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Ex parte Storey

Court of Criminal Appeals of Texas

October 2, 2019

EX PARTE PAUL DAVID STOREY, Applicant

          ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. C-3-011020-1042204-B IN CRIMINAL DISTRICT COURT NO. 3 TARRANT COUNTY

          HERVEY, J., filed a concurring opinion in which KEASLER, RICHARDSON and NEWELL, JJ., joined. YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined. WALKER, J., filed a dissenting opinion in which SLAUGHTER, J., joined. KEEL, J., concurred.

          ORDER

          PER CURIAM.

         This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

         In September 2008, a jury convicted Applicant of the offense of capital murder for murdering a person in the course of robbing him. Tex. Penal Code § 19.03(a)(2). The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Storey v. State, No. AP-76, 018 (Tex. Crim. App. Oct. 6, 2010)(not designated for publication). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Storey, No. WR-75, 828-01 (Tex. Crim. App. June 15, 2011)(not designated for publication). After Applicant unsuccessfully pursued relief in federal habeas court, the trial court set an execution date for April 12, 2017.

         On March 31, 2017, Applicant filed this subsequent application for writ of habeas corpus raising six claims for relief. On preliminary review, we found that the following four claims arguably satisfied the requirements of Article 11.071, § 5:

2. The State of Texas denied Applicant his right to due process under the Fourteenth Amendment to the Constitution of the United States by arguing aggravating evidence the prosecution knew to be false.
3. The prosecution introduced false evidence, thereby depriving Applicant of a fair punishment trial and in violation of the Fourteenth Amendment to the Constitution of the United States.
4. The State of Texas denied Applicant his right to Due Process under the Fourteenth Amendment to the Constitution of the United States by suppressing mitigating evidence.
5. By arguing false aggravating evidence and suppressing mitigating evidence, the State of Texas has rendered the death sentence in this case unreliable under the Eighth and Fourteenth Amendments to the Constitution of the United States.

         These claims arise from a statement that a prosecutor made during closing argument at the punishment phase of trial that "all of [the victim's] family and everyone who loved him believe the death penalty is appropriate." Applicant contends that he recently discovered that the parents of the victim were opposed to the death penalty and they communicated their views to the State prior to trial. Applicant asserts that he meets Section 5 because the factual basis of these claims was unavailable on the date he filed his initial writ application. Tex. Code Crim. Proc. Art. 11.071, § 5(a)(1).

         Because the record was not sufficient to determine with assurance whether Applicant could have previously discovered the evidence complained of in these claims, on April 7, 2017, we stayed Applicant's execution and remanded this case for the trial court to develop the record. We ordered the trial court to make findings of fact and conclusions of law regarding whether the factual basis of these claims was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. We further instructed the trial court to review the merits of the claims if it determined that the factual basis was not ascertainable through the exercise of reasonable diligence.

         Following a three-day hearing in September and October 2017, the trial court adopted Applicant's proposed findings of fact and conclusions of law. The trial court found that the remanded claims met Section 5 and had merit, and it recommended that punishment relief be granted. We disagree.

         On post-conviction review of habeas corpus applications, the convicting court is the "original factfinder" and this Court is the "ultimate factfinder." Ex parte Thuesen, 546 S.W.3d 145, 157 (Tex. Crim. App. 2017), citing Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In most circumstances, we defer to the trial judge's findings of fact and conclusions of law because the trial judge is in the best position to assess the credibility of the witnesses. Id. We will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record. Id. But if our independent review of the record reveals circumstances that contradict or undermine the trial judge's findings and conclusions, we can exercise our authority to enter contrary findings and conclusions. Id.

         At the hearing on remand, the prosecutors testified that they told trial counsel about the victim's parents' anti-death penalty views prior to trial. However, the prosecutors acknowledged that those discussions were not documented or formalized. Trial counsel testified that they could not remember if the State told them this information. We defer to the trial court's credibility choice in favor of trial counsel and the finding that the State did not inform trial counsel about the victim's parents' anti-death penalty views.

