Ex Parte Graham
853 S.W.2d 564
Tex. Crim. App.
1993
Check Treatment

Ex parte Gary GRAHAM

No. 17568-02

Court of Criminal Appeals of Texas, En Banc

April 27, 1993

853 S.W.2d 564

Certiorari Denied May 24, 1993. See 113 S.Ct. 2431.

(Tex.Cr.App.1985) (Defendant‘s blood-stained clothes were found at the scene; her fingerprint was found at the scene; and she was in the company of the accomplice at or about the time of the murder);

(Defendant was seen outside crime scene moments before the offense wearing clothing similar to that of the robber; he participated in the counting of “bills and change” the afternoon of the offense; he attempted to sell the murder weapon two months later);
(One day prior to the killing the defendant purchased the murder weapon and acquired ammunition; he was in the company of the co-defendant approximately two hours after the murder; and, later asked a witness to remain silent observing him with the co-defendant on the date in question).9

The State contends the cumulative effect of the circumstantial evidence points to appellant‘s guilt. In

, where we considered a similar contention, we stated:

The State suggests that “[A]ll of the suspicious circumstances are circumstantial evidence and none point directly to the guilt of the appellant but the cumulative effect of all of these is more than sufficient to corroborate the accomplice witness” and cites several cases in support of its contention. However, those cases ... basically involve situations where the appellant was found near the scene of the crime shortly after its occurrence, in possession of the stolen property or other incriminating evidence.

. Here, outside the testimony of the accomplices, there is no evidence appellant was near the scene of the crime and no evidence appellant was in possession of stolen property or incriminating evidence.

We find the State has failed to present evidence which tends to connect appellant to the offense and therefore the evidence is insufficient to corroborate the testimony of the accomplice witnesses. Accordingly, we reverse and remand this cause to the trial court for the entry of a judgment of acquittal.

;
; and,
.

MCCORMICK, P.J., and MILLER and WHITE, JJ., concur in the result.

Anthony S. Haughton, Robert C. Owen, Mandy Welch, Houston, Richard Burr, New York City, Michael E. Tigar, Austin, for appellant.

John B. Holmes, Jr., Dist. Atty., and Roe Wilson, Asst. Dist. Atty., Houston, Robert S. Walt, Asst. Atty. Gen., Robert Huttash, State‘s Atty., Austin, for the State.

ORDER

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Art. 11.07, V.A.C.C.P.

On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under Art. 37.071, V.A.C.C.P., punishment was assessed at death. This Court affirmed applicant‘s conviction on direct appeal.

. The trial court has scheduled applicant‘s execution to be carried out on or before sunrise, April 29, 1993.

In the instant cause, applicant presents four allegations in which he challenges the validity of his conviction or resulting sentence. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied.

This Court has reviewed the record. The findings and conclusions entered by the trial court are supported by the record and upon such basis the relief is denied.

IT IS SO ORDERED.

CLINTON, J., would grant the stay.

MILLER, J., not participating.

MALONEY, Judge, dissenting.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of TEX.CODE CRIM.PROC.ANN. art. 11.07.

On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under TEX.CODE CRIM.PROC.ANN. art. 37.071, punishment was assessed at death. Applicant‘s conviction was affirmed by this Court on direct appeal.

. The trial court has scheduled applicant‘s execution to be carried out on or before sunrise, April 29, 1993.

Applicant presents four allegations in which he challenges the validity of his conviction or resulting sentence. In his first allegation applicant claims that he was denied effective assistance of counsel and in his fourth allegation applicant claims that on the basis of new evidence it is clear that he is innocent of the crime for which he was convicted. Upon review of the record, I find that there are additional facts that need to be developed regarding the investigation of applicant‘s case in light of his ineffective assistance claim.

. I further find, based upon applicant‘s application and the attached affidavits, that there are additional facts that need to be developed regarding applicant‘s claim of actual innocence.
. I would therefore grant a stay of execution and abate this post conviction writ of habeas corpus pending an evidentiary hearing in the trial court.

BAIRD, J., joins this opinion and further believes the application should be filed and set for submission to consider the continued viability of

(Newly discovered evidence “not a fit subject for the exercise of ... habeas corpus powers.“) in light of
(Court of Criminal Appeals permitted to make “public policy” determinations on behalf of the State.).

Ex parte Gary GRAHAM

No. 17568-03

Court of Criminal Appeals of Texas, En Banc

June 2, 1993

Order July 5, 1993.

Notes