nugent amicus brief
TRANSCRIPT
No. WR-81,532-01 ___________________________________________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
___________________________________________________
EX PARTE BERNHARDT TIEDE II
___________________________________________________
On Application for Writ of Habeas Corpus from the 123rd Judicial District Court of Panola County, Texas
Cause No. 1997-C-103-A
___________________________________________________
BRIEF OF AMICUS CURIAE FAMILY OF MARJORIE NUGENT
___________________________________________________
Charles “Chad” Baruch Texas Bar Number 01864300
LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028
E-mail: [email protected] Counsel for Amicus Curiae Family of Marjorie Nugent
i
IDENTITY OF PARTIES AND COUNSEL
Applicant Bernhardt Tiede II Jodi Calloway Cole David A. Schulman Texas Bar Number 24045602 Texas Bar Number 17833400 LAW OFFICE OF JODI CALLOWAY COLE Post Office Box 783 502 West 30th Street Austin, Texas 78767 Austin, Texas 78705 John G. Jasuta Texas Bar Number 10592300 Post Office Box 783 Austin, Texas 78767 The State of Texas Danny Buck Davidson Texas Bar Number 05430800 CRIMINAL DISTRICT ATTORNEY, PANOLA COUNTY Panola County Justice Center 108 South Sycamore, Room 301 Carthage, Texas 75633 Amicus Curiae Family of Marjorie Nugent (Dr. Rod Nugent, Alexandria Lynn Nugent, Susan Nugent Jenull, Shanna Nugent Cobbs, and Mathew Tod Nugent) Charles “Chad” Baruch Texas Bar Number 01864300 THE LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS ......................................................................................... ii
INDEX OF AUTHORITIES ................................................................................... iv
INTEREST OF AMICUS CURIAE........................................................................ vi
STATEMENT OF THE CASE ............................................................................... vi
STATEMENT OF JURISDICTION ....................................................................... vi
ISSUES PRESENTED ........................................................................................... vii
STATEMENT OF FACTS........................................................................................1
SUMMARY OF THE ARGUMENT........................................................................6
ARGUMENT.............................................................................................................8
1. Tiede’s “new” evidence isn’t new; he knew about it at the time of trial—and even testified contrary to some of it...............................................8
A. Tiede’s first issue, based on “newly available evidence,” fails to state a proper basis for relief.....................................................................8
B. Tiede’s second issue, based on “false” evidence, fails to state a proper basis for relief .............................................................................8
2. Tiede cannot obtain relief under either issue because nothing suggests the outcome would have been different with the “new” evidence ..................8
CONCLUSION .......................................................................................................25
CERTIFICATE OF COMPLIANCE.......................................................................26
CERTIFICATE OF SERVICE................................................................................26
iii
INDEX OF AUTHORITIES
Cases
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) ............................................................ 14
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) .............................................................. 14 Ex parte Beck,
922 S.W.2d 181 (Tex. Crim. App. 1996) (per curiam) ....................................... 15 Ex parte Briggs,
187 S.W.3d 458 (Tex. Crim. App. 2005) ............................................................ 18 Ex parte Brown,
205 S.W.3d 539 (Tex. Crim. App. 2006) ...................................................... 16, 17 Ex parte Calderon,
309 S.W.3d 64 (Tex. Crim. App. 2010) .............................................................. 18 Ex parte Chavez,
213 S.W.3d 320 (Tex. Crim. App. 2006) ................................................ 16, 23, 24 Ex parte Chavez,
371 S.W.3d 200 (Tex. Crim. App. 2012) ................................................ 24, 25, 26 Ex parte Martin,
6 S.W.3d 524 (Tex. Crim. App. 1999) ................................................................ 14 Ex parte McCain,
67 S.W.3d 204 (Tex. Crim. App. 2002) .............................................................. 15 Ex parte McIver,
586 S.W.2d 851 (Tex. Crim. App. 1979) ............................................................ 15 Ex parte Robbins,
360 S.W.3d 446 (Tex. Crim. App. 2011) .......................................... 14, 16, 20, 21
iv
Ex parte Zapata, 235 S.W.3d 794 (Tex. Crim. App. 2007) (per curiam) ....................................... 18
Mizell v. State,
119 S.W.3d 804 (Tex. Crim. App. 2003) ............................................................ 15 Potier v. State,
68 S.W.3d 657 (Tex. Crim. App. 2002) ................................................................ 6 Tiede v. State,
104 S.W.3d 552 (Tex. App.—Tyler 2000)............................................................ 6 Tiede v. State,
76 S.W.3d 13 (Tex. Crim. App. 2002) .................................................................. 6 Tiede v. State,
No. 12-99-00182-CR, 2002 WL 31618281 (Tex. App.—Tyler Nov. 20, 2002, pet. ref’d) (not designated for publication)............................................... 6,7
Vasquez v. State,
No. 05-13-00347-CR, 2014 WL 1413898 (Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for publication) .................................. 24
Statutes
37 TEX. ADMIN. CODE. § 143.52 (2014) (Tex. Board of Pardons and Paroles) ......16
TEX. PEN. CODE ANN. § 19.02(d) (West 2011)..................................................26, 27
TEX. CIV. PRAC. & REM. CODE § 16.001 (West 2012) ............................................20
TEX. CODE. CRIM. PROC. ANN. § 11.07 (West Supp. 2013) ......................................v
v
INTEREST OF AMICUS CURIAE
Amicus Curiae—Dr. Rod Nugent, Alexandria Lynn Nugent, Susan
Nugent Jenull, Shanna Nugent Cobbs, and Mathew Tod Nugent—are the
only child and four grandchildren of the victim, Marjorie Nugent. No
counsel for a party wrote this brief in whole or in part. Neither the parties
nor their counsel made any monetary contribution to fund the preparation or
submission of this brief. Amicus Curiae paid the undersigned counsel to
prepare this brief.
