Opposition Brief — Erick Daniel Davila, Petitioner v. Texas

Supreme Court briefApr 19, 2018

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Nos. 17-8521 & 17A-1140

IN THE

Supreme Court of the United States

ERICK DANIEL DAVILA,

Petitioner,

STATE OF TEXAS

Respondent.

On Petition for Writ of Certiorari to the Texas Court of Criminal Appeals

and Application for Stay of Execution

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

JEFFREY C. MATEER

First Assistant Attorney General

KATHERINE D. HAYES

Assistant Attorney General

Counsel of Record

ADRIENNE McFARLAND

Deputy Attorney General

For Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

katherine.hayes@oag.texas.gov

Counsel for Respondent

Petitioner is scheduled for execution after 6:00 p.m. (CST),

Wednesday, April 25, 2018

CAPITAL CASE

QUESTION PRESENTED

In 2008, Petitioner Erick Daniel Davila, a member of the Bloods

street gang, drove by a birthday party being held at a home in Fort

Worth, Texas. Believing that members of a rival gang (the Crips) were

present at the celebration, Davila decided—in his words—to “have a

shoot ‘em up.” Davila armed himself with a semi-automatic assault rifle

equipped with a laser scope and fired repeatedly at the group, killing

Annette Stevenson and her 5-year-old granddaughter, Queshawn

Stevenson in the process. For his actions, Davila was found guilty of

capital murder and sentenced to death in February 2009. Nine years of

postconviction litigation followed and he failed to show reversible error.

In January 2015, the trial court scheduled Davila’s execution for

Wednesday, April 25, 2018.

Davila moved for leave to file petition for writ of prohibition

alleging that his right to due process was violated when the trial court

granted the Tarrant County Criminal District Attorney’s motion for an

execution date. The Texas Court of Criminal Appeals (TCCA) denied

Davila’s motion without written order. Ex parte Davila, No. WR-75,35602 (Tex. Crim. App. March 28, 2018). Davila also filed a subsequent state

habeas corpus application raising three claims, including (1) that the

prosecution failed in its obligation under Brady v. Maryland, 373 U.S.

83 (1963), to disclose that his co-defendant could have verified that

Davila was heavily intoxicated at the time of the capital crime, and (2)

that Texas’s capital sentencing scheme violates this Court’s holding in

Hurst v. Florida, 136 S. Ct. 616 (2016). The TCCA dismissed Davila’s

successive application “as an abuse of the writ without reaching the

merits of the claims raised.” Ex parte Davila, No. WR-75,356-03 (Tex.

Crim, App. April 9, 2018). This Court is presented with the following

questions:

Does the Court have jurisdiction to consider Davila’s

Brady and Hurst claims when the lower court found

them procedurally defaulted under state law?

Should a writ of certiorari or stay issue when Davila’s

claims are otherwise without merit?

TABLE OF CONTENTS

QUESTION PRESENTED ......................................................................... i

TABLE OF CITED AUTHORITIES ........................................................ iv

BRIEF IN OPPOSITION ............................................................................1

STATEMENT OF THE CASE ...................................................................1

REASONS FOR DENYING THE PETITION ...........................................5

ARGUMENT ...............................................................................................7

An Adequate and Independent State-law Ground Supports

the TCCA’s Dismissal of Davila’s Brady and Hurst Claims

Below, thus Divesting the Court of Jurisdiction (Davila’s

Claims 1 & 3).....................................................................................7

II.

Assuming Jurisdiction, Davila Fails to Advance a

Compelling Reason to Grant Review of his Brady Claim.

(Davila’s Claim 1)........................................................................... 12

Davila fails to make a prima facie showing of

suppression .......................................................................... 13

Post-trial evidence does not implicate Brady. ......... 13

Evidence of intoxication was not suppressed. .......... 14

Davila also fails to make a prima facie showing

that the allegedly suppressed evidence of intoxication

is both favorable and material. .......................................... 16

Davila’s evidence fails to show he was intoxicated. . 17

Thompson’s 2018 declaration .......................... 17

Notes from Detective Boetcher’s interview .... 18

Even if Davila had been intoxicated, the evidence is

not favorable or material. .................................................... 20

III.

Davila Presents No Compelling Reason to Grant Review of

the TCCA’s Denial of His Motion for Leave to File a Writ of

Prohibition (Davila’s Claim 2). ...................................................... 22

The trial court’s setting an execution date does not

implicate due process concerns. .......................................... 23

Davila fails to demonstrate any conflict of interest. .......... 24

IV.

Assuming Jurisdiction, Davila Presents No Compelling

Reason to Grant Review of His Claim Challenging the

Constitutionality of Texas’s Capital Sentencing Scheme

(Davila’s Claim 3)........................................................................... 28

The Court Should Deny a Stay of Execution. ............................... 33

Davila has not made a strong showing that he is

likely to succeed on the merits. ........................................... 34

Davila was dilatory in advancing his Brady claim. ........... 34

The public has a strong interest in seeing the state

court judgment carried out. ................................................. 36

CONCLUSION ......................................................................................... 36

iii

TABLE OF CITED AUTHORITIES

Apprendi v. New Jersey, 530 U.S. 466 (2000) .................................. passim

Avila v. Quarterman, 560 F.3d 299 (5th Cir. 2009) ............................... 30

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010) ................................ 11

Barefoot v. Estelle, 463 U.S. 880 (1983) .................................................. 33

Beard v. Kindler, 558 U.S. 53 (2009) .................................................... 7, 8

Belyeu v. Johnson, 82 F.3d 613 (5th Cir. 1996) ...................................... 24

Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996) ........................................ 22

Brady v. Maryland, 373 U.S. 83 (1963) ........................................... passim

Brown v. Cain, 104 F.3d 744 (5th Cir. 1999).......................................... 14

Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016) ................. 24, 25

Coleman v. Thompson, 501 U.S. 722 (1991) ..................................... 7, 8, 9

Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne,

557 U.S. 52 (2009) ............................................................................. 13

Estrada v. Healey, 647 F. App’x 335 (5th Cir. 2016).............................. 14

Evans v. Dorethy, 833 F.3d 758 (7th Cir. 2016) ..................................... 32

Ex parte McGinn, 54 S.W.3d 324 (Tex. Crim. App. 2000) ..................... 32

Ex parte Spain, 589 S.W.2d 132 (Tex. Crim. App. 1979) ....................... 25

Foster v. Chatman, 136 S. Ct. 1737 (2016) ......................................... 8, 11

Gomez v. U.S. Dist. Court for Northern Dist of California,

503 U.S. 653 (1992) .............................................................. 33, 34, 35

Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004).................................... 34

Hill v. McDonough, 547 U.S. 573 (2006) .................................... 33, 35, 36

Hilton v. Braunskill, 481 U.S. 770 (1987) .............................................. 33

Hopkins v. Cockrell, 325 F.3d 579 (5th Cir. 2003) ................................. 22

Horne v. Polk, 394 P.3d 651 (Az. 2017) ................................................... 26

Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008) ........................... 11

Hurst v. Florida, 136 S. Ct. 616 (2016) ............................................ passim

In re Bonilla, 424 S.W.3d 528 (Tex. Crim. App. 2014) .......................... 24

In re Cox, 481 S.W.3d 289 (Tex. App. – Fort Worth 2015) .................... 27

In re Masterson, 638 F. App’x 320 (5th Cir. 2016) ................................. 14

In re Medina, 475 S.W.3d 291 (Tex. Crim. App. 2015) .......................... 24

In re Murchison, 349 U.S. 133 (1955) ..................................................... 26

In re Rodriguez, 885 F.3d 915 (5th Cir. 2018) ........................................ 14

