No. 28165-A

EX PARTE

ANTHONY GRAVES

IN THE

23^RD District Court

OF

BRAZORIA COUNTY, Texas

"SUBSEQUENT HABEAS CORPUS APPLICATION"

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Pat McCann, attorney for petitioner, and files this Motion For Leave To File Supplemental Issues in this habeas corpus process, and for cause would show:

I.

Counsel for petitioner was appointed in this matter pursuant to the provisions of Article 11.071, Code Of Criminal Procedure, in 1997, and performed a lengthy and massive investigation leading to the timely filing of this application for of habeas corpus on or about June 30, 1998.

Subsequently, the trial court set a habeas corpus evidentiary hearing in this matter, and on November 12, 1998, that hearing commenced, with several witnesses being called to testify for petitioner, including the District Attorney, Charles Sebesta, about various issues in this matter.

During the testimony of the District Attorney, counsel for petitioner learned, for the first time, about new crucial evidence that was denied to the defense trial counsel during the trial of this case. This evidence, generally summarized, showed the following:

1. Pursuant to the investigation of the defense counsel and the prosecution, all parties believed that the killings done in this case were accomplished by at least two persons, due to the number of victims involved. Therefore, it was crucial for the state to show a second defendant was involved in this case, and likewise, it was crucial for the defense to show that someone else, other than the petitioner, was involved in this case as one of the active participants in these killings.

2. Pursuant to the evidence submitted during the first habeas corpus evidentiary hearing on November 15, 1998, the state believed that Teresa Carter, the wife of Robert Carter, the accomplice witness in this case, was one of the participants actively involved in these killings, and they had indicted her as such. Counsel for petitioner also had strong suspicions that Mrs. Carter was present at the scene of these killings, based upon the investigation of trial counsel and habeas corpus counsel in this matter. Therefore, suspicion that Mrs. Carter was an active participant is an undisputed fact.

3. It is further undisputed that early on in the investigation, even after Robert Carter confessed to being an active participant in these killings, he made it known that he did not wish the prosecution to involve his wife, Teresa. In fact, during the trial of petitioner, Mr. Carter, who had already been convicted and sentenced to death for this offense, entered into an "agreement" with the state to testify against petitioner, relinquishing his Fifth Amendment privilege, even while his case was pending on direct appeal to the Court Of Criminal Appeals, for a very unusual "deal" offered by the state. This "deal", which was divulged to the defense during the trial of petitioner, indicated that Carter agreed to testify for the state against petitioner, not for a reduction in his death penalty, but rather, for the agreement that if his conviction was reversed on appeal, and a new trial ordered, that the state would not seek the death penalty in a retrial, and that Carter would not ever testify against his wife, Teresa in any proceeding.

4. During that the trial of this case, the state informed the defense of this agreement, see Volume of 35, p. 4298, excerpts of which are attached hereto as Exhibit ___.

5. Throughout the entirety of this trial, and the pre-trial discovery proceedings, the state had advised counsel for the petitioner that Robert Carter had consistently named petitioner as being his sole and only co-defendant in this case in various pre-trial and Grand Jury proceedings, with the exception of one Grand Jury proceeding in which Carter had denied being involved in the crime at all. All the other statements made by Carter implicated petitioner as his sole and only co-defendant in the active killing of these victims.

6. Thus, counsel for petitioner at trial had no evidence, of any sort, in which to link directly any other co-defendant as being a participant, with Carter, in these killings. The defense were advised that Carter had always to implicated petitioner, and thus, without any evidence that Carter had named any other person as his co-defendant, other than petitioner, in the materials provided by the state to the defense, the defense was unable to impeach the testimony of witness Carter with regard to any evidence that he had named another co-defendant as being his active participant in this crime.

7. The defense realized, in preparation for trial, that everyone involved, including the jury, based upon the evidence available, would believe that least two persons were involved in the killings. But unfortunately for the defense, the information provided by the state indicated that Carter had always named petitioner, thus making the ability of the defense to impeach Carter on this testimony almost impossible. There simply was no other available evidence to show that another party was with Carter at the time he admittedly participated in killing the victims. While the defense probably thought Teresa Carter was involved, they had no evidence to submit to the jury to prove that, other than sheer speculation, which was Inadmissible before the jury.

