Opinion
NO. WR-84,324-04
03-31-2021
EX PARTE RICKEY DONNELL CUMMINGS, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 2011-1513-C1 IN THE 19TH JUDICIAL DISTRICT COURT McLENNAN COUNTY Per curiam. ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071, § 5.
Unless we specify otherwise, all references in this order to "Articles" refer to the Texas Code of Criminal Procedure. --------
The record shows that the State indicted Applicant Rickey Donnell Cummings for intentionally or knowingly causing the March 28, 2011deaths of Tyus Sneed and Keenan Hubert by shooting them to death with a firearm during the same criminal transaction. See TEX. PENAL CODE ANN. § 19.03(a)(7)(A). The State's theory at Applicant's November 2012 trial was that Applicant and two co-defendants—Albert Love and Applicant's younger brother, D'Arvis Cummings—committed the murders in revenge against Hubert, whom they believed had killed their friend, Emuel Bowers.
The jury charge permitted the jury to convict Applicant of capital murder as either a principal or a party. The jury returned a general verdict finding Applicant guilty as alleged in the indictment. Pursuant to the jury's answers to the punishment special issues, including an anti-parties special issue under Article 37.071, § 2(b)(2), the trial court sentenced Applicant to death.
This Court affirmed Applicant's conviction and sentence on direct appeal, Cummings v. State, No. AP-76,923 (Tex. Crim. App. Dec. 17, 2014) (not designated for publication), and denied relief on Applicant's initial application for a writ of habeas corpus pursuant to Article 11.071, Ex parte Cummings, No. WR-84,324-01 (Tex. Crim. App. Mar. 28, 2018) (not designated for publication). Applicant filed this, his first subsequent post-conviction application for a writ of habeas corpus, in the trial court on March 3, 2020.
In his first subsequent writ application, Applicant raises ten claims for relief. In Claim 1, Applicant alleges that the State violated his Sixth and Fourteenth Amendment rights by using post-indictment grand jury proceedings to intimidate witnesses, prepare for trial, and suppress information necessary to show the falsity of certain trial testimony. In Claim 2, Applicant asserts that the State violated Napue v. Illinois, 360 U.S. 24 (1959),by culpably eliciting false and misleading testimony. In Claim 3, Applicant contends that the State violated his due process rights under Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009), by eliciting false and misleading testimony. In Claim 4, Applicant avers that his conviction and sentence violate his right to due process because the prosecution "engaged in misconduct when it misattributed crucial text messages to [Applicant]." In Claim 5, Applicant alleges that the State withheld favorable and material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
In Claims 6 through 10, Applicant asserts that his trial counsel rendered constitutionally ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), because they: did not attempt to suppress mobile phone records on Fourth Amendment grounds (Claim 6); failed to investigate and develop a defense based on alternate suspects (Claim 7); did not investigate and prepare to contest Applicant's gang membership (Claim 8); represented Applicant when the defense team was subject to a conflict of interest (Claim 9); and failed to raise and competently argue viable claims under Batson v. Kentucky, 476 U.S. 79 (1986).
We have reviewed the subsequent application and find that Applicant has failed to satisfy the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the subsequent application as an abuse of the writ without considering the claims' merits.
IT IS SO ORDERED THIS THE 31ST DAY OF March, 2021. Do Not Publish