspie drove from Houston to Dallas planning to use applicant's $14,000 to buy methamphetamine. The drug deal did not go as planned. Although Jerry instructed applicant to bring cash, applicant tried to buy the meth with a $14,000 cashier's check. “[T]he banks were closed because it was the weekend and so there was no place to cash the check.” Unwilling to wait for the banks to open, applicant left Jerry in Dallas with his check, expecting him to return to Houston with either meth or money.

Jerry remained in Dallas, so applicant called him “four or five times a day,” but Jerry “stopped answering the phone.” Then applicant started calling Jerry's friends in Houston. Around November, applicant contacted Jerry's friends on Manhunt,² explaining how Jerry ripped him off and looking for ways to find him. Applicant “was very upset and angry.” He tried to get a mutual friend to call Jerry and tell him that someone in Houston wanted to make a major methamphetamine buy. Applicant planned to “surprise” Jerry when he appeared and demand his money back. When asked what he would do if Jerry didn't have his money, applicant said, “Oh, well, we'll just scare him.”

Applicant's plans grew more violent. At one point, he suggested driving to Dallas and “tak[ing] him for a ride somewhere.” If Jerry didn't have his money, applicant said that “maybe we can hurt him. We can do something, just do stuff just to scare him, just to get him to, you know, cough up the money.” In another plot, applicant asked his interior decorator to help bring Jerry back “with or without [his] consent” by “giving him some drug or maybe using a taser gun.” Applicant also talked about using restraints: “[H]e was [going] to have to tie him up ... and then put him in the car and bring him to Houston.”

Jerry eventually returned to Houston without the drugs or applicant's $14,000. Although he was warned to stay away from applicant, Jerry told his friends that he had “made arrangements to pay him off in installments,” so “[d]on't worry about it.”

On the morning of January 29, 2007, Jerry borrowed his roommate's 4–Runner to visit some people, including applicant. Jerry never returned. Worried about Jerry's disappearance, his roommate filed a missing persons report. A few weeks later, police found the 4–Runner in a church parking lot. Although Jerry's friends feared that he was at applicant's house, no one called the police because they didn't want cops “poking around” in their drug business.

Near the end of February, residents in applicant's townhouse complex noticed an odor coming from applicant's garage. It was so strong that the mailman refused to deliver the mail. When his neighbors repeatedly asked about the smell, applicant said that his ex-roommate had hidden food all over the house, but he was trying to clean up all the rotting food.

On March 8th, HPD Officer Ladewig was dispatched to applicant's house to check out the foul odor coming from the garage. She noticed “this awful, horrible smell” and “a big swarm of flies” coming in and out of applicant's garage. Although she recognized the smell of a dead body, she was not “100 percent sure” that it was anything more than a dead animal, so she did not try to contact applicant. Two days later, she was again dispatched to applicant's home. Convinced that she was smelling a dead body, she asked her supervisor to join her, and together they knocked on applicant's door and used their loudspeaker, but applicant did not respond. Although they wanted to make a forced entry, the D.A.'s Office told them that they could not enter without a search warrant.

At 5:00 a.m. on March 22nd, Officer Ladewig was on patrol near applicant's house. Still convinced that the odor coming from applicant's garage was from a dead body, she drove her partner to the house to get his opinion. When they arrived, applicant was standing in his front yard. He told the officers that his ex-roommate “had left rotting meat and trash all over” the house and garage. While telling his story, applicant “was stuttering” and “appeared very upset,” and “nervous.” When Officer Ladewig asked to see inside the garage, applicant refused because “he was too tired.”

The next afternoon, a different officer was called to follow up on another odor complaint at applicant's house. He “immediately identified that smell as that of a dead body.” He also smelled “the strong odor of a cleaning agent, like bleach,” indicatingthat somebody “was trying to clean up after what they did.” That officer opened applicant's garbage can and saw several empty bottles of bleach and other cleaning fluids. He couldn't contact applicant, but finally officers called for a cadaver dog who “alert[ed]” at applicant's garage, indicating that there were human remains in the garage. After obtaining a search warrant, the officers cut through applicant's gate and entered his unlocked house.

They discovered applicant lying on a bed upstairs. He “appeared to be shaking, like he was having a seizure.” A police scanner was on the bed next to him. He was taken away while officers entered the garage and found applicant's car. As an officer went to the trunk of the car, he saw a bent coat hanger securing the trunk lid shut. He opened the trunk and found a naked, “badly decomposed,” body. An engine hoist was nearby. When they searched the rest of the house, the officers found an empty oil drum in the kitchen; two semiautomatic guns near the headboard of applicant's bed; a respirator on the bedroom floor; and baking soda, cleaning supplies, bug killers, and deodorizers near the entrance to the garage.

Dental and fingerprint evidence confirmed that the body was that of Jerry Glaspie. Jerry had no clothes on. His wrists and legs were bound together with metal shackles, rope, chains, and wire. There were “loops of duct tape” around his lower neck that had “probably slipped off from his lower face.” The Medical Examiner (M.E.) determined that Jerry's death was a homicide, although he could not say with 100% certainty that Jerry did not die of natural causes. The bones in Jerry's neck had begun to disarticulate,³ but the M.E. could not determine if this was caused by strangulation or natural decomposition. While the exact cause of death could not be determined, the M.E. said that Jerry's death could have been caused either by strangulation or by asphyxiation from the duct tape.

Nathan Adams testified that he met applicant in a tank for jail detainees with a medical illness. Applicant began talking about his case and that jogged Adams's memory about a television story he had seen reporting that a dead body had been found in a car trunk after the neighbors had complained about the smell. Adams testified that he did not read any additional news coverage, nor had he obtained any information about the crime from another source. Adams testified that applicant told him that Jerry stole $14,000 from him when he went to Dallas to buy a “car.” ⁴ Applicant told Adams conflicting stories about how Jerry died,⁵ but his second story was “that he had strangled the gentleman and had placed him in the trunk.” Adams testified that applicant demonstrated “on [him] ... the way he did it:”

[H]e wrapped a towel a certain way and he asked me to stand up, which I did, and he came behind me and put the towel in a certain way around my neck and immediately when he pulled it, it was extremely painful. And I knew that if that was applied to anybody that they would be in serious trouble immediately.

Adams explained that applicant was a massage therapist and claimed to have “specialized knowledge of pressure points, pressure points in the body whether it was ... to help somebody or to hurt somebody.” Applicant told Adams that he put Jerry's body in the trunk of his car but the smell became horrible, so he bought dry ice and sprayed insecticides to keep the smell down. He was scared because the smell was so bad that he “stayed in his house and never left his house again until the police came.”

Adams testified that...