Ex Parte May

717 S.W.2d 84, 1986 Tex. Crim. App. LEXIS 824

• Court: Court of Criminal Appeals of Texas
• Decided: September 24, 1986
• Docket: 69420
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Applicant was convicted of capital murder, see V.T.C.A., Penal Code Sec. 19.-03(a)(3). Punishment was assessed at death. This Court, upon appeal, affirmed the judgment of the trial court. May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981). The United States Supreme Court vacated this Court’s judgment and remanded the cause “for further consideration in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).” May v. Texas, 454 U.S. 959, 102 S.Ct. 497, 70 L.Ed.2d 374 (1981). On April 30, 1982, before this Court considered applicant’s cause, former Governor Clements signed a proclamation purporting to grant the applicant a commutation of sentence from death to life imprisonment. Because of this fact, this Court found that error, if any, no longer existed, and affirmed the judgment of the trial court. May v. State, 632 S.W.2d 751, 752 (Tex.Cr.App.1982).

In his application for post-conviction writ of habeas corpus, see Article 11.07, V.A.C. C.P., applicant contends that the commutation by the Governor, as a member of the Executive Department, is a constitutional usurpation of judicial power and authority. Applicant claims that the Supreme Court’s disposition in his case, i.e. remanding to this Court for further consideration, left no valid death sentence for the Governor to commute to life imprisonment.

In Whan v. State, 485 S.W.2d 275 (Tex. Cr.App.1972), the defendant was convicted of murder with malice aforethought, and punishment was assessed at death. The United States Supreme Court ordered “that the judgment of the Court of Criminal Appeals of Texas, insofar as it imposes the death sentence, be reversed and the cause be remanded to the Court of Criminal Appeals of the State of Texas for further proceedings.” Prior to this Court’s disposition of the defendant’s case on remand, however, the Governor granted a commutation of the defendant’s sentence from death to life. This Court held that the proper disposition of such a case was to affirm the judgment of the trial court, since the Supreme Court reversed this Court’s affirmance of the trial court only insofar as the death penalty was concerned, and left the remaining portion of the defendant’s case for this Court to dispose with. 485 S.W.2d at 277. Since the Governor’s commutation only affected the punishment of the defendant’s case, this Court reasoned, then the judgment of the case remained intact. Id.

The instant cause was in a more appropriate posture for commutation than Whan. In Whan criticism was leveled at the majority opinion¹ for approving the action of the Governor in commuting Whan’s punishment “subsequent to the time the penalty had been expressly set aside by the mandate of the United States Supreme Court” leaving “no punishment to commute at this point in the proceedings.” Unlike Whan, punishment was not set aside in the instant cause by the United States Supreme Court’s mandate. The Supreme Court- vacated the judgment of this Court and “remanded to the Court of Criminal Appeals for further consideration in light of Adams v. Texas [supra].” Since the punishment assessed in the trial court was not vacated, the occasion for criticism of Whan is not present in the instant cause.

In light of the Governor’s action in commuting punishment to life, any Adams v. Texas, supra, problem no longer existed.

Applicant further contends as follows:

“The Applicant did not seek or request the commutation in the instant case; nor was the Applicant afforded counsel or any procedural safeguards when, acting upon patently erroneous information, the Texas Board of Pardons and Paroles recommended to the Governor that he commute the nonexistent death sentence of the Applicant to that of confinement in the Texas Department of Corrections for life. Due process of law, under both the

Federal and State Constitutions, as well as Article IV, Sec. 11 of the Texas Constitution and Article 48.01, V.A.C.C.P., require adherence to procedural safeguards assuring that commutations will be granted by the sovereign only when accurate, relevant information forms the basis for the Board of Pardons and Paroles recommendations to the Governor in that regard. Because of the receipt of inaccurate and false information, and the fact that the false and inaccurate information was relied upon by the Board of Pardons and Paroles in recommending to the Governor that he commute the nonexistent death sentence in the case at bar to life imprisonment, thereby preventing the defendant from a new trial on the merits, the Applicant prays that he be granted relief.”

Based on the evidence adduced at the habeas corpus hearing, the trial court concluded that the inclusion of mistaken information in a letter from the District Attorney to the Board of Pardons and Paroles was harmless. The trial court’s findings of fact on the issue and its conclusion of law are quoted in the footnote.² We find the record supports the trial court’s findings of fact, and that the court’s conclusion of law is correct.

Furthermore, that the commutation of sentence was imposed without the consent of the applicant or against his will, and at a proceeding at which he was not represented by counsel, does not render the commutation invalid. Witherspoon v. State, 486 S.W.2d 953 (Tex.Cr.App.1972); Ex parte Lefors, 303 S.W.2d 394 (Tex.Cr. App.1957).

Applicant also contends that the indictment is fundamentally defective. The indictment contains all of the constituent elements of the offense under the provisions of Section 19.03(a)(3) of the Penal Code. Applicant’s contention is without merit. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979).

Applicant also contends that the witness Arthur Smith committed perjury when he testified at applicant’s trial. The trial court found that no evidence of perjured testimony was presented by the applicant at the evidentiary hearing. The record supports the trial court’s finding. Applicant has failed to prove his factual allegation by a preponderance of the evidence. Ex parte Bates, 640 S.W.2d 894 (Tex.Cr.App.1982).

