Opinion
NO. WR-75,828-02
10-02-2019
EX PARTE Paul David STOREY, Applicant
ORDER
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 2ND 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." Id. Instead of resorting to creating some kind of novel, constitutional "psuedo false-evidence" jurisprudence, we could use the well-known Darden test. The problem here, as the Court points out, is that the factual predicate for Applicant's claims—regardless of how you characterize them (e.g., false evidence, Brady , Darden , etc.)—is not newly available, so we cannot reach the merits of those claims.
Judge Yeary claims that Darden and Romano , among others, are easily distinguishable based on their facts. I agree, but that misses the point. The Darden /Romano test is used to determine whether improper comments by a prosecutor rise to the level of a due-process violation because the comments could so infect 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. It seems obvious to me that, if a prosecutor makes false statements during closing argument, those could be considered under the Darden test.
III.
Second, even if we assume that the State's knowledge of the victim's parents' position on the death penalty was information favorable to Applicant and that the State suppressed it, I fail to see how Applicant can show that the information is material.
In Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Brady and a co-defendant murdered the victim. Brady admitted his guilt but sought to avoid the death penalty by arguing that he was not the shooter, his co-defendant was. Unbeknownst to Brady, his co-defendant gave a statement to police in which he admitted that he killed the victim. Brady did not learn of his co-defendant's statement, however, until after he was convicted because it was suppressed by the State. The Supreme Court agreed that Brady was entitled to a new trial because the statement was "highly significant to the primary jury issue" of whether a death sentence was appropriate to his level of participation in the crime.
This case is not like Brady. Applicant admitted that, after his co-defendant shot the kneeling victim in the back of the head, he shot the victim at least four more times because he "kind of got caught up in all of it." He made those admissions only after repeatedly lying about his level of participation in the murder. Initially, he claimed that a fictional person killed the victim, then he told police that someone named Carlos, whom Applicant did not like and who had nothing to do with the crimes, was the shooter. In another variation, he said that he was only the get-away driver. Ultimately, he conceded that he planned the robbery and directed his co-defendant during the robbery. And this was not some spur of the moment crime. Applicant wrote his plan down, then later attempted to burn it. They knew when the first employee (the victim) would arrive to work that morning and that he would be alone. They knew when the next person would arrive at work, so they could leave before his arrival. They brought a loaded weapon. And they intentionally killed the victim execution style.
The victim's wife was the first person to testify at the punishment phase. Her testimony was brief, but powerful. When asked to describe the impact of her husband's death on her, she said that,
Well, I had just come back from lunch, and I was having a pretty good day, and I was pulled into an office at my office. And my best friend was there, and she was crying, and there was a police officer. And I kind of walked in, was kind of confused. Never figured anything had happened. And then the police officer just told me that Jonas was dead; he was killed.
It's kind of a blur, to be honest with you, as to how my reaction was. I think I started screaming at that point. You know, in that moment, I knew my life was never, ever going to be the same. It felt like my entire life had crumbled right in front of me. It felt like someone had pushed me into a hole and there was no way of getting out of it. Jonas and I had planned on having children. We owned a home together. I knew I was never going to live there again, which I never did.
I had to tell his parents. And how do you tell, you know, the mother of their only child that, "I'm sorry, you are never going to have grandchildren, and I'm sorry your son was murdered?" I never slept again without medication. I started going to a therapist the next week and had panic attacks every night and was terrified that at any moment in my life, someone I loved was going to die. And I couldn't be in a crowded room. I had to leave the job that I loved for several months.
I mean, it was just – my whole life, it was horrible. Everything has changed. It's like my life is okay now, but it's never going to be as good it was. He and I were so in love, and we were so happy together. And he made every day just better because he was part of it. And now everything that I thought I was going to have, I am just never going to have.
So it's kind of hard to describe how it impacts you. But every single way something could impact you, it has impacted me that way.
Some jurors were crying during her testimony. There was also evidence that, after executing the victim, Applicant and his co-defendant went to Cash America to shop, then Braum's to eat, before returning to Cash America. Surveillance video taken in Cash America showed Applicant and his co-defendant joking and laughing with each other while they looked for something to buy with the money that they stole. Other evidence showed that, before the murder, Applicant robbed numerous drug dealers because he knew that they would not report the robberies to the police. On the other hand, more than a half-dozen witnesses, who personally knew Applicant, testified in great detail why the jury should spare his life.
In light of all of this, it is difficult—if not impossible— to conclude that the victim's parents' general opposition to the death penalty would cast "the whole case in a different light ...." United States v. Agurs , 427 U.S. 97, 109–10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Consequently, even if the basis for Applicant's Brady claim was not known when he filed his subsequent writ application, which is doubtful, filing and setting this case to get briefing about the "due diligence" requirement is unnecessary.
IV.
For years, great debate over prosecutorial discretion in seeking the death penalty has existed. And attention to the facts and circumstances of each case necessarily includes the rights of the victim of a crime. But even legislative consideration of victims' rights only directs prosecutors to keep victims informed! A victim's desires, wishes, thoughts, and suggestions should be, and often are, sought out by prosecutors, but the victim's wishes do not override prosecutorial discretion, including regarding whether to seek the death penalty.
V.
With these comments, I concur in the Court's dismissal of Applicant's subsequent application for a writ of habeas corpus. DISSENTING OPINION
YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.
During her final summation at the punishment phase of Applicant's capital murder trial, the prosecutor made the following statement:
And it should go without saying that all of the Jonas's [the victim's] family and everyone who loved him believe the death penalty is appropriate.
It is bad enough that there was no evidence in the record to support this statement. Applicant now claims that, as it later turned out, it was also patently false.
We remanded this cause for additional record development with respect to whether Applicant's various claims satisfied Article 11.071, Section 5(a)(1), and instructed the trial court to proceed to the merits should it find no abuse of the writ under that provision. Ex parte Storey , No. WR-75,828-02, 2017 WL 1316348 (Tex. Crim. App. Apr. 7, 2017) (not designated for publication); Tex. Code Crim. Proc . art. 11.071, § 5(a)(1). At an evidentiary hearing on remand, the victim's parents testified that, not only were they opposed to the death penalty in the abstract, they were also specifically opposed to the State's efforts to obtain the death penalty for Applicant's murder of their son. They also maintained that they informed the prosecutors that they opposed the death penalty, both generally and as applied to Applicant, during their initial meeting with the State. While this testimony did not go entirely un-impeached during the writ hearing, the convicting court has recommended that we find that the State's rebuttal evidence lacks credibility. While it may be tempting to rely on information developed at the hearing, we must first decide whether we agree with the trial court's determination that the pleadings in this case satisfy the requirements of Section 5(a)(1). For this reason, I will restrict my own consideration of the issue of initial habeas counsel's "reasonable diligence" to the facts contained in the writ application itself.
Texas Bar No. 10445200.
Applicant has filed a subsequent post-conviction application for writ of habeas corpus, alleging (among other things) that the prosecutor's statement constituted the knowing use of false evidence and that the failure to disclose its falsehood constituted suppressed evidence that was favorable to the defense, under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While Applicant's allegation does not fit neatly within either the jurisprudence of false evidence or that of the suppression of favorable evidence for Brady purposes, it would not be a stretch to conclude that the prosecutor's statement, if indeed false, violates due process in some yet-to-be-fully-articulated way that is analogous to both of these theories.
