Opinion
NO. WR-50,961-07 NO. WR-50,961-08
05-17-2017
EX PARTE RODNEY REED, Applicant
ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS IN CAUSE NO. 8701 IN THE 21 DISTRICT COURT BASTROP COUNTY Per curiam. ALCALA, J., filed a concurring and dissenting opinion with which WALKER, J., joined. NEWELL, J., not participating. ORDER
These are subsequent applications for writs of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.
In May 1998, 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 applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000)(not designated for publication). On November 15, 1999, applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court. On February 8, 2001, applicant filed a "Supplemental Claim for Relief on Application for Writ of Habeas Corpus" in the convicting court. This Court subsequently denied applicant relief on his initial application and construed the supplemental claim as a subsequent application and dismissed it. Ex parte Reed, Nos. WR-50,961-01 and WR-50,961-02 (Tex. Crim. App. Feb. 13, 2002)(not designated for publication).
Applicant filed his second subsequent habeas application in the convicting court on March 29, 2005. This Court remanded the case to the trial court for the development of two claims. After the case was returned to this Court, we issued an opinion denying relief. Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008). Over time, applicant filed three more subsequent writ applications, none of which satisfied the requirements of Article 11.071 § 5, and the Court dismissed them. Ex parte Reed, Nos. WR-50,961-04 and WR-50,961-05 (Tex. Crim. App. Jan. 14, 2009)(not designated for publication), and No. 50,961-06 (Tex. Crim. App. July 1, 2009)(not designated for publication). Applicant filed his sixth subsequent application in the trial court on February 13, 2015, and a document titled a "Supplemental Application for Writ of Habeas Corpus" on June 9, 2016.
In his 2015 application, applicant asserts that he has newly discovered evidence that supports his claim that he is actually innocent, that new scientific evidence establishes his probable innocence pursuant to Article 11.073 of the Code of Criminal Procedure, and that the State presented false, misleading, and scientifically invalid testimony violating his right to due process. See Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009). In a fourth allegation, applicant asserts that we should reconsider his previous writ applications in light of this new evidence.
We find that applicant has failed to make a prima facie showing on any of his claims. Therefore, his 2015 subsequent application (our -07) fails to satisfy any of the exceptions provided in Article 11.071 § 5, and it fails to make the requisite showing under Article 11.073. Accordingly, the application is dismissed as an abuse of the writ without reviewing the merits of the claims. Art. 11.071 § 5(c). Further, we will not reconsider applicant's prior writ applications.
In his 2016 application (our -08), applicant asserts that he has newly discovered evidence that supports his claim that he is actually innocent, that the State's failure to disclose this newly discovered evidence violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and that this newly discovered evidence shows that the State presented false and misleading testimony, which violated his right to due process. See Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009).
After reviewing the 2016 application, we find that applicant has failed to make a prima facie showing of actual innocence. However, we further find that his Brady and false testimony claims do satisfy the requirements of Article 11.071 § 5. Accordingly, we remand those claims to the trial court for resolution. Applicant has also filed in this Court and the trial court a "Motion for Deposition of Curtis Davis." We leave it to the trial court to rule on this motion as it sees fit.
The trial court shall resolve these issues within 60 days of the date of this order. Any extensions of this time shall be obtained from this Court.
IT IS SO ORDERED THIS THE 17 DAY OF MAY, 2017. Do Not Publish