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373 U.S. 83(1963), the State is required to provide a defendant with any exculpatory evidence that is favorable and material. When alleging· a Brady violation, the applicant has the burden of showing that:. 1) the prosecutor failed to disclose evidence; 2) the evidence was favorable to the applicant; and 3) the evidence was material, such that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different. Ex parte Kimes,
872 S.W.2d 700, 702-703 (Tex. Crim. App .. 1993). In .the instant claim, the applicant fails to demonstrate that this information was withheld from the defense. The . applicant shows 3 records that existed in 2005, but has not shown that trial counsel was not aware of these records. Furthermore, he fails to show how . or that these records are exculpatory. Finally, the applicant fails to demonstrate materiality such that there is a reasonable probability that, had trial counsel known of the records (assuming arguendo that counsel was not aware of the records), the outcome of the trial would have been different. Ex parte Kimes,
872 S.W.2d 700, 702-703 (Tex. Crim. App. 1993). Prosecutorial Misconduct . A prosecutor's active or pass1ve use of perjured testimony violates a defendant's right ·to due process. Ex parte Castellano,
863 S.W.2d 476, 481 (Tex. Crim. App. 1993), citing Mooney v. ·.Holohan, 294 US. 103,
55 S. Ct. 340(1935). Such violation occurs whenever the pro·secutor has actual or imputed knowledge of the perjury which is material to the conviction. Ex parte Castellano at .481, 485. The State commits a due process violation when (1) the State presents false testimony, (2) the State knows or has reason to 4 know that the testimony was false, and (3) the false testimony is material. Furthermore, the prosecutor must correct a false impression, including those that do not amount to perjury, left by a witness. Giglio v. United States,
405 U.S. 150, 153,
92 S. Ct. 763(1972); Napue v.· Illinois,
360 U.S. 264, 269, 7.9 S.Ct. 1173 (1959); Alcorta v. Texas,
355 U.S. 28, 32,
78 S. Ct. 103(1957). A charge of perjury is a serious accusation and must· be clearly supported by the evidence. Haywood v. State,
507 S.W.2d 756, 760 (Tex. Crim. App. 1974). A defendant bears the burden of showing that ·testimony used by the State was perjured. Luck v. State,
588 S.W.2d 371, 373 (Tex. Crim. App. 1979) (op. on reh'g); Hawkins v. State,
660 S.W.2d 65, 75 (Tex. Crim. App. 1983). ,Even if conflicting testimony is presented, that fact alone would not indicate perjury. Losada v. State,
721 S.W.2d 305, 312 (Tex. Crim. App. 1986); Brown v. State,
477 S.W.2d 617, 623 (Tex. Crim. App. 1972). In this case, the applicant fails to meet his burden of showing that the testimony that forms the basis of his complaints amounts to 5 perJury. The applicant merely highlights conflicts between his own testimony and that of a State's witness. Conflicting testimony is resolved by the fact finder - 1n this case, the jury. ·Losada v. State,
721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury . may accept all, part, or none of any witness's testimony. Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). It is the jury's job to judge the credibility of the witnesses, and to decide the weight given to each witness's testimony. Banks v. State,
510 S.W.2d 592, 595 (Tex. Crim. App. 1974) (abrogated on other grounds). The jury may resolve or reconcile any conflicts in testimony as they see fit. /d When evidence exists that both supports and conflicts with the jury's verdict, the courts must assume that the fact finder resolved such conflicts in favor of the verdict rendered. Turro v. State,
856 S.W.2d 43, 47 (Tex. Crim. App. 1993). That is exactly 'what happened in the instant case - the jury resolved the conflicts in the testimony in favor of a guilty verdict. 6 Furthermore, trial counsel had· the opportunity to cross-examine the witness during trial. The jury thus had the opportunity to consider the testimony of all witnesses. All of the alleged conflicts in evidence were ·before the jury for its consideration, both for substantive and credibility purposes. The applicant fails to demonstrate that the State . knowingly relied upon false statements. For all these reasons, the applicant's first and second grounds for relief are without merit, and should be denied. Reply to the Applicant's Third Ground for Relief The applicant all~ges in his third ground for relief that there IS no evidence, other than uncorroborated accomplice testimony, to support his conviction. Applicant's Writ at 10-11. On appeal, the applicant raised four grounds for relief: 1. That the evidence was not sufficient to support his conviction, as it relied solely on the testimony of a person the applicant feels should have been designated an accomplice to the crime; 7 2. That the co-defendant's refusal to .testify and invocation of his . Fifth Amendment. right was improperly imputed to the applicant, unfairly prejudicing the applicant; 3. That the trial court erred by admitting eviden·ce of the applicant's extraneous offenses and bad acts via a third party's testimony;· and 4. That the trial court erred by admitting evidence . of the applicant's extraneous offenses and · bad acts via the applicant's recorded statement to police. See Alcorn v. State, 14-05-01195-CR,
