Ex Parte Mowbray , 1996 Tex. Crim. App. LEXIS 253 ( 1996 )

OPINION

BAIRD, Judge.

Applicant was convicted of murder and sentenced to confinement for Life and a $10,-000.00 fine. The Court of Appeals affirmed. Mowbray v. State, 788 S.W.2d 658 (Tex.App —Corpus Christi 1990). Her habeas application contends: she is actually innocent of murder; the State’s expert knowingly gave false and misleading testimony; the State knowingly used false testimony; and, she suffered ineffective assistance of counsel at trial. The habeas judge entered findings of fact and conclusions of law, recommending that we grant a new trial. We will grant relief.

I.

The evidence at trial was summarized by the Court of Appeals as follows:

The deceased was shot in bed at night. The only occupants of the room in which the shooting occurred were the deceased and [applicant].

The defense theory was that [applicant] and the deceased were lying in bed with a pillow barrier between them when [applicant] saw the deceased’s elbow point upward. When she reached to touch it, the gun went off. [Applicant] made a taped statement about the shooting, and the tape was admitted into evidence. Witnesses to the [applicant’s] statements recalled that [applicant] indicated that she had used her left hand to reach toward the deceased. The State, however, introduced a crime lab supervisor’s analysis of [applicant’s] nightgown showing traces of lead or gunshot residue on the lower right sleeve. That witness, Steve Robertson, conducted tests with the gun found at the scene and opined that the residue was consistent with someone firing that gun.

Estella Mauricio, who was dispatched to the Mowbray residence just after the shooting, testified that she found the deceased, still alive and shot through the head, lying on his left side and covered all the way up to his shoulder. The bullet had entered the right side of his head, exited to the left, and wounded his left hand, which was under his head with a pillow between his head and left hand. The right hand was lying across his chest under the covers. There was no blood or brain matter on the right hand and she did not ever see his hand being washed at home or at the hospital. Emergency technician Cavazos also recalled that the victim was completely covered, with only the right side of his face and the top of his head showing, when he arrived. Mauricio testified that he was positioned like a sleeping person, and the deceased’s first cousin, Scott Mowbray, testified that the deceased slept in the position in which he was found.

Dr. Dahm, who conducted the autopsy, stated that if the deceased had shot himself, his right hand would have been covered with blood and brain matter. He found no such blood or brain matter on the deceased’s right fingers, hand, or forearm. Dahm testified it would have been impossible for the deceased to have shot himself and the hand to be clean, and concluded that the death was a murder.

Id., 788 S.W.2d at 662-663.

Additionally, two blood spatter experts testified. Sergeant Dusty Hesskew, of the Austin Police Department testified on behalf of the State and Captain Tom Bevel of the Oklahoma City Police Department testified on behalf of applicant. Generally, blood spatter experts inspect the physical evidence to determine the injuries suffered and their location with respect to the other physical evidence. In the instant case, both experts examined applicant’s nightgown for “high velocity impact [blood] staining” which commonly occurs within a short distance from a contact gunshot wound. Hesskew testified that he identified and measured, through “lu-minol testing,” high velocity impact bloodstains on applicant’s nightgown, which were invisible to the naked eye. Hesskew concluded the cause of death in the instant case was probably homicide. Bevel testified that his examination of the physical evidence led him to conclude the deceased could have died in the manner in which applicant testified, i.e., suicide.

II.

Pursuant to our order, the habeas judge conducted a hearing on the instant application. At that hearing, a third blood spatter expert, Herbert Leon MacDonell, the director of an independent forensic laboratory in Corning, New York, testified. MacDonell is viewed as the pre-eminent authority on the science of blood spatters.¹ MacDonell was retained to review the photographs and physical evidence in the instant case by the Cameron County District Attorney’s office approximately seven months prior to trial. MacDonell’s examination of applicant’s nightgown revealed no blood stains either visible to the naked eye or under a microscope. MacDonell concluded: “[I]t is very unlikely that [applicant’s nightgown] was in close proximity to the victim’s gunshot wound at the time of his shooting, or it was protected from spatter in some manner if [it] were.” After reviewing the crime scene, the physical evidence and the photographs, MacDonell’s expert opinion was that it was more probable than not that the deceased died from a suicide rather than a homicide. At the request of the State, MacDonell prepared and mailed to the Cameron County District Attorney a written report of his findings approximately two weeks before trial.

