Full opinion text
OPINION 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 findings are supported by the record, they should be accepted by this Court. 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. 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. The 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. In the videotaped statements, Acreman stated that Robinson threatened him into lying about the murder. Acreman repeated again and again on the videotaped statements that applicant had nothing to to with the murder and that applicant was “being railroaded.” At the hearing, Acreman recanted the statements on the videotapes. After much vacillation, Acreman admitted that Robinson was, in fact, at the school that day. Acreman admitted that the statements generated by the walk through were incorrect in that they failed to acknowledge that Acreman spoke to the victim shortly before her death. Acreman claimed that the conversation completely slipped his mind until the evidentiary hearing held' seven years after the murder. Acreman testified to a new found memory that he left the other janitors after speaking with the victim, despite his trial testimony that he, Sessum and Martinez were together when the girl was murdered. The third janitor attending the walk through was Sam Martinez. Prior to the walk through, Martinez gave a statement with a differing version of events of the day of the murder. Two days after the murder, Martinez gave a statement that the victim walked up a stairwell and headed towards the restroom after applicant had come up the stairs. After Styles’ walk through, Martinez changed his story to coincide with walk through version of events; that is, applicant approached the stairwell after the victim walked up the stairs and headed into the restroom. Martinez explained the inconsistencies between the two statements by stating that the walk through “helped me a whole lot.” At the evidentiary hearing, Martinez changed the story produced by the walk through by stating that the victim asked the janitors where the restroom was located and that Acreman spoke to the victim. Prior to the evidentiary hearing, Martinez, who gave two statements to the police and testified at both of applicant’s trials, never admitted this conversation took place. Martinez also changed the walk through version of events to which he testified at applicant’s trials by stating that Acreman spent approximately thirty minutes away from Martinez and Sessum shortly after the victim went into the restroom. Sessum, Acreman and Martinez signed written statements following the walk through, but Styles did not supervise the taking of the statements. Styles testified that he had no idea whether the statements were accurate, and could offer no explanation why Sessum’s statement was not signed until one month after the walk through. The trial court noted that the three written statements taken immediately following the walk through were consistent as to the critical sequence of events and the critical time frames. Henry Martin Peace, the janitor who discovered the victim, testified on behalf of the State at both of applicant’s trials. Peace circumstantially implicated applicant by stating that applicant repeatedly ordered Peace to search the loft where the girl’s body was found, until Peace ultimately discovered the victim. At the hearing Peace stated that Styles arrived at Peace’s home one night and forced Peace against the wall, choking Peace by twisting the chain Peace wore around his neck. Peace, a man the trial court noted as being under five foot tall, was taken to the Cleveland Police Station until 1:30 in the morning. En route, Styles threatened to “blow” Peace’s brains out. When Peace complained of Styles’ treatment to the District Attorney’s Office, Peace was told that the office would “take care of it.” Later the members of the District Attorney’s Office told Peace he was “hallucinating” that Styles had manhandled him. Peace testified that he continues to fear Styles. Peace was not allowed to leave the police station until he signed a written statement, despite his inability to read or write. Peace asked that a family member be permitted to read the statement to him before he signed it, but the police denied Peace’s request. On another occasion, Peace was told by a police officer that Peace was too small to have committed the sexual assault and murder, but that “the nigger” [referring to applicant] was big enough to have committed the crime; therefore, “the nigger was elected.” The trial court found that the murder investigation was so contrived that it created false testimony and that the investigation failed to follow any leads which did not comport with the preconceived, premature notion that applicant committed the murder. Styles admitted at the evidentiary hearing that before he arrived in Conroe and prior to interviewing any witnesses, applicant was his only suspect. Styles maintained this blind focus despite the fact that a Caucasian pubic hair, not belonging to the victim, was found near the victim’s vagina. The State resisted all efforts to obtain hair samples for comparison from the three janitors who saw the victim moments before the assault. When pressed for a reason why he did not want to obtain a hair sample from Acreman to compare with the Caucasian pubic hair found near the victim’s vagina, Styles testified at the evidentiary hearing, “Let’s say I didn’t do it and it wasn’t done, and why it wasn’t done, I don’t know.” Additionally, the State resisted all attempts to obtain blood samples from Acre-man, Martinez and Sessum despite finding blood inconsistent with applicant’s blood type on the victim’s shirt. Type A blood was found on the shirt, and although the victim had Type A blood, there were no lacerations to any part of her body, indicating that the blood may have originated from the perpetrator. Applicant has Type 0 blood. Not until years after the murder, when the Texas Attorney General’s Office began to investigate the validity of applicant’s conviction, did the State finally obtain samples of blood from Acreman and Robinson. Both men have Type A blood. Moreover, after the autopsy discovered the existence of semen in the victim’s vagina, the State failed to run an analysis of the sample to determine the blood type of the donor. Dr. Joseph Jachimczyck, now the Harris County Medical Examiner, testi: fied at the evidentiary hearing that