           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                      NO. WR-81,532-01



                       Ex parte BERNHARDT TIEDE, II, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 1997-C-103-A IN THE 123 RD DISTRICT COURT
                           FROM PANOLA COUNTY

                K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY,
JJ., joined.

       In Saldano v. State, where the Texas Attorney General confessed error in a death penalty

case, we denied Saldano relief, saying, “A confession of error by the prosecutor in a criminal case

is important, but not conclusive, in deciding an appeal.”1 We referred to the Supreme Court’s

comments on the same issue:

       The public trust reposed in the law enforcement officers of the Government requires
       that they be quick to confess error when, in their opinion, a miscarriage of justice
       may result from their remaining silent. But such a confession does not relieve this
       Court of the performance of the judicial function. The considered judgment of the
        law enforcement officers that reversible error has been committed is entitled to great
       weight, but our judicial obligations compel us to examine independently the errors
       confessed. The public interest that a result be reached which promotes a

       1
           Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
                                                                             TIEDE DISSENT -- 2

       well-ordered society is foremost in every criminal proceeding. That interest is
       entrusted to our consideration and protection as well as to that of the enforcing
       officers. Furthermore, our judgments are precedents, and the proper administration
       of the criminal law cannot be left merely to the stipulation of parties.2

       These sentiments apply equally to habeas cases. The Court acts in accordance with the

prosecutor’s recommendation, but in doing so, it grants relief without articulating a rationale,

without mentioning the fact that the family of the victim has proffered an amicus brief arguing that

relief should be denied, and without addressing the arguments in that pleading.3

       Especially given the serious nature of the offense of which applicant is admittedly guilty

(murder) and the questionable factual basis of applicant’s claims (his own self-serving statements),

the Court ought to articulate a clear and persuasive rationale for granting relief. I suspect that the

Court does not because it simply cannot.

                               A. Applicant’s Claims and Evidence

       Applicant murdered Marjorie Nugent. He does not dispute that. He claims that his

punishment would have been less if certain evidence that he now claims is newly available had been

presented at trial. Some of this evidence would be his own post-trial statements to mental-health

professionals that he suffered childhood sexual abuse from an uncle and adulthood emotional abuse

from Marjorie. The remaining evidence would be expert evaluations based upon applicant’s new

statements. The basic contention is that the alleged abuse caused him to suffer a dissociative episode

due to a mental disorder that explained or at least contributed to his decision to kill Marjorie.

Applicant contends that this evidence supports a conclusion that he killed Marjorie while in the



       2
           Id. (quoting Young v. United States, 315 U.S. 257, 258-59 (1942)).
       3
           Because the Court had not done so, I ordered the trial record and read it.
                                                                             TIEDE DISSENT -- 3

throes of sudden passion, in accordance with the sudden-passion mitigating factor in the murder

statute,4 or that the evidence would at least be generally mitigating as to punishment.5

       Applicant advances two claims for relief. First, he contends that his allegedly new evidence

constitutes scientific evidence that was not available at trial. He does not explain what legal theory

this claim encompasses, though he discusses some cases involving actual innocence.6 Second, he

contends that the allegedly new evidence shows that false evidence was presented at his trial. In

connection with this claim, he relies upon our false-testimony due-process jurisprudence.7

                           B. First Claim: New Scientific Evidence

       There are two possible legal theories upon which this first claim might rest.

                           1. Case Law on Newly Discovered Evidence

       Our court-made jurisprudence allows a defendant to obtain relief on habeas corpus on the

basis of newly discovered or newly available evidence if such evidence shows that he is (1) actually

innocent, (2) guilty only of a lesser-included offense, or (3) ineligible for the sentence imposed.8

Because applicant concedes that he is guilty of murder, he cannot show actual innocence or guilt

only of a lesser-included offense. And his evidence does not show that he is ineligible for the life

sentence that was assessed. He has, therefore, failed to establish any basis for relief on a newly


       4
           See TEX . PENAL CODE § 19.02(a), (d).
       5
         See TEX . CODE CRIM . PROC. art. 37.07, § 3(a)(1) (“evidence may be offered . . . as to any
matter the court deems relevant to sentencing”).
       6
           See, e.g., Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
       7
           See, e.g., Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009).
       8
         See State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010) (discussing these types
of claims).
                                                                               TIEDE DISSENT -- 4

discovered or newly available evidence claim.

