Full opinion text
KELLER, Judge. OPINION This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Applicant was convicted of capital murder and sentenced to death. We affirmed his conviction. Fierro v. State, 706 S.W.2d 310 (Tex.Crim.App.1986). In his writ application, applicant contends that the State knowingly presented perjured testimony during a pretrial hearing on applicant’s motion to suppress his confession. Applicant claimed during the suppression hearing, and has since maintained, that his confession was coerced by the threat that his mother and stepfather were being held by the Juarez police. The El Paso police officer who took applicant’s confession, A1 Medrano, testified at the suppression hearing that he had no knowledge that applicant’s mother and stepfather were under arrest in Juarez and therefore could not have used that fact to coerce the confession. It was subsequently discovered that a supplemental offense report reflected that applicant’s parents were in the custody of the Juarez police. We accordingly abated applicant’s writ application and ordered the trial court to conduct a hearing and enter findings of fact and conclusions of law addressing applicant’s allegations and any other matters it deemed relevant to disposition of the case. Ex Parte Fierro, No. 71,899, slip op. (Tex.Crim.App. Oct. 12,1994) (unpublished). After considering live testimony of seventeen witnesses, letter rogatory testimony, and numerous exhibits, affidavits and pleadings, the trial court entered findings of fact as follows: 1) That at the time of eliciting the Defendant’s confession, Det. Medrano (now deceased) did have information that the Defendant’s mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to said Det. Medrano’s testimony at the pretrial suppression hearing. 2) That the District Attorney’s Office did not withhold this Supplemental Offense Report from the attorneys for the Defendant. 3) That Det. Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979. There was no evidence produced to show that such practices are still taking place. The trial court made the following conclusions of law: 1) That there is a strong likelihood that the Defendant’s confession was coerced by the actions of the Juarez police and by the knowledge and aeqiesence [sic] of those actions by Det. Medrano. 2) It is not the conclusion of this Court that the Defendant should be released from these charges, but that he should be retried by another jury who will then render a verdict based on all the evidence, both old and new that has been developed at these hearings. Applicant urges that we adopt the findings of the trial court and grant him relief based upon his claim that the State used perjured testimony. After reviewing the record, we find that the trial court’s factual findings are adequately supported. As a result of the trial court’s findings and the evidence in the record, we conclude that applicant’s due process rights were violated by Medrano’s perjured testimony. But, because we conclude that the error was harmless, we deny relief. Traditionally, on habeas corpus review involving federal constitutional error that is subject to a harmless error analysis, we have placed on the defendant the burden of proving, by a preponderance of the evidence, that the eiTor contributed to his conviction or punishment. Ex Parte Dutchover, 779 S.W.2d 76, 78 (Tex.Crim.App.1989). See also Ex Parte Crispen, 777 S.W.2d 103, 109 n. 6 (Tex.Crim.App.1989) (plurality opinion) (Clinton, J. concurring). Ex Parte Barber, 879 S.W.2d 889, 891-892 (plurality opinion) & 893 (Meyers, J. concurring) (Tex.Crim.App.1994), cert. denied, — U.S.-, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). We apparently made an exception in the case of “knowing use of perjured testimony” by holding that, when such is shown, the Rule 81(b)(2) harmless error standard applies. Adams, 768 S.W.2d at 292. Castellano, 863 S.W.2d at 485. In applying Rule 81(b)(2), we relied upon Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), which held that error in the admission of perjured testimony was governed by a “materiality” standard identical to the harmless error standard announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), upon which Rule 81(b)(2) was based. Adams, 768 S.W.2d at 292. But Napue and Bagley both involved direct rather than collateral attacks. The Supreme Court has now clarified that the Chapman standard need not apply to collateral review of federal constitutional trial errors. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). While some constitutional errors are not subject to a harmless error analysis, “they are the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to a harmless error analysis.” Id. at 579, 106 S.Ct. at 3106-07. An error is subject to a harmless error analysis unless it is “structural.” Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991). An error is “structural” only if it is the kind of error that affects the framework in which the trial takes place and defies analysis by harmless error standards. Id. at 309-310, 111 S.Ct. at 1264-65. The Supreme Court has recognized the following as examples of structural error: total deprivation of counsel at trial, a biased judge, the unlawful exclusion of members of the defendant’s race from a grand jury, denial of the right to self-representation at trial, and denial of the right to a public trial. Id. On the other hand, “trial” error is error which occurs during the presentation of evidence at trial, and may “be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless.” Id. at 307-308, 111 S.Ct. at 1263-64. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or punishment. The “knowing use of perjured testimony” is clearly error involving the presentation of evidence, and as such, carries all the hallmarks of trial error. The error is quite unlike the examples of structural error listed by the Supreme Court. Those examples defy quantitative comparison because the entire trial process is tainted by the constitutional violation. Not so with perjured testimony: ordinarily, there will also be non-perjured evidence, which would not carry the taint of the constitutional violation. Whether the perjured testimony harmed the defendant can be quantitatively assessed by examining the remaining evidence at trial and the effect of the perjured testimony upon that evidence. Moreover, the fact that Bagley contains a materiality standard is an indication that Bagley error is not structural. This conclusion is buttressed by the fact that the Supreme Court has held the materiality standard for the knowing use of perjured testimony to be equivalent to the Chapman harmless error standard. See Bagley, 473 U.S. at 679 n. 9, 105 S.Ct. at 3382 n. 9. Moreover, the Supreme Court has held that the Bagley standard may be legitimately characterized as either a “harmless error” standard or a “materiality” standard: “Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to a harmless error review, it may as easily be stated as a materiality standard.” Id. at 679-680, 105 S.Ct. at 3382. The Supreme Court made clear that, unlike error arising from admission of perjured testimony, error in the suppression of exculpatory evidence would be subject to a less stringent harmless error standard on direct appeal than that ordinarily accorded to federal constitutional trial errors. 