James v. Kentucky, 466 U.S. 341 (1984) ....................................................8

Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988) ................................... 22

Kunkle v. Dretke, 352 F.3d 980 (5th Cir. 2003) ...................................... 11

Kunkle v. Texas, 543 U.S. 1039 (2004) ................................................... 10

Kutzner v. Cockrell, 303 F.3d 333 (5th Cir. 2002) .................................. 14

Kyles v. Whitley, 514 U.S. 419 (1995) ............................................... 13, 17

Lambrix v. Singletary, 520 U.S. 518 (1997) .............................................7

Landers v. State, 256 S.W.3d 295 (Tex. Crim. App. 2008) .............. 24, 25

Lawrence v. Lensing, 42 F.3d 255 (5th Cir. 1994) ................................. 14

Lee v. Kemna, 534 U.S. 362 (2002).............................................................8

McLaughlin v. Steele, 173 F.Supp.3d 855 (E.D. Mo. 2016) ................... 32

Moore v. Texas, 122 S. Ct. 2350 (2002) ................................................... 10

Nelson v. Campbell, 541 U.S. 637 (2004)................................................ 33

Nken v. Holder, 556 U.S. 418 (2009) ....................................................... 33

Rauf v. State, 145 A.2d 430 (Del. 2016) .................................................. 32

Ring v. Arizona, 538 U.S. 584 (2002) ............................................... passim

Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005) ...................................... 30

Scarborough v. State, 54 S.W.3d 419

(Tex. App. – Waco 2001, pet. refused).............................................. 27

State ex rel. Eidson, 793 S.W.2d 1 (Tex. Crim. App. 1990).................... 27

State ex rel. Young v. Sixth Judicial Dist. Ct. of Appeals at

Texarkana, 236 S.W.3d 207 (Tex. Crim. App. 2007) .................... 27

State v. Metts, 510 S.W.3d 1 (Tex. Crim. App. 2016) ............................. 25

State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) ....................................... 32

Stewart v. Smith, 536 U.S. 856 (2002) .......................................................8

Strickland v. Washington, 466 U.S. 668 (1984) ..................................... 13

Strickler v. Green, 527 U.S. 263 (1999) ............................................. 13, 16

United States v. Agurs, 427 U.S. 97 (1976) ............................................ 14

United States v. Bagley, 473 U.S. 667 (1985) ............................. 13, 16, 17

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ................................. 25

28 U.S.C. § 2244(b) .....................................................................................9

Tex. Code Crim. Proc. art. 2.01 ............................................................... 24

Tex. Code Crim. Proc. art. 11.071 § 5 .............................................. passim

Tex. Code Crim. Proc. art. 37.071, § 2 ............................................ passim

Tex. Disciplinary R. Prof’l Conduct 1.10(e)(1) ........................................ 27

Tex. Penal Code § 8.04(a) ........................................................................ 21

Tex. Penal Code § 8.04(b) ........................................................................ 21

Tex. Penal Code § 19.03(a)(7)(A) ......................................................... 1, 29

Sup. Ct. R. 10 ..............................................................................................5

BRIEF IN OPPOSITION

The State of Texas respectfully submits this brief in opposition to the

petition for a writ of certiorari and application for stay of execution filed by

Erick Daniel Davila.

STATEMENT OF THE CASE

“On April 6, 2008, a group of family and friends gathered at Annette

Stevenson’s home to celebrate her granddaughter’s birthday.” Davila v. Davis,

137 S. Ct. 2058, 2063 (2017). Davila, “believing he had seen a member of a rival

street gang at the celebration, fired a rifle at the group while they were eating

ice cream and cake. He shot and killed Annette and her 5-year-old

granddaughter, Queshawn, and he wounded three other children and one

woman.” Id. After the police arrested Davila, “he confessed to the killings. He

stated that he ‘wasn’t aiming at the kids or the woman,’ but that he was trying

to kill Annette’s son (and Queshawn’s father) Jerry Stevenson and the other

‘guys on the porch.’” Id. “As for the ‘guys on the porch,’ Davila appeared to have

mistaken some adult women at the party for men because the only male at the

party was Jerry.” Davila v. Davis, 650 Fed. App’x. 860, 864 (5th Cir. 2016).

In February 2009, a Tarrant County, Texas, jury convicted Davila of

capital murder for intentionally or knowingly killing more than one person

during the same criminal transaction. Tex. Penal Code § 19.03(a)(7)(A).

Following a separate punishment hearing, the jury answered “yes” to the

special sentencing issue on future dangerousness and “no” to the issue on

mitigation. Tex. Code Crim. Proc. art. 37.071, §§ (2)(b)(2) & (2)(e). Based on the

jury’s answers, the trial court sentenced Davila to death. State v. Davila, No.

1108359D (Crim. Dist. Ct. No. 1, Tarrant Co., Feb. 27, 2009).

The TCCA affirmed Davila’s conviction and sentence on direct appeal.

Davila v. State, No. AP-76,105, 2011 WL 303265 (Tex. Crim. App. Jan. 26,

2011), cert. denied, 565 U.S. 885 (2011).

On state habeas review, the TCCA denied Davila’s initial habeas

application based on the trial court’s findings of fact and conclusions of law

following a live evidentiary hearing. Ex parte Davila, No. WR-75,356-01, 2013

WL 1655549 (Tex. Crim. App. Apr. 17, 2013), cert. denied, 134 S. Ct. 784 (2013).

In 2014, Davila filed a federal habeas petition, and later an amended

petition, raising eleven claims including one contending that his constitutional

rights were violated under Ring and Apprendi1 by the jury not being instructed

that the State has the burden of proving a lack of mitigating evidence beyond

a reasonable doubt. Davila v. Stephens, No. 4:13-cv-00506-O (N.D. Tex.) (ECF

Nos. 16, 17). The district court denied relief and did not certify any issue for

appeal. Id., 2015 WL 1808689 (N.D. Tex. Apr. 21, 2015). Davila applied for a

Ring v. Arizona, 538 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S.

466 (2000).

certificate of appealability (COA) to appeal several issues, including his

Ring/Apprendi claim. He also supplemented his argument based on this

Court’s then-recent decision in Hurst v. Florida, 136 S. Ct. 616 (2016). The

Fifth Circuit denied Davila a COA, Davila v. Davis, 650 F.App’x 860 (5th Cir.

May 31, 2016), and denied rehearing, No. 15-70013 (5th Cir. June 28, 2016).

Davila petitioned for certiorari review of his Ring/Apprendi/Hurst claim and

several other claims. After certiorari was granted on a different issue, and oral

argument heard in April 2017, this Court affirmed the Fifth Circuit’s decision

on June 26, 2017. Davila v. Davis, 137 S. Ct. 2058 (2017).

In October 2017, the State moved the convicting court to set a date for

Davila’s execution. Davila moved to disqualify the Tarrant County Criminal

District Attorney’s Office from representing the State because Criminal

District Attorney Sharen Wilson presided over his trial and sentencing while

previously serving as Judge of the Criminal District Court No. 1 and because

Davila’s former state habeas attorney, David Richards, now serves as an

assistant criminal district attorney with the Tarrant County Criminal District

Attorney’s Office. A hearing was held on January 17, 2018. Senior District

Judge Everett Young, sitting by assignment in Criminal District Court No. 1,

denied Davila’s motion and scheduled his execution for April 25, 2018. State v.

Davila, No. 1108359D (Crim. Dist. Ct. No. 1, Tarrant Co., Tex., Jan. 17, 2018).