8. However, during the habeas corpus evidentiary hearing on November 15th, 1998, the District Attorney testified that, during the trial of this case, within 48 hours or so of Robert Carter actually testifying, the prosecution team had Carter undergo a polygraph examination procedure, in additional preparation of his testimony against petitioner. It must be kept in mind that this procedure occurred during the trial of this case, and immediately before Carter testified.

9. The District Attorney related that during this polygraph -- interrogation procedure, Robert Carter, for the first time, orally informed the District Attorney, in the presence of his attorney, Walter Prentice from Austin, Texas, that, in fact, his wife Teresa was present and was an active participant in the killings in this case!

10. Thus, the statement made by Carter, admitting his wife's presence as the active second co-defendant in this matter, constituted the first occasion in which Carter had ever made such as statement of her direct involvement, and such statement, had it been known by the defense, would have been permitted the jury to hear that Teresa Carter was the active second participant in these killings.

11. The state, however, did not divulge to the defense that Robert Carter had ever orally named Teresa Carter as an active participant. It was not until the midst of this habeas corpus hearing, more than four years after the trial, that this information was disclosed for the first time.

12. Petitioner submits that this evidence, concerning the direct admission by Carter that his wife was involved, was not divulged, and was in fact, "suppressed" from the defense at the trial petitioner. Counsel for petitioner at trial will testify that they were never given the information that Carter had ever named his wife as being an active participant in the killings.

13. Carter testified before the jury in this case, and named only petitioner as being the second co-defendant. Carter never divulged, before the petitioner's jury, that Teresa Carter was present as an active participant. At no time did the state ever inform the jury that Carter had named his wife, nor did they make any attempt to elicit this information before the jury, which was completely unknown to counsel for petitioner.

14. It is without doubt that the substance of Carter's testimony indicated that he and another, i.e. petitioner, committed this crime. It is further without doubt that all the parties and the jury were of the opinion that at least two suspects were involved in the direct killings. While the jury heard Carter name petitioner as that second person, the jury was not informed that Carter had ever named his wife, a fact that could have, and would have, made a substantial difference to the preparation of the defense and the submission of defensive evidence before this jury.

15. In addition to suppressing this evidence from the petitioner's counsel at trial, it is obvious that when the state permitted Carter to testify and name only petitioner as his second co-defendant, without divulging his prior admission that his wife was present, that the state permitted "perjurous" testimony to go before the jury in this case. It is submitted that testimony that is incomplete about the number and identity of participants in the matter constitutes substantive perjury, as a matter of law, especially where witness Carter, as he did in this case, made clear his implication to the jury that it was petitioner, and petitioner alone, who helped him in commission of this offense. That evidence was simply untrue, was false, and constituted perjury.

16. However, the state did not intervene in order to correct the misimpression given by Carter that petitioner was the only active participant. It is submitted that to allow perjured testimony to go before jury, where the state had first-hand knowledge that such testimony was false, as occurred here, denies a criminal defendant due process of law.

Pursuant to the above factual summary of the events, petitioner submits that due to the "newly discovered evidence" learned by petitioner, during this habeas corpus evidentiary hearing, that he has a right to supplement his application for of habeas corpus in this matter, and to request this court to hear further evidence with regard to this issue.

II.

A petition may be considered a "subsequent writ" under the provisions of Article 11.071 (5), and subsequent case law decisions. See Ex Parte Davis, 947 S.W.2d 216. In the instant case, these issues are being raised after the original time limits set out in section 4 of the statute have expired.

However, petitioner contends that there are exceptions for the filing and consideration of this petition, under the provisions of subsection (5)(a) of the statute, which requires a this court to consider of the merits alleged herein.

Under the provisions of Section 5, Subsection 1, it is stated that:

"(A) The current claims and issues have not been and could not have been presented previously in a timely initial application or (B) in a previously considered application filed under this article or article 11.07 because the factual or legal bases for the claim was unavailable, either on the date the applicant filed the previous application, or if the applicant did not file an initial application, on or before the last date for the filing of an initial application." (emphasis supplied)

In addition, petitioner would note that, if he can show that there is "newly discovered evidence" that would, by a preponderance of the evidence, prevent a rational jury from finding the applicant guilty, or if by clear and convincing evidence such newly discovered evidence could have prevented the jury from answering one of the special issues in the state's flavor, he is entitled to absolute habeas corpus relief in this case.

Exceptions

The petitioner submits that the claims raised in this habeas corpus petitioner, albeit a subsequent application, do raise such questions which fall within the exceptions of Subsection 5, thus must be reviewed on the merits.