473 U.S. at 678-681, 105 S.Ct. at 3381-83. Hence, the Supreme Court appears to have at least implicitly held that the knowing use of perjured testimony is the kind of error that is subject to a harmless error analysis. Because the materiality standard for perjured testimony is identical to the Chapman harmless error standard, a finding of materiality would obviate the need to conduct a harmless error analysis on direct appeal. The Supreme Court has not expressly addressed the issue of whether a separate harmless error standard applies on collateral review to the knowing use of perjured testimony. The Court has addressed the applicability of a separate harmless error standard to the suppression of exculpatory evidence. It rejected the standard in that context because the materiality standard for such error is already more lenient (to the State) than the federal habeas harmless error standard. Kyles v. Whitley, 514 U.S. -, - and -n. 9, 115 S.Ct. 1555, 1567 and 1567 n. 9, 131 L.Ed.2d 490, 507 and 507 n. 9 (1995). But, because the materiality standard for the knowing use of perjured testimony is the Chapman harmless error standard, the materiality standard is more stringent (on the State) than either the state or federal habeas harmless error standards. This leaves open the possibility of applying a separate harmless error standard on collateral review. In fact, in the wake of Brecht (holding Chapman to be the inappropriate harmless error standard for federal habeas), two federal circuits have expressly held that the federal habeas harmless error standard applies to error based upon the knowing use of perjured testimony when that error is raised on collateral review. Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1269, 134 L.Ed.2d 216 (1996). Robinson v. Arvonio, 27 F.3d 877, 884-886 (3rd Cir.1994), vacated for farther consideration in light of O’Neal v. McAninch, — U.S. -, 115 S.Ct. 1247, 131 L.Ed.2d 129 (1995). The Third Circuit discussed the distinction between structural error and trial error and held that the knowing use of perjured testimony was trial error. Robinson, 27 F.3d at 883-884. The First Circuit noted that the materiality standard for the knowing use of perjured testimony is “friendlier” to the defendant than the habeas harmless error standard, and therefore, both standards had to be satisfied: the materiality standard to establish the due process violation and the habeas standard to establish harm on collateral review. Gilday, 59 F.3d at 268. In accordance with the above discussion, we hold that the knowing use of perjured testimony is trial error, subject to the harmless error standard applicable on habeas corpus. Moreover, there is another compelling reason to apply a harmless error analysis to the present case. The perjured testimony here was not used as substantive evidence. Instead, the testimony in question related solely to the admissibility of a confession. The only harm that could possibly flow from the testimony is the admission into evidence of an inadmissible involuntary confession. The Supreme Court has clearly held that the improper admission of an involuntary confession is “trial” error, subject to a harmless error analysis. Fulminante, 499 U.S. at 306-312, 111 S.Ct. at 1262-1266. In fact, the Supreme Court characterized it as a “classic ‘trial error’ ” that “is markedly different” from the constitutional violations held to be structural. Id. at 309, 111 S.Ct. at 1264. If the admission of an involuntary confession is subject to a harmless error analysis, then how can error based upon the knowing use of perjured testimony, the only consequence of which may have been the admission of an involuntary confession, not be subject to a harmless error analysis? Obviously, if the improper admission of a confession is subject to harmless error analysis, then the knowing use of perjured testimony to procure the admission of that confession must likewise be subject to harmless error analysis. If the admission of the confession were in fact harmless, it would make no sense to grant relief merely because the admission of that confession was procured through perjured testimony in a pretrial hearing. Because the error in the present ease is trial error rather than structural error, application of the habeas harmless error standard is appropriate. Therefore, we hold that applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment. In addition to the confession, the State also utilized the testimony of Gerardo Olague, an eyewitness to the murder. While applicant’s confession alleged that Olague was an accomplice, there is no other evidence in the record to that effect. Thus, had the confession been excluded, there would have been no need to corroborate Olague’s testimony. Olague testified in great detail to witnessing applicant commit the murder. In the absence of applicant’s confession, there would be no evidence to contradict Olague’s statements of how the offense happened. Other than the accomplice allegation, applicant has shown no reason to doubt Olague’s testimony. The difference between the Chapman and the habeas harmless error standards is the difference between a possibility and a probability. See Gilday, 59 F.3d at 269. We agree that the applicant has met the Chapman standard. The error likely caused the admission into evidence of an involuntary confession, thus raising the possibility that the error contributed to the verdict. But, given Olague’s eye-witness testimony and the lack of any real reason to doubt his credibility, it is more probable than not that the outcome of applicant’s trial would have been the same absent the confession. Under these circumstances, the applicant has failed to carry his burden of proving harm by a preponderance of the evidence. Accordingly, the application for writ of ha-beas corpus is DENIED. . A letter rogatory is described as: A formal communication in writing, sent by a court in which an action is pending to a court or judge of a foreign country, requesting that the testimony of a witness resident within the jurisdiction of the latter court may be there formally taken under its direction and transmitted to the first court for use in the pending action. Black's Law Dictionary 471 (5th ed. 1983); see Fed.R.Civ.P. 28. . Due process prohibits prosecutors from presenting testimony that any member of the "prosecution team,” including both investigative and prosecutorial personnel, knows to be false. Ex Parte Adams, 768 S.W.2d 281, 292 (Tex.Crim.App.1989). Ex Parte Castellano, 863 S.W.2d 476, 485 (Tex.Crim.App.1993). . Applicant also contends that the State suppressed the supplemental offense report in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Assuming, without deciding, that applicant is correct, we note that the only result of such suppression is that the peijured testimony remained unrevealed. Because prosecutors have a duty to reveal the perjured testimony of members of the "prosecution team,” whether or not the prosecutor has knowledge of such perjury, this claim effectively merges into the perjured testimony claim