        A finding of true on the sudden-passion mitigating factor would limit the punishment range

for murder to that of a second-degree felony, two to twenty years.9 But the allegedly new evidence

that applicant relies on does not appear to establish sudden passion. One of the requirements of the

sudden-passion mitigating factor is “adequate cause,” which is defined as “cause that would produce

a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the

mind incapable of cool reflection.”10 “Sudden passion” must also arise “at the time of the offense”

and cannot be “solely the result of former provocation.”11 The three examples of “abusive behavior”

that applicant claims Marjorie committed are: (1) that she made him shoot armadillos while

demeaning and ridiculing him, (2) that she demanded that he shave her legs while she was undressed

and massage her back with a vibrator, and (3) that she became extremely critical and accusatory of

a friend with whom he was having a clandestine sexual relationship. There is no allegation that any

of these behaviors occurred at the time applicant killed the victim, and even if one of these did, these

are not the kind of behaviors that would render the mind of a person of ordinary temper incapable

of cool reflection. I have found no case in which evidence of this kind would even entitle a

defendant to a sudden-passion instruction. But even if applicant were entitled to a sudden-passion

instruction, all that means is that a rational factfinder could find in his favor on the sudden-passion

issue but would not be obligated to do so. And that is if the factfinder believed Marjorie engaged

in these behaviors. A rational factfinder would not even have to believe this testimony, which comes


       9
             TEX . PENAL CODE §§ 12.33(a), 19.02(d).
        10
             Id. § 19.02(a)(1), (d) (emphasis added).
        11
              Id. § 19.02(a)(2).
                                                                               TIEDE DISSENT -- 5

only from applicant and is self-serving.

                                              2. Article 11.073

        The legislature has passed a statute that authorizes a habeas review of claims based on new

scientific evidence.12 To be entitled to relief under that statute, a habeas applicant must, among other

things, obtain a finding that, had the scientific evidence been presented at trial, he “would not have

been convicted.”13 Applicant cannot obtain such a finding because the allegedly new evidence does

not in any way undermine the jury’s verdict of guilt.

                                      C. Second Claim: False Evidence

         Applicant’s false-evidence claim is based on due process. The alleged due-process violation

is premised on the State’s unknowing use of false evidence. The habeas court finds that, being

unaware of the abuse applicant suffered, Dr. Gripon unknowingly gave false testimony at trial “both

as to his opinion and to the underlying facts involved.”14 Dr. Gripon’s opinion at trial was that the

information available to him did not support the conclusion that applicant suffered from a

dissociative episode caused by a mental disorder.15

                                              1. Preservation



       12
             TEX . CODE CRIM . PROC. art. 11.073.
        13
             Id. art. 11.073(b)(2).
        14
             Finding 48.
       15
            Findings 16-27. See especially Findings 20 (“Dr. Gripon also testified that, based on what
he had heard, nothing supported a diagnosis of dissociative disorder.”), 23 (“Dr. Gripon also testified
that, if a person seemed to have a clean bill of mental health, it would certainly not support the idea
that they had some dissociative episode at some time several years ago.”), 25 (“Dr. Gripon testified
that to make an accurate diagnosis of a dissociative disorder, one would need information which
suggested that there was some dissociative phenomenon that had previously occurred.”).
                                                                               TIEDE DISSENT -- 6

        Applicant failed to preserve this claim at trial. If Dr. Gripon’s testimony was false because

it was premised on the notion that applicant did not suffer abuse as a child or an adult, applicant

could have lodged an objection at trial. “[A]ll but the most fundamental rights are thought to be

forfeited if not insisted upon by the party to whom they belong.”16 I have previously taken the

position that the State’s unknowing use of false testimony ought to fall within the broad category of

forfeitable claims when the defendant was aware of the falsity.17 Such a situation implicates the

policy rationale for requiring an objection: To allow “the trial court [to] . . . avoid the error or

provide a timely and appropriate remedy[] and the opposing party . . . an opportunity to respond and,

if necessary, react.”18 If the trial court and the State are unaware of the falsity of the testimony, how

can they correct the situation? Here the trial court, the State, and the State’s witnesses were not only

ignorant of any alleged abuse applicant suffered, they had absolutely no reason to even suspect that

abuse had occurred.

