Ex parte Dyson

EX PARTE JAMES AARON DYSON, Applicant

No. WR-51, 197-03

Court of Criminal Appeals of Texas

September 29, 2021

Do not publish

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO C-4-W011479-0657742-C IN CRIMINAL DISTRICT COURT NO. 4 FROM TARRANT COUNTY

OPINION

PER CURIAM.

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of engaging in organized criminal activity with a firearm and sentenced to fifty years' imprisonment. Applicant's conviction was affirmed on appeal. Dyson v. State, No 02-98-0096-CR (Tex. App.-Fort Worth, Sept. 16, 1999) (not designated for publication). Applicant filed this application for writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant alleges, among other things, that, but for a witness's misleading trial testimony, Applicant would not have been convicted of engaging in organized crime. He concedes that he is guilty of the lesser-included offense of aggravated assault with a deadly weapon. Tex Penal Code § 71.02(a); Walker v. State, 594 S.W.3d 330, 338 (Tex. Crim App. 2020).

The trial court, after holding a live evidentiary hearing, recommends relief be granted. We agree. Applicant is entitled to relief. Ex parte Chaney, 563 S.W.3d 239, 263-64 (Tex. Crim. App. 2018); Ex parte Chabot, 300 S.W.3d 768, 771-72) (Tex. Crim. App. 2009).

Relief is granted. The judgment in cause number 0657742D in the Criminal District Court Four of Tarrant County is set aside, and Applicant is remanded to the custody of the Sheriff of Tarrant County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

CONCURRING OPINION

Richardson, J., filed a concurring opinion, in which Hervey and Newell, JJ., joined.

I concur in the Court's decision to grant relief. Today we decide the State presented false evidence to secure Applicant's conviction 23 years ago. We do so based on the recommendation of the trial court and the district attorney's office that now agrees they presented false evidence in order to obtain the conviction.

Applicant was convicted of the first degree felony offense of engaging in organized criminal activity for shooting and wounding Joe Cruz. Absent the organized criminal activity allegation, such an offense would be a second degree aggravated assault with a maximum punishment of 20 years. Applicant never denied shooting Cruz but always denied the shooting had anything to do with organized criminal gang activity. Instead, he was upset Cruz had murdered his best friend. At trial, the State relied heavily on the testimony of Robert Aguirre to establish Applicant was a member of a street gang, in order to show the shooting was part of an organized criminal activity. Apparently it worked, and Applicant received a 50-year sentence rather than a 20-year maximum sentence.

At trial, on appeal, and in all of his writs, Applicant always maintained that he shot Cruz because Cruz had killed his best friend and that it had nothing to do with any gang membership. In his -03 writ application, Applicant claimed he had discovered an uncommunicated 15-year plea deal, and more importantly, after Aguirre had been out of the country for 20 years, he recanted his testimony about Applicant shooting Cruz for reasons based on Applicant's gang affiliation. Initially we dismissed this application as a subsequent writ; however, in an unusual move, pursuant to TRAP 79.2(d), the State, not the Applicant, asked this Court to reconsider the case on its own initiative. We did.

This Court remanded this case to the trial court to determine if Applicant would have been convicted of engaging in organized criminal activity, but for Aguirre's misleading trial testimony. We can assume that this Court's order was not meant as an effort in futility and that some deference would be given to the time and effort made to conduct such a hearing, since it was this Court that decided to reconsider the case on its own initiative. Again, this suggestion was made by the State, not Applicant. During the hearing, the habeas court considered the credibility of Aguirre's recantation and whether, but for the false evidence of Applicant's gang affiliation, the result would have been different. At the conclusion, the parties prepared agreed proposed findings and conclusions and presented those to the habeas court. The habeas court agreed with those findings of fact and conclusions of law and recommended that relief be granted. Once again, the State agreed with this recommendation and joined the habeas court in recommending the sentence be reformed to an aggravated assault with a deadly weapon, and remanded for a new sentencing hearing. As ordered, those findings were forwarded to this Court.

The dissent would now have us disregard the extensive credibility findings and conclusions by the habeas court that we ordered to take place and with which the State agrees. Although the Court has raised laches in the past, we do not raise it here because 1) the State has never raised laches; 2) the State would not be materially prejudiced as a result of the delay, because the State agrees Applicant is entitled to relief, a material witness lied, and the lesser included conviction of aggravated assault will still remain; 3) Applicant's delay was not unreasonable because it was due to a justifiable excuse - Aguirre did not admit until years later that he lied; 4) and Applicant is entitled to equitable relief Ex Parte White, 2020 WL 1873863, at *3 (Tex Crim App April 15, 2020) (not designated for publication) (Newell, J, concurring); Ex Parte Perez, 398 S.W.3d 206, 218 (Tex. Crim. App. 2013).

Article 2.01 of the Texas Code of Criminal Procedure provides, "[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused." Tex. Code Crim. Proc. Ann. art. 2.01. That is precisely what the State has done in this case. They have conceded a material witness provided false testimony; years later the witness admitted his trial testimony was false, and the habeas judge agreed. The State also agreed with the habeas court's findings that that the testimony by the gang officer classifying Applicant as a gang member "had no substantive basis" and was false or misleading. When the State concedes they used material testimony that is false to obtain a conviction and a habeas court agrees, applicants should be afforded relief from the highest court in the State. To hold otherwise would call into question the principles of fairness and impartiality on which our legal system is based. With these thoughts, I concur in the Court's order.

DISSENTING OPINION

Yeary J., filed a dissenting opinion in which Keller, P.J., and Slaughter, J. joined.

Today the Court decides that 23 years ago, the State presented false evidence to secure Applicant's conviction. I respectfully dissent.

Applicant was convicted in 1998 of the offense of engaging in organized criminal activity and sentenced to fifty years' confinement in the penitentiary. Although the jury was presented with an option to convict Applicant of the lesser included offense of aggravated assault, it rejected that option, and found instead that he committed that offense and that he did so "as a member of a criminal street gang." Tex. Penal Code § 71.02(a)(1). Thus his punishment range was established at the level of a first-degree felony rather than at the level of a second-degree felony. Compare Tex. Penal Code § 71.02(b) (engaging in organized criminal activity is "one category higher" than the most serious...