Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 10/15/2015 ABEL ACOSTA, CLERK *1 WR-63,871-03 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 10/15/2015 1:59:28 PM Accepted 10/15/2015 4:15:30 PM ABEL ACOSTA CLERK NO. C-2-010289-0764908-B EX PARTE § IN THE CRIMINAL DISTRICT
§
§ COURT NO. 2 OF §
TIMOTHY RANDAL THOMPSON § TARRANT COUNTY, TEXAS
STATE'S RESPONSE TO APPLICANT’S SUPPLEMENTAL HABEAS CORPUS CLAIM COMES NOW, the State of Texas, by and through the Criminal District
Attorney of Tarrant County, Texas, and files this response to the applicant’s
supplemental claim for habeas corpus relief.
The Case in Brief/Procedural History:
The applicant was convicted of murder on April 20, 2001, and sentenced
to twenty-five years’ confinement. See Judgment. The Court of Appeals
affirmed the applicant’s conviction finding that:
• The evidence was legally and factually sufficient;
• Trial counsel did not provide ineffective assistance by not
requesting a sudden passion instruction;
• The trial court properly permitted the deceased’s widow to
remain in the courtroom;
• The trial court did not violate the applicant’s substantial rights by
permitting the deceased’s mother to remain in the courtroom; • The trial court properly excluded evidence regarding the
deceased’s violent conduct while under the influence of drugs; • The trial court did not improperly comment on the evidence in
responding to the applicant’s jury argument objection; and • The trial court properly overruled the applicant’s objections to the State’s jury argument.
Thompson v. State See , Case No. 02-01-00202-CR (Tex. App. –- Fort Worth
2002, pet. refused) (not designated for publication).
The applicant previously filed an application for writ of habeas corpus
on July 19, 2004, alleging that:
• The State used false and perjured evidence to obtain his
conviction because the DNA testing results admitted during his trial lacked scientific validity;
• He was denied effective assistance because his counsels failed to
challenge the State’s DNA evidence or obtain an independent expert analysis to ascertain any scientific invalidity in the State’s DNA evidence. Ex parte Thompson
See , No. C-2-006996-0764908-A (application). The
trial court recommended that the applicant be denied relief on these claims. Ex parte Thompson
See , No. C-2-006996-0764908-A (order adopting
proposed findings of fact and conclusions of law). This Court dismissed this Ex parte Thompson
writ application on March 29, 2006. See , No.
WR-63,871-01 (white card).
On August 19, 2014, the applicant filed an application for writ of habeas
corpus alleging that he was denied effective assistance of trial counsel. See Ex parte Thompson
, No. C-2-010289-0764908-B (application). The trial court conducted live hearings on January 21, 2015, and January 30, 2015, in
which the applicant’s two trial counsels – the Hon. Les Johns and the Hon. Ex parte Thompson
Leon Haley – each testified. See , No.
C-2-010289-0764908-B (habeas reporter’s record).
On April 9, 2015, the applicant amended this application to add an
allegation that he was denied effective assistance of appellate counsel. See Ex part Thompson
, No. C-2-010289-0764908-B (amended application).
The State filed its amended proposed findings of fact and conclusions of law Ex parte Thompson
on April 30, 2015. See , No. C-2-010289-0764908-B
(amended proposed findings of fact and conclusions of law). The trial court
adopted the State’s amended proposed findings of fact and conclusions of law Ex parte Thompson
on August 13, 2015. See , No. C-2-010289-0764908-B
(adoption order).
On September 24, 2015, the applicant filed a supplemental application
for writ of habeas corpus alleging that his due process rights were violated by Ex parte
the State’s use of false or perjured testimony during his trial. See Thompson
, No. C-2-010289-0764908-B (supplemental application)
Discussion:
The applicant contends that his due process rights were violated
because the crime scene investigator presented false testimony.
