Ex Parte Fierro

MALONEY, Judge,

dissénting.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex. Code Crim.Proc.Ann. art. 11.07. Applicant was convicted of capital murder and sentenced to death. We affirmed his conviction on direct appeal to this Court. Fierro v. State, 706 S.W.2d 310 (Tex.Crim.App.1986).

Applicant contends the State knowingly presented perjured testimony during a pretrial hearing on his motion to suppress his confession. We abated applicant’s writ application and ordered the trial court to conduct a hearing and enter findings of fact and conclusions of law addressing applicant's allegations. 1 Ex parte Fierro, No. 71,899 slip op. (Tex.Crim.App. Oct. 12, 1994) (unpublished).

The trial court entered findings of fact as follows:

1) That at the time of eliciting the Defendant’s confession, Det. Medrano (now deceased) did have information that the Defendant’s mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to the said Det. Medrano’s testimony at the pre-trial suppression hearing.

2) That the District Attorney’s Office did not withhold this Supplemental Offense Report from the attorneys for the Defendant.

3) That Det. Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979. There was no evidence produced to show that such practices are still taking place.

The trial court concluded, as a matter of law:

1) That there is a strong likelihood that the Defendant’s confession was coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano.

2) It is not the conclusion of this Court that the Defendant should be released from these charges, but that he should be retried by another jury who will then render a verdict based on all the evidence, both old and new, that has been developed at these hearings.

The majority finds the trial court’s factual findings are supported by the record, but denies relief, concluding the error in admitting the perjured testimony was harmless. Majority op. at 371. Specifically, the majority holds that applicant has not demonstrated, by a preponderance of the evidence, that the use of perjured testimony was harmful. Ma *389 jority op. at- 375. For the following reasons, I respectfully dissent.

I. The Evidence

The evidence presented at the pretrial suppression hearing indicated that on July 31, 1979, five months after the shooting death of Nicolas Castanon, Gerardo Olague contacted the El Paso police and implicated applicant in the crime. Detective A1 Medrano of the El Paso police thereupon contacted the Juarez police for assistance since applicant lived with his mother and stepfather in Juarez, Mexico. Medrano and his partner, James Holland, went with Olague to Juarez so that Olague could point out applicant’s house to Commandante Jorge Palacios of the Juarez police.

Medrano testified at the hearing that Pa-lacios phoned him early the next morning and informed him that the Juarez police had raided applicant’s family’s home and had questioned family members. Medrano and Holland went to Juarez to meet with Palacios for breakfast. According to Medrano, Palac-ios told them at breakfast that applicant’s family had revealed that applicant was incarcerated in the El Paso County Jail on an unrelated offense. Medrano and Holland returned to El Paso and retrieved applicant from the county jail for questioning in connection with Castenon’s murder. During this interrogation, Medrano advised applicant that the Juarez police had been to his family’s home and had questioned family members. Medrano testified, however, that he did not know at that time whether the Juarez police had taken applicant’s mother and stepfather into custody, and therefore did not nor could not have related such information to applicant. In response to applicant’s questions during the interrogation about whether his family was in custody, Medrano testified that he made a telephone call to Palacios and allowed applicant to speak with him. Medra-no stated he did not know what was said during the call. Immediately after the phone call applicant confessed to capital murder.

Applicant's mother and stepfather also testified at the suppression hearing. According to their testimony, Palacios and eight other police officers invaded their home at 3:00 a.m. on the morning of August 1, 1979. The officers seized two letters which applicant and his brother had written to their mother. They were arrested and taken into custody, although they were not charged with an offense. They testified that while in custody at the Juarez jail, applicant’s mother was physically abused and threats were repeatedly made to attach an electrical generator, known as a “ehacharra,” to applicant’s stepfather’s genitals. They were released at 7:00 p.m. that evening, after applicant had signed a confession.

Applicant testified at the suppression hearing that Medrano coerced him to confess by informing him that his mother was in custody in Juarez and would not be released until he confessed. Applicant also testified that Me-drano showed him two letters that he and his brother had written to his mother in an effort to convince him that his mother was in custody.

