









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
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
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.
	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
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.
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.
	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.
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.
4.  185 S.W.3d 492 (Tex. Cr. App. 2006) (plurality opinion).
5.  Code Crim. Proc. 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).
7.  Carmona, 185 S.W.3d 492.
8.  Fierro, 934 S.W.2d, at 374.
9.  Id., at 374-75.
10.  Internal citations omitted.
11.  Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Cr. App. 2008).
12.  Ibid.
13.  Ibid.