Today the Court dismisses Applicant's various claims on the grounds that he "has failed to meet his burden to show that the factual basis for the remanded claims was unavailable on the date he filed" his initial application for post-conviction habeas corpus relief, and therefore "failed to satisfy the requirements of Article 11.071, [Section] 5." Court's Order at 5; see TEX. CODE CRIM. PROC . art. 11.071, § 5(a) (prohibiting courts from entertaining the merits of a claim raised in a subsequent post-conviction writ application unless the application "contains sufficient specific facts establishing that" the factual basis for the claim was unavailable when a previous writ application was filed). It is not self-evident to me, however, that the writ application fails to "contain sufficient specific facts" to establish unavailability. In my view, the Court should at least file and set this cause to better explain how it comes to that conclusion. The Court seems to conclude that Applicant's initial writ counsel did not exercise "reasonable diligence" to investigate such a claim prior to filing Applicant's original post-conviction writ application. Court's Order at 4–5; see TEX. CODE CRIM. PROC . art. 11.071, § 5(e) (a factual basis was previously unavailable if it "was not ascertainable through the exercise of reasonable diligence" prior to the due date for a previous capital writ application). There is reason to doubt the propriety of the Court's conclusion, and we would benefit from additional briefing from the parties.
Specifically, there is reason to doubt—whatever the ordinary parameters of "reasonable diligence" might ultimately prove to be in a habeas corpus investigation—that Applicant's initial habeas counsel should have been required to investigate the veracity of assertions of fact that the prosecutor made during her closing argument. The United States Supreme Court has made it clear that due process will not tolerate the imposition of a diligence requirement upon a habeas applicant who claims deliberate and persistent prosecutorial misconduct. See Banks v. Dretke , 540 U.S. 668, 675–76, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) ("When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight."). And that is, in essence, what Applicant appears to claim has happened here.
In Banks , the State of Texas failed to disclose, both at trial and at any point during the subsequent post-conviction proceedings, that one of its principal punishment phase witnesses had testified falsely. Id. at 678, 680 & 683, 124 S.Ct. 1256. It was not until Banks finally obtained discovery of the State's file and an evidentiary hearing during federal habeas corpus proceedings that he uncovered the falsehoods, as well as the State's persistent failure to disclose them. Id. at 684–85, 124 S.Ct. 1256. The federal district court granted Banks a new punishment-phase hearing, while affirming the guilt phase of his trial. Id. at 686–87, 124 S.Ct. 1256. In the appeal that followed, the State argued that Applicant should not have been granted an evidentiary hearing in federal court because he had not pursued his Brady claim with sufficient diligence during the state post-conviction habeas corpus proceedings, and the Fifth Circuit agreed. Id. at 688, 124 S.Ct. 1256.
On petition for certiorari, however, the United States Supreme Court reversed the Fifth Circuit's judgment. It held that to impose a requirement of diligence upon a federal habeas applicant to pursue a Brady claim, even in the face of stubbornly persistent prosecutorial denials that any exculpatory or impeaching evidence remained undisclosed, was inconsistent with bedrock due process principles. See id. at 694, 124 S.Ct. 1256 ("[I]t was ... appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction."); id. at 696, 124 S.Ct. 1256 ("A rule ... declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process."); id. at 698, 124 S.Ct. 1256 ("It was not incumbent on Banks to prove [the State's] representations false; rather, Banks was entitled to treat the prosecutor's submissions as truthful.").
It is at least arguable that these same bedrock due process principles should be considered when we construe the meaning of "reasonable diligence" for purposes of making the determination whether Applicant's present arguments were "available" at the time when he filed his original post-conviction application for writ of habeas corpus in this case. If we were to conclude that these principles apply in a case like this, then the Court would be mistaken even to ask whether Applicant's original habeas counsel, Robert Ford (now deceased), ever tried to investigate the accuracy of the prosecutor's assertion during her final arguments at the punishment phase of trial—that all family members wanted Applicant to be executed. Assuming that the prosecutor's jury argument that the family had endorsed Applicant's execution was indeed false, the State has yet to "set the record straight" with respect to the veracity of that statement. Even as late as its original response asking this Court to dismiss Applicant's subsequent writ application for a failure to establish reasonable diligence, the State has failed to concede that the prosecutor's assertion was false.
Because "it is ordinarily incumbent on the State to set the record straight[,]" id. at 675–76, 124 S.Ct. 1256, we should at least explore the possibility that "reasonable diligence" should not be read to embrace a requirement that original state habeas counsel must second-guess the truthfulness of a prosecutor's factual assertions during final argument in the punishment phase of a capital murder trial. I would at least file and set this cause and request additional briefing from the parties regarding this possibility. Because the Court does not, I dissent.
I do not mean to suggest that I believe it has yet been established, as a matter of fact, that the prosecutor's assertion was false. I mean only to convey that: 1) Applicant has pled facts to establish that it was false, and that the prosecutor knew it to be so; and 2) if those allegations of fact are true, then, in the absence of a concession by the State that the prosecutor's assertion was false, Appellant may well have alleged "sufficient specific facts to establish" the statutory "reasonable diligence" requirement that would authorize him to proceed to litigate his subsequent writ application. We may yet conclude upon full litigation of the issue that the assertion was not false after all, and the State might then prevail on the merits. But the question before us today is simply whether we agree with the convicting court's ultimate conclusion that Applicant should be allowed to proceed to the merits of his claims, given the strictures of Article 11.071, Section 5(a)(1) & (e).
I would also order additional briefing on the merits of Applicant's claims. Additional briefing would be appropriate because Applicant's claims do not readily fit the mold of either 1) the presentation of false evidence or 2) the suppression of evidence favorable to the defense under Brady. Indeed, on the surface, Applicant's claims do not seem to involve evidence at all; rather, they seem to involve some kind of error in the jury argument, occurring after the presentation of evidence was complete and the parties had closed.
The prosecutor assured the jury that all of the victim's family supported the State's attempt to obtain the death penalty for Applicant. Even assuming that this was objectively accurate, no evidence to that effect was introduced at trial. Applicant's trial counsel could therefore have objected—conceivably on at least three grounds. First, it constituted facts not in evidence, since no family member testified to that effect. See Freeman v. State , 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) ("A prosecutor may not use closing arguments to present evidence that is outside the record."). Second, it might be argued that the victim's family's belief that death would be the appropriate punishment for the victim's murder is irrelevant to the future dangerousness special issue, and that it inappropriately invades the jury's normative function under the mitigation special issue. TEX. CODE CRIM. PROC . art. 37.071, §§ 2(b)(1) & 2(e)(1). Third, such evidence has been held to be patently objectionable under the Eighth Amendment. Bosse v. Oklahoma , ––– U.S. ––––, 137 S. Ct. 1, 2, 196 L.Ed.2d 1 (2016). Applicant could have—but did not—make a trial objection on any of these bases. Had they done so, the error inherent in the prosecutor's assertion might have been limited in concept to an ordinary jury-argument error, quite apart from the fact that it was false.
Whether the family thinks a death sentence for Applicant would be appropriate is simply irrelevant to the question whether he would continue to commit criminal acts of violence that would constitute a continuing threat to society. Tex. Code Crim. Proc . art. 37.071, § 2(b)(1). Whether it might be relevant to the jury's determination of the weight of the mitigating evidence is, perhaps, debatable. Tex. Code Crim. Proc . art. 37.071, § 2(e)(1). But even if relevant to the jury's mitigation determination, it is arguably more prejudicial than probative to the extent that it might cause a jury to simply abdicate its own normative judgment in favor of the family's preference, and it might be objectionable under Rule 403 for that reason. Tex. R. Evid . 403. In any event, the United States Supreme Court has held that evidence of the family's punishment preference in a death penalty case is objectionable under the Eighth Amendment. See Booth v. Maryland , 482 U.S. 496, 508–09, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (testimony from family members in a capital case relating their opinions about appropriate punishment violates the Eighth Amendment); Bosse , 137 S. Ct. at 2 (applying Booth 's holding to prohibit testimony from family members that a capital murder defendant should receive the death penalty).
