Opinion
WR-78,131-02
01-25-2023
EX PARTE TARUS VANDELL SALES
Do Not Publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 893161-B IN THE 179TH DISTRICT COURT HARRIS COUNTY
ORDER
PER CURIAM.
This is a subsequent application for 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 in the course of retaliation based Sales - 2 on evidence that he directed another person, Herschel Ostine, to murder Tyron Butler. 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 Applicant to death. Art. 37.071, § 2(g). This Court affirmed Applicant's conviction and sentence on direct appeal. Sales v. State, AP-74,594 (Tex. Crim. App. Jan. 26, 2005) (not designated for publication).
At the time of the capital offense, Butler was scheduled to testify against Applicant in a deadly conduct trial which arose from a drug-related shootout outside the mall where Butler worked.
Applicant filed his initial post-conviction application for writ of habeas corpus in the trial court on October 9, 2004. Although the State filed its response on April 2005, for reasons the record does not reflect there was no further activity in this case in the trial court until this Court issued an order in August 2012 directing the trial court to resolve any remaining issues and forward the complete writ record to this Court. The trial court thereafter entered findings of fact and conclusions of law, and forwarded the application to this Court in August 2014. We received that application later that month and denied relief on the claims raised therein in January 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 writ of habeas corpus in the convicting court on July 10, 2017. In compliance with Article 11.071, § 5(b)(1), the convicting court forwarded this application to this Court. We received it on August 9, 2017.
Applicant alleged that this subsequent application should be considered on the merits because the factual basis for his claims was unavailable when he filed his previous application. See Art. 11.071, § 5(a). To satisfy Article 11.071, § 5(a), the factual basis 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).
Although Applicant asserts that he meets the requirements of Article 11.071, Section 5(a)(1), he seems also to invoke the language of Article 11.071, Section 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 the juror had learned of the previously unavailable factual bases for Applicant's 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 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).
After reviewing this subsequent application, we determined that Allegations Two through Eight failed to satisfy Section 5. Ex parte Sales, No. WR-78,131-02 (Tex. Crim. App. Feb. 14, 2018) (not designated for publication); see Campbell, 226 S.W.3d at 421. However, we stated that Allegation One arguably contained sufficient specific facts which, if true, established that part of the factual basis Applicant relied on was unavailable on the date he filed his previous application, and, if established, would likely require relief from the conviction.
Specifically, we explained, Applicant averred in Allegation One that no reasonable juror would have convicted him if the juror 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 attached to his application the "statements" of Cheryl Kissentaner, his girlfriend; Deanndra Darfour, the driver during the offense; and Ostine, the shooter.
The record indicates that Kissentaner also went by the name "Jasmine."
We rejected Applicant's assertion that Kissentaner's and Darfour's statements supported a finding that Allegation One should overcome the Section 5 procedural bar. First, we explained, what Applicant referred to as Kissentaner's and Darfour's "statements" were only unsworn transcripts of their recorded interviews with habeas counsel. Further, Applicant acknowledged that neither Kissentaner nor Darfour was willing to sign an affidavit. Second, we concluded, Kissentaner's and Darfour's "statements" were not sufficient to present a prima facie showing that Applicant is actually innocent or otherwise entitled to relief under Article 11.071, Section 5(a). Third, we noted, the record contradicted Applicant's assertion that Kissentaner was unavailable when Applicant filed his initial habeas application.
However, we concluded that the record arguably supported Applicant's assertion that Ostine's 2015 affidavit was previously unavailable. In the affidavit, Ostine states that he decided on his own to murder the victim, Butler, without any encouragement or direction from Applicant. Applicant also asserted that Ostine was previously unavailable 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.
Applicant further asserted that, once Ostine was apprehended, he was in jail awaiting trial until after the deadline for filing Applicant's initial habeas application. Applicant averred that, during this period, Ostine's attorney would not permit Applicant's habeas attorney to speak with Ostine. In support of the latter assertion, Applicant provided an affidavit from Ostine's attorney, Tyrone Moncriffe. But in the affidavit, Moncriffe stated that he would not allow Applicant's habeas counsel to speak with Moncriffe's client, "Mr. Stone," who was facing capital murder charges when Applicant filed his initial habeas application.
We observed that it was possible that "Mr. Stone" was meant to refer to Ostine, but we also noted the possibility that "Mr. Stone" identified another participant in the capital offense, someone who was otherwise significant to the resolution of Allegation One, or someone who was not involved at all in Applicant's offense. Given the questions created by Moncriffe's reference to "Mr. Stone," we determined that further fact finding was necessary.
Accordingly, we remanded Allegation One to the trial court with the following instructions. First, we directed the trial court to determine the meaning of the reference to "Mr. Stone" in Moncriffe's affidavit. We then instructed the trial court to decide whether its determination of the "Mr. Stone" question supported a finding that the requirements of Article 11.071, Section 5, had been met regarding Allegation One, and we encouraged the entry of factual findings and credibility determinations if appropriate. If the trial court determined that Allegation One did not satisfy the requirements of Article 11.071, Section 5, we directed the trial court to immediately return the case to this Court. But if the trial court determined that Allegation One satisfied the requirements of Article 11.071, Section 5, we instructed the trial court to address Allegation One on the merits.
On remand, the trial court held a live evidentiary hearing at which Ostine testified and was cross-examined. The trial court thereafter entered written findings of fact and conclusions of law in which it: (1) determined that the reference to "Mr. Stone" in Moncriffe's affidavit was a clerical error and was meant to say "Ostine"; (2) determined that Ostine's 2015 affidavit and the information contained therein was not previously available under Article 11.071, Section 5(a)(1), when Applicant filed his initial habeas application; (3) addressed the merits of Allegation One; and (4) recommended a denial of habeas relief as to that claim.
We have reviewed the trial court's findings and conclusions regarding Allegation One and adopt them as being supported by the record. On the basis of the trial court's findings and conclusions and our own independent review of the record, we conclude that Applicant has not established an entitlement to habeas relief as to Allegation One and we accordingly deny habeas relief on that claim. We dismiss Applicant's remaining habeas claims in this application (i.e., Allegations Two through Eight) as an abuse of the writ.
IT IS SO ORDERED.