STATEMENT OF THE CASE
Nature of the Case: Habeas proceeding arising from conviction and life sentence for murder.
Trial Court and Judge: Hon. Diane V. DeVasto, sitting by
assignment to the 123rd Judicial District Court, Panola County, Texas.
Disposition: Recommendation that new punishment
hearing be granted.
STATEMENT OF JURISDICTION
The Texas Court of Criminal Appeals has jurisdiction because this is
an application for habeas corpus relief under state law. TEX. CODE. CRIM.
PROC. ANN. § 11.07 (West Supp. 2013).
vi
ISSUES PRESENTED
1. Whether Tiede is entitled to habeas corpus relief based on his
claim of newly available evidence where that newly available evidence rests
entirely on facts known to him at the time of trial—and which he chose to
conceal.
2. Whether Tiede is entitled to habeas corpus relief based on his
claim of conviction on false evidence where any misinformation received by
the jury was entirely Tiede’s fault, and he could have corrected the
misinformation without imperiling his privilege against self-incrimination.
3. Whether Tiede is entitled to habeas corpus relief based on either
claim where reams of evidence support the jury’s sentence and suggest
nothing would have been different even with the “new” evidence.
1
TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
A criminal defendant may not create his own basis for habeas corpus
relief by concealing facts at trial, then later revealing these facts and calling
them “newly available evidence.” Assuming Tiede’s present claims of abuse
are true, he knew about them when he and the expert witnesses testified
during his sentencing hearing. But he chose to conceal them—and, indeed,
even testify contrary to one of them. Under these circumstances, there is
neither newly available evidence nor any due process violation. And nothing
suggests the jury’s sentence—supported by substantial evidence of
premeditation and financial motive—would have been different even with
introduction of the “new” evidence.
STATEMENT OF FACTS
Bernhardt Tiede II worked at a funeral home in Carthage, Texas. In
1990, he became “friends” with wealthy widow Marjorie Nugent after
assisting in her husband’s funeral.1 Eventually, Tiede retired from his job to
become Marjorie’s companion and caregiver.2
On November 19, 1996, Tiede murdered Marjorie by shooting her
four times in the back as she bent down to pet her dog, then stuffing her
1 10 R.R. 120. “R.R.” refers to the original trial transcript. 2 10 R.R. 123.
2
body into a freezer, covering it with bags of frozen food, and sealing it with
tape.3
Tiede hid his crime until August of 1997, when authorities arrested
him. In 1999, a San Augustine County jury found Tiede guilty of Marjorie’s
murder. By the time the jury sentenced Tiede, it had heard evidence
including the following:
(1) Tiede thought about murdering Marjorie for a couple of months
before finally doing so.4
(2) Before the murder, Tiede moved the murder weapon, a rifle,
from a freezer closet into a bathroom near the spot where he killed her.5
(3) Tiede was in dire financial straits before becoming “friends”
with Marjorie.6
(4) After becoming her companion, Tiede controlled Marjorie’s
money and signing checks on her accounts.7
(5) Tiede obtained a power of attorney from Marjorie after “really
pressuring” her to give it to him.8
3 6 R.R. 352; 7 R.R. 608, 614, 616-18, 626-27; 10 R.R. 133. 4 8 R.R. 169; 10 R.R. 134, 173. 5 8 R.R. 869. 6 5 R.R. 34-38. 7 5 R.R. 119-122, 137. 8 5 R.R. 146.
3
(6) At Marjorie’s expense, she and Bernie took trips—usually
flying first class—to New York (four times), Las Vegas (three times), Egypt,
Russia, Big Bend Country, Washington, Germany, Switzerland, San
Francisco, England, Canada, Alaska, Panama, Hong Kong, and other
destinations.9
(7) On one occasion, Tiede became visibly upset when Marjorie
decided to make a substantial donation to her church.10
(8) After murdering Marjorie, Tiede appeared unchanged—he was
the “same old Bernie”—taking trips and living as usual.11
(9) The very night of the murder, Tiede attended a dress rehearsal
for the Panola College production of Guys & Dolls—and then took the
entire cast out for pizza.12
(10) In the months after he murdered Marjorie, Tiede—
• told various lies about her whereabouts to different people;13
• threw parties in her home, including a Mardi Gras costume party;14
• took trips to New York and Paris—even paying for a friend to
accompany him to Paris;15 9 5 R.R. 119, 136; 6 R.R. 298-99; 10 R.R. 146-53, 156. 10 6 R.R. 269. 11 5 R.R. 97, 213; 10 R.R. 43. 12 6 R.R. 371-72. 13 5 R.R. 152-53; 6 R.R. 272-75, 304. 14 6 R.R. 252, 256; 10 R.R. 49. 15 6 R.R. 383-84; 10 R.R. 152, 159.
4
• had Marjorie’s ticket to New York reissued—only two weeks
after the murder—so a different friend could make the trip with him;16
• cashed checks made out to Marjorie;17
• spent substantial sums of money, including purchasing a
business for $40,000, buying new crystal and new furniture, purchasing a coin collection for $12,000, investing or spending more than $25,000 in a friend’s store, and giving $100,000 to the church building fund;18
• bought cars as gifts for at least two friends, at a total cost of
nearly $50,000;19
• had a power of attorney on one of Marjorie’s checking accounts;20
• took affidavits—bearing what he claimed were Marjorie’s
signatures—necessary for management of Marjorie’s trust account to be notarized by a friend and submitted them to the bank managing the trust;21 and
• sent a letter purporting to bear Marjorie’s signature to
Prudential seeking a wire transfer of $225,000 from her account.22
Finally, in perhaps the most damaging testimony from a sentencing
perspective, the jury heard evidence that in the months after he murdered
Marjorie, Tiede took a trip to Nashville—accompanying and sharing a room 16 7 R.R. 383. 17 7 R.R. 677-78. 18 10 R.R. 160-62; 6 R.R. 316, 349-50. 19 10 R.R. 95-96, 162. 20 10 R.R. 163. 21 5 R.R. 53-58; 6 R.R. 358. 22 10 R.R. 165.