In an affidavit attached to Applicant's subsequent writ application, one of his trial attorneys explains that he did not object because "I believed that the Court would find that the argument was ‘invited’ by and in response to the testimony that we had introduced from members of [Applicant's] family asking that the jury spare his life. As I believed that the Court would ultimately overrule my objection on that basis, I did not want to provide the State with the opportunity to repeat or emphasize the argument in response to my objection."
But, of course, such errors would then be available on direct appeal, and not ordinarily the subject of a post-conviction application for writ of habeas corpus—much less a subsequent writ application. See Ex parte Moss , 446 S.W.3d 786, 788–90 (Tex. Crim. App. 2014) (holding that only category one claims, under the rubric of Marin v. State , 851 S.W.2d 275 (Tex. Crim. App. 1993), can be raised for the first time in an initial post-conviction application for writ of habeas corpus when it could have been, but was not, raised on direct appeal; but warning that even such a category one Marin claim may not be actionable in a subsequent writ application).
But Applicant now claims that it was also false , and the record supports the conclusion that Applicant's trial counsel did not know it was false. And that part of Applicant's pleadings injects additional due process considerations into the case, appropriate for consideration in post-conviction habeas corpus proceedings. Had Applicant's trial lawyers been aware that the prosecutor's family-endorsement argument was not just objectionable, but also false, they might well have been dissatisfied with merely objecting to it as facts outside the record or facts constitutionally inappropriate to the jury's punishment-phase function. They might have regarded a judicial instruction to the jury to disregard the prosecutor's argument as inadequately remedial.
Judge Hervey argues that, instead of conceptualizing this case along the lines of a false-evidence or suppression-of-mitigating-evidence theory of due process, we should analyze it under the rubric of cases such as Darden v. Wainwright , 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), and Romano v. Oklahoma , 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). But those cases are plainly distinguishable. Darden involved a prosecutor's runaway rhetorical flourishes during his summation, and the question was simply whether his rhetoric was so much more prejudicial than probative as to surpass the tolerances of due process. 477 U.S. at 179–83, 106 S.Ct. 2464. In Romano , the State was permitted to introduce evidence that the defendant had previously received the death penalty from another jury in another case—which case was later reversed on appeal. The question was whether informing the jury of that prior death sentence rendered his subsequent capital punishment proceeding constitutionally unfair because it undermined the jury's sense of responsibility for determining the appropriateness of the death penalty for the second capital offense. Romano , 512 U.S. at 3, 114 S.Ct. 2004. Neither of these cases involved an insertion before the jury of facts that were—not just hyperbolic or inflammatory or trivializing—but also false. If the prosecutor knowingly injected a falsehood into the punishment proceedings, that may well serve to reduce the level of materiality Applicant must satisfy in order to prevail on his due process claim. See Ex parte Lalonde , 570 S.W.3d 716, 726–27 (Tex. Crim. App. 2019) (Keller, P.J., concurring) (noting that the materiality standard for the knowing use of false evidence in a post-conviction habeas corpus proceedings "is the same as the harm standard for constitutional error on direct appeal"). Indeed, this potentiality is one reason, among many, that it would benefit the Court to file and set this cause and obtain briefing from the parties.
Instead, having been taken by surprise when the prosecutor made her false assertion, Applicant's trial counsel may well have preferred, had they known it was false, not merely to object to it and to seek an instruction to the jury to disregard it, but to actually refute it with—wait for it—evidence. They might have preferred to invoke Article 36.02 of the Code of Criminal Procedure to ask the trial court to reopen the evidence so that the parents (at least) could rectify the prosecutor's falsehood under oath. Of course, because the State had not told defense counsel that the parents actually opposed the death penalty for Applicant (or so Applicant claims), Applicant argues that this now-favorable evidence was suppressed, and Applicant's trial counsel did not know that asking the trial court to re-open the case for the introduction of rebuttal evidence was an option. In this sense, then, Applicant's claim seems at least analogous to a Brady claim, if not also a false-evidence claim. I would order the parties to brief both of these claims.
See Tex. Code Crim. Proc . art. 36.02 ("The court shall allow testimony to be introduced at any time before the argument of a cause is concluded , if it appears that it is necessary to a due administration of justice.") (emphasis added).
What I would not do is simply declare that Applicant's original writ counsel—who is now deceased and unable to respond to claims about his diligence—failed to diligently investigate the present claims, and dismiss the subsequent writ application on that basis. I would file and set the cause and order additional briefing, as indicated above. Because the Court does not, I respectfully dissent.
DISSENTING OPINION
Walker, J., filed a dissenting opinion, in which Slaughter, J., joined.
Paul David Storey, Applicant, was convicted of capital murder for intentionally causing the death of Jonas Cherry while in the course of committing robbery. During the State's punishment phase closing argument, one of the prosecutors, Christy Jack,1 said in reference to testimony by Applicant's family members:
-- and you know what?
His whole family got up here yesterday and they pled for you to spare his life.
And it should go without saying that all of Jonas's family and everyone who loved him believe the death penalty is appropriate.
Rep. R. vol. 39, 12, Storey v. State , No. AP-76,018, 2010 WL 3901416 (Tex. Crim. App. Oct. 6, 2010). After the statement was made, Applicant's trial counsel did not object. Following deliberation, the jury answered the special issues set forth in article 37.071 of the Code of Criminal Procedure, and the trial court sentenced Applicant to death. On direct appeal, we affirmed the conviction and sentence in an unpublished opinion. Id. , 2010 WL 3901416 at *25 (not designated for publication). Shortly thereafter, Applicant sought habeas corpus relief, which we denied. Ex parte Storey , No. WR-75,828-01, 2011 WL 2420707 (Tex. Crim. App. June 15, 2011) (not designated for publication).
In December of 2016, Applicant's trial counsel became aware that Jack's statement during closing argument, that "all of Jonas's family and everyone who loved him believe the death penalty is appropriate," was in fact false. Jonas Cherry's parents, Dr. Judith Cherry and Glenn Cherry, had long been opposed to the death penalty, and the State's prosecutors—Christy Jack and Robert Foran —knew prior to trial that the Cherrys were opposed to the death penalty.
Texas Bar No. 07220600.
Today, we are presented with Applicant's second application for a writ of habeas corpus relating to this case, based on claims relating both to the failure of the prosecution to disclose the fact that the Cherrys were opposed to the death penalty and to Jack's closing argument in which she falsely told the jury that the Cherrys were in favor of the death penalty. Instead of addressing these issues, the Court concludes that Applicant's claims are not reviewable due to the procedural bar against subsequent applications under article 11.071 § 5 and summarily dismisses his application as an abuse of the writ. Because I disagree that Applicant's claims are procedurally barred, I respectfully dissent.
I — Section 5
Article 11.071, governing habeas corpus procedure in death penalty cases, provides in § 5(a) :
Sec. 5. (a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application ....
TEX. CODE CRIM. PROC . Ann. art. 11.071 § 5(a). This procedural bar under § 5(a) can be defeated if the subsequent application includes sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071, 37.0711, or 37.072.
Id. § 5(a)(1)–(3). Applicant argues that the discovery of the Cherrys' opposition to the death penalty is a factual basis under § 5(a)(1) that was unavailable when he filed his initial writ application, allowing us to consider the merits of his current application. A factual basis is unavailable if it was not ascertainable through the exercise of reasonable diligence on or before the date of the previous application. Id. art. 11.071 § 5(e). In Lemke , this Court explained that "reasonable diligence" suggests at least some kind of inquiry has been made into the matter at issue. Ex parte Lemke , 13 S.W.3d 791, 794 (Tex. Crim. App. 2000), overruled on other grounds by Ex parte Argent , 393 S.W.3d 781 (Tex. Crim. App. 2013).