On February 5, 2018, Davila asked the TCCA for leave to file a petition

for a writ of prohibition challenging the Criminal District Attorney’s authority

to seek an execution date2 and subsequently moved for a stay of execution. The

TCCA denied both motions without written order. Ex parte Davila, No. WR75,356-02 (Tex. Crim. App. March 28, 2018).3

On March 27, 2018, Davila filed a subsequent state habeas application

raising three claims, including that (1) the prosecution withheld evidence of

Davila’s intoxication at the time of the crime in violation of Brady v. Maryland,

373 U.S. 83 (1963), and (2) the Texas capital sentencing scheme is

unconstitutional under Hurst v. Florida. Davila later moved for a stay of

execution. The TCCA dismissed Davila’s application “as an abuse of the writ

without reviewing the merits of the claims raised,” and denied his motion for

stay. Ex parte Davila, WR-75,356-03 (Tex. Crim. App. April 9, 2018) (citing

Tex. Code Crim. Proc. art. 11.071 § 5).4

On April 14th, Davila petitioned for a writ of certiorari and moved for a

stay of his April 25th scheduled execution.5 This response follows.

Davila’s Writ of Prohibition and exhibits are Appendices (App.) 3 and 4.

Notification of the TCCA’s ruling in included as Davila’s App. 2.

TCCA’s order of dismissal and denial is Davila’s App. 1.

Davila has also now moved the Fifth Circuit for a stay of execution and

for authorization to file a successive federal habeas petition raising his Brady claim.

In re: Erick Davila, No. 18-10455. That litigation is currently pending.

REASONS FOR DENYING THE PETITION

Review on writ of certiorari is not a matter of right, but of judicial

discretion, and will be granted only for “compelling reasons.” Sup. Ct. R. 10.

No such reason exists in this case.

The Court is without jurisdiction to review Davila’s claims alleging

violations of Brady v. Maryland and Hurst v. Florida. The TCCA cited Davila

for abuse of the writ because he did not meet the state procedural rules

governing subsequent habeas applications in capital cases. Ex parte Davila,

No. WR-75,356-03 (citing Tex. Code Crim. Proc. art. 11.071 § 5). The TCCA’s

dismissal rests upon a state-law ground that is independent of the federal

issues and adequate to support the judgment.

Even if jurisdiction exists, Davila fails to advance a compelling reason

for the Court to grant review. The TCCA’s decision that Davila failed to make

a prima facie showing of a Brady violation is consistent with this Court’s

established precedent. Davila fails to prove suppression because whether he

was intoxicated at the time of the capital offense and whether his co-defendant,

Garfield Thomson, could verify this matter is information that was obviously

known and available to Davila himself. Written declarations obtained from

Thompson in 2018 fall outside the Brady framework, and notes from Detective

Boetcher’s interview of Thompson in 2008 were provided to Davila’s attorneys

prior to trial. Regardless, evidence that Davila may have been intoxicated at

the time of the crime is double-edged evidence that is not favorable and

material to the outcome at either stage of trial.

Second, the TCCA correctly denied Davila leave to file a writ of

prohibition. Davila’s due process rights were not violated simply because

Tarrant County Criminal District Attorney Sharen Wilson presided over his

trial and sentencing while previously serving as Judge of Criminal District

Court No. 1. Davila presents no direct authority mandating the office’s removal

from their Texas statutory duty to represent the State, especially when the

action complained of is the ministerial act of setting an execution date.

Assuming jurisdiction exists to reach Davila’s claim that Hurst v. Florida

renders Texas’s capital sentencing scheme unconstitutional, the TCCA’s

dismissal is not contrary to established precedent. Unlike the error identified

in Ring, Apprendi, and Hurst, in Texas the critical fact-finding decisions

required to impose the death penalty are made only by the jury and the trial

judge has no leeway to interfere with the verdicts. This Court previously

declined to grant review of the same claim when Davila raised it in 2016 in his

federal habeas appeal, and the Court should do so again. Davila v. Davis, No.

16-6219.

Finally, no stay of execution should be granted because Davila fails to

make a strong showing of likely success, the presentation of his Brady claim

has been dilatory, and the public has a strong interest in carrying out its

judgment of conviction and sentence of death.

ARGUMENT

An Adequate and Independent State-law Ground Supports the

TCCA’s Dismissal of Davila’s Brady and Hurst Claims Below,

thus Divesting the Court of Jurisdiction (Davila’s Claims 1 & 3).

Davila raised his Brady v. Maryland and Hurst v. Florida claims in a

subsequent state habeas application that the TCCA dismissed as an abuse of

the writ. Ex parte Davila, No. WR-75,356-03 (citing Tex. Code Crim. Proc. art.

11.071 § 5(a). Texas’s successive-writ statute, like the federal habeas “second

or successive” prohibition, exists to limit the number of attempts an inmate

may seek to collaterally attack their conviction, subject to certain, limited

exceptions. Compare Tex. Code Crim. Proc. art. 11.071 § 5(a), with 28 U.S.C.

§ 2244(b). See also Beard v. Kindler, 558 U.S. 53, 62 (2009) (noting that federal

courts should not “disregard state procedural rules that are substantially

similar to those to which we give full force in our own courts”). Because citation

for abuse of the writ is an adequate and independent state-law ground, this

Court lacks jurisdiction to consider Davila’s claims.

“[T]his Court ‘will not review a question of federal law decided by a state

court if the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.’”

Lambrix v. Singletary, 520 U.S. 518, 522–23 (1997) (quoting Coleman v.

Thompson, 501 U.S. 722, 729 (1991)). “[I]n fact,” this Court “lack[s] jurisdiction

to review such independently supported judgments . . . since the state-law

determination is sufficient to sustain the decree, [and] any opinion of this

Court on the federal question would be purely advisory.” Id. at 523; cf. Foster

v. Chatman, 136 S. Ct. 1737, 1745–47 (2016) (reviewing whether, in a case

where a writ of certiorari was granted from a state postconviction ruling, the

Court had jurisdiction to consider a claim barred by a state-law ground).

A state-law ground is adequate to preclude federal consideration of a

claim if it is “‘firmly established and regularly followed.’” Lee v. Kemna, 534

U.S. 362, 885 (2002) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).

The discretionary nature of a state-law bar does not make it any less

“adequate” for a “discretionary rule can be ‘firmly established’ and ‘regularly

followed’ even if the appropriate exercise of discretion may permit

consideration of a federal claim in some cases but not others.” Kindler, 558

U.S. at 60–61. And those situations where a state-law ground is found

inadequate are but a “small category of cases.” Kemna, 534 U.S. at 381.

Decisions by state courts “are independent of federal law [when] they do

not depend upon a federal constitutional ruling on the merits.” Stewart v.

Smith, 536 U.S. 856, 860 (2002). In the context of federal habeas, there is no

presumption of federal law consideration unless it is first determined that the

state court decision “fairly appears to rest primarily on federal law, or to be

interwoven with the federal law.” Coleman, 501 U.S. at 735. Where there is no

“clear indication that a state court rested its decision on federal law, a federal

court’s task will not be difficult.” Id. at 739–40.

Texas’s abuse-of-the-writ statute is straightforward: “If a subsequent

application. . . is filed after an initial application, a court may not consider the

merits of or grant relief based on the subsequent application” subject to limited

exceptions. Tex. Code Crim. Proc. art. 11.071 § 5(a). Those exceptions allow for

merits adjudication where an inmate can establish that the factual or legal

basis of a claim was unavailable when the initial or prior state habeas

application was filed,6 or where an inmate can show actual innocence of their

crime or sentence. Id. at § 5(a)(1)–(3); cf. 28 U.S.C. § 2244(b)(2)(A)–(B). This

procedural bar is undoubtedly independent from federal law and is an

adequate state law ground preventing this Court’s review.