A. Standard of Review
The Due Process Clause of the Fourteenth Amendment can be violated
when the State uses false testimony to obtain a conviction, regardless of Ex parte Chavez
whether it does so knowingly or unknowingly. See , 371 Ex parte Robbins
S.W.3d 200, 207-08 (Tex. Crim. App. 2012); , 360 S.W.3d Ex parte Chabot
446, 459 (Tex. Crim. App. 2011); , 300 S.W.3d 768, 770-71 U.S. Const. amend. XIV
(Tex. Crim. App. 2009); . Testimony need not be
perjured to constitute a due-process violation; rather, it is sufficient that the Ex parte Chavez Ex parte Robbins
testimony was false. , 371 S.W.3d at 208; ,
360 S.W.3d at 459. The question is whether the testimony, taken as a whole, Ex parte Chavez Ex
gives the jury a false impression. , 371 S.W.3d at 208; parte Ghahremani Alcorta v. , 332 S.W.3d 470, 477 (Tex. Crim. App. 2011);
Texas
, 355 U.S. 28, 31, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).
To constitute a due-process violation, the record must show that the
testimony was material; namely, that there is “a reasonable likelihood” that Ex parte Chavez
the false testimony affected the judgment of the jury. , 371 Ex parte Ghahremani
S.W.3d at 209; , 332 S.W.3d at 478. Materiality must Ex parte Chavez
be reviewed in light of the entire record. , 371 S.W.3d at
209-10.
B. Alleged False Statement
The applicant contends that crime scene investigator Mark Ball gave
false or perjured testimony when he testified that he searched the applicant’s
house on March 31, 2000, and did not find any bullets or bullet holes in the
living room floor. See Trial Reporter’s Record IV:160-61, 178-79, 187.
On July 10, 2008, forensic scientist Edward Hueske examined the Ex parte Thompson
applicant’s house where this murder occurred. See , No.
C-2-010289-0764908-B (application – exhibit G). During this examination, Ex
Mr. Hueske recovered two bullets from the house’s living room floor. See parte Thompson
, No. C-2-010289-0764908-B (application- exhibit G).
In February 2015, Mr. Hueske compared the bullets he recovered in
2008 with the semi-automatic pistol used by the applicant in this murder. Ex parte Thompson
See , No. C-2-010289-0764908-B (amended application-
exhibit H). Mr. Hueske determined that, to a reasonable degree of scientific
certainty, the bullets recovered from the living room floor were fired by or Ex parte Thompson
from the applicant’s pistol. See , No.
C-2-010289-0764908-B (amended application- exhibit H).
C. Investigator Ball Did Not Present False Testimony
Investigator Ball did not present false testimony because he merely
testified about the search he conducted and what he did or did not find in
searching the floors. See Trial Reporter’s Record IV:160-61, 178-79, 187.
Nothing from Mr. Hueske’s discovery or examination demonstrates that Mr.
Ball found bullets or bullet holes and lied about it to the jury, or that any other
testimony by Mr. Ball was false. Mr. Ball even acknowledged on
cross-examination that, given the bloody crime scene, there was a chance that
he could have missed bullets or bullet holes while searching the floors. See
Trial Reporter’s Record IV:187. Thus, it cannot be said that Mr. Ball’s
testimony as a whole constituted false testimony.
D. Alleged False Statement Not Material to Conviction
There is no reasonable likelihood that any falsity in Mr. Ball’s testimony
regarding his bullet/bullet hole search affected the applicant’s conviction.
1. Quality of Crime Scene Investigation
The applicant was not precluded from attacking the quality of the police
crime scene investigation. As addressed above, Mr. Haley vigorously
cross-examined Mr. Ball who ultimately admitted that he could have missed
bullets or bullet holes when searching the living room floors. See Trial
Reporter’s Record IV:187.
The applicant raised further questions regarding the thoroughness of
Mr. Ball’s investigation when his original attorney – the Hon. Paul Sorenson –
testified that, on April 23, 2000, he observed bullet holes in the living room
floor. See Trial Reporter’s Record V:105-06, VIII:Defense Exhibits #7-9.
Mr. Sorenson even stated on cross-examination that he observed something
he considered to be a bullet in the living room floor. See Trial Reporter’s
Record V:111. Mr. Johns emphasized Mr. Sorenson’s discovery to the jury.
See Trial Reporter’s Record VI:11. Put simply, any such inadequacy was
placed for consideration before the jury.
2. Applicant Not Hampered From Presenting Warning Shot Aspect of
Self-Defense Claim
The applicant was not hampered from presenting the warning shot
aspect of his self-defense claim before the jury by any inadequacies in Mr.