and is properly analyzed under the standards pertaining to the latter. . Tex.R.App.P. 81(b)(2) states: . In the federal system, a constitutional error is harmful on collateral review only if it had a "substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. at 1722, 123 L.Ed.2d at 373. The State bears the burden of proving an error to be harmless. See O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). .Judge Maloney's dissenting opinion argues that footnote 9 of Brecht exempts some "especially egregious” trial errors from a harmless error analysis. But, our reading of the footnote merely indicates that the Court reserved that issue for another day: Our holding does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habe-as relief, even if it did not substantially influence the jury's verdict. [Citation to concurring opinion omitted]. We of course are not presented with such a situation here. 507 U.S. at 637 n.9, 113 S.Ct. at 1722 n. 9, 123 L.Ed.2d at 373 n. 9 (emphasis added). Moreover, even if Brecht had definitively held that some "especially egregious” errors were immune to a harmless error analysis, such a conclusion would not mean that the error in this case was such an error. Given the strong presumption that federal constitutional trial errors are subject to harmless error standards, a particular type of trial error should be held subject to a harmless error analysis in the absence of clear direction to the contrary from the Supreme Court. . The standard is the one applied in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) which places the burden on the defendant to show that “there is a reasonable probability that, [but for the error] ... the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (ellipse and bracketed material added). . Compare footnotes 5 and 7, infra. . The Third Circuit erroneously held that Brecht shifted the burden of proof upon the petitioner. See Robinson, 27 F.3d at 885. The Supreme Court's action in vacating the decision merely addresses the nature of the habeas standard. It does not undermine the Third Circuit's holding that the habeas standard (whatever it is) applies to the error involving the knowing use of perjured testimony. . Judge Clinton's dissenting opinion argues that a separate, habeas harmless error analysis should not apply because applicant "could not have raised” the claim, "even by due diligence, on direct appeal." However, contrary to Judge Clinton's opinion, the record shows that applicant had the opportunity to discover the basis of his claim in time to advance it at trial or in a motion for new trial. The perjured testimony occurred at a pretrial suppression hearing more than two months before trial. Because Medra-no's perjured testimony related to statements he made to applicant, applicant was obviously aware, and in fact contended, at the pretrial hearing, that Medrano’s testimony was untrue. Moreover, the supplemental offense report— which contained in its second paragraph the facts revealing Medrano’s perjury — was available at the suppression hearing. Testimony at the habeas hearing showed that defense counsel looked at the supplemental offense report during the suppression hearing and cross-examined a witness concerning the report. Evidence at the habeas hearing also supports the State's contention that the report was contained in the State's file before and during trial and that the State’s file was open to the defense for examination. The evidence also supports the conclusion that defense counsel did not read the report’s second paragraph. The habeas trial court apparently believed this evidence because it found that the State did not withhold the supplemental offense report. Hence, the facts supporting applicant’s claim were available in time to raise the issue on direct appeal. We express no opinion regarding whether an applicant may avail himself of the Chapman harmless error standard if he can demonstrate that he had no opportunity to raise the issue on direct appeal. In the present case, applicant has not demonstrated that he lacked such an opportunity. . As noted in footnote 5, the federal habeas standard differs from our formulation of the state standard. But, because we are not bound to apply federal harm standards to our post-conviction writs, we apply the state standard announced in Dutchover. Judge Clinton accuses us of impliedly adopting the Brecht ¡O'Neal federal habeas standard and then "distorting” it. He claims that we distort that standard by using the word “contribution’’ and by adopting the preponderance level of confidence. But in his own concurring opinion in Crispen, Judge Clinton stated: In a collateral attack, however, where the burden is upon the applicant to establish the illegality of his constraint, we might justifiably require an applicant to plead and prove that asserted constitutional error in fact more likely than not contributed to his conviction. 777 S.W.2d at 109 n. 6. (Emphasis added.) It is clear that we adopted this very portion of his opinion as the law of Texas in Dutchover. 779 S.W.2d at 78. In his dissent, Judge Baird claims that the Chapman standard should be used on habeas because Adams and Castellano, two habeas cases, used that standard. He argues that our opinion suggests that the Adams and Castellano Courts were unaware that the proceedings involved collateral attacks. This opinion makes no such sug-gestión. We do submit that the Courts in those cases were unaware of the significance of such proceedings on a harmless error analysis. Dutchover, which formulated the general harmless error test for state habeas, was decided eight months after Adams. Although decided later, Castellano does not make a single reference to Dutchover, or even to Brecht. The only habeas case that Castellano cites in support of a Chapman harmless error analysis is Adams. Neither Adams nor Castellano discussed the potential significance of a case's posture as a collateral attack on the materiality/harm determination. Moreover, the federal decisions applying a separate habeas harm standard to perjured testimony were decided after both Adams and Castellano. Judge Baird further claims that we “do not explain why or how” application of the Chapman standard is erroneous in the present context. He has apparently missed the point of our entire opinion. Our thesis is simple: the knowing use of perjured testimony is the type of error that is subject to a habeas harm standard, and the appropriate standard of harm on habeas review is the one announced in Dutchover rather than the Chapman standard. We think the supporting reasoning for this thesis is made clear enough in our opinion. . When questioned about the contents of Ola-gue’s written statement, Detective Medrano testified that Olague said that "they both dragged the body.” An examination of Olague’s statement shows that Medrano’s testimony in this respect was inaccurate. Given the nature of this testimony, we believe it does not raise the issue of accomplice status. . For the most part, we disagree with Judge Maloney’s characterization of the evidence regarding Olague’s credibility. For example, Judge Maloney claims there was some indication that a deal had been reached between Olague’s attorney and the prosecution. But, although defense counsel asked Olague whether he knew of such a deal, Olague said he did not, and the defense never elicited any evidence that there was a deal. More important, Olague was not even appointed an attorney until after he had told the police what occurred during the offense. Judge Maloney is also skeptical about Olague’s delay in going to the police. But, the mere fact that he came forward, when the police were not even aware of his existence, weighs in Olague’s favor. Moreover, Olague’s written statement explains that he was afraid applicant would kill him. In the end, he revealed what had happened even though he believed “it could mean [his] life if Cesar Fierro found out.’’ And finally, Judge Maloney finds a discrepancy in Olague's testimony about how long he had known applicant. Although there is testimony that could be described as ambiguous regarding when Olague met applicant, in our view, Olague's testimony is consistent in that regard — testimony about dealing with applicant for several months refers to the months before Olague went to the police, not the months before the murder. When Olague’s testimony is read in its entirety, and viewed in light of the rest of the evidence, his credibility is solid. . Judge Clinton argues that we erroneously impose an outcome-determinative test for harm. He supports his argument by claiming that neither the Chapman nor the Brecht tests are outcome-determinative, and he claims that the Supreme Court manifested its intent with regard to those tests by clearly formulating an outcome-determinative test in Strickland. Of course, Dutchover employs neither the Chapman nor the Brecht tests for harm. Even assuming some relationship to those federal harmless error tests (the word "contribution" is, after all, derived from Chapman), we reject Judge Clinton’s premise. Judge Clinton apparently views the harmless error standards as containing three components: (1) burden of proof, (2) nature of the harm, and (3) level of confidence that the harm will occur. In our view, Judge Clinton’s supposed prongs two and three are actually a single inquiry: the level of confidence to which a reviewing court believes the error affected the outcome. An evaluation of Supreme Court pronouncements concerning the Chapman and Brecht standards supports this conclusion. Several times, the Supreme Court has expressly referred to the Chapman standard as determining the effect of an error on the “outcome” of the case. Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988). Berkemer v. McCarty, 468 U.S. 420, 444-445, 104 S.Ct. 3138, 3152-53, 82 L.Ed.2d 317 (1984). This issue was addressed in detail in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986): Harmless error analysis addresses a different question: what is to be done about a trial error that, in theory, may have altered the basis on which the jmy decided the case, but in practice clearly had no effect on the outcome? This question applies not merely to Sandstrom violations, but to other errors that may have affected either the instructions the jury heard or the record it considered — including errors such as mistaken admission of evidence, or unconstitutional comment on a defendant’s silence, or erroneous limitation of a defendant’s cross-examination of a prosecution witness. All of these errors alter the terms under which the jury considered the defendant’s guilt or innocence, and therefore all theoretically impair the defendant’s interest in having a jury decide his case. The dissent’s argument — that the Sixth Amendment forbids a reviewing court to decide the impact of a trial error on the outcome [citation omitted] logically implies that all such errors are immune from harmless-error analysis. Yet this Court repeatedly has held to the contrary. Id. at 582 n. 11, 106 S.Ct. at 3108 n. 11. The Supreme Court has further referenced the Chapman standard as determining whether error is “harmless beyond a reasonable doubt.” Kyles, -U.S. at-, 115 S.Ct. at 1567, 131 L.Ed.2d at 507. Use of the general word "harmless” in connection with a level of confidence indicates that the nature of the harm is the same for various harmless error standards — whether the error affected the outcome — and the difference between the standards centers on the burden of proof and the level of confidence. Likewise, cases involving the Brecht standard show that it is also outcome-determinative. Brecht adopted, for collateral review, the harmless error standard announced in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Brecht, 507 U.S. at 621, 113 S.Ct. at 1713, 123 L.Ed.2d at 363. Kotteakos recognized that harmlessness is determined by taking into account the error’s likely effect on the outcome of the trial. Id-, at 764, 66 S.Ct. at 1247. In United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), the Supreme Court held that an error was harmless under Kotteakos because of the "overwhelming evidence of guilt.” Lane, 474 U.S. at 450, 106 S.Ct. at 732. The Court explained that the Kotteakos standard was not a sufficiency of the evidence inquiry but differed in the level of confidence needed to establish harm: [T]he harmless error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry.... But that does not mean that overwhelming evidence of guilt is irrelevant; the threshold of overwhelming evidence is far higher than mere sufficiency to uphold conviction. Lane, 474 U.S. at 450 n. 13, 106 S.Ct. at 732 n. 13. Recently, the Court reiterated that, under Kotteakos, "the error must have been prejudicial: It must have affected the outcome” of the proceedings. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508, 519 (1993). We agree with Judge Clinton that "the difference in language” between the various harmless error standards "stands for something.” The difference in language signifies different degrees of confidence. The phrase "substantially and injuriously affect and influence the jury's verdict" in Brecht simply reflects a greater degree of confidence in the effect on the outcome than the phrase "beyond a reasonable doubt did not contribute to conviction or punishment” found in Chapman. . All four dissenting opinions argue that the prosecutor's affidavit demonstrates harm by alleging that he would have dismissed the case unless he could have corroborated Olague’s testimony. While the prosecutor’s view of the evidence at trial is itself some evidence to consider in determining whether applicant has met his burden of proof on habeas corpus, it is not controlling. For the reasons stated in the body of this opinion, we believe that the evidence at trial reveals that Olague’s testimony was credible and did not need to be corroborated. Moreover, much of the physical evidence was consistent with Olague’s testimony and his statements to the police — corroborating Olague’s story. While such evidence may not be the kind of corroboration envisioned by the accomplice witness rule, as we have already noted, without the confession, there was no evidence that Olague was an accomplice. Ironically, this fact was made very clear by the prosecutor in his closing argument to the jury. Further, the source of mistrust for accomplice testimony is the