Opinion
NO. WR-22,548-04
06-07-2017
EX PARTE CARL WAYNE BUNTION
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 588227-C IN THE 178 DISTRICT COURT HARRIS COUNTY Per curiam. ALCALA, J., concurs. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In 1991, Applicant was convicted of capital murder and sentenced to death for the 1990 shooting of a police officer during a traffic stop. TEX. PENAL CODE § 19.03(a)(1). His conviction and sentence were affirmed on direct appeal. Buntion v. State, No. AP-71,238 (Tex. Crim. App. May 31, 1995). His initial state application for habeas corpus relief was denied. Ex parte Buntion, No. WR-22,548-02 (Tex. Crim. App. Nov. 5, 2003). Applicant filed a subsequent application in which he alleged that the nullification instruction given at trial was not a sufficient vehicle to allow jurors to give meaningful effect to the mitigating evidence. This Court granted the subsequent application and remanded the case for a new punishment hearing. Ex parte Buntion, No. AP-76,236 (Tex. Crim. App. Sept. 30, 2009).
The trial court held a new punishment hearing in February 2012. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.0711, and the trial court, accordingly, set Applicant's punishment at death. This Court affirmed Applicant's sentence on direct appeal. Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App.), cert. denied, 136 S. Ct. 2521 (2016).
In the instant application for habeas relief, Applicant presents twelve allegations challenging the validity of his sentence. The trial court did not hold an evidentiary hearing. The trial court adopted the State's findings of fact and conclusions of law recommending that the relief sought be denied.
Applicant raises multiple claims of ineffective assistance of counsel. In Claim 1, he argues that counsel failed to present "individualized evidence" that he would not be a future danger to society. In Claim 2, he complains that counsel failed to have him submit to a neuropsychological evaluation. In Claim 3, Applicant asserts that counsel were ineffective because they "failed to mitigate evidence regarding [his] gang membership." In Claim 5, he contends that counsel should have objected to the State's "purposeful discriminatory use of peremptory strikes to remove minority venire members." In Claim 6, Applicant complains that counsel failed to challenge a juror for cause. In Claim 7, he asserts that counsel failed to object to prejudicial victim impact testimony. In Claim 8, he argues that counsel should have objected to a eyewitness's in-court demonstration of the crime scene.
This Court has reviewed the record with respect to the allegations of ineffective assistance of counsel. We deny relief on these claims because Applicant has not met his burden under Strickland v. Washington, 466 U.S. 668 (1984). He has failed to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. at 689.
Applicant raises five additional challenges to his death sentence in his application. In Claim 4, he complains that "his ability to investigate and present mitigation evidence was impeded by the original unconstitutional jury instruction that necessitated his punishment retrial." In Claim 9, he asserts that the future dangerousness special issue is unconstitutionally vague and "fails to narrow the class of death-eligible defendants." Applicant complains in Claim 10 that the Texas death penalty statute improperly limits the concept of mitigation to "evidence that a juror might regard as reducing the defendant's moral blameworthiness." He asserts in Claim 11 that his death sentence is unconstitutional "because it was assigned based on Texas's arbitrary system of administering the death penalty." In Claim 12, he contends that his constitutional rights were violated "when the trial court was prohibited from instruction the jury that a vote by one juror would result in a life sentence." We will not review the merits of these habeas claims because Applicant failed to raise them on direct appeal. Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004), citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991).
Based upon the trial court's findings and conclusions and our own review, we deny relief.
IT IS SO ORDERED THIS THE 7 DAY OF JUNE, 2017. Do Not Publish