Opinion
NO. WR-83,274-02
10-25-2017
EX PARTE TYRONE CADE, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. F11-33962-R IN THE 265 JUDICIAL DISTRICT COURT DALLAS COUNTY Per curiam. ALCALA, J., concurred. ORDER
This is an initial post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In August 2012, a jury convicted applicant of capital murder for stabbing his girlfriend and her teenaged daughter to death during the same criminal transaction or pursuant to the same scheme or course of conduct. See TEX. PENAL CODE § 19.03(a)(7). The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Cade v. State, No. AP-76,883, slip op. at 3-5 (Tex. Crim. App. Feb. 25, 2015) (not designated for publication).
The record shows that applicant had been romantically involved with Mischell Fuller for many years and that they had also lived together for several years preceding the offense. Fuller's seventeen-year-old daughter, Desaree Hoskins, lived with them.
However, by the time of the killings, applicant and Fuller's relationship had deteriorated. Factors contributing to this deterioration included: applicant's status as a registered sex offender following his 1999 conviction for aggravated sexual assault; applicant's inability to work due to a back injury that caused him chronic pain; and the rekindling of Fuller's relationship with Karlton Hoskins, her ex-husband and Desaree's father. Although they still slept in the same bed, applicant and Fuller had not been sexually intimate for several months and Fuller had repeatedly asked applicant to move out.
Fuller and Desaree died sometime during the early hours of March 27, 2011. Later that day, applicant turned himself in by calling 9-1-1 from a pay phone in a police station lobby. After being advised of his constitutional rights, applicant gave a detailed, video-recorded confession.
According to [applicant's] statements, on the evening of March 26, 2011, he hid a recording device near Fuller's side of the bed, then went to a strip club with his cousin. After a few hours in the club, followed by an unsuccessful search for prostitutes, [applicant] returned to Fuller's house around 2:00 a.m. The recording device had captured a Skype conversation between Fuller and Karlton, and [applicant] listened to it when he returned
home. Roughly two hours into the recording, [applicant] heard the conversation become sexual in nature.Id. at 3-4 (internal footnote omitted).
Soon thereafter, [applicant] got into bed with Fuller, who fell asleep but was later awakened by [applicant]'s tossing and turning in bed. When Fuller told [applicant] to lie down and go to sleep, [applicant] showed Fuller a kitchen knife. Fuller began screaming when she saw the knife, and [applicant] repeatedly stabbed her. Fuller's screams woke Desaree, who ran into the bedroom to help her mother. [Applicant] stabbed Desaree several times and then returned to Fuller. When Desaree started to get up, [applicant] stabbed her again multiple times as she screamed and attempted to crawl away from him. When Desaree stopped screaming and moving, [applicant] walked back to Fuller, who was still alive and conscious. [Applicant] vaginally and anally raped Fuller, claiming that he ejaculated "[i]n her, on her, everywhere" because she made him feel like a sex offender. [Applicant] believed Fuller lived for thirty to forty minutes after he first stabbed her, and he asserted that he sexually assaulted her for twenty to thirty minutes of that time. While he was sexually assaulting Fuller, [applicant] heard Desaree speaking. He believed that Desaree survived longer than Fuller.
As we stated in our direct appeal opinion, the investigation additionally produced the following evidence.
Officers found Fuller's body in the master bedroom, face down and naked below the waist. Fuller's buttocks and vaginal area were propped up on several pillows; a bottle of lubricant lay next to her body. Desaree's body was in the hallway, immediately outside the bedroom. In a bathroom, officers found a bloody knife and notebook containing [applicant]'s handwritten notes. [Applicant] wrote that Fuller had "kicked [him] to the curb" when she began trying to mend the relationship between Karlton and her children. [Applicant] also wrote that, because he could not live without Fuller, he took Fuller from himself and "from . . . anyone else." Although he expressed remorse for the killings, [applicant] also frequently deflected responsibility away from himself, writing, for example, "[Fuller] used to treat me so good. Not like a sex offender"; "I'm truly sorry, she drove me crazy trying to fix things with her kids and the father"; "I feel bad for so many people, especially who knew . . . [Fuller]. All I can say is she had a
bad side . . . . It wasn't always sunshine"; and "Thank Karlton Hoskins for this one."Id. at 4-5 (internal footnotes omitted).
