           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                         NO . AP-76,665



                         Ex parte ADRIAN CH AVEZ, Applicant



              ON APPLICATIO N FO R W RIT O F HABEAS CORPUS
                            H ARRIS CO UNTY


       Womack, J., filed a concurring opinion in which Hervey, J., joined.


       I join the opinion of the Court. I write separately to address a matter that is raised in the

Presiding Judge’s dissenting opinion.

       That opinion, in discussing the various standards of review we apply to false testimony

claims, says that “it is possible” that a different standard of review would apply if the testimony

at issue were merely “false” (as distinguished from “perjured”). The opinion suggests that the

standard of review we would apply might vary with the moral culpability of the witness: “When

the testimony is perjured, a non-state actor has knowingly subverted the system, but when the

testimony is merely false, the relevant actors may have been merely negligent or have no
                                                                                         Chavez Concurrence - 2

culpability at all.”1

         I believe our recent opinion in Ex parte Ghahremani2 definitively answered the question

of whether there is a difference, for purposes of a due-process claim, between perjured testimony

and false testimony. In that case, the State knowingly presented false testimony regarding the

psychological effect that the applicant’s crime had had on one of the victims. The victim’s

parents had testified in a way that was not perjurious, but that created a false impression by

omitting important intervening events that occurred between the applicant’s crime and the

victim’s most intensive therapy. We held that, for the purpose of due-process claims, there was

no difference between “false” and “perjured” testimony: “It is sufficient if the witness’s

testimony gives the trier of fact a false impression. These rules are not aimed at preventing the

crime of perjury – which is punishable in its own right – but are designed to ensure that the

defendant is convicted and sentenced on truthful testimony.”3

         Distinguishing whether the testimony at an applicant’s trial was perjured or false does not

bear on the question of whether the applicant was convicted and sentenced on truthful testimony.

While the facts of Ghahremani did not involve the precise sort of case that the Presiding Judge

imagines – where the State has unknowingly used false but non-perjurious testimony – I see no


         1
             Post, at 9.

         2
             332 S.W .3d 470 (Tex. Cr. App. 2011).

        3
          Id., at 477-78 (quotations and citations omitted). See also United States v. Boyd, 55 F.3d 239, 243 (7th
Cir. 1995) (Posner, J.) (“The wrong of knowing use by prosecutors of perjured testimony does not require a
determination that the witness could have been successfully prosecuted [for perjury]. Successful prosecution would
require proof beyond a reasonable doubt not only that the witness’s testimony had been false but also that it had been
knowingly false (and hence perjury). The wrong of knowing use by prosecutors of perjured testimony is different,
and misnamed – it is knowing use of false testimony. It is enough that the jury was likely to understand the witness to
have said something that was, as the prosecution knew, false. … [This] is implicit in the frequent use of ‘false’ as a
synonym for ‘perjured’ in cases in which prosecutors are claimed to have knowingly used perjured testimony. E.g.,
United States v. Agurs, 427 U.S. 97, 103 (1976) … .”).
                                                                             Chavez Concurrence - 3

reason why the rule we established in Ghahremani would apply differently to such facts.

       In Estrada v. State,4 the State unknowingly used false testimony, without any accusation

of perjury. We granted relief after noting that there was a “fair probability” that the testimony

affected the outcome of the appellant’s punishment hearing. That standard is easier to meet than

the “preponderance of the evidence” standard we applied to the State’s unknowing use of

perjured testimony in Ex parte Chabot.5 “Fair probability” seems similar to the “reasonable

probability” standard that we applied to the State’s knowing use of false but non-perjured

testimony in Gharemani. However, Estrada was a death penalty case, and in our holding we

cited Supreme Court cases interpreting both the Due Process Clause and the Eighth Amendment.

It may be that the Eighth Amendment has a heightened truth requirement for evidence presented

at the punishment phase of a death penalty case.

       As the Presiding Judge’s otherwise excellent discourse on the standards of review in false

testimony cases makes clear, the only way the distinction between false and perjured testimony

could be relevant in a non-death-penalty case would be where (1) the State unknowingly

presented false, but not perjured, testimony, and (2) the applicant can prove, by a preponderance

of the evidence, that, but for the false-but-not-perjured testimony, the result of his trial would

have been different, but (3) the applicant cannot meet a higher burden of proof (“by clear and

convincing evidence,” or “beyond a reasonable doubt,” I suppose) to show that, but for the false-

but-not-perjured testimony, the result of his trial would have been different. Leaving aside our

holding in Ghahremani, I have difficulty imagining any court’s specifically carving out a rule in


       4
           313 S.W .3d 274 (Tex. Cr. App. 2010)

       5
           300 S.W .3d 768 (Tex. Cr. App. 2009).
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order to let such a conviction stand.


Filed May 23, 2012.
Publish.