II — The Current Application
In this application, Applicant raises six claims, that: (1) newly-discovered evidence "compels relief"; (2) the State denied him his right to due process because it argued "evidence" it knew to be false; (3) the State introduced false evidence which unconstitutionally deprived him of a fair punishment trial; (4) the State denied him his right to due process by suppressing mitigating evidence; (5) by arguing false aggravating evidence and suppressing mitigating evidence, the State rendered the death sentence in this case unreliable under the Eighth and Fourteenth Amendments; and (6) the State violated the Fourteenth Amendment by seeking death in this case.
After reviewing Applicant's writ application, we found that claims two through five arguably satisfied § 5, but we concluded that the record was insufficient to determine, with assurance, whether Applicant could have previously discovered the evidence about which he complained. Ex parte Storey , No. WR-75,828-02, 2017 WL 1316348 at *1 (Tex. Crim. App. Apr. 7, 2017) (not designated for publication). We remanded to the trial court to further develop the record, to make findings of fact and conclusions of law regarding whether the factual basis of those claims was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, and to review the merits of Applicant's claims. Id.
Pursuant to our remand order, the trial court held a hearing in which the attorneys involved in Applicant's case testified, including attorneys for both Applicant and for the State, except for his habeas counsel on the initial writ application, Robert Ford, who is deceased. Additionally, the Cherrys testified. The trial court made the following findings of fact:
A. Robert Ford exercised due diligence as habeas counsel
1. Robert Ford, now deceased, was state habeas counsel for Applicant in his initial state writ brought under art. 11.071.
2. Glenn and Judith Cherry, the parents of the victim, opposed Applicant receiving the death penalty.
3. Robert Foran and Christy Jack were the trial prosecutors for the State in both this case and in the co-defendant, Mark Porter's, case. Both Foran and Jack knew, prior to Applicant's trial, that Glenn and Judith Cherry opposed Applicant receiving the death penalty.
4. Neither Foran nor Jack nor anyone else from the State, ever informed Mr. Ford that Glenn and Judith Cherry opposed a death sentence for Applicant. Likewise, neither Foran nor Jack, nor anyone else from the State ever informed Larry Moore, Bill Ray (Applicant's trial attorneys), or Mark Daniel or Tim Moore (the co-defendant's attorneys), that Glenn and Judith Cherry opposed the death penalty for both Applicant and his co-defendant, Mark Porter.
5. Tarrant County Assistant District Attorney Edward "Chip" Wilkinson, who represented the State on direct appeal and during the initial state habeas proceedings, was unaware of the Cherrys' opposition to Applicant receiving the death penalty.
6. Mr. Ford had a strong reputation for his diligence. He was described by various attorneys and judges as "extremely zealous," "tenacious,"
"very aggressive," "gifted," a "passionate lawyer," "fearless advocate," "extremely diligent," and invariably regarded as an exceptional and diligent attorney.
7. This Court finds that in most cases family members of murder victims do not wish to speak to lawyers representing the person found guilty of killing their loved one.
8. This Court finds that it is highly unusual, in cases such as this one, for the parents of the murder victim to oppose the death penalty for their child's murderer.
9. Robert Foran told Bill Ray and Larry Moore, trial counsel for Applicant, that the Cherrys "preferred not to be contacted."
10. No witness to these proceedings faulted Mr. Ford or any other of Applicant's counsel, or any of the co-defendant's counsel for failing to contact the Cherrys to determine their views on their respective clients receiving the death penalty.
11. Christy Jack did not inform Mr. Ford that the Cherrys opposed the death penalty for the Applicant and was not aware of anyone else informing him of that fact.
12. Robert Foran did not inform Mr. Ford that the Cherrys opposed the death penalty for the Applicant and was not aware of anyone else informing him of that fact.
13. Mr. Ford did not know that the Cherrys opposed the death penalty for the Applicant, his client.
14. Mr. Ford would not have discovered the factual basis of these claims through the exercise of reasonable diligence.
15. The factual basis of the four claims before this Court, i.e., the Cherrys' opposition to Applicant receiving the death penalty and the corresponding false argument made by trial prosecutor Jack, was not ascertainable by Applicant or his counsel, through the exercise of reasonable diligence on May 26, 2011, the day the initial state writ was due and was filed.
16. This Court further finds that the failure of Mr. Ford to ascertain the Cherrys' opposition to the death penalty in general and specifically as to the Applicant, does not constitute a lack of reasonable diligence.
17. This Court finds that Mr. Ford acted with reasonable diligence.
B. Findings of Fact Regarding Claims Two, Three, and Five: whether the prosecution introduced known, false evidence, and made known false assertions during argument, that the Cherrys supported a death sentence for Applicant.
18. Glenn and Judith Cherry opposed Applicant receiving the death penalty and communicated their opposition to trial prosecutors Robert Foran and Christy Jack, the first time they met about the case, prior to trial.
19. Both Christy Jack and Robert Foran knew the Cherrys opposed Applicant receiving the death penalty.
20. Neither Christy Jack, nor Robert Foran, nor anyone else from the State disclosed, or otherwise communicated to Applicant's trial counsel, Larry Moore or Bill Ray that Glenn and Judith Cherry opposed the death penalty for the client, Paul Storey.
21. At punishment, Christy Jack argued to the jury, in pertinent part, "And it should go without saying
that all of Jonas [Cherry's] family and everyone who loved him believe the death penalty is appropriate."
22. This argument was improper because it was outside the record.
23. Christy Jack's argument was prejudicial in as much as it purported to interject the wishes of the victim's family for the jury to return a verdict of death for Applicant, which is constitutionally impermissible.
24. Christy Jack conceded during the habeas proceeding that her argument was outside the record and improper but she did not think it would result in a mistrial.
25. The Cherrys' opposition to the death penalty and their opposition to Applicant's execution is long-standing and deeply-felt.
26. Christy Jack testified Glenn Cherry approached her after Marilyn Shankle, Paul Storey's mother, testified at punishment and asked, "do you want me to or should I testify that we want the death penalty."
27. This Court finds Jack's account regarding Glenn Cherry's question is not credible for the following reasons:
a. Glenn Cherry is credible. This Court believes his testimony wherein he denies he or Judith Cherry ever supported the death penalty for Applicant during the trial.
b. This Court further believes that Glenn Cherry never communicated to Jack or Foran during the trial, or at any other time, that either he or Judith Cherry supported the death penalty for Applicant.
c. Judith Cherry is credible. This Court believes her testimony wherein she denies she or Glenn Cherry ever supported the death penalty for Applicant during the trial, and that she never communicated to Jack or Foran during the trial, or at any other time, that either she or Glenn Cherry supported the death penalty for Applicant.
d. Robert Foran testified inconsistently with Jack's version in that under her version, Glenn Cherry had approached Robert Foran and the conversation had already begun when she walked up. Under Foran's version, the comments were directed at Jack from the start, and Foran just overheard some of the conversation.
e. Glenn and Judith Cherry deny that this encounter with Jack and/or Foran, or anything like it, ever happened.
f. Robert Foran conceded that Christy Jack's argument was, in fact, untrue as to Glenn and Judith Cherry.
g. Christy Jack and Robert Foran testified that the two of them never had a conversation about Glenn Cherry's change in his views on capital punishment.
h. It is not credible that prosecutors would have had no discussion about such a pivotal change in Glenn Cherry's views; and hence, this testimony creates an additional reasonable inference that the account is not true.