his office did not test for the blood type of the donor, and that he did not know whether the samples were given to the Conroe Police Department. A detective from the Sex Crimes Unit of the Homicide Division of the Houston Police Department testified at the hearing that it was standard police procedure in 1980 to preserve the vaginal swabs taken in sexual assault investigations, and that there is no justification to discard the swabs because they can scientifically exclude suspects based on blood typing, Rh factor and other genetic characteristics of the donor of the spermatozoa. Likewise, the State failed to investigate a lead from Cheryl Bradford, a volleyball participant. Bradford testified at the evi-dentiary hearing that the day of the murder, she passed the victim in the hallway as Bradford returned from the restroom. Bradford thereafter proceeded to the gymnasium and began warming up for the game. Twenty to thirty minutes after last seeing the victim alive, Bradford observed two white men rushing through the gymnasium. She recalled seeing the men because there were no males attending the volleyball tournament. Her descriptions of the two men matched the height, weight and hair color characteristics of the pair now accused by Sessum as having committed the murder, Gary Acreman and James Dexter Robinson. After the victim’s body was discovered, Bradford told her volleyball coach about the men. Bradford and her coach contacted the Conroe Police Department with the lead, but the police “were not real interested in [her] information and were in a rush to get [her] off the phone.” The police never contacted Bradford for further information, nor did any government agency ever inform defense counsel of the incident. Eight years after the murder, Bradford saw a televised program questioning the validity of applicant’s conviction. She got “chills" when she saw a televised picture of James Dexter Robinson, although unable to identify Robinson as one of the men she saw rushing through the auditorium. She subsequently recontacted the authorities about witnessing the men. Trial counsel for applicant were never informed about this information. Styles also failed to investigate a lead given by Peace after Styles conducted the walk through with the other janitors. Peace informed Styles that the day of the murder Acreman re-entered the high school alone and stated that applicant was “having fun with a good looking girl.” Despite the prospect that either Acreman may have witnessed the offense or a related act, or that Acreman may have floated a false story about applicant, Styles never asked Acreman about the meaning of the statement. Regarding his failure to investigate the statement, Styles testified, “I might’ve should have asked [Acreman], but I didn’t.” He also stated that he did not investigate the statement because it was “hearsay.” II. Where the State’s investigative procedure is so improper, it may result in a denial of an accused’s rights to due process of law. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Dispensa v. Lynaugh, 847 F.2d 211, 218 (5th Cir.1988). In Foster, the Supreme Court held that where the State orchestrated an identification procedure “so unnecessarily suggestive and conducive to irreparable mistaken identification” of an accused, the State’s conduct may amount to a denial of due process, judged by the totality of the circumstances. Id., 394 U.S. at 442, 89 S.Ct. at 1128, citing and quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Although Foster involves impermissible State conduct in an identification procedure, the Due Process Clause of the Fourteenth Amendment is not limited to the State’s action in that narrow context. For example, due process is not satisfied where the State contrives a conviction “through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty.” Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) (State’s use of perjured testimony). Nor is due process’ satisfied where the State fails to correct unsolicited perjury, Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), nor where the State suppresses evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Likewise, where the State’s conviction is based in part upon the introduction of a coerced confession, a defendant’s right to due process is violated, Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961), and where the State conceals a material witness whose testimony is shown to create a reasonable doubt of guilt that did not otherwise exist, there is also a deprivation of due process. Hernandez v. Estelle, 674 F.2d 313 (5th Cir.1981). Although our review of the record supports the trial court’s finding that the State’s investigation was flawed, we must now determine whether these facts support the trial court’s conclusion of law that the investigation lead to a denial of applicant’s right to due process and fundamental fairness. We look to the “totality of the circumstances” to make that determination. Ex parte Adams, 768 S.W.2d at 293; Foster, 394 U.S. at 442, 89 S.Ct. at 1128. We note at the outset, as we did on direct appeal, that applicant’s conviction is based entirely on circumstantial evidence. Brandley, 691 S.W.2d at 701. State misconduct is more likely to. affect the outcome of the trial based upon circumstantial evidence than one in which there is direct evidence, untainted by State misconduct, linking a defendant to the crime. The State’s suppression of Bradford’s information that she saw a man meeting Acreman’s description near the scene of the crime shortly after the victim was attacked undermines Acreman’s now recanted testimony that he was in a different building with the other janitors at the time in question. At the very least, it establishes that men other than applicant were near the scene of the crime shortly after the victim was last seen alive. Given Bradford’s hearing testimony that she saw no men attending the volleyball tournament at the time in question, this information becomes more significant by establishing other suspects, if not impeaching Acreman’s testimony regarding his whereabouts. A review of applicant’s pleadings reflects that applicant, albeit inartfully, alleges that this evidence supports a due process claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 which prohibits State suppression of “evidence favorable to an accused ... where the evidence is material either to guilt or to the punishment, irrespective of the good faith or bad faith of the prosecution,” Id., at 87, 83 S.Ct. at 1196. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court held that the due process requirements addressed in Brady, supra, applied to the suppression of impeachment evidence, and where such evidence was suppressed, a new trial must be granted where the confidence in the outcome of the trial is undermined. Bagley, at 683, 105 S.Ct. at 3383. To require reversal pursuant to a Brady claim, however, the State’s suppression of evidence must be considered material. Evidence is considered material where there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, at 682, 105 S.Ct. at 3383 (1985). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court addressed the materiality requirement: It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Id., at 112-13, 96 S.Ct. at 2402 (footnote omitted). In Bagley, 473 U.S. at 683, 105 S.Ct. at 3384, the Supreme Court instructed appellate courts to make the materiality determination “in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense [been given access to the suppressed evidence].” Whether Bradford’s statements to the police are analyzed pursuant to applicant’s broader due process claim based upon the entire investigation, or regarding applicant’s more specific due process claim under Brady, we are compelled to look further and consider the totality of the circumstances of the trial. Additionally, applicant submits that the “walk through” of Acreman, Sessum and Martinez contributed to a due process violation by creating false testimony. The trial court found that the walk through served as a means of intimidating Sessum into following the story generated by the walk through, for Sessum was threatened with arrest when he attempted to inform the authorities about Acreman’s involvement in the murder. The walk through undoubtedly injected false testimony into applicant’s first trial, for Sessum admitted that he committed perjury at applicant’s first trial. However, Sessum did not testify at applicant’s second trial. Acreman and Martinez did testify at the second trial, adhering to the walk through story. Both Acreman and Martinez acknowledged at the eviden-tiary hearing that the walk through story is incomplete, in that Acreman did, in fact, speak with the victim shortly before she was murdered. The habeas judge found Martinez’s and Acreman’s explanations that they forgot Acreman’s conversation with the girl, until seven years after the murder, are unworthy of belief. Both men also recanted the walk through story and professed a new found memory at the evidentiary hearing by testifying that Acreman was not with Martinez and Sessum for a thirty minute interval after Acreman spoke with the victim. The harm resulting from the walk through story that Acreman was with the other janitors when the victim was abducted is underscored by this Court’s treatment of the evidence on direct appeal. We found the evidence sufficient to support applicant’s conviction holding that there were no reasonable hypotheses other than applicant’s guilt, based in part upon the fact that the whereabouts of Acreman, Sessum and Martinez were accounted for at the time of the murder. Brandley, 691 S.W.2d at 704. Additionally, Styles’ manhandling and threats to kill the diminutive Peace, the State’s star witness, taints the reliability of Peace’s trial testimony. The psychological pressure exerted on Peace to circumstantially implicate applicant would potentially undermine the fact finder’s confidence in the product of such coercion. The State’s refusal to obtain hair and blood samples from the three janitors who saw the victim enter the restroom creates problems of a different type. Despite evidence that a Caucasian hair, not belonging to the victim, was found on her, and despite the evidence that blood inconsistent with applicant’s blood type was found on the victim’s shirt, the State resisted efforts to obtain samples from Acreman, Martinez and Sessum. Because these pieces of evidence were lost in Montgomery County while the record was being prepared for direct appeal, no tests can now be performed on these items. Absent a showing of bad faith on the part of the police, failure to preserve potentially useful evidence does not, in and of itself, result in the denial of due process of law. Arizona v. Youngblood, — U.S. -, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). However, in the case at bar, the State’s apparent refusal to perform certain scientific tests on the physical evidence at hand resulted in a lack of direct evidence in this case. This lack of direct evidence buttresses applicant’s claim that the error resulting from the State’s other improper conduct affected the outcome of his trial. Although any of these incidences alone might not support applicant’s claim, there can be no doubt that the cumulative effect of the investigative procedure, judged by the totality of the circumstances, resulted in a deprivation of applicant’s right to due process of law by suppressing evidence favorable to the accused, and by creating false testimony and inherently unreliable testimony. Accordingly, applicant’s conviction must be reversed. Due process of law is the cornerstone of a civilized system of justice. Our society wins not only when the guilty are convicted but when criminal trials are fair; our system of justice suffers when an accused is treated unfairly. Brady, 378 U.S. at 87, 83 S.Ct. at 1197. The State’s investigative procedure produced a trial lacking the rudiments of fairness. The principles of due process, embodied within the United States Constitution, must not, indeed cannot, countenance such blatant unfairness. The violent end to Cheryl Ferguson’s young life is both senseless and tragic. The end of a life so full of promise is a loss not only to her loved-ones, but also to our society as a whole. Our outrage over her murder, however, cannot justify the subversion of justice that took place during the investigation, which ultimately affected the trial of her accused perpetrator. We therefore set aside applicant’s conviction, and order applicant released to the Sheriff of Montgomery County to answer the indictment upon which applicant was convicted. WHITE, J., concurs in the result. . In his dissenting opinion to this cause, the Presiding Judge disregards the overwhelming evidence supporting the trial court’s findings in an impassioned