Opinion
NO. WR-78,131-02
02-14-2018
EX PARTE TARUS VANDELL SALES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 893161-B IN THE 179TH DISTRICT COURT HARRIS COUNTY Per curiam. KEASLER and HERVEY, JJ., dissented. 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, § 5.
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.
Applicant was convicted in 2003 of capital murder. TEX. PENAL CODE ANN. § 19.03(a). Based on the jury's answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, sections 2(b) and 2(e), the trial court sentenced him to death. Art. 37.071, § 2(g). This Court affirmed applicant's conviction on direct appeal. Sales v. State, AP-74,594 (Tex. Crim. App. Jan. 26, 2005) (not designated for publication).
Applicant filed his initial post-conviction application for a writ of habeas corpus in the trial court on October 9, 2004. The State filed its response on April 11, 2005. However, after that point, the record of the proceedings is devoid of any further activity on this case until this Court issued an order on August 1, 2012, directing the trial court to resolve any remaining issues and forward the complete writ record to this Court. The record contains no explanation for why the initial application remained in the trial court from 2005 to 2012. After this Court issued its 2012 order, the trial court entered findings of fact and conclusions of law, and forwarded the application to this Court in August 2014. This Court received the application on August 21, 2014, and it denied relief on the claims raised in it on January 14, 2015. Ex parte Sales, WR-78,131-01 (Tex. Crim. App. Jan. 14, 2015) (not designated for publication).
Applicant then filed a petition for a writ of habeas corpus in federal district court. Sales v. Davis, No. H-15-CV-256 (S.D. Tex. Feb. 13, 2017). The federal district court stayed and administratively closed the proceedings to allow applicant to exhaust his claims in state court. Applicant then filed this subsequent application for a writ of habeas corpus in the convicting court on July 10, 2017. In compliance with Article 11.071, § 5(b), the convicting court forwarded the application to this Court. We received it on August 9, 2017.
Applicant alleges that the claims raised in his subsequent application should be considered on the merits. He argues that the factual bases for his claims were unavailable on the date he filed the previous application. See Art. 11.071, § 5(a)(1). To satisfy Article 11.071, § 5(a)(1), the factual basis of a claim must have been unavailable as to all previous applications. See Art. 11.071, § 5(a)(1). A factual basis was "unavailable" if it was not ascertainable through the exercise of reasonable diligence. See Art. 11.071, § 5(e). Further, the specific facts alleged, if proven, must establish a federal constitutional violation sufficiently serious as to likely require relief from either the conviction or sentence. See Ex parte Campbell, 226 S.W.3d 418, 422 (Tex. Crim. App. 2007). That is, applicant must make a prima facie showing that he is entitled to relief. Id.
Although applicant asserts that he meets the requirements of Article 11.071, § 5(a)(1), he seems to also invoke the language of Article 11.071, § 5(a)(2), which provides that a court may not consider the merits of a claim raised in a subsequent application, unless the application contains sufficient specific facts establishing that "by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt[.]" However, he does not specifically argue that he is entitled to a review of any of his claims under this section.
This application contains eight allegations. In Allegation One, applicant asserts that no reasonable juror would have convicted him if he or she had learned of the previously unavailable factual bases for his claim of innocence. In Allegation Two, applicant asserts that he is actually innocent of capital murder and the death sentence, incorporating "by reference all the facts and arguments set forth in Claims # 1 and # 3-4." In Allegations Three and Four, applicant asserts that he was denied the effective assistance of counsel at trial, on appeal, and in his initial habeas proceedings. In Allegation Five, applicant avers that the State suppressed evidence in violation of Brady. In Allegation Six, applicant states that the cumulative effect of the ineffective assistance of counsel and the Brady violations undermines confidence in the verdict. In Allegations Seven and Eight, applicant asserts that his death sentence violates the Eighth and Fourteenth Amendments because the jury failed to make the required Tison/Enmund findings.
Brady v. Maryland, 373 U.S. 83 (1963).
