Opinion
NO. WR-86,669-02
09-30-2020
EX PARTE BILLY JOEL TRACY, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. 15F0677-102A IN THE 102 JUDICIAL DISTRICT COURT BOWIE COUNTY Per curiam. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In October 2017, a jury convicted Applicant of capital murder for murdering Correctional Officer Timothy Davison while Applicant was serving a life sentence in a penal institution. See TEX. PENAL CODE § 19.03. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Tracy v. State, 597 S.W.3d 502 (Tex. Crim. App. 2020).
In his application, Applicant presents eight challenges to the validity of his conviction and sentence. The trial court did not hold a live evidentiary hearing. It entered findings of fact and conclusions of law and recommended that we deny the relief Applicant seeks.
We have reviewed the record regarding Applicant's allegations. In Claim 1, Applicant alleges that his rights under the Eighth Amendment and the Fourteenth Amendment's Due Process Clause were violated because, after sentencing, the trial judge referred to a certain Bible verse. In Claim 2, Applicant asserts that the death penalty is an excessive punishment for someone whose culpability is diminished due to brain abnormalities. In Claim 6, Applicant contends that the trial court erred in admitting a letter, marked State's Exhibit 97, into evidence. In Claim 7, Applicant avers that the State made it more likely that he would commit future acts of violence because it housed him with adult offenders when he was seventeen years old; therefore, the State should not be permitted to execute him for an act of violence that he later committed. In Claim 8, Applicant argues that he was denied his right to a fair and impartial juror because one of his jurors was biased and the trial court denied Applicant the opportunity to question this juror. Applicant asserts that, if the Court finds that Claims 1, 2, or 6 are not cognizable in this writ proceeding, then it should construe these allegations as raising claims that he received ineffective assistance on appeal due to appellate counsel's failure to raise the underlying claim.
Claims 1, 2, 6, 7, and 8 are procedurally barred because they could have been raised on direct appeal, but were not. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ("It is 'well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.'"). To the extent Applicant asks us to alternatively construe Claims 1, 2, and 6 as alleging that he received ineffective assistance on appeal, he has failed show that appellate counsel unreasonably failed to raise nonfrivolous issues on appeal and a reasonable probability that, but for counsel's unreasonable failure to raise the allegations, Applicant would have prevailed on his appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Ex parte Miller, 330 S.W.3d 610, 623-24 (Tex. Crim. App. 2009).
In Claim 3, Applicant alleges that his death sentence violates the Fourteenth Amendment's Due Process Clause because the State failed to correct false testimony offered by its punishment phase rebuttal witness, Dr. Marc Smith. However, Applicant has not shown that the testimony in question was actually false and that it was material to his conviction or punishment. See Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014); Ex parte Ghahremani, 332 S.W. 3d. 470, 477 (Tex. Crim. App. 2011); Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009).
In Claim 4, Applicant argues that his rights under the Eighth Amendment were violated by Dr. Smith's allegedly false testimony because that testimony prevented Applicant's jurors from considering evidence that might have led them to sentence Applicant to "life in prison" instead of death. However, Applicant has not shown that the testimony at issue prevented his jurors from considering his mitigating evidence. See generally Skipper v. South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978).
In Claim 5, Applicant contends that his trial counsel were constitutionally ineffective at the punishment phase because they did not require their expert witnesses to be physically present in the courtroom while the State's expert witnesses testified in rebuttal. However, Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
We decline to adopt Finding of Fact and Conclusion of Law numbers 26 and 52 (stating that Claims 1 and 2 are cognizable in this writ proceeding). We otherwise adopt the trial court's findings of fact and conclusions of law. Based upon the trial court's findings and conclusions that we adopt and our own review, we deny relief.
IT IS SO ORDERED THIS THE 30 DAY OF SEPTEMBER, 2020. Do Not Publish