Applicant contends further that Arthur Smith’s recantation of his trial testimony requires that he be granted habeas corpus relief. The existence of newly discovered evidence relevant to the guilt of the applicant is not a ground for relief in a post-conviction writ of habeas corpus. Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983).

The relief prayed for is denied.

WHITE, J., concurs in the result.

1 . See Presiding Judge Onion’s dissenting opinion in Whan v. State, supra, at page 280.

2 . Findings of Fact:

"7. Mr. John B. Holmes, Jr., the Harris County District Attorney, in a letter to the Texas Board of Pardons and Paroles dated January 27, 1982, set forth as the reason for recommending commutation in the Applicant’s case the fact that the case would be difficult to retry due to the public repudiation of his trial testimony by the primary witness, Arthur Smith, and the fact that the *back-up hitman’, William Ray Miller, who testified for the State at trial, had been killed in a prison riot in Louisiana in 1981. The written commutation recommendation of the Board of pardons and Paroles and the memorandum from the Governor’s Assistant General Counsel recommending commutation recite these same reasons as grounds for their recommendation to the Governor that the Applicant’s sentence be commuted to life imprisonment.

"8. William Ray Miller, the “back-up hitman’ mentioned in the commutation recommendations, was apparently not killed in a prison riot in 1981. Official records from the Louisiana correctional institution reflect that William Ray Miller was paroled from the Louisiana prison system on July 12, 1982.

"9. At the time of the evidentiary hearing, neither District Attorney Holmes, who signed the letter to the Board, nor Assistant District Attorney Ray Speece, who authored the letter to the Board, could recall where or from whom they received the information concerning the ‘death’ of Miller, the “back-up hitman.' At the time the letter was written and signed, Mr. Holmes and Mr. Speece believed the information contained in the letter to be true and neither intentionally sought to promote a deliberate falsehood. The Court finds that the representations made in the letter from Mr. Holmes were made in good faith.

"10. Judge Ted Poe, currently the judge in the 228th District Court, the court of conviction, and a former prosecutor who assisted in the trial of the Applicant’s cause, wrote a letter to the Board of Pardons and Paroles recommending commutation of the Applicant’s sentence. At the time the letter was written, Judge Poe did not know of the supposed death of Miller. Thus, Judge Poe’s recommendation that the Applicant’s sentence be commuted was not based in any way on the supposed death of Miller, but instead was based on the difficulty of retrial due to the repudiation of testimony by the State’s primary witness.

“11. Ruben Torres, chairman of the Texas Board of Pardons and Paroles, testified at the evidentiary hearing that since the death penalty was reinstated in Texas, in each case where a majority of the trial officials have requested a commutation of sentence, the Board has recommended commutation to the Governor; that since the death penalty was reinstated, the Board has recommended 32 commutations to the Governor; and that of the 32 cases recommended for commutation by the Board, the Governor has granted commutation in each case. Mr. Torres further testified that the Board would have recommended commutation to the Governor even absent the extreme fact of a witness being killed; and that the difficulty of retrial due to the recantation of the testimony of a primary witness would have been a sufficient reason for the Board to recommend commutation to the Governor.

"12. The Court finds that the affidavit of Arthur Smith, attached as an exhibit to the Applicant’s application for writ of habeas corpus, is not credible. The Court finds untrue: the assertions in Smith’s affidavit that he was told by Detective Hoffmaster of the Houston Police Department and Bob Shults, an Assistant District Attorney at the time of trial, to testify falsely in order to convict the Applicant; that Detective Hoffmaster paid Smith to lie during the Applicant's trial; that Hoffmas-ter promised Smith he would not receive more than twenty (20) years, that Smith would make his first parole, and that Smith would be sent to the Walls unit or the Wynne farm; and that Mr. Shults told Smith he could not have a jury trial. When called to the stand by the Applicant at the evidentiary hearing, Arthur Smith refused to testify, asserting his Fifth Amendment privilege against self-incrimination.

“13. The Court finds the testimony of Bob Shults and Detective Hoffmaster to be credible. The Court finds that Mr. Shults and Detective Hoffmaster never told Arthur Smith what to testify to at the Applicant’s trial; never threatened Smith; did not promise Smith a lighter sentence if he would lie against the Applicant; did not promise Smith he would receive less than twenty (20) years; did not promise to send Smith to any specific prison unit; did not promise to send Smith money if he would lie at the Applicant’s trial; never promised Smith he would make his first parole; and did not tell Smith he could not have a jury trial.”

Conclusion of Law:

"6. This Court finds to be harmless the inclusion of mistaken information in the letter requesting commutation from the District Attorney’s Office and the subsequent commutation requests from the Board of Pardons and Paroles and the Governor’s Office. The testimony adduced at the evidentiary hearing indicates that a commutation request based solely on the difficulty of retrial due to the recantation of testimony by a primary witness would have been a sufficient ground for commutation. Thus, even totally disregarding the erroneous information concerning the “back-up hitman,’ the other factors contributing to the difficulty of retrial the Applicant’s case would have resulted in the granting of a commutation. Additionally, from the statistics quoted by the Chairman of the Board of Pardons and Paroles at the evidentiary hearing, it can be assumed that if a majority of the trial officials had requested commutation based solely on the general reason of difficulty of retrial, without specifying particular difficulties, the Board would have recommended commutation and the Governor would have granted commutation.”