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Ex parte Weinstein

Court of Criminal Appeals of Texas

January 29, 2014

EX PARTE STEVEN MARK WEINSTEIN, Applicant

Page 657

[Copyrighted Material Omitted]

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS. IN CAUSE NO. 1167730-A. IN THE 339TH DISTRICT COURT OF HARRIS COUNTY.

COCHRAN, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, HERVEY and ALCALA, JJ., joined. KELLER, P.J. filed a concurring opinion in which PRICE, J., joined. KEASLER, J., concurred.

OPINION

Page 659

COCHRAN, J.

Applicant was convicted of murdering Jerry Glaspie. He filed a post-conviction application for a writ of habeas corpus, alleging that he was denied due process because (1) the State failed to disclose that its key witness, Nathan Adams, had hallucinations and delusions, and (2) the State presented false testimony when Mr. Adams lied about not having hallucinations and delusions. The habeas judge initially filed findings of fact and conclusions of law recommending that we deny relief, but we remanded the case and asked her to determine (1) whether Nathan Adam's testimony was false, and, if so, (2) whether applicant had shown a reasonable likelihood that the false testimony affected the judgment of the jury.[1] In revised findings, the judge found that the State unknowingly presented false testimony when Nathan Adams testified that he did not suffer from auditory or visual hallucinations. The judge also found that Mr. Adams was a key witness in establishing applicant's intent to murder. She concluded that there was a reasonable likelihood that the outcome of the trial would have been different had Mr. Adams admitted to having hallucinations.

We adopt the habeas judge's factual findings that Adams's testimony about his lack of delusions was false, but we conclude that applicant has failed to prove that Adams's false testimony was " material," i.e., reasonably likely to have affected the jury's verdict.

I.

The evidence at trial showed that, in mid-2006, applicant and Jerry Glaspie drove from Houston to Dallas planning to use applicant's $14,000 to buy methamphetamine. The drug deal did not go as planned. Although Jerry instructed applicant to bring cash, applicant tried to buy the meth with a $14,000 cashier's check. " [T]he banks were closed because it was the weekend and so there was no place to cash the check." Unwilling to wait for the banks to open, applicant left Jerry in Dallas with his check, expecting him to return to Houston with either meth or money.

Jerry remained in Dallas, so applicant called him " four or five times a day," but Jerry " stopped answering the phone." Then applicant started calling Jerry's friends in Houston. Around November, applicant contacted Jerry's friends on Manhunt,[2] explaining how Jerry ripped him off and looking for ways to find him. Applicant " was very upset and angry."

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He tried to get a mutual friend to call Jerry and tell him that someone in Houston wanted to make a major methamphetamine buy. Applicant planned to " surprise" Jerry when he appeared and demand his money back. When asked what he would do if Jerry didn't have his money, applicant said, " Oh, well, we'll just scare him."

Applicant's plans grew more violent. At one point, he suggested driving to Dallas and " tak[ing] him for a ride somewhere." If Jerry didn't have his money, applicant said that " maybe we can hurt him. We can do something, just do stuff just to scare him, just to get him to, you know, cough up the money." In another plot, applicant asked his interior decorator to help bring Jerry back " with or without [his] consent" by " giving him some drug or maybe using a taser gun." Applicant also talked about using restraints: " [H]e was [going] to have to tie him up . . . and then put him in the car and bring him to Houston."

Jerry eventually returned to Houston without the drugs or applicant's $14,000. Although he was warned to stay away from applicant, Jerry told his friends that he had " made arrangements to pay him off in installments," so " [d]on't worry about it."

On the morning of January 29, 2007, Jerry borrowed his roommate's 4-Runner to visit some people, including applicant. Jerry never returned. Worried about Jerry's disappearance, his roommate filed a missing persons report. A few weeks later, police found the 4-Runner in a church parking lot. Although Jerry's friends feared that he was at applicant's house, no one called the police because they didn't want cops " poking around" in their drug business.

Near the end of February, residents in applicant's townhouse complex noticed an odor coming from applicant's garage. It was so strong that the mailman refused to deliver the mail. When his neighbors repeatedly asked about the smell, applicant said that his ex-roommate had hidden food all over the house, but he was trying to clean up all the rotting food.

On March 8th, HPD Officer Ladewig was dispatched to applicant's house to check out the foul odor coming from the garage. She noticed " this awful, horrible smell" and " a big swarm of flies" coming in and out of applicant's garage. Although she recognized the smell of a dead body, she was not " 100 percent sure" that it was anything more than a dead animal, so she did not try to contact applicant. Two days later, she was again dispatched to applicant's home. Convinced that she was smelling a dead body, she asked her supervisor to join her, and together they knocked on applicant's door and used their loudspeaker, but applicant did not respond. Although they wanted to make a forced entry, the D.A.'s Office told them that they could not enter without a search warrant.

At 5:00 a.m. on March 22nd, Officer Ladewig was on patrol near applicant's house. Still convinced that the odor coming from applicant's garage was from a dead body, she drove her partner to the house to get his opinion. When they arrived, applicant was standing in his front yard. He told the officers that his ex-roommate " had left rotting meat and trash all over" the house and garage. While telling his story, applicant " was stuttering" and " appeared very upset," and " nervous." When Officer Ladewig ...


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