The abuse-of-the-writ bar is independent from federal law. First, it

clearly emanates from a state statute: Tex. Code Crim. Proc. art. 11.071 § 5(a).

The TCCA therefore did not have to consider federal law in deciding whether

Davila’s claim that the prosecution suppressed evidence of his own

intoxication is a claim that was factually available when he filed his first state habeas

application. (See Argument, Part II below). While this Court decided Hurst v. Florida

in 2016 after Davila’s federal habeas action was on appeal, Hurst is merely an

extension of Ring and Apprendi. On direct appeal, Davila challenged the

constitutionality of Texas’s mitigation special issue based on Ring and Apprendi, so

any claim asserting that the State should prove the absence of mitigating evidence

was previously available, and raised, by Davila. (See Argument, Part IV below).

Davila’s claims could proceed to merits resolution. See Kunkle v. Texas, 543

U.S. 1039, 1040 (2004) (Stevens, J., concurring in denial of certiorari) (“I am

now satisfied that the Texas court’s determination was independently based

on a determination of state law, see Tex. Code Crim. Proc. art. 11.071 § 5(a),

and therefore that we cannot grant petitioner his requested relief.”).

Second, even in considering the exceptions to the abuse-of-the-writ

statute, the TCCA does not pass upon federal law. Determining whether the

facts underlying a claim were available with reasonable diligence or whether

a legal basis existed at the time of an inmate’s initial or prior state habeas

application is a matter of timing, not interpretation of federal law. See Moore

v. Texas, 122 S. Ct. 2350, 2353 (2002) (Scalia, J., dissenting in grant of stay).

Neither does deciding whether an inmate has provided the requisite level of

evidence to prove actual innocence of capital murder or of the death penalty

touch upon federal law. Id. at 2353–54. Namely, federal law does not dictate

whether Davila has met the “preponderance” or “clear and convincing” burdens

of proof mandated by Texas law for these inquiries. Tex. Code Crim. Proc. art.

11.071 § 5(a)(2)–(3). Similarly, whether an individual is factually innocent, or

whether a jury would have answered the submitted Texas-based “special

issues” in a different way are, again, separate from federal law. Id.

Third, the TCCA’s order makes clear that it was relying only on state

law—it found Davila failed to satisfy the abuse-of-the-writ bar and dismissed

the subsequent writ application “without reviewing the merits of the claims

raised.” Order at 3, Ex parte Davila, No. WR-75,356-03 (Tex. Crim. App. April

9, 2018). There is simply nothing in the TCCA’s order suggesting that federal

law was touched upon in dismissing this case. Cf. Foster, 136 S. Ct. at 1746

(holding that federal law intertwined with state-law procedural default ruling

where state court engaged in four pages of “Batson . . . analysis” before

applying doctrine of res judicata). As such, the TCCA’s citation for abuse of the

writ is independent of federal law.

As to adequacy, the Fifth Circuit has repeatedly found that the TCCA

regularly dismisses subsequent state habeas applications using the wellestablished abuse-of-the-writ bar. See, e.g., Balentine v. Thaler, 626 F.3d 842,

856–57 (5th Cir. 2010); Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.

2008); Kunkle v. Dretke, 352 F.3d 980, 988–89 (5th Cir. 2003) (“The abuse of

the writ doctrine has been consistently applied as a procedural bar in Texas

since 1994, long before its codification in Tex. Code Crim. Proc. art. 11.071 § 5,

and well before Kunkle filed his second state habeas petition in 1995.”).

Because Davila’s Brady and Hurst claims were dismissed via an adequate and

independent state law ground, this Court lacks jurisdiction to consider the

questions presented. Neither a stay nor a writ of certiorari should issue.

II.

Assuming Jurisdiction, Davila Fails to Advance a Compelling

Reason to Grant Review of his Brady Claim (Davila’s Claim 1).

Davila contends that the TCCA’s ruling that he “failed to make a prima

facie showing of a Brady violation” conflicts with this Court’s decisions. (Pet.

14-20). He argues that the prosecution failed to comply with its obligations

under Brady by not disclosing independent proof that he was “heavily

intoxicated” at the time of the capital crime. (Pet. 3). More specifically, he

asserts that his co-defendant, Garfield Thompson, could have verified that

Davila “was on a cocktail of narcotics, and acting like a person on P.C.P.” (Pet.

7). Davila also argues that the prosecution failed to disclose notes from a

detective’s pre-trial interview where Thompson spoke about “drug use,” and

how Davila “changed” on the day of the shooting and “started [to] be

uncontrollable and you could tell it in his eyes.” (Pet. 16). In support, Davila

relies on two written declarations made by Thompson in 2018 and on two

statements contained in the April 9, 2008, investigative notes of Detective

Thomas Boetcher of the Fort Worth Police Department. (State Writ Appendix

[SW-App.] 1, 2, 11). There is no compelling reason to grant review of the

TCCA’s ruling because Davila’s evidence and allegations do not establish a

Brady claim.

Due process prohibits “the suppression by the prosecution of evidence

favorable to an accused.” Brady, 373 U.S. at 87. To proceed on a Brady claim

in a successive state habeas application, Davila needed to make a prima facie

showing that (1) the prosecution suppressed or withheld impeachment or

exculpatory evidence, which was both (2) favorable and (3) material to either

trial or punishment. See Strickler v. Green, 527 U.S. 263, 280 (1999).

Suppressed evidence is material only “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433-34

(1995)). A reasonable probability is “’a probability sufficient to undermine

confidence in the outcome’” of the proceedings. United States v. Bagley, 473

U.S. 667, 682 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). Davila’s claim based on new declarations and previously-disclosed

police notes does not meet these standards.

Davila fails to make a prima facie showing of suppression.

Post-trial evidence does not implicate Brady.

Written declarations obtained from Thompson in 2018—nine years after

Davila’s trial in February 2009—fall outside the Brady framework. (SW-App.

1, 2). This Court and the Fifth Circuit have squarely held that Brady does not

extend to the postconviction context. District Attorney’s Office for the Third

Judicial District v. Osborne, 557 U.S. 52, 68-69 (2009) (explaining that a

defendant at trial is presumed innocent and may demand that the government

prove its case beyond reasonable doubt; however, once afforded a fair trial and

convicted, that presumption of innocence disappears); In re Rodriguez, 885

F.3d 915, 919 (5th Cir. 2018) (citing Estrada v. Healey, 647 F. App’x 335, 338

(5th Cir. 2016), and In re Masterson, 638 F. App’x 320, 327-28 (5th Cir. 2016)).

The prosecution had no duty to notify Davila of evidence that did not yet exist.

Evidence of intoxication was not suppressed.

Brady concerns “the discovery after trial of information which had been

known to the prosecution but unknown to the defense.” Lawrence v. Lensing,

42 F.3d 255, 257 (5th Cir. 1994) (emphasis added) (quoting United States v.

Agurs, 427 U.S. 97, 103 (1976)). Davila was certainly aware of whether he had

been drinking or using drugs on the night of the shooting, and could have

described any resultant intoxication to defense trial counsel. The prosecution

had no obligation under Brady to produce evidence or information already

known to Davila, or that he could have obtained by exercising reasonable

diligence. Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (government

need not “furnish a defendant with exculpatory evidence that is fully available

to the defendant through the exercise of reasonable diligence.”); Brown v. Cain,

104 F.3d 744, 750 (5th Cir. 1999) (prosecution had no obligation under Brady

to produce evidence of defendant’s intoxication and drug abuse history where

such evidence was known to him).

