Whisenant, Elmer Howard Jr.
WR-82,063-01
Tex. App.Aug 12, 2015Background
- Howard Whisenant was convicted by a jury on multiple counts (aggravated assault, aggravated sexual assault, burglary, obstruction, retaliation, violation of protective order) and sentenced to lengthy concurrent terms; convictions arose mainly from allegations by his wife, Tracy, and testimony from their five children.
- Applicant filed an Art. 11.07 habeas application (Aug. 18, 2014) raising six grounds: prosecutorial use of false testimony (grounds 1–2), prosecutorial misconduct (ground 3), and ineffective assistance of counsel (grounds 4–6). The Court of Criminal Appeals remanded for fact findings.
- Post-conviction affidavits from all five children state they recanted substantial parts of their trial testimony and explained they had been coached or manipulated by Tracy; one child (Janey) expressly said she gave false testimony about a gun incident.
- Additional post-conviction evidence: an affidavit from an alleged alibi witness (Mohammad Ibrahimi) placing Whisenant elsewhere for several alleged assaults on Aug. 31, 2000; investigator affidavit (Ryan Ross) describing methods used to obtain the children’s recantations.
- The trial court, after remand, found the children’s trial testimony credible and their affidavits not credible/material; found Ibrahimi’s alibi affidavit credible but not material; and found trial counsel’s overall performance not deficient regarding alibi investigation and investigation of Tracy’s relationship with a third party (Mike Gamble).
Issues
| Issue | Applicant's Argument | State/Trial Court Argument | Held |
|---|---|---|---|
| Whether post-conviction affidavits from five children recanting trial testimony show use of false testimony requiring relief | Children’s affidavits are credible, consistent, corroborated by investigator methods, and materially undermined Tracy’s case; jury verdict likely affected | Trial court found the children’s affidavits not credible or not material and affirmed original witness credibility | Trial court held the children’s trial testimony credible and their recantation affidavits not persuasive/not material to require relief |
| Whether false testimony (if proved) meets Napue/Giglio materiality standard | False testimony could reasonably have affected jury; especially Janey’s gun-threat testimony which was highly prejudicial | Trial court concluded affidavits did not reliably show material false testimony | Trial court held no Giglio/Napue violation shown by the affidavits as presented |
| Whether counsel was ineffective for failing to interview/call alibi witness (Ibrahimi) | Ibrahimi was available, would have placed Whisenant away during multiple assaults on Aug. 31, 2000, and would have undermined Tracy’s credibility; failure to investigate/call him was deficient and prejudicial | Trial court found Ibrahimi’s affidavit not material to convictions or counsel’s decision reasonable | Trial court held counsel’s performance not shown deficient or prejudicial with respect to Ibrahimi/alibi defense |
| Whether counsel was ineffective for failing to investigate Tracy’s relationship/secret life (Mike Gamble) | Evidence of Tracy’s extramarital affair/strip-club work and possible assault by another man would have provided motive to fabricate and alternate sources of injury; counsel’s investigation was inadequate | Trial court found counsel investigated and was not deficient; no basis shown that omitted evidence would have changed outcome | Trial court held counsel’s investigation adequate and no prejudice shown from alleged failure to uncover Tracy’s relationship |
Key Cases Cited
- Giglio v. United States, 405 U.S. 150 (false testimony by government witnesses can require new trial where it could have affected jury)
- Napue v. Illinois, 360 U.S. 264 (conviction obtained by false testimony violates due process where falsehoods could have affected jury)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance: deficient performance and prejudice)
- Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002) (credibility determinations heavily dependent on live witness demeanor)
- Granger v. State, 683 S.W.2d 387 (Tex. Crim. App. 1984) (material false testimony can require reversal when it could reasonably affect jury)