attempt to reject those findings. Instead of looking at the evidence in support of the findings, that opinion attempts to contradict them by citing snippets of grand jury and trial testimony, at times out of context and other times in a less than complete fashion, in addition to offering personal gratuitous observations. Of course, this is not, nor has it ever been, the appropriate standard of review of a trial court's findings. See, for example, Judge Duncan’s concurring opinion, infra, for a more detailed explanation of this problem. . Brenda Medina, the woman with whom Robinson lived at the time of the murder, testified at the evidentiary hearing that the day of the murder Robinson did not return home until after midnight. Robinson awakened Medina and stated that he had to leave the state because he killed a girl, but that he had hidden the girl’s body so well that no one would find her until he was out of town. Robinson left the state early that morning, leaving behind his blood stained tennis shoes. The record reflects that Medina first told this information to her attorney in 1986. Medina’s attorney informed the District Attorney’s Office of the extra judicial confession. When Medina’s attorney learned that the District Attorney’s Office failed to inform defense counsel of this information, he notified defense counsel about Robinson’s confession. . It would be futile to obtain samples for comparison today, for the exhibit containing the Caucasian hair became missing while the record was being prepared for direct appeal. . The blood samples finally obtained from Acre-man and Robinson cannot be compared with the blood found on the victim’s shirt because the blood stained shirt also became missing when the record was being prepared for direct appeal. Notwithstanding the Presiding Judge’s assertion to the contrary in his dissenting opinion, these facts regarding the bloody clothing are uncontradicted by the record and the parties in this cause. . Bradford’s statements undermine the State’s theory of the case that applicant was the only janitor whose presence was unaccounted for at the time of, and following, the murder. Additionally, this information conflicts with the now recanted trial testimony of Acreman, Martinez and Sessum that they were exclusively in each other’s company after the girl entered the restroom. . For example, where a defendant alleges a due process violation based upon the State’s failure to inform him of potentially exculpatory evidence, the “materiality” requirement focuses upon whether the suppressed evidence might have affected the outcome of the trial. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). See also U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). . The State urges that the District Attorney's Office was not aware of Bradford’s statements to the police. However, in determining a due process violation we have declined in the past to distinguish different agencies under the same government, focusing instead upon the prosecuting team, which includes both investigative and prosecutorial personnel. Ex parte Adams, 768 S.W.2d at 292, citing U.S. v. Antone, 603 F.2d 566, 569 (5th Cir.1979). Additionally, any suggestion by the Presiding Judge in his dissenting opinion that Bradford's testimony at the hearing is unworthy of belief or is immaterial because it is "unsubstantiated” simply begs the question. Ex parte Brandley, 781 S.W.2d at 904 (McCormick, P.J. dissenting). Moreover, to imply that her testimony is irrelevant because a police officer testified at trial that there were men at the tournament is factually misleading. Bradford's testimony regarding seeing no other men concerns the time frame in which the victim disappeared. The police officer's testimony relates to a time frame hours later. . Although acknowledging Peace’s repeated perjury on collateral issues, the dissenting opinion surmises that the investigative procedure "did not produce any unreliable testimony" from Peace. Ex parte Brandley, 781 S.W.2d 904 (Campbell, J. dissenting). The record contradicts this bold assertion. Peace’s hearing testimony conflicts with his trial testimony regarding Styles’ mistreatment. At trial, Peace testified as follows: Q. [Defense Counsel] Did Ranger Styles influence you in any way on your testimony in this case? A. [Peace] No, Sir. Nobody has. ****** Q. Wesley Styles — was he good to you? Treat you fair? A. He didn't mistreat me. No, Sir. Peace’s hearing testimony recounts abusive treatment which, according to Peace, was reported to the District Attorney’s Office. Notwithstanding the District Attorney's knowledge of Styles’ mistreatment of Peace, the State failed to correct Peace’s false testimony adduced at trial. This evidence alone arguably supports yet another due process violation: The State’s use of perjured testimony. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). See also Ex parte Adams, 768 S.W.2d 281. Moreover, Peace acknowledged at trial that the statement the police prepared for Peace, and signed by Peace despite his inability to read or write, is riddled with inconsistencies. He testified to five separate false statements in the document. Lastly, Peace also acknowledged committing perjury at applicant's first trial regarding Peace’s display of a pistol at the high school prior to the date of the murder. Simply put, the dissenting opinion’s implication that Peace’s statements have been consistent is simply not supported by the record. . We hold that the error attendant to this case would not prevent the readmission of evidence upon retrial, assuming, of course, that the procedural prerequisites to its admission are met.
