Opinion
WR-40,339-07 WR-40,339-08
05-25-2016
EX PARTE BRIAN EDWARD DAVIS
ON APPLICATIONS FOR WRIT OF HABEAS CORPUS CAUSE NO. 616522 IN THE 230 DISTRICT COURT HARRIS COUNTY Per curiam. ALCALA, J., filed a concurring opinion in which JOHNSON, J., joined. NEWELL, J., not participating. ORDER
These are post conviction applications for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
In June 1992, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Davis v. State, No. AP-71,513, published in part at 961 S.W.2d 156 (Tex. Crim. App. 1998). Applicant filed his initial application for a writ of habeas corpus in the convicting court on July 28, 1997. This Court denied relief. Ex parte Davis, No. WR-40,339-01 (Tex. Crim. App. March 10, 1999)(not designated for publication). Applicant later filed three more habeas applications which were all dismissed for failing to satisfy the requirements for a subsequent writ under Article 11.071 § 5. Ex parte Davis, No. WR-40,339-02 (Tex. Crim. App. Sept. 13, 2000)(not designated for publication); No. WR-40,339-03 (Tex. Crim. App. April 29, 2002)(not designated for publication); and No. WR-40,339-04 (Tex. Crim. App. May 7, 2002)(not designated for publication).
Applicant filed another subsequent application raising a mental retardation claim under Atkins v. Virginia, 536 U.S. 304 (2002), which this Court held satisfied the requirements of Section 5. After remanding the case to the trial court, this Court found that applicant was not mentally retarded and denied him relief. Ex parte Davis, No. WR-40,339-05 (Tex. Crim. App. Mar. 29, 2006)(not designated for publication). The Court also determined that the Penry II/nullification claim raised in applicant's fifth subsequent application met the requirements of Article 11.071 § 5, and we remanded the case to the trial court to consider applicant's claim. Ex parte Davis, No. WR-40,339-06 (Tex. Crim. App. Mar. 29, 2006)(not designated for publication). Because of changes in the law since the time we remanded the case, we subsequently determined that applicant's fifth subsequent application should be dismissed. However, the same changes that led us to dismiss applicant's fifth subsequent writ application led us to the conclusion that the Penry II/nullification claim, which was previously raised in his second subsequent writ application and dismissed by this Court, should be reconsidered. See Ex parte Davis, No. WR-40,339-03 (Tex. Crim. App. April 29, 2002)(order dismissing application not designated for publication). We remanded the case for a new punishment hearing upon determining that the nullification instruction given to the original jury was not a sufficient vehicle to allow jurors to consider and give full effect to applicant's mitigating evidence. See Ex parte Davis, No. AP-76,263 (Tex. Crim. App. Nov. 18, 2009)(not designated for publication).
Upon retrial in 2011, the jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.0711, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's sentence on direct appeal. Davis v. State, No. AP-76,521 (Tex. Crim. App. Oct. 23, 2013)(not designated for publication). Applicant filed this initial application for a writ of habeas corpus in the convicting court on November 6, 2012.
Applicant presents fifteen allegations in his application in which he challenges the validity of his sentence. The trial court did not hold an evidentiary hearing. The trial court entered findings of fact and conclusions of law recommending that the relief sought be denied.
This Court has reviewed the record with respect to the allegations made by applicant. Based upon the trial court's findings and conclusions and our own review, we deny relief.
Applicant's May 7, 2015 filing is a subsequent application that must be reviewed under Article 11.071, Section 5(a). We have reviewed the three claims. Applicant's claims fail to meet the dictates of Article 11.071, §5. Accordingly, we dismiss his subsequent application.
IT IS SO ORDERED THIS THE 25 DAY OF MAY, 2016. Do Not Publish