Ball’s crime scene investigation. The trial reporter’s record shows that: •
The applicant testified that he first fired one round beside Mr. Walker and two rounds in front of him. See Trial Reporter’s Record V:133. •
The appellant fired another round at the floor, but the bullet hit Mr. Walker in his foot. See Trial Reporter’s Record V:134. After killing Mr. Walker, the applicant picked up five shell casings from the floor and put them in a cigarette package. See Trial Reporter’s Record V:150-51.
The five shell casings were introduced into evidence along with the gun. See Trial Reporter’s Record IV:201, 213-14.
Thus, the jury was not fully deprived of evidence supporting the appellant’s
warning shot claim despite Mr. Ball’s inability to find bullets in the living room
floor.
3. Applicant Not Hampered From Presenting General Self-Defense Claim
The applicant was not hampered from investigating and presenting his
general self-defense claim by any inadequacies in Mr. Ball’s crime scene
investigation.
Upon his appointment, Mr. Johns contacted Mr. Sorenson, and obtained
a copy of his file. See Habeas Reporter’s Record II:25; Mr. Johns’ Billing
Statement, page 1. Mr. Johns also had access to the police reports and the
witness statements in the State’s file. See Habeas Reporter’s Record III:13.
Mr. Johns reviewed these materials to help formulate the appellant’s defense.
See Mr. Johns’ Billing Statement, pages 1 & 2. Mr. Johns obtained and used
the services of private investigator Cliff Ginn in formulating the appellant’s
defense. See Habeas Reporter’s Record II:7-8, 25; Mr. Johns’ Affidavit, page
1; Mr. Johns’ Billing Statement, page 4; Mr. Ginn’s Billing Statement, page 2.
Mr. Johns’ defense investigation focused on why the applicant shot Mr.
Walker rather than who shot Mr. Walker since the applicant admitted to the
shooting. See Habeas Reporter’s Record II:26. Mr. Johns met with the
applicant on numerous occasions who told him that:
• He and Mr. Walker did drugs together;
• Mr. Walker was substantially larger than him;
• Mr. Walker would not leave his house;
• Mr. Walker was agitated and threatened him;
• He was afraid of Mr. Walker; and
• He only pointed a gun at Mr. Walker after he threatened him. See Habeas Reporter’s Record II:9-10, 27-28. Mr. Johns’ Billing Statement,
pages 2-6. Mr. Johns and Mr. Haley chose to focus on the sixty-pound weight
differential between the applicant (126 pounds) and Mr. Walker (186 pounds)
and the applicant’s statement that the applicant’s gun discharged when Mr.
Walker tried to grab it. See Mr. Johns’ Affidavit, page 1. During his trial, the applicant testified that:
•
Mr. Walker was substantially larger than himself. See Trial Reporter’s Record V:130. •
Mr. Walker became belligerent when he asked Mr. Walker to leave his house. See Trial Reporter’s Record V:130-31. Mr. Walker threatened to sexually assault him with the gun and with his penis. See Trial Reporter’s Record V:131-32.
•
Mr. Walker jumped at the applicant which caused him to fire the gunshot that hit Mr. Walker’s foot. See Trial Reporter’s Record V:134. Mr. Walker pulled him to the floor by his pants leg and grabbed his shoulder which caused him to fire the fatal gunshot. See Trial Reporter’s Record V:138, 178.
The applicant’s self-defense claim was not predicated on whether the
[12] applicant fired a warning shot before shooting Mr. Walker in the foot.
4. Impact of Warning Shot Claim Undermined by Applicant’s Conduct
Following Alleged Warning Shot.
Any impact from the applicant’s warning shot claim was undermined by
his own conduct after his initial warning shots; specifically evidence that:
• The applicant fired a gunshot into Mr. Walker’s foot. See Trial
Reporter’s Record V:134.
• The applicant followed Mr. Walker into the corner to get him to remove his shoe from his wounded foot. See Trial Reporter’s Record V:135-37.
• When Mr. Walker still refused to leave, the applicant began
1 During the course of Mr. Johns’ representation, the applicant told him eight
or nine different factual versions of how or why he shot Clayton Walker,
including a new version on the morning of trial. See Habeas Reporter’s
Record II:8; Mr. Johns’ Affidavit, page 1.
2 The applicant also suggested an accident defense by testifying that the gun
fired accidentally when he was trying to club Mr. Walker with it, and that he
did not intend to shoot Mr. Walker. See Trial Reporter’s Record V:138, 186.
This accident theory renders any earlier warning shot irrelevant and
immaterial.