I. Christy Jack testified she did not question Mr. Cherry about his dramatic change in position. This inexplicable behavior further casts doubt on the believability of her testimony regarding a mid-trial
conversation with Mr. Cherry in which he purportedly completely changed his position on the death penalty.
j. Christy Jack admitted that she, at the very least, intentionally and improperly argued outside the record in making her assertion, "And it should go without saying that all of Jonas [Cherry's] family and everyone who loved him believe the death penalty is appropriate." Her admission of this prosecutorial misconduct further undermines her credibility.
k. Assistant criminal district attorney Ashlea Deener testified that her opinion of Christy Jack's credibility is "not a favorable one."
l. The State introduced testimony of Letitia Martinez, Judge Mollee Westfall and Magistrate Jeffrey Cureton, all of whom had a favorable opinion of Christy Jack's character for truthfulness. However, Ms. Martinez is Jack's current partner in private practice. Judge Westfall had equally favorable opinions of Larry Moore, Mark Daniel and Tim Moore, all of whom contradict Christy Jack's accounts. Magistrate Cureton is Ms. Martinez' husband. Magistrate Cureton had never handled a death penalty case and had no opinion of any of the experienced death penalty attorneys involved in this case. In light of Judge Westfall's endorsement of the veracity of Larry Moore and the attorneys for Mr. Porter, this Court finds that the opinion evidence offered by the State does not alter state of the evidence or the other findings in this case.
m. No such opinion evidence was offered in support of Robert Foran.
n. Suman Cherry made an out of court admission that Jack's and Foran's contention that either Glenn or Judith Cherry ever deviated from their opposition to the death penalty for Paul Storey was "bullshit."
o. As the findings fact regarding the Brady issue detail infra , Christy Jack and Robert Foran are not credible and their trial testimony is not believable.
28. Even were Christy Jack's account of her mid trial exchange with Glenn Cherry true, it is vague and does not change the falsity of the prosecution argument that "it goes without saying that everyone" who loved the victim wanted Mr. Storey's death.
29. There is no evidence that Judith Cherry ever had any change of heart in her opposition to Applicant's execution.
30. This Court finds Jack's argument to be false, regardless of whether she had the conversation with Mr. Cherry as related by Jack.
C. Findings of Fact Regarding Claim Four: whether the prosecution suppressed Glenn and Judith Cherry's opposition to Applicant receiving the death penalty.
31. On February 8, 2008, the trial court ordered the prosecutors to produce any and all such evidence "of material importance to the Defense even though it may not be offered as testimony or exhibits by the prosecution at the trial of this case on the merits," and that the State answer the Defense's request for such information in writing.
32. It is uncontroverted that the disclosures required by the Order of February 8, 2008 would also include the Cherrys' opposition to Applicant receiving the death penalty.
33. Christy Jack and Robert Foran were aware of the Cherrys' opposition to Applicant receiving the death penalty.
34. Under the Order of February 8, 2008, the prosecution had a duty to disclose the Cherrys' opposition to Applicant receiving the death penalty to Larry Moore and Billy Ray, Applicant and his attorneys had every right to rely on the Court Order and that the state would adhere to it.
35. It is exceptional and unusual that the parents of a murdered son would seek to spare the life of their child's killer.
36. Christy Jack and Robert Foran regarded this evidence as out of the ordinary and material and led to a discussion with their supervisor Bob Gill about it.
37. Larry Moore viewed the evidence as material. He testified in detail how it would have changed the course of his representation and the trial.
38. Bill Ray also regarded this evidence as material.
39. Tim Moore also regarded this evidence as material.
40. Mark Daniel's testimony further details the materiality of the Cherrys' opposition to the death penalty for Applicant and his own client, co-defendant Mark Porter.
41. Based upon the unanimity of the testimony of witnesses for the State as well as Applicant, this Court finds the evidence of the Cherrys' opposition to Mr. Storey's execution to be both favorable and material. The State had the obligation to disclose the information under the United States Constitution and the Court's order.
42. The prosecution did not reveal the Cherrys' opposition to Mr. Storey's execution in the "State's First Amended Notice of Brady Material," filed July 10, 2008.
43. This Court finds that Applicant's trial counsel, Larry Moore and Bill Ray, were not made aware of Glenn and Judith Cherrys' opposition to Applicant receiving the death penalty based on the following evidence:
a. Larry Moore testified he was never informed about the Cherrys' position from the prosecution.
b. Bill Ray was unaware of this evidence until 2017, after Larry Moore informed him.
c. Neither Tim Moore nor Mark Daniel were ever made aware of the evidence by the prosecution.
d. Neither John Stickels, Applicant's appellate attorney, nor Robert Ford, Applicant's habeas counsel, were informed about or otherwise knew about the evidence.
e. Assistant Tarrant County Criminal District Attorney Chip Wilkinson, who handled the direct appeal and initial state writ for the state, did not know about the Cherrys' opposition to Applicant receiving the death penalty.
f. This Court finds no evidence that is consistent with defense attorney knowledge of this evidence, i.e., no defense notes reflecting knowledge, no discussions of the evidence and no use or effort to use
this evidence, and no objection when the State unequivocally argued the opposite to the jury.
g. Likewise, the Court finds that there is absolutely no written record or memoranda in the State's possession that would support Robert Foran's and Christy Jack's contention that the information was disclosed.
h. This Court finds the totality of the circumstantial evidence to be inconsistent with disclosure to defense counsel, based on the trial record and the records of all post-conviction proceedings.
I. This Court finds Larry Moore, Bill Ray, Tim Moore and Mark Daniel to be credible, experienced attorneys in death penalty cases; and this Court finds it implausible that any and/or all of these attorneys would have been the recipients of this evidence, yet left no record that they did receive it and all decided to do nothing at all with this information.
44. This Court finds Larry Moore and Bill Ray to be credible and their testimony trustworthy.
45. Christy Jack confirmed that she did not formally disclose the evidence to any defense attorney.
46. Robert Foran never testified he ever disclosed the evidence to Larry Moore.
47. Christy Jack testified that she did not make a formal disclosure before jury selection.
48. Robert Foran testified he disclosed the evidence to Bill Ray long before jury selection.
49. Robert Foran's testimony that he ever disclosed the evidence to Bill Ray is not credible based on the following evidence:
a. Robert Foran testified he made disclosure to Bill Ray in January or February, 2007. This testimony is inconsistent with Foran's supervisor, Bob Gill, who testified that Foran discussed the issue of disclosure with him sometime after July 1st or 2nd, 2008. This Court can discern no reason for prosecutors to discuss disclosure of material evidence in July 2008 had disclosure already been made long before, in early 2007. In the alternative, this Court can discern no reason for a prosecutor to seek supervisory affirmation for a disclosure that purportedly occurred more than a year prior.
b. Robert Foran testified that his disclosure was verbal only and that he made no written internal memo that he had disclosed it.
c. A disclosure of this evidence was not included in any written Brady notice.
d. Robert Foran testified he also disclosed the information to either Tim Moore or Mark Daniel who were originally scheduled to go to trial before Applicant. Like Applicant's trial counsel, both Mr. Tim Moore and Mr. Daniel denied they were ever made aware of the evidence.
50. This Court, therefore, finds Robert Foran's testimony not credible regarding the disclosure of material evidence. This Court further finds that his testimony that he disclosed that Judith and Glenn Cherry opposed the death penalty for Mr. Storey to be untrustworthy.
51. This Court finds also that the following sequence of events occurred which lends further support to the
finding that the prosecution did not disclose the evidence:
a. Glenn Cherry approached Cory Session on December 20, 2016, and informed Mr. Session about their opposition to Mr. Storey's then-imminent execution.
b. Mr. Session informed Mike Ware, one of the attorneys for Mr. Storey, and Mr. Ware, in turn, informed Larry Moore.
c. Mr. Moore later informed his co-counsel, Bill Ray.
d. These events further confirm that no disclosure regarding this issue was ever made to Applicant's counsel until after December 20, 2016.
