IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM THE 183rd JUDICIAL DISTRICT COURT
HARRIS COUNTY
Holcomb, J., filed a dissenting opinion, in which Womack and Johnson, JJ., joined.
I respectfully dissent. As the majority admits, "the evidence now preponderates to show and the State seems to concede" that "applicant was only the wheel-man in the instant offense" and not the shooter. Maj. Op., p.4, fn.3. That being the case, it is apparent to me that applicant's jury, when it assessed his punishment at imprisonment for 55 years for the aggravated robbery of a drug dealer, was materially misinformed with respect to the true nature of his involvement in that offense. Had the jury heard all of the evidence available today, there is a reasonable probability that it would have assessed a less-severe punishment. Practically speaking, a jury is not going to give that amount of time for the robbery of a drug dealer. For that reason, the Fourteenth Amendment's guarantee of due process requires that applicant be awarded a new punishment hearing.
The majority, in my opinion, unduly penalizes applicant for not informing his attorney, until it was too late, about the true extent of his involvement in the offense. I further fault the majority for not giving sufficient deference to the trial court's determination that applicant should be given a new punishment hearing, especially when the State seems to agree that applicant was not the shooter.
In Ex parte Rich, 194 S.W.3d 508 (Tex.Crim.App. 2006), we granted habeas corpus relief in a case in which the applicant had pled guilty to a driving-while-intoxicated charge and "true" to an enhancement paragraph that had been pled as a felony but, it was later discovered, had been reduced to a misdemeanor. The net result was that the applicant was granted a new trial on punishment because of misinformation regarding punishment. The instant case also involves misinformation regarding punishment.
Both the United States Supreme Court and this Court, in discussing post-conviction claims of actual innocence, have recognized that the legitimacy of punishment is inextricably intertwined with guilt. Herrera v. Collins, 506 U.S. 390, 422 (1993) (Blackmun, J., dissenting); Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 2002). Other states have authorized a new trial on punishment when it appears that, had the jury heard all of the evidence, there is a reasonable probability the jury would have assessed a less-severe punishment. See State v. Bilke, 781 P.2d 28 (Ariz. 1989); Ariz. R. Crim. Proc. 32.1(e); Ala. R. Crim. Proc. 32.1(e)(4).
Recently, this Court, in Ex parte Carmona, 184 S.W.3d 482 (Tex.Crim.App. 2006), decided that the applicant's unadjudicated community supervision had been revoked without due process of law because it had been revoked "solely on the basis of perjured testimony." I believe that the punishment hearing in a criminal jury trial is similar to a hearing on adjudication and punishment. In that case, it was the perjured testimony which we concluded had violated the applicant's right to due process; in this case, it was the highly prejudicial false testimony that applicant had been the shooter, which, I believe, led to the jury assessing a very harsh punishment.
Because the jury did not know applicant was not in the drug dealer's house, and believed incorrectly that he was the shooter, due process requires that we award applicant a new hearing on punishment. Because the majority holds otherwise, I respectfully dissent.
DELIVERED NOVEMBER 22, 2006
PUBLISH