possibility that the accomplice is attempting to shift blame for a crime in which he was involved. But, the defense never made such a claim. Instead, the defense theory in closing argument centered on whether Olague was present when the murder occurred. The defense argued that Olague was not present but made up the entire story. The consistency between Olague's testimony, his statements to the police, and the physical evidence was more than enough corroboration to establish Olague's credibility on that matter. Judge Clinton’s contention that we must look at the trial that occurred (i.e. there was evidence of accomplice status because the confession was admitted) appears to be an attempt to have one’s cake and eat it too. In evaluating harm. Judge Clinton wishes to consider parts of the confession benefitting the State but wants to ignore the parts that benefit appellant. We believe that approach would distort the harmless error inquiry- In analyzing harm, Judge Baird focuses on the motion to suppress and appeal stages of the case but neglects the trial stage. Obviously, an error occurring within a motion to suppress proceeding must have an adverse effect on the outcome of that proceeding in order for harm to exist. But, an exclusive focus on the motion to suppress proceeding does not go far enough. If the erroneous admission of the contested evidence (i.e. the confession) did not affect the outcome of the trial, then the error is harmless, despite the fact that it affected the outcome of the suppression proceeding, resulting in the admission of the evidence at trial. As for appeal, the error in the present case occurred during trial, not in connection with appeal. Judge Baird’s attempt to focus on the outcome of an appeal would collapse all habeas cases to direct appeal standards because the outcome of an appeal would necessarily turn on the application of a direct appeal standard of harm. Having decided that a different standard of harm applies to habeas corpus, we reject an indirect attempt to collapse those standards. Finally, Judge Baird criticizes our opinion for converting the materiality requirement into a pure harm analysis. But, even the other dissenting opinions recognize the overlap between materiality and harm concepts, and Supreme Court caselaw supports treating the concepts the same. Nevertheless, there is an analytical difference that our opinion continues to respect: materiality is a component of the due process violation, and hence a component of the error, while harm is a separate inquiry. Viewed from that perspective, the materiality standard for perjured testimony remains what it has always been — the Chapman test. But the harm standard on collateral review is the Dutchover test. When the materiality standard is the same as or more lenient (to the State) than the harm standard, then a harm analysis is of course redundant. Establishing the error would automatically establish harm, and so it is on direct appeal. But, in the case of perjured testimony, the materiality standard is less lenient (to the State) than the habeas harm standard. Thus, establishing error does not automatically establish harm on habeas corpus, and harm must be shown in accordance with Dutchover.
CLINTON, Judge, dissenting. Both the majority opinion and Judge Malo-ney in dissent agree that applicant in this cause has established that he has suffered a deprivation of due process. Thus the entire Court concludes that the State knowingly used false testimony in this cause. As I understand it, the majority further concludes that applicant has established the materiality of the false testimony; that is to say, the record admits of a “reasonable likelihood that the false' testimony could have affected the judgment of the jury.” United States v. Bagley, 473 U.S. 667, 678-79, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481, 492 (1985), quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 349-50 (1976). Nevertheless, in the majority’s scheme of things, applicant still cannot prevail. The reason is that applicant has failed to meet the standard of harmfulness announced by the United States Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). But we have never adopted such a standard for harm in post-conviction habeas corpus in Texas, and, indeed, the majority only implicitly adopts it today. At least in the context of the particular error presented here, I believe it is a mistake to apply the Brecht test. But even if I believed that we should adopt that harm test in Texas, I could not agree with the majority today that applicant has failed to satisfy it. I. I should preface my remarks with a statement about post-conviction habeas cognizability. I presume the majority considers applicant’s claim cognizable simply by virtue of the fact that it is brought under the auspices of due process. And it is indeed the law in Texas that practically any federal constitutional claim is cognizable in an Article 11.07 application for post-conviction writ of habeas corpus. Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989). I would not have it that way. Over the last half dozen years I have advocated reducing habeas eognizability of federal constitutional claims to those so “exceptional,” “so fundamental to the fair operation of the system as to be 1) immune from procedural default, 2) not subject to a harm analysis, and 3) fully retroactive in application. [Ex parte Goodman, 816 S.W.2d 383, 388 (Tex.Cr.App.1991) (Clinton, J., concurring)] I would also adopt a doctrine of excuses, entertaining any federal constitutional claim recognized as of the time of trial but for which a record could not have been made, despite due diligence of the accused, in time to preserve the error for direct appeal. [Ex parte Dutchover, 779 S.W.2d 76, 79 (Tex.Cr.App.1989) ] (Clinton, J., concurring; Ex parte Goodman, supra, at 387-88.” Ex parte Sadberry, 864 S.W.2d 541, 545 (Tex. Cr.App.1993) (Clinton, J., dissenting). The Supreme Court has not clearly indicated whether the knowing use of perjured testimony constitutes a violation of due process absent a showing of “materiality”/harm. See n. 2, post. Thus, I am not sure that such a claim would fit my definition of “exceptional” for purposes of my scheme of cognizability of federal constitutional claims. I am confident, however, that applicant’s claim would meet my doctrine of excuses, for it appears he was in no position to raise the due process claim here in time to preserve it for appeal. Thus I conclude that it is cognizable not only under the Court’s criteria for eognizability in Ex parte Banks, supra, but under my own view of habeas eognizability as well. The majority apparently agrees the claim is cognizable, but turns applicant away for a different reason. The majority concedes that applicant can show “materiality”/harm, at least under the standard for harm ordinarily applicable to federal constitutional errors on direct appeal, viz: Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, because he cannot meet the test for harm in the context of federal habeas review of state convictions, as announced in Brecht v. Abrahamson, supra, applicant cannot prevail. It is to this proposition that I turn first. II. In order to