Opinion
NO. WR-75,828-02
10-02-2019
EX PARTE PAUL DAVID STOREY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-3-011020-1042204-B IN CRIMINAL DISTRICT COURT NO. 3 FROM TARRANT COUNTY
HERVEY, filed a concurring opinion in which KEASLER, RICHARDSON, and NEWELL, JJ., joined. CONCURRING OPINION
I join the Court in dismissing Applicant's writ application because he cannot overcome the Section 5 subsequent writ bar. I write separately to briefly address Judge Yeary's suggestion that order briefing on whether the State's closing argument, which is not evidence, amounted to the knowing use of false evidence against Applicant. I also write separately to address a better analytical framework, Applicant's Brady claim, and the Crime Victims' Rights Act.
I.
This case is not a false-evidence case because no evidence of the family's preference was introduced at trial. That should be the end of the analysis. There is no question of whether Applicant's claim fits neatly within our false-evidence jurisprudence; it does not fit at all, even in some "yet-to-be-fully-articulated way," and asking the parties to brief a claim which Applicant can never win is an exercise in futility. Dissenting Op. at 2 (Yeary, J.).
II.
Instead of taking the radical step of possibly recognizing a new due-process ground for relief based on a legal fiction fabricated by this Court, we could apply longstanding, well-settled precedent from the United States Supreme Court.
It is well established that comments and conduct by a prosecutor during trial or at a sentencing proceeding might amount to prosecutorial misconduct depriving a defendant of due process. Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994) (death-penalty sentencing proceeding); Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (trial) (citing Darden v. Wainwright, 477 U.S. 168 (1986)). A prosecutor's improper trial comments violate the Fourteenth Amendment if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A prosecutor's improper sentencing comments violate the Fourteenth Amendment if they so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. Romano, 512 U.S. at 12. This test is necessarily a general one because in these types of cases the State did not deny a defendant "the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of that right." Id.
Judge Yeary claims that Darden and Romano, among others, are easily distinguishable based on their facts. I agree, but that misses the point. The Darden/Romano test is used to determine whether improper comments by a prosecutor rise to the level of a due-process violation because the comments could so infect the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. Romano, 512 U.S. at 12. It seems obvious to me that, if a prosecutor makes false statements during closing argument, those could be considered under the Darden test. --------
Instead of resorting to creating some kind of novel, constitutional "psuedo false-evidence" jurisprudence, we could use the well-known Darden test. The problem here, as the Court points out, is that the factual predicate for Applicant's claims—regardless of how you characterize them (e.g., false evidence, Brady, Darden, etc.)—is not newly available, so we cannot reach the merits of those claims.
III.
Second, even if we assume that the State's knowledge of the victim's parents' position on the death penalty was information favorable to Applicant and that the State suppressed it, I fail to see how Applicant can show that the information is material.
In Brady v. Maryland, 373 U.S. 83 (1973), Brady and a co-defendant murdered the victim. Brady admitted his guilt but sought to avoid the death penalty by arguing that he was not the shooter, his co-defendant was. Unbeknownst to Brady, his co-defendant gave a statement to police in which he admitted that he killed the victim. Brady did not learn of his co-defendant's statement, however, until after he was convicted because it was suppressed by the State. The Supreme Court agreed that Brady was entitled to a new trial because the statement was "highly significant to the primary jury issue" of whether a death sentence was appropriate to his level of participation in the crime.
This case is not like Brady. Applicant admitted that, after his co-defendant shot the kneeling victim in the back of the head, he shot the victim at least four more times because he "kind of got caught up in all of it." He made those admissions only after repeatedly lying about his level of participation in the murder. Initially, he claimed that a fictional person killed the victim, then he told police that someone named Carlos, whom Applicant did not like and who had nothing to do with the crimes, was the shooter. In another variation, he said that he was only the get-away driver. Ultimately, he conceded that he planned the robbery and directed his co-defendant during the robbery. And this was not some spur of the moment crime. Applicant wrote his plan down, then later attempted to burn it. They knew when the first employee (the victim) would arrive to work that morning and that he would be alone. They knew when the next person would arrive at work, so they could leave before his arrival. They brought a loaded weapon. And they intentionally killed the victim execution style.
The victim's wife was the first person to testify at the punishment phase. Her testimony was brief, but powerful. When asked to describe the impact of her husband's death on her, she said that,
Well, I had just come back from lunch, and I was having a pretty good day, and I was pulled into an office at my office. And my best friend was there, and she was crying, and there was a police officer. And I kind of walked in, was kind of confused. Never figured anything had happened. And then the police officer just told me that Jonas was dead; he was killed.Some jurors were crying during her testimony. There was also evidence that, after executing the victim, Applicant and his co-defendant went to Cash America to shop, then Braum's to eat, before returning to Cash America. Surveillance video taken in Cash America showed Applicant and his co-defendant joking and laughing with each other while they looked for something to buy with the money that they stole. Other evidence showed that, before the murder, Applicant robbed numerous drug dealers because he knew that they would not report the robberies to the police. On the other hand, more than a half-dozen witnesses, who personally knew Applicant, testified in great detail why the jury should spare his life.
It's kind of a blur, to be honest with you, as to how my reaction was. I think I started screaming at that point. You know, in that moment, I knew my life was never, ever going to be the same. It felt like my entire life had crumbled right in front of me. It felt like someone had pushed me into a hole and there was no way of getting out of it. Jonas and I had planned on having children. We owned a home together. I knew I was never going to live there again, which I never did.
I had to tell his parents. And how do you tell, you know, the mother of their only child that, "I'm sorry, you are never going to have grandchildren, and I'm sorry your son was murdered?" I never slept again without medication. I started going to a therapist the next week and had panic attacks every night and was terrified that at any moment in my life, someone I loved was going to die. And I couldn't be in a crowded room. I had to leave the job that I loved for several months.
I mean, it was just - my whole life, it was horrible. Everything has changed. It's like my life is okay now, but it's never going to be as good it was. He and I were so in love, and we were so happy together. And he made every day just better because he was part of it. And now everything that I thought I was going to have, I am just never going to have.
So it's kind of hard to describe how it impacts you. But every single way something could impact you, it has impacted me that way.
In light of all of this, it is difficult—if not impossible— to conclude that the victim's parents' general opposition to the death penalty would cast "the whole case in a different light . . . ." United States v. Agurs, 427 U.S. 97, 109-10 (1976). Consequently, even if the basis for Applicant's Brady claim was not known when he filed his subsequent writ application, which is doubtful, filing and setting this case to get briefing about the "due diligence" requirement is unnecessary.
IV.
For years, great debate over prosecutorial discretion in seeking the death penalty has existed. And attention to the facts and circumstances of each case necessarily includes the rights of the victim of a crime. But even legislative consideration of victims' rights only directs prosecutors to keep victims informed! A victim's desires, wishes, thoughts, and suggestions should be, and often are, sought out by prosecutors, but the victim's wishes do not override prosecutorial discretion, including regarding whether to seek the death penalty.
V.
With these comments, I concur in the Court's dismissal of Applicant's subsequent application for a writ of habeas corpus. Publish Filed: October 2, 2019