         One of the prosecutors testified that he told trial counsel that the victim's parents "preferred not to be contacted." But that prosecutor further testified that he told trial counsel "that they were certainly free to contact them" if they wished to do so.

         Robert Ford, who was Applicant's habeas counsel on his initial writ application, is now deceased. The trial court found that Ford did not know that the victim's parents opposed a death sentence for Applicant. This finding is not supported by the record. Applicant did not present any evidence showing what Ford did or did not know regarding the victim's parents' anti-death penalty views. The victim's father testified that he has disclosed his anti-death penalty views to "anybody that wants to know or has ever asked me." This testimony undermines the trial court's finding that the factual basis of the remanded claims was not ascertainable through the exercise of reasonable diligence prior to the filing of the initial writ application. And although the trial court found that Ford generally "had a strong reputation for his diligence," Applicant presented no evidence showing that Ford was diligent in his particular case.

         Based on our own review, we conclude that Applicant has failed to meet his burden to show that the factual basis for the remanded claims was unavailable on the date he filed the previous application. With regard to Claims 2, 3, 4, and 5, Applicant has failed to satisfy the requirements of Article 11.071, § 5.

         We have also reviewed Applicant's claims that newly discovered evidence "compels relief" (Claim 1) and the State violated the Fourteenth Amendment by seeking death in this case (Claim 6). With regard to these claims, we find that Applicant has also failed to satisfy the requirements of Article 11.071, § 5. Accordingly, we dismiss all of Applicant's claims as an abuse of the writ without reviewing the merits.

         IT IS SO ORDERED.

          Hervey, filed a concurring opinion in which Keasler, Richardson, and Newell, JJ., joined.

         CONCURRING OPINION

         I join the Court in dismissing Applicant's writ application because he cannot overcome the Section 5 subsequent writ bar. I write separately to briefly address Judge Yeary's suggestion that order briefing on whether the State's closing argument, which is not evidence, amounted to the knowing use of false evidence against Applicant. I also write separately to address a better analytical framework, Applicant's Brady claim, and the Crime Victims' Rights Act.

         I.

         This case is not a false-evidence case because no evidence of the family's preference was introduced at trial. That should be the end of the analysis. There is no question of whether Applicant's claim fits neatly within our false-evidence jurisprudence; it does not fit at all, even in some "yet-to-be-fully-articulated way," and asking the parties to brief a claim which Applicant can never win is an exercise in futility. Dissenting Op. at 2 (Yeary, J.).

         II.

         Instead of taking the radical step of possibly recognizing a new due-process ground for relief based on a legal fiction fabricated by this Court, we could apply longstanding, well-settled precedent from the United States Supreme Court.

         It is well established that comments and conduct by a prosecutor during trial or at a sentencing proceeding might amount to prosecutorial misconduct depriving a defendant of due process. Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994) (death-penalty sentencing proceeding); Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (trial) (citing Darden v. Wainwright, 477 U.S. 168 (1986)). A prosecutor's improper trial comments violate the Fourteenth Amendment if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A prosecutor's improper sentencing comments violate the Fourteenth Amendment if they so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. Romano, 512 U.S. at 12. This test is necessarily a general one because in these types of cases the State did not deny a defendant "the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of that right."[1] Id.

         Instead of resorting to creating some kind of novel, constitutional "psuedo false-evidence" jurisprudence, we could use the well-known Darden test. The problem here, as the Court points out, is that the factual predicate for Applicant's claims-regardless of how you characterize them (e.g., false evidence, Brady, Darden, etc.)-is not newly available, so we cannot reach the merits of those claims.

         III.

         Second, even if we assume that the State's knowledge of the victim's parents' position on the death penalty was information favorable to Applicant and that the State suppressed it, I fail to see how Applicant can show that the information is material.

