Ex Parte Brandley

781 S.W.2d 886, 1989 Tex. Crim. App. LEXIS 216, 1989 WL 149733
CourtCourt of Criminal Appeals of Texas
DecidedDecember 13, 1989
Docket70719
StatusPublished
Cited by126 cases

This text of 781 S.W.2d 886 (Ex Parte Brandley) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Brandley, 781 S.W.2d 886, 1989 Tex. Crim. App. LEXIS 216, 1989 WL 149733 (Tex. 1989).

Opinions

[887]*887OPINION

BERCHELMANN, Judge.

This is an application for writ of habeas corpus. Tex.Code Crim.Proc.Ann. art. 11.-07. Applicant was twice tried for the capital murder of Cheryl Ferguson. Applicant’s first trial ended in a mistrial when the jury was unable to reach a verdict. In his second trial, applicant was found guilty as indicted. On direct appeal, we affirmed applicant’s conviction holding, among other things, that the evidence was sufficient to support the jury’s verdict. Brandley v. State, 691 S.W.2d 699 (Tex.Cr.App.1985): While the record on direct appeal supports that holding, the evidence adduced pursuant to this application raises other constitutional issues irrelevant to the sufficiency question.

Applicant’s petition for writ of habeas corpus raises seven grounds, one of which alleges that the State’s investigative procedure violated his right to due process of law and a fundamentally fair trial. One of the facts underpinning that assertion demonstrates that the State failed to provide appellant’s counsel with potentially exculpatory information in the State’s possession that two men were witnessed near the scene of the crime shortly after the victim was last seen alive.

Because applicant alleged claims of constitutional dimension based upon controverted, previously unresolved facts which are material to his confinement, we ordered the trial court to hold a hearing pursuant to this application. See Tex.Code Crim.Proc.Ann. art. 11.07, Sec. 2. In Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989), less than a year ago this Court unanimously found that Adams’s application for writ of habeas corpus, alleging a due process violation based upon facts requiring an evi-dentiary hearing, was properly before us. This Court has long recognized the cognizi-bility of due process claims in original habeas corpus proceedings. Ex parte Bush, 166 Tex.Cr.R. 259, 313 S.W.2d 287 (1958).

The trial court held an extensive hearing pursuant to this application and entered findings of fact and conclusions of law favorable to applicant. Therein the judge presiding over the hearing concluded that applicant was denied a fair trial and due process of law. Commenting upon the testimony adduced at the hearing, the trial court stated:

The litany of events graphically described by the witnesses, some of it chilling and shocking, leads me to the conclusion the pervasive shadow of darkness has obscured the light of fundamental decency and human rights. I can only sadly state justice has been on trial here, but of more significance, injustice has been on trial.

Applicant alleges that the State’s pretrial investigative procedures were “so imper-missibly suggestive of applicant that it created false testimony calculated to manufacture circumstantial evidence against applicant in violation of his right to due process and a fundamentally fair trial.” The trial court found that the State failed to “conduct a proper investigation,” and that the investigation had a “blind focus” which ignored leads to evidence inconsistent with the “premature conclusion that [applicant] had committed the crime.” The trial court’s conclusions of law state that the investigative procedure was “so impermis-sibly suggestive that false testimony was created, thereby denying [applicant] of due process of law and a fundamentally fair trial.”

While this Court is not bound by the findings of a trial court in a habeas corpus proceeding, Ex parte Bates, 640 S.W.2d 894 (Tex.Cr.App.1982), where the trial court’s findings are supported by the record, they should be considered, if not accepted. Ex parte Adams, 768 S.W.2d at 288; Ex parte McCormick, 645 S.W.2d 801 (Tex.Cr.App.1983). In Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App.1977), we held that although this Court has the ultimate power to decide matters of fact in habeas proceedings, generally if the trial court’s [888]*888findings are supported by the record, they should be accepted by this Court.1

I.

Set forth below is a summary of the findings of fact, entered by the judge presiding over the habeas hearing, which are supported by the record.

Applicant was indicted, convicted and sentenced to death for the sexual assault and murder of Cheryl Ferguson. Ferguson’s death occurred on Saturday, August 23, 1980 during a girls’ volleyball tournament held at Conroe High School. The fall semester was scheduled to begin on Monday, August 31. The authorities announced to the public that a suspect would be arrested prior to the commencement of classes. Texas Ranger Wesley Styles was called in to head the investigation. Styles began his investigation on the evening of Thursday, August 28, three days before classes were scheduled to resume. The next day, prior to interviewing any witnesses, Styles arrested applicant, a janitor of the high school. On Saturday, August 30, Styles arranged for three other Conroe High School janitors, Gary Acreman, Sam Martinez and John Sessum, to meet at the high school. Styles did not interview them separately, but instead conducted a “walk through” wherein the janitors were walked through the sequence of events of the day of the murder, and were questioned in each others presence. Gary Acreman did most of the talking at the walk through.

John Sessum testified at applicant’s first trial. His testimony at trial was consistent with the story generated by the walk through, that is, that applicant approached the stairwell after the victim walked up the stairs and headed into the restroom. At the evidentiary hearing, however, Sessum admitted that he committed perjury at applicant’s first trial and lied in his statement to the authorities because he was in fear of both Acreman and Styles. He testified at the hearing that Acreman talked to the victim as she approached the stairwell. Acreman followed her up the stairs, talked to her at the top of the stairs, and then grabbed the victim. Acreman was accompanied by a former janitor of the high school, later identified as James Dexter Robinson.2 The victim screamed, “No” and “Don’t,” and cried for help. Contrary to his prior statements, Sessum testified that applicant did not arrive until five or ten minutes after the girl was accosted.

Sessum further testified that when Acre-man drove him home the day of the murder, Acreman warned him that if Sessum told anyone there would be “trouble” for Sessum. Acreman repeated his warning to Sessum prior to the “walk through.” When Sessum tried to tell Styles about Acreman, Styles threatened to arrest Ses-sum if Sessum did not cooperate with the walk through. Sessum testified that in 1987 he was assaulted by an unknown man who was inquiring about Sessum implicating Acreman in the death of the victim. [889]*889The trial court found Sessum’s testimony at the evidentiary hearing credible.

Gary Acreman testified at both of applicant’s trials and the evidentiary hearing. His testimony at trial was consistent with the story generated by the walk through; viz: the victim walked up the stairs and toward the restroom, followed shortly thereafter by applicant. At the hearing, applicant entered into evidence two videotaped statements made by Acreman in which Acreman proclaimed applicant’s innocence and stated that James Dexter Robinson followed the victim up the stairs, Acreman heard the girl yell, “No,” and Acreman saw Robinson grab the girl and drag her into the restroom as she screamed for help.

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Bluebook (online)
781 S.W.2d 886, 1989 Tex. Crim. App. LEXIS 216, 1989 WL 149733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-brandley-texcrimapp-1989.