        We excuse a defendant’s failure to object, if “he could not reasonably be expected to have

known that the testimony was false at the time that it was made.”19 But applicant was certainly in

a position to know whether he suffered abuse. And while his trial counsel may not have known, the


        16
        Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) (quoting Marin v. State, 851
S.W.2d 275 (Tex. Crim. App. 1993)).
        17
           See Ex parte Chavez, 371 S.W.3d 200, 215 (Tex. Crim. App. 2012) (Keller, P.J.
dissenting) (arguing “that when the State’s use of perjured or false testimony is unknowing, a
defendant may not raise his claim for the first time on habeas if he could have raised it at trial or on
direct appeal” and that “only the State’s mendacity in the ‘knowing use’ scenario . . . impels us to
make an exception to the general rule against the cognizability of claims that could have been raised
earlier”).
        18
             Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013).
        19
             Estrada v. State, 313 S.W.3d 274, 288 (Tex. Crim. App. 2010).
                                                                             TIEDE DISSENT -- 7

requirement that a defendant preserve error is not limited to the defendant’s attorney. From an error-

preservation perspective, the attorney is an agent of the defendant, which is why when an attorney

fails to object, that failure is held against the defendant.20 A defendant cannot withhold information

from his attorney and then later use his attorney’s ignorance as a basis for excusing the failure to

object. If counsel is deficient for failing to investigate the defendant’s background for abuse, the

defendant may prevail on a claim of ineffective assistance of counsel,21 but no such claim is before

us.

       We have said that our false-testimony jurisprudence does not impose a duty on the defendant

to incriminate himself in order to potentially avoid the erroneous admission of false testimony,22 but

applicant testified at sentencing, so he waived any right against self-incrimination at that stage.

       The concurring opinion states that experts in this case “averred that applicant had been the

victim of sexual abuse as a child for many years and had suppressed his actual awareness of it to the

point that he was incapable of revealing the memories to anyone at his trial.” (Emphasis mine). But

I see nothing in the expert testimony or documentation that suggests that applicant had suppressed

his memory of these events (if they happened). Although the concurrence relies upon Dr. Busch-



       20
            New York v. Hill, 528 U.S. 110, 115 (2000) (“As to many decisions pertaining to the
conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered
to have notice of all facts, notice of which can be charged upon the attorney. Thus, decisions by
counsel are generally given effect as to what arguments to pursue, [and] what evidentiary objections
to raise.”) (internal quotation marks and citations omitted); Murray v. Carrier, 477 U.S. 478, 488
(1986) (“So long as a defendant is represented by counsel whose performance is not constitutionally
ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity
in requiring him to bear the risk of attorney error that results in a procedural default.”).
       21
            See Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006).
       22
            Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App. 2012).
                                                                               TIEDE DISSENT -- 8

Armendariz’s assessment, that witness never suggested that applicant suppressed his memory of the

events. Rather, she said that applicant delayed disclosure of abuse because he loved his uncle, his

uncle convinced him what was happening was normal, his uncle persuaded him to keep the secret,

he wanted to protect his uncle, applicant knew that revealing it would bring shame and

embarrassment to his family, and applicant had confused feelings about participating in the acts.