2007 WL 582292(Tex. App. - Houston [14th Dist.] February 27, 2007, pet. refd.). In its decision, the Fourteenth Court of Appeals found that "the trial court correctly gave the jury the responsibility of determining whether [the State's witness] was an accomplice," and overruled the applicant's first issue on appeal. Alcorn. v. State, 14-05-01195-CR, ·
2007 WL 582292at *1-*4. The Court of Appeals· specifically noted that mere presence, knowledge, failure to disclose, and concealment 8 of a crime do not make an individual an · accomplice." /d (citing , Maynard v. State, 166, S.W.3d 403, 411 (Tex. App. - Austin 2005, pet. refd). The Fourteenth Court of Appeals also addressed the applicant's claim that the trial court erred by allowing the State to grant use immunity to his accomplice. Specifically, the (ourt of Appeals noted that the trial court advised the accomplice that. he could not invoke his Fifth Amendment right to remain silent: because he had been granted use immunity. Alcorn v. State, 14-05-01195-CR,
2007 WL 582292at· *4. ·Despite the court's admonishment, the accomplice . refused to testify, so the triaL court held the accomplice in contempt of court - ten times. ld; States Writ Exhibit A, Judgment of Contempt and Commitment Order in cause number 1047601; States Writ Exhibit B, Judgment of Contempt and Commitment Order in cause number 1 047602; States Writ Exhibit C, Judgment of Contempt and Commitment Order in cause number 1 047603;. States Writ Exhibit D, Judgment ·of. Contempt and Commitment Order in 9 _; .... cause number 1047604; State's Writ Exhibit· E, Judgment of Contempt and Commitment Order in cause number 1047605; State's Writ Exhibit F, Judgment .of Contempt and Commitment Order in cause number . 1 047606; · State's Writ Exhibit G Judgment of Contempt and Commitment Order in cause number 1047607; State's Writ Exhibit H, Judgment of Contempt and Commitment Order in c;ause number 1047608,· State's Writ Exhibit/, Judgment of Contempt and Commitment Order in cause number 1047609; and State's Writ Exhibit J, Judgment of Contempt and Comm/tment Order in cause number 1047610. · The Court of Appeals held that the applicant was · not unfairly prejudiced by the. accomplice's invocation of his own Fifth Amendment right to remain silent. The Court of Appeals further held that the applicant failed to preserve error by failing to object in a timely manner in his claim that the trial. court abused its discretion when it allowed a witness to testify about the applicant's extraneous offenses and prior bad acts. Alcorn v. State, 14-05-01195-CR,
2007 WL 582292at *4-*5 .. 10 ' ' Finally, the Court of Appeals, without specifically finding error, held that the applicant was not harmed by the trial court's admission of evidence of the applicant's extraneous offenses and prior bad acts via the applicant's recorded statement with the police. Alcorn v. State, 14-05-01195-CR,
2007 WL 582292at *5-*6. Issues raised and rejected on direct appeal need not be considered on habeas. Ex parte Acosta,
672 S.W.2d 470, 47Z (Tex. Crim. App. 1984). The Court of Appeals has addressed the applicant's third ground for relief directly. Because the applicant's third ground for relief was raised .and rejected on direct appeal, that issue need not be considered in the instant writ · proceeding or 1n any subsequent proceeding. Ex parte
Acosta, 672 S.W.2d at 47-2. Reply to the Applicant's Fourth, Fifth, and Sixth Grounds for Relief The applicant alleges in his fourth ground for relief that the trial court erred by denying his motion to find that the State's witness was a party to the offense. Applicant's Wnt at 12-13 11 In the applicant's fifth ground for relief, he complains that the \ trial court . erred by allowing the State to grant his accomplice use immunity. Applicant's Writ at 14-15 ·In his sixth ground for relief, the applicant complains that the trial court erred by failing to instruct the jury that a witness's testimony may be tainted if that witness 1s compensated. Applicant's Writ a( $16~$171. · Claims of trial court error· are generally record claims which are required to be raised in the trial court and on direct appeal. An application for writ of habeas corpus may not be used to litigate matters that could have been raised on direct appeal. Ex parte Nelson,
137 S.W.3d 666, 667 (Tex. Crim. App. 2004); Ex parte Townsend,