52. This Court finds that the prosecution had a duty to disclose, but did not disclose to any defense attorney that Judith and Glenn Cherry opposed the death penalty for Applicant.
Findings of Fact, Conclusions of Law and Recommendation, 5th Suppl. Clerk's R. 8–15 (record citations omitted). Based on these findings, the trial court concluded that Ford could not have ascertained the factual basis of the current claims on or before the date of Applicant's initial habeas application. On the merits, the trial court concluded that the prosecution introduced false evidence, the prosecution suppressed evidence, and the death penalty in this case was unconstitutionally unreliable. Accordingly, the trial court recommended that we grant habeas corpus relief.
III — Ford's Knowledge, or Lack Thereof, Can Be Inferred
Today, the Court concludes that the article 11.071 § 5 bar applies because there was no proof regarding Ford's diligence in this case, and, thus, Applicant failed to show that Ford could not have ascertained the factual basis for Applicant's claims (that the Cherrys were actually opposed to the death penalty) through the exercise of reasonable diligence at the time of the initial application. Specifically, the Court determines that the trial court's finding—"that Ford did not know that the victim's parents opposed a death sentence for Applicant"—is not supported by the record because Applicant did not present any evidence showing what Ford did or did not know regarding the Cherrys' anti-death penalty views. Based upon this determination, the Court concludes that Applicant failed to meet his burden. I disagree.
We have consistently recognized that proof of a mental state, such as knowledge, "is of such a nature that it must be inferred from the circumstances." In re State ex rel. Weeks , 391 S.W.3d 117, 125 n.36 (Tex. Crim. App. 2013) (quoting Hernandez v. State , 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) ; see also Okonkwo v. State , 398 S.W.3d 689, 701 n.16 (Tex. Crim. App. 2013) (Cochran, J., concurring) ("Of course, this element [knowledge] is usually established by circumstantial evidence."). Thus, the fact that Applicant did not present direct evidence showing what Ford did or did not know regarding the Cherrys' anti-death penalty views should not end the inquiry regarding Ford's knowledge. Much evidence was presented at the hearing regarding Ford's competence and diligence, and from this evidence I believe we can circumstantially infer that Ford did not know that the Cherrys opposed the death penalty.
First, in my opinion it should be taken as a given that if a reasonably competent habeas attorney knew that Jack's argument to the jury indicating that the victim's parents favored the death penalty was untrue, then the attorney would certainly raise that issue. An issue like this for a habeas attorney is like hitting the jackpot on the Texas Lottery, and I cannot imagine how a reasonably competent habeas attorney who knows about the issue would nevertheless choose not to raise it.
Second, the trial court found that Ford "had a strong reputation for his diligence" and was "invariably regarded as an exceptional and diligent attorney." This is supported by the record because there was substantial testimony at the habeas hearing from a number of attorneys and judges praising Ford. From the evidence, we can accept that Ford was a reasonably competent attorney.
Third, it follows that if Ford, a reasonably competent attorney, knew that the Cherrys were opposed to the death penalty, he would have raised the issue. Fourth, if this proposition is true, then, logically, the contrapositive must also be true: if Ford did not raise the issue, then Ford did not know the Cherrys were opposed to the death penalty. Fifth, Ford did not raise the issue when he prepared and filed Applicant's previous application for habeas relief. Accordingly, we can conclude circumstantially from the evidence that Ford, a reasonably competent attorney, did not raise the issue, that Ford did not know that the Cherrys were opposed to the death penalty.
III — Reasonable Diligence
Furthermore, even if Ford literally could have learned of the Cherrys' opposition to the death penalty if he had asked them, I disagree that such information was ascertainable through the exercise of reasonable diligence. For the following reasons, I believe requiring Ford to have asked the Cherrys about this information would have required actions on Ford's part that would have gone beyond what a reasonably competent habeas attorney would have done under the circumstances.
As stated above, a factual basis is unavailable for the purposes of article 11.071 § 5(a)(1)'s exception to the procedural bar if it was not ascertainable through the exercise of reasonable diligence on or before the date of the previous application. TEX. CODE CRIM. PROC . Ann. art. 11.071 § 5(e).
I recognize that Lemke explained that "reasonable diligence" suggested that "at least some kind of inquiry" was made. Lemke , 13 S.W.3d at 794. However, Lemke 's prescription of "at least some kind of inquiry" is overly stringent, especially in cases such as this one where habeas counsel has died and it is impossible to obtain direct evidence of what inquiry, if any, was made. The Legislature, when it drafted article 11.071 § 5(e), used the word "reasonable." When construing statutes, we generally presume that the Legislature intended that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ; Sims v. State , 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). Giving effect to the word "reasonable," what we said in Lemke —that "reasonable diligence" suggests that "at least some kind of inquiry was made"—should be required only when an inquiry is "reasonable" under the circumstances.
Under the circumstances of this case, some kind of inquiry into the Cherrys' feelings about the death penalty would have been unreasonable. "Reasonable" diligence would not go prying into the private feelings of a murder victim's family without a very good reason for doing so. The trial court found that "in most cases family members of murder victims do not wish to speak to lawyers representing the person found guilty of killing their loved one." Findings, 5th Suppl. Clerk's R. at 7. The trial court's finding is supported by the record. At the habeas hearing, Mark Daniel, who represented co-defendant Mark Porter, testified:
Additionally, I submit that Lemke 's requirement of "some kind of inquiry" was satisfied because Foran told Ray and Moore that the Cherrys preferred not to be contacted. Obviously, if Ray and Moore asked Foran if they could contact the Cherrys, and Foran told them the Cherrys preferred not to be contacted, some kind of inquiry has been made. If Foran told Ray and Moore this information before they could ask, Foran's caution that the Cherrys preferred not to be contacted negated the need for Ray and Moore to ask in the first place.
Furthermore, Jack's closing argument, wherein she stated that "all of Jonas's family and everyone who loved him believe the death penalty is appropriate," told Ray and Moore the answer to the question (although a false one, to be sure).
From the standpoint of habeas counsel Ford, the inquiry—the question—was either already asked and answered or just simply already answered.
Q. And in your -- in the normal course of your representation in death penalty cases, do you usually think it's a good idea to reach out and -- to the survivors of the murder victim and have a conversation with them about their feelings and thoughts?
A. If you have not had a door slammed in your face recently and hope that one is, it's just -- it's such a -- such a strange dynamic. You approach somebody with a phone call or knock on a door or reach out to them with a email message, I'd like to talk to you about this, I've never done that, I guess for the fear that I suspect it will prove futile.
And then to say, hi, how do you feel about the death penalty, especially in this case? And I'm not saying this because the issue in this matter before Judge Young right now, but I expect that to be something the prosecutors might let me know. That's what I would expect.
Q. In other words, it's reasonable to assume that in most cases the survivors of the murder victim are not eager to speak with the attorney representing their loved one's killer?
A. That would be accurate.
Rep. R. vol. 3, 107. Another attorney, Fred Cummings, explained the issue from the perspective of trial counsel:
Q. Have you ever, ever in any of the death penalty cases you've ever handled as a defense lawyer contacted the victim's family?
A. No, sir.
Q. Is there a reason for that?
A. Yes, sir. It's my opinion and belief based upon practicing in this county for 31 years that if -- my primary responsibility in defending someone is to, in a death case, is to save that individual's life. Reaching out to the deceased's family would be extremely dangerous in that regard, in my opinion.