       The remaining question, then, is whether applicant may be excused from raising an objection

on the ground that the shame of his abuse and his conflicted feelings about it caused him not to

reveal that it had occurred. First, while the habeas court did find that it is not unusual for male

victims of child sexual abuse to hide the abuse due to shame, the court made no finding that

applicant himself hid abuse because he was ashamed. Second, evidence of abuse can be a two-edged

sword: It might mitigate against the moral blameworthiness of the defendant’s actions, but it also

might also tend to show that the defendant is a dangerous individual.23 Moreover, evidence that

criticizes the murder victim might be disbelieved and could serve to alienate the punishment

factfinder. An exemption from the contemporaneous-objection rule on the basis that the defendant

was an abuse victim would seem to encourage defendants to “lie behind the log” and lodge abuse

allegations later if they are dissatisfied with the outcomes of their trials and no longer have anything

to lose.24 Under these circumstances, applicant should not be excused from the obligation to object.


       23
           Penry v. Lynaugh, 492 U.S. 302, 324 (1989) (“Penry’s mental retardation and history of
abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it
indicates that there is a probability that he will be dangerous in the future.”).
       24
            See Ex parte Gutierrez, 337 S.W.3d 883, 895-96 (Tex. Crim. App. 2011) (Allowing
defendants to belatedly seek DNA testing that, for strategic reasons, was not sought earlier would
“allow defendants to ‘lie behind the log’ by failing to seek testing because of a reasonable fear that
the results would be incriminating at trial but then seeking testing after conviction when there is no
longer anything to lose.”).
                                                                               TIEDE DISSENT -- 9

                                            2. Due Process

        Moreover, due process is about fundamental fairness,25 and it is difficult to see how a

defendant’s trial can be rendered fundamentally unfair by a defendant’s own failure to disclose

information about himself that the State and the State’s witnesses did not know and could not have

reasonably discovered.26 In connection with claims regarding the failure to disclose exculpatory

evidence, we have said that, when the facts that are not disclosed are “known by the defendant or his

counsel, he cannot object on appeal to the failure of the State to disclose the same.”27 The reasoning

in our opinion on the first application in Ex parte Chavez, where we held that the defendant did not

suffer a due-process violation, applies with full force to applicant’s case:



        25
             Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
        26
           See People v. Nash, 36 Ill. 2d 275, 284, 222 N.E.2d 473, 478 (1966) (“There is a material
difference in the Napue and Lueck cases and this case, however. In Napue and Lueck the prosecutor
did nothing to correct the false testimony and the false testimony was unknown to the defendant at
the time of the trial. Here the defendant knew of the false testimony and evidence was presented to
show that promises of leniency had in fact been made. Under these circumstances there has not been
a denial of due process of law.”); State v. Yates, 137 N.H. 495, 502-03, 629 A.2d 807, 811-12 (1993)
(Thayer, J., dissenting) (“Mooney, Napue, and Giglio stand for the proposition that a prosecutor’s
use of perjured testimony, which is unknown to the defendant at trial, violates the defendant’s due
process rights because use of such testimony is fundamentally unfair to the defendant. These cases,
however, do not provide guidance for situations where the prosecution used false testimony, but the
defendant knew, at trial, that the testimony was false. I in no way condone the knowing use of
perjured testimony; however, when such is the case, the defendant is not, as the majority holds,
automatically entitled to a new trial. Because the defendant in this case had the ability to
cross-examine the witness and impeach his credibility, I would hold that the defendant had a fair trial
and would not reverse his conviction. I cannot support setting a precedent that allows defendants to
sit on their rights and then claim they were somehow wronged by the judicial system.”). The
majority in Yates placed the responsibility on the State to bring the falsity of the testimony to the
attention of the trial court. Id. at 500. But the prosecutor was in a position to bring the matter to the
judge’s attention because he was aware of the falsity of the testimony. See id. at 499.
        27
         Carmona v. State, 698 S.W.2d 100, 105 (Tex. Crim. App. 1985). See also Chavez, 371
S.W.3d at 207; Harris v. State, 453 S.W.2d 838, 839 (Tex. Crim. App. 1970).
                                                                              TIEDE DISSENT -- 10

        [E]ven in the context of the failure to disclose exculpatory evidence, we have held
        that there is no due process violation under circumstances in which the defendant
        himself already knew about the exculpatory facts . . . . 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 . . . . [A]ny
        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.28

        Applicant’s case is much more like a newly-discovered-evidence case than false-evidence

cases that we have addressed in the past. There is a real sense in which one can say that there is

nothing false about Dr. Gripon’s trial testimony. Dr. Gripon accurately testified that the information

available to him at trial did not support the conclusion that applicant suffered a dissociative disorder.