establish a violation of due process on direct appeal, an appellant must show that the prosecution knowingly used false testimony at his trial. If that is so, and if the testimony was “material,” which is to say, “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury[,]” United States v. Agurs, supra, then an appellant would be entitled to a new trial. From the caselaw in the Supreme Court it is not entirely certain whether this “materiality” requirement is part of the due process claim itself, or is just another way of saying that knowing use of perjured testimony is subject to the constitutional harmless error analysis of Chapman v. California, supra. See United States v. Bagley, 473 U.S. at 679-80, 105 S.Ct. at 3382, 87 L.Ed.2d at 492. In any event, the Supreme Court has commented that the “reasonable likelihood that the false testimony could have affected the judgment of the jury” .test is functionally equivalent to the Chapman test for harmless error. Id., n. 9. I take this to mean that if from its review of the record the appellate court cannot say that the false testimony did not contribute to the conviction or punishment, it is obliged to reverse the judgment. That is on direct appeal. What we have before us today is the same kind of claim raised in a post-conviction application for writ of habeas corpus. The same rules do not necessarily apply.' For example, we have said that in the context of state post-conviction habeas corpus, for any federal constitutional claim that is subject to a Chapman harm analysis, the applicant has the burden to establish harm, just as he has the burden to establish every other fact which if true would entitle him to' relief. See Ex parte Dutchover, supra at 77-78; Ex parte Barber, supra at 891-92. Thus we place the burden of proof as to harm on the applicant. The federal courts reviewing state convictions in federal applications for habeas corpus place the burden as to harm differently. In O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), the Supreme Court declared that when a federal habeas court has a grave doubt whether constitutional error in a state prosecution was harmful, it should err on the side of the applicant and grant habeas relief. Although the Supreme Court expressly eschewed the terminology of burden-of-proof, the rule of default that it announced in McAninch nevertheless operates in essentially the same way that a burden of proof does: it tells the court which party wins should it find itself in doubt as to the outcome. Thus, in McAninch the Supreme Court effectively placed the burden on the State to prove harmlessness in federal habeas corpus. But while the burden of proof on harm remains the same for federal habeas review of state convictions as it is on direct appeal, the standard for harm does not. As Judge Meyers noted in Ex parte Barber, supra at 893, the standard for harm in federal habeas review of federal constitutional errors in state prosecutions has been relaxed, in Brecht v. Abrahamson. After Brecht it is no longer appropriate for federal courts to grant habeas relief from state convictions simply because they cannot say that federal constitutional error did not contribute to the conviction or punishment, as under the Chapman test for harmless error applicable on direct appeal. Instead, a state conviction need only be overturned on federal habeas corpus if the federal court finds (or, after McAninch, has a grave doubt whether) the federal constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, supra, 507 U.S. at 637, 113 S.Ct. at 1722, 123 L.Ed.2d at 373. The majority now incorporates the Brecht standard for harm in federal habeas corpus review into our own state post-conviction ha-beas corpus jurisprudence. The majority does not justify this incorporation, or even acknowledge in a straightforward way that that is what it has done. In my view the majority errs in three significant respects. First, the majority errs to adopt the Brecht standard at all, at least for pleasuring harmfulness of the kind of constitutional error involved in this cause. Second, it appears to me that the majority has, in any event, misconstrued the Brecht standard. Finally, even if the majority does properly construe Brecht, it misapplies its own construction to deny applicant relief in this cause. I next develop these arguments seriatim. III. A. There are no compelling reasons for this Court to mimic the Brecht standard for harm, at least not for the kind of error we all agree occurred in this cause. The Supreme Court’s justifications for adopting a less onerous standard of harmlessness in the federal habeas context are more than passing familiar by now. As the Court observed in Brecht: “The reason most frequently advanced in our cases for distinguishing between direct and collateral review [of state prosecutions] is the State’s interest in the finality of convictions that have survived direct review within the state court system. * * * We have also spoken of comity and federalism.” 507 U.S. at 634, 113 S.Ct. at 1720, 123 L.Ed.2d at 371 (citations omitted). But of course, principles of “comity and federalism” cannot by themselves possibly justify this Court preferring the Brecht test for harmlessness over that of Chapman for purposes of state habeas corpus. This Court has none to defer to but itself. Therefore, if any part of the Supreme Court’s rationale could serve to justify our adoption of Brecht, it would have to be the State’s interest in the finality of a conviction, once it has been affirmed on direct appeal. And indeed, that consideration is weighty enough to convince me that as a general rale this Court should not even recognize as cognizable federal constitutional claims that are not “exceptional.” See Ex parte Dutchover, supra at 79 (Clinton, J., concurring); Ex parte Sadberry, supra at 545 (Clinton, J., dissenting). But I do not believe the instant claim is cognizable because it is “exceptional” in the sense that I spoke of in Dutchover and Sad-berry. Instead, I believe it is cognizable under the doctrine of excuses; because it is a federal constitutional claim that applicant could not have raised, even by due diligence, on direct appeal. It seems to me that principles of comity and federalism dictate that if a federal constitutional claim cannot, for reasons beyond the applicant’s control, be raised any earlier than in a collateral attack in the state forum, the state should address it at that time, not leave it for resolution by a federal habeas court. For the same reasons that I believe such a claim ought to be cognizable on state post-conviction habeas corpus, I also believe that principles of finality should not lead us to apply a less onerous test for harmlessness in the state habeas forum. An applicant who, in spite of all, has been unable to raise a federal constitutional claim on direct appeal, has had no opportunity to reap the benefit of the more favorable standard for constitutional harm in Chapman. If we are willing, as I am, to reach such a claim of federal constitutional error for the first time on collateral attack, we ought also to be willing to afford the applicant the full panoply of constitutional protections. This ought to include the right