dissenting.
Everyone agrees that this case presents a due process violation, the knowing use of perjured testimony. Therefore, the ultimate resolution of this case rests on whether the violation was material.
I.
In the past, we have utilized the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Tex.R.App. P. 81(b)(2) as the standard *384for determining materiality. Ex parte Adams, 768 S.W.2d 281, 292 (Tex.Cr.App.1989). The majority correctly notes that the Chapman /Rule 81(b)(2) standard was developed in cases on direct appeal. See, 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). The majority then notes that the United States Supreme Court has held the Chapman standard need not apply to cases on collateral review. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). This also is correct. However, the majority then announces, in a footnote: “But, because we are not bound to apply the federal harm standards to our post conviction writs, we apply the stated standard announced in Dutchover.” Ante, at 375, n. 11 (referring to Ex parte Dutchover, 779 S.W.2d 76, 78 (Tex.Cr.App.1989).
However, the majority does not explain why or how our adoption of the Chapman /Rule 81(b)(2) standard was erroneous. Indeed we have applied that standard in two separate habeas cases. Adams, supra; and, Ex parte Castellano, 863 S.W.2d 476 (Tex.Cr.App.1993). The majority seems to suggests that somehow the Adams and Castellano Courts were unaware they were dealing with collateral attacks. For the following reasons, this suggestion is erroneous.
First, the Adams Court completely reviewed the history of the case and noted the earlier appeal and affirmance. Adams 768 S.W.2d at 283 (citing Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979). The Court then specifically referred to Tex.Code Grim. Proe.Ann. art. 11.07 and noted that habeas corpus is available only to review jurisdictional defects or the denial of fundamental or constitutional rights. Id. at 287 (citing Ex parte Russell, 738 S.W.2d 644 (Tex.Cr.App.1986)). The Court noted that the habeas applicant assumes the burden of proving his factual allegations by a preponderance of the evidence. Id. at 287-288. Obviously, the Adams Court was very aware that it was dealing with a postconviction collateral attack. Second, as the author of Castellano, I can assure the reader that this Court was well aware that it was dealing with a habeas application. Id. 863 S.W.2d at 478-479. Consequently, any suggestion that we were somehow unaware that we were dealing with habeas claims is not supported by either opinion.
Therefore, the Chapman /81(b)(2) standard should be applied in the instant case. As the majority notes “applicant has met the Chapman standard.” Ante at 376. Apparently, this is the reason the majority does not apply that standard.
II.
Even if we expressly rejected the Chapman /Rule 81(b)(2) standard for materiality, I would suggest adoption of the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the habeas applicant would be entitled to relief if the knowing use of the perjured testimony created a reasonable probability that, had the perjury been disclosed, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. This is the standard the Supreme Court has adopted for Brady violations.1 United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); and, Thomas v. State, 841 S.W.2d 399, 403-404 (Tex.Cr.App.1992). Applying this standard to the case at bar, two proceedings are especially important.
The motion to suppress the confession hearing is where Medrano perjured himself and the State used the perjured testimony to establish the voluntariness of appellant’s confession. This hearing was discussed in our opinion on direct appeal. Fierro v. State, 706 S.W.2d 310, 315-316 (Tex.Cr.App.1986). Three points are significant. First, appellant contended his confession was not voluntary because Medrano said appellant’s mother was in jail and would remain there until appellant confessed. Id. at 316. Second, “Medrano testified he truthfully had no information that appellant’s mother was in cus*385tody.” Id. at 315.2 Third, the trial judge entered findings of facts “that Medrano did not tell appellant his mother would remain in jail until he confessed.” Id. at 316. Our confidence in the motion to suppress proceeding is undermined because the trial judge relied upon the perjured testimony in holding appellant’s confession was voluntary.
In the instant ease, the habeas judge made the following findings:
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 the said Det. Medra-no’s testimony at the pre-tñal suppression heañng.
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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.
Additionally, the lead prosecutor at the trial, Gary Weiser, has provided this Court with an affidavit where he stated:
Had I known at the time of Fierro’s suppression hearing what I have since learned about the family’s arrest, I would have joined in a motion to suppress the confession.
Clearly, the evidence is sufficient to undermine our confidence in the pretrial proceeding which determined appellant’s confession was admissible.
For these same reasons, confidence is undermined in another proceeding, appellant’s direct appeal. On appeal applicant contended his confession was not voluntary but came about as the result of coercion. Id. at 315. We overruled this point of error stating:
The trial court is the sole trier of the facts at a hearing upon a motion, and this Court is not at liberty to disturb any findings supported by the record.... When all the circumstances are considered, we conclude they support the trial court’s determination that the confession was made voluntarily and that it was admissible in evidence.
Id. at 316. Under this deferential standard of review, this Court followed the trial judge’s findings of facts, which we now know were made in reliance upon perjured testimony.
A similar incident arose in Adams, 768 S.W.2d 281, where the trial judge conducted a hearing to determine whether a witness’ identification of the defendant had been tainted. The State violated Brady by failing to turn over the witness’ contradictory statement at the time of trial and, instead, went to great lengths to conceal it. This Court stated: “Trial courts must be able to rely upon the veracity of its officers. When deceit produces court rulings that have the effect of denying one a fair tñal then the conviction should be vacated.” Adams, 768 S.W.2d at 291.
Because the motion to suppress hearing at the trial court was tainted by the perjured testimony and because the direct appeal was tainted by our reliance upon findings of facts that were derived from that hearing, the evidence is sufficient under the StHckland /Bagley standard to establish a reasonable probability that, had the perjury been disclosed, the result of the motion to suppress proceeding and the direct appeal proceeding would have been different.
III.
The majority converts the requirement of materiality into a pure harm analysis:
... 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.
Ante at 373. The majority ignores the requirement of materiality and that if material*386ity is established, relief is required. United States v. Agurs, 427 U.S. 97, 103-104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). Rather than reaching the materiality issue, the majority conducts a harm analysis and holds applicant has failed to carry his burden of proving harm by a preponderance of the evidence. Ante at 377. However, even under this standard, for the reasons stated by Judge Overstreet, post at 386, applicant met his burden.
For these reasons, I would find the knowing use of perjured testimony in this case sufficient to warrant setting aside applicant’s conviction and returning him to the Sheriff of El Paso County to answer the indictment in this cause.
With these comments, I respectfully dissent.
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. All emphasis is supplied unless otherwise indicated.