137 S.W.3d 79, 81 (Tex. Crim. App~ 2004). "Record claims " which could have been but were not presented in the trial court or on direct appeal should not be considered on habeas. Ex 1 The applicant's writ memorandum uses pages "14" and "15" repeatedly to complete his w··rit application. In order to avoid confusion for the purposes of this answer, the State will designate the page after the first page 14 and page 15 of the writ application as page 16, and· continue thereon. 12 parte .Gardner,
959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (op. reh'g). Because the applicant's claim of trial court error is a record claim, it should not be considered on habeas. For all these reasons, the applicant's fourth, fifth, and sixth grounds for relief are without merit and should be denied. Reply to the Applicant's Seventh and Eighth Grounds for Relief In his seventh and eighth · grounds for relief, the applicant complains of ineffective assistance of counsel. Specifically, the applicant claims that counsel failed to: 1. object to the prosecutor referring to the identity of the applicant's accomplice because the. applicant had not yet been identified as having been at the scene; 2. object to the admission of the applicant's accomplice's criminal history; 3. object to hearsay testimony of "witnesses;" 4. investigate; 5. interview witnesses; and 13 6. object to illegally seized evidence. · Applicant's Writ at 18*-21~ The United States Supreme Court held in Strickland v. Washington,
466 U.S. 668, 686 (1984), that the benchmark for judging any claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having · produced a just result. The Court in ·Strickland set forth a two-part standard, which has been. adopted by Texas. See Hernandez v. State,
726 S.W.2d 53, 57 (Tex. Crim. App .. 1986). First, the defendant must prove by a preponderance· of the evidence that counsel's · representation fell below an objective standard of reasonableness. Mitchell v. State,
68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Narvaiz v. State,
840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (citing Strickland v. Washington, •466 U.S. at 688). Reasonably effective assistance of counsel does not require error-free counsel, or counsel whose competency is judged . by hindsight. ·Mercado v. 14 State,
615 S.W.2d 225, 228 (Tex. Crim. App. 1981). Second, there must be a reasonable probability that, but for counsel's . unprofessional errors, the result . ofI the. proceeding would have been . different. /d A ."reasonable prdbability" is "a probability sufficient · fid . · h to un derm1ne con .I ence 1n t e outcome. I j . tu.,_, . II Article . I, Section 10 of thJI. Texas Constitution also requ1res I that a criminal defendant receiVe effective· assistance of counseL · I However, the Texas constitutio~al provision does not create a II standard that is more · protective j of a defendant's rights than that I established 1n Strickland Black ¢ State,
816 S.W.2d 350, 357 (Tex. I Crim. App. · 1991) (citing Hernandez v. State,
726 S.W.2d 53(Tex. I Crim. App. ·1986)).. Therefore, an ~nalysis of \:he effectiveness of the . I . . . _applicant's trial counsel in thej primary case pursuant to the I . . Strickland standard satisfies both the federal and state constitutional I I requirements. I The court will not use hindsight to . second-guess a tactical I decision made by trial counsed nor will. the fact that another 15 .. attorney might have pursued a different course support a finding of ineffectiveness. Solis v. State,
792 S.W.2d 95, 100 (Tex. Crim. App. 1990); 8/ott v. State, 588 S.W.2d ·588, 592 (Tex. Crim. App. 1979). When evaluating an ineffective assistance claim, the reviewing court looks at the totality of the representation and the particular circumstances of the case. See Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In reviewing counsel's performance, the court indulges a strong presumption tha~ he acted within the wide range of reasonable professional assistance. ld Failure to· Object The applicant complains that trial counsel failed to object to: . 7. the prosecutor referring to the identity of the applicant's accomplice because the applicant had not yet been identified as having been at the scene; 8. the admission of the applicant's accomplice's criminal history; 9. hearsay testimony of "witnesses;" 16 10. illegally seized evidence. Applicant's Wnt at 18*-21 ~ To show ineffective assistance of counsel for failure to object, the applicant must show that the trial court would have either sustained the objection or that he would have committed error in overruling the objection. Ex pane White,
160 S.W.3d 46(Tex. Crim. · App. 2004); Vaughn v. State,
931 S.W.2d 564(Tex. Crim. App. 1996). Furthermore, an isolated failure to object generally does not in itself constitute ineffective assistance. Bridge v. State,.
