             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                         No. AP-75,940


                        EX PARTE CLAY REED CHABOT, Applicant



                       Application for a Writ of Habeas Corpus from
                Case No. F-86-98639-UP of the 203rd Judicial District Court of
                                       Dallas County


               WOMACK , J., delivered the opinion of the Court, in which MEYERS,
               PRICE, JOHNSON, HERVEY , HOLCOMB, and COCHRAN, JJ., joined.
               KELLER, P.J., and KEASLER, J., concurred in the judgment.


       This is a post-conviction application for a writ of habeas corpus brought pursuant to

Article 11.07 of the Texas Code of Criminal Procedure. We agree with the convicting court’s

recommendation to grant relief.

       The applicant was convicted of murder and sentenced to life imprisonment. On appeal, he

alleged that the evidence was insufficient to corroborate the testimony of accomplice witness
                                                                                                         Chabot - 2

Gerald Pabst and that the trial court erred in admitting evidence of extraneous offenses. The Fifth

Court of Appeals affirmed his conviction.1

         The applicant filed his first application for habeas relief in 1991, which we denied.

         In this application, the applicant brings eight claims,2 among them that Pabst, the State’s

chief witness, presented perjured testimony at trial, which would make his conviction a denial of

due process as embodied in the Fourteenth Amendment to the United States Constitution.3 We

grant relief.

                                                        Facts

         On April 19, 1986, the victim, Galua Self Crosby, was found in her bed, in the home she

shared with her husband, where she had been bound, gagged, sexually assaulted, and shot three

times in the head.

         According to Pabst’s testimony at the applicant’s trial, he and the applicant had gone to the

victim’s home looking for her husband about a recent drug deal. Although Crosby was home

alone, the applicant went inside the house and demanded drugs and money. When the victim

produced neither, the applicant threatened her with a gun. In his testimony, Pabst claimed that he

had wanted to leave, that he repeatedly told the applicant that they should leave, that the applicant

refused, and that he himself did not leave because he was scared of the applicant. The applicant



         1
          Chabot v. State, No. 05-86-01168-CR (Tex. App.— Dallas Oct. 27, 1987, pet. ref’d) (not designated for
publication).

         2
          The remaining claims include allegations of actual innocence and violations of Brady v. Maryland, 373
U.S. 83 (1963).

         3
          The applicant also requested relief under the due-course-of-law provision in Article I, Section 13 of the
Texas Constitution, as well as “related statutes.” Due to our disposition of the applicant’s claim under the United
States Constitution, we do not address his state-law claims.
                                                                                          Chabot - 3

told Crosby to go into the bedroom, where he made her lie face down on the bed, and ordered

Pabst to tie her feet while he tied her hands. He then told Pabst to disconnect the television. While

disconnecting the television in another room, Pabst heard Crosby say “No” and then heard

gunshots from the bedroom. Pabst ran out of the house, and eventually the applicant joined him.

                                         Applicant’s Claim

       The current application is based on the June 28, 2007 results of DNA testing done on the

victim’s vaginal slides, ordered under Code of Criminal Procedure Chapter 64. The applicant

claims that this new DNA evidence establishes that Pabst’s trial testimony was perjured. He

points to the fact that “Pabst denied sexually assaulting or harming the victim in any way, claimed

that he acted only under duress, and insisted that he was in another room of the house when these

violent acts occurred.” The DNA evidence, he says, contradicts this testimony because it excludes

both the applicant and the victim’s husband but matches Pabst’s DNA profile. It shows, “at a bare

minimum, that Pabst perjured himself when he claimed that he had no sexual contact with the

victim, and eviscerates his credibility as a witness.”

       The applicant contends that jurors were specifically instructed that they were legally

required to find Pabst’s testimony true in order to convict the applicant. He also argues that Pabst

provided the only evidence that directly placed him at the crime scene and that, “[g]iven the

undeniable centrality of Pabst’s testimony to the case as tried in 1986, that jury could not – and

would not – have convicted Mr. Chabot without substantial reliance on Pabst’s testimony and,

accordingly, without first finding him to have been a truthful witness.” He further argues that no

rational jury would have found Pabst to be truthful had they known about the DNA evidence.
                                                                                                     Chabot - 4

        The applicant claims that, under Ex parte Carmona,4 due process is violated when a

conviction based on (in his words) “a foundation of perjury by the State’s chief witness” is

allowed to stand. He maintains that here, due process requires that his conviction be vacated and a

new trial ordered.

                                      Article 11.07, Section 4(a)(1) Requirements

        Under Texas law, this court may not consider the merits of or grant relief on a subsequent

application for a writ of habeas corpus unless:

        the application contains sufficient specific facts establishing that the current claims
        and issues have not been and could not have been presented previously in an original
        application or in a previously considered application filed under this article because
        the factual or legal basis for the claim was unavailable on the date the applicant filed
        the previous application.5

        The applicant did not raise this due-process claim in his first application for habeas relief.

Nor could he have brought the claim. At the time he filed his first habeas application in 1991,

neither the DNA testing nor Code of Criminal Procedure Chapter 64 was available as an avenue

for relief. The applicant’s due-process claim therefore meets the statutory requirements of Article

11.07, Section 4(a)(1) and is not procedurally barred.

                                               Analysis of Due Process Claim

        This court has held that the Due Process Clause of the Fourteenth Amendment is violated

where the State knowingly uses perjured testimony to obtain a conviction.6 Is due process violated

when the State has unknowingly presented perjured testimony? A plurality in Carmona held that a

        4
            185 S.W.3d 492 (Tex. Cr. App. 2006) (plurality opinion).