The Supplemental Offense Report was admitted into evidence at the writ hearing. The Report was signed by Medrano and contains two paragraphs. The first paragraph states that on July 31, 1979, Medrano and Holland took a statement from Olague and went with Olague to meet with Palacios in Juarez and point out applicant’s home. The second paragraph states that:

This date at 5:00 a.m. in the morning, DET. A. MEDRANO was called by phone by Commandante JORGE PALACIOS who stated that they had raided the house [applicant’s family’s house] pointed out by OLAGUE this morning, August 1, 1979, and had in custody the mother of the suspect, CESAR FIERRO, her name being SOCORRO REYNA, and her common law husband, ALFREDO MURGA.

(emphasis added).

II. Perjured Testimony

Due process is violated when the prosecution knowingly presents materially false testimony to obtain a conviction. See Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972); Ex parte Castellano, 863 S.W.2d 476, 485 (Tex.Crim.App.1993). The State argues that it did not “use” the perjured testimony because it was *390 elicited on cross-examination by applicant rather than direct examination by the prosecution. The State relies on this Court’s opinion in Luck v. State, 588 S.W.2d 371 (Tex.Crim.App.1979), in support of its position. In Luck , we held that the defendant failed to show the State used perjured testimony in obtaining his conviction because the allegedly perjured testimony was elicited solely during the defendant’s cross-examination of the witness. Id. at 373 . This Court cited no authority in support of its finding and we can find no other Texas case employing such a rule. 2 Nevertheless, Luck is distinguishable from this case because the false testimony at issue here was developed during cross-examination of a police officer. We have interpreted the rule regarding use of perjured testimony to prohibit prosecutors from presenting testimony which any member of the “prosecution team,” including both investigative and prosecutorial personnel, knows to be false. Ex parte Adams, 768 S.W.2d 281, 292 (Tex.Crim.App.1989); see also United States v. Antone, 603 F.2d 566 (5th Cir.1979); Ex parte Castellano, 863 S.W.2d at 485 . Knowledge has been imputed not only from one prosecutor to another, but also from the police to prosecutors. See Giglio, 405 U.S. at 150 , 92 S.Ct. at 763 ; Williams v. Griswald, 743 F.2d 1533 (11th Cir.1984).

The record supports the trial court’s finding that Medrano knew applicant’s parents were in custody at the time of applicant’s confession. 3 Accordingly, the State’s argument must fail in the instant case because the record supports the trial court’s findings that Medrano, a member of the prosecution team, not only knew about the false testimony, but presented the false testimony himself.

The record demonstrates that the perjured testimony was material. See United States v. Agurs, 427 U.S. 97, 104 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 (1976) (implicit in materiality is concern that outcome of trial was affected). The prosecutor stated that it was his experience that, without Medrano’s perjured testimony, the trial court would have *391 granted applicant’s motion to suppress his confession as a matter of course. The testimony of applicant, his mother, and stepfather, discussed above, support applicant’s claim that his confession was coerced and should have been suppressed. The Supplemental Offense Report supports applicant’s claim. In addition, lead prosecutor Gary Weiser stated in an affidavit admitted into evidence at the writ hearing that after seeing the Supplemental Offense Report, he now believes Medrano and Palacios colluded to coerce applicant’s confession:

Having learned that Medrano in fact knew about the arrest and having reviewed the testimony presented at the suppression hearing and at trial, I now believe the information about the family’s arrest is highly relevant. The record indicates that Detective Medrano put Fierro on the telephone with Juarez Police Commandante Palacios just before Fierro confessed. Based on the supplementary offense report dated July 31,1979, the testimony presented at the suppression hearing and at trial, and the reputations of Medrano and the Juarez police, I believe that Medrano and Palacios colluded to coerce Fierro’s confession.

Weiser also averred that:

Had I known at the time of Fierro’s suppression hearing what I have since learned about the family’s arrest, I would have joined in a motion to suppress the confession. Had the confession been suppressed, I would have moved to dismiss the case unless I could have corroborated Olague’s testimony. My experience as a prosecutor indicates that the judge would have granted the motion as a matter of course, (emphasis added)

Applicant’s connection to the crime was based primarily on two pieces of evidence: his confession and the testimony of Gerardo Olague. Applicant’s confession alleges that Olague was an accomplice to the crime. Texas Code of Criminal Procedure article 38.14 provides, in relevant part:

[A] conviction [may] not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Medrano’s perjured testimony ensured admission of applicant’s confession at trial. Without the confession, it is probable that Olague’s testimony would not have been sufficiently corroborated under article 38.14.