5
with another elderly, wealthy widow.23
Teide chose to testify during his sentencing hearing. During that
testimony, the prosecutor questioned Tiede specifically about his lawyers’
attacks on Marjorie’s character. When asked how it made him feel to hear
Marjorie portrayed as “a bad person,” Tiede said: “It hurt me.”24 When
asked whether Marjorie was mean to him, Tiede replied that she was “more
possessive” but “I wouldn’t say exactly mean.”25 Neither Tiede’s confession
to police nor his sentencing testimony contains any reference to any
immediate provocation by Marjorie before the murder other than her
“possessiveness.”26
In conjunction with sentencing, Tiede sought to introduce evidence—
in the form of testimony from Dr. Frederick Mears—that he murdered
Marjorie as the result of sudden passion. Before Mears testified, the
prosecutor examined him on voir dire. Mears stated that he would testify
that: (1) Tiede’s capacity for cool reflection was degraded or diminished by
the stress of his relationship with Marjorie and the demands that she placed
on him; and (2) Tiede had experienced dissociative episodes in which he
23 6 R.R. 346, 349; 7 R.R. 539. 24 10 R.R. 139. 25 10 R.R. 139. 26 10 R.R. 136.
6
mentally separated from the act of killing Nugent.27 This last testimony was
intended to rebut the State’s evidence concerning Tiede’s behavior after the
murder.
The State objected to this testimony on the ground that it was not
admissible under Texas Rule of Evidence 702 in that it was not helpful to
the jury. The trial court allowed Mears to testify about dissociative behavior
in general but did not allow him to discuss his examination, testing, or
evaluation of Tiede specifically.28
In the presence of the jury, Mears described dissociative disorder as a
“situation in which the person can really more or less become somewhat
different than they normally were . . . So some people can become
dissociative, and that means they really are sort of engaging in a high level
of repression where they can almost develop two different aspects of
themselves.”29 Mears testified that people engaged in funeral-related
occupations, and those who have a history of childhood trauma, tend to
develop “controlled dissociation.”30
During an offer of proof outside the presence of the jury, Mears
testified that he believed Tiede had dissociative episodes when describing
27 10 R.R. 213-15. 28 10 R.R. 217-20. 29 10 R.R. 225-26. 30 10 R.R. 226.
7
Marjorie’s murder.31 Mears did not testify one way or the other about any
childhood trauma or any abuse of Tiede by Marjorie; he stated simply that
he was not suggesting the existence of any trauma or abuse—but he did not
affirmatively state none occurred.32
The State called its own expert, Dr. Edward Gripon. When asked
about the relevant of dissociation to the case, Gripon replied “[t]here isn’t
any” and stated that “there’s no relevance to dissociation in this matter.”33
Gripon further testified that it was not “psychiatrically probable” that a
person would have a single dissociative episode without having a
dissociative disorder—and that such a disorder would not likely resolve over
time.34
The court’s charge on punishment instructed the jury that it had two
possible sentence ranges. If the jury found that Tiede acted under “the
immediate influence of a sudden passion arising from adequate cause,” then
the range of punishment was two to twenty years. Otherwise, the range was
five years to life. The jury sentenced Tiede to life imprisonment and a fine of
$10,000.
31 10 R.R. 233. 32 10 R.R. 236. 33 10 R.R. 245. 34 10 R.R. 250.
8
Tiede appealed, asserting grounds of error including issues related to
jury selection, admissibility of his confession, and exclusion of the
testimony of Mears. The Tyler Court of Appeals affirmed the conviction but
remanded for a new hearing on punishment, finding the trial court’s
exclusion of the testimony by Mears to be improper. Tiede v. State, 104
S.W.3d 552, 564-65 (Tex. App.—Tyler 2000).
This Court granted review, vacated the judgment of the court of
appeals, and remanded for reconsideration in light of Potier v. State, 68
S.W.3d 657 (Tex. Crim. App. 2002). Tiede v. State, 76 S.W.3d 13, 14 (Tex.
Crim. App. 2002). On remand, the court of appeals found any error harmless
and affirmed the trial court’s judgment. Tiede v. State, No. 12-99-00182-CR,
2002 WL 31618281 (Tex. App.—Tyler Nov. 20, 2002, pet. ref’d) (not
designated for publication).
In 2011, Tiede achieved statewide and even national prominence as
the result of the movie Bernie, starring Matthew McConaughey, Jack Black,
and Shirley MacLaine. The film portrays Tiede as locally beloved; it vilifies
Marjorie.
On April 14, 2014, Tiede filed the application for a writ of habeas
corpus now under review. In his application, Tiede alleges two grounds for
relief. First, he claims to present “relevant scientific evidence” that “was not
9
available to be presented” at the time of trial, and which contradicts the
State’s trial evidence. Second, Tiede claims this “new evidence” renders
certain sentencing testimony false and thus undermines confidence in the
jury’s life sentence.