In any event, Davila’s ability to obtain information regarding his own

alleged state of intoxication was not dependent on a disclosure by the

prosecution. Davila was certainly aware that Garfield Thompson was with him

at the time of the shootings. Even if Davila did not tell counsel of Thompson’s

presence (which is highly unlikely), on April 9, 2008, Davila gave three

custodial statements to police regarding the capital offense. (29 Reporter’s

Record [RR] at State’s Exhibits [SX] -118, -119, & -120). In his second

statement (SX-119), Davila identifies “Garfield” as the person who was with

him, but claimed that Garfield did the shooting. (29 RR at SX-119, pg. 2). In

his third statement (SX-120), Davila provides more details regarding the

capital crime including that Davila was driving, that Garfield was with him in

the car, and that Davila did all the shooting. (29 RR at SX-120). Importantly,

there is no mention in any of Davila’s custodial statements that either of them

had been drinking or doing drugs, much less that Davila was dangerously

intoxicated at the time of the shooting, as currently alleged. (See 29 RR at SX118 to SX-120).

Davila additionally fails to make a prima facie showing that the

prosecution suppressed Detective Boetcher’s notes from April 2008. (SW-App.

11). Davila’s trial counsel had possession of the notes according to references

by both defense counsel. During her cross-examination of Detective Johnson,

defense counsel Joetta Keene relied upon a set of hand-written notes which she

had received in discovery and determined that they belonged to Detective

Boetcher because they did not belong to Detective Johnson, and Detective

Boetcher was the only other interviewing detective involved in this case. (17

RR 244-46). And during voir dire examination of Detective Boetcher, defense

counsel Robert Ford mentioned the detective’s notes and asked him if they

would help refresh his memory. (21 RR 15-16). Mr. Ford later commented on

the passage from these notes indicating that Davila was given water and taken

to the bathroom by Detective Boetcher. (21 RR 17-18). This last comment

directly matches up to a notation contained in the notes that Davila maintains

were not disclosed before trial. (SW-App. 11, pg. 21). Detective Boetcher’s notes

were thus in the possession of Davila’s defense trial counsel and they could,

and did, make use of the information contained therein.

Because Brady has three requisite showings and Davila fails to make a

prima facie showing of suppression, certiorari review should be denied.

Davila also fails to make a prima facie showing that the

allegedly suppressed evidence of intoxication is both

favorable and material.

To establish a Brady violation, the suppressed evidence must be

favorable to Davila, either because it is exculpatory or because it is impeaching.

Strickler, 527 U.S. at 281-82. Favorable evidence is any evidence, exculpatory

or impeachment, that “if disclosed and used effectively, [ ] may make the

difference between conviction and acquittal.” Bagley, 473 U.S. at 676. And

evidence is material “only where there exists a ‘reasonable probability’ that,

had the evidence been disclosed, the result at the trial would be different.” Id.

at 682. A “reasonable probability” is one sufficient to undermine confidence in

the outcome. Id.; Kyles, 506 U.S. at 437. Davila demonstrates neither.

Davila’s evidence fails to show he was intoxicated.

Thompson’s 2018 declaration

On February 8, 2018, Davila obtained an inmate declaration from

Thompson which states that:

On the date of 4-6-2008 I was with Mr. Davila when the shooting

happen and I know for a fact he was on hard drug because he was

doing P.C.P. weed, E-Pill syrup in I saw him doing them when we

were riding together. That same week I seen him take 5 or six EPills a day because I did it with him. And I know for fact he was

on P.C.P. because I been around a lot of people that was on the

drug and he was acting that very same way. And he didn’t mean

to shoot that lady or that 5 year old little girl. He was only trying

get one person witch was Jerry Stevenson

(SW-App. 1). Even if taken at face-value, nothing in this declaration indicates

that Thompson told the police or any other law enforcement about Davila being

on drugs when he shot and killed Queshawn and Annette Stevenson.

In contrast, Thompson gave an extensive statement to the police on April

9, 2008, in which he described the shooting in detail along with their actions

leading up to the shooting. (SW-App. 4). Despite vividly detailing that day’s

events, Thompson makes no mention whatsoever that Davila had used any

drugs or was acting under the influence of any substance. Thus, Thompson’s

temporally proximate statements do not support his late-date remembrance.

There is also no reason to believe that Thompson would have testified at

Davila’s trial since he was also facing criminal charges, much less testified to

something different than what was in his statement to police.

Notes from Detective Boetcher’s interview

Davila argues that the Fort Worth Police Department “was aware that

Garfield Thompson could verify Davila’s intoxication.” (Pet. 9). He states that

“[d]uring a file review at the district attorney’s office,” Davila’s current

attorneys reviewed handwritten notes made by Detective Boetcher during his

April 9, 2008, interview with Thompson “which suggest that police were aware

of Davila’s drug use, but simply failed to note them in their report.” (Pet. 9). In

context, Detective Boetcher’s notes state the following:

[Garfield Thompson] entered room advised of murder warnings by

Brett he started crying said he aint a bad person. Told Brett to get

background from Garfield first. Garfield said he understood his

right & would talk to me. He went into family and drug use.

Then started talking about case that warrants are for. He was told

didn’t want to discuss that case.

He went on to say that he knew Truman [Davila] since he was

small child. He said day of offense he saw Truman asked for a ride

to get something to eat. He said Truman wanted him to dive & they

went to chicken place. He said Truman changed started be

uncontrollable and you could tell it in his eyes. He said he didn’t

know there was a gun in car until they made u turn inside apts.

He said he was afraid of Truman cause if he would do that to a

child he thought he kill him.

(SW-App. 11, pgs. 23-24) (emphasis added). This evidence does not support

Davila’s claim of being intoxicated at the time of the capital offense.

First, there is nothing specific in these notes demonstrating that

Thompson told Detective Boetcher that Davila was under the influence of

drugs or alcohol when he shot and killed Queshawn and Annette Stevenson.

Second, the statement that Thompson “went into family and drug use” is found

in the portion of the notes where the detectives were getting background

information about Thompson and before they begin discussing the day of the

fatal shootings. (SW-App. 11, pg. 23). Third, while Detective Boetcher wrote

that Thompson “said Truman [Davila] changed be uncontrollable and you

could see it in his eyes” (id.), those terms do not automatically indicate that

Thompson told the police that not only was the Davila under the influence, but

that he was under the influence of the very specific drugs described in

Thompson’s February 8, 2018, remembrance. (Compare id. with SW-App 1).

Thompson’s statement that Davila “changed,” became “uncontrollable,”

and “you could see it in his eyes” is just as likely a description of the apparent

rage Davila felt as a Blood about the “crabs” or Crips being in his

neighborhood—sentiment articulated in Thompson’s contemporaneous 2009

statement to police. (SW-App. 4). Also, Davila’s third statement to police

evidenced that the shooting was done in retaliation against the Polywood

Crips. (29 RR at SX-120). According to Davila, the Crips tried to run his mother

off the road when she was pregnant, they tried to talk with Davila’s sister, they

previously shot Davila in the arm, and they kept “mugging” his car. (Id., pg.

1). Davila stated that on the night of the shootings, the Crips had walked up

and popped the trunk of his car when he drove down the street. (Id.). Davila

stated that he told Thompson “they aint fixing to do me like this, cause this is

my hood” and that Davila was going to “have a shoot em up.” (Id.). Considered

in its entirety, Davila’s evidence does not show that he was intoxicated at the

time of the shootings and instead that his conduct was the result of intentional,

deliberate action.

Even if Davila had been intoxicated, the evidence is

not favorable or material.