Without any evidence of a dissociative disorder, Dr. Gripon could not conclude that there was one.

Dr. Gripon did not purport to be a fact witness with respect to whether applicant had suffered abuse,

nor did he evaluate the truthfulness of any of the information submitted to him.29 And unlike expert

witnesses in some of the other cases that have come before us, Dr. Gripon did not inaccurately recite

any fact within the realm of his knowledge as an expert or misrepresent something as a valid practice




        28
            Ex parte Chavez, 213 S.W.3d 320, 325 (Tex. Crim. App. 2006). In our opinion on the
second application in Ex parte Chavez, we suggested that this rule does not necessarily apply to
false-evidence claims, but our basis for so suggesting—that the defendant is not required to
incriminate himself—does not apply to the present case because applicant testified at the punishment
stage of trial. See Chavez, 371 S.W.3d at 202-03, 207 (Chavez testified at the guilt stage but not at
the punishment stage, and his newly proffered information, that he was only the getaway driver for
the robbery, would have been mitigating as to punishment). See also Carroll v. State, 42 S.W.3d
129, 132 (Tex. Crim. App. 2001) (defendant's right against self-incrimination still applies to the
punishment stage of trial even if he waived the right with respect to guilt).
        29
           In Chavez, by contrast, there was witness testimony that Chavez was one of the home
invaders in the robbery, 371 S.W.3d at 202, which would have been contradicted by Chavez’s claim
that he was only the getaway driver.
                                                                            TIEDE DISSENT -- 11

in his field when it was not.30

       Various types of due-process claims fall along a continuum with one end being concerned

primarily with the integrity of the process (knowing use of perjured testimony) and the other end

being concerned primarily with the accuracy of the result (newly discovered evidence showing actual

innocence). The unknowing use of perjured or false testimony falls between these endpoints.31 The

closer a type of situation is to the “accuracy of the result” endpoint, the more onerous the

requirements that we impose on the applicant who seeks relief on the claim.32 Applicant’s case is

much closer to the “accuracy of the result” endpoint than the typical false-evidence case. The State

and its witnesses were not even negligent about the evidence upon which applicant’s claim is

based—they could not have known about applicant’s alleged history of being abused. Applicant is


       30
           See Ex parte Napper, 322 S.W.3d 202, (Tex. Crim. App. 2010) (analyst’s flawed method
of calculating the statistical-frequency estimate); Estrada, 313 S.W.3d at 287 (prison expert
inaccurately recited prison-classification rule). See also Ex parte Robbins, 360 S.W.3d 446, 460
(Tex. Crim. App. 2011) (expert retracted earlier opinion that to a reasonable degree of medical
certainty, the cause of death was compression asphyxia, due to later experience suggesting that her
earlier assessment was incorrect).
       31
          See Ex parte Henderson, 384 S.W.3d 833, 835 (Tex. Crim. App. 2012) (Price, J.,
concurring); Ex parte Robbins, 360 S.W.3d 446, 464 (Tex. Crim. App. 2011) (Price, J., concurring);
Chavez, 371 S.W.3d at 216 (Keller, P.J., dissenting).
       32
          Henderson, 384 S.W.3d at 835 (Price, J., concurring) (“as the particular due process claim
moves from the fairness end of the continuum toward the accuracy end, the standard for materiality
should rise concomitantly, culminating in the Herculean burden associated with a bare claim of
actual innocence”); id. (quoting Robbins, 360 S.W.3d at 465: “when it comes to claims of the
inadvertent use of false evidence, we must not be overly liberal in how we characterize ‘false’
evidence.”); Chavez, 371 S.W.3d at 216 (Keller, P.J., dissenting) (“But in the ‘unknowing use’
context, the culpability of the state actor is not the main issue, if it is an issue at all. 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 culpability at all. All
we can say with certainty is that the showing of materiality for the unknowing use of testimony that
is merely false must be at least as strong as the showing required for the unknowing use of perjured
testimony, but it is possible that, when perjury is absent, an even stronger showing is required.”).
                                                                              TIEDE DISSENT -- 12