to a new trial as long as he can show (because the burden is on him in state post-conviction habeas corpus) that the federal constitutional error contributed to his conviction. The State’s otherwise compelling interest in finality of convictions should give way in this context to the fact that the applicant has.been, through no fault of his own, unable to litigate the claim at any earlier opportunity. As far as I can see, there is no justification for requiring him to satisfy the tougher Brecht standard to show that the error “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637, 113 S.Ct. at 1722, 123 L.Ed.2d at 373. The majority errs to require it anyway. B. On direct appeal, the burden is on the State to prove constitutional error is harmless. Because in state post-conviction habeas the burden is on the applicant to show harm, we must articulate the Chapman standard for harm in a slightly different way. On direct appeal the State satisfies its burden if it can show beyond a reasonable doubt that the constitutional error did not contribute to conviction. This means, essentially, that if there is any reasonable possibility the error did contribute to the conviction, the judgment must be reversed. See United States v. Bagley, supra, 473 U.S. at 679, n. 9, 105 S.Ct. at 3382, n. 9, 87 L.Ed.2d at 492, n. 9. Thus it makes sense to say, applying the Chapman standard for harm in state post-conviction habeas corpus, where the burden is on the applicant, that he is entitled to a new trial if the record admits of a reasonable possibility that the constitutional error contributed to his conviction. Even the majority concedes that applicant can satisfy this standard of harm in this cause. Op. at 375-376. Having uncritically accepted Brecht into our habeas jurisprudence, however, the majority denies relief. But when it comes to apply the Brecht test in the state post-conviction habeas context, the majority does a strange thing. The majority does not transpose the Brecht standard into the key of state post-conviction habeas corpus in the way that one would expect. It seems to me that what the majority should be asking itself, consistent with the standard in Brecht, but accounting for the fact that applicant has the burden in state post-conviction habeas, is this: Has applicant shown a reasonable possibility that the constitutional error in this cause “had substantial and injurious effect or influence in determining the jury’s verdict”? 507 U.S. at 637, 113 S.Ct. at 1722, 123 L.Ed.2d at 373. One would expect this transposition of the Brecht standard because it raises the standard by which an applicant must show harm for state post-conviction habeas purposes in exactly the same proportion that Brecht reduces the standard by which the State must show an absence of harm in a federal habeas application. But the majority asks itself a different question altogether. The majority asks whether applicant can show by a preponderance — that is to say, whether it is more likely than not — that the constitutional error contributed to the verdict. It seems to me that framing the question this way distorts the Brecht test in two significant ways. First, and most obviously, the majority does not really utilize the Brecht standard (“substantial and injurious effect or influence on the jury’s verdict”) at all, but reverts to the supposedly-abandoned standard of Chapman (“contribute to the conviction”). Because I believe we should be applying the Chapman standard in any event, my objection to this first distortion is, of course, purely academic. It is the second distortion that makes all the difference to the majority in this cause. The second way in which the majority distorts the Brecht standard is to require the applicant to prove harm to a level of confidence that Brecht itself does not call for, viz: a preponderance. Rather than reverse upon a showing that there is a reasonable possibility of harm (by whatever standard, “contribution” or “substantial and injurious effect or influence”), the majority requires the applicant to show that the constitutional error more likely than not harmed him. The majority adopts this preponderance level of confidence because it perceives that the difference between the Chapman standard and the Brecht standard is “the difference between a possibility and a probability.” Op. at 376. This notion the majority borrows from an opinion of the First Circuit Court of Appeals. Gilday v. Callahan, 59 F.3d 257, at 269 (C.A.1 1995). For its part, the First Circuit derives the notion from a passage in the Supreme Court’s opinion in O’Neal v. McAninch, — U.S. at -, 115 S.Ct. at 994, 130 L.Ed.2d at 951-52. But the passage in O’Neal does not speak to the question by what level of confidence harm must be proved or disproved in order to justify ha-beas relief. It addresses only the issue of which party bears the loss if the record is insufficient to resolve the question of harm, by whatever level of confidence (the Supreme Court simply did not say). Thus, both the First Circuit and the majority today are mistaken. O’Neal does not support the proposition that the difference between the standards in Chapman and Brecht is “the difference between a possibility and a probability.” The only real difference between the two is that Chapman merely asks whether error “contributed,” while under Brecht the federal habeas court must be able to say the error “substantially and injuriously affected or influenced the jury’s verdict” before it can reverse a state conviction. The issue in this cause — a post-conviction application for writ of habeas corpus in state court, not federal — ought to be whether the record admits of a reasonable possibility the State’s knowing use of false testimony contributed to applicant’s conviction. We are all in agreement that it does. Therefore applicant is entitled to the relief he seeks. C. Finally, even if I could agree that the question is whether applicant has shown more likely than not that the error contributed to his conviction (or, for that matter, that it more likely than not “substantially and injuriously affected or influenced the jury’s verdict”), I would grant him relief. But for the false testimony in this cause, applicant’s confession would in all likelihood have been suppressed. Instead it was admitted. I do not understand how the majority could conclude that applicant’s confession did not more likely than not “substantially and injuriously affect and influence the jury’s verdict” in this cause, much less that it did not more likely than not at least “contribute.” The majority ultimately finds it “more probable than not that the outcome of applicant’s trial would have been the same absent [his] confession.” Op. at 376. This is an erroneous application of both the Chapman and the Brecht standard for harm, at least as I understand them. For neither Chapman nor Brecht adduced a test for measuring the harm vel non of constitutional error that is outcome-determinative. • To say that error “contributed to,” or even that it “substantially and injuriously affected or influenced” a jury’s verdict is not at all the same as saying it was a sine qua non of the conviction. Whether or not the outcome of trial would have been the same is not the test under any standard for measuring harmfulness of federal constitutional error that the Supreme Court has announced. When the Supreme Court does want to announce a standard for harm/materiality that is outcome-determinative, it has no trouble making that intention clear. Accordingly, in Strickland v. Washington, 466 U.S. 668, at 694, 104 S.Ct. 2052, at 2068, 80 L.Ed.2d 674, at 698 (1984), in defining the prejudice prong of the test for Sixth Amendment ineffective assistance of counsel, and in United States v. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494, when defining “materiality” of Brady-type error (other than the knowing use of perjured testimony), the Supreme Court unmistakably constructed a standard that is outcome-determinative, viz: whether there is a “reasonable probability that ... the result of the proceeding would have been different.” Neither the Chapman nor the Brecht standard is phrased this way, and surely the difference in language stands for something. My conclusion is bolstered by an observation the Supreme Court made in Kyles v. Whitley, 514 U.S.-, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). There- the Court was considering, inter alia, whether a finding of ordinary Brady error in a federal writ, which includes a finding that there is a “reasonable probability that ... the result of the proceeding would have been different,” calls for a Brecht analysis for harm as a predicate to reversal. The Supreme Court held a Brecht analysis unnecessary because “the harm to the defendant [must be] greater” to justify reversal under the standard for harm/materiality in Strickland /Bagley on direct appeal than is required under the Brecht standard for reversal on federal habeas corpus. Kyles, supra, — U.S. at-, 115 S.Ct. at 1567, 131 L.Ed.2d at 507. The Court did not say that the likelihood of harm must be greater, but that the harm itself must be. This suggests to me that the difference is not one of levels of confidence; instead it suggests that the harm recognized in Strickland /Bagley is of a kind that has a bearing on the outcome of the case, whereas the harm under Brecht is qualitatively something less than that. We effectuate this distinction if we construe Chapman and Brecht to require, not a showing that the error was a sine qua non of the jury’s verdict, but only that it facilitated that verdict in some substantial way. In other words, the error “contributed,” “affected,” or “influenced” the verdict, but was not necessary to the verdict. By this understanding I can only conclude that admission of applicant’s confession at his trial not only “contributed to,” but indeed, “substantially affected or influenced” the jury’s verdict, even to a level of confidence of more likely than not. The Supreme Court has recognized that “an involuntary confession may have a more dramatic effect on the course of a trial than do other trial errors— in particular cases it may be devastating to a defendant[.]” Arizona v. Fulminante, 499 U.S. 279, at 312, 111 S.Ct. 1246, at 1266, 113 L.Ed.2d 302, at 333 (1991). It is indeed hard to imagine other evidence so overwhelming that a confession from the defendant’s own mouth would not nevertheless “substantially affect or influence” the jury’s verdict. The majority is only able to find harmlessness (even under its distorted Brecht standard) by envisioning a hypothetical record in which the applicant’s confession was not admitted. Without the confession, the majority reasons, the only eyewitness to the offense is not shown to be an accomplice, and the jury would have no reason to doubt his veracity. But this method of harm analysis does not measure the harmfulness of the constitutional error upon the trial that actually occurred. At applicant’s real trial, the eyewitness was an accomplice, whose veracity was intrinsically suspect. Under those circumstances it is impossible to believe anything but that applicant’s own confession substantially influenced the jury — even if it might have reached the same verdict eventually anyway. The prosecutor must have thought at least as much, for he testified he would not have proceeded with the prosecution had the confession been suppressed unless he could have corroborated the accomplice — even though, according to the majority, such corroboration would have been unnecessary to the sufficiency of the evidence. The majority errs to deny applicant relief in this cause even under its own distorted version of the federal habeas corpus standard for determining harm. IV. We all agree applicant was deprived of due process of law at his first trial for capital murder. Nevertheless the majority denies him another trial because, for reasons beyond his control, he was only able to raise his due process contention for the first time in post-conviction habeas corpus. I would apply the Chapman standard for harm and hold that applicant has met his burden to show a reasonable possibility that the error contributed to his conviction. If I believed that Brecht announced an appropriate standard for harm in this cause, I would hold applicant satisfied that test as well. Even if I thought the majority was right to apply its bastardized Brecht standard, I would hold applicant has met that too. Because it is apparent that under no circumstances will the majority grant relief in this cause, I dissent. . Judge Meyers has suggested that we adopt the Brecht standard for harm in state post-conviction habeas corpus. Ex parte Barber, 879 S.W.2d 889, 893 (Tex.Cr.App.1994) (Meyers, J., concurring). So far the Court has not applied itself to the question. . It is for this reason that I find it difficult to say whether the knowing use of perjured testimony would fit my definition of an "exceptional” federal constitutional claim. See text, ante. . Thus, I agree with the majority that in state post-conviction habeas review the applicant has the burden to show harm, by whatever standard. Op. at 371-372. The question remains what the standard for harm in state habeas should be. The majority implicitly and uncritically accepts the Brecht standard. . If after assaying the record the habeas court cannot determine whether there is a reasonable possibility the error contributed to the conviction, the applicant must lose, since he bears the burden of proof. Contrast O'Neal v. McAninch, supra (in federal habeas corpus review of state convictions, where habeas court has "grave doubt” whether error harmless, State must lose). . It is true that the Strickland /Bagley tests are phrased in terms of a "reasonable probability ...” It could not be clearer from context, however, that by "reasonable probability” the Supreme Court did not mean it must be "more likely than not” that the outcome of the proceeding would be different. In Strickland the Court expressly eschewed a "preponderance” level of confidence. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. It is apparent that the Court meant that reversal should follow if there is a reasonable chance the result would be different, not that it is more likely than not a different outcome would result.
BAIRD, Judge, dissenting. Everyone agrees that this case presents a due process violation, the knowing use