Initially, Davila argues that evidence of intoxication could have been

favorable and material to the defense at guilt/innocence to support his claim

that he did not intend to harm anyone other than Jerry Stevenson. (Pet. 16).

To the contrary, in his third statement to police, Davila stated that he intended

to shoot Stevenson and three other guys at the scene. (See 29 RR at SX-120).

Davila stated that he went “to a shoot ‘em up”; that “the fat dude was in the

middle of the street” and “[t]he other 3 were on the porch”; that he “wasn’t

going to give them a chance to get a gun”; that he “let off 10 rounds”; and that

he “was trying to get the guys on the porch and . . . the fat dude [in the middle

of the street].” (29 RR at SX-120, pgs. 1-2). There was no mention by Davila of

his been intoxicated at the time of the shooting. Regardless, even if such

evidence existed, it would likely be inadmissible during the guilt/innocence

phase of trial. As Davila acknowledges, under Texas law “[v]oluntary

intoxication does not constitute a defense to the commission of crime.” Tex.

Penal Code § 8.04(a). (Pet. 26). Davila cannot show a reasonable likelihood of

a different result where the complained-of, omitted evidence is inadmissible.

Davila instead proposes that his evidence is material to the punishment

phase of trial. Texas law provides that “[e]vidence of temporary insanity caused

by intoxication may be introduced by the actor in mitigation of penalty

attached to the offense for which he is being tried.” Tex. Penal Code § 8.04(b).

However, Davila cannot show a reasonable likelihood of a different outcome at

punishment based on his evidence.

The prosecution presented a formidable case at punishment which

included evidence that Davila (1) attempted to escape from jail while awaiting

trial and seriously injured a detention officer in the process, (2) committed an

aggravated robbery and an additional murder only two days before this capital

offense, and (3) had previously been convicted and sentenced to prison in 2006

for the offense of burglary of a habitation. The State also introduced evidence

of a traffic stop where a loaded gun and marijuana were found in Davila’s car

and testimony about Davila’s presence as a security threat in the jail.

For the mitigation case, the defense offered testimony from

Davila’s father, sister, mother, maternal aunts, and a psychologist,

Dr. Emily Fallis. In summary, they testified that Davila had been

raised solely by a teenage mother, with his alcoholic father having

been incarcerated for murder since he was very young. Davila’s

mother told him that he was conceived when his father sexually

assaulted her. She was neglectful, abusive, and hateful towards

Davila and his sister, and even made them leave the house as

teenagers. Davila’s sister testified about physical fights she had

with their mother.

Davila, 650 F.App’x at 864. While evidence that Davila was intoxicated on the

night of the capital crime may be viewed as mitigating, such evidence might

also be construed by the jury as double-edged. See Boyle v. Johnson, 93 F.3d

180, 187-88 (5th Cir. 1996) (recognizing the double-edged quality of evidence

showing the defendant’s voluntary intoxication); Kelly v. Lynaugh, 862 F.2d

1126, 1132 (5th Cir. 1988) (recognizing that evidence of the defendant’s

voluntary intoxication could prove offensive to the jury); see also Hopkins v.

Cockrell, 325 F.3d 579, 586 (5th Cir. 2003) (recognizing the double-edged

quality of evidence of defendant’s abuse of alcohol and drugs). Davila can

establish no reasonable likelihood of a different result had the jury heard his

weak evidence of voluntary intoxication.

Accordingly, the TCCA’s determination that Davila failed to make a

prima facie showing under Brady showing is fully consistent with this Court’s

established precedent and does not warrant certiorari review.

III.

Davila Presents No Compelling Reason to Grant Review of the

TCCA’s Denial of His Motion for Leave to File a Writ of

Prohibition (Davila’s Claim 2).

In seeking certiorari review, Davila alleges that his due process rights

have been violated by the Tarrant County Criminal District Attorney’s Office’s

seeking, and obtaining, an execution date because his former trial judge

Sharen Wilson is now the elected Criminal District Attorney for Tarrant

County. (Pet. 20-26).7 In the lower court, Davila sought disqualification of the

Tarrant County Criminal District Attorney’s Office, but presented no direct

authority mandating the office’s removal from their Texas statutory duty to

represent the State in criminal cases. The TCCA denied without written order

his motion for leave. (App. 2). Davila now argues that the Court should grant

certiorari and “establish a due process framework for the disqualification of a

prosecutor.” (Pet. 26). The Court has no reason to accept Davila’s invitation.

The crux of Davila’s claim is that the Criminal District Attorney had a

conflict of interest based on her changing roles in his case from trial judge to

prosecutor and that the conflict prevented her office from continuing to

prosecute him by seeking an execution date. Even if Davila could show a

conflict (which he does not), he fails to show that the complained-of action

constitutes prosecution, much less that it evidences a due process violation.

The trial court’s setting an execution date does not

implicate due process concerns.

As the Fifth Circuit has determined, “[t]he setting of a date for execution

is not a critical part of the sentencing proceedings, but is rather a ministerial

Ms. Wilson took office on January 1, 2015, when Davila’s case was

pending on federal habeas review.

act implementing the judgment earlier entered.” Belyeu v. Johnson, 82 F.3d

613, 615 (5th Cir. 1996). Davila cannot dispute that he is challenging only a

ministerial matter. To prevail on a writ of prohibition, Davila needed to show

(1) that the act he wished the higher court to restrict does not involve a

discretionary or judicial decision, and (2) that he had no adequate remedy at

law. In re Medina, 475 S.W.3d 291, 297 (Tex. Crim. App. 2015) (citations

omitted). “The ministerial-act requirement is satisfied if the relator can show

a clear right to the relief sought because the facts and circumstances dictate

but one rational decision under unequivocal, well-settled, and clearly

controlling legal principles.” Id. at 298 (citing In re Bonilla, 424 S.W.3d 528,

533 (Tex. Crim. App. 2014)). Davila does not present any authority supporting

his contention that the trial court’s ministerial act of setting an execution date

to carry out his lawfully imposed sentence of death implicates due process

concerns. Nor could he.

Davila fails to demonstrate any conflict of interest.

Under Texas law, the elected district or county attorney “shall represent

the state in all criminal cases in the district courts of h[er] district and in

appeals therefrom, except in cases where [s]he has been, before h[er] election,

employed adversely.” Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim. App.

2016) (emphasis added); Landers v. State, 256 S.W.3d 295, 303 (Tex. Crim.

App. 2008) (citing Tex. Code Crim. Proc. art. 2.01). The TCCA, relying on Texas

statutory authority, has held that a prosecuting attorney is statutorily

disqualified if she has formerly represented a defendant in the “same” criminal

matter because there is an obvious and actual conflict of interest which would

create a due process violation. Landers, 256 S.W.3d at 304; Ex parte Spain, 589

S.W.2d 132, 134 (Tex. Crim. App. 1979). However, where a prosecuting

attorney has not represented a defendant in any way or at any stage of a

current prosecution, there is no conflict and the prosecuting attorney is not

disqualified. Buntion, 482 S.W.3d at 77. Davila does not claim that Criminal

District Attorney Sharen Wilson ever represented him in this criminal matter

or in any criminal matter.

The TCCA, relying on both the Texas Constitution and Texas statutory

authority, has held that a judge is disqualified where he actively participated

in a defendant’s case as a prosecutor. See State v. Metts, 510 S.W.3d 1, 4-8 (Tex.

Crim. App. 2016). Texas’s view is consistent with this Court’s recent decision

in Williams v. Pennsylvania that due process compels the recusal of a judge

whose previous prosecutorial participation in a case creates a likelihood of bias

too high to be constitutionally tolerated. Williams, 136 S. Ct. 1899, 1905 (2016)

(when a judge earlier had significant, personal involvement in the case as a

prosecutor, there is an impermissible risk of actual bias in a critical decision

regarding the defendant's case which violates due process). Such bias concerns

do not arise in reverse because the prosecutor’s role does not involve making

critical decisions requiring a judge’s neutrality.

