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 2006-03

Davis, Brian Edward ( 2006 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    WR-40,339-06

    EX PARTE BRIAN EDWARD DAVIS


    ON APPLICATION FOR WRIT OF HABEAS CORPUS

    CAUSE NO. 616522 IN THE 230
    TH DISTRICT COURT

    HARRIS COUNTY

      
    Per Curiam.


    O R D E R



    This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure, Article 11.071 , section 5.

    Applicant was convicted of the offense of capital murder. The jury answered the special issues in such a manner that a sentence of death was imposed on June 16, 1992. This Court affirmed applicant's conviction and sentence on direct appeal. Davis v. State, 961 S.W.2d 156 (Tex. Crim. App. 1998). Applicant's initial application for a writ of habeas corpus was denied. Ex parte Davis, No. WR-40,339-01 (Tex. Crim. App. March 10, 1999)(unpublished). Applicant filed three more applications for a writ of habeas corpus, which were all dismissed for failing to satisfy the requirements for a subsequent writ under section 5 of Article 11.071. Ex parte Davis, No. WR-40,339-04 (Tex. Crim. App. May 7, 2002)(unpublished); Ex parte Davis, No. WR-40,339-03 (Tex. Crim. App. April 29, 2002)(unpublished); Ex parte Davis, No. WR-40,339-02 (Tex. Crim. App. Sept. 13, 2000(unpublished). Applicant filed another application raising a claim under Atkins v. Virginia, 536 U.S. 304 (2002). That application satisfied the requirements of section 5, and the case was remanded to the trial court for further proceedings. Ex parte Davis, No. WR-40,339-05 (Tex. Crim. App. Aug. 9, 2002)(unpublished). We have today denied relief in that applications.

    In his current writ application, applicant presents a single allegation: that the nullification instruction in the charge to the jury did not allow the jury to consider and give effect to mitigating evidence presented at trial. In two cases the Supreme Court held the correct standard of review for such a claim had not been applied. See Tennard v. Dretke, 124 S. Ct. 2562 (2004), and Smith v. Texas, 125 S. Ct. 400 (2004). Thus applicant has met the requirements for consideration of a claim the basis of which was not available at the time his initial application was filed. Tex. Code Crim. Proc., art. 11.071 § 5(a)(1). This case is remanded to the trial court for consideration of applicant's claim. Id. at § 6(b).

    IT IS SO ORDERED THIS THE 29th DAY OF MARCH , 2006.

    Do Not Publish