Jesse Luna v. Dr. George J. Beto, Director, Texas Department of Corrections

DYER, Circuit Judge:

The facts of this habeas corpus case now before the court en banc^* are fully and succinctly stated in this court’s opinion on original hearing.¹ For convenience, they are reproduced here:

Luna was convicted in the Criminal District Court of Harris County, Texas, of the offense of selling heroin and was sentenced to imprisonment for 25 years. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas.¹ As

shown in the opinion of that court, the sale of the narcotic drug was alleged to have been made to John William Gober, an ex-convict. That opinion details how Gober was the principal witness for the State and his testimony as to effecting the sale was corroborated by officers Hightower and McMannes, who observed him from a distance with field glasses. Luna’s application for habeas corpus to the Texas Court of Criminal Appeals was denied without opinion on November 9, 1965. On February 9, 1966 Luna filed his application for habeas corpus in the federal district court. The principal grounds for his application are: (1) The State knowingly permitted the witness Gober to testify falsely. (2) The State knowingly suppressed evidence beneficial to the defendant Luna. (3) The State Court at the instance of the prosecuting attorney denied the defendant Luna his right adequately to cross-examine the witness Gober. After a full hearing, the district court entered an able opinion and denied the application for ha-beas corpus.

* * ít * * *

All three of the grounds for the application are based upon the following parts of the cross-examination of the witness Gober:

“Q. You certainly have no official capacity with the Houston Police Department, do you — are you a police officer?

“A. No sir, I’m not.

“Q. You have no official capacity with them, do you, Gober?

“A. No sir, I do not.

“Q. Are you paid by them?

“A. No sir.

“Q. Now, Gober, you admitted on the stand, in answer to questions, that you have been convicted of the crime of murder without malice in 1955, is that correct?

“A. Yes sir.

“Q. You have been charged * *.

“MR. STOVER: Your Honor, I object to any questions about what this man had been charged with. Convictions are all that he can ask him about as Counsel well knows.

“MR. TUCKER: I want to ascertain the number of charges that was in Harris County, Your Honor.

“THE COURT: Just convictions, please. You know rules.

“MR. TUCKER: Yes, Your Honor.

“MR. TUCKER CONTINUES:

“Q. I ask you if you have been convicted of burglary and felony theft here?

“A. Yes sir.

“Q. What other indictment — have you been under any other indictments ?

“MR. STOVER: I object to that, Your Honor, and ask that Counsel be instructed to abandon this line of questioning.

“THE COURT: That is sustained.

“MR. TUCKER CONTINUES:

“Q. How long have you been working with or for the Houston Police Department?

“A. I haven’t been working with the Houston Narcotics Squad, the Police Department Division, since sometime in July, the middle of July.

“Q. Are you addicted to the use of narcotics ?

“A. No, I am not.

“Q. You are not addicted to the use of narcotics?

“A. No sir.

“Q. How many cases have they filed on you — do they have over you right now?

“A. I don’t have any pending cases against me.

“Q. How many times have they caught you with narcotics?

“MR. STOVER: I object to that— it would be immaterial.

“THE COURT: That is sustained. “MR. STOVER: Counsel well knows the rules, Your Honor, and I am going to object to his continuing * * *.

“THE COURT: Counsel, please pay attention — you know what is admissible, and you know what is not admissible. Please don’t ask any more questions along that line.

“MR. TUCKER: Yes, sir, Your Honor.”

The undisputed facts reveal that when Gober was arrested for a felony — the unlawful possession of narcotics, he was promised by police officers that, if he would cooperate by obtaining evidence against narcotic peddlers,. the police officers would “give him whatever help they could with his case.” Gober agreed and was released on bond. For several months he assisted the police by purchasing narcotics from peddlers. The appellee admits that at times officers advanced to Gober small sums of money.²

The majority of the panel which originally heard this case on appeal, relying on Barbee v. Warden, Maryland Penitentiary, 4 Cir. 1964, 331 F.2d 842, was of the opinion that a writ should be granted because the State knowingly allowed Go-ber to testify falsely and knowingly suppressed evidence favorable to Luna. A majority of that panel also held that there was no merit in Luna’s contention that the State court had denied him the right to an adequate cross-examination of Gober. Upon rehearing en banc, we are of the opinion that the District Court’s denial of a writ of habeas corpus should be affirmed.