Tiede’s “new evidence” consists of expert opinions based on his
recent revelations to a psychologist of (1) childhood sexual abuse and (2)
what he claims was abusive behavior toward him by Marjorie. Tiede’s
application cites the following three examples of “abuse” by Marjorie:
(1) She “made” him shoot armadillos while she “demeaned and ridiculed” him;
(2) She demanded that he shave her legs while she
undressed, and “made” him massage her back with a vibrator; and
(3) She criticized a man with whom Tiede had a
homosexual relationship.
Tiede’s application cites no other instance of “abuse” by Marjorie.
According to Tiede’s application, his present counsel—in the course
of investigating potential habeas relief—discovered the presence of four
self-help books for survivors of childhood sexual abuse among an inventory
of items taken from Tiede’s home during the original investigation. She
presented this information to Dr. Noel Bridget Busch-Armendariz, a
10
psychologist working with Tiede. According to Busch-Aremndariz, Tiede
eventually revealed the abuse to her during their sessions.35
Tiede does not claim that any of this “new evidence” was unknown to
him at the time of trial. Instead, Tiede relies on affidavits from mental health
professionals stating that victims of childhood sexual abuse often are
ashamed to admit their victimization even into adulthood. Dr. Alissa Sherry
and LCSW Elizabeth Cohen tendered affidavits stating that victims of
childhood sexual abuse often conceal it for many years.36 Busch-Armendariz
tendered an affidavit stating that Tiede had revealed the sexual abuse to her,
and reiterating that victims often conceal their abuse.37
Dr. Richard Pesikoff also tendered an affidavit. Pesikoff’s conclusions
lie at the heart of Tiede’s application, as his work forms the basis for
conclusions drawn by other experts in the case. Pesikoff based his
conclusions on a single meeting with Tiede, a phone interview with Tiede’s
sister, conversations with Tiede’s habeas lawyer, an affidavit from one of
Tiede’s friends, and the report by Busch-Armendariz addressing childhood
35 Habeas Application, Exhibit D. 36 Habeas Application, Exhibits C, E. 37 Habeas Application, Exhibit D.
11
sexual abuse; significantly, Pesikoff makes no mention of reviewing Tiede’s
trial testimony.38
Pesikoff testified that Tiede recounted “numerous examples of
[Marjorie’s] mean and nasty behavior towards him,” but describes only the
three purported events contained in Tiede’s habeas application. Pesikoff
concluded that Marjorie’s “repeated abusive behavior” towards Tiede
“ultimately erased” his coping skills “resulting in his outburst of aggression”
during a “ psychological dissociative experience.” Pesikoff also concluded
that Tiede has no diagnosable psychiatric disorders and poses no future
threat to society.39
Gripon also tendered an affidavit stating that he did not know about
any of the alleged abuse at the time of trial. Based on this “new evidence,”
Gripon concluded that Tiede murdered Marjorie during a “brief dissociative
episode” while “under the immediate influence of sudden passion arising
from an adequate cause” that was “induced by both prior and immediate
provocation” from Marjorie.40 Finally, Mears tendered a new report echoing
38 Application Exhibit G. 39 Habeas Application, Exhibit G. 40 Habeas Application, Exhibit H.
12
the opinions of Pesikoff and Gripon as to the existence of a dissociative
event.41
The trial court conducted a hearing on Tiede’s application. The State
waived response and agreed to Tiede’s request for relief. At the beginning of
the hearing, the trial court announced that it had reviewed and would take
judicial notice of Tiede’s application and supporting materials, as well as the
complete reporter’s record and clerk’s record from the original trial and the
appellate decisions.42 Tiede and the State then presented the trial court with
stipulated findings of fact and conclusions of law.43 The State sought only
one change to these stipulated facts: that Tiede’s reference to “bad faith” by
the State be changed to read “no bad faith.”44
Tiede called no witnesses, resting on his exhibits.45 The State
introduced an affidavit from District Attorney Danny Buck Davidson46
stating that had he known of the abuse, he would have sought a maximum
sentence of 20 years for Tiede.47
The State also called Gripon to testify. Gripon reiterated his affidavit
testimony that he now believes Tiede murdered Marjorie not for her money 41 Habeas Application, Exhibit I. 42 W.R.R. 6, 10. “W.R.R.” refers to the habeas hearing transcript. 43 W.R.R. 7-8, 36-37. 44 W.R.R. 9. 45 W.R.R. 10. 46 W.R.R. 11. 47 W.R.R. 34.
13
but as the result of a dissociative event.48 Before changing his opinion,
Gripon conducted a single three-hour interview of Tiede and reviewed
Pesikoff’s report.49 Gripon did not mention his trial testimony concerning
the improbability of a dissociative event without underlying dissociative
disorder, or the unlikelihood that such a disorder would resolve over time.
Throughout the entire process, Tiede never testified in person or by
affidavit. Tiede never provided any sworn testimony of:
• the purported childhood sexual abuse,
• the alleged abuse by Marjorie,
• any immediate provocation by Marjorie preceding the murder,
• why he apparently lied to the jury and said he would not characterize Marjorie as mean,
• whether he told his original trial lawyers about the abuse, or
• if he did not tell them, why he did not tell them.
Following the hearing, the trial court adopted the agreed findings of
fact and conclusions of law. The trial court’s findings of fact include the
following:
53. Evidence that [Tiede] had a long history of being sexually abused and had sustained a significant degree of psychological, emotional and other abuse by the decedent would have been important in making this determination
48 W.R.R. 20, 24. 49 W.R.R. 14, 16.
14
[as to whether he experienced a dissociative episode]. Instead, what the jury heard was that [Tiede] had no history of being abused and had a clean mental health history.
