Ex parte Nicholson

634 S.W.3d 743 (Mem)

EX PARTE Mallory Vernon NICHOLSON, Applicant

92,799-01

92,799-02

92,799-03

Court of Criminal Appeals of Texas.

FILED: November 10, 2021

Gary A. Udashen, Dallas, for Applicant.

DISSENTING OPINION

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

Applicant was convicted in 1982 of burglary of a habitation and two aggravated sexual abuse of a child offenses involving separate victims. He was then sentenced to eight years’ imprisonment for the burglary and fifty-five years’ imprisonment for each aggravated sexual abuse case, with all sentences running concurrently. The Fifth Court of Appeals affirmed his conviction in 1984. Nicholson v. State , Nos. 05-82-01307-CR; 05-82-01308-CR; 05-82-01309-CR (Tex. App.—Dallas Feb. 27, 1984, no pet.) (per curiam) (not designated for publication).

Applicant filed these applications for writ of habeas corpus in the county of conviction in 2021, alleging that the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and alternatively, that he received ineffective assistance of trial counsel. TEX. CODE CRIM. PROC. art. 11.07. Nearly forty years after his convictions, with the State's agreement and consistent with the trial court's recommended findings and conclusions, the Court summarily grants relief today on Applicant's Brady claim. Instead of granting relief, I would remand for further fact finding.

Both Applicant and the State agree that defense counsel filed a pre-trial Motion for Evidence Favorable to the Defendant, which was granted. This would appear to have required the State to disclose several items of exculpatory evidence, even as the law was well understood at the time of Applicant's trial, including: police reports documenting conversations with the victims which identified another suspect; sexual assault exam reports which noted a description of the assailant as a fourteen-year-old, whereas Applicant was thirty-five years old at the time; and prosecutor notes listing the assailant's hair length as short, which was inconsistent with Applicant's hair length. All of this would appear to have supported the defense's primary trial posture of mistaken identity. But there is no way to tell from the surviving record whether the State actually turned over the information to the defense pursuant to the order granting Applicant's Brady motion.

Applicant's trial counsel is now deceased, and his files have been destroyed. See Attachment H to Applicant's Memorandum of Law in Support of Application for Writ of Habeas Corpus (indicating defense counsel died in 1996, and his case files were destroyed in approximately 2006). The prosecutor whose responsibility it was to provide pre-trial discovery to the applicant's counsel is also deceased. See State's Exhibit 19 to State's Response to Application for Writ of Habeas Corpus. And the other prosecutor who worked on Applicant's case has no recollection any longer about whether appropriate discovery was afforded. See id. ("I do not have any specific recollections of this case [and] I have no independent recollection of how discovery was done[.]").

Nevertheless, Applicant has the burden to both allege and prove facts which would entitle him to relief. Ex parte Maldonado , 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). To succeed on a Brady claim, an Applicant must prove that the State suppressed material evidence favorable to him. Harm v. State , 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). While the State has confessed error in this respect, this Court is not bound by that confession. See Estrada v. State , 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) ("While the State's confession of error in a criminal case is important and carries great weight, we are not bound by it."); Saldano v. State , 70 S.W.3d 873, 884 (Tex. Crim. App. 2002) ("A confession of error by the prosecutor in a criminal case is important, but not conclusive[.]"). That principle is even more compelling in the context of a post-conviction writ of habeas corpus, in which "this Court is the ultimate fact-finder[,]" Ex parte Navarijo , 433 S.W.3d 558, 567 (Tex. Crim. App. 2014), and when the confession of error is based on speculation.

Perhaps it could be argued that the fact that defense counsel did not use the aforementioned exculpatory evidence at trial supports the conclusion that a Brady violation occurred. The argument would go that defense counsel did not use the evidence to his advantage at trial, and it appears it may have been helpful, so it must not have been available for him to use. But in this writ application Applicant has also raised a parallel claim that he received ineffective assistance of counsel, and this Court does not grant relief on that claim. The Court has suggested in the past that, ordinarily, relief should not be granted on a claim of ineffective assistance until trial counsel has been given an opportunity to rebut or affirm a claim that he performed deficiently. Bone v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ; Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). But it has already been established that trial counsel ...