solely responsible for any misleading impression at trial in that regard.33

                                 3. Effect of the “New” Evidence

       The jury had before it evidence that applicant had been thinking about killing Marjorie for

months and placed the murder weapon where it would be easily accessible, that he hid the murder

by telling various lies about Marjorie’s whereabouts, that he spent hundreds of thousands of dollars

of Marjorie’s money after her murder, that he sought a wire transfer of an additional $225,000 of her

money, and that he took up with another elderly, wealthy widow after he killed Marjorie. The jury

also had before it evidence from applicant’s expert witness about dissociative behavior in general

and testimony that people in funeral-related jobs tend to develop controlled dissociation.

       The jury also had evidence that applicant had spent large amounts of money before

Marjorie’s death, with no explanation for where the money came from. There was testimony that

when applicant first went to work at a funeral home in Carthage, the IRS contacted him several

times. But by 1994, applicant was giving thousands of dollars to his friend Wyatt Henderson, whom

he met at the funeral home. Henderson testified that applicant initially gave him “probably $75,000”

to start up a western-wear business. The store went out of business in mid-December of 1997, and

by that time applicant had invested “probably $250,000” in the business. Henderson never paid any

of the money back to applicant. In addition, applicant spent $25,000 or $30,000 at the store. Aside



       33
           If the Court is determined to consider applicant’s claim despite his procedural default and
the lack of any apparent unfairness in the trial proceedings, it ought to at least impose a higher
standard of materiality, such as “clear and convincing.” In his concurrence in Chavez, Judge
Womack expressed “difficulty imagining any court’s specifically carving out a rule” imposing a
higher materiality standard than preponderance of the evidence “in order to let such a conviction
stand.” Chavez, 371 S.W.3d at 211-12 (Womack, J., concurring). But neither he nor I anticipated
a case in which the defendant is solely responsible for any false impression that has occurred. This
is that case.
                                                                            TIEDE DISSENT -- 13

from saying he had received somewhere around $15,000 to $18,000 when his grandmother died in

1988, applicant offered no explanation for where he got over a quarter of a million dollars during

the last three years of Marjorie’s life.

        At punishment, more financial information was introduced, particularly about money

applicant spent after Marjorie’s death. He paid $13,000 for tuition for Chris Permenter and bought

him a jet ski for over $7,000. In addition, applicant spent some $51,000 for a business called

Carthage Awards, $12,000 for a coin collection, and over $5,000 for furniture. He spent $13,000

on a car for one friend, $11,000 for a pickup truck for another friend, and about $35,000 for a Toyota

4 Runner for his friend Chris. There was also evidence that, months after Marjorie’s death, applicant

sought a wire transfer of $225,000 of her money by presenting a letter allegedly signed by her.

        The jury also saw applicant’s confession to the murder. As relevant to whether sudden

passion was a viable defense, that confession says:

        I had moved the rifle into the bathroom near the garage. [Marjorie] had walked out
        into the garage towards my car. I took the rifle and I shot Marjorie in the back. She
        fell face first. Marjorie was still breathing heavily, so I shot her again. I may have
        shot her one more time. I didn’t want her to suffer. I then dragged Marjorie by the
        feet from the garage to the freezer. I had taken the food from the freezer. I placed
        her into the freezer and covered her with a Land’s End brand white sheet. I then
        covered her with the food. I took a water hose and washed the blood from the
        garage. I swept up the bullets along with some leaves and threw them away.

These actions hardly sound like applicant was “incapable of cool reflection,” as required by a

sudden-passion defense. Applicant’s use, twice, of the past perfect tense in the statement seems to

indicate that he had moved the rifle and the frozen food ahead of time, although his trial testimony

offered an explanation for the rifle and indicated otherwise as to the frozen food.