. . . 62. Relying on Exhibit I, the Court finds that, had the new evidence been available at the time of trial, it is doubtful that the trial court would have excluded Dr. Mears’ testimony in front of the jury.
. . . 65. Relying on Exhibit H, the Court finds that there is a reasonable probability that a dissociative episode could have been involved in this offense and the subsequent behavior of [Tiede]. 66. When the underlying conviction was obtained, the State was represented by its elected Criminal District Attorney, Danny Buck Davidson.
. . . 68. Specifically, Mr. Davidson has indicated that, with knowledge of all the newly available evidence, he would have sought only a twenty-year sentence. Furthermore, there would be no guarantee that Mr. Davidson (sic) would have received the requested sentence of 20 years; as the entire range of punishment for which Mr. Tiede was eligible was 2-20 years in TDCJ-CID. 69. Had he known that [Applicant] had a long history of sexual abuse as a child and had been abused by the decedent herself, the testimony of Dr. Gripon, the State’s expert, would have been significantly different. 70. Had Dr. Gripon been able to testify at trial in the manner set out in Sealed Exhibit 5, it is highly likely that
15
the jury’s verdict on punishment would have been different.50
Based on these findings, the trial court made the following
conclusions of law:
1. The new evidence detailed in the sealed exhibits constitutes scientific evidence which was not available to be offered at the time of the trial in the instant case, and which contradicts scientific evidence relied on by the State at trial. 2. Because of the new evidence detailed in the sealed exhibits, there is a reasonable probability that the outcome of the original trial court have been (sic) different. 3. Because of the evidence detailed in the sealed exhibits, the Court’s confidence in the outcome of the punishment phase of trial is undermined.51
The trial court recommended relief in the form of a new punishment
hearing, and released Tiede on bond.52
SUMMARY OF THE ARGUMENT
Tiede’s “new evidence” relates to his recent revelations of purported
abuse. Tiede knew about that abuse at the time of trial. Rather than reveal it,
he chose to conceal—and even testify contrary—to it. An applicant like
50 Findings of Fact, Conclusions of Law, Recommendation, and Order at 10-12. 51 Findings of Fact, Conclusions of Law, Recommendation, and Order at 13. 52 Findings of Fact, Conclusions of Law, Recommendation, and Order at 13.
16
Tiede, who knew of the evidence or bears the fault for failure to obtain it, is
not entitled to habeas corpus relief based on newly available evidence.
Similarly, Tiede bears sole responsibility for any affirmative
misinformation received by the jury. Tiede alone possessed the information
necessary to prevent or correct the misinformation he now relies upon in
seeking relief. Moreover, because all the testimony occurred during
sentencing proceedings, Tiede could have revealed this information without
incriminating himself. Thus, he cannot obtain relief based on introduction of
false evidence, even if any was introduced.
Finally, the jury’s sentence enjoys overwhelming support in the
evidence. Nothing suggests that the “new” evidence would have made any
difference. As a result, Tiede cannot obtain relief under either issue. The trial
court abused its discretion in recommending a new sentencing hearing.
ARGUMENT
This Court reviews a trial judge’s decision to grant or deny relief on a
writ of habeas corpus for an abuse of discretion. See Ex parte Elizondo, 947
S.W.2d 202, 210 (Tex. Crim. App. 1996). “In a post-conviction review of a
writ of habeas corpus, this Court is the ultimate factfinder.” Ex parte
Robbins, 360 S.W.3d 446, 457 (Tex. Crim. App. 2011).
Generally, this Court defers to the trial judge’s determination of
17
historical facts so long as the record supports them. See Ex parte Martin, 6
S.W.3d 524, 526 (Tex. Crim. App. 1999) (citing Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997)). This Court reviews the trial judge’s
legal conclusions de novo. See Ex parte Martin, 6 S.W.3d at 526.
1. Tiede’s “new” evidence isn’t new; he knew about it at the time of trial—and even testified contrary to some of it.
Article 11.07 of the Texas Code of Criminal Procedure authorizes
post-conviction habeas corpus relief for claims involving jurisdictional
defects and violations of fundamental or constitutional rights. See Ex parte
McCain, 67 S.W.3d 204, 210 (Tex. Crim. App. 2002).
A claim of an illegal sentence is cognizable on a writ of habeas
corpus. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex
parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam); Ex
parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979). “A sentence
which is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” Mizell, 119 S.W.3d at 806
(citations omitted).
Tiede does not allege that his sentence was outside the permissible
range of punishment or otherwise was illegal. After all, the jury was
instructed that it could consider the full range of punishment from five years
to life in prison, or from two to twenty years if it found Tiede acted out of
18
sudden passion. Instead, Tiede claims that habeas relief is warranted
because, had he chosen to reveal the purported abuse, the district attorney
would have sought—or, alternatively, the jury might have assessed—a
lighter sentence.
In reality, Tiede simply advances a sort of free-form argument for
commutation of his sentence in what he contends is the interest of justice.
But the proper vehicle for this request is through the provisions of the Texas
Administrative Code—not an application for habeas corpus relief. See 37
TEX. ADMIN. CODE. § 143.52 (2014) (Tex. Board of Pardons and Paroles).
A. Tiede’s first issue, based on “newly available evidence,” fails to state a proper basis for relief.
Tiede’s first issue contends that “newly available” evidence
contradicts evidence presented at his sentencing hearing. Normally, a habeas
corpus claim based on new evidence requires proof of actual innocence to
rise to the level of a constitutional violation. Ex parte Brown, 205 S.W.3d
539, 546 (Tex. Crim. App. 2006); see also Ex parte Robbins, 360 S.W.3d at
458-59. But this Court has recognized that actual innocence nomenclature
may not always be relevant to sentencing challenges. In such cases, the
relevant inquiry becomes whether the “sentencer’s normative judgment has
been affirmatively misinformed” to such a degree that it rendered the
original sentencing proceeding “intolerably unfair” in violation of the Due
19
Process Clause. Ex parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App.