Tison v. Arizona, 481 U.S. 137 (1987), Enmund v. Florida, 458 U.S. 782 (1982).
With the possible exception of Allegation One, applicant's allegations fail to meet the requirements of Section 5. See Campbell, 226 S.W.3d at 421. Arguably, Allegation One contains sufficient specific facts which, if true, establish that the factual basis of the claim was unavailable on the date applicant filed the previous application. However, we are currently unable to assess this preliminary matter because the record contains what appears to be a mistake in one of the documents applicant provided in support of his factual assertions. And the mistake, if it is a mistake, needs to be clarified before the preliminary issue of whether applicant has overcome the Section 5 bar can fairly be evaluated.
Specifically, applicant avers in Allegation One that no reasonable juror would have convicted him if he or she had learned the information contained in the post-conviction statements of three of applicant's associates who were present immediately before or during the offense. In support of his claim, applicant attaches to his application the "statements" of his girlfriend, Cheryl Kissentaner; the driver during the offense, Deanndra Darfour; and the shooter, Herschel Ostine.
The record indicates that Kissentaner also went by the name "Jasmine."
But Kissentaner's and Darfour's statements do not support a finding that applicant's claim should overcome the Section 5 procedural bar. First, what applicant refers to as "statements" are only unsworn transcripts of their recorded interviews with habeas counsel. Applicant acknowledges that neither Darfour nor Kissentaner was willing to sign an affidavit. Second, the statements are not sufficient to present a prima facie showing that applicant is actually innocent or otherwise entitled to relief under Article 11.071, § 5(a). Third, the record contradicts applicant's claim that Kissentaner was unavailable when applicant filed his initial habeas application.
But the record arguably supports applicant's assertion that the affidavit of the shooter, Herschel Ostine, was previously unavailable. Ostine has now provided an affidavit in which he states that he decided on his own to murder the victim, Tyron Butler, without any encouragement or direction from applicant. Applicant explains that Ostine was previously unavailable to give a statement because he was a fugitive during applicant's trial.
The document applicant refers to as Ostine's "affidavit" more closely resembles an inmate declaration. See Bahm v. State, 219 S.W.3d 391, 393 n.2 (Tex. Crim. App. 2007) (citing Tex. Civ. Prac. & Rem. Code §§ 132.001-132.003). To avoid confusion, we will refer to this document as an affidavit. --------
Further, once Ostine was apprehended, he was in jail awaiting trial until after the deadline for filing applicant's initial habeas application. And during that time, applicant asserts, Ostine's attorney would not permit applicant's habeas attorney to speak with Ostine. In support of this latter assertion, applicant provided an affidavit from Ostine's attorney, Tyrone Moncriffe. However, in the affidavit, Moncriffe stated that he would not allow applicant's initial habeas counsel to speak with his client, "Mr. Stone," who was facing capital murder charges when applicant filed his initial habeas application. While it is possible that "Mr. Stone" is intended to be a reference to Ostine, it is also possible that "Mr. Stone" identifies another participant in the offense, someone who is otherwise significant to the resolution of this claim, or someone who is not even involved in this offense.
Given the apparent mistake in Ostine's counsel's affidavit, this Court has determined that further facts are necessary. Therefore, this cause is remanded to the trial court. On remand, the trial court shall first determine the meaning of the reference to "Mr. Stone" in Ostine's counsel's affidavit. After clarifying that issue, the court shall decide whether its determination of that issue supports a finding that the requirements of Article 11.071, § 5, have been met with regard to Allegation One. If appropriate, the trial court shall enter factual findings and credibility determinations. If the trial court determines that Allegation One does not satisfy the requirements of Article 11.071, § 5, then it shall immediately return the case to this Court. If the trial court determines that Allegation One satisfies the requirements of Article 11.071, § 5, then the court shall proceed to address it on the merits. See Art. 11.071, §§ 6-11.
IT IS SO ORDERED THIS THE 14th DAY OF FEBRUARY, 2018. Do Not Publish