Alix, Franklin Dewayne ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR-50,786-02 & WR-50,786-03

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EX PARTE FRANKLIN DEWAYNE ALIX

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 787457 FROM THE 174^TH DISTRICT COURT OF HARRIS COUNTY

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Per Curiam.  

ORDER

This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5.

Applicant was convicted of capital murder on September 2, 1998. On direct appeal we affirmed the conviction and sentence. Alix v. State, No. 73,210 (Tex.Crim.App. March 13, 2000). On June 27, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Alix, No. WR-50,786-01 (Tex.Crim.App. December 19, 2001). Applicant then filed this subsequent application alleging constitutional errors in his trial stemming from improper procedures in the Houston

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  Police Department (HPD) Crime Lab. We determined that the application met the requirements for consideration of subsequent claims under Article 11.071, Section 5(a)(1), and remanded the case to the convicting court for resolution of the claims. The convicting court reviewed exhibits submitted by the parties and entered findings of fact.

Applicant was found guilty of the capital murder of Eric Bridgeford. Applicant engaged in a six-month-long violent crime spree that included the capital murder of Eric Bridgeford. The events on the evening that led to the capital murder of Eric began when applicant approached Eric's sister. The jury heard of the aggravated robbery of Eric's sister, her kidnapping and forced submission to applicant's aggravated sexual assaults before applicant forced her to take him to Eric's room to steal items. There applicant culminated this episode by murdering Eric Bridgeford, taking items from Eric's room, and stealing a car that belonged to one of Eric's friends. During the punishment phase of trial, the State presented extraneous-offense evidence of three capital murders, two attempted capital murders, eight aggravated robberies, one robbery, and two aggravated sexual assaults accompanied by four aggravated kidnappings. During the presentation of evidence about one of these capital murders, an HPD Crime Lab chemist testified that she had recovered DNA, which matched applicant, from a piece of gauze worn by the perpetrator. The wife of the victim of this extraneous capital murder also testified and made an in-court identification of applicant as the person who had murdered her husband.

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   After questions about the procedures of the HPD Crime Lab surfaced, evidence from this case, among others, was retested. The retesting did not confirm or negate the testimony of the chemist as to this extraneous offense. Based on this ambiguous result, applicant filed this subsequent application for writ of habeas corpus.

On remand of this subsequent application, the convicting court found that, while applicant may have been a contributor to the pertinent DNA, the testimony of the chemist "should be deemed unreliable." Applicant argues that this amounts to exculpatory evidence that was not divulged and to prosecutorial misconduct in using false testimony and urges that he is therefore entitled to a new trial on punishment. The State has a duty to divulge exculpatory or impeachment evidence; failure violates a defendant's right to due process. Brady v. Maryland, 373 U.S. 83 (1963); Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2003). When the State uses testimony it knows to be false, the defendant is denied due process. Napue v. Illinois, 360 U.S. 264 (1959); Ex parte Adams, 768 S.W.2d 281, 292 (Tex.Crim.App. 1989). On collateral review of such claims, it is the burden of the applicant to not only show there is a material violation, Ex parte Dutchover, 779 S.W.2d 76 (Tex. Crim. App. 1989), but that the error contributed to his conviction or sentence. Brecht v. Abrahamson, 507 U.S. 619 (1993).

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After reviewing all of the evidence presented in the trial of this case, we cannot say that, had evidence to impeach the testimony of the HPD chemist as to this one extraneous capital murder been divulged, there is a reasonable probability that the sentence would have been different. We also conclude, beyond a reasonable doubt, that the introduction of the testimony of the HPD chemist, even if false, did not contribute to the punishment. Therefore, applicant's request for relief is denied.

After the convicting court had resolved the issues upon which the case was remanded, applicant filed another application for writ of habeas corpus entitled "Petitioner's Amended Second Supplemental Habeas Corpus Petition and Motion to Conduct Discovery." The convicting court properly identified this as a subsequent application and forwarded it to this Court to determine if it met the requirements of Article 11.071, section 5, for consideration of the claims. We have reviewed the amended application and find that it does not meet the requirements of Article 11.071, Section 5; the amended second supplemental application is dismissed as an abuse of the writ.

IT IS SO ORDERED THIS THE 27^TH DAY OF SEPTEMBER, 2006.

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