        Given this and other compelling evidence, I find it unlikely that applicant’s “new” evidence
                                                                             TIEDE DISSENT -- 14
would have made any difference to his jury.

                                        4. Inadequate Record

        Finally, applicant has made these claims of abuse, but how do we know that his claims are

true? The Court’s opinion states that a “live hearing” was held, but this hearing consisted solely of

some testimony from Dr. Gripon, without any cross-examination. The current habeas record

contains no indication that the parties have attempted to elicit testimony from the uncle that applicant

accuses of molesting him.34 Whether this uncle molested applicant is the foundation upon which

applicant’s entire claim rests. The uncle might invoke his right not to testify, but the record contains

no indication that he has done so, and if he is willing to testify, the Court ought to hear his side of

the story.

        And while the habeas court found that there was evidence that the uncle had molested other

boys, the habeas record contains only a single, vague reference to such occurrences and does not set

out the source of this information.35 Notably, the habeas record contains no statement or testimony

from anyone claiming to be a victim of the uncle’s abuse, and of course, there has been no cross-

examination of such individuals. There is no sworn testimony that applicant was abused either as

a child or by Marjorie; all that applicant has presented is testimony from mental-health experts that



        34
          The materials in the record indicate that the uncle is still alive, though he is approximately
80 years old.
        35
           A report by Dr. Busch-Armendariz states, “His uncle repeatedly sexually abused him and
his cousin when they were children. There has also been recent concern from other adults and
children that Mr. Tiede’s uncle still engages in criminal sexual abuse with young boys.” See also
Finding 32. In his findings, the habeas judge refers to someone named “TH” who was sexually
abused by the uncle and came forward with allegations in 2009. Findings 33, 34, 40. I see no
evidence in the habeas record to support these findings and the habeas judge does not cite a source
for this information.
                                                                             TIEDE DISSENT -- 15
he told them, after the trial, that he had been abused.

       Applicant’s new claim that he was abused as a child and as an adult is similar in some

respects to recantation cases. In essence, applicant, through his experts and possibly other

individuals, is now presenting a new position regarding whether he was abused as a child or by the

decedent.36 Contrary to his current claims, at trial he said that Marjorie was “more possessive” but

not exactly “mean” to him.37

       A recent recantation case is instructive. In Ex parte Jenkins, a recent case involving an

actual-innocence claim based on a complainant’s recantation, the prosecutor recommended granting

relief on the basis of an affidavit from the child-victim recanting her allegations.38 Relying on the

prosecutor’s recommendation, the trial court recommended that we grant relief. Because there had

been no cross-examination of the complainant regarding her recantation and because various people

involved in the case had not been heard from (including an aunt upon whom the complainant placed



       36
           Applicant did not testify at the habeas hearing. It could be argued that he ought to testify
and subject himself to cross-examination before we give any credence to his claims. Although a
defendant has a right not to testify guaranteed by the Fifth Amendment right against self-
incrimination, appellant has already testified at the punishment stage of trial, and it is arguable that
he has indirectly testified on habeas through Gripon’s testimony and the documents submitted by
other experts. See Lagrone v. State, 942 S.W.2d 602, 611 (Tex. Crim. App. 1997). Much, if not
most, of the evidence upon which he relies would probably not have been admissible had the State
objected. (E.g., hearsay evidence that applicant revealed abuse to his psychologist, an affidavit from
an expert witness saying that applicant had told him of abusive behavior by Marjorie).
       37
           Marjorie was described by her friends as “straightforward,” “strong-willed,” “honest,”
“caring,” “kind,” “known for saying exactly what she thought,”“considerate,” “a gracious hostess,”
“quiet-spoken,” “reserved,” and “pretty snippy,” but “not ugly, mean, or possessive” toward
applicant. As far as I can tell, the only witnesses who called her “possessive” or “jealous” were
applicant and the people for whom he bought cars and other gifts with Marjorie’s money.
       38
          Ex parte Jenkins, No. WR-79,946-01, 2013 WL 5568450 (Tex. Crim. App. October 9,
2013) (not designated for publication).
                                                                              TIEDE DISSENT -- 16
blame), we remanded the case to the trial court. We said, “We believe that in recantation cases such

