UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20443

_____________________

RICARDO ALDAPE GUERRA,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ July 30, 1996

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Contending that the district court's factual find i ngs of

numerous instances of police and prosecutorial misconduct,

including but not limited to the failure to disclose material,

exculpatory evidence to the defense, are clearly erroneous, Gary L.

Johnson, Director of the Texa s Department of Criminal Justice,

Institutional Division, appeals the grant of habeas relief to

Ricardo Aldape Guerra, who was convicted of capital murder and

sentenced to death in 1982. We AFFIRM

.- 2 - I.

On July 13, 1982, approximately two h ours before midnight,

Houston police officer J. D. Harris stopped his police car behind

an automobile occupied by Guerra and Roberto Carrasco Flores

(Carrasco), at the inters ection of Edgewood and Walker Streets.

Moments later, the Officer was shot three times in the head with a

nine millimeter weapon and died shortly thereafter. Jose Francisco

Armijo, who was near the intersection in an automobile with two of

his children (one of whom, then ten years of age, was a key witness

against Guerra at trial), was also shot in the head with a nine

millimeter weapon and died later.

Witnesses informed police that the suspects might be found in

the same neighborhood, at 4907 Rusk Street (Guerra’s address).

About one and one-half hours after Officer Harris was shot, Officer

Trepagnier approached a garage next to that address. Using a nine

millimeter weapon, Carrasco shot and seriously wounded the officer.

Carrasco was killed in the ensuing exchange of gunfire with police.

Th e nine millimeter weapon was found under Carrasco's body, and

Officer Harris' service revolver was found under Carrasco's belt,

along with another clip for the nine millimeter weapon.

Guerra was arrested moments after Carrasco was shot, when

officers found him hiding nearby. A .45 caliber pistol was found

within Guerra's reach.

Although the physical evidence pointed to Carrasco as Officer

Harris' killer, Guerra was charged with capital murder on the basis- 3 -

of eyewitness identification. (The State did not seek to convict

Guerra under the law of parties.)

In October 1982, three months after the murder, a jury found

Guerra guilty, rejecting his defense that Carrasco shot Officer

Harris; he was sentenced to death. The Texas Court of Criminal

Appeals affirmed in 1988, Guerra v. State

, 771 S.W.2d 453 (Tex.

Crim. App. 1988); and the next year, the Supreme Court denied

Guerra’s petition for a writ of certiorari. Guerra v. Texas , 492

U.S. 925 (1989).

Guerra filed for habeas relief in the state trial court in May

1992. Following the appointment of new counsel that July, he filed

an amended application in mid-September. Four days later, the

trial court, without conducting an evidentiary hearing and making

findings of fact or conclusions of law, re commended denial of

relief. In January 1993, the Texas Court of Criminal Appeals

accepted the recommendation and denied relief.

Shortly thereafter, in February, Guerra sought federal habeas

relief. The district court conducted an extensive evidentiary

hearing that November, and, a year later, in November 1994, entered

an order granting relief. The order was amended the next May,

Guerra v. Collins , 916 F. Supp. 620 (S.D. Tex. 1995), and the

respondent was ordered t o release Guerra unless the State began

retrial proceedings by arraigning him within 30 days. Our court

stayed the judgment.- 4 - II.

As stated, the physical evidence led directly to Carrasco as

Officer Harris’ murderer. An obvious, critical question is why, if

Guerra instead shot the Officer, the murder weapon (not to mention

the Officer’s service revolver) was found under Carrasco’s body one

and one-half hours after the Officer was shot. At oral argument,

the respondent espoused the theory that, when Guerra and Carrasco

exited their vehicle after the Officer pulled up behind them, they

picked up each other’s weapons, and then exchanged them after the

murder. In light of this theory, it goes without saying that the

next question that follows immediately is why, if Guerra shot the

Officer, Carrasco would have been willing to take back and keep a

weapon just used to kill a policeman. Among other obvious reasons

for not wanting to be found with a murder weapon is the fact that

it is common knowledge that anyone who kills a law enforcement

officer will be quickly, vigorously, and aggressively pursued, as

reflected by the events in this case.

The State relied on this exchang ed weapons theory at trial.

In closing argument, the prosecutor stated:

I don’t have to prove to you how ... Guerra

came in possession of that nine-millimeter

pistol....

....

There is no way that I had any type of

equipment set up inside of that v ehicle to

show you what was done inside that vehicle and

how the weapons could have gotten into this

man’s [Guerra’s] hands, but you know one thing

from listening to the evidence, and you know- 5 - one thing from listening to when Ricardo

Guerra testifie d. He didn’t always keep his

pistol tucked into his belt.

