Opinion
No. WR-49,164-04
August 31, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, in Cause No. 97-8-3675 from the 24th District Court of Refugio County.
PRICE, J., filed a statement concurring in the dismissal of the application, in which COCHRAN, J., joins. COCHRAN, J., filed a concurring statement in which KELLER, P.J., and WOMACK, J., joined.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant was convicted of capital murder on September 30, 1998. We affirmed the conviction and sentence. Frazier v. State, No. 73,268 (Tex.Crim.App. March 28, 2001). Based on the findings of the convicting court, we denied relief on his original application for writ of habeas corpus. Ex parte Frazier, No. WR-49,164-01 (Tex.Crim.App. June 27, 2001). We have reviewed this subsequent application and find that the claim does not meet the requirements of Texas Code of Criminal Procedure Article 11.071, section 5 for consideration of subsequent claims. This application is dismissed as an abuse of the writ and the motion for stay of execution is denied. IT IS SO ORDERED.
CONCURRING STATEMENT
This is Applicant's second subsequent writ application. In it he alleges that the State knowingly elicited perjured testimony at his trial. Within the last few days the witness has signed an affidavit to this effect. However, in that affidavit, the witness admits that he had confessed his perjury prior to Applicant's first subsequent writ application, but refused at that time to give an affidavit. Thus, the factual basis for the claim was "ascertainable" at least as of the filing of the first subsequent writ application, if not before. See Article 11.071, § 5(e). Applicant knew about and could have alleged the perjury at that time, documented his attempts to obtain an affidavit, and invoked the compulsory processes of the court, requesting a hearing at which to call the witness and place him under oath. Because the current claim could have been presented in a previously considered application, Applicant cannot now establish that the factual basis for his claim was unavailable, for purposes of a second subsequent writ application under Article 11.071, section 5 (a).
CONCURRING STATEMENT
I join in the Court's Order denying applicant's motion for a stay of execution and dismissing his subsequent application for a writ of habeas corpus. Applicant asserts that he is entitled to a stay of execution (and ultimately relief on his habeas claim) based upon newly discovered evidence that the State knowingly sponsored perjurious testimony by Michael Brown. He also asserts that he did not obtain an affidavit from Mr. Brown until two days before his execution because it was "Michael Brown's conscience and Mr. Frazier's imminent execution [that] have prompted him to come forward with this information." Application at 5. As the Court's Order correctly concludes, this is not newly discovered evidence. Under some circumstances, a last-minute subsequent application that surmounts the due diligence procedural hurdle of Tex. Code Crim. Proc. art. 11.071, § 5, would require a stay of execution and a remand to the convicting court for resolution of the merits of that claim. Such is unnecessary in the present case, however, because, assuming the due diligence hurdle were met and the underlying facts in the affidavit were accepted as true, record evidence (which applicant does not cite) clearly demonstrates that his claim is nonetheless without merit. First, applicant fails to mention in his application that the State did not call Mr. Brown as a witness. The defense called Mr. Brown as its witness. Thus, it can hardly be said that the State knowingly sponsored perjurious testimony. Reading Mr. Brown's trial testimony (which should have been included as an exhibit in any last-minute habeas corpus application), it is obvious that the jury was fully informed of the fact that he had entered into an agreement with the State concerning any testimony that he might give in the capital murder trials of either Derrick Frazier or Jermaine Herron. As the defense asked Mr. Brown on direct examination, "Under that agreement were you supposed to testify truthfully in either case?" Mr. Brown responded, "Yes, sir." Then the defense asked its witness, "And the State had agreed to recommend ten years probation in each case?" "Yes," responded Mr. Brown. And the defense went on to explore other conditions of the agreement and the discussions that Mr. Brown had had with police about the facts of the capital murder. Only then did the defense turn to the content of Mr. Brown's factual recollection of the events. And Mr. Brown's trial testimony was not particularly inconsistent with his affidavit. The purport of his trial testimony and that of his August 29, 2006, affidavit was that it was Jermaine Herron who had a previous