Davila has not presented any authority which prohibits a former trial

judge in a case from representing the State in postconviction proceedings after

becoming the district attorney. (See Pet. 22-23). The cases he cites are

inapposite as they address the reverse situation where the judge resolved

issues after acting as the prosecutor. E.g., In re Murchison, 349 U.S. 133, 13639 (1955) (due process violation found in a “judge-grand juror” situation where

a trial judge acted as “complainant, indicter and prosecutor” before presiding

over a proceeding); Horne v. Polk, 394 P.3d 651, 657 (Az. 2017) (due process

violated where a single agency head made an initial determination of a legal

violation, participates materially in prosecuting the case, and made the final

agency decision). Additionally, Davila does not explain or cite any authority on

how a trial court judge making in-court rulings converts them into an

“interested party” for postconviction purposes.

Davila also contends that representation by the Tarrant County

Criminal District Attorney’s Office was an ethical violation. (Pet. 24). Such a

claim presents no violation of a federal constitutional right and is not

cognizable in this Court. In any event, elected Texas district attorneys and

their assistant prosecutors are subject to the rules of disciplinary conduct, “but

they must police themselves at the trial court level because of their status as

independent members of the judicial branch of government.” In re Cox, 481

S.W.3d 289, 293 (Tex. App. – Fort Worth 2015); State ex rel. Eidson v. Edwards,

793 S.W.2d 1, 6 (Tex. Crim. App. 1990). That said, the TCCA has rejected the

Texas Disciplinary Rules of Professional Conduct as legal authority for

disqualifying an elected district attorney from representing the State in a

criminal case. Landers, 256 S.W.3d at 305-06; State ex rel. Young v. Sixth

Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 213 (Tex. Crim.

App. 2007); State ex rel. Eidson, 793 S.W.2d at 6-7.

Finally, within this same ground, Davila notes that his former state

habeas counsel, David Richards, is now employed by the Tarrant County

Criminal District Attorney’s Office. (Pet. 24, n.6). Under Texas case law and

disciplinary rules, when an assistant district attorney has previously

represented a defendant in a particular proceeding, only that attorney is

disqualified from assisting in the case’s continued prosecution while the elected

prosecutor and her other assistants are not disqualified. Scarborough v. State,

54 S.W.3d 419, 424 (Tex. App. – Waco 2001, pet. refused) (citing State ex rel.

Eidson, 793 S.W.2d at 5-6)); Tex. Disciplinary R. Prof’l Conduct 1.10(e)(1).

Thus,

the

only

disqualification

created

Mr.

Richards’s

former

representation of Davila is that Mr. Richards himself may not participate on

the State’s behalf in this case. In January 2015, after Mr. Richards began his

employment, the Tarrant County Criminal District Attorney’s Office took

specific steps to separate or “wall off” Mr. Richards to eliminate any

opportunity for an exchange of confidential information. (See Real Party in

Interest’s Response to Petition for Writ of Prohibition in Ex parte Davila, No.

WR-75,356-02). Davila presents no authority disqualifying an entire criminal

district attorney’s office from representing the State due to a single assistant

criminal district attorney’s prior representation of a defendant.

Put simply, Ms. Wilson’s transition from trial judge to elected prosecutor

(unlike transitioning from prosecutor to trial judge) does not raise an

impermissible risk of actual bias in a critical decision regarding Davila’s case.

Thus, the Tarrant County Criminal District Attorney’s Office’s representation

of the State of Texas in seeking, and obtaining, a scheduled date for Davila’s

execution did not violate Davila’s right to Due Process.

IV.

Assuming Jurisdiction, Davila Presents No Compelling Reason

to Grant Review of His Claim Challenging the Constitutionality

of Texas’s Capital Sentencing Scheme (Davila’s Claim 3).

Davila contends that the Texas capital sentencing procedure is

unconstitutional because the mitigation special issue does not assign a burden

of proof to the State to disprove sufficient mitigating circumstances. (Pet. 28).

By his account, a jury’s negative answer to the mitigation special issue is a

prerequisite to imposition of a death sentence and, therefore, a beyond-areasonable-doubt burden of proof is required under Hurst v. Florida as well as

this Court’s earlier decisions in Ring v. Arizona and Apprendi v. New Jersey.

(See Pet. 26-34). However, the TCCA correctly dismissed Davila’s claim and

this Court should deny certiorari review.

In Hurst, this Court considered the constitutionality of Florida’s hybrid

capital sentencing procedure in which the jury rendered an advisory verdict

regarding the death penalty, but only the judge could impose a death sentence

after weighing the aggravating and mitigating circumstances. Hurst, 136 S.Ct.

at 620. The Court concluded that, under a defendant’s Sixth Amendment right

to an impartial jury, a death sentence must be based on a jury’s verdict and

not on a judicial fact finding. Id. at 624.

In Ring, this Court considered Arizona's capital sentencing procedure

where the trial judge alone determined the presence or absence of the

aggravating factors required to impose the death penalty. Ring, 536 U.S. at

588. The Court concluded that allowing the sentencing judge, sitting without

a jury, to find the aggravating circumstance necessary for imposing a death

sentence violates the Sixth Amendment. Id. at 609.

Those decisions do not apply to Texas’s procedure. The critical factfinding decisions are made by the jury when the jury find the defendant guilty

of murder and an aggravating circumstance under Tex. Penal Code § 19.03, in

this case a multiple murder in the same criminal transaction, and when the

jury answers the special issues. See Tex. Code Crim. Proc. art. 37.071, §§ 2(b)(12), (e)(1). Its procedure does not give the judge any leeway in sentencing a

capital murder defendant other than in accordance with the jury’s decisions.

See Tex. Code Crim. Proc. art. 37.071, § 2(g).8 Therefore, Texas’s death penalty

scheme does not violate the Sixth Amendment’s requirement that a death

sentence be based on a jury’s verdict. See Hurst, 136 S.Ct. at 624.

In fact, the Fifth Circuit specifically addressed this same claim in

denying the Davila’s request for a COA:

Davila, in a letter directing us to recent relevant authority, cites to the

decision in Hurst v. Florida, – U.S. –, 136 S.Ct. 616, 193 L.Ed.2d 504

(2016). There, the Supreme Court held that Florida's capital sentencing

scheme violated Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.

Under the Florida scheme, a jury makes an advisory verdict while the

judge makes the ultimate factual determinations necessary to sentence

a defendant to death. Hurst, 136 S.Ct. at 621-22. The Court held that

procedure was invalid because it “does not require the jury to make the

critical findings necessary to impose the death penalty.” Id. at 622.

Davila recognizes that Texas does require jurors to make all factual

determinations necessary for a death sentence. His argument is that the

scheme is unconstitutional because jurors do not have to find the absence

of mitigating circumstances beyond a reasonable doubt. Our precedent

precludes this claim. Rowell [v. Dretke], 398 F.3d [370,] 378 [(5th Cir.

2005)]. Reasonable jurists would not debate the district court’s

resolution, even after Hurst. See Avila v. Quarterman, 560 F.3d 299, 315

(5th Cir. 2009).