         In Brady v. Maryland, 373 U.S. 83 (1973), Brady and a co-defendant murdered the victim. Brady admitted his guilt but sought to avoid the death penalty by arguing that he was not the shooter, his co-defendant was. Unbeknownst to Brady, his co-defendant gave a statement to police in which he admitted that he killed the victim. Brady did not learn of his co-defendant's statement, however, until after he was convicted because it was suppressed by the State. The Supreme Court agreed that Brady was entitled to a new trial because the statement was "highly significant to the primary jury issue" of whether a death sentence was appropriate to his level of participation in the crime.

         This case is not like Brady. Applicant admitted that, after his co-defendant shot the kneeling victim in the back of the head, he shot the victim at least four more times because he "kind of got caught up in all of it." He made those admissions only after repeatedly lying about his level of participation in the murder. Initially, he claimed that a fictional person killed the victim, then he told police that someone named Carlos, whom Applicant did not like and who had nothing to do with the crimes, was the shooter. In another variation, he said that he was only the get-away driver. Ultimately, he conceded that he planned the robbery and directed his co-defendant during the robbery. And this was not some spur of the moment crime. Applicant wrote his plan down, then later attempted to burn it. They knew when the first employee (the victim) would arrive to work that morning and that he would be alone. They knew when the next person would arrive at work, so they could leave before his arrival. They brought a loaded weapon. And they intentionally killed the victim execution style.

         The victim's wife was the first person to testify at the punishment phase. Her testimony was brief, but powerful. When asked to describe the impact of her husband's death on her, she said that,

Well, I had just come back from lunch, and I was having a pretty good day, and I was pulled into an office at my office. And my best friend was there, and she was crying, and there was a police officer. And I kind of walked in, was kind of confused. Never figured anything had happened. And then the police officer just told me that Jonas was dead; he was killed.
It's kind of a blur, to be honest with you, as to how my reaction was. I think I started screaming at that point. You know, in that moment, I knew my life was never, ever going to be the same. It felt like my entire life had crumbled right in front of me. It felt like someone had pushed me into a hole and there was no way of getting out of it. Jonas and I had planned on having children. We owned a home together. I knew I was never going to live there again, which I never did.
I had to tell his parents. And how do you tell, you know, the mother of their only child that, "I'm sorry, you are never going to have grandchildren, and I'm sorry your son was murdered?" I never slept again without medication. I started going to a therapist the next week and had panic attacks every night and was terrified that at any moment in my life, someone I loved was going to die. And I couldn't be in a crowded room. I had to leave the job that I loved for several months.
I mean, it was just - my whole life, it was horrible. Everything has changed. It's like my life is okay now, but it's never going to be as good it was. He and I were so in love, and we were so happy together. And he made every day just better because he was part of it. And now everything that I thought I was going to have, I am just never going to have.
So it's kind of hard to describe how it impacts you. But every single way something could impact you, it has impacted me that way.

         Some jurors were crying during her testimony. There was also evidence that, after executing the victim, Applicant and his co-defendant went to Cash America to shop, then Braum's to eat, before returning to Cash America. Surveillance video taken in Cash America showed Applicant and his co-defendant joking and laughing with each other while they looked for something to buy with the money that they stole. Other evidence showed that, before the murder, Applicant robbed numerous drug dealers because he knew that they would not report the robberies to the police. On the other hand, more than a half-dozen witnesses, who personally knew Applicant, testified in great detail why the jury should spare his life.

         In light of all of this, it is difficult-if not impossible- to conclude that the victim's parents' general opposition to the death penalty would cast "the whole case in a different light . . . ." United States v. Agurs, 427 U.S. 97, 109-10 (1976). Consequently, even if the basis for Applicant's Brady claim was not known when he filed his subsequent writ application, which is doubtful, filing and setting this case to get briefing about the "due diligence" requirement is unnecessary.

         IV.

