No. WR-44,564-02
September 7, 2007. DO NOT PUBLISH
On Application for Writ of Habeas Corpus In Cause no. W93-03527-v from the 282nd District Court of Dallas County.
Holcomb, J., filed a statement dissenting to the dismissal of the application.
DISSENTING STATEMENT
In the case before us, the State argues that we should deny applicant's request for a stay of execution for the following reasons: (1) applicant failed to satisfy the requirements of Texas Code of Criminal Procedure, article 11.07, § 5(a)(1) because even though Crawford v. Washington, 541 U.S. 36 (2004) had not been issued when applicant filed his first application for habeas relief in 1998, applicant could have challenged his co-defendant Bates' statements under the Confrontation Clause of the Constitution, but chose not to do so; (2) applicant affirmatively agreed to allow Bates' custodial statements to be summarized at trial by the testifying officer and, therefore, expressly waived his Confrontation Clause claim; (3) applicant also failed to object to the testimony summarizing Bates' custodial statements, when this testimony was offered at trial; (4) applicant argues that his waiver was coerced, but the record shows that it was a product of strategic decisions by both parties, each of which accrued some benefit from the admission of a summary of Bates' statements through the testifying officer at trial; and (5) this Court should follow its decision in Ex parte Keith, 202 S.W.3d 767 (Tex.Crim.App. 2006), whereby we applied Teague v. Lane, 489 U.S. 288 (1989), to hold that Crawford is not retroactive and denied relief. A closer examination of the above arguments shows that they have little or no merit. First, Crawford held that the out-of-court testimonial statement of a witness is barred under the Confrontation Clause of the Constitution, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. This was a new legal protection that was unavailable at the time of applicant's trial and his previous state habeas application, when Ohio v. Roberts, 448 U.S. 56 (1980) governed disposition of cases like that of applicant, where a co-defendant's testimony was treated as a category virtually immune from inspection for reliability under the Confrontation Clause. Thus, when Crawford overruled Roberts, it provided applicant with a new means of relief, pursuant to Texas Code of Criminal Procedure, article 11.07, § 5(a)(1). Second, applicant shows in his application that he did not "affirmatively agree" to allow Bates' custodial statements to be summarized at trial by the testifying officer. On the contrary, he asserts that the State affirmatively denied him the right to even see or talk to Bates, unless he agreed to allow it to introduce a summary of Bates' statements through an officer at trial. The meeting turned out to be fruitless, however, since Bates was pressured by the State not to co-operate with applicant's counsel. Applicant has attached excerpts from the record to substantiate these allegations. Thus, for example, we see in Applicant's Exhibit 4, a copy of Bates' guilty plea, where the State had threatened to "re-indict and prosecute" Bates "for the capital murder of Frederick Banzhaf under the highest penalty prescribed by law for said offense," (emphasis added), unless Bates co-operated in the prosecution of applicant and some other persons. Applicant invites us to examine the record for further proof of his allegations that this co-operation by Bates took the form of not co-operating with applicant and thus providing applicant with a meaningful opportunity to confront Bates, as required by the Confrontation Clause under Crawford. Third, applicant explains that he did not object to the introduction of the summary of Bates' testimony at trial because, as discussed earlier, there was no legal basis to object at the time, since Crawford had not yet been decided and the prevailing law of Roberts (which was overruled by Crawford) treated the testimony of co-defendants like Bates as a category immune from inspection for reliability under the Confrontation Clause. Finally, the State correctly noted that we had applied Teague in our decision in Keith to hold that Crawford is not retroactive. The State has conceded that applicant would be entitled to relief, if Crawford were applied retroactively; and the Supreme Court, in Danforth v. Minnesota, 127 S.Ct. 2427 (2007), is currently considering whether a state must apply Teague in determining whether Crawford is retroactive on state habeas review. Hence, applicant's request is only reasonable that we grant him a stay of execution at least until that decision is issued. In closing, I note that applicant has gone at great length to show that the State had little or no evidence against him, except for the alleged statements by Bates. Applicant has also shown good reason for Bates to have lied for his own self-interest, pointing the finger at applicant as having been the killer, even though all the evidence, including the testimony of a surviving victim, points more strongly towards Bates than towards applicant. Applicant's exhibit, a copy of Bates' plea agreement, shows how the State offered him a deal whereby they would not seek the death penalty against him if he helped them prosecute applicant. In light of all these allegations, I would grant a stay of execution at least long enough for this Court to verify them against the actual record. Since the Court declines to do so, however, I respectfully dissent.