MacDonell took issue with Hesskew’s use of luminol to measure blood spattering. Lu-minol is a substance which can react with blood that is invisible to the naked eye. However, luminol testing is not accepted as a positive test for blood. Luminol testing is merely presumptive because luminol reacts with substances other than blood. In Mac-Donell’s opinion, the luminescence from a luminol reaction cannot be accurately measured. He stated:

I think it would truly be an exercise to futility. I don’t think you can put any reliability on it — I certainly wouldn’t — and I’ve seen luminol sprayed many times. I’ve never heard of anyone trying to measure it, count it, other than saying there appears to be a dozen or more.... You could do it, but the validity of your conclusion would be highly suspect in my opinion.

In MacDonell’s view, Hesskew did not understand the chemistry behind luminol testing.²

Hesskew testified he was retained by the Cameron County District Attorney’s office as a blood spatter expert. He observed applicant’s nightgown at the Department of Public Safety laboratory prior to the time it was shown to MacDonell. Hesskew was present when the nightgown was treated with lumi-nol. He counted forty-eight small stain areas around the stomach and chest of the nightgown which appeared consistent with high-velocity stains. Hesskew further donned a similar nightgown and fired test shots into a CPR dummy’s head filled with blcod in an attempt to duplicate the staining he observed through the luminol testing. Although Hesskew could not remember how he was able to duplicate the blood staining, in his expert opinion, applicant, wearing her nightgown, could not have been laying beside her husband at the time of his death. Thus, Hesskew’s testimony contradicted applicant’s defensive theory.

Hesskew admitted that his testimony at trial included several assumptions which involved more than his own test results. Most important of these assumptions was that someone tested the invisible stains and determined them to be human blood. At the hearing on.the instant habeas application, Hesskew conceded his trial testimony was scientifically invalid because no such confirmation was ever made. In other words, Hesskew conceded that his ultimate opinion that the victim died as a result of a homicide, and that applicant’s statements were impossible, had no scientific basis.

Bevel testified that it is impossible to measure high velocity impact blood spatter in the manner utilized by Hesskew. Bevel, like Hesskew, only performed presumptive tests on applicant’s nightgown. Bevel did not conduct any confirmation tests because he was informed by Hesskew that the Department of Public Safety laboratory confirmed human blood on applicant’s nightgown. Because his trial testimony was based upon this erroneous premise, Bevel stated: “with the inability to determine that ... is blood that is there, especially since we are talking about blood that is only invisible to the unaided eye, I don’t think you can really say anything.” Bevel believed the failure to conduct confirmation tests undermined his examination and earlier testimony, and agreed with Hesskew that their trial testimony was scientifically invalid.

Steve Robertson, a chemist in the Texas Department of Public Safety (DPS) crime laboratory, testified that he examined applicant’s nightgown and was present on three different occasions when the nightgown was sprayed with luminol. The nightgown was also sprayed with three chemicals to determine the presence of lead residue and treated with heat and chemicals to determine the presence of gunshot residue. His examination of the nightgown revealed very small red stains, visible to the naked eye, lead residue and a yellowish stain. Robertson conducted two confirmatory tests on the red stains to determine if they were human blood. Both tests resulted in negative results. Robertson testified that, if the stains were blood, the tests for the gunshot residue could have destroyed the protein in the blood and would cause a negative reaction. Further, the chemicals sprayed on the nightgown could have diffused or dissolved the red stains to the extent they were undetectable without a microscope.

