Thomas v. State

• Decision Date: 28 October 1992
• Docket Number: No. 109-91,109-91
• Citation: 841 S.W.2d 399
• Parties: Garry Lynard THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 399

841 S.W.2d 399

Garry Lynard THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 109-91.

Court of Criminal Appeals of Texas En Banc.

Oct. 28, 1992.

Gary A. Udashen (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty. and Anne B. Wetherholt, Suzanne Lomenick and Dennis James, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

A jury convicted appellant and his co-defendant, Ricky James Davis, of murder pursuant to Tex.Penal Code Ann. § 19.02(a)(1). The trial judge assessed appellant's punishment at confinement for life. Tex.Penal Code Ann. § 12.42(c). The Court of Appeals affirmed. Davis and Thomas v. State, Nos. 05-89-00496-CR and 05-89-00497-CR, Delivered October 31, 1990 (Tex.App.--Dallas 1990) (not published). We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in not ordering a new trial when the State failed to disclose exculpatory evidence in violation of the Due Process Clauses of the Fourteenth Amendment and Art. I, § 19 of the Texas Constitution. ¹

I.

Appellant, Davis, Charles Sims and James Walker arrived at Jeannie Sims' apartment. Some time later, the deceased arrived with Denise Crowder. At trial, Jeannie Sims, the deceased's former girlfriend, and Crowder, the deceased's fiancee, each testified they saw appellant drag the deceased behind the apartment building and shoot him. Police officers interviewed Walker several days after the alleged offense. Approximately one month later, Walker was interviewed by Dallas County Assistant District Attorney, Suzanne Lomenick, and her investigator, Yolanda Moses. On the first day of the trial, Lomenick and Walker met in the courtroom and again discussed the case.

Prior to trial, Davis filed a motion for the disclosure of favorable evidence. At the hearing on the motion the trial judge asked Lomenick if she had any evidence favorable to either appellant or Davis. Lomenick denied having any favorable evidence. ² At trial, the State relied exclusively on the testimony of Jeannie Sims and Crowder to implicate appellant in the murder. ³ Walker did not testify at either phase of appellant's trial. Appellant filed a motion for new trial, in part, contending:

... Exculpatory evidence tending to establish the innocence of the accused has been intentionally withheld or not revealed by the prosecutor or his agents prior to trial. This evidence is the exculpatory evidence that could be provided by James Walker.

At the hearing on appellant's motion for new trial, Walker testified that appellant was in the front yard of the apartment building when Walker went upstairs to watch a movie. While upstairs Walker heard loud voices but could not tell who was arguing. Walker then heard shots from behind the apartment building. Walker fell to the floor, got up and "within a matter of ... five seconds" ran downstairs. When Walker reached the front porch of the apartment, he saw appellant standing in the front yard. Walker and Charles Sims ran behind the apartment building where they saw Davis standing next to the deceased. Davis pointed a gun at Walker and Charles Sims, who ran back inside the apartment. Walker stated appellant could not have moved from the back of the apartment building to the front yard within the few seconds it took Walker to run downstairs and outside the apartment building.

It is undisputed that Walker told this version of the events to police officers once, and to Lomenick twice. At the hearing on the motion for a new trial, Lomenick testified she did not inform defense counsel or the trial judge of the information she learned from Walker. Lomenick did not deny Walker's version of the events. At the conclusion of the motion hearing, Lomenick stated, "I would have brought [Walker's testimony] to the court's attention had I thought it would ... be exculpatory in any manner." The trial judge overruled appellant's motion for new trial.

The Court of Appeals acknowledged Walker's testimony was exculpatory but held appellant failed to show enough harm to warrant reversal. Slip op. pg. 12. Relying upon United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court of Appeals held, "[i]n light of the entire record, Walker's evidence creates no reasonable doubt about Thomas's guilt." ⁴ Slip op. pg. 14.

II.

In order to address appellant's grounds for review, we must first review the history of the State's duty to disclose favorable evidence. The State's duty to disclose evidence favorable to the defendant is an extension of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In Mooney, the Supreme Court established the general rule that a prosecutor's knowing use of perjured testimony violated the defendant's right to due process under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Mooney, 294 U.S. at 112, 55 S.Ct. at 342. See also, Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). In Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), the Supreme Court expanded the rule in Mooney and held the prosecutor's knowing failure to correct a witness' perjured testimony denied the defendant due process. The Court noted the prosecution's failure to correct a witness' perjured testimony, which would have supported the defendant's theory of mitigating circumstances, prevented the defendant from effectively corroborating his own defensive theory. Alcorta, 355 U.S. at 31, 78 S.Ct. at 105. The Supreme Court expanded the prosecutorial duty to correct perjured testimony to include perjured testimony which related to the witness' credibility and not just the facts of the case. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In Napue, the Court held a prosecutor's knowing failure to correct perjured testimony which related to the witness' credibility violated the defendant's right to due process. Napue, 360 U.S. at 269, 79 S.Ct. at 1177.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court recognized the underlying principle of Mooney was

... not punishment of society for the misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

Brady, 373 U.S. at 87, 83 S.Ct. at 1197.

Brady was charged with first degree murder, a capital offense. At his trial, Brady admitted participating in the crime but claimed his co-defendant committed the murder. Prior to trial, Brady requested disclosure of the co-defendant's extrajudicial statements. The prosecution made several of the statements available but withheld the statement in which the co-defendant admitted the actual homicide. The Supreme Court held the suppression of the co-defendant's confession was a violation of the Due Process Clause of the Fourteenth Amendment. Specifically, the Court held, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. ⁵

The Supreme Court, in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), interpreted Brady as establishing a three prong test for when nondisclosure of evidence favorable to the accused violated the Due Process Clause. Under this test, the accused had to establish: 1) suppression by the prosecution after a request by the defense; 2) the evidence's favorable character for the defense; and 3) the materiality of the evidence. Moore, 408 U.S. at 797-795, 92 S.Ct. at 2568.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court was called upon to determine whether the prosecutor has a duty, in the absence of a specific request, to disclose exculpatory evidence to the defense, and if so, what standard of materiality gives rise to that duty. Agurs, 427 U.S. at 107, 96 S.Ct. at 2399. To resolve the issue the Court recognized three standards of materiality. First, in the case of a prosecutor's knowing use of perjured testimony, the conviction will be reversed "if there is any reasonable likelihood that the false testimony could have affected the judgement of the jury." Agurs, 427 U.S. at 103, 96 S.Ct. at 2397 (footnote omitted).

Second, in the case of a specific request, the Court noted:

... Although there is, of course no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

Agurs, 427 U.S. at 106, 96 S.Ct. at 2399.

Finally, when there was no request or only a general request, a "reasonable doubt" standard applied because a finding of guilt is permitted only when supported by "evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence create[d] a reasonable doubt that did not otherwise exist, constitutional error has been committed." ⁶ Agurs, 427 U.S. at 113, 96 S.Ct. at 2402. Restated, if the withheld evidence created a reasonable doubt as to the defendant's guilt or punishment, the conviction had to be reversed. However, "if there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Id. Furthermore, in...