*11 kicking his wounded foot. See Trial Reporter’s Record V:138, 177-78.
• The applicant was trying to club Mr. Walker with his gun when he
fired the fatal shot. See Trial Reporter’s Record V:138.
Given the applicant’s conduct, any inadequacies in Mr. Ball’s crime scene
investigation did not materially undermine the warning shot aspect of his
self-defense claim.
5. General Self-Defense Claim Undermined by Applicant’s Conduct Before
and After Clayton Walker’s Death.
The applicant’s self-defense claim was undermined by his own conduct
before and after Clayton Walker’s death; specifically evidence that: •
A nervous and anxious Clayton Walker pointed at the applicant’s house and told Shelley Little that the applicant was trying to kill him. See Trial Reporter’s Record III:41-43. •
Ms. Little later observed the applicant drive his truck in pursuit of a fleeing Mr. Walker. See Trial Reporter’s Record III:44-45. •
The applicant shot Mr. Walker even though he never physically touched him. See Trial Reporter’s Record V:174. •
The applicant did not call the police after he shot Mr. Walker. See Trial Reporter’s Record V:140. •
The applicant tried to clean up the crime scene with ammonia. See Trial Reporter’s Record V:142. The applicant took the five shell casings from his living room floor when he left his house. See Trial Reporter’s Record V:150. *12 •
The applicant told Rhonda Carlson and James Crafton that he had shot and killed someone for failing to “shut up”. See Trial Reporter’s Record IV:13, 37-38. •
The applicant laughed while discussing having shot Mr. Walker in the left temple. See Trial Reporter’s Record IV:14-15, 41. •
The applicant sought help to dispose of Mr. Walker’s body. See Trial Reporter’s Record IV:14-15. •
The applicant told Michael Hendricks that he shot Mr. Walker in the head because he would not “shut up”. See Trial Reporter’s Record V:80. The applicant asked Mr. Hendricks to help him dispose of Mr. Walker’s Body. See Trial Reporter’s Record V:81.
Given the applicant’s conduct, any inadequacies in Mr. Ball’s crime scene
investigation did not materially undermine the applicant’s general
self-defense claim.
6. Ex parte Chabot Factually Distinguishable
Ex parte Chabot
The factual situation in is markedly different from the Chabot
present case. In , the defendant and another man, Gerald Pabst went
to the deceased’s house looking for drugs and money related to a recent drug Ex parte Chabot
deal involving the deceased’s husband. See , 300 S.W.3d at
769. Pabst testified that Chabot sexually assaulted and killed the deceased Ex parte Chabot
while he was in another room. See , 300 S.W.3d at 770.
Subsequent DNA testing proved that Pabst was the person who sexually Ex parte Chabot
assaulted the deceased. See , 300 S.W.3d at 770. Thus,
Pabst’s testimony implicating Chabot was scientifically proven to be false. Ex parte Chabot
Given these facts, differs from the present case in
several key aspects: •
Ex parte Chabot Pabst’s false statements were the key evidence against Chabot. See , 300 S.W.3d at 770. Mr. Ball’s crime scene investigation was just one piece of the evidence against the applicant. •
Ex parte Chabot Pabst’s factual allegation inculpating Chabot was scientifically proven to be false. See , 300 S.W.3d at 770. Mr. Hueske’s investigation and testing only showed Mr. Ball’s testimony to be arguably inaccurate or his investigation to have been sloppy. • Ex parte
Chabot Pabst’s false statements were deliberately false. See , 300 S.W.3d at 770. The record does not suggest that any inaccuracies in Mr. Ball’s testimony were deliberately false. Chabot Ex The jury was specifically instructed that it had to find parte Chabot Pabst’s testimony to be true in order to convict Chabot. See , 300 S.W.3d at 770. No similar jury instruction was given in this case.
7. Conclusion
There is no reasonable likelihood that any falsity in Mr. Ball’s testimony
affected the jury’s judgment of conviction given that:
His testimony about not “finding” any bullets or bullet holes was not proven false;
The defense was not precluded from challenging the quality
of his crime scene investigation; The defense was not hampered from presenting its
self-defense claim; and
The applicant’s self-defense claim was actually undermined by his own conduct following Clayton Walker’s death.
