Opinion
NO. WR-78,123-01
02-08-2017
EX PARTE RODOLFO ALVAREZ MEDRANO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-0942-03-F IN THE 332ND DISTRICT COURT FROM HIDALGO COUNTY ALCALA, J., filed a dissenting opinion.
DISSENTING OPINION
I disagree with this Court's order that denies the application for a writ of habeas corpus filed by Rodolfo Alvarez Medrano, applicant. Instead, I would remand this case to the habeas court with instructions to conduct a live evidentiary hearing to develop the record with respect to applicant's ineffective-assistance-of-counsel claims and his claim that he is constitutionally ineligible for the death penalty due to his minimal participation in the offense. A live hearing is warranted because the existing record, which contains only affidavits, does not fully address all of applicant's allegations. In particular, applicant's lead trial counsel is now deceased and thus he was unable to provide an affidavit. Although the second-chair counsel has provided an affidavit responding to some of applicant's allegations of ineffectiveness, counsel's explanations omit many details that might aid the habeas court in evaluating applicant's claims, and thus a live hearing is justified in order to fully develop the record with respect to counsel's strategy in this case. Although the habeas court has forwarded lengthy findings of fact and conclusions of law to this Court recommending that relief be denied, those findings and conclusions contain many errors and omissions and thus they cannot be adopted by this Court as the basis for its ruling. For all of these reasons, rather than attempt to resolve applicant's allegations based on our own review of the record, I would instead remand this case to the habeas court for an evidentiary hearing and further proceedings as to applicant's claims. I discuss three of applicant's arguments in more detail below.
I. Propriety of Death Sentence for Party Liability
Applicant contends that his participation in this offense as the person who provided the murder weapons was too minimal to support a death sentence. Specifically, he argues that "the Eighth Amendment forbids imposition of the death penalty on anyone who did not kill, attempt to kill, or intend to kill unless such person was both a major participant in a crime leading to the death of another and acted with reckless disregard to whether a human life would be taken." A jury convicted applicant of capital murder under a theory of party liability based on his involvement in six murders committed by numerous co-defendants, and he was sentenced to death. The State's theory of the case was that applicant, a gang member, entered into a conspiracy with fellow gang members to commit aggravated robbery. The State alleged that applicant provided weapons to the other gang members, who then used the weapons to attempt to steal money and drugs from rival gang members. During the course of the robbery, applicant's co-defendants murdered six people. Applicant was not present at the scene of the shootings. In support of his argument that his participation in the offense was too minimal to warrant a death sentence, applicant relies on Enmund v. Florida, 458 U.S. 782, 797 (1982), and Tison v. Arizona, 481 U.S. 137, 158 (1987). In both Enmund and Tison, the Supreme Court looked to historical and current societal trends in determining whether the death penalty would be constitutionally permissible for individuals convicted of capital offenses under a theory of party liability. See Enmund, 458 U.S. at 788-89; Tison, 481 U.S. at 154. This Court should consider whether applicant's participation in this offense was so minimal as to preclude imposition of the death penalty under the circumstances of this case. See Tison, 481 U.S. at 158 (explaining that, to support a death sentence for person convicted of capital offense as a party, facts of the defendant's involvement must demonstrate "major participation in the felony committed, combined with reckless indifference to human life"). Although I recognize that applicant raised this claim previously on direct appeal, I disagree that that fact should preclude him from now litigating this issue on post-conviction review. As I explained in my concurring opinion in Ex parte Wood, because I view Tison as establishing a categorical ban on executing certain individuals whose moral culpability is too minimal to warrant a sentence of death, I do not view direct appeal as constituting a defendant's sole opportunity to litigate that issue. See Ex parte Wood, No. WR-45,500-02, 2016 WL 4434962, at *2-3 (Tex. Crim. App. Aug. 19, 2016) (Alcala, J., concurring). Accordingly, I would hold that applicant is entitled to litigate his Eighth Amendment claim at this stage, and I would permit him to further develop this claim through an evidentiary hearing.