Initially, the claims requested to be heard at this time have not previously been presented to any court on habeas corpus. Further, it is submitted that the evidence is abundantly clear that such issues "could not have been presented", because neither the factual nor legal bases for the claim were available before June, 1998, when counsel for petitioner filed the original application in this matter.

Based upon the evidence presented in the November 15, 1998 habeas corpus hearing, and the evidence that will be heard by the court in the subsequent hearing scheduled for December 1, 1998, it is without doubt that the state never, at any time, informed trial counsel for petitioner that accomplice witness Robert Carter had ever directly named his wife, Teresa Carter, as an active participant in these killings. However, it is now undisputed that Carter did make such admission, to the District Attorney directly, and that the District Attorney never informed the defense of this admission at him.

Further, the state permitted Carter to testify before the jury that only he and petitioner were involved in this crime. Based upon his previous admission that his wife was an active participant, this subsequent testimony which implicated petitioner as his one and only co-defendant was therefore false. It was perjured testimony. The District Attorney never sought to correct this false testimony before the jury.

Since this information had never been known to the defense, either in the original trial or direct appeal proceedings, and was not discovered until the habeas corpus evidentiary hearing in the instant case, such evidence that Carter had named his wife as an active participant is, as a matter of law, "newly discovered" evidence.

Counsel for petitioner has obtained written and videotaped statements from Carter on several occasions prior to this habeas corpus matter, and Carter has, on each and every occasion in these subsequent statements, recanted his original testimony naming petitioner as a participant in these killings. However, Carter has also refused to name, in his discussions with counsel for petitioner, his wife, Teresa, as an active participant. Carter has maintained throughout the investigation by petitioner that he, and he alone, was responsible for all these killings. Thus, counsel for petitioner has been more than "diligent" in attempting to determine the substance of Carter's testimony on this issue, but it is clear that Carter is still providing false information concerning his wife's involvement in this case.

Further, during the habeas investigatoion, contact was made with Walter Prentice, the attorney for Robert Carter during his trial and appeal, and in an attempt to obtain favorable information for petitioner, Prentice was requested to divulge, if he could, in a manner consistent with his attorney client relationship with Carter, whether or not Carter had ever named another person, other than petitioner, as being an active participant in these killings. Prentice has consistently denied that Carter ever made as such admission naming any other second party.

However, based upon the testimony of the District Attorney on November 15th, 1998, it appears that the information provided by Prentice to counsel for petitioner was not correct. The District Attorney related that Prentice was present at the time Carter named his wife as being a participant. Apparently, no written report of Carter's oral admission, naming his wife, was ever made. Thus, there were no discovery materials ever available to allow petitioner or his counsel to show that this oral admission by Carter had ever been made.

Therefore, it is submitted that petitioner has shown a maximum attempted diligence in determining the true substance of Carter's participation and that of his co-defendants, but has been unsuccessful.

Petitioner submits that, as a matter of law, it is clear that the "factual basis" of these claims could never have been discovered until the middle of the habeas corpus evidentiary hearing scheduled in this case. Without the factual information, is obvious that the "legal basis" for the claims submitted were also unavailable.

*************

Further, as is required by Article 11.071, Section 5 (2), it is submitted that this new information is shown to constitute prosecutorial misconduct on the part of the state, involving the suppression of relevant, material evidence exculpatory to the defense, i.e., impeachment evidence of witness Robert Carter, which constituted admission of by Carter, admissible before the jury under Rule 804 (24), Texas Rules Of Evidence, Rule 801 (e) (2) (E) and Rule 801 (e) (1) (a). The fact that such statement was made a time when Carter's attorney was present, with the statement being made to the District Attorney himself, indicates

that this was a voluntary admission, admissible against Carter as direct evidence under the provisions of Article 38.22, Code Of Criminal Procedure.

It is clear that such testimony was admissible, and relevant, and exculpatory to the petitioner, as petitioner could have been shown, before his jury, that there was relevant evidence of an undisputed nature, from Carter himself, that there were in fact two persons involved in this crime, Carter and his wife, not Carter and petitioner.

Based upon the evidence already determined, and the evidence to be presented in future hearings in this matter, petitioner would submit, therefore, that he can show, by at least a preponderance of the evidence, that the acts of prosecutorial misconduct committed in this case clearly rendered the jury verdict in this case unreliable, and tainted, and that no rational jury could have found the applicant guilty beyond a reasonable doubt, had all of this evidence been properly presented. Further, it is also to be noted that the that such evidence could easily, even by the "clear and convincing evidence standard" caused any juror to refuse to answer the state's Special Issues during the punishment phase of the trial, as is required by section 5 (3), of 11.071.