Q. Can you explain that?
A. Yes. The -- so much about death penalty representation is, or litigation, it's discretionary on the part of the DA's office. They get to decide whether or not they're going to seek death or not, they get to decide whether or not they're going to waive. DA's tend to be possessive about the victim and the victim's family. Reaching out to a parent of a deceased might very well alienate the very people that I'm trying to convince to waive death.
I have defended three death cases, but I've had 27 other capital murder cases that have resulted in other outcomes short of a death sentence, and that's the goal is to try to avoid doing that.
Plus, you don't know whether -- what type of reaction you're going to get reaching out to someone who is grieving. So it's just a dangerous practice and it's not a common practice. I know every capital litigator in this county, and I don't believe that it is a good practice and I don't think it's commonly done here.
Rep. R. vol. 4, 38–39. The State, in its objections to the trial courts findings and conclusions, did not contest this point.
Additionally, the trial court made the finding that "it is highly unusual ... for the parents of the murder victim to oppose the death penalty for their child's murderer." Findings, 5th Suppl. Clerk's R. at 7. This is also supported by the record. Jack testified at the habeas hearing that she thought it was "the only time that that has happened" in her experience. Rep. R. vol. 2, 53. Moore testified that the situation was "extraordinary." Rep. R. vol. 3, 13. Ashlea Deener, an Assistant Tarrant County District Attorney who was an intern working with Jack at the time of Applicant's trial, also testified that the Cherrys' opposition was extraordinary and unusual. Id. at 84. Ray testified that it was so unusual that, if he had been informed about it, he would have remembered it. Id. at 121.
Ford, when he prepared and filed Applicant's first application for writ of habeas corpus, was faced with these realities:
• Families of murder victims generally do not wish to speak to lawyers representing the person found guilty of killing their loved one;
• It is highly unusual for the parents of murder victims to oppose the death penalty for their child's murderer;
• Jack's closing argument matched these propositions, and her statement, while untruthful, was not an obvious lie at the time;
• Ray and Moore, at that point, had no reason to believe that Jack lied;
• Foran told Ray and Moore that the Cherrys preferred not to be contacted;
• Ray and Moore filed a motion for Brady material and did not get any information related to the Cherrys' opposition to the death penalty; and
• The trial court ordered that all exculpatory and mitigating evidence be disclosed regardless of admissibility, and Ray and Moore did not get any information pursuant to the court order related to the Cherrys' opposition to the death penalty.
Based on the circumstances at the time Ford prepared and filed the first application, there was no reason to suspect that Jack was untruthful. Instead, it would have been reasonable for Ford to presume that Jack told the truth and that there was no need to pursue the Cherrys to find out otherwise. After all, any competent death penalty trial attorney certainly would have objected to Jack's untruthful statement had he or she known the statement was untruthful, and neither of the trial attorneys objected.
The Court today, however, finds that because Glenn Cherry would have told anyone who asked his position on the death penalty, and because there is no record evidence as to whether Ford asked or knew the Cherrys' position, there is no showing that Ford could not have ascertained the Cherrys' position through the exercise of reasonable diligence. True, had Ford questioned the Cherrys, he likely would have learned that the Cherrys were indeed opposed to the death penalty for Applicant, the prosecution failed to disclose this information, and Jack was untruthful to the jury during her closing argument. However, this judges Ford's diligence based on hindsight. Reasonable diligence should be measured from the standpoint of an applicant or counsel at the time the application was filed. See TEX. CODE CRIM. PROC . Ann. art. 11.071 § 5(e) ("a factual basis of a claim is unavailable on or before [the date the applicant filed the previous application] if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date ") (emphasis added). At the time Ford filed the previous application, a reasonably diligent habeas attorney would not have sought out the Cherrys and would not have probed their feelings about the case and about the death penalty for Applicant. Habeas counsel should not be required to assume that every unsubstantiated claim a prosecutor makes in closing argument is likely to be untrue. On the contrary, habeas counsel should assume that prosecutors do not generally lie to juries in closing argument.
Nevertheless, the Court concludes that reasonable diligence would have been met only if Ford had questioned whether Jack told the truth despite no indication at the time that Jack was untruthful, and sought out and questioned the Cherrys about their true feelings despite no indication that he should have. Under the circumstances, these actions would have been unreasonable. Requiring an applicant or his counsel to go on fishing expeditions and blindly querying capital murder victims' families (themselves victims in many ways), without a good reason for doing so, is not reasonable. The unreasonableness is dramatically highlighted when we take the next logical step: questioning victims of other highly traumatic and personal crimes, such as rape or child abuse, just in case the prosecution may have lied about something, even though there is no indication at the time that there was any lie.
If I am correct, the Court's decision today threatens to rewrite "reasonable diligence" into "all diligence" by requiring attorney action that would likely be unwise and go beyond what a reasonably competent habeas attorney should do under the circumstances. The Legislature chose to use the word "reasonable" when it drafted article 11.071 § 5(e), and we should strive to give effect to the word "reasonable." Hardy , 963 S.W.2d at 520.
Aside from the factors discussed above indicating the unreasonableness of questioning the Cherrys—namely, the fact that Ford had no reason to believe the Cherrys actually opposed the death penalty and the fact that Ford had no reason to believe Jack was untruthful about the Cherrys' views—there are additional considerations suggesting that questioning victims and their families, without any particular reason to, is generally unreasonable.
One important factor indicating that questioning the family of a murder victim, without a good reason for doing so, is unreasonable is the increasing emphasis on victims' rights in the criminal justice system since the 1980s. In response to the Victims' Rights Movement, in 1985 the Legislature added Chapter 56, "Rights of Crime Victims," to the Code of Criminal Procedure. Act of May 20, 1985, 69th Leg., R.S., ch. 588, § 1, 1985 Tex. Gen. Laws 2217, 2217 (codified at TEX. CODE CRIM. PROC . Ann. ch. 56). Article 56.02, entitled "Crime Victim's Rights," grants rights not only to victims, but also to a "close relative of a deceased victim." TEX. CODE CRIM. PROC . Ann. art. 56.02(a). "Close relative of a deceased victim" includes a person who is a parent of the deceased victim. Id. art. 56.01(1).
Much has been written of the Victims' Rights Movement. See generally , Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims Into the Federal Rules of Criminal Procedure , 2007 Utah L. Rev . 861, 865–69 (discussing the Victims' Rights Movement); Alice Koskela, Casenote & Comment, Victim's Rights Amendments: An Irresistible Political Force Transforms the Criminal Justice System , 34 Idaho L. Rev . 157, 163–67 (same).
Notably, in 2013, the Legislature amended article 56.02 by adding what is now subsection (a)(14), dealing with defense-initiated victim outreach in capital cases. That provision states:
Act of May 22, 2013, 83rd Leg., R.S., § 1, 2013 Tex. Gen. Laws 1736 (amending Tex. Code Crim. Proc . 56.02(a) by adding what was originally designated (a) (16)); Act of May 29, 2015, 84th Leg., R.S., ch. 1236, § 4.002, 2015 Tex. Gen. Laws 4096, 4099 (redesignating (a)(16) as (a)(14)).
"Defense Initiated Victim Outreach is a program in which a victim outreach specialist – if requested by the defense attorney in a criminal case, usually a capital felony – contacts the victim of a crime to ascertain questions and needs that the victim may have that the defense may be able to address." House Comm. on Criminal Jurisprudence, Bill Analysis at 1, Tex. H.B. 899, 83rd Leg., R.S.