as this one, before we make the important decision of whether applicant is entitled to relief, the

record should be more fully developed.” We ordered the trial court to conduct a live evidentiary

hearing at which the complainant was to be called to testify, and we ordered the court to give notice

and an opportunity to testify to all those who participated in the trial or investigation.39 After a full

hearing at which the victim and previously uncalled witnesses took the stand and testified, under oath

and subject to cross-examination, it became clear that the applicant was not entitled to relief. The

trial judge changed his recommendation, and we denied relief. That is the power of cross-

examination. That is what has not occurred in this case.

        Moreover, at the habeas hearing, the judge specifically asked the prosecutor whether the

victim’s family had been notified of the hearing and the prosecutor said that it had. But the family’s

motion to file the amicus brief says that this is “untrue.” The victim’s son swears that:

        [N]either I nor my family was contacted and no attempt was made to contact me or
        my family by District Attorney Danny Buck Davidson, or anyone in his office, or on
        his behalf regarding new information or developments in the criminal case against
        Bernhardt Tiede, II, the man convicted of my mother’s murder. I was informed of
        the hearing regarding the Writ of Habeas Corpus by my wife, who was called a
        couple of hours before the hearing by a colleague, who was informed of the hearing
        by a reporter from the Texas Tribune. We found out the time of the hearing just a
        couple of hours before it was set to begin, without enough time to make the trip to
        attend.

This is a serious allegation. Ordinarily, evidentiary materials should be submitted to the convicting

court instead of this Court.40 Although we might have the implicit authority to consider such

materials, normally the jurisprudential considerations of efficiency, effectiveness, and comity to the


        39
             Id.
        40
             Ex parte Whisenant, WR-82,063-01 (Tex. Crim. App. Oct. 15, 2014).
                                                                               TIEDE DISSENT -- 17
convicting court counsel against us doing so. The habeas court is far better situated to resolve this

particular conflict, and a remand to that court would allow it to decide the matter. Considering the

habeas court’s specific inquiry into whether the family had been notified, I would expect that the

court would want the chance to address the issue. And considering that the District Attorney’s

integrity has been impugned, I would expect that he would also want the chance to address this issue.

        For all of these reasons, we should be circumspect about applicant’s claims. We should keep

in mind that Marjorie Nugent cannot take the stand to controvert applicant’s allegations of emotional

abuse because she is dead, having been shot in the back by applicant four times before having her

body hidden for months in a freezer. And while applicant has marshaled experts who appear to

believe his allegations, “experts . . . are not human lie detectors,” they are not clairvoyant, and we

have rejected the notion that experts can or should replace the factfinder “as the ultimate arbiters of

credibility.”41 Quite simply, we have not heard from some of the major players in this case

(applicant, his uncle, the other alleged sexual-abuse victims, members of the Nugent family), and

applicant’s case has not been subjected to adversarial testing.

        The State has recommended that applicant obtain relief in this case, but the recommendation

of the prosecutor (and that of the trial court) is not binding on this Court. The fact that the prosecutor

here agrees to relief does not authorize us to ignore the law. As was the case in Jenkins, the lack of

adversarial testing of the evidence presented at the habeas hearing leaves us with no reliable evidence

upon which to base a grant of relief. Moreover, even if the evidence were reliable, I see no legal

basis upon which applicant can base a legitimate claim. Applicant had the burden to raise a valid


        41
           Yount v. State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993) (quoting John E. B. Meyers
et al, Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV . 1, 121 (1989)). See also
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997).
                                                                         TIEDE DISSENT -- 18
legal claim and support it with evidence; he has failed to do so.

       I would deny relief. Alternatively, I would remand for a more extensive live evidentiary

hearing, as we did in Jenkins. At the very least, I would remand for the habeas court to determine

whether the family was notified of the habeas hearing and to address any subsequent issues that

might arise from that determination. I respectfully dissent.

Filed: November 26, 2014
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