For all the above mentioned reasons, petitioner submits that this court has jurisdiction to permit these Subsequent Habeas Corpus Issues to be filed at this time, and that these Supplemental Issues should be considered as an exception to the "subsequent application" rule of the statute.

III.

GROUND FOR HABEAS REVIEW NO. 8A

GROUND FOR HABEAS REVIEW NO. 8B

GROUND FOR HABEAS REVIEW NO. 9A

GROUND FOR HABEAS REVIEW NO. 9B

GROUND FOR HABEAS REVIEW NO. 8A - RESTATED

GROUND FOR HABEAS REVIEW NO. 8B - RESTATED

It is undisputed that the District Attorney did not disclose to the defense, during the trial petitioner, the fact that Robert Carter had named his wife, Teresa, as the second accomplice witness in this case. Where it is obvious that the jury was on the opinion that at least two "killers" were involved, such information, had it been disclosed, would have been relevant to show : (1) that Robert Carter’s previous statements refusing to name his wife were false, thus impeaching his testimony, as an inconsistent statement, usable for impeachment under Rule 801 (e) (1) (a); (2) that such admission by Carter was an admission against interest, admissible as direct evidence of the guilt of his wife, under Rule 803 (24); and most importantly, (3) that such statement naming his wife, and coming as part on the negotiations concerning his "deal" to testify as a witness against petitioner, clearly showed the motive and bias of Carter to do everything he could in his power to extricate his wife from criminal liability, including naming an innocent party, the petitioner, as his second accomplice in this crime.

Had the defense known of this oral admission, implicating Teresa Carter, the defense could have put this direct evidence in before the jury, not only to impeach Carter, but to show the lengths to which he would go to protect his wife, while the incriminating an innocent third party, and since the evidence against petitioner was, in hindsight, relatively weak with the exception on the Carter testimony, it is clear that the jury verdict in this case was tainted by the failure of the jury to hear this vital and crucial impeachment evidence.

The law pertaining to the instant claim is controlled by the Supreme Court decision in Bagley vs. United States, 105 S. Ct. at 3377, where the

Supreme Court reviewed the standard of materiality to be applied in determining whether the government's failure to disclose impeachment evidence warrants reversal of a conviction. In Bagley, evidence of the government's prior agreements to pay two government witnesses for their cooperation and testimony was not disclosed to the defense.

In reviewing this claim that Bagley was denied a fair trial, the Court noted various legal concepts applicable to this case, to wit:

and

and

and

.

See also Giglio v. United States, 405 U.S. 150, 154 (1972) and Napue v. Illinois, 360 U.S. 264, 269 (1959) ("The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend").

As a matter of law, the failure to disclose Carter’s oral admission implicating his wife to the defense, for the purposes of allowing cross examination, constituted error of a Constitutional Dimension in this case, and since said evidence was suppressed from the defense, it is clear that there has been a violation of the doctrine of Brady vs. Maryland, as well as a violation of the doctrine of Bagley vs. United States. See also Ex Parte Turner, 545 S.W.2d 470 (Informant – Agent Relationship); Ex Parte Adams, 768 S.W.2d 281; Napue V. Illinois, 79 S.Ct 1173 ; Gigilo v. U.S. , 92 S.Ct. 763 ( Promises By District Attorney To accomplices/Informers); Burkhalter v. State, 493 S.W.2d 214 (Promises Of Lessor Sentence To Accomplice); Ex parte Cook, 940 S.W.2d 123; Ex parte Mowbray, 943 S.W.2d 461; Ex parte Elizondo, 947 S.W.2d 202 .

The evidence thus reflects that the District Attorney suppressed relevant and material evidence from the defense, as the District Attorney conceded when he testified at the November 15^th hearing in this matter that he had personal knowledge that Carter named his wife, Teresa, as being the second accomplice in these killings.

Because of the particular nature of Carter's role as the State’s primary witness against Petitioner , as set out heretofore, petitioner contends that the failure to disclose this statement improper conduct constitutes "constitutional structural error", thus, Petitioner requests that, for this suppression of relevant and material impeachment evidence, this conviction in must be set aside on Habeas Corpus.

