Opinion
NO. WR-40,339-09
12-06-2017
EX PARTE BRIAN EDWARD DAVIS, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 616522-I IN THE 230TH JUDICIAL DISTRICT COURT HARRIS COUNTY Per curiam. Newell , J., not participating. 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.
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.
In 1992, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071, and the trial court, accordingly, set punishment at death. Art. 37.071, § 2(g). This Court affirmed applicant's conviction and sentence on direct appeal. See Davis v. State, No. AP-71,513 (Tex. Crim. App. Jan. 7, 1998) (not designated for publication). Thereafter, applicant filed four habeas applications, which we denied and dismissed. See Ex parte Davis, Nos. WR-40,339-01 (Tex. Crim. App. March 10, 1999); -02 (Tex. Crim. App. Sept. 13, 2000); -03 (Tex. Crim. App. April 29, 2002); and -04 (Tex. Crim. App. May 7, 2002). Applicant filed a fifth habeas application raising an Atkins claim, which we denied in 2006. Ex parte Davis, No. WR-40,339-05 (Tex. Crim. App. March 29, 2006). We granted relief as to punishment only after Applicant filed his -06 application. See Ex parte Davis, No. AP-76,263 (Tex. Crim. App. Nov. 18, 2009).
Atkins v. Virginia, 536 U.S. 304 (2002).
At the 2011 punishment retrial, applicant again received the death penalty. We affirmed on direct appeal. Davis v. State, No. AP-76,521 (Tex. Crim. App. Oct. 23, 2013) (not designated for publication). Applicant then filed -07 and -08 habeas applications, which we denied and dismissed. See Ex parte Davis, Nos. WR-40,339-07 and -08 (Tex. Crim. App. May 25, 2016). The -07 application, filed with the trial court in 2012, included a renewed Atkins claim. See id., No. WR-40,339-07 (Alcala, J., concurring).
Applicant filed the instant -09 application in the trial court on May 16, 2017. The trial court forwarded it to this Court in compliance with Article 11.071, § 5.
In his first and second allegations, applicant asserts that he is entitled to a new trial under Article 11.073 because he has relevant scientific evidence - specifically, DNA evidence - that was not previously ascertainable through the exercise of reasonable diligence, and because, after he filed his -07 and -08 applications, the Texas Forensic Sciences Commission issued its 2015 report concerning the interpretation of DNA mixtures, which in turn led to a determination that the DNA testimony presented at Applicant's punishment retrial was false. In his third allegation, applicant avers that this application is not barred under Article 11.071, § 5 because the State violated Brady by withholding evidence concerning his wife's involvement in other white supremacist home invasions. In his fourth allegation, applicant again asserts an Atkins claim. In his fifth allegation, applicant states that he was denied the effective assistance of counsel.
Brady v. Maryland, 373 U.S. 83 (1963).
Applicant alleges in his fourth claim for relief that he is intellectually disabled and ineligible for the death penalty under the United States Supreme Court's holding in Atkins. Recently, in Moore v. Texas, 137 S. Ct. 1039 (2017), the United States Supreme Court rejected the use of the Briseno factors to analyze adaptive deficits because "they creat[e] an unacceptable risk that persons with intellectual disability will be executed." 137 S. Ct. at 1051. The Supreme Court also held that this Court improperly "fastened its intellectual-disability determination to 'the AAMR's 1992 definition of intellectual disability that [it] adopted in Briseno for Atkins claims presented in Texas death-penalty cases.'" Id. at 1053.
Ex parte Briseno, 135 S. W. 3d 1, 8-9 (Tex. Crim. App. 2004).
See American Association on Mental Retardation (AAMR), Mental Retardation: Definition, Classification, and Systems of Supports (9th ed. 1992). --------
Concerning Allegations One through Three and Allegation Five, applicant has failed to make a prima facie showing that he has met the requirements of either Article 11.073 or Article 11.071, § 5. However, in order for this Court to determine whether Allegation Four satisfies any exception to Article 11.071, § 5, and, if it does, whether applicant is intellectually disabled and exempt from the death penalty under Atkins, further fact-finding is necessary. Therefore, we remand the application to the habeas court to develop evidence and make a recommendation to this Court concerning Allegation Four.
The habeas court shall first make findings of fact and conclusions of law regarding whether Allegation Four satisfies any exception to the procedural bar of Article 11.071, § 5. If the habeas court determines that Allegation Four is not procedurally barred, then the court shall consider whether Applicant is intellectually disabled. In making this determination, the habeas court may receive additional evidence, and it should consider all of the evidence presented in this case in light of the Supreme Court's Moore opinion. The court shall then make findings of fact and conclusions of law on the issue of intellectual disability and any other issue the court determines is pertinent to the resolution of Allegation Four.
The habeas court shall enter the required findings and conclusions within 60 days of the date of this order. Immediately thereafter, the clerk shall forward to this Court a supplemental transcript containing the trial court's findings of fact and conclusions of law, any additional documents filed, and the transcripts of any hearings. Any extensions of time shall be obtained from this Court.
IT IS SO ORDERED THIS THE 6TH DAY OF DECEMBER, 2017. Do not publish