Do you recall, right towards the end of

his tes timony, I asked him, “When you went

into the store to get those Cokes [before the

shooting], did you still have that pistol

tucked inside your belt with your shirt

covering it?”

“No, I put it under the seat,” and I

think you can use your common sense ....

Do you think these guys are driving

around and they’ve got those guns tucked in

their belts? They take them out and set them

on the seat ....

Do you think perhaps when they got out of

the car, they picked up the wrong gun?

The record, however, contains little, if any, evidence to support

this theory. Obviously, this was a critical fact issue at trial.

As discussed infra, the State’s non-disclo s ure of exculpatory

information concerning this issue was one of the bases upon which

the district court granted habeas relief.

At trial, Guerra testified that, on the night of the shooting,

he and Carrasco went to the stor e; that Carrasco had a nine

millimeter pistol which he was carrying at his belt; that he

(Guerra) also was carrying a gun; that he put his gun under the car

s eat when he went into the store; that he put it back in his

trousers when he got back to the car; and that the gun was in his

belt when he got out of the car after Officer Harris arrived at the

intersection.

On cross-examination at trial, Guerra denied that he and

Carrasco took their guns out of their belts and put them on the- 6 -

seat while they were driving around. He testified further that

Carrasco, whom he referred to by the nickname “Werro” (spelled

various ways in the record; according to the respondent at oral

argument, it meant “the blond one” or “the light-sk inned one”),

shot Officer Harris and took the Officer’s gun; that they ran back

to Guerra’s residence (4907 Rusk St reet); and that, when they

arrived, Carrasco had two weapons

-- his own (the nine millimeter)

and the Officer’s.

Two of Guerra’s roommates testified at tr ial that, shortly

after Officer Harris was shot, Carrasco ran into the house and said

that he had killed a policeman; and that Carrasco had the

policeman’s gun in his belt and another gun in his hand. One

roommate testified further that, when Gue rra arrived a minute or

two later, Guerra said that Carrasco had just killed a policeman.

Two of the State’s strongest witnesses at trial were Jose

Armijo, Jr. (the then ten-year-old son of the man fatally wounded

at the same intersection immediately after Officer Harris was

killed), who testified that Guerra shot Officer Harris and his

father, and Hilma Galvan, who testified that she saw Guerra shoot

O fficer Harris. Neither testified, however, at the federal

evidentiary hearing.

The district court held that Guerra's due process rights were

violated based on findings that, inter alia

, (1) police and

prosecutors threatened and intimidated witnesses in a n effort to

suppress evidence favorable and material to Guerra's defense; (2)

police and prosecutors used impermissibly suggestive identification- 7 -

procedures, such as permitting witnesses to see Guerra in

handcuffs, with bags over his hands, prior to a line-up, permitting

witnesses to discuss identification before, during, and after the

line-up, conducting a reenactment of the shooting shortly after it

occurred so that witnesses could develop a consensus view, and

using mannequins of Guerra and Carrasco at trial to reinforce and

bolster identification testimony; (3) police and prosecutors failed

to disclose material, exculpato ry evidence to the defense; (4)

prosecutors engaged in mi sconduct at trial, including soliciting

and encouraging witnesses to overstate or understate facts, falsely

accusing a defense witness of either being drunk or having “smoked

somet hing” because he yawned during his testimony, questioning a

defense witness about an extraneous murde r which the prosecutors

knew was a false rumor, and making improper closing argument; and

(5) a court interpreter inaccurately translated w itnesses' trial

testimony.

Because the state habeas court did not make findings of fact,

the statutory presumption of correctness for such findings is not

in play. (The 28 U.S.C. § 2254(d) presumption of correctness has

been redesignated as § 2254(e)(1) in th e Antiterrorism and

Effective Death Penalty Act of 1996, P UB

. L. N O

. 104-132, § 104(3),

110 Stat. 1214, 1219 (1996).) In fact, the only issue raised here

is the contention that “the district court’s factual findings that

the police and prosecutors engaged in misconduct depriving Guerra

of due process

... are clearly er roneous.” As a result, the

r espondent conceded at oral argument that, if those findings are- 8 -

not clearly erroneous, then a due process violation occurred.

(Inconsistent with the statement of the issue and the concession at

oral argument, the responde nt’s brief contains assertions that

certain factual findings, even if not clearly erroneous, are

legally irrelevant. We conclude that habeas relief is warranted by

legally relevant factual findings that are not clearly erroneous.)