DUNCAN, Judge, concurring. I join the majority opinion; however, I write separately only to comment briefly upon the dissenting opinions. In fiscal year 1987-1988 (September 1, 1987 to August 31, 1988), this Court denied or dismissed 2,259 post-conviction applications for writs of habeas corpus. See Texas Judicial System: 60th Annual Report (Office of Court Administration: Austin, 1988), p. 168. These sheer numbers, if nothing else, emphasize the commitment of this Court to respect the objective and, under certain circumstances, subjective findings made by the trial court in a post-conviction habeas corpus hearing. Ten months ago, in Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989), this Court unanimously quoted with approval the language of Ex parte Moore, 126 S.W.2d 27 (Tex.Cr.App.1939). In Moore the Court stated: Where the ruling of the trial judge depends upon the existence or non-existence of a certain fact and testimony pro and con is introduced thereon and the evidence is conflicting it becomes the duty of the trial judge to determine the issue, and unless it appears to this court that his finding was without support in the evidence, and that he had committed an error in his judgment thereon, we would not interfere with his findings thereon. Id., 126 S.W.2d at 28. The cases are absolutely legion, and I do not use that word loosely, to support the foregoing proposition. That is as it should be. This Court should not get into the position of having to make credibility judgments every time there is conflicting testimony. This ease is really very simple: this Court initially found that there was a legitimate constitutional issue raised regarding a claimed deprivation of due process and ordered a hearing to be conducted; the hearing was held; Judge Pickett made findings of fact and conclusions of law recommending relief be granted; the findings of fact are supported by the record and the conclusions of law are not erroneous. Therefore, they should be accepted. We must take the record as we find it. Accordingly, we cannot add facts, assume facts, disregard facts, or accord certain facts greater or lesser significance. That is simply not our function. There is no question that the abundance of material presented with this case makes our task extremely difficult. That is why the trial judge is accorded the deference to make findings of fact. All that we should do is determine whether they are supported by the record. That is all. I have read every page of the writ hearing and although I may not have made the same findings of fact or conclusions of law as Judge Pickett, I do find that they are supported by the record. Consequently, unless we are willing to overrule all of- the cases to the contrary or conjure up a way to deceptively distinguish them we actually have no choice but to accept the findings and conclusions that have support in the record. Judge Campbell, in his dissenting opinion, also takes issue with the specific ground upon which relief is granted and claims that it is actually newly discovered evidence “wrap[ped] ... in the more attractive cloak of due process ...” Dissenting Opinion, slip op. p. 898. To continue the metaphor: whether the issue is clothed or wrapped in due process is irrelevant. I agree that this Court should not be the repository of every complaint that can be made relative to a claim of newly discovered evidence. But, in the context of this case, when fundamental liberties have been deprived then the newly discovered evidence is the equivalent of a due process violation. And, Judge Campbell’s conclusion implicitly concedes that a due process right was implicated. He dismisses it on the basis that he would not have made the same findings as Judge Pickett. As I stated previously, I might not have either, but that is not the issue. Judge Pickett’s findings are supported by the record. Thus, they should be accepted. The majority opinion recognizes this. That is why I have joined the opinion. MILLER, J., joins.
McCORMICK, Presiding Judge, dissenting. I join Judge Campbell’s Dissenting Opinion and reiterate that even if every finding by the habeas court is taken as true, there is no legal precedent upon which the majority can grant the relief it does. The records before this Court of applicant’s two trials and two habeas hearings totally belie the habeas court’s findings of fact. The only “blind focus” which has occurred in the history of this cause comes today with an opinion that so manipulates the law and the facts as to do irreparable harm to the future of Article 11.07, V.A.C.C.P. I write merely to point out a few of the many glaring factual errors made in the majority opinion. Although the findings of the habeas court, if taken as factual, may raise the specter that another or others may have been involved with applicant in the commission of this murder, there is absolutely no evidence which remotely tends to exculpate applicant or to show that he is not guilty. In finding that applicant is entitled to habeas corpus relief in this case, the majority has relied extensively upon the habeas court’s findings of fact. The habeas judge has concluded, and the majority agrees, that the State has violated applicant’s due process rights because “the investigative procedure was so impermissibly suggestive that false testimony was created.” Although neither the habeas court nor the majority has cited relevant authority, both rest their conclusions on “the facts underpinning” the habeas court’s conclusions. Significant findings by the habeas court, however, either are not supported by the record, are clearly erroneous, or are the result of testimony taken out of context. Almost all findings by the habeas court judge that are utilized by the majority are inaccurate in some form. The majority begins its recitation of the facts relating to the investigation of the murder by stating that Texas Ranger Wesley Styles was called in to head the investigation and that he immediately arrested applicant. This is not supported by the record and is the first of many absolutely distorted and biased reporting of the record. The District Attorney of Montgomery County, James Keeshan, called Styles to aid in the prosecution after the Conroe Police Department had already developed evidence relating to the murder. Among the facts known to the Conroe Police and Styles before the arrest of applicant were: Cheryl Ferguson was a member of a girl’s volleyball team that had come to Conroe High School at around nine o’clock on Saturday morning, August 23, 1980, to participate in a tournament. For some reason or another, Cheryl had left the gym area where the other girls had begun to warm up for their matches. When Cheryl did not return the other girls began to search the school grounds. Written, sworn statements were taken from applicant and three other Conroe High School janitors (Sam Martinez, Gary Acreman and Henry Peace) before applicant’s arrest and before Styles’s involvement. These initial statements are all consistent regarding the following: On Saturday morning, August 23, 1980, four janitors along with applicant, their supervisor, were preparing the school for various activities. Applicant had directed the