Ex Parte Fierro

OVERSTREET, Judge,

dissenting.

I agree with the majority that the trial court’s findings that the State used perjured testimony regarding the nature and extent of cooperation between the El Paso police and the Juarez police in this case are adequately supported by the record. Ex parte Fierro, 934 S.W.2d 370, 371 (Tex.Cr.App.1996). Thus the issue is the materiality/harm, or lack of harm, of the perjury which resulted in the admission into evidence of the coerced involuntary confession. The majority incredibly concludes that the perjury which resulted in the erroneous admission of applicant’s detailed, explicit, coerced, involuntary confession was immaterial, i.e. harmless. I can not agree with such an implausible conclusion. I believe that under any standard, the admission of such confession was not immaterial, i.e. it was harmful, i.e. it was not harmless. To make an analysis of the materiality/harm, or according to the majority the lack of harm, of this confession, one must look at and read this confession.

The coerced confession describes in great detail how applicant, in the company of Ger-aldo Olague, had hailed a taxicab, sat in the back, with Olague sitting in the front passenger’s side, and used a chrome-plated .357-magnum to shoot the taxicab driver in the head. It explicitly states that applicant shot the taxicab driver, then got into the driver’s side and drove to a small park; whereafter, Olague drug the body out face up and applicant shot him again in the chest. The coerced confession also relates that before they left the body, applicant took a silver watch off the wrist. It describes applicant then driving with Olague and throwing the watch into a trash can in an alley; then driving into Mexico, and leaving the car on the street close to where applicant lived, leaving the car locked with the keys inside. The confession continues by describing applicant, about a week-and-a-half later, traveling with Olague and the gun to Chihuahua City, Mexico, and then boarding a train to Tor-reón, and selling it to a rancher in Torreon for 2500 pesos; whereafter, applicant and Olague separated in Parral, Chihuahua, with applicant returning to Juarez.

It is totally inconceivable that the jury could have not been convinced of guilt by this detailed, coerced, involuntary, erroneously admitted confession. The majority minimizes its significance by pointing to the testimony of Olague. The majority opines that in light of Olague’s eyewitness testimony at trial, which did not inculpate himself, and the lack of any real reason to doubt his credibility, it is more probable than not that the outcome of applicant’s trial would have been the same even in the absence of the coerced involuntary erroneously admitted confession. Ex parte Fierro, 934 S.W.2d at 375 , slip op. at 377. Regardless of whether Olague’s testimony had to be corroborated, applicant’s involuntary coerced erroneously admitted confession did indeed corroborate it quite well. And it is reasonable to believe that Olague’s admitted presence at the scene of the cab ride-turned-capital murder provided a motive to try to deflect the culpability to someone else, namely applicant. Applicant’s involuntary coerced erroneously admitted confession certainly does confirm Olague’s deflections.

The prosecutor’s opening jury arguments at guilt/innocence discussed applicant's confession, and stated that it was made with no pressure or coercion by the detective or anyone else from the El Paso Police Department. The prosecutor also said that in prov- *387 tag that applicant committed this crime, it relied on two main pieces of evidence: “the Defendant’s confession, and the sworn testimony of the eye-witness to this case, Jerry Olague.” He also argued about Texas law allowing for the admission of a confession “if it appears that [it] is freely made, without compulsion or persuasion, and wholy [sic] voluntary,” and that the State had put on testimony from the detective and the stenographer who had taken the confession. The prosecutor insisted that there was no coercion and that “beyond all doubt whatsoever” the confession was voluntary. He added that the only way that the jury could find applicant “not guilty” would be to disbelieve everything that Olague had said and to throw out the confession; but that the jury could not in good conscious let “a confessed murderer — someone who confessed to a coldblooded murder as this is,” go free.

During closing jury argument at guilt/innocence, the other prosecutor also discussed the confession. He thought that the jury had “to consider the confession first, and then consider whether or not Mr. Olague is an accomplice.” He also read from the confession, and pointed out that if the jury wanted these exhibits it had to ask for them — he told them that after electing a foreman, “[P]lease ask for the exhibits. I think it’s important that you are able to read this. Get the [E]nglish and [S]panish version.” However, he also pointed out that if the jury disregarded the confession, there was still Olague’s eyewitness testimony and nothing to indicate that he was an accomplice, thus no need for corroboration. The prosecutor then suggested that if the jury did not believe Olague’s testimony, it was still left with applicant’s confession — “Well, if you don’t believe Olague, you’ve got to convict the Defendant on his own testimony.” He then discussed indicia of voluntariness, including the stenographer’s testimony and the confession’s indication that Olague dragged the body. He pointed out that applicant was “admitting to capital murder; ... admitting to blowing the man’s brain’s out; ... admitting to stealing the watch, but not to dragging the body.” Thus applicant’s involuntary coerced inadmissible confession was a significant topic of discussion by the prosecution at guilVinnoeence jury arguments.

Also, the jury heard and saw the evidence in this case, including applicant’s involuntary coerced erroneously admitted confession. The record reflects that the jury even specifically requested that applicant’s confession be provided during deliberations. Copies of the confession (in English and Spanish) were so provided. The jury also requested a copy of Olague’s written statement; but because such was not introduced into evidence, it was not provided to the jury. The record reflects that on February 14,1980 the jury requested the confession and statement at 1:16 p.m., was provided applicant’s confession at 1:19 p.m., re-requested Olague’s statement at 1:58 p.m., was informed that it could not receive such at 2:33 p.m., and advised via a note that it had reached a verdict at 2:53.

Interestingly, the lead prosecutor, who was the First Felony Assistant District Attorney, indicated via affidavit that had he known about the cooperation between the El Paso police and the Juarez police he would have joined in a motion to suppress the confession, and that his experience as a prosecutor indicated that the trial judge would have granted the motion as a matter of course. His affidavit also stated that “[h]ad the confession been suppressed, [he] would have moved to dismiss the case unless [he] could have corroborated Olague’s testimony.” That prosecutor also testified at the hearing on this habeas corpus application and seemed disconcerted about his closing jury arguments from the trial about the voluntariness of the confession and the El Paso detective not knowing about the Juarez police having applicant’s family in custody — knowing what he now knew, he said that he would not have made some of those jury arguments. Thus the lead prosecutor who tried the case obviously does not think that applicant’s involuntary coerced erroneously admitted confession was not “material” in securing the conviction and death sentence.

Any standard of harm, even the majority’s own standard, i.e. that applicant has the burden of proving by a preponderance of the evidence that the error contributed to his conviction or punishment, is surely met; eer- *388 tainly applicant’s detailed, explicit, involuntary, coerced confession itself proves by a preponderance of the evidence that it contributed to his conviction — what better evidence of guilt than the words of the defendant himself (though unbeknownst to the jury such words were coerced by the unrevealed “cooperation” between the El Paso police and the Juarez police) admitting such a robbery-shooting-killing?

One can have eyewitness testimonial evidence, circumstantial evidence, scientific evidence, and even videotaped evidence; but a confession explicitly admitting guilt signed by the defendant is the most powerful piece of evidence that can ever be introduced against him and will surely serve as the key that will lock the jail-house door and provide the juice to power the electric chair; and in these more civilized times, the juice for the needle.

Because the majority finds that the perju-rious testimony which paved the way for the erroneous admission of applicant’s involuntary coerced confession was immaterial, i.e. not harmful, I strongly dissent with principle.