Opinion
NO. WR-75,356-03
04-09-2018
EX PARTE ERICK DANIEL DAVILA, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. C-1-W011279-1108359-B IN CRIMINAL DISTRICT COURT NUMBER ONE TARRANT COUNTY
Per curiam. ORDER
We have before us a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay applicant's execution.
In February 2009, a jury found applicant guilty of the April 2008 capital murder of a five-year-old child and her grandmother during the same criminal transaction. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Davila v. State, No. AP-76,105 (Tex. Crim. App. Jan. 26, 2011) (not designated for publication).
In his initial application for a writ of habeas corpus, applicant raised three allegations. In the first allegation, applicant alleged that he received ineffective assistance of trial counsel at the punishment phase of trial because the defense team failed to conduct a minimally sufficient mitigation investigation. In the other two allegations, applicant contested the constitutionality of the death penalty scheme. This Court denied relief on the claims. Ex parte Davila, No. WR-75,356-01 (Tex. Crim. App. Apr. 17, 2013) (not designated for publication).
On February 6, 2018, applicant filed in this Court a petition for a writ of prohibition. We denied leave to file the petition on March 28, 2018, without order. See Ex parte Davila, No. WR-75,356-02. On March 27, 2018, applicant filed in the trial court the instant writ application. Applicant raises three claims in this application. Specifically, applicant claims that: the State withheld exculpatory evidence from him in violation of Brady v. Maryland, 373 U.S. 83 (1963); he was denied the effective assistance of appellate counsel; and, the Texas capital sentencing scheme is unconstitutional.
Applicant has failed to make a prima facie showing of a Brady violation, his ineffective assistance claim is procedurally barred because it should have been raised in his initial writ application, and he has failed to show that the law he claims renders the Texas scheme unconstitutional applies to the Texas scheme. Thus, applicant has failed to meet the requirements of Article 11.071 § 5. Accordingly, we dismiss this application as an abuse of the writ without reviewing the merits of the claims raised. Art. 11.071 § 5(c). Applicant's motion to stay his execution is denied.
IT IS SO ORDERED THIS THE 9th DAY OF APRIL, 2018. Do not publish