2006).
The notion that a criminal defendant can:
• conceal from his trial lawyers what he contends is critical information,
• actually testify contrary to some of that information,
• reveal the information long after trial and ask experts to comment
on it, and
• cite the resulting expert opinions as “newly available evidence” supporting habeas relief,
is outrageous and unsupported by Texas law. If accepted, it would be a
prescription for defendants to game the system by using their own
concealment of facts to support future habeas relief.
Tiede’s “new” evidence consists of expert opinions based on his
recent revelations of the purported childhood sexual abuse and alleged abuse
by Marjorie. Curiously, Tiede has not provided any sworn testimony
establishing either instance of abuse; all the testimony is from mental health
professionals stating that Tiede told them about the abuse. Likewise, nothing
in the record suggests whether Tiede told his lawyers or anyone else about
the abuse before his trial. All the record establishes is that neither Mears nor
Gripon knew about it at sentencing. But Tiede knew these facts throughout
the entire process.
20
“The term ‘newly discovered evidence’ refers to evidence that was
not known to the applicant at the time of trial and could not be known to him
even with the exercise of due diligence.” Ex Parte Brown, 205 S.W.3d at
545. Thus, Tiede cannot obtain habeas corpus relief by relying “upon
evidence or facts that were available at the time of his trial . . . .” Id.
(citations omitted); see also, e.g., Ex parte Briggs, 187 S.W.3d 458, 465
(Tex. Crim. App. 2005).
The term “newly available evidence” refers—at least in the habeas
corpus context—to evidence not previously available to the applicant
through no fault of his own. In discussing the concept of newly available
evidence, this Court has twice emphasized the applicant’s lack of any
responsibility for previous unavailability of the evidence. See, e.g., Ex parte
Calderon, 309 S.W.3d 64, 71 (Tex. Crim. App. 2010); Ex parte Zapata, 235
S.W.3d 794, 795 (Tex. Crim. App. 2007) (per curiam) (applicant “was
unable to produce the recantation testimony of his daughters [at the
sentencing hearing], through no fault of his own”).
Tiede does not allege that he did not know about his own childhood
sexual abuse or Marjorie’s purported abuse. Instead, Tiede’s application
suggests that he concealed all this abuse for various psychological reasons.
But Tiede has offered no evidence as to (1) whether he did or did not reveal
21
the abuse to his lawyers before sentencing, or (2) if he did not reveal it, why
he chose not to reveal it.
In any event, there can be no question the evidence was available to
Tiede—had he chosen to reveal it. Mears and Gripon lacked this information
for one and only one reason: Tiede apparently chose not to tell anyone about
it. In fact, Tiede’s sworn testimony at sentencing actually contradicted his
present claims of abuse. When asked if Marjorie was “mean” to him, Tiede
testified that she was possessive but “I wouldn’t say exactly mean.”53 Tiede
went well beyond simply failing to reveal Marjorie’s purported abuse—he
actually denied it.
Perhaps Tiede failed to reveal the abuse to his lawyers or anyone else.
And perhaps, as his application seems to suggest, this failure stemmed from
deep-seated psychological reasons. But even if all this is true, nothing in the
law suggests that a 40-year-old’s reluctance to reveal childhood abuse
supports a later claim for habeas corpus relied based on “newly available
evidence.” After all, even the limitations period on a civil claim for such
abuse—explicitly tolled by statute during minority status—expires four
years after the victim turns 18. TEX. CIV. PRAC. & REM. CODE § 16.001
(West 2012).
53 10 R.R.139.
22
Finally, this is not a situation where Tiede concealed the information
in furtherance his Fifth Amendment right to self-incrimination. All the
“newly available evidence” relates to sentencing—where Tiede testified.
And he submitted to multiple interviews with Mears.54 At any point before
Mears took the stand—including during his own testimony—Tiede could
have revealed the abuse. Had he done so, both Mears and Gripon would
have known about it. Under these circumstances, Tiede cannot rely on
“newly discovered” or “newly available” evidence to obtain habeas corpus
relief.
B. Tiede’s second issue, based on “false” evidence, fails to state a proper basis for relief.
Tiede’s second issue claims that his “new” evidence renders certain
sentencing testimony false in violation of the Due Process Clause. But
multiple deficiencies plague this argument—including, once again, Tiede’s
own responsibility for any misinformation.
The Due Process Clause of the Fourteenth Amendment can be
violated when the State uses false testimony to obtain a conviction,
regardless of whether it does so knowingly or unknowingly. Ex Parte
Robbins, 360 S.W.3d at 459 (citations omitted). To constitute a due process
violation, the testimony used by the State must have been false, and it must 54 10 R.R. 223-24.
23
have been material to the defendant's conviction—meaning “there is a
reasonable likelihood that the false testimony could have affected the
judgment of the jury.” Id. at 459-60 (citations omitted).
Tiede inaccurately claims that the “new evidence” renders false
statements made about the existence of any abuse. But contrary to Tiede’s
contention—and the trial court’s factual finding55—neither Mears nor
Gripon denied the existence of childhood trauma or other abuse. Mears said
only that he was not suggesting any had occurred.56 And he made these
statements outside the jury’s presence—rendering completely unsupported
the trial court’s factual finding about what “the jury heard.”
Simply put, the jury never heard anything from the expert witnesses
one way or the other about any abuse Tiede might have suffered as a child or
from Marjorie. A due process violation in the context of false evidence turns
on the falsity of evidence actually introduced, affirmative misinformation.
