Sambrano v. State

• Decision Date: 22 June 1988
• Docket Number: No. 04-87-00140-CR,04-87-00140-CR
• Citation: 754 S.W.2d 768
• Parties: Ray SAMBRANO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 768

754 S.W.2d 768

Ray SAMBRANO, Appellant, v. The STATE of Texas, Appellee.

No. 04-87-00140-CR.

Court of Appeals of Texas,

San Antonio.

June 22, 1988.

Rehearing Denied Aug. 3, 1988.

Richard E. Langlois, Kosub & Langlois, San Antonio, for appellant.

Stella Saxon, Asst. Dist. Atty., Karnes City, for appellee.

OPINION

Before REEVES, DIAL and CHAPA, JJ.

CHAPA, Justice.

This is an appeal from a conviction for delivery of methamphetamine. Appellant, Ray Sambrano, was convicted by a jury and punishment was set by the court at confinement for 45 years.

The single issue before us is whether the trial court abused its discretion in overruling appellant's motion for new trial based on newly discovered evidence.

The record reflects that the State presented a case against appellant relying entirely on the accusations of Juan Guerra. During the trial, in addition to accusing appellant of delivery of methamphetamine to him, Guerra admitted he was paid $100.00 by the State every time he purchased drugs from someone, was provided with gas money and a room by the State was a convicted felon on drug charges in State, Federal and Mexican courts, but denied under oath that he was "shooting up heroin" at the time he made this case against the appellant. However, in a subsequent trial, Guerra judicially confessed he had deliberately lied under oath during the trial of the instant case, because he was in fact purchasing his own heroin in San Antonio and "shooting up heroin" at the time he made this case against the appellant. This is the newly discovered evidence which formed the basis for appellant's overruled motion for a new trial and this appeal.

Initially, the State contends appellant failed to exercise due diligence during the trial of this case by failing to subpoena Dr. Payte with the methadone clinic of San Antonio. However, it was the State that vouched for the credibility of Guerra, and the appellant was not aware of what Guerra's testimony would be until the actual trial, or that his testimony was false until a subsequent trial. It is further unclear to this court that Dr. Payte would have revealed Guerra's false testimony even if he had been at the trial. We find no lack of diligence on the part of the appellant.

The State's principal argument is that the new trial was properly denied because the newly discovered "evidence is merely impeaching". In so doing, the State relies on Jones v. State, 711 S.W.2d 35 (Tex.Crim.App.1986) (en banc). The dissent additionally relies on Gardner v. State, 730 S.W.2d 675 (Tex.Crim.App.1987) (en banc). However, reliance upon these cases is misplaced in that they are clearly distinguishable.

In Jones, the State's undercover agent testified that he had purchased drugs from the appellant, and later had purchased fake pills purported to be percodan from a woman he identified as Tina Cox. Appellant contended Tina Cox could not be found at the time of the trial and did not present her testimony. However, after the trial, appellant requested a new trial based upon newly discovered testimony of Tina Cox, who he had now found. However, Cox merely denied having sold fake pills to the State's undercover agent, and "necessarily placed herself in a position of ignorance as to [the] whereabouts [of the agent and appellant]." Jones v. State, 711 S.W.2d at 39. Concluding the trial judge properly denied the new trial, the Court of Criminal Appeals stated:

Moreover, we could not fault the trial court had it found Cox' testimony to be inherently unbelievable. Admitting that she had sold what was purported to be a controlled substance would have been tantamount to confessing her guilt in the commission of a class A misdemeanor. See V.A.C.S. Art. 4476-15, Sections 4.09(a)(6) and (b)(4), and 1.02(5). Thus, she had a motive to deny any transaction with Beasley [undercover agent].

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Assuming then, without deciding, that appellant has made the requisite showing of due diligence, we hold that the new evidence posited by appellant in this cause, being of impeachment value only, and of at least questionable credibility, was not such as would probably change the result in any respect upon a new trial. Under the circumstances we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial. (Emphasis added.)

Jones v. State, 711 S.W.2d at 39, 40.

In the instant case, we find no lack of due diligence by appellant, and have no credibility problem with someone who judicially confesses to prior false testimony at a subsequent trial. Further, in appellant's trial, the newly discovered evidence not only clearly established false testimony on the part of Guerra, the only witness for the State, but a motive to do exactly what he did, lie under oath. The extremely questionable background of Guerra which made vouching for his credibility nearly impossible ¹, made the newly discovered evidence critical and more than "merely impeaching."

In Gardner, State's witness Walton, testified in the punishment stage against the accused and failed to disclose two remote convictions. However, the trial judge indicated he would have excluded the convictions as too remote to have a bearing on the witness' credibility had they been disclosed during the punishment phase. The Court of Criminal Appeals, after insinuating the convictions were remote, stated, "the incremental weight of such evidence to impeach Walton's credibility was not so great as would probably bring about a different result, viz., a negative finding on the issue of future dangerousness, upon a new trial." In addition to the fact that the instant case does not involve the issue of remoteness, the reasons heretofore set out which distinguish the case before us from Jones, also distinguishes it from Gardner. Thus, the authorities relied upon by the State and dissent do not support their contentions.

The general rule that merely cumulative, corroborative, collateral or impeaching evidence rarely is judged by appellate courts to be of such weight as likely to bring about a different result, has numerous exceptions. Jones v. State, supra; Granger v. State, 683 S.W.2d 387 (Tex.Crim.App.1984) (en banc); Burkhalter v. State, 493 S.W.2d 214 (Tex.Crim.App.1973); Spencer v. State, 69 Tex.Cr.R. 92, 153 S.W. 858 (1913). A possible standard for determining when the newly discovered evidence is no longer "merely cumulative or impeaching" was enunciated by the Texas Court of Criminal Appeals in Spencer v. State.

As said in some of the opinions, the reason for the rule forbidding a new trial for the purpose of admitting cumulative [impeaching] testimony is that public policy, looking to the finality of trials, requires that a defendant be held to diligence in preparing their cases for trial; but this policy, which seeks to limit continued litigation, should never be applied where the newly discovered testimony may be of that cogency and force where it might probably show that an innocent man may probably be caused to suffer for a crime he did not commit. Courts are organized, and the object of the law is that the true facts may be arrived at and justice administered; and where the evidence is about upon an equipoise as to whether a man committed an offense or not, if there is really newly discovered testimony coming from a credible source, this rule will be held in subordination to the great end to be obtained--that is, meting out justice to each individual citizen. (emphasis added.)

Spencer v. State, 153 S.W. at 860.

That a conviction obtained through the use of false testimony may reach constitutional proportions has been recognized by the United States Supreme Court. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

A new trial is required if 'the false testimony ... in any reasonable likelihood could ... have affected the judgment of the jury....' Napue, supra, at 271, 79 S.Ct. at 1178, 3 L.Ed.2d at 1222.

Giglio v. United States, 405 U.S. at 154, 92 S.Ct. at 766.

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 887, 136 N.E.2d 853, 854, 855.

'It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.... That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.' ² (emphasis added)

Napue v. Illinois, 360 U.S. at 269-70, 79 S.Ct. at 1177.

The Texas Court of Criminal Appeals has followed the United States Supreme Court by stating:

Under Giglio v. United States, supra, a new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. 92 S.Ct. at 766. It is clear that appellant could not have been convicted without Anderson's [Guerra] testimony. Under these circumstances we cannot conclude that the judgment of the jury could not have been reasonably affected by this testimony, and thus the conviction must be reversed. (...