To restate the well-known standard, a factual finding is

clearly erroneous “when although there is evidence to support it,

the reviewing court on the entire evidence is left with the

d efinite and firm conviction that a mistake has been committe d.”

Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573 (1985)

(citation omitted). Along that line, in a case such as this, which

turns almost exclusively “on determinations regarding the

credibility of witnesses, [F E D

. R. C IV

. P.] 52(a) demands even

greater deference to the trial court's findings.” I d

. at 575.

Similarly, “[w]here the court's finding is based on its decision to

credit the testimony of one witness over that of another, that

fi nding, if not internally inconsistent, can virtually never be

clear error.” S chlesinger v. Herzog

, 2 F.3d 135, 139 (5th Cir.

1993) (internal quotation marks and citation omitted). Three

examples more than suffice to demonstrate why, based on our review

of the record, there are sufficient legally relevant, non-clearly

erroneous findings of fact to warrant habeas relief.

The district court found that, in interviews with police and

prosecutors, thre e witnesses, all then under the age of 18

(Herlinda Garcia (14), Patricia Diaz (17), and Frank Perez (17)),- 9 -

gave police and prosecutors material exculpatory information that

was not disclosed to the defense. Such non-disclosure is violative

of due process if “there is a reasonable probability that, had the

evidence been disclos ed to the defense, the result of the

proceeding wo uld have been different.” S ee United States v.

Bagley

, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.); id

. at

685 (White, J., concurring in part and concurring in judgment); see

also Kyles v. Whitley

,

__ U.S. __, 115 S. Ct. 1555 (1995). As

noted, for these three ex amples, because, with slight exception,

the respondent presents only a factual issue, our review is a most

narrow one

-- were the findings o f fact underlying a due process

violation because of the non-disclosure clearly erroneous.

Garcia, w ho identified Guerra at trial as Officer Harris’

murderer, testified instead at the federal evidentiary hearing that

she told police and prosecutors that she saw Carrasco pull

something out of his trousers and point at Officer Harris with both

hands clasped together in front of him; that Carrasco was standing

a “couple of fe et” away from the Officer; that she saw flames

coming out of Carrasco's hands; and that, when she heard the shots,

she saw Guerra leaning toward the police car, near the front, with

his empty hands on the hood. This information was not included in

Garcia's written statement, nor was it disclo sed to the defense.

Garcia, who, as noted, was 14 years of age at the time of the

shooting, testified furthe r that she was intimidated into

identifying Guerra as the shooter by police warnings that her- 10 -

common-law husband, a parolee who was over 18 years of age, could

be adversely affected if she did not cooperate.

The respondent contends that Garcia's testimony is not

credible because her written statements prepared by the police were

consistent with her trial testimony, even though she had not read

her statements before trial, and because, if the police were trying

to coerce witnesses to identify Guerra as the shooter, they would

not have allowed Garcia to describe the shooter, both in her

statement and at trial, a s having blond hair and wearing a brown

shirt and brown trousers. (Guerra had dark hair and was wearing a

green shirt and blue jeans at the time of the shooting; Carrasco

also had dark hair (but, as noted, was commonly referred to as

“Werro”, the “blond one” or “light-skinned one”) and was wearing a

purple or maroon shirt and brown trousers.)

Finding that Garc i a’s habeas testimony was credible, the

district court found further that she had been intimidated by

police and pr osecutors, and that the police omitted material

exonerating information from her written statement. We will

declare testimony incredible as a matter of law only when it “is so

unbelievable on its face that it defies physical laws.” U nited

States v. Casteneda

, 951 F.2d 44, 48 (5th Cir. 1992) (internal

quotation marks and citation omitted). As the district court

noted, Garcia’s testimony is consistent with the physical evidence

that Carrasco, rat her than Guerra, shot Officer Harris.

According ly, we cannot conclude that the court clearly erred by

finding that Garcia told the truth at the evidentiary hearing.- 11 -

P atricia Diaz, who, as noted, was 17 years of age whe n she

testified at trial, testified at the evidentiary hearing that she

told police and prosecutors that, an instant after she heard shots,

she saw Guerra on the driver's side of the police car, near the

front, facing that car, with his empty hands on its hood, as if he

were about to be searched; and that she did n ot see anyone shoot

Officer Harris. But, her description of Guerra's location and his

empty hands was not included in her written statements prepared by

the police. Diaz testified further that, contrary to what is

included in her first written statement, she did not tell the

police that she saw a man from Guerra and Carrasco’s car “pointing

a gun in the direction of the police car, and I saw him shoot four

times at the police car”; nor, contrary to what is included in her

second written statement, did she tell the police, after the lineup, that she saw Guerra “with his hands outstretched, and I guess

he had a gun in his hands”. Diaz testified that she signed her

statements without reading them because she was tired and because

she was frightened by police threats to take her infant daughter

from her if she did not cooperate.