726 S.W.2d 558(Tex. Crim. App. 1986). Failure to Investigate The · applicant alleges that counsel failed to conduct an adequate investigation, and failed to interview witnesses. · Applicant's Writ at 18*-19~ The defense counsel has a duty to make a proper investigation and prepare for trial. Ex pane Dunham,
650 S.W.2d 825(Tex. Crim. App. 1983). In order to succeed on a claim of 17 ineffective assistance of counsel for failure to investigate, an applicant must show what a more in-depth investigation would have revealed. Mooney v. State,
817 S.W.2d 693(Tex. Crim. App. 1991). Furthermore, the applicant must show how the alleged inadequate preparation affected the outcome of the trial. Ex parte Walker,
777 S.W.2d 427(Tex. Crim. . App. 1989). Moreover, even assuming arguendo, that defense · counsel limited his investigation, an . I attorneys decision may· be reasonable under the circumstances. Harris v. Dugger, 87 4 F2d 756, 763 (11th Cir.), cert. denied,
110 S. Ct. 573(1989); Butler v. State,
716 S.W.2d 48, 54 (Tex. Crim. App. 1986). The applicant fails to show what further investigation by counsel would have revealed, nor how counsel's alleged inadequate investigation affected the outcome of the instant case. The · applicant also fails to allege what, if any, witnesses counsel should have interviewed. The applicant presents nothing more than conclusory allegations that counsel .failed to investigate, which, even 18 .:io if sworn to, do not overcome the State's denial and do not warrant habeas relief. Ex parte Young,
418 S.W.2d 824(Tex. Crim. App. 1967); Ex parte Empey,
757 S.W.2d 771, 775 (Tex. Crim. App. 1988). .·The applicant also fails to show how counsel's failure to investigate rendered his representation· ineffective. Thus, the applicant fails to meet his requisite burden, and these aspects of the applicant's claims of ineffective assistance of counsel are without merit, and should be denied. Nevertheless, and without waiving the foregoing arguments, the resolution requires info.rmation concerning trial counsel's strategic decisions, and confidential communications with the applicant. Therefore, the State believes that further factual investigation is necessary to determine the merit, if any, to the applicant's ineffective assistance of trial counsel claim. Ill. ·The trial court has already designated the 1ssue of ineffective assistance of counsel as an issue that needs to be addressed. The 19 State respectfully requests that the trial court order Randolph McDonald to file an affidavit addressing the instant allegations of ineffective assistance. IV. Service has been accomplished by sending a copy· of this instrument to the following address: Damien Lamont Alcorn ., #1339759 - Stiles Unit 3060 FM 3514 Beaumont, Texas 77705 SIGNED this 6th day of August, 2015 .. ores Assistant District Attorney Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002 (713) 755-6657 (713) 755-:5240 (fax) Texas Bar ID #24059760 20 I. Certificate of Compliance as Required by Tex. R. App. 73.3 . The State of Texas, through its Assistant District Attorney for · Harris County, files this, its Certificate of Compliance in the above- captioned cause, having been served with an application for writ· of habeas corpus pursuant to Tex. Crim. Proc. Code art. 11.07 § 3. The State certifies that the number of words in the State's Answer is 3,059. 21
Document Info
Docket Number： WR-83,810-01
Filed Date： 9/1/2015
Precedential Status： Precedential
Modified Date： 9/29/2016