Williams, Ex Parte Arthur Lee ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

  NO. AP-76,455

---

EX PARTE ARTHUR LEE WILLIAMS

---

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 354897-A IN THE 208^TH DISTRICT COURT

HARRIS COUNTY  

---

           Per Curiam.                       

O R D E R

           This is an initial application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.07.  

           Applicant was convicted in February 1983 of the offense of capital murder. 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. Williams v. State, 682 S.W.2d 538 (Tex. Crim. App. 1984). The Supreme Court granted certiorari and vacated the judgment on a voir dire issue. Williams v. Texas, 479 U.S. 1074 (1987). This Court remanded the case to the trial court for a hearing in accordance with Batson v. Kentucky, 476 U.S. 79 (1986). This Court then affirmed applicant’s conviction and sentence on appeal after remand. Williams v. State, 804 S.W.2d 95 (Tex. Crim. App.), cert. denied, 501 U.S. 239 (1991).

           Applicant’s initial habeas application was filed in the convicting court on December 27, 1993. His application was received in this Court on January 22, 2009. We remanded applicant’s writ to the trial court so that it could address specific allegations that the trial court had failed to address in its original findings and conclusions. Ex parte Williams, No. WR-71,404-01(Tex. Crim. App. Apr. 29, 2009)(not designated for publication). The case has now been returned to this Court.   

            This Court has determined that the case should be filed and set on the following issues:  

Claim 4, subsection 1: Counsel failed to object when the prosecutor told veniremen that the term “probability,” as applied to the special issue on future dangerousness, could mean “one in a million.”

Claim 4, subsection 4:Counsel failed to challenge for cause venireman Risinger, who would automatically give an affirmative answer to the special issue on deliberateness if he convicted the defendant of murder.

Claim 11, subsection 6:Counsel called witnesses whose testimony established that applicant knew that [the victim] was a police officer.

           Claim 11, subsection 16:    Counsel failed to object to the prosecutor’s argument that applicant tried to rob someone on a prior occasion and then claimed that he was the victim.

           Claim 13, subsection 1:      Counsel failed to present any mitigating evidence [specifically the effect Wiggins v. Smith, 539 U.S. 510 (2003) may have on the issue].

           Claim 13, subsection 2:      Counsel argued that the jury should consider [the victim’s] widow in assessing applicant’s punishment.

           Claim 15:                            Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional as applied to applicant because it requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.  

           If either applicant or the State wishes to file a brief on any or all of the above claims, they may do so. Both briefs shall be due in this Court within forty-five (45) days of the date of this order.   

           IT IS SO ORDERED THIS THE 17^th DAY OF NOVEMBER, 2010.

Do Not Publish