The respondent maintains that Diaz's habeas testimony is not

credible because, again, her trial testimony was consistent with

her statements, even though she never read them. The respondent

asserts that if, as Diaz testified at the evidentiary hearing, she

had demonstrated at trial how Guerra was “pointing” by stretching

her arms out in front of her with her palms open and down, the

prosecution would have clarified her testimony, or the defense- 12 -

would have capitalized on it. The district court found, however,

that Diaz's trial testimony was the product of police intimidation,

and was tainted by the prosecutor's inclusion in his questions of

incorrect statements of Diaz's prior testimony. Again, because

there is evidence in the record to support these findings, we

cannot conclude that they are clearly erroneous. Restated, “[i]f

the district court's account of the evidence is plausible in light

of the record reviewed in its entirety, the court of appeals may

not reverse it even thoug h convinced that had it been sitting as

the trier of fact, it would have weighed the evidence differently.”

Anderson , 470 U.S. at 573-74.

Finally, Frank Perez, who, as noted, was 17 years of age when

he testified at trial, testified at the federal evidentiary hearing

that it “could have been anywhere from 30 seconds to a minute and

a half” after he heard gunshots that he saw two m en run past his

house; but, he was “not really sure exactly how long it was”.

Perez’s statement to the police the day after the shooting reports

that he saw a Mexican America n male run past his house “[j]ust a

s hort time after the gun shots”; at trial, he testified that “it

might have been a minute or less than that, or maybe a little over

a minute”, that he “couldn’t really place the time”.

Perez testified fur ther at the federal hearing that he told

the police and prosecutors that he could not identify the first

man, who appeared to have been running on the south side of Walker

Street (as noted, this was one of the streets forming the

intersection where the shooting occurred); tha t the second man,- 13 -

whom he identified as Carrasco, appeared to have been running on

t he north side of that street; that, as Carrasco ran past, he

pointed his le ft hand at Perez; that Carrasco put his left hand

behind his back and then dropped an object that looked like a nine

millimeter gun with a clip; that the object hit the street, making

a metallic scraping sound; and that Carrasco picked up the object

with his left hand and continued running down the street. Perez's

written st atement, prepared by the police, did not include that

Carrasco appeared to be coming from the north side of Walker

Street, or that the gun appeared to be a nine millimeter, or that

Carrasco used his left hand both to point the gun at Perez and to

pick up the gun. The word “gun” was typed in Perez's written

statement, but, according to Perez, was changed to “object” after

the police to ld him not to use the word "gun" unless he was 100%

certain that the object was one.

The respondent does not challenge Perez's credibility;

instead, he contends that, because the defense had Perez's written

statement

-- with “gun” changed to “object”

-- when it crossexamined him at trial, the district court erred by finding that the

prosecution suppressed Perez's statem ent that Carrasco dropped a

gun. But, the respondent does not address the other information

that the district court found to have been omitted from Perez's

statement (that Carrasco appeared to be coming from the north side

of Walker Street, that the gun appeared to be a nine millimeter,

and that Carrasco used his left hand to point the gun at Perez and

to pick it up after he dropped it). Obviously, that information- 14 -

was material, because, according to it, Carrasco had the nine

millimeter murder weapon shortly after the shooting. Moreover, the

information is consistent w ith other evidence presented at the

federal evidentiary hearing that there was a scratch on the nine

millimeter weapon, consistent with it having been dropped; that the

shooter ran from the scene on the north side of Walker Street; and

that the shooter was left-handed (there was evidence at the federal

hearing that Guerra is right-handed; this was not brought out at

trial). As noted, the respondent challenges neither the

correctness of the district court’s factual finding that this

information was suppressed, nor its materiality.

These three examples of non-disclosure, without more, are

suffic ient, on the facts of this case, to support a due process

violation mandating habeas relief. We need not discuss further

examples of the lack of clear error in the district court's

detailed factual findings. In sum, we are satisfied that more than

sufficient non-clearly erroneous, legally relevant findings of fact

support such relief.

III.

For the foregoing reasons, the judgment is

AFFIRMED

.