         For years, great debate over prosecutorial discretion in seeking the death penalty has existed. And attention to the facts and circumstances of each case necessarily includes the rights of the victim of a crime. But even legislative consideration of victims' rights only directs prosecutors to keep victims informed! A victim's desires, wishes, thoughts, and suggestions should be, and often are, sought out by prosecutors, but the victim's wishes do not override prosecutorial discretion, including regarding whether to seek the death penalty.

         V.

         With these comments, I concur in the Court's dismissal of Applicant's subsequent application for a writ of habeas corpus.

          YEARY, J., filed a dissenting opinion in which Slaughter, J., joined.

         DISSENTING OPINION

         During her final summation at the punishment phase of Applicant's capital murder trial, the prosecutor made the following statement:

And it should go without saying that all of the Jonas's [the victim's] family and everyone who loved him believe the death penalty is appropriate.

         It is bad enough that there was no evidence in the record to support this statement. Applicant now claims that, as it later turned out, it was also patently false.[1]

         Applicant has filed a subsequent post-conviction application for writ of habeas corpus, alleging (among other things) that the prosecutor's statement constituted the knowing use of false evidence and that the failure to disclose its falsehood constituted suppressed evidence that was favorable to the defense, under Brady v. Maryland, 373 U.S. 83 (1963). While Applicant's allegation does not fit neatly within either the jurisprudence of false evidence or that of the suppression of favorable evidence for Brady purposes, it would not be a stretch to conclude that the prosecutor's statement, if indeed false, violates due process in some yet-to-be-fully-articulated way that is analogous to both of these theories.

         Today the Court dismisses Applicant's various claims on the grounds that he "has failed to meet his burden to show that the factual basis for the remanded claims was unavailable on the date he filed" his initial application for post-conviction habeas corpus relief, and therefore "failed to satisfy the requirements of Article 11.071, [Section] 5." Court's Order at 5; see Tex. Code Crim. Proc. art. 11.071, § 5(a) (prohibiting courts from entertaining the merits of a claim raised in a subsequent post-conviction writ application unless the application "contains sufficient specific facts establishing that" the factual basis for the claim was unavailable when a previous writ application was filed). It is not self-evident to me, however, that the writ application fails to "contain sufficient specific facts" to establish unavailability. In my view, the Court should at least file and set this cause to better explain how it comes to that conclusion. The Court seems to conclude that Applicant's initial writ counsel did not exercise "reasonable diligence" to investigate such a claim prior to filing Applicant's original post-conviction writ application. Court's Order at 4-5; see Tex. Code Crim. Proc. art. 11.071, § 5(e) (a factual basis was previously unavailable if it "was not ascertainable through the exercise of reasonable diligence" prior to the due date for a previous capital writ application). There is reason to doubt the propriety of the Court's conclusion, and we would benefit from additional briefing from the parties.

         Specifically, there is reason to doubt-whatever the ordinary parameters of "reasonable diligence" might ultimately prove to be in a habeas corpus investigation-that Applicant's initial habeas counsel should have been required to investigate the veracity of assertions of fact that the prosecutor made during her closing argument. The United States Supreme Court has made it clear that due process will not tolerate the imposition of a diligence requirement upon a habeas applicant who claims deliberate and persistent prosecutorial misconduct. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004) ("When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight."). And that is, in essence, what Applicant appears to claim has happened here.

         In Banks, the State of Texas failed to disclose, both at trial and at any point during the subsequent post-conviction proceedings, that one of its principal punishment phase witnesses had testified falsely. Id. at 678, 680 & 683. It was not until Banks finally obtained discovery of the State's file and an evidentiary hearing during federal habeas corpus proceedings that he uncovered the falsehoods, as well as the State's persistent failure to disclose them. Id. at 684-85. The federal district court granted Banks a new punishment-phase hearing, while affirming the guilt phase of his trial. Id. at 686-87. In the appeal that followed, the State argued that Applicant should not have been granted an evidentiary hearing in federal court because he had not pursued his Brady claim with sufficient diligence during the state post-conviction habeas corpus proceedings, and the Fifth Circuit agreed. Id. at 688.