Perjury is “The willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding * * * upon oath * * * such assertion being material to the issue or point of inquiry and known to such witness to be false.” ² Accord, Blackmon v. United States, 5 Cir. 1940, 108 F.2d 572. Viewed in this light we are convinced that there is no merit in appellant's contention that “the State knowingly used perjured testimony to deprive Appellant of a fair trial.”³ Witness Gober was asked “Are you paid by them? ” (Emphasis added.) He answered, “No sir.” This answer was true since Gober had not, as he testified, worked with the police for several months before the trial. Gober was later asked “How many cases have they filed on you — do they have over you right now ? ” He answered that he had no “pending cases,” In fact, a complaint had been made against him for possession of narcotics. However, in determining whether this answer constitutes perjury as appellant urges, the materiality of the answer and Gober’s knowledge that the answer was false must be considered. “Materiality is determined by whether the false testimony was capable of influencing the tribunal on the issue before it.” Blackmon v. United States, supra at 573. Under the circumstances of this case, it is clear that the false answer was not material. In the context in which the question was asked, i. e., a direct attack on Gober’s credibility, the answer was not admissible in evidence. Under Texas law in effect at the time of appellant’s trial, only convictions could be used to impeach a witness in a criminal ease.⁴ Evidence of pending charges is admissible in Texas for the limited purpose of showing bias, prejudice and motive of a witness. E. g., Blake v. Texas, Ct.Crim.App.1963, 365 S.W.2d 795; Kissinger v. Texas, Ct. Crim.App.1934, 70 S.W.2d 740. However, in the case sub judice, appellant made no attempt to inform the court that the testimony was sought to show bias or motive.⁵ Furthermore, it is clear beyond a reasonable doubt, Chapman v. State of California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 that this testimony would not have influenced the jury on the issue of appellant’s guilt vel non. Gober admitted both on direct and on cross-examination that he had been convicted for murder without malice, for burglary and for felony theft. Thus the evidence that Gober had been charged with the less serious offense of possession of narcotics was merely cumulative on the issue of his credibility. It did not go to the heart of the offense, as was the situation in Barbee v. State of Maryland, supra, or in our recent case of Jackson v. Wainwright, 5 Cir. 1968, 390 F.2d 288 (slip opinion February 26, 1968). We are convinced that no jury would disbelieve a witness who admitted to being a burglar, a thief and a murderer simply because he had also been charged with possessing narcotics.

When Gober was charged with violating the State narcotics laws, he was released on bond. No hearing was ever held — the police having twice requested and received a postponement. Gober was never made to appear before any court in connection with the charge. Under Texas law, the failure to present an indictment or information during the term of court next after a defendant has been released on bail relieves him and his sureties from all liability on the bond.⁶ The crucial term of court had ended before Gober testified at appellant’s trial, and he had thus been released from liability on the bond. This, we think, negates any inference of willful falsity by Gober and suggests that as a man “versed” in the “practicalities” of criminal law, he may well have considered that the charges had in fact been dropped. Therefore, it cannot be said that either answer constituted perjury.