Ed Cyganiewiez, the lead prosecutor at trial, conceded that the State’s ease “depended upon” the blood spatter evidence. Cygan-iewicz testified that MacDonell was retained by the Cameron County District Attorney’s office as an expert for the State and a subpoena was issued to secure his testimony. According to Cyganiewiez, the State did not call MacDonell to testify because of the expense of securing this testimony. However, because of the possibility of MacDonell’s report being “Brady material,” a copy was forwarded to applicant’s trial attorney ten days to two weeks prior to trial.

Abel Toscano, a board certified criminal law specialist, had been a criminal defense attorney in Cameron County for forty-two years and was retained to represent applicant at trial. Toscano received a copy of MacDonell’s report shortly before trial after the trial judge threatened Cyganiewiez with sanctions. After discussing the matter with co-counsel and Bevel, and reviewing MacDo-nell’s report, the evidence he had gathered independently, including the statements and information he obtained from applicant, Tos-cano chose not to contact MacDonell because he (Toscano) did not know how MacDonell would respond and there was some chance MacDonell might change his opinion. However, Toscano did make notations in preparation of a cross-examination of MacDonell, and during trial had his assistants checking to see if MacDonell had arrived.

III.

Following the hearing the habeas judge entered findings of fact and conclusions of law. The habeas judge determined that applicant was not factually innocent under State ex rel. Holmes v. Honorable Court of Appeals for Third District, 885 S.W.2d 389 (Tex.Cr.App.1994); that, although the State’s expert’s testimony was scientifically invalid, it was not perjurious; and, that applicant’s trial counsel was not ineffective. Nevertheless, the habeas judge determined that applicant was denied due process. Among the habeas judge’s findings of fact are:

7. There was rationale for both murder and suicide....

8. The rationale for suicide was, at least, equally persuasive. ... The decedent had attempted suicide at least twice prior to his death and had shot himself in one of these previous efforts. Decedent had vowed to kill himself....³

11. The linchpin of the State’s case was the high velocity impact spatter (HVIS) alleged found on the front of her gown. If there, [applicant] could not have been prone in the bed at the time the shot was fired, and it followed her version of events was false.

13. At [the habeas hearing] Hesskew recanted his trial testimony as to HVIS. Hesskew admitted his testimony at trial was without “scientific validity.”

15. ... Bevel, too, disavowed his trial testimony.

16. Without Hesskew’s testimony, and the conclusions he drew, there was another equally reasonable hypothesis other than Applicants guilt: Mow-bray’s death was suicide or an accident. However, the matter does not rest here. The facts relating to Herbert Leon MacDonell now loom large.

17. The State’s conduct in connection with MacDonell was, at best, questionable trial strategy, and, at worst, intentional deception of Applicant’s counsel.

20. ... On [MacDonell’s] laboratory work sheet, dated November 18, when the State’s counsel were in Corning, Mac-Donell made the entry:

“Night gown has no pattern of high velocity impact spatter”

On a billing submitted to the State by MacDonell there is a charge of $500.00 for “18 Nov 87 Conference in Corning, New York, to examine and discuss certain physical evidence.” There seems to be no question that on November 18,1987, seven months before trial, the State’s [counsel] knew MacDonell’s findings and that they were exculpatory. [Emphasis in original.]

28. This Court heard and observed Mac-Donell as well as Hesskew and Bevel. MacDonell was far and away the more articulate, knowledgeable, and credible. If the jury had heard Mac-Donell, and Hesskew had testified as he now does, or not testified at all, there is a substantial probability a verdict of Not Guilty would have ensued.

Under these facts, the habeas judge determined the State violated applicant’s due process right to a fair trial by suppressing evidence favorable to applicant. Indeed, the habeas judge concluded:

Applicant’s counsel were not ineffective. They vigorously defended their client in a wholly professional manner. However, their effectiveness was, in large measure, thwarted by the conduct of the State. ... Undoubtedly, if [Applicant’s] counsel had insisted that the State produce its subpoenaed witness MacDonell, and had examined him, a different verdict might have resulted. But Applicant’s counsel could not have known the devastating testimony MacDonell would have given (and did give at the writ hearing). They knew nothing more than what MacDonell had said in his written report of May 13.