Even assuming that Olague was not an accomplice and that his testimony need not be corroborated, I am not convinced his testimony alone would support applicant’s conviction. Olague was not the most credible of witnesses. He did not come forward with information about the crime until five months after the crime was committed. His testimony at trial contained several inconsistencies including his claim that he had known applicant for only a couple of weeks before the murder, and his later testimony that applicant had been telling him to burglarize cars for seven months prior to that event. Olague also testified about certain details of the crime, such as applicant stealing the deceased’s watch and wallet, which he did not mention in his statement.

Medrano’s perjured testimony was instrumental in obtaining applicant’s conviction. Therefore, the record demonstrates not only that the State knowingly presented perjured testimony, but also that the testimony was material. I would hold that the State violated applicant’s due process rights when it knowingly presented materially false testimony.

Harm

Having held the presentation of perjured testimony constituted a violation of applicant’s due process rights, I next turn to the question of harm. The majority states that applicant has the burden to prove harm by a preponderance of the evidence that the error contributed to his conviction. Majority op. at 375. Assuming arguendo the preponderance standard is appropriate in this context, I would conclude applicant met his burden. At the very least, the lead prosecutor’s testimony expressing his lack of confidence in this ease without the confession demonstrates harm:

*392 Had the confession been suppressed, I would have moved to dismiss the ease unless I could have corroborated Olague’s testimony.

The only other evidence of applicant’s guilt was Olague’s testimony addressed, supra. Had the prosecutor known of the perjury, by his own admission, there would have been a good chance applicant’s case would have been dismissed. This demonstrates that the prosecutor considered the confession critical to his proof. Accordingly, there can be little doubt that the confession contributed to applicant’s conviction. In view of the foregoing, I would find the knowing use of perjured testimony contributed to applicant’s conviction, even under the standard urged by the majority.

The majority cites Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993), to support its claim that the error here is subject to a harmless error analysis. Majority op. at 372. However, even in Brecht the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury’s verdict. Id. 507 U.S. at 637 n.9, 113 S.Ct. at 1722 n. 9, 123 L.Ed.2d at 373 n.9. In this regard, the Supreme Court stated that certain trial error of

a deliberate and especially egregious ... type ... might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not....

influence the jury’s verdict. Id. (emphasis added). I believe the knowing use of perjured testimony can be said to so “infect the integrity of the proceeding as to warrant the grant of habeas relief,.... ”

In conclusion, the State’s knowing use of perjured testimony resulted in a violation of applicant’s due process rights. Applying the standard used by the majority, I would find by a preponderance of the evidence the error contributed to applicant’s conviction. The trial court’s findings and conclusions are supported by the record and the law. 4 Accordingly I would grant relief. Because the majority concludes applicant failed to prove the knowing use of perjured testimony was harmful, and therefore denies relief, I respectfully dissent.

. The case was filed and set on the following two allegations:

(1) The State knowingly presented perjured testimony regarding a crucial point, Medrano’s knowledge of the family's arrest, and withheld this information from the defense, in violation of the Fourteenth Amendment to the United States Constitution.

(2) The State knowingly presented perjured testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, and as a general policy.

I would grant relief based upon the first ground and therefore would not need to address the second ground.

. Two Texas cases rejecting claims that a conviction was obtained through false testimony do make mention of the fact the allegedly perjured testimony was elicited on cross-examination. See Willis v. State, 785 S.W.2d 378, 383 (Tex.Crim.App.1989); Wiltz v. State, 827 S.W.2d 372, 375 (Tex.App. — Houston [1st Dist.] 1992). Those cases, however, neither cite Luck v. State nor stand for the broad rule adopted in that case. Rather, the two cases resolve the issue on other grounds. Furthermore, in Luck , this Court never addressed whether the testimony was in fact perjured. Luck, 588 S.W.2d at 373 . In the instant case we have evidence which supports the trial court’s finding that the witness presented false testimony.

