Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 6/12/2015 ABEL ACOSTA, CLERK *1 WR-40,339-08 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/12/2015 7:42:58 AM Accepted 6/12/2015 8:04:43 AM ABEL ACOSTA IN THE TEXAS COURT OF CRIMINAL APPBALS CLERK AUSTINO TEXAS No. WR-40,339-08
) EX PARTE )
BRIAN DAVIS, )
APPLICANT )
)
) RESPONSE TO THE STATE'S MOTION TO DISMISS APPLICANT'S SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS (THIS IS A CAPITAL CASE) BRAD D. LEVENSON (No. 24073411) Director, Office Capital Writs (E-Mail : Brad.Levenson@ocw.texas. gov) JEREMY SCFIEPERS (No. 24084578) (E-Mail : Jeremy. Schepers@ocw.texas.gov) Post-Conviction Attorney Office of Capital Writs N. Congress Ave., Suite 460 Austin, Texas (s12) 463-8600
(sI2) 463-8s90 (fax) Attorneys for Applicant *2 IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS No. WR-40,339-08
) EX PARTE )
BRIAN DAVISO )
APPLICANT )
)
) RESPONSE TO THE STATE'S MOTION TO DISMISS APPLICANT'S SUBSEQUENT APPLICATION FOR \ryRIT OF HABEAS CORPUS
On May 7, Brian Davis ("Davis"), through his current counsel Office of Capital Writs ("OCW'), filed a subsequent for writ habeas
corpus. presented three allegations: (l) his 1992 conviction violated his
right due process when State used false evidence obtain (Subsequent at 15-25); (2) his punishment-only retrial death sentence
violated right to due process when State used false evidence obtain (id
at 25-29); and (3) State violated Brady v. Maryland by not disclosing
exculpatory and impeachment evidence prior to his punishment-only retrial
(id. at 30-34). All three allegations were based same new information, that
Detective Charles Smith-the lead investigator into underlying offense-
provided contradictory information in a letter Texas Board Pardons
Parole (the "Letter") as compared to his trial testimony. (Id. 9-10.) Specifically,
Smith Letter that Davis had confessed exchange his co-defendant,
Tina McDonald, not facing prosecution in the case; statement contrasted by testimony in both of Davis's prior trials that no such deal existed.
On 5,2015, State filed motion dismiss Davis's subsequent application, presented two arguments. First, that subsequent should be dismissed for failing meet the requirements of Article
ll.07l, section Five, of the Texas Code of Criminal Procedure. (Mot. to Dismiss at
6-10.) And second, Davis's subsequent application fails merits. (Id. at
10-24.) Davis disputes both positions advanced by the State.
A. Davis's Subsequent Meets the Requirements From the Texas Code of Criminal Procedure, Article 11.0710 Section 5(a)(1) The State argued Davis's subsequent application should dismissed because Davis "could have obtained the 2004letter prior filing 2012 initial and could have presented claim at time." (Mot. to Dismiss at 6.)
However, State ignores the fact that had duty to turn over Smith's Letter prior Davis's 20ll retrial, and now seeks to benefìt from their prior violation Davis's
rights. Both Davis's current and former counsel took steps, prior to his 20II retrial
and filing of his 2012Initial Application, should have resulted access Letter. These steps included making specific requests exculpatory and
impeachment evidence and reviewing Harris County District Attorney's Office
case file. (Subsequent Application at 12-15.) Had State disclosed letter
previously, as was required to do, have raised these issues previously.
The State cannot now fairly contend that, failed to turn over Davis
relevant exculpatory and impeachment evidence appropriate requests were
made, these claims should now defaulted. State's attempt analogizeDavis to the applicant Ex parte Sledge is
misguided. 391 S.W.3d (Tex. Crim. App. 2013); (Mot. to Dismiss at 9-10.) As
this Court noted Sledge, "[a] new factual basis one that could have been
discovered through the exercise reasonable diligence before date initial
application. We that reasonable diligence suggests at least some kind of
inquiry has been made into the matter at issue." Id. (internal quotations
citations omitted). current former counsel exercised reasonable
diligence and took steps that should have resulted in receiving Smith's Letter. Had
the State appropriately responded to the prior requests, have had the
Smith Letter even before the 2011 retrial. A more appropriate analogy is Ex parte
Miles, in the applicant did not receive the relevant information until
submitting a Freedom of Information Act request initial was
filed, after the applicant had made previous requests should have resulted in
disclosure of the relevant information. 359 S.W. (Tex. Crim. App. 2012).
Similarly to the applicant Miles, Davis's subsequent application should be
determined to meet to requirements Article lI.07l, section Five of his
prior attempts to obtain the relevant information.
B. Denying the Subsequent Merits Would Require this Court to Make Credibility Determinations that Fall Within Province Trial Court Altematively, State requests subsequent denied merits. The State describes the Letter Smith sent to Parole Board as "inartful" and "incomplete so gives a wrong impression." (Mot. to Dismiss at 18,
20.) State has obtained an affidavit from Smith in which he states:
In letter, I said "Davis agreed confess to the crime in exchange for McDonald not facing prosecution." That sentence is true but is incomplete so gives wrong impression. . . . I should have said "Davis first agreed confess crime exchange McDonald facing prosecution, but no one would make him that promise he ended up confessing without any promises being made him." (Aff. Charles Smith at2-3.) Smith's affidavit displays an attempt re-interpret statement Letter to the Parole Board align with his previous testimony.
This impossible. In the Letter, Smith explicitly that Davis "agreed" to
confess if McDonald would not prosecuted. Davis could not agreed to
- J
something did not exist, or was not offered; Smith's post-hoc attempt to
reconcile the statement with previous testimony fails, cannot be done.
Denying Davis's subsequent the merits would require this Court to make a credibility determination is situated to do. This Court
would need weigh Smith's prior trial testimony, his letter to Parole Board,
his current affidavit to determine which, if any, are accurate. Further, would need address the resulting impact on trial Smith's credibility has been
questioned. correct method such credibility determinations to occur is
trial court, al" anevidentiary hearing where Smith present and subjected to
questioning. This Court not positioned to make such determination, and should
instead remand case trial court address claims raised.
Therefore, asks three claims raised subsequent determined met requirements Texas Code of Criminal Procedure, Article 11.071, section and be remanded trial court
an evidentiary hearing.
Respectfull submitted, DATED: ll,2015
Brad on l¡, l,- r eremy Schepers *6 CERTIFICATE OF SERVICE I, undersigned, declare certifli I served foregoing Response to the State's Motion Dismiss Applicant's Subsequent Application
\ù/rit of Habeas Corpus to:
Texas Court Criminal Appeals
P.O. Box 112308
Austin, T){787ll
Harris County District Attorney
ATTN: Roe Wilson
Harris County Criminal Justice Center
l20l Frartklin, Suite 600
Houston, TX77002
Brian Davis
Polunsky Unit #999036 FM 350 South
Livingston, Texas 5I
This certification is executed ll,2015, Austin, Texas. I declare under penalty perjury that the foregoing true and correct best my
knowledge.
/1^ l. Jeremy Schepers