Opinion
NO. WR-55,690-05 NO. WR-55,690-06
01-21-2014
EX PARTE EDGAR ARIAS TAMAYO
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 9422714-E and F IN THE 209TH DISTRICT COURT
HARRIS COUNTY
PRICE, J., delivered a statement dissenting in part and concurring in part.
DISSENTING AND CONCURRING STATEMENT
I respectfully dissent to the Court's dismissal of the applicant's fourth subsequent application for a writ of habeas corpus. Article 11.071, § 5 of the Texas Code of Criminal Procedure allows this Court to consider the merits of (and potentially grant relief pursuant to) a subsequent habeas application that
That is, application number WR-55,690-05. I concur with the dismissal of application number WR-55,690-06, for the reasons that are spelled out in the Court's order.
[C]ontains sufficient specific facts establishing that . . . 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 thisThat section further clarifies:
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[.]
[A] factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.The crux of the decision whether to dismiss this application, then, is whether the factual basis for the applicant's claim was "ascertainable through the exercise of reasonable diligence" before he filed any of his previous writ applications.
TEX. CODE CRIM. PROC. art. 11.071, § (5)(a)(1).
TEX. CODE CRIM. PROC. art. 11.071, § (5)(e).
See Ex parte Frazier, 206 S.W.3d 666, 669 (Tex. Crim. App. 2006) (Price, J., dissenting) ("If state habeas counsel did not know, and could not have been expected to know by the exercise of reasonable diligence, of a factual basis for habeas corpus relief at the time of the initial writ, the applicant should be entitled to pursue the claim in a subsequent writ[.]").
Appended to the application is a list of exhibits, which includes an affidavit from Jesus Mendoza, a key witness at the applicant's capital murder trial. Within this affidavit Mendoza avers that he was coached by the district attorney then overseeing the applicant's prosecution, both as to how he should testify and to whom he should reveal that he had been coached. Specifically, Mendoza alleges that the district attorney told him to de-emphasize the extent of the applicant's drunkenness on the night of the murder—a fact that weighs heavily on both the voluntariness of the applicant's confession as well as the propriety of a death sentence in this case—and that, as far as the jury was concerned, "this meeting never happened." These facts underpin the applicant's legal claim that his due process rights were violated by the State's failure to disclose the existence and content of this coaching session to either the applicant's trial counsel or the jury.
See, e.g., U.S. v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence . . . falls within the Brady rule. Such evidence is 'evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.") (citations omitted) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1967)).
I will reserve judgment as to whether or not the applicant would or should obtain relief on the merits of this legal claim. However, I do not believe this Court should summarily dismiss his application for a writ of habeas corpus on the basis that "the facts underlying this claim could . . . have been ascertained previously." In the first place, the application alleges that Mendoza's present revelations are, strictly speaking, "new"—that none of the applicant's habeas lawyers had heretofore been aware of the fact (nor even the allegation) that this witness had been coached by the prosecution.
Court's Order at 3.
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Second, after reviewing the application and the materials appended to it, I am satisfied that it contains "sufficient specific facts" that, if true, would establish that the factual basis for the applicant's claim was not "ascertainable through the exercise of reasonable diligence." The application alleges that neither the trial judge, the prosecutor, Mendoza's attorney, nor even Mendoza himself had ever given any of the applicant's habeas lawyers any reason to suspect, much less investigate, whether the witness had ever been coached by the district attorney. The application alleges that Mendoza moved to Mexico immediately following his release from confinement on a related charge—and that prior counsel had neither reason nor sufficient resources to locate or interview him. "It is only recently," according to the application, "that counsel was able to locate Mr. Mendoza, and send an investigator to speak with him." The application also states that "[c]ounsel have tried diligently but unsuccessfully to locate" Mendoza's attorney, who might have provided previous counsel with information about the nature of Mendoza's testimony at trial.
Given what prior habeas counsel were allegedly aware of at the time they filed the applicant's respective previous applications for writs of habeas corpus, I think that expending precious resources to locate a witness in another country—for a claim that they were given no reason to investigate—would have gone beyond reasonably diligent investigation. It stands to reason, then, that the factual basis of the applicant's current claim was not, at the time of his previous applications, "ascertainable through the exercise of reasonable diligence." Accordingly, I conclude that our consideration of this application is not barred by Article 11.071, § 5. I would grant the applicant's motion for stay of execution and remand the cause to the convicting court to undertake factual development of, and issue a recommendation on, the applicant's claims. Because the Court today does not, I must respectfully dissent. DO NOT PUBLISH