Opinion
WR-84 065-01
09-15-2021
EX PARTE FRANKLIN DAVIS, Applicant
DO NOT PUBLISH
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. W12-12630-Y(A) IN THE CRIMINAL DISTRICT COURT NO. 7 DALLAS COUNTY
ORDER
PER CURIAM.
This is an 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 November 2013, a jury convicted Applicant of capital murder for killing a sixteen-year-old girl in the course of committing or attempting to commit obstruction. See Tex. Penal Code § 19.03(a)(2). At punishment, 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. Davis v. State, No. AP-77, 031 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication).
In the instant application for habeas relief, Applicant presents six claims in which he challenges the validity of his conviction and resulting sentence. The trial court held an evidentiary hearing pertaining to Applicant's first and second habeas claims. The trial court later signed findings of fact and conclusions of law recommending that relief be denied on all of Applicant's claims.
Applicant alleges in his first two claims that he received ineffective assistance of trial counsel. In claim one, Applicant alleges that counsel failed to conduct a reasonable mitigation investigation. In claim two, Applicant alleges that counsel provided ineffective assistance during the jury selection phase of his trial.
This Court has reviewed the record with respect to claims one and two. These claims are without merit because Applicant has not met his burden under Strickland v. Washington, 466 U.S. 668 (1984). As to some aspects of trial counsel's representation, Applicant has failed to show that counsel's performance fell below an objective standard of reasonableness. Id. at 689. As to other aspects of trial counsel's representation, Applicant has failed to establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. Id. at 694.
In claims three through six, Applicant raises an assortment of constitutional challenges to his death sentence. In claim three, Applicant alleges that his constitutional rights were violated when the trial court "was prohibited from instructing the jury that a vote by one juror [against a death sentence] would result in a life sentence." In claim four, Applicant alleges that his death sentence was "arbitrarily and capriciously assigned based on the jury's answer to the unconstitutionally vague first special issue." In claim five, Applicant alleges 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 six, Applicant alleges that his death sentence is unconstitutional because it was assigned "based on Texas's arbitrary system of administering the death penalty."
We will not review the merits of claims three through six because they were raised and rejected on direct appeal. See Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984) (holding that we need not address habeas claims that were raised and rejected on direct appeal); see also Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex. Crim. App. 2008). To the extent that Applicant is attempting to raise challenges distinct from those that he raised on direct appeal, we will not review the merits of those challenges because they should have been litigated at trial and on direct appeal. See 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).
Based upon our own review, we deny relief.
IT IS SO ORDERED.