connection to the Lucich ranch, and that it was Jermaine's suggestion that the three men-applicant, Jermaine, and Brown-steal guns and money from the ranch. Mr. Brown reiterated numerous times, during direct examination, that Jermaine was the proverbial "leader of the pack," although he did say on cross-examination that applicant, was the leader and was showing Jermaine how to do things "like he was a pro." Furthermore, Mr. Brown's trial testimony and his August 29, 2006, affidavit are not particularly inconsistent with applicant's own videotaped confession which the trial court admitted at the trial. It was applicant's confession that the State relied upon for its account of the capital murders, not Mr. Brown's testimony for the defense. That confession was described in the summary of the evidence from the direct appeal of this case:
Michael Brown testified that, on the evening of June 25, 1997, he drove appellant and Jermaine Herron to the Lucich home, which was located approximately ten miles from Refugio in the country. Appellant and Herron had been inside the place before and knew where guns were kept. In the car, appellant and Herron discussed the plan for stealing the guns. The plan was that they would quickly retrieve the guns and kill anyone in the home. However, before they could enter the Lucich home, the lights came on. As a result, the three men drove away from the scene before commencing a burglary. The next morning, Brown drove appellant and Herron back to the Lucich home, dropped them off, and drove away.In his videotaped confession, appellant narrated the following set of events occurring that morning. After burglarizing the Lucich home, appellant and Herron took a pistol and went to the Nutt residence. Hiding the pistol, the two men approached Besty Nutt, and Herron conversed with her. After this conversation, Betsy offered to take appellant and Herron to Refugio. The three of them entered Betsy's pickup truck, but, as she started the engine, Betsy realized that she had forgotten her mobile phone. She turned off the engine and went back inside her home to retrieve the phone. While Betsy was in her home, Herron told appellant, "I'm going to do 'em now," which appellant took to mean Herron was going to kill the home's occupants. Appellant responded, "It's your business." When Betsy came back to her truck and started the engine, Herron told her that he needed to use the bathroom. Betsy told him that he could go inside and do so, and Herron and Nutt entered the residence. Soon afterwards, Herron returned from the residence and told Betsy that she had a phone call. Betsy exited the truck and entered her home, with appellant following her. Once inside the Nutt home, Herron pointed the pistol at Betsy and told her not to move. Hearing the commotion, Cody Nutt came into the room occupied by appellant, Herron, and Betsy. Then Herron shot Cody with the pistol. After shooting Cody, Herron handed the gun to appellant and told appellant to shoot Betsy. Although he did not want to do it, appellant shot Betsy twice. Both shots hit Besty in the head. The first shot was from six to seven feet away while the second shot occurred when appellant was standing over Betsy with the gun two or three feet away from her. Then Herron set the house on fire, and Herron and appellant drove away in Betsy's truck. According to Brown's testimony, Herron later called Brown on the telephone. During their conservation, Herron told Brown that he (Herron) had killed a lady and a little boy. However, at a later date, when Brown and Herron were in jail, Herron told Brown that appellant was the one who shot both persons. Given applicant's own videotaped confession, Mr. Brown's present affidavit, which seemingly conflicts in only minor details with his trial testimony as a defense witness, cannot be considered material. Although he now alleges gross misconduct by the prosecutor who told him what to say, Mr. Brown has failed to point to any specific trial testimony that he now asserts was false and was "coerced" by the prosecution. With these comments, I join the Court's Order.
Such an inclusion of the complete direct and cross-examination testimony would be especially important in a case such as this one, because Mr. Brown's affidavit does not point to the specific trial testimony that he now asserts was false.
Mr. Brown's probation on that robbery and burglary case was revoked for unrelated reasons and he is currently serving a 75 year sentence.
The Fifth Circuit included another rendition of applicant's confession in its unpublished opinion denying a certificate of appealability on applicant's first federal application for a writ of habeas corpus. See Frazier v. Dretke, No. 04-70040, 2005 U.S. App. LEXIS 16792 (5th Cir. August 10, 2005) (not designated for publication).