See generally Chavez, 213 S.W.3d at 324. Exclusion of information—
particularly where previously and unsuccessfully challenged by direct
appeal—does not support a due process violation for conviction based on
false evidence.
55 Finding of Fact No. 53. 56 10 R.R. 236.
24
Without testimony about abuse, only the issue of dissociation remains
as applied to Tiede’s claim of sudden passion. Mears said nothing “false”
about dissociation in front of the jury, as the trial court permitted him to
testify only in general terms about dissociation. And, of course, Mears
always believed Tiede had dissociated—and said so during the offer of
proof. Certainly Mears never told the jury anything suggesting dissociation
had not occurred. There cannot possibly be any “false” evidence associated
with Mears.
That leaves only Gripon. The sum total of Gripon’s testimony about
the relevance of dissociation to Tiede was to say that “[t]here isn’t any” and
“there’s no relevance to dissociation in this matter.”57 These two statements,
then, constitute the only testimony that could support Tiede’s claim of
“false” evidence. And these two sentences simply do not support habeas
corpus relief.
Initially, the new evidence establishing “falsity” is highly suspect.
Both Gripon and Pesikoff base their opinions on Tiede’s recent revelations
of childhood sexual abuse and abuse by Marjorie. Both experts accept these
revelations as true. But neither of them apparently reviewed the trial
testimony—where Tiede specifically denied that Marjorie had been “mean”
57 10 R.R. 245.
25
to him. Had they done so, both men would have seen that Tiede either lied
under oath during sentencing, or is lying now.
The experts now conclude that Tiede murdered Marjorie as the result
of immediate provocation: an outburst of anger precipitated by Marjorie’s
alleged criticism of Tiede’s lover. Again, though, a cursory review of
Tiede’s testimony during sentencing would have revealed the conspicuous
absence of any suggestion that such an incident occurred—not to mention
Tiede’s admission that he had been thinking about killing Marjorie for
months. This failure to review Tiede’s previous testimony seriously
undermines the new conclusions.
Of course, the new opinions do not “establish” the falsity of any trial
evidence. They simply reflect a change in the opinion of a single expert
witness. This is not like a DNA test confirming identify to a scientific
certainty. Gripon cannot and does not purport to state with scientific
certainty that Tiede acted under the influence of sudden passion; that simply
is his new opinion. And Tiede suggests no changes in the science underlying
the new opinions.
Most important, Tiede cannot obtain habeas corpus relief based on
false testimony absent some due process violation in his sentencing. And,
again, there is but one reason Mears and Gripon did not know about the
26
purported abuse: Tiede did not reveal it (and even chose to testify contrary to
it). Indeed, he continued to conceal it even after hearing Gripon’s testimony
about dissociation. The trial court’s factual findings supporting relief58 fail to
account for this central fact.
This Court has held unequivocally—and quite sensibly—that no due
process violation occurs when the defendant knows of the facts underlying
his own claim for relief. In the context of a due process claim arising from
the State’s failure to disclose exculpatory evidence—a claim that does not
require bad faith—this Court held that “there is no due process violation
under circumstances in which the defendant himself already knew about the
exculpatory facts.” Ex parte Chavez, 213 S.W.3d at 325 (citations omitted).
See also Vasquez v. State, No. 05-13-00347-CR, 2014 WL 1413898, at *2
(Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for
publication) (citing Chavez).
In Chavez I, this Court denied relief in part because if the jury had
been affirmatively misinformed, that was entirely the applicant’s fault:
[T]he applicant knew the true extent of his involvement in the offense. Had he disclosed that information to his trial attorney sooner than he did, counsel could have attempted to investigate the circumstances that corroborated the applicant’s account, to assure that the jury would be informed of all the evidence tending to
58 Findings of Fact Nos. 62, 65-66, 68-70.
27
show he was not the shooter . . . Instead, the applicant affirmatively misled his own counsel and chose to testify, apparently falsely, to an alibi in an attempt to escape criminal liability altogether. Thus, any misinformation the jury received to inform its discretionary decision with respect to what punishment to assess the applicant within the statutorily prescribed range would appear to have been his own fault, if anyone’s. We cannot conclude on these facts that he received an unfair punishment proceeding.
Id.
In Chavez II, of course, this Court conducted merits evaluation of the
applicant’s false testimony claim despite his complicity in its admission. But
this Court did so to avoid any possibility of a separate constitutional defect,
holding that “nothing in “this Court’s due-process false-testimony
jurisprudence imposes upon a defendant a duty to incriminate himself in
order to potentially avoid erroneous admission of false testimony as a
prerequisite to relief.” Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim.
App. 2012).
In other words, Chavez I establishes the general rule that no due
process violation occurs where a jury is misinformed but responsibility for
that misinformation rests with the applicant. Chavez II carves out a limited
exception to this rule where correcting the misinformation would impose a
duty on the defendant to incriminate himself, thereby infringing on an
applicant’s constitutional privilege against self-incrimination.
28
Here, of course, assuming the jury was affirmatively misinformed,
Tiede possessed the information necessary to prevent or correct this
misinformation—and could have done so without incriminating himself.
Unlike the applicant in Chavez, Tiede testified only at sentencing—not
during the guilt/innocence phase of trial. He admitted the murder and was
free to tell the jury whatever he wanted about childhood sexual abuse,
Marjorie’s abuse of him, or anything else he thought might support his
sudden passion claim.
Under these circumstances, Tiede alone bears the responsibility for
any misinformation conveyed to the jury. He cannot rely on his own
concealment to establish a due process violation for sentencing based on
false evidence.
