Opinion
WR-85,941-01
03-29-2023
EX PARTE FIDENCIO VALDEZ, Applicant
Do Not Publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 20120D00749-384-01 IN THE 384TH CRIMINAL DISTRICT COURT EL PASO COUNTY
ORDER
PER CURIAM.
This is an application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071.
Unless otherwise indicated, all mentions of Articles in this order refer to the Texas Code of Criminal Procedure.
In May 2014, an El Paso County jury found Applicant guilty of capital murder. Based on the jury's answers to the special issues set forth in Article 37.071, §§ 2(b) and 2(e), the trial court sentenced Applicant to death. This Court affirmed Applicant's conviction and sentence on direct appeal. Valdez v. State, No. AP-77,042 (Tex. Crim. App. Jun. 20, 2018) (not designated for publication).
In July 2017, Applicant filed in the habeas court the instant pleading, his initial state habeas application under Article 11.071. Pursuant to that pleading, Applicant raises seven grounds for postconviction relief. In ground one, Applicant alleges that his trial lawyers' failure to call eyewitness Israel Gonzalez to testify at the guilt phase of his capital murder trial deprived him of the effective assistance of counsel. In ground four, Applicant alleges that the State's failure to call Gonzalez as a witness left the jury with a false and incomplete impression of the facts of the offense, thereby denying Applicant due process. In ground two, Applicant alleges that the State violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to inform Applicant's trial lawyers that State's witness Veronica Cera was a longtime and in-depth participant in the Barrio Aztecas gang. In ground three, Applicant alleges that the State's failure to introduce evidence of Cera's relationship with the Barrio Aztecas at Applicant's trial left his jury with a false and incomplete impression of her, thereby denying Applicant due process. In ground five, Applicant alleges that his trial lawyers' failure to "properly cross examine" State's witness Samuel Herrera regarding "any agreement he made with the State" deprived him of the effective assistance of counsel. In ground six, Applicant alleges that his trial lawyers' failure to request an accomplice witness instruction as to State's witness Veronica Cera deprived him of the effective assistance of counsel. In ground seven, Applicant alleges that his trial lawyers' failure to "investigate and discover evidence in mitigation of the death penalty" deprived him of the effective assistance of counsel in the punishment phase.
Across three dates in the summer and fall of 2021, the habeas court held a live evidentiary hearing pertaining to Applicant's 11.071 application. In November 2021, the habeas court signed recommended findings of fact and conclusions of law which, if followed, would have this Court deny all of Applicant's grounds for relief. With the following clarifications, we will follow the habeas court's bottom-line recommendation and deny relief.
Regarding ground one, in which Applicant alleges that his trial lawyers' failure to call eyewitness Israel Gonzalez to testify at the guilt phase of his capital murder trial deprived him of the effective assistance of counsel, we agree with the habeas court that Applicant has not shown that he suffered prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Based on the habeas court's findings on the issue of prejudice and this Court's independent review of the review, we conclude that Applicant has not shown a reasonable probability of a different outcome. Id. at 694 (to establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Ground one is denied.
Regarding ground two, in which Applicant alleges that the State violated Brady v. Maryland when it failed to inform Applicant's trial lawyers that State's witness Veronica Cera was a longtime and in-depth participant in the Barrio Aztecas gang, we adopt the habeas court's findings that: (1) in November 2013, the State made available to Applicant's trial lawyers statements that Cera made to the police on August 24, August 27, and October 31, 2012; (2) those statements revealed Cera's in-depth knowledge of Barrio Azteca activities; and (3) those statements would have put Applicant's trial lawyers on notice of Cera's heavy involvement with the Barrio Aztecas. Further, based on the habeas court's findings and this Court's independent review of the record, we conclude that, to the degree Cera's 2012 statements did not capture the full extent of her involvement with the Barrio Aztecas, any gap between what was disclosed and what went undisclosed was immaterial. See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different). Ground two is denied.
Regarding ground three, in which Applicant alleges that the State's failure to introduce evidence of Cera's relationship with the Barrio Aztecas at Applicant's trial left his sentencing jury with a false or misleading impression, we find that Applicant has not shown that Cera's testimony left the jury with a false or misleading impression. See Ex parte Chaney, 563 S.W.3d 239, 263 (Tex. Crim. App. 2018) ("Whether evidence is false turns on whether the jury was left with a misleading or false impression after considering the evidence in its entirety."). We also agree with the habeas court's conclusion that any false or misleading impression Cera may have given about her gang affiliation was immaterial. See, e.g., Ex parte Weinstein, 421 S.W.3d 656, 665 ("[F]alse testimony is material only if there is a 'reasonable likelihood' that it affected the judgment of the jury."); see also Chaney, 563 S.W.3d at 264 ("Materiality is a legal question that we review de novo."). Ground three is denied.