         On petition for certiorari, however, the United States Supreme Court reversed the Fifth Circuit's judgment. It held that to impose a requirement of diligence upon a federal habeas applicant to pursue a Brady claim, even in the face of stubbornly persistent prosecutorial denials that any exculpatory or impeaching evidence remained undisclosed, was inconsistent with bedrock due process principles. See id. at 694 ("[I]t was . . . appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction."); id. at 696 ("A rule . . . declaring 'prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process."); id. at 698 ("It was not incumbent on Banks to prove [the State's] representations false; rather, Banks was entitled to treat the prosecutor's submissions as truthful.").

         It is at least arguable that these same bedrock due process principles should be considered when we construe the meaning of "reasonable diligence" for purposes of making the determination whether Applicant's present arguments were "available" at the time when he filed his original post-conviction application for writ of habeas corpus in this case. If we were to conclude that these principles apply in a case like this, then the Court would be mistaken even to ask whether Applicant's original habeas counsel, Robert Ford (now deceased), ever tried to investigate the accuracy of the prosecutor's assertion during her final arguments at the punishment phase of trial-that all family members wanted Applicant to be executed. Assuming that the prosecutor's jury argument that the family had endorsed Applicant's execution was indeed false, the State has yet to "set the record straight" with respect to the veracity of that statement. Even as late as its original response asking this Court to dismiss Applicant's subsequent writ application for a failure to establish reasonable diligence, the State has failed to concede that the prosecutor's assertion was false.

         Because "it is ordinarily incumbent on the State to set the record straight[, ]" id. at 675-76, we should at least explore the possibility that "reasonable diligence" should not be read to embrace a requirement that original state habeas counsel must second-guess the truthfulness of a prosecutor's factual assertions during final argument in the punishment phase of a capital murder trial.[2] I would at least file and set this cause and request additional briefing from the parties regarding this possibility. Because the Court does not, I dissent.

         I would also order additional briefing on the merits of Applicant's claims. Additional briefing would be appropriate because Applicant's claims do not readily fit the mold of either 1) the presentation of false evidence or 2) the suppression of evidence favorable to the defense under Brady. Indeed, on the surface, Applicant's claims do not seem to involve evidence at all; rather, they seem to involve some kind of error in the jury argument, occurring after the presentation of evidence was complete and the parties had closed.

         The prosecutor assured the jury that all of the victim's family supported the State's attempt to obtain the death penalty for Applicant. Even assuming that this was objectively accurate, no evidence to that effect was introduced at trial. Applicant's trial counsel could therefore have objected-conceivably on at least three grounds. First, it constituted facts not in evidence, since no family member testified to that effect. See Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) ("A prosecutor may not use closing arguments to present evidence that is outside the record."). Second, it might be argued that the victim's family's belief that death would be the appropriate punishment for the victim's murder is irrelevant to the future dangerousness special issue, and that it inappropriately invades the jury's normative function under the mitigation special issue. Tex. Code Crim. Proc. art. 37.071, §§ 2(b)(1) & 2(e)(1). Third, such evidence has been held to be patently objectionable under the Eighth Amendment.[3] Bosse v. Oklahoma, 137 S.Ct. 1, 2 (2016). Applicant could have-but did not-make a trial objection on any of these bases.[4] Had they done so, the error inherent in the prosecutor's assertion might have been limited in concept to an ordinary jury-argument error, quite apart from the fact that it was false.[5]

         But Applicant now claims that it was also false, and the record supports the conclusion that Applicant's trial counsel did not know it was false. And that part of Applicant's pleadings injects additional due process considerations into the case, appropriate for consideration in post-conviction habeas corpus proceedings.[6] Had Applicant's trial lawyers been aware that the prosecutor's family-endorsement argument was not just objectionable, but also false, they might well have been dissatisfied with merely objecting to it as facts outside the record or facts constitutionally inappropriate to the jury's punishment-phase function. They might have regarded a judicial instruction to the jury to disregard the prosecutor's argument as inadequately remedial.