2. Tiede cannot obtain relief under either issue because nothing suggests the outcome would have been different with the “new” evidence.
To obtain habeas corpus relief based on newly available evidence,
Tiede must establish that the new evidence would have made a difference in
the outcome. Claims that newly discovered evidence undermines confidence
in a sentence to the point that a due process violation attaches remain subject
to harmless error analysis. See generally Chavez, 371 S.W.3d at 210
(citations omitted). And a due process claim for use of false evidence
29
requires materiality—meaning a “reasonable likelihood that the false
testimony affected the applicant’s” conviction or sentence. Id. at 207
(citation omitted).
Both of Tiede’s issues, then, require that the outcome likely would
have been different. Tiede contends—and the trial court found—that the jury
likely would have assessed a lesser punishment had it known about the
purported abuse. But examination of the entire record hardly supports this
finding.
The jury heard ample evidence supporting the life sentence—and
suggesting it would have assessed it without regard to Tiede’s claim of
sudden passion. The State introduced substantial evidence supporting the
view that Tiede premeditated Marjorie’s murder for financial gain, then
happily went about spending her money for months after killing her.
The jury heard Tiede’s own testimony that he thought about killing
Marjorie for months—hardly supportive of a sudden passion or dissociation
claim. The jury heard that Tiede moved the murder weapon in advance to a
location with greater accessibility—again suggesting premeditation. The
jury heard about Tiede’s pressure on Marjorie to get a power of attorney,
and the spending spree he went on after her death. And the jury heard about
Bernie’s trip to Nashville rooming with yet another elderly, wealthy widow.
30
Not even Teide suggests that the jury’s sentence lacks supporting
evidence. Cf. Ex parte Chabot, 300 S.W.3d 768, 772 (Tex. Crim. App. 2009)
(false evidence provided only direct evidence supporting conviction). To the
contrary, substantial evidence supports confidence in the life sentence. See,
e.g., Chavez, 371 S.W.3d at 209. Here, the notion that anyone should lack
confidence in the life sentence strains credulity.
Moreover, Tiede has—for whatever reason—chosen not to support his
application by putting himself under the penalty of perjury. Instead, the
application relies solely on expert testimony. If anything seems “probable,”
it is that the jury would have looked askance at a defendant who paraded
experts across the stand to discuss a history of abuse but did not himself
even mention that abuse in passing during his own testimony. Indeed, how
much faith could the jury have placed in the testimony by Gripon and
Pesikoff about Marjorie’s abuse when Tiede himself denied that she was
mean to him?
Even with the “new evidence,” Tiede’s claim of sudden passion
remains startlingly weak. Under the version of the Texas Penal Code in
effect at the time of Tiede’s trial, where evidence showed that the defendant
caused the victim’s death under the immediate influence of sudden passion
arising from an adequate cause, the offense was punishable as a second
31
degree felony. See TEX. PEN. CODE ANN. § 19.02(d) (West 2011).
The jury charge defined “sudden passion” as “passion directly caused
by and arising out of provocation by the individual killed or another acting
with the person killed which passion arises at the time of the offense and is
not solely the result of former provocation.” The charge defined “adequate
cause” as cause “that would commonly produce a degree of anger, rage,
resentment, or terror in a person of ordinary temper, sufficient to render the
mind incapable of cool reflection.”
Tiede’s sudden passion claim rests principally on the allegations of
abuse by Marjorie. But the habeas corpus record contains evidence of only
three instances of abuse:
(1) She “made” him shot armadillos while she “demeaned and ridiculed” him;
(2) She demanded that he shave her legs while she
undressed, and “made” him massage her back with a vibrator; and
(3) She was critical of a man with whom Tiede was
having a homosexual relationship.
Nothing supports the trial court’s conclusion that the jury would have
found these three incidents of abuse sufficient to constitute adequate cause
for murdering an elderly woman, or that it would have ignored the evidence
of premeditation and financial motive.
32
Finally, Tiede attempts an end-run around this legal deficiency by
introducing Davidson’s testimony that had he known of the abuse, he would
have sought only a 20-year maximum sentence. But Davidson is not even
clear as to what this means. And, in any event, nothing in Texas law
supports setting aside a jury’s valid, error-free sentence simply because a
prosecutor wishes to re-evaluate his exercise of prosecutorial discretion
nearly two decades after the relevant events.
CONCLUSION
For the reasons described in this brief, the trial court abused its
discretion in recommending that Tiede be granted habeas corpus relief.
Amicus Curiae ask that this Court reject the recommendation, deny Tiede’s
application, and order him returned to complete his sentence.
Respectfully submitted,
/s/Charles “Chad” Baruch Texas Bar No. 01864300 THE LAW OFFICE OF CHAD BARUCH
3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028 Email: [email protected]
Attorney for Amicus Curiae
33
CERTIFICATE OF COMPLIANCE
This brief was prepared using Microsoft Word for Mac. Relying on
the word count function in that software, I certify that this response (exclusive of the cover, table of contents, index of authorities, signature block, certificate of compliance, and certificate of service contains _____ words. s/Charles “Chad” Baruch
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of this instrument was served by efiling and email on this _____ day of June, 2014, upon the following counsel of record:
Jodi Calloway Cole
LAW OFFICE OF JODI CALLOWAY COLE 502 West 30th Street Austin, Texas 78705 [email protected]
Counsel for Applicant Bernhardt Tiede II
Danny Buck Davidson CRIMINAL DISTRICT ATTORNEY, PANOLA COUNTY
Panola County Justice Center 108 South Sycamore, Room 301
Carthage, Texas 75633 [email protected] Counsel for State of Texas
s/Charles “Chad” Baruch