janitors to set up chairs in the school cafeteria. The janitors finished their jobs. While looking for applicant to see if anything else needed to be done, they saw a girl go into the restroom. After the girl entered the restroom, applicant arrived with toilet paper. One of the janitors told applicant that a girl was in the restroom. Applicant told the janitors to go across the street to the vocational building. The janitors did so and waited there for applicant to come open the doors. Applicant, however, never came over to the building. About forty-five minutes later, applicant called across the street to one of the janitors to come and get the keys to the doors. The janitors completed their tasks in the building and were told by applicant to go home. Peace remained to help applicant lock the cafeteria doors. While doing so, applicant and Peace ran into the volleyball players looking for Cheryl. Applicant decided to look for the girl. He and Peace found the door to the auditorium to be unlocked; they checked inside. Applicant told Peace to look in the balcony behind the stage area “because some of the kids would get behind the boards and hide.” (Applicant’s Statement.) Peace discovered Cheryl’s body behind a sheet of plywood. The murder occurred on August 23,1980. The District Attorney’s Office, requested Styles’s assistance in the investigation on August 28, 1980, and Styles began work on the case the next day. When Styles arrested applicant he was armed with information by the Conroe Police Department along with an arrest warrant supported by the following affidavit: “Affiant, an officer with the Conroe Police Department (CPD) investigated the above offense along with other CPD officers. The victim, a 16 year old white female was found naked and strangled in a loft area above the auditorium stage in the main building at the Conroe High School. She had been missing for about two hours when her body was found. The victim had been at the school for a short time to attend a volleyball tournament being held in a gym near the main building. CPD officers found her clothing two days later in a plastic bag identical to those used by school personnel. Affiant and other CPD officers interviewed and took statements from tournament participants and from all custodians on duty on the morning of August 23, 1980 when the crime occurred. Based on the location of the body, the disposal of the clothing and the fact that auditorium and other doors in the main building were normally locked on Saturday (as this was), it appeared that the offense was probably committed by an employee of the school. “Affiant has probable cause to believe and does believe that the offense was committed by Clarence Brandley, a black male, for the following reasons: “1. Brandley was arrested by CPD officers for committing an attempted rape and abduction on 3/7/79 according to CPD offense reports. “2. Said Brandley is presently on felony probation for possession of a prohibited weapon. “3. Said Brandley, according to four other custodians, was the only school employee in or around the main building who had keys to the auditorium, storerooms and other doors in the building at the time of the offense. “4. According to the other custodians, Brandley’s whereabouts are unaccounted for during a 45-minute period at about the same time as that of the victim’s disappearance. “5. A pubic hair found on the victim’s body has been determined by the Department of Public Safety Lab in Austin, Texas, to be that of a black male, and appears identical to pubic hairs removed from said Brandley’s person. “6. Said Brandley is the only custodian or employee who was on duty at the location who is a black male. “7. A Houston Police Department Polygraph Supervisor advised Captain Monty Koerner that said Brandley had failed a polygraph test administered to him on August 25, 1980, in connection with the offense.” The majority’s statement that Styles arrested applicant with the “preconceived, premature notion that applicant had committed the murder,” ignores that Styles had the written statements of essential witnesses before him and arrested applicant under judicial authority. Any implication made by the majority that Styles investigated the murder offense without resort to relevant information in an effort to convict applicant is not supported by the record and should be rejected. The majority opinion also attempts to discredit the walk-through that Styles conducted with three of the janitors. The majority writes that the walk-through “generated” stories. The majority therefore holds that because one of the janitors, John Sessums, is now implicating Gary Acreman nine years after the murder, this leads to the conclusion that the walk-through “created false testimony.” The majority is wrong. First, as Judge Campbell points out in his dissent, John Sessums did not testify at applicant’s trial. It is, therefore, impossible that anything he now asserts as being true created false testimony on his part at trial. It is outstanding that the majority is willing to place faith in Sessums’s writ hearing testimony when, even before the walk-through, Sessums gave the following sworn statement to police: “I came to the school about 8:00 A.M., I rode to work with Gary in his Datsun Pickup, orange and white color. We park in front of the vocational building. We walked over to the main building, the doors were all locked and we waited for Clarence. We waited about 10 or 15 minutes. Sammie came up after we got there and was also waiting. Clarence came down the sidewalk and opened the door. There was another subject Eckie a short stockey guy, he also came up about the time as we did. All five (5) of us then went to the cafeteria and Clarence showed us where to set up the tables and chairs. It took about a hour and a half to set up the chairs. When we finished we walked out in the hall to the front of the building. We waited 10 or 15 minutes. There were a couple of people standing in the hall around the end where the gym is. When Clarence came up a girl was coming up behind. We kidded him about watching out, there is a pretty girl coming up behind him. She had blond shoulder length hair, about 5’ tall, she had blue jeans and a pullover sweater on. Clarence told us what we had to do and where to go. The four (4) of us then went to the annex to set up chairs. Clarence said he had something to so and stayed behind. We set at the annex