Thus, any false statement by Mr. Ball was not material to the applicant’s Ex parte Chavez
conviction and did not violate his due process rights. See ,
371 S.W.3d at 208-10.
E. Alleged False Statement Not Material to Sentencing
There is no reasonable likelihood that any falsity in Mr. Ball’s testimony
affected the applicant’s sentence. In addition to the facts of this murder, the
jury heard information that: •
Several months before Mr. Walker’s murder, the applicant came to Jessie Little’s door armed with two pistols and a longer gun, and claimed that Ms. Little tried to shoot her roommate. See Trial Reporter’s Record VII:7-8. •
The applicant had previously been in rehabilitative treatment for drug addiction. See Trial Reporter’s Record VII:3; VIII:State’s Exhibits #70 & 71. •
The applicant had previously engaged in drug dealing. See Trial Reporter’s Record VII:15; VIII:State’s Exhibit #71. The applicant continued to use illegal drugs despite his family’s numerous attempts to assist him. See Trial Reporter’s Record VII:18, 21-22.
In other words, the jury heard evidence that imprisonment was the
appropriate punishment for this murder. Thus, there is no reasonable
likelihood that any falsity in Mr. Ball’s testimony affected the jury’s sentencing
decision. Ex parte Ghahremani
The factual situation in differs greatly from this Ghahremani
case. In , the only noteworthy punishment evidence came from
the false testimony by the complainant’s father solely attributing her changed
behavior and her being sent to an intensive treatment boarding school due to Ex parte Ghahremani
her sexual assault by the defendant. See , 332 S.W.3d
[3]
at 473-74, 480. Here, the State presented significant evidence unrelated to
Mr. Ball’s testimony justifying the applicant’s prison sentence. Ghahremani
Furthermore, unlike this case, the prosecutors knew or
should have been aware that the father’s testimony was false or misleading
since they knew about the complainant’s sexual relationship with the other Ex parte Ghahremani
man well before the defendant’s trial. See , 332
S.W.3d at 474. While due process violations may occur with the unknowing
use of false testimony, the State’s knowledge is still a relevant factor in
Ghahremani
3 The fifteen-year-old complainant in was also having sexual
relations with a twenty-five-year-old man, which was another reason why Ex parte Ghahremani the complainant was sent to the intensive treatment boarding school. See
, 332 S.W.3d at 473-74.
Ex determining whether a defendant’s due process rights were violated. See parte Ghahremani
[4]
, 332 S.W.3d at 478.
In sum, any falsity in Mr. Ball’s testimony was not material to the Ex
applicant’s sentencing and did not violate his due process rights. See parte Chavez
, 371 S.W.3d at 208-10.
F. Conclusion
The applicant’s due process rights were not violated by Mr. Ball’s
testimony regarding his crime scene search for bullets and bullet holes. Mr.
Ball did not falsely testify before the jury regarding his crime scene
investigation. Alternatively, there is no reasonable likelihood that any
falsity in Mr. Ball’s testimony affected the applicant’s conviction or sentencing.
The applicant’s supplemental ground for relief should be denied.
Ghahremani Brady Ex parte Gharemani
4 also involved a violation which was not addressed by the
Court of Criminal Appeals. See , 332 S.W.3d at 477.
WHEREFORE, PREMISES CONSIDERED, the State prays the Court find
that the applicant’s supplemental due process ground for relief is without
merit.
Respectfully submitted, SHAREN WILSON Criminal District Attorney Tarrant County, Texas DEBRA WINDSOR, Chief Post-Conviction Unit /s/ Steven W. Conder STEVEN W. CONDER, Assistant Criminal District Attorney 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 State Bar No. 04656510 CERTIFICATE OF SERVICE A true copy of the above response has been mailed and electronically
transmitted to the applicant’s counsel, the Hon. Robert Udashen
(rnu@sualaw.com ), 2311 Cedar Springs Road, Suite 250, Dallas, Texas 75201,
on this, the 15th of October, 2015.
/s/ Steven W. Conder STEVEN W. CONDER *18 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Tex. R. App.
P. 73.1(e) because it has been prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes. This document also
complies with the word-count limitations of Tex. R. App. P. 73.1(d) because it
contains approximately 3253 words, excluding any exempted parts, as
computed by Word 2010, the computer program used to prepare the
document.
/s/ Steven W. Conder STEVEN W. CONDER c18.thompson timothy randal.wr/supplemental/reply