The medical examiner, Jill Urban, M.D., testified that Fuller died from being stabbed twenty-eight times. Urban found defensive wounds on Fuller's hands and wrists. Several wounds to Fuller's face, neck, and chest area were between four and five inches deep. Desaree's death resulted from thirty-nine stab wounds, many of which were also between four and five inches deep. Urban testified that the perpetrator used a great deal of force in inflicting Desaree's injuries, noting that the wounds penetrated her bones.
Applicant presented an insanity defense at trial. Applicant premised this defense on the theory that he had entered a state of "abandonment rage" at the time of the offense due to his personal history and the various stressors that he had then been experiencing. The jury nonetheless found applicant guilty of capital murder as alleged in the indictment. After considering the punishment phase evidence presented by both parties, the jury answered "yes" to the future-dangerousness special issue and "no" to the mitigation special issue. See TEX. CODE. CRIM. PROC. art. 37.071, §§ 2(b)(1), (e)(1).
In his application, applicant presents sixteen claims for relief in which he challenges the validity of his judgment and sentence. The trial court held a live evidentiary hearing. The trial court subsequently entered findings of fact and conclusions of law and recommended that the relief sought be denied.
We have reviewed the record regarding applicant's allegations. Claim 4, in which applicant alleges that his due process right to a fair trial was violated when the trial court excluded the testimony of Dr. Mark Vigen and Dr. Jonathan Sorensen from the punishment phase, is procedurally barred because this claim was raised and rejected on direct appeal. See Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984) (stating that claims that are raised and rejected on direct appeal are generally not cognizable in a writ of habeas corpus). Claims 13, 15, and 16, in which applicant raises constitutional challenges to Texas's capital sentencing scheme, are procedurally barred for the same reason. See id. Claim 14, in which applicant raises another constitutional challenge to Texas's capital sentencing scheme, is procedurally barred because habeas is not a substitute for matters which should have been raised on direct appeal. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ("It is 'well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.'").
In Claims 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12, applicant alleges that his trial counsel were constitutionally ineffective for: presenting an objectively unreasonable insanity defense (Claim 1); failing to investigate and present mitigating evidence (Claim 2); failing to present a social historian to explain the impact of applicant's social history (Claim 3); not presenting the testimony of Dr. Antoinette McGarrahan at the punishment phase of trial (Claim 5); failing to adequately voir dire prospective juror Nily regarding the insanity defense (Claim 6); failing to request the removal of Juror Brown (Claim 7); eliciting testimony during the guilt-innocence phase that applicant was a convicted felon (Claim 8); failing to preserve their pretrial objection to the admission of evidence, at the guilt-innocence phase, that applicant was a registered sex offender (Claim 9); failing to timely object to victim-impact evidence offered at the guilt-innocence phase (Claim 10); failing to object to the State's improper guilt-innocence phase closing argument (Claim 11); and depriving applicant of a full review of the record of his trial (Claim 12). However, applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
Turning to the trial court's findings and conclusions, we do not adopt factual findings numbers 476 through 479, which concern applicant's Claim 11. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
We also do not adopt factual findings numbers 548 through 553, which concern testimony that Dr. Seth Silverman gave at the evidentiary hearing on applicant's habeas claims. See id. We further do not adopt the paragraph which immediately precedes factual finding number 548. That paragraph reads:
During the writ hearing on this application, [a]pplicant presented the testimony of [a] psychiatrist, Dr. Seth Silverman. Dr. Silverman's testimony does not appear to pertain to any of the sixteen grounds for relief presented in the application for habeas relief. The Court makes the following findings and conclusions to address his testimony and any potential claim related to it.See id. Based upon our independent review of the record and consistent with our role as the ultimate factfinder in habeas corpus proceedings, we instead make our own finding, as follows:
At the evidentiary hearing, applicant presented the testimony of Dr. Seth Silverman, a psychiatrist. The Court makes the following findings and conclusions regarding Dr. Silverman's testimony.See id.
We otherwise adopt the trial court's findings and conclusions. Based upon the trial court's findings and conclusions that we have adopted, our own review of the record, and our independent findings and conclusions, we deny relief.
IT IS SO ORDERED THIS THE 25 DAY OF OCTOBER, 2017. Do Not Publish