about five (5) minutes, then Eckie went back and got the key from Clarence. When he got back we set up the tables and chairs. We finished if and it was around 10:30 or 11:00 A.M. Clarence came over and told us it looked good and we could go home. That is when Gary and I left, I do not know when Clarence and the other two left.” [Sic throughout.] Nowhere, in this statement does Sessums say that he heard a girl scream “no” and “don’t”; nowhere in the statement is there any indication that another person other than the janitors may be involved; and nowhere in the statement is there any indication that Acreman is involved, yet these events, if true, would be highly significant. Regardless of how the walk-through was conducted, it would be impossible for it to have generated such blatant inconsistencies. Moreover, the majority fails to consider that none of the other janitors who gave written statements to the police prior to Styles’s involvement implicated Acreman, yet if Sessums’s story were true, the events that he now says happened would have taken place when all janitors — including applicant who did not participate in the walk-through — were together. It is surprising that the majority has failed in its rendition of the facts to include applicant’s testimony, but applicant, accompanied by his lawyer, testified during the grand jury proceedings as follows: “Q. Why were you going to put [toilet paper] into the boy’s restroom, had you already checked the other one? “A. No. I — there was a lady had already went up there — she took the paper up there. She came back and I was on my way back.... That’s when I met all of them. They were standing.... [Questions and Responses regarding the girl who took toilet paper into the restroom] “Q. How did you come to talk to her? “A. She was standing in the hallway when I asked the coach about [the toilet paper] and I asked her would she run up and check that one and then I left and went back up and this is when Ackerman, Sam, Henry Peace and John was all standing. I told them, “let’s go across the street” and I sent them over across the street and I said I’ll be right over.” When asked if he had seen any other person in the main building around the cafeteria, applicant responded that he saw a young man and lady. Applicant also testified that he saw no other black males in the building that day, no school personnel and no other custodian. Asked if he had seen anyone else, applicant testified, “Nobody else.” Thus, even applicant did not implicate Acreman or anyone else in either his affidavit to police or in his testimony before the grand jury. Moreover, and what the majority has conveniently ignored, applicant, himself, exculpates the other janitors at the school on the day of the murder. The following colloquy occurred during the grand jury testimony: “Q. You don’t believe any of the other custodians did it? “A. Not after the experience I’ve had with them. They don’t seem to be the type of person that would do it. “Q. Would they have had the opportunity to do something like that? “A. No. “Q. You didn’t know of an opportunity that they would have had to do it? “A. No, sir.” In addition to his grand jury testimony, applicant executed an affidavit on August 23, 1980, concerning the events that occurred on the day of the murder. The events as outlined by applicant fail to support even remotely Sessums’s account of the events. Therefore, if we accept the majority’s conclusions that the walk-through generated false testimony we must also accept that the other janitors, including applicant, gave false statements in their initial reports to the police and that applicant lied in the grand jury proceedings. It is far more likely that the passing of nine years is responsible for changes in Sessums’s account of the incidents at the school, not the investigative procedures utilized by Styles. Indeed, Ses-sums testified at a prior writ hearing on August 18, 1986. At that time the only significant change in his account of the events was that he saw Acreman talk to a girl as she entered the restroom. None of the events that he now claims to have happened are included in his testimony at this hearing. Again, the majority errs in accepting the habeas court’s findings of fact, such findings regarding John Sessums are clearly erroneous and should be rejected. The majority also claims that Acreman may have given false testimony due to the walk-through. The majority is willing to place its faith in a video taped interview of Acreman that was admitted into evidence at the writ hearing. In the taped interview, Acreman implicates another person, James Dexter Robinson, as an assailant. The majority opinion, however, fails to relate how that interview occurred, to wit: Richard Reyna, a private investigator for applicant, testified that before he began his interview he told Acreman that there “was a new eye-witness account that was putting him ... and James Robinson on the landing with the girl and that there had been trouble.” Further, Reyna told Acreman: “You don’t need to take the rap for anyone.... I fed him this ... I said the girl was being grabbed and she was yelling for help.... Then I told him that James Robinson had run upstairs from the water fountain. I said we know that.” At the writ hearing, Acreman recants what he told Reyna on the video tape and testifies that he was “scared into telling what was said.” Also at the writ hearing, the habeas court judge entered a finding that “[bjased upon Gary’s Acreman’s answers to questions and his countenance during the many hours that he was on the witness stand, this court finds that his testimony at the evidentiary hearing was incredible, untruthful and generally not worthy of belief.” When the majority relies upon the video taped interview of Acreman to suggest that false testimony was elicited at applicant’s trial, the majority relies upon unsubstantiated hearsay by a man called unworthy of belief by the habeas court judge and whose out-of-court statements are contrary to applicant’s grand jury testimony. That is, asked if he had seen anyone else at the school on the day of the murder, applicant testified, “Nobody else.” This is significant since Acreman places Robinson with the girl at the top of the stairs leading into the bathroom. It is un-refuted that this is at a time when applicant and the four other janitors are together. Again, if the Court accepts the habeas court’s findings this