Opinion
WR-86,192-01
08-24-2022
EX PARTE GEORGE THOMAS CURRY, Applicant
Do Not Publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 1223596-A IN THE 209TH JUDICIAL DISTRICT COURT HARRIS COUNTY
ORDER
Per curiam.
This is a post-conviction application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. See Tex. Code Crim. Proc. art. 11.071.
In 2014, a jury convicted Applicant of capital murder for the 2009 killing of nineteen-year-old Edward Virappen in the course robbing the employees of the Popeye's restaurant that Virappen managed. See Tex. Penal Code § 19.03(a)(2). Based on the jury's answers to the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, the trial court sentenced Applicant to death. See Tex. Code Crim. Proc. art. 37.071, § 2(g). This Court affirmed Applicant's conviction and death sentence on direct appeal. Curry v. State, No. AP-77,033, (Tex. Crim. App. Mar. 1, 2017) (not designated for publication).
In his application, Applicant presents thirteen claims in which he challenges the validity of his conviction and resulting death sentence. The habeas court did not hold an evidentiary hearing and entered findings of fact and conclusions of law recommending that the relief sought be denied on all of Applicant's claims.
In Claim 1, Applicant contends that his trial counsel were constitutionally ineffective for numerous reasons, including: spending an insufficient amount of time preparing for trial; failing to consult with him; failing to enlist a Spanish-speaker for a pretrial witness interview; conducting an inadequate mitigation investigation; failing to prepare a defense expert witness for trial; failing to seek pretrial exclusion of extraneous offense evidence; not exhausting peremptory challenges and thus failing to preserve purported errors relating to denied challenges for cause; failing to strike two objectionable jurors; failing to raise a Batson challenge; failing to effectively challenge eyewitness identifications; failing to object to impermissible questioning and prejudicial evidence during the guilt phase; committing errors during the guilt phase jury argument; failing to present an adequate mitigation case; failing to object to impermissible questioning and prejudicial evidence during the punishment phase; failing to preserve alleged error regarding the exclusion of expert testimony for appeal; and committing errors during the punishment phase jury argument. Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984). He has failed to show by a preponderance of the evidence that his trial 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 688-89).
See Batson v. Kentucky, 476 U.S. 79 (1986).
In Claim 2, Applicant raises several allegations of juror misconduct. He first alleges that a juror withheld information by lying in certain responses given in the juror questionnaire. Applicant has failed to demonstrate juror misconduct regarding this juror. See Franklin v. State, 138 S.W.3d 351, 355-56 (Tex. Crim. App. 2004) (explaining that to show juror misconduct, defendant must establish that juror withheld material information during voir dire despite defendant's due diligence in eliciting that information). Applicant next asserts that several jurors prematurely decided their verdicts. Applicant has failed to show, with competent admissible evidence, this alleged juror misconduct. See Tex. R. Evid. 606(b). Finally, Applicant alleges that various outside influences affected the jury's verdicts. Applicant has failed to demonstrate any outside influences on the jury. See McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012) (defining outside influence as "something originating from a source outside of the jury room and other than from the jurors themselves").
In Claim 3, Applicant alleges that his appellate counsel rendered constitutionally ineffective assistance. He first complains that appellate counsel failed to raise meritorious issues on appeal concerning the trial court's inadequate funding for experts and the trial court's "mishandling" of jury notes during deliberations. Applicant has not met his burden to demonstrate that appellate counsel's decision not to raise these issues was objectively unreasonable, or that there is a reasonable probability that, but for counsel's failure to raise those issues, Applicant would have prevailed on appeal. See Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012); see also Smith v. Robbins, 528 U.S. 259, 285 (2000). Applicant also asserts that appellate counsel was ineffective for failing to ensure a complete and accurate appellate record and for failing to file a reply brief or request oral argument. Applicant has not established that the record was incomplete or inaccurate, nor has he demonstrated that, but for appellate counsel's failure to file a reply brief or request oral argument, his case would have been reversed on appeal. See Strickland, 466 U.S. at 688-89; Overton, 444 S.W.3d at 640.
