Opinion
NO. WR-81,580-01
01-11-2017
EX PARTE ARMANDO LEZA
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. 2007-CR-4563A IN THE 187TH DISTRICT COURT BEXAR COUNTY Per curiam. ALCALA, J., filed a concurring opinion. RICHARDSON and YEARY, JJ., not participating. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
On April 4, 2007, applicant and his wife/co-defendant went to the apartment of a semi-invalid woman, Caryll Jean Allen, who had helped the couple out in the past by giving them rides. When Allen refused on this occasion to provide them with money with which to buy drugs, the pair tied Allen up on the floor of her bedroom. One or both of them cut Allen's throat and stabbed her in the chest with a kitchen knife. They took a number of items from the apartment, commandeered Allen's car, pawned the items they had stolen to obtain money for drugs, and then set fire to and abandoned Allen's car.
In May 2009, a jury found applicant guilty of the offense of capital murder committed in the course of a robbery. 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. Leza v. State, 351 S.W.3d 344 (Tex. Crim. App. 2011).
Applicant presents eight allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court held an evidentiary hearing, and then entered findings of fact and conclusions of law and recommended that the relief sought be denied.
This Court has reviewed the record with respect to the allegations made by applicant. Claims 2, 3, 6, 7, and 8 are all procedurally barred as they- were raised and rejected on direct appeal. Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (holding that claims that have already been raised or rejected are not cognizable). Claim 4 is procedurally barred because habeas is not a substitute for matters which should have been raised on direct appeal. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004) (holding that even a constitutional claim is forfeited if the applicant had an opportunity to raise the issue on appeal).
See Leza, 351 S.W.3d at 348-51 (claim 3)(whether applicant's confession was illegally obtained in violation of the Fifth and Sixth Amendments), 355-57 (claim 6)(failure to receive a jury unanimity charge), 360-61 (claim 2)(trial court's exclusion of co-defendant's out-of-court statement claiming she alone committed the crime), and 362 (claims 7 and 8)(constitutional challenges to the Texas death penalty scheme regarding juror discretion, vagueness, and the "10-12" rule).
In claim 1, applicant challenges that he is actually innocent under both Herrera v. Collins, wherein he makes "a bare claim of innocence" based solely on newly discovered evidence, and Schlup v. Delo, wherein applicant claims that, but for the deprivation of his constitutional rights to effective assistance of counsel, he would have been found innocent. Applicant fails in his Herrera claim because he does not provide the court with newly discovered evidence that constitutes affirmative evidence of applicant's innocence nor does he meet his burden to show that no reasonable juror would have convicted him in light of this alleged evidence. His Schlup claim fails because a Schlup claim may not be brought in an initial habeas application, as the constitutional claims are not yet procedurally barred. Ex parte Villegas, 415 S.W.3d 885, 887 (Tex. Crim. App. 2013); Schlup, 513 U.S. at 315 (holding that Schlup's claim of innocence is thus "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits").
506 U.S. 390 (1993).
513 U.S. 298 (1995)
In claim 5, applicant contends that his trial counsel were ineffective for the following reasons: failure to investigate and prepare the mitigation case, failure to submit selected veniremen to death penalty questions, failure to make an opening statement at the guilt phase, failure to admit evidence of the co-defendant's plea bargain, failure to request a unanimity instruction, failure to present evidence that applicant was innocent of an extraneous offense, and a failure to present all available mitigating evidence. Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984). He fails to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. at 689. We do however reject the trial court's findings and conclusions found at paragraph 12, sections c (6)(a) and (b), as they do not address an issue presented in the habeas application.
The trial court made findings pertaining to evidence regarding the instant crime instead of an extraneous offense that the State introduced at punishment.
Based upon the trial court's findings and conclusions and our own review, we deny relief.
IT IS SO ORDERED THIS THE 11th DAY OF JANUARY, 2017. Do Not Publish