Opinion
WR-72,702-05
06-19-2024
EX PARTE MELISSA ELIZABETH LUCIO, Applicant
Do not publish
ON SUBSEQUENT APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS CAUSE NO. 07-CR-00885 IN THE 138TH JUDICIAL DISTRICT COURT CAMERON COUNTY
ORDER
PER CURIAM.
Before us is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
Unless otherwise specified, all subsequent references to articles in this order refer to the Texas Code of Criminal Procedure.
In July 2008, a jury convicted Applicant of the February 2007 capital murder of her two-year-old daughter. See Tex. Penal Code Ann. § 19.03(a)(8). Based on the jury's answers to the special issues submitted pursuant to Article 37.071, the trial court sentenced Applicant to death. This Court affirmed Applicant's conviction and death sentence on direct appeal, and denied relief on her initial habeas application pursuant to Article 11.071. Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011); Ex parte Lucio, No. WR-72,702-02 (Tex. Crim. App. Jan. 9, 2013) (not designated for publication).
The trial court ultimately scheduled Applicant's execution for April 27, 2022. On April 18, 2022, Applicant filed the instant subsequent Article 11.071 habeas application, raising nine claims for relief. Therein, Applicant specifically asserts that: but for the State's use of false testimony, no juror would have convicted her (Claim 1); previously unavailable scientific evidence would preclude her conviction (Claim 2); she is actually innocent of the offense (Claim 3); her trial counsel provided constitutionally ineffective assistance (Claim 4); the State suppressed favorable, material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Claim 5); the State violated her Sixth Amendment right to be free from uncounseled pretrial interrogation (Claim 6); her conviction and death sentence are tainted by juror misconduct (Claim 7); gender bias tainted her prosecution and contributed to her wrongful conviction (Claim 8); and she is innocent of the death penalty (Claim 9).
After reviewing the record, we determined that Claims 1, 2, 3, and 5 met the requirements of Article 11.071 § 5(a) and therefore stayed Applicant's execution and remanded those claims to the trial court for a merits' review. We stated that the remaining claims did not meet the requirements of Article 11.071 § 5(a) and should not be reviewed. Ex parte Lucio, No. WR-72,702-05 (Tex. Crim. App. Apr. 25, 2022) (not designated for publication).
The record now before us shows that, on remand, the parties filed proposed agreed findings of fact and conclusions of law in the trial court recommending that Applicant receive habeas relief regarding Claim 5-her Brady allegation. Although the trial court set the matter for a hearing on April 5, 2023, the record forwarded to this Court does not include a reporter's record of any such hearing.
In any event, the trial court signed the agreed findings and conclusions, adopting the parties' recommendation that Applicant receive habeas relief on Claim 5. However, the agreed findings and conclusions do not address any of Applicant's other remanded claims. In relevant part, the trial court notes that the parties have asked-and it has agreed-to hold Applicant's other remanded claims (i.e., Claims 1, 2, and 3) in abeyance pending our consideration of the agreed findings and conclusions regarding Claim 5. The trial court requests that this Court remand Claims 1, 2, and 3 again only if we do not adopt the trial court's recommendation to grant relief on Claim 5.
We decline the trial court's invitation to engage in piecemeal litigation. As we noted in another case in which the trial court made a similar request:
[W]ithout full presentment and examination of all issues in [an] application, we only invite piecemeal litigation, which is an inappropriate use of the Great Writ. Generally, all of an applicant's claims should be fully developed and ready to be resolved when the record is transmitted to this
Court. That is not the case here.Ex parte Roark, 662 S.W.3d 469, 469-70 (Tex. Crim. App. 2021).
Accordingly, we remand this cause to the trial court. Within ninety (90) days of the date of this order, the trial court shall make findings of fact, conclusions of law, and a recommendation addressing each of Applicant's initially-remanded claims on the merits. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand. That record should include the reporter's record of the hearing, if any, held on the parties' agreed findings, as well as the reporter's record of any hearings on Applicant's remaining remanded allegations. If no such hearing on the parties' agreed findings was held, the District Clerk shall verify that to this Court in writing. Any requests for extensions of the time period set forth above shall be made by the trial court or on its behalf and directed to this Court.
IT IS SO ORDERED.