In Claim 4, Applicant contends that the trial court erroneously admitted the expert testimony of a firearms examiner during the punishment phase. We will not review the merits of this claim because Applicant could have raised this claim previously but failed to do so. See Ex parte De La Cruz, 466 S.W.3d 855, 864 (Tex. Crim. App. 2015) (observing that "this Court has long held that a convicted person may not raise a claim for the first time in a habeas-corpus proceeding if he had a reasonable opportunity to raise the issue at trial or on direct appeal and failed to do so"); Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (holding that "the writ of habeas corpus may not be used to litigate matters that could have been raised at trial and on direct appeal").
In Claim 5, Applicant asserts the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose material impeachment evidence pertaining to the firearms examiner who testified in the punishment phase. This claim is without merit. See Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006) (explaining that State is not required to furnish defendant with exculpatory evidence that is fully accessible to defendant from other sources); see also Ex parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (recognizing that evidence is material "if there is a reasonable probability that the result of the trial would have been different" if disclosed to defense).
In Claim 6, Applicant alleges that the State engaged in prosecutorial misconduct by eliciting irrelevant emotionally inflammatory testimony and by making improper remarks in opening statement and closing argument. We will not review the merit of these allegations because habeas is not a substitute for matters that should have been raised at trial or on direct appeal; Applicant could have raised these complaints previously but failed to do so. See De La Cruz, 466 S.W.3d at 864; Boyd, 58 S.W.3d at 136.
In Claims 7 and 8, Applicant asserts the State violated his right to due process under Napue v. Illinois, 360 U.S. 264 (1959) and Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) by presenting false and misleading testimony (1) from eyewitnesses during the guilt phase concerning the lighting inside Popeye's at the time of the offense and (2) from a former correctional officer during the punishment phase regarding living conditions in Texas prisons. Applicant has failed to demonstrate that the State presented false or misleading testimony at trial. See Ukwuachu v. State, 613 S.W.3d 149, 155 (Tex. Crim. App. 2020) ("A false-evidence claim must be supported by facts showing that some evidence was presented to the jury that was demonstrably false or misleading.").
In Claims 9 through 13, Applicant raises various constitutional challenges to his death sentence. In Claim 9, he asserts that, because of historic "pervasive racial discrimination" by the Harris County District Attorney's Office in seeking the death penalty, his death sentence was imposed based on his race in violation of his rights to due process, equal protection, and fair sentencing. In Claim 10, he contends that his constitutional rights were violated when the trial court "was prohibited from instructing the jury that a vote by one juror would result in a life sentence" and that the "10-12 rule" is unconstitutional. In Claim 11, Applicant alleges that his death sentence was "arbitrarily and capriciously imposed" because the future dangerousness special issue is unconstitutionally vague due to undefined terms and fails to narrow the class of death-eligible defendants. In Claim 12, he argues that his death sentence should be vacated because the punishment phase jury instructions "restricted the evidence that the jury could determine was mitigating." In Claim 13, Applicant asserts that his death sentence is unconstitutional because "it was assigned based on Texas's arbitrary system of administering the death penalty." He contends that, as a consequence of unfettered prosecutorial discretion, the system fails to provide a consistent statewide method for seeking the death penalty and results in disparities based on geography and race.
These claims are procedurally barred because they could have been raised previously but were not (Claims 9 and 13), see De La Cruz, 466 S.W.3d at 864, or because they have previously been raised and rejected (Claims 10, 11, and 12), see Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (explaining that "habeas relief is not available to one who has already litigated his claim at trial, in post-trial motions, or on direct appeal").
Having reviewed the habeas record, we conclude that the record supports the habeas court's findings of fact and conclusions of law. We agree with the habeas court's recommendation and adopt the court's fact findings and legal conclusions. Based on those findings and conclusions and our independent review of the record, we deny relief.
IT IS SO ORDERED.