         Instead, having been taken by surprise when the prosecutor made her false assertion, Applicant's trial counsel may well have preferred, had they known it was false, not merely to object to it and to seek an instruction to the jury to disregard it, but to actually refute it with-wait for it-evidence. They might have preferred to invoke Article 36.02 of the Code of Criminal Procedure to ask the trial court to reopen the evidence so that the parents (at least) could rectify the prosecutor's falsehood under oath.[7] Of course, because the State had not told defense counsel that the parents actually opposed the death penalty for Applicant (or so Applicant claims), Applicant argues that this now-favorable evidence was suppressed, and Applicant's trial counsel did not know that asking the trial court to re-open the case for the introduction of rebuttal evidence was an option. In this sense, then, Applicant's claim seems at least analogous to a Brady claim, if not also a false-evidence claim. I would order the parties to brief both of these claims.

         What I would not do is simply declare that Applicant's original writ counsel-who is now deceased and unable to respond to claims about his diligence-failed to diligently investigate the present claims, and dismiss the subsequent writ application on that basis. I would file and set the cause and order additional briefing, as indicated above. Because the Court does not, I respectfully dissent.

          Walker, J., filed a dissenting opinion, in which Slaughter, J., joined.

         DISSENTING OPINION

         Paul David Storey, Applicant, was convicted of capital murder for intentionally causing the death of Jonas Cherry while in the course of committing robbery. During the State's punishment phase closing argument, one of the prosecutors, Christy Jack, [1] said in reference to testimony by Applicant's family members:

-- and you know what?
His whole family got up here yesterday and they pled for you to spare his life.
And it should go without saying that all of Jonas's family and everyone who loved him believe the death penalty is appropriate.

Rep. R. vol. 39, 12, Storey v. State, No. AP-76, 018 (Tex. Crim. App. Oct. 6, 2010). After the statement was made, Applicant's trial counsel did not object. Following deliberation, the jury answered the special issues set forth in article 37.071 of the Code of Criminal Procedure, and the trial court sentenced Applicant to death. On direct appeal, we affirmed the conviction and sentence in an unpublished opinion. Id., 2010 WL 3901416 at *25 (not designated for publication). Shortly thereafter, Applicant sought habeas corpus relief, which we denied. Ex parte Storey, No. WR-75, 828-01, 2011 WL 2420707 (Tex. Crim. App. June 15, 2011) (not designated for publication).

         In December of 2016, Applicant's trial counsel became aware that Jack's statement during closing argument, that "all of Jonas's family and everyone who loved him believe the death penalty is appropriate," was in fact false. Jonas Cherry's parents, Dr. Judith Cherry and Glenn Cherry, had long been opposed to the death penalty, and the State's prosecutors-Christy Jack and Robert Foran[2]-knew prior to trial that the Cherrys were opposed to the death penalty.

         Today, we are presented with Applicant's second application for a writ of habeas corpus relating to this case, based on claims relating both to the failure of the prosecution to disclose the fact that the Cherrys were opposed to the death penalty and to Jack's closing argument in which she falsely told the jury that the Cherrys were in favor of the death penalty. Instead of addressing these issues, the Court concludes that Applicant's claims are not reviewable due to the procedural bar against subsequent applications under article 11.071 § 5 and summarily dismisses his application as an abuse of the writ. Because I disagree that Applicant's claims are procedurally barred, I respectfully dissent.

         I - Section 5

Article 11.071, governing habeas corpus procedure in death penalty cases, provides in § 5(a):

Sec. 5. (a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application . . . .

Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). This procedural bar under § 5(a) can be defeated if the subsequent application includes sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was ...

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