For these reasons, petitioner contends that at the conclusion of the hearing, the trial court should make findings of fact and conclusions of law, recommending that this conviction be set aside.

GROUND FOR HABEAS REVIEW NO. 9A - RESTATED

GROUND FOR HABEAS REVIEW NO. 9B - RESTATED

See facTual BACKGROUND information, paragraphs 13-16, supra, Section I.

It is undisputed that the District Attorney did not attempt to correct the false impression of the testimony given during the trial of petitioner, that Carter had consistently named only Petitioner as his accomplice in these killings. The fact is that Robert Carter had previously named his wife, Teresa, as the second accomplice witness in this case.

In fact, there is an indication that the state, in attempting to work out a "deal" with Carter, for his testimony against petitioner, may have made an implied promise to Carter that they would not implicate his wife in his testimony.

However, in order to live up to this promise to Carter, in order to secure his testimony against petitioner, the state had to refuse to bring out, in the testimony Carter gave before the jury in the trial of petitioner, any indication that they knew that Carter had implicated his wife in the actual killings in this case.

As previously mentioned, the fact that Carter had made this admission was not divulged to the defense. Teresa Carter was under indictment for this offense at one time, and the jury may or may not have known about such indictment, but had the jury in known that the actual confessed killer, Robert Carter, also had named his wife as the second accomplice, under circumstances where he had attempted to protect her from any criminal liability for some two years prior to the trial of petitioner, then it is without doubt that the jury could have utilized this evidence in a manner favorable to petitioner. The jury could have easily concluded that it was the wife, and not petitioner, who was the second accomplice at the scene assisting with the murders. This fact clearly could have given the jury more than enough evidence to render an acquittal in this matter.

It is well settled that if the state either condones the presentation, or submits perjured testimony to the jury, or does not correct any false impression left by a state’s witness as to relevant and material evidence, then a criminal defendant is deprived of due process of law. This rule was set out by the United States Supreme Court decades ago, in Alcorta V. Texas, 355 U.S. 28 (1957), where it was stated:

Is the situation in the case at bar in a different? The state, in making a deal with an accomplice witness for testimony against this petitioner, knew that the accomplice had named his wife as a direct participant in the killings. However, the state knew that Carter was very reluctant to ever implicate his wife, and in fact, sought a deal to protect his wife even to the point of waving his Fifth Amendment privilege while his direct appeal was proceeding, in order to testify against petitioner.

During these negotiations for the deal, Carter, in the presence on his attorney, admitted that his wife was present and was a direct participant in the killings. The state, in order to obtain Carter’s testimony against petitioner, had to promise him that they would not pursue his wife in a prosecution, in some form. So, when Carter testified, the state did not ask whether his wife was involved, and Carter was permitted to tell the jury that only he and petitioner committed the crime, thus leaving the false impression in the jury collective mind that since Carter had confessed, and that since it took two persons to commit this crime, i.e. killing six people in one episode, that such story it was plausible.

However, as we have clearly shown, had the jury known that Teresa Carter was present, that she, along with her husband Robert Carter, could easily have accomplished the killings, especially it if they had been armed with a pistol, as was the state’s theory, thus depriving the jury of relevant information as to the number and identity of the participants involved in this case.

Petitioner submits, as he has shown before, that had the defense known of the Carter statement implicating his wife, a reasonable showing could have been made to the jury that petitioner was not involved in this offense, especially since the primary alibi witness was denied to the defense. Petitioner was clearly deprived of a fair trial in this case.

Further, in Ex parte Castellano, 863 S.W.2d 476, the Court of Criminal Appeals stated:

Because of the particular nature of Carter's role as the State’s primary witness against Petitioner , as set out heretofore, petitioner contends that the failure to correct this incomplete and false testimony constitutes "constitutional structural error", and for these reasons, petitioner contends that at the conclusion of the hearing, the trial court should make findings of fact and conclusions of law, recommending that this conviction be set aside.

VI.

PRAYER

Wherefore, premises considered, petitioner respectfully prays that this court will find that the issues submitted in this Supplemental Application For Writ Of Habeas Corpus are cognizable, under Section 5, Article 11.071, and that the court will permit additional testimony on these issues during its hearing on December 1, 1998, and thereafter if necessary, and that upon due consideration of the evidence and arguments presented, will enter Findings Of Fact and Conclusions Of Law recommending that the conviction and death penalty in the instant case be set aside.

Respectfully submitted,

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