        5
            C O D E C RIM . P RO C . art. 11.07, § 4(a)(1).

        6
         Ex parte Fierro, 934 S.W .2d 370 (Tex. Cr. App. 1996); Ex parte Castellano, 863 S.W .2d 476 (Tex. Cr.
App. 1993).
                                                                                               Chabot - 5

community-supervision revocation based solely on perjured testimony, unknown to the State at

the time of revocation, to have violated the applicant’s due process rights.7

        The knowing use of perjured testimony is a trial error that is subject to a harmless error

analysis.8 Under the applicable standard, the “applicant has the burden to prove by a

preponderance of the evidence that the error contributed to his conviction or punishment.”9

Although the present case involves unknowing, rather than knowing, use of testimony, we see no

reason for subjecting the two types of errors to different standards of harm.

        In its response to the current application, the State conceded that Pabst presented perjured

testimony at trial (as proven by the 2007 DNA test results), that Pabst was the State’s primary

witness whose testimony was critical to the State’s case against the applicant, that Pabst’s false

testimony more likely than not contributed to the applicant’s conviction and punishment, and that

the applicant is entitled to relief in the form of a new trial.

        The State submitted Proposed Findings of Fact and Conclusions of Law, which were

adopted by the convicting court without a hearing. The Findings and Conclusions include the

following:

        •      The 2007 DNA test results link Pabst to the vaginal sexual assault of Galua Self
               Crosby. Thus, they establish the falsity of Pabst’s trial testimony denying that he
               sexually assaulted Ms. Crosby. They also establish the falsity of other evidence
               and argument offered by the State that Pabst was a non-violent person who could
               not have harmed Ms. Crosby.
        •      The State presented Pabst’s testimony in the guilt phase of applicant’s trial. Thus,
               the State used the false testimony against applicant.


        7
            Carmona, 185 S.W .3d 492.

        8
            Fierro, 934 S.W .2d, at 374.

        9
            Id., at 374-75.
                                                                                               Chabot - 6

       •      Although the State presented other evidence linking applicant to Ms. Crosby’s
              sexual assault and murder, Pabst’s testimony was crucial to the State’s case at
              applicant’s trial. The State predicated its trial theory on Pabst’s testimony that he
              only helped bind Ms. Crosby and that applicant alone sexually assaulted and shot
              her. The State supported this theory by presenting the testimony of other witnesses
              who characterized Pabst as a non-violent person who would not harm a woman.
              Furthermore, Pabst’s false testimony was the only purported eyewitness account
              of the sexual assault and murder of Ms. Crosby; applicant testified, but he denied
              that he murdered or sexually assaulted Ms. Crosby and claimed he was not even
              present during the assault and murder. In light of the foregoing, Pabst’s false
              testimony more likely than not contributed to the applicant’s conviction and
              punishment.
       •      Applicant argues, alternatively, … that the State should have known of the false
              nature of Pabst’s testimony at the time it was presented at trial. In light of
              Carmona, however, because Pabst’s perjured testimony was crucial to the case
              presented by the State and because the false nature of Pabst’s testimony is now
              undisputed, this Court need not reach the issue of the State’s knowledge.
       •      Based on the foregoing, the Court finds applicant has proven by a preponderance
              of the evidence that his federal … constitutional due process rights were violated.
       •      The Court concludes applicant is unlawfully restrained and confined and
              recommends that the Court of Criminal Appeals grant applicant relief on his false
              evidence claim by reversing and remanding to the Court for a new trial.10

       In post-conviction review of habeas corpus applications, this court is the ultimate

factfinder.11 The convicting court is the “original factfinder,” and the Court of Criminal Appeals

generally defers to and accepts the convicting court’s findings of fact and conclusions of law

when they are supported by the record.12 “When our independent review of the record reveals that

the trial judge’s findings and conclusions are not supported by the record, we may exercise our

authority to make contrary or alternative findings and conclusions.”13

       In this case, the convicting court’s findings and conclusions are supported by the record.


       10
            Internal citations omitted.

       11
            Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Cr. App. 2008).

       12
            Ibid.

       13
            Ibid.
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        The DNA test results conclusively link Pabst to Crosby’s sexual assault and therefore

show that he perjured himself at the applicant’s trial. Pabst’s testimony provided the only direct

evidence that the applicant sexually assaulted and killed Crosby. The State acknowledges that

Pabst’s testimony was critical to its case and that it predicated its trial theory on his testimony.

The DNA test results refute not only Pabst’s testimony itself but also that of another State’s

witness who characterized Pabst as a non-violent person who would never hurt a woman,

testimony which lent credence to Pabst’s version of events.

        Further, the convicting court, with the support of the State, has found that the applicant’s

due-process rights have been violated. Based on our decision in Carmona, we agree with the

convicting court that the circumstances of the present case merit a finding that the applicant’s due-

process rights were violated, notwithstanding the absence of the State’s knowledge of the perjured

testimony at the time of trial.

        In light of the foregoing, we agree that it is more likely than not that Pabst’s perjured

testimony contributed to the applicant’s conviction and punishment. Because the convicting

court’s findings and conclusions are supported by the record, this court accepts them. Having so

found as to the applicant’s first claim, we need not reach his remaining claims.

        Relief from the judgment of conviction is granted. The applicant is remanded to the

custody of the Sheriff of Dallas County to answer the charge set out in the indictment.


Delivered December 9, 2009.
Publish.