It is important to note that other courts have addressed this same argument and found it to be without merit. See, e.g., United States v. Bontkowski, 865 F.2d 129, 133 (7th Cir.1989) (stating government must correct false testimony whether testimony is elicited upon direct examination by prosecutor or cross-examination by defense counsel); United States v. Barham, 595 F.2d 231, 241 (5th Cir.1979), cert. denied, 450 U.S. 1002 , 101 S.Ct. 1711 , 68 L.Ed.2d 205 (1981) (finding it immaterial whether or not prosecution consciously solicited false evidence); United States v. Boyd, 833 F.Supp. 1277, 1345 (N.D.Ill.1993) (citing well established principle that a conviction "must fall under the Fourteenth Amendment ... when the State, although not soliciting false evidence, allows it to go uncorrected when it appears," quoting Napue v. Illinois, 360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959)); see also Brown v. Wainwright, 785 F.2d 1457, 1461 (11th Cir.1986).

. In its first finding of fact, the trial court found that, in direct contrast to his testimony at the suppression hearing, when Medrano elicited applicant’s confession, he had "information that Defendant’s mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant.”

The trial court also found that Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case. Medrano testified that he lacked the authority to question residents of Juarez during an investigation and that he "didn't dare” request the Juarez police to question residents, evidence at the writ hearing showed that Medrano regularly sought and received permission from the Juarez police to question witnesses and suspects in Juarez. Palacios’ responses in the letter roga-tory confirmed that there was "a lot of collaboration" between the El Paso police and the Juarez police during the period of applicant’s arrest. Medrano himself noted in an offense report that the El Paso police were "receiving complete cooperation from the Police Inspección Section in Juarez.” This cooperation included permission from the Juarez police to secure and process evidence, take crime scene photographs, and canvass neighborhoods in Juarez to question potential witnesses.

. Contrary to the majority's position, applicant would arguably be entitled to relief upon his claim that the State withheld material evidence, in the form of the Supplemental Offense Report, in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). At the hearing on applicant's writ allegations, the trial court found that the District Attorney’s Office did not withhold the Report from the defense attorneys. See supra at 371. The record supports this factual finding, however, the pertinent legal question is whether the Report was adequately disclosed for purposes of Brady .

Commonly, disclosure is made in one of two ways: the material is contained in the State's file released to the defense pursuant to an open file policy, or specific material is flagged as potential Brady material mid trial, at which time the defense is given sufficient time to review it. See, e.g., United States v. Atisha, 804 F.2d 920 (6th Cir.1986), cert. denied, 479 U.S. 1067 , 107 S.Ct. 955 , 93 L.Ed.2d 1003 (1987); Parker v. State, 594 S.W.2d 419, 424 (Tex.Crim.App.1980), cert. granted and judgment vacated on other grounds, 453 U.S. 902 , 101 S.Ct. 3134 , 69 L.Ed.2d 988 (1981); Green v. State, 587 S.W.2d 167, 170 (Tex.Crim.App.1979), cert. denied, 453 U.S. 913 , 101 S.Ct. 3146 , 69 L.Ed.2d 996 (1981). In the instant case, none of the attorneys involved, for the prosecution or the defense, recalled ever having seen the Report (prior to January 1994) in the State’s files. At the pre-trial suppression hearing, however, the Assistant District Attorney produced the Report in response to a specific question asked of witness Detective Holland, i.e. what time the July 31 meeting took place.

At the writ hearing Holland testified that during his testimony at the suppression hearing he scanned the Report to ascertain the time of the meeting, but did not absorb the information contained in the second paragraph revealing Medra-no’s perjurious testimony. None of the attorneys who viewed the Report at the suppression hearing had any recollection of the contents of the second paragraph. The circumstances leading to "disclosure” in this case did not provide defense counsel an opportunity for meaningful review of the Report at the suppression hearing. To hold that the Report was adequately disclosed at the suppression hearing would be inconsistent with the principles of fundamental fairness underlying Brady .