On the other hand State’s counsel early on recognized the potential lethal effect of MacDonell’s testimony on their theory of the case, and beginning in November and continuing until May they engaged in a deliberate course of conduct to keep Mac-Donell’s findings and opinions from Applicant’s counsel until the last days before trial. Even then they caused Applicant’s counsel to believe MacDonell would be a witness and available for cross-examination.

The State had an obligation to be forthcoming when the Brady motion was heard and granted in March. Instead, it chose to suppress MacDonell’s exculpatory evidence until its hand was forced by the trial judge only days before trial, and, in so doing, the State denied Applicant due process.

Thus, the habeas judge recommends that we set aside applicant’s conviction and order a new trial.

IY.

Virtually every fact finding involves a credibility determination. We have repeatedly recognized that the fact finder is the exclusive judge of the credibility of the witnesses. See e.g., DuBose v. State, 915 S.W.2d 493 (Tex.Cr.App.1996); Joseph v. State, 897 S.W.2d 374 (Tex.Cr.App.1995); Muniz v. State, 851 S.W.2d 238 (Tex.Cr.App.1993); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Cr.App.1984); Mills v. State, 508 S.W.2d 823, 826 (Tex.Cr.App.1974); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); and, West v. State, 489 S.W.2d 597 (Tex.Cr.App.1973). In habeas hearings, the judge determines the credibility of the witnesses and if the habeas judge’s findings of fact are supported by the record, they should be accepted by this Court. Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Cr.App.1977). See also, Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Cr.App.1989).

In Ex parte Moore, 136 Tex.Crim. 427, 126 S.W.2d 27 (1939), we stated:

... Where the ruling of the trial judge depends upon the existence or non-existence of a certain fact and testimony pro and con is introduced thereon and the evidence is conflicting it becomes the duty of the trial judge to determine the issue, and unless it appears to this court that his finding was without support in the evidence, and that he had committed an error in his judgment thereon, we would not interfere with his findings thereon. Glenn v. State, 89 Tex.Cr.R. 13, 229 S.W. 521.

Id., 126 S.W.2d at 28.

The State has an affirmative duty to disclose favorable evidence under the Due Process Clause. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). However, in order to warrant a new trial, the favorable evidence must also be material. Ex parte Castellano, 863 S.W.2d 476, 485 (Tex.Cr.App.1993).⁴

In the instant case, the habeas judge determined the State knowingly suppressed MacDonell’s report which supported applicant’s theory of suicide. This was obviously favorable evidence. Additionally, the habeas judge found that if the favorable evidence had been considered by the jury, an acquittal would have resulted. Clearly this finding meets the materiality requirement. Id., 863 S.W.2d at 486.

The habeas judge’s factual determinations are supported by the record and, therefore, will be accepted by this Court. Turner, 545 S.W.2d at 473. Consequently, we hold applicant’s due process rights were violated, and applicant is entitled to relief. Accordingly, applicant’s conviction is set aside and it is the order of this Court that applicant be returned to the Sheriff of Cameron County to answer the indictment.

Relief granted.

WHITE, J., not participating.

1 . The State’s expert, Dusty Hesskew, studied under MacDonell and testified elsewhere that Mac-Donell “basically invented” blood spatter analysis. Indeed, during Bevel’s cross-examination, the State sought agreement that MacDonell "is THE expert or THE granddaddy of blood spatter.”

2 . MacDonell further testified:

It's uncomfortable to criticize other people who are practicing in the field that I have been quite responsible for bringing to the front of the current investigative systems in the United States, if not the world, but I must say in one word that I’m disappointed. I will leave it at that.

3 . All emphasis is supplied unless otherwise indicated.

4 . In Thomas v. State, 841 S.W.2d 399, 404 (Tex.Cr.App.1992), we held:

... [T]he Due Process Clause of the Fourteenth Amendment is violated when a prosecutor fails to disclose evidence which is favorable to the accused that creates a probability sufficient to undermine the confidence in the outcome of the proceeding.