means that applicant perjured himself in the grand jury proceedings. The more appropriate response to the habeas court’s findings concerning Acreman’s out-of-court statements would be to reject them. They are clearly erroneous. The habeas court finds and the majority blindly accepts that another janitor, Sam Martinez, had changed his rendition of the facts due to the walk-through. Again the majority ignores the record. Martinez gave the following statement to police prior to the walk-through: “Went to work around 7:35 A.M. in cafeteria to put table and chairs in cafeteria. Finished in cafeteria sometime between hour of 9:00 A.M. and 9:30 A.M., not sure when. Next went to look for Clarence, found him coming up stairs with two rolls of paper. Then saw blonde-headed girl go to the girl’s restroom. She had on blue jeans, medium hair. Next we asked Clarence what to do, he told us to go across the street to the Vocational Building. We did, and then we waited about 30 minutes before he came out of the main building and called to the short man to come to get the key to the building. Then we set up chairs there, we finished this, then he came and told us that we were finished, which was about 11:00 A.M. or little after.” Admittedly, Martinez’s second statement, made after the walk-through is more thorough and includes a time reference that is not in the first statement but, as Judge Campbell has indicated, there are no significant discrepancies between the two statements. Moreover, the majority fails to understand that those facts that have been added are easily verifiable. That is, additional facts are added to Martinez’s second statement, but these facts for the most part relate to where Martinez was during the time that the event occurred. For example, in the first statement, Martinez relates that, “Next went to look for Clarence, found him coming up stairs with two rolls of paper.” In the second statement, this becomes: “Then Gary, John, and I came out of the cafeteria through the same door as we had entered, and walked on down the hallway of the Auditorium area to wait for Clarence to give us our next assignment. We waited in the hall just a short way from the stairs that lead up to the choir room. There were two restrooms at the top of the stairs.... Clarence came up the stairs from the gym and was carrying toilet tissue. He started on up the stairs toward the restroom....” Comparing the two statements it is obvious that the only significant difference between the two is that in the second various locations are added. These locations are easily verified by looking at the map of the school contained in the statement of facts from the trial. For the most part, this is true with the additional facts that have been added to the second statement. The majority’s reliance upon the habeas court’s findings regarding Martinez’s statements is wrong as these findings are, again, clearly erroneous. The majority next attacks the testimony of Henry Martin Peace. Peace testified for the State at both of applicant’s trials. Peace’s testimony implicated applicant because Peace consistently stated that applicant told him to check the loft area in the auditorium on three occasions during the search for Cheryl Ferguson. Ms. Ferguson’s body was eventually discovered by Peace in the loft area. The majority implies that Peace’s story was a result of Ranger Styles’s coercion of Peace. Again the majority has placed its reliance upon the habeas courts’ findings and again the majority’s reliance is misplaced. In recounting the evidence that Styles had forced Peace against a wall, choked him with the chain around his neck and threatened to blow his brains out, the majority ignores the fact that Styles had focused on Peace as a suspect and was not attempting to influence Peace’s testimony regarding applicant’s activities on the day of the murder. Peace’s testimony bears this out: “Q. [by Judge Pickett] Are you under any kind of fear from anyone or intimidation? “A. Well, the only person I’m not too sure about is Wesley Styles because he did come out to my house which I’m going to have to testify under oath, he did come out to my house, roughing up or standard police procedure, but he did get me by the shirt. I don’t know whether you call it shoving me, pushing me or however. But he did put me up against the wall and took everything out of my pocket. He kept telling me I killed the girl.” The record, however, is devoid of any attempt by applicant to link the mistreatment of Peace to any fabrication of Peace’s testimony regarding applicant. The majority seems to infer that applicant has standing to complain about Peace’s potential due process violation and thereby bootstrap himself into the same position as Peace. The majority does not cite one case supporting this proposition nor do they show in any manner whatsoever that Styles treatment of Peace influenced his trial testimony one way or the other. In addition, the majority attaches significance to Peace’s treatment by the District Attorney’s office when Peace complained of Styles’s activities. Peace testified that members of the District Attorney’s office told him he was “hallucinating” the incidents regarding Styles. The majority again fails to link the treatment of Peace to any falsified or tainted evidence that affected applicant in any manner whatsoever. Applicant’s implied argument would have this Court accord applicant standing to benefit from the alleged wrongdoing that Peace suffered and the majority opinion gives tacit approval to this new found judicial concept of standing by inference when discussing Peace’s assertion that he would have preferred one of his relatives read his statement back to him. Peace was not able to read without assistance. Peace testified: “Q. [By counsel for applicant] Did the police take a statement from you shortly after the murder? “A. Yes, sir, they did. “Q. And did they write up that statement? “A. They wrote something on a piece of paper you have. I have no idea what it was. “Q. Did you request any aid in the reading of the statement? “A. Yes, sir. I asked for my sister or brother-in-law to be able to be there so he could read it to me. He said it wasn’t necessary. “Q. Would you have, trusted your sister or brother-in-law to read it correctly to you? “A. Yes, sir. “Q. What were you told by the police when you requested your sister or brother-in-law to read the statement to you? “A. Well, they j