II. Ineffective Assistance of Counsel
In his present application, applicant claims that his trial counsel were ineffective for, among other things, failing to introduce evidence showing that his statement to police was involuntary because it was induced by a promise that he would be released to his family and would not be prosecuted for his role in the offense. In order for a confession to be rendered involuntary because it was induced by an improper promise, the promise must be "positive, i.e., of some benefit to the declarant, made or sanctioned by a person in authority, and of such a character as would likely influence the accused to speak untruthfully." Janecka v. State, 937 S.W.2d 456, 466 (Tex. Crim. App. 1996) (citing TEX. CODE CRIM. PROC. art. 38.21). In his application, applicant claims that when he was taken into custody, he initially refused to give a statement and requested an attorney. Some time later, he was allowed a short visit with his wife. According to a sworn statement from applicant's wife, prior to that visit, a detective told applicant's wife that the police were aware that applicant had not been present at the crime scene and that he would be allowed to go home if he would give a statement to police. Applicant's wife then conveyed that information to applicant during their meeting, stating, "[P]lease . . . tell them what they want to know, he said you can come home with us." Applicant claims that his subsequent statement to police was induced by this promise, thereby rendering it involuntary.
Although there was a suppression hearing at trial challenging the voluntariness of applicant's statement, counsel only raised the grounds that applicant's statement was taken without an attorney present and after applicant had been awake for over fifty hours. The substance of the allegations with respect to police inducement have never been litigated, and, more particularly, these allegations have never been litigated in the context of assessing whether counsel was ineffective for failing to adequately challenge the voluntariness of applicant's statement. Because he died in July 2011, Villarreal, applicant's lead trial counsel, was unable to submit an affidavit in this habeas application. Co-counsel Flores submitted an affidavit stating that he could not remember being made aware of information suggesting that applicant's statement had been induced by a promise from police. Flores further indicated that, if he had been aware of such information, he would have used it in attempting to have applicant's statement suppressed. Even if, as the habeas court found, co-counsel Flores's affidavit is credible, the better course under these circumstances, in which counsel states that he simply cannot recall certain events, is to permit applicant to cross-examine counsel in order to possibly refresh his memory by questioning him as to particular details or developments. Furthermore, although Villarreal himself is unable to testify about the allegations, other sources might be able to resolve whether Villarreal was made aware of applicant's claims about inducement. In sum, I would not find Flores's inability to recall details pertaining to this allegation dispositive of applicant's claim, and I would therefore require further proceedings in the habeas court to fully factually develop this issue.
III. Denial of the Right to Testify
Applicant's claim that trial counsel prevented him from testifying in his own defense should also be remanded for a live evidentiary hearing. The right to testify is fundamental and personal to the accused. Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App. 2005) (citing Rock v. Arkansas, 483 U.S. 44, 52 (1987)). Because it is trial counsel's responsibility to inform a defendant of his absolute right to testify, this Court applies the Strickland framework to a claim that defense counsel's conduct has deprived a defendant of his right to testify, either through counsel's failure to inform the defendant of that right or by otherwise preventing him from exercising that right. Id. at 235.
In his sworn declaration accompanying this application, applicant states that he consistently told counsel he wanted to testify and expected to testify throughout trial. He states that he was surprised when the defense rested without calling him to the stand. In response to this statement by applicant, co-counsel Flores's affidavit states that he cannot remember whether or not applicant wished to testify. Flores further states that lead counsel, Villarreal, had a closer relationship with applicant than did co-counsel. Co-counsel's affidavit states that he "cannot believe that Applicant would have been prohibited from testifying if he so chose." This statement from co-counsel is mere speculation, not evidence that applicant did not assert his right to testify or an explanation as to why applicant was not allowed to testify. At this juncture, the only non-speculative evidence in the habeas record is applicant's statement that counsel refused to allow him to testify. Again, given Flores's inability to recall pertinent details regarding this allegation, I would not deny applicant's claim at this stage on the basis of Flores's affidavit, but would instead permit applicant to factually develop this claim at a live hearing.
IV. Conclusion
For all of the foregoing reasons, I would not, at this stage, attempt to resolve applicant's allegations based on our own review of the existing record. I would instead remand this case to the habeas court with instructions to hold a live evidentiary hearing and then decide applicant's claims with a more developed record before us. Therefore, I respectfully dissent. Filed: February 8, 2017 Publish