Davila, 650 Fed. Appx. at 872-73. This Court denied certiorari review when

Section 2(g) provides: “If the jury returns an affirmative finding on each

issue submitted under Subsection (b) and a negative finding on an issue submitted

under Subsection (e)(1), the court shall sentence the defendant to death. If the jury

returns a negative finding on any issue submitted under Subsection (b) or an

affirmative finding on an issue submitted under Subsection (e)(1) or is unable to

answer any issue submitted under Subsection (b) or (e), the court shall sentence the

defendant to confinement in the Texas Department of Criminal Justice for life

imprisonment without parole.” Tex. Code Crim. Proc. art. 37.071, §2(g).

Davila sought to appeal the issue, Davila, 137 S. Ct. 810 (2017), and the Court

should deny review again.

In Apprendi, this Court considered whether New Jersey’s hate-crime

statute violates the Due Process Clause by allowing the punishment for a

second-degree felony to be enhanced to the range of a first-degree felony based

upon a trial court finding of racial motivation. Apprendi, 530 U.S. at 491-92.

The Court held that, other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490.

That decision has never been applicable to the Texas capital sentencing

procedure because in Texas, the jury’s answer to the mitigation special issue

cannot increase a defendant’s punishment beyond the prescribed statutory

range; rather, it can only reduce it to the statutory-minimum sentence of

confinement for life. See Tex. Code Crim. Proc. art. 37.071, §2(g). Nothing in

Hurst requires that lack of mitigation entitling a defendant to a minimum

sentence requires proof beyond a reasonable doubt; only that the jury must

make that critical finding. See Hurst, 136 S.Ct. at 624. Thus, there is no need

for the Court to accept Davila’s invitation to invalidate Texas’s long-standing

capital sentencing procedure simply because the mitigation special issue does

not assign a beyond a reasonable doubt burden of proof.

Davila additionally argues the Court should grant review because “[a]

split has arisen” among the states that have analyzed their capital sentencing

schemes in light of Hurst and come to different conclusions regarding its

holding. (Pet. 31). However, the cases cited by Davila are inapposite because

they involve states that require a jury to weigh aggravating and mitigating

circumstances before a death sentence can be imposed. (Pet. 32-33) (citing

Evans v. Dorethy, 833 F.3d 758, 761 (7th Cir. 2016); Rauf v. State, 145 A.2d

430, 433-34 (Del. 2016); State v. Whitfield, 107 S.W.3d 253, 261 (Mo. 2003);

McLaughlin v. Steele, 173 F.Supp.3d 855 (E.D. Mo. 2016)). The Texas

procedure differs because a defendant (already death-eligible upon conviction)

becomes death-selected after the jury affirmatively answers the future

dangerousness and parties special issues beyond a reasonable doubt. See Tex.

Code Crim. Proc. art. 37.071, §2(b), (c). Texas’s mitigation instruction—which

is only answered if the other issues have been answered affirmatively—is

about reducing that death sentence down to the minimum life sentence. See

Tex. Code Crim. Proc. art. 37.071 §2(e)(1). Thus, Davila should be denied

certiorari on this basis.9

Alternatively, the TCCA correctly dismissed Davila’s claim as an abuse

of the writ because, rather than establish a new rule in Hurst, this Court merely

applied the law established in Apprendi and Ring to the new facts. Since Apprendi

and Ring were decided long before Davila committed the murders in 2008, the TCCA

was not required to consider this claim. See Ex parte McGinn, 54 S.W.3d 324, 331

(Tex. Crim. App. 2000); Tex. Code Crim. Proc. art. 11.071 §5(a).

The Court Should Deny a Stay of Execution.

As stay of execution “is not available as a matter of right, and equity

must be sensitive to the State’s strong interest in enforcing its criminal

judgments without undue interference from the federal courts.” Hill v.

McDonough, 547 U.S. 573, 584 (2006) (citing Nelson v. Campbell, 541 U.S. 637,

649–50 (2004)). Rather, the inmate must satisfy all of the requirements for a

stay, including a showing of a significant possibility of success on the merits.

Id. (citing Barefoot v. Estelle, 463 U.S. 880, 895–96 (1983)). When the requested

relief is a stay of execution, a court must consider:

(1) whether the stay applicant has made a strong showing that he

is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay

will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481

U.S. 770, 776 (1987)). This includes consideration of “the State’s strong interest

in proceeding with its judgment” and “attempt[s] at manipulation.” Nelson, 541

U.S. at 649–50 (citing Gomez v. U.S. Dist. Court for Northern Dist of California,

503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute

nature of an application to stay execution in deciding whether to grant

equitable relief.”)). Because there is no chance of success for Davila’s claims,

because there is a strong interest in enforcing this conviction, and because this

is a last-minute filing, a stay should be denied.

Davila has not made a strong showing that he is likely to

succeed on the merits.

As demonstrated above, the Court is without jurisdiction to consider the

merits of Davila’s Brady and Hurst claims. (Argument, Part I). Jurisdictional

bar notwithstanding, all three of Davila’s claims are without merit. (Argument,

Parts II to IV). Because relief on the merits is so clearly lacking, Davila is not

entitled to a stay of execution.

Davila was dilatory in advancing his Brady claim.

The State moved for an execution date on October 31, 2017. Following a

hearing on January 17, 2018, the convicting court set Davila’s execution for

April 25, 2018, so Davila has known about his execution date for three months

now. Thus, he “cannot excuse his delaying until the eleventh hour on the

ground that he was unaware of the State’s intention to execute him.” Harris v.

Johnson, 376 F.3d 414, 417 (5th Cir. 2004). “By waiting as long as he did,

[Davila] leaves little doubt that the real purpose behind his claim is to seek a

delay of his execution.” Id.

In his Motion for Stay of Execution, Davila argues that he has not been

dilatory in asserting his Brady claim because it “only came to light in February

of this year when Davila’s co-defendant notified counsel that he could verify

Davila’s extreme intoxication at the time of the shooting.” (Motion at 2). To the

contrary, Davila could have raised a claim based on his own purported

intoxication long ago. In his subsequent state habeas application, Davila states

that “[a] few years ago the District Attorney’s office provided undersigned

counsel with various documents including the Notes taken by Detective

Boutcher [sic] in this case.” (Sub. Writ Application, pg. 23). Davila did not

provide the specific date of production, but said it occurred after his federal

habeas application was filed April 14, 2014. (Id., n. 5). Inexplicably, Davila

waited until February 8, 2018, to obtain a declaration from Thompson to

explain the purported significance of the Detective’s April 9, 2008, notes.

Moreover, with the exception of the 2018 inmate declarations recently

obtained by Davila, his Brady claim does not rely on new factual matters. As

argued above, Detective Boetcher’s investigate notes were disclosed to defense

trial counsel prior to trial and Davila offers nothing but speculation to show

otherwise. (Argument, Part II). Waiting to file his successive state habeas

petition claims until March 27, 2018, with less than one month remaining

before his April 25th scheduled execution when the claim was available years

ago is dilatory, and it must be held against Davila. See Hill, 547 U.S. at 584.

“The federal courts can and should protect States from dilatory or speculative

suits[.]” Id. at 585. In short, Davila’s Brady claim “could have been brought

[long] ago [and t]here is no good reason for this abusive delay.” Gomez, 503

U.S. at 654.

The public has a strong interest in seeing the state court

judgment carried out.

Further, “[b]oth the State and the victims of crimes have an important

interest in the timely enforcement of a sentence.” Hill, 547 U.S. at 584. Davila’s

challenges to his death sentence have persisted since he was convicted in

February 2009, and he seeks further unjustifiable delay through his litigation

here. Indeed, he cannot overcome the strong presumption against granting a

stay or demonstrate that the balance of equities entitles him to a stay of

execution.

Under the circumstances of this case, a stay of execution would be

inappropriate.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari and

application for stay of execution should be denied.

Respectfully submitted,