Appellant next urges that a writ must be granted because in his case, as in Barbee v. Maryland, supra, the State “wilfully suppressed evidence that was favorable to Appellant.”⁷ Appellant’s argument here is closely related to the point previously discussed. However, even accepting arguendo appellant’s contention that the pending charge against Gober for possession of narcotics was “suppressed evidence,” we are convinced that Barbee, although having surface appeal, is upon close analysis inapposite to the situation before us because, as discussed below, the suppressed evidence in Barbee differs from that in this case. In Barbee the evidence was of such a nature that its suppression amounted to an unconstitutional denial of due process. The suppressed evidence there was clearly exculpatory in that it consisted of a fingerprint test which showed that Bar-bee’s fingerprints did not match those found in the car driven by the assailants, and of a ballistics test which showed that Barbee’s gun, exhibited to witnesses at trial, had not fired the shot that wounded the police officer. The Court found that this evidence had “substantial evidentiary significance.”⁸ As previously demonstrated, the evidence involved in the instant case was merely cumulative on impeachment and had no direct relation to appellant’s guilt or innocence. In Barbee the Court attached no significance to counsel’s failure to request the reports because this was “not a ease where defense counsel merely made a wrong tactical calculation; it is a case where the inference strongly projected by the state’s evidence might have been destroyed by other evidence in its possession but which the police concealed * * * ” Id. at 846. Here the evidence was merely cumulative in nature. It would not have destroyed any inference raised by the state’s evidence, for it would be ludicrous to suggest that a charge of possessing narcotics would impair the image of an admitted murderer, burglar and thief. Here, as in Barbee, there is no evidence that the prosecutor knew that evidence was being suppressed. The Fourth Circuit imputed the knowledge held by the police to the prosecutor because “the police allow [ed] the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradict [ed] this inference * * Id. at 846. Our situation is vastly different. The evidence was not elicited by the prosecutor but by appellant’s counsel. The police were not in the courtroom when Gober testified (the Rule had been invoked) so they had no way to know of or to correct Gober’s statements. Furthermore, in Barbee the court stated that it could not “condone the attempt to connect the defendant with the crime by ■questionable inferences which might be refuted * * Id. Here, the undisclosed evidence did nothing to connect .appellant with or absolve him from the crime. Finally, the Barbee court considered the matter of prejudice. It refused to consider that the reports might not have influenced the jury because this was a case “where evidence was withheld by the police which had a direct bearing upon and could reasonably have weakened or overcome testimony adverse to the defendant. * * * ” Id. at 847. Here the evidence had no such direct bearing, and as discussed supra we are firmly convinced that the evidence, in any event, would not have affected the result.

Appellant’s conviction is not constitutionally infirm. The judgment of the District Court is

Affirmed.

1 . Luna v. State of Texas, Tex.Crim.App. 1965, 387 S.W.2d 896.

* Judge Rives, a Senior Judge, was a member of the panel delivering the initial opinion and is therefore qualified to sit on the rehearing en bane. See Allen v. Johnson, 5th Cir., 1968, 391 F.2d 527 (en banc) [February 9, 1968], This is one of six eases submitted en banc to the Court at Houston set forth in Allen.

1 . Luna v. Beto, 5 Cir., 1967, 391 F.2d 329. [No. 23,813, July 11, 1967.]

2 . The amounts ranged from $3.00 to $5.00, and one officer testified that considering the number of days Gober spent assisting the police investigators, the sums advanced were not enough to compensate him for the time he was absent from his regular job.

Gober testified at the trials of several defendants, including Luna, who were arrested for selling narcotics to Gober. Luna’s case was the first to be brought to trial.

2 . Black’s Law Dictionary, p. 1297 (4th ed. 1951).

3 . Appellant’s brief, p. 5.

4 . General and Special Laws of Texas, Acts 1951, 52d Leg., p. 814, ch. 458, § 1, codified as Article 732a of Vernon’s Annotated Texas Code of Criminal Procedure and brought forward as Article 38.29 of the 1965 Code of Criminal Procedure of Texas. That section read:

The fact that a defendant in a criminal case, or a witness in a criminal case, is, or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, or the United States, or any other State shall not be admissible on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial of such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the probation has not expired.

5 . A much more difficult case would have been presented had appellant’s counsel been prevented from eliciting answers to questions such as: “Why are you testifying today?” “Did the police make a deal with you to drop pending charges against you if you would help them?” Gober testified in subsequent narcotics cases where this type of question and Gober’s answers thereto were allowed.

6 . Article 436, Vernon’s Annotated Texas Code of Criminal Procedure, brought forward as Article 22.13 of the 1965 Texas Code of Criminal Procedure.

7 . Appellant’s Brief, p. 5.

8 . The undisclosed evidence in our recent case of Jackson v. Wainwright, supra, was also highly relevant to the basic question of guilt or innocence. It consisted of a witness who was certain that appellant, a dark negro could not have been the rapist since the man she had seen was not a dark skinned negro. Therefore, neither Jaclcson nor the cases discussed therein (ail involving evidence bearing directly on the guilt or punishment of the accused) are determinative of the cause under consideration.