Regarding ground four, in which Applicant alleges that the State's failure to call Israel Gonzalez as a witness left the jury with a false and incomplete impression of the facts of the offense, we note that the habeas court rejected this ground at least in part because Applicant "failed to demonstrate that Gonzalez'[s] statement is indisputably true." But in a false evidence claim, the question is not whether the claimant has shown the trial evidence to be "indisputably" false or the competing evidence to be "indisputably" true. The preponderance-of-evidence standard governs the falsity prong of a false evidence claim. See, e.g., Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). So, in a false evidence claim, the question is whether the claimant has shown the trial evidence at issue to be more likely than not false, in the sense of leaving the factfinder with a false or misleading impression all-things-considered. See, e.g., Chaney, 563 S.W.3d at 263. That said, based on our own independent review of the record and applying the correct standard, we find that Applicant has failed to show that the State presented false evidence in the sense just described. Ground four is denied.
Regarding ground five, in which Applicant alleges that his trial lawyers' failure to "properly cross examine" Samuel Herrera deprived him of the effective assistance of counsel, we adopt the habeas court's findings that: (1) the State did not offer Herrera a "deal" in exchange for his testimony; (2) the State told Applicant's trial lawyers as much; and so (3) Applicant's trial lawyers had a legitimate, strategic reason for not cross-examining Herrera about the existence of a deal. Based on these findings and our own independent review of the record, we conclude that Applicant has failed to show that his lawyers performed deficiently or that he was prejudiced by any deficient performance in this regard. See Strickland, 466 U.S. at 687. Ground five is denied.
Regarding ground six, in which Applicant alleges that his trial lawyers' failure to request an accomplice witness instruction as to State's witness Veronica Cera deprived him of the effective assistance of counsel, we note that this claim (or something very close to it) was raised and rejected on direct appeal. See Valdez, No. AP-77,042, slip op. at 42 ("Appellant asserts that counsel performed deficiently in failing to request an accomplice-witness instruction regarding Cera …."). To the extent that ground six is identical to a claim raised on direct appeal and the habeas record does not supplement the appellate claim, ground six is denied on grounds of non-cognizability. See Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex. Crim. App. 2008). To the extent that ground six differs from (and the habeas record does supplement) Applicant's direct appellate claim, we agree with the habeas court that the record does not support Applicant's argument for prejudice. Cf. Valdez, No. AP-77,042, slip op. at 43-44. Either way, ground six is denied.
Regarding ground seven, in which Applicant alleges that his trial lawyers' failure to "investigate and discover evidence in mitigation of the death penalty" deprived him of the effective assistance of counsel in the punishment phase, see Wiggins v. Smith, 539 U.S. 510 (2003), we conclude that Applicant has not shown prejudice. Applicant primarily asserts that, when his trial lawyers were investigating his mitigation case, they were given (but failed to heed) credible indications that Applicant would benefit from an electroencephalogram (EEG) study, certain types of brain imaging, and a neurological work-up by a neurologist who specializes in seizures and epilepsy. Applicant also suggests that his trial lawyers should have called lay and expert witnesses at the punishment phase of his trial to: (a) establish that, in May 1997, Applicant was involved in a serious car crash, potentially inflicting a traumatic brain injury (TBI) on Applicant; and (b) explain and contextualize the behavioral consequences of that potential TBI.
Taking the habeas court's expert-witness credibility findings into careful consideration, we conclude that the existence and clinical significance of any brain abnormality revealed by Applicant's postconviction EEG and MRIs would have been credibly contested at trial. That being the case, even if trial counsel's mitigation investigation was constitutionally deficient (and we express no opinion on that issue), Applicant has not shown that a more thorough pretrial mitigation investigation would have yielded a reasonable probability of a different outcome. See Strickland, 466 U.S. at 694. Neither has Applicant shown that lay and expert witnesses concerning his May 1997 car crash would have yielded a reasonable probability of a different outcome. See id. Given the highly contestable evidence that Applicant has marshaled in support of his TBI-related sub-grounds, we cannot say that our confidence in the jury's punishment-phase verdict has been undermined. See id. ("A reasonable probability is a probability sufficient to undermine confidence in the outcome."). Based on our own independent review of the record, ground seven is denied.
Relief is denied.
IT IS SO ORDERED.