(a) A victim, guardian of a victim, or close relative of a deceased victim is entitled to the following rights within the criminal justice system:
(14) if the offense is a capital felony, the right to:
(A) receive by mail from the court a written explanation of defense-initiated victim outreach if the court has authorized expenditures for a defense-initiated victim outreach specialist;
(B) not be contacted by the victim outreach specialist unless the victim, guardian, or relative has consented to the contact by providing a written notice to the court; and
(C) designate a victim service provider to receive all communications from a victim outreach specialist acting on behalf of any person.
TEX. CODE CRIM. PROC . Ann. art. 56.02(a)(14) (emphasis added). Although this provision was not in existence at the time of Applicant's initial writ, the supporters' arguments in favor of this provision, as noted in the Bill Analysis, are telling:
HB 899 is needed to protect the rights of crime victims. The bill would assert the rights of victims to refuse contact from a victim outreach specialist, who may be causing stress or trauma by contacting the victim. Since Defense Initiated Victim Outreach began in Texas, crime victims and their families have been harassed by victim outreach specialists who persist in attempts to contact them. Victims have had to make complaints to victims' assistance services and prosecutors for help in stopping the stream of letters and attempts at contact from specialists. Crime victims deserve to move on with their lives without being re-victimized by the defense team of a person who has already hurt them. HB 899 would allow them to do so.
The bill would alleviate the impact of the Defense Initiated Victim Outreach program on victims and the appropriate punishment of heinous crimes. Victim outreach specialists can emotionally manipulate victims and influence them into advising the prosecutor not to seek the death penalty. By providing minor concessions and attempting to appeal to the victim's sympathy, the program tends to manipulate victims into asking the prosecutor to seek a lesser punishment. The bill would mitigate the ability of defense teams and third parties to insinuate
themselves into the victim's life in this way.
The bill would provide an option to victims who did not wish to be contacted by a specialist but would not affect the rights of victims who felt they could benefit from the program. Not every victim heals from crime in the same way. Different victims have different reactions to crime and to the defendants who harmed them. Many do not wish to have contact with a victim outreach specialist, even one who has suffered from a similar crime. By strengthening victims' rights to decline contact from a specialist, the bill would empower all victims, not just those who would seek Defense Initiated Victim Outreach.
The bill would protect victims from being forced to communicate directly with a person who represented the interests of the defense team. It is the policy of the Defense Initiated Victim Outreach program to require that a refusal come from the victim or family member of the victim themselves, rather than allowing them to pass that message on through a victim's advocate or prosecutor. This can result in stress and trauma for victims who want to allow an agent to refuse on their behalf and do not want to have contact with the defense team or anyone hired by them. The bill would ensure that victims had the ability to designate another person to refuse contact on their behalf.
House Comm. on Criminal Jurisprudence, Bill Analysis at 2–3, Tex. H.B. 899, 83rd Leg., R.S. It is clear that a defendant or his lawyers contacting a victim can be harmful and is disfavored, and such unsolicited contact is likely to be unreasonable if there is no apparent reason for the contact.
Additionally, outside of Chapter 56, the Legislature has enacted a number of provisions which not only discourage contacting a victim or a member of the victim's family, but actually punish such contact. If a defendant is sentenced to a term of confinement or imprisonment, a convicting court may, as part of the sentence, enter an order prohibiting the convicted defendant from contacting a victim or a member of the victim's family. TEX. CODE CRIM. PROC . Ann. art. 42.24. Violations of such an order can lead to the loss of accrued good conduct time. Id. art. 42.032 § 5(3) ; TEX. GOV'T CODE Ann. § 498.0042(b). Contact can also negatively impact release on parole or to mandatory supervision. TEX. GOV'T CODE Ann. § 508.1531. These particular provisions, it should be noted, were also not in effect at the time Ford prepared and filed the initial application. They do, however, further indicate the Legislature's, and therefore society's, interest in shielding victims and their families from unwanted and unwarranted contact by defendants and their attorneys.
See Act of May 16, 2011, 82nd Leg., R.S., ch. 491, §§ 1–4, 2011 Tex. Gen. Laws 1246 (adding Tex. Code Crim. Proc . art. 42.24 ; amending Tex. Code Crim. Proc . art. 42.032 § 5 ; amending Tex. Gov't Code § 498.0042(b) ; and adding Tex. Gov't Code § 508.1531 ).
The emphasis on victims' rights is also ingrained into our state's constitution. Article 1, § 30 (a) of the Texas Constitution, adopted November 7, 1989, provides:
(a) A crime victim has the following rights:
(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and
(2) the right to be reasonably protected from the accused throughout the criminal justice process.
TEX. CONST . art. 1, § 30 (a).
Thus, it is apparent that significant strides have been made to place more emphasis on the victims of crime, including the surviving family members of murder victims, to treat them with fairness and with respect for their dignity and privacy, and to reasonably protect them from the accused. Requiring uninvited questioning by the lawyers of the person who killed their loved ones, especially when the lawyers had no apparent reason to do so, just to meet a requirement of "reasonable diligence," flies in the face of these legislative and constitutional efforts and is another factor showing why it is actually unreasonable.
Yet, the Court today faults Ford for failing to intrude upon the Cherrys' peace and for failing to question them about their feelings regarding Applicant's case. True, in hindsight had Ford actually done those things, the Cherrys likely would not have objected. But at the time Ford filed Applicant's initial habeas application, there was no indication that the Cherrys would have been different from any other family or that they should have been inquired upon. At that point, Ford would not have known Jack was untruthful about the Cherrys' position on the death penalty or that the matter was even an issue. To learn the truth, he would have had to probe their thoughts, concerns, and feelings over a broad range of topics until he eventually struck gold with the specific issue of the appropriateness of the death penalty. Such an interrogation of a victim's family is hardly reasonable. We should not create a per se rule that habeas counsel should question the feelings of every State's witness, every victim, and every victim's family, just to ferret out the possibility that the trial prosecutors lied about those feelings.
Finally, we should not foster a culture in which habeas attorneys must presume prosecutors misrepresented the truth or even lied. In Lemke , in which the applicant's claim was that his attorney lied about whether a plea deal was offered by the prosecutor, we found that reasonable diligence does not require a defendant to query the prosecutor as to whether his lawyer was telling the truth. Lemke , 13 S.W.3d at 794. Likewise, reasonable diligence should not require an applicant, or his counsel, to query a victim's family as to whether the prosecutor was telling the truth.
Requiring habeas counsel to question the statements of the prosecutor will also add needless and counterproductive grit into our system of criminal justice. In this case, Jack was untruthful, but Ford had no reason to believe that she was untruthful at the time he prepared and filed the first application. Should Ford have been expected to question everything Jack said, even those statements that are generally true? While our system is an adversarial one, it works in most cases because the parties trust that the other side is playing by the same rules. We should not inject an element of distrust into the system just to preserve future claims for habeas relief on the chance that some unknown fact is later revealed after an initial application for habeas relief.
Absent some additional circumstance indicating that the Cherrys should have been contacted, the fact that the Cherrys were actually opposed to the death penalty and the consequent fact that Jack was untruthful about the Cherrys' true feelings were not ascertainable through the exercise of reasonable diligence. The factual basis for Applicant's current claims was not available at the time Ford filed Applicant's previous application for habeas relief. The § 5(a) procedural bar should not apply, and Applicant's claims should be addressed rather than dismissed. IV — Conclusion
In conclusion, we are not procedurally barred by article 11.071 § 5(a) from considering the merits of Applicant's claims for habeas corpus relief. Reasonable diligence should not require habeas counsel to pry and probe a murder victim's family to determine whether the prosecutor was untruthful during closing argument where there was no reason at the time to question the truthfulness of the prosecutor's statement in closing argument, even though it may have been improper. I disagree with the Court's decision to dismiss Applicant's claims as an abuse of the writ without reviewing the merits, and I respectfully dissent.