Opinion
NO. WR-62,593-02 NO. WR-62,593-04
05-17-2017
EX PARTE BERNARDO ABAN TERCERO, Applicant
ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS FROM CAUSE NO. 762351 IN THE 232ND JUDICIAL DISTRICT COURT HARRIS COUNTY Per curiam. KEEL, 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.
Unless otherwise indicated all references to articles refer to the Code of Criminal Procedure.
In October 2000, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to 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. Tercero v. State, No. AP-73,992 (Tex. Crim. App. Sept. 18, 2002) (not designated for publication).
Applicant filed his initial application for a writ of habeas corpus in 2002, raising five claims including trial errors, ineffective assistance of counsel, and a challenge to the constitutionality of the Texas death penalty statute. Applicant then filed a pro se motion to amend his initial writ, alleging in part that his trial, appellate, and state habeas counsel were ineffective. This Court found that his pro se motion constituted a subsequent writ application under Article 11.071 § 5. The Court denied relief on his initial post-conviction writ application and dismissed his first subsequent writ application. Ex parte Tercero, Nos. WR-62,593-01 and WR-62,593-02 (Tex. Crim. App. Nov. 16, 2005) (not designated for publication).
In his second subsequent writ application, applicant alleged that he was younger than 18 years of age when he committed the crime for which he was sentenced to death. This Court found that the application met the requirements of Article 11.071 § 5 and remanded the application to the trial court. The trial court found that applicant had failed to show by a preponderance of the evidence that he was younger than 18 years of age when he committed the offense. This Court reviewed the record, adopted the trial court's findings and conclusions, and denied relief. Ex parte Tercero, No. WR-62,593-03 (Tex. Crim. App. Mar. 3, 2010) (not designated for publication). The trial court scheduled applicant's execution for August 26, 2015.
On August 18, 2015, applicant filed a suggestion for this Court to reconsider on its own motion the 2005 dismissal of his first subsequent writ application, accompanied by a motion for stay of execution. He alleged that his initial habeas counsel's performance was ineffective and he asked this Court to modify its holding in Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002).
This motion for stay of execution was rendered moot after this Court granted a stay in response to Applicant's third subsequent writ application. --------
On August 24, 2015, applicant filed in the trial court another subsequent application for a writ of habeas corpus. In this subsequent application, applicant asserted that he was denied due process because the State presented the material false testimony of witness Sylvia Cotera at his trial. After reviewing his application, this Court found that he had satisfied the requirements of Article 11.071 § 5. Accordingly, we remanded the application to the trial court to review the merits of the claim, and we stayed applicant's execution pending resolution of the application. Ex parte Tercero, No. WR-62,593-04 (Tex. Crim. App. Aug. 25, 2015) (not designated for publication).
In June 2016, the trial court held an evidentiary hearing. Several witnesses testified at the hearing, including Cotera. Cotera affirmed the truth of her trial testimony and disavowed statements to the contrary. On December 6, 2016, the trial court entered findings of fact and conclusions of law recommending that relief be denied.
We have reviewed the evidence in the writ record, the testimony at the writ hearing, the habeas court's findings of fact and conclusions of law, applicant's objections to the findings of fact and conclusions of law, and relevant portions of the direct appeal record. We find that the record supports the trial court's findings and conclusions and we adopt them, with the exception of findings 32(a), (b), & (c). Further, we decline applicant's suggestion that we reconsider on our own motion our dismissal of his first subsequent writ application. The relief sought is denied. The stay previously entered in this case is lifted.
IT IS SO ORDERED THIS THE 17TH DAY OF MAY, 2017. Do Not Publish