                                                                                         WR-77,157-02
                                                                          COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
   JULY 31, 2015
                                                                          Transmitted 7/30/2015 6:45:27 PM
                                                                            Accepted 7/31/2015 8:38:50 AM
                                                                                            ABEL ACOSTA
                                   No. WR-77,157-02                                                 CLERK

EX PARTE DANIEL LEE LOPEZ,                   |    IN THE
                   Applicant.                |
                                             |    COURT OF CRIMINAL APPEALS
                                             |
                                             |    OF TEXAS

                              CAUSE NO. 09-CR-0787-B

EX PARTE DANIEL LEE LOPEZ,                   |    IN THE 117T H DISTRICT
                   Applicant.                |
                                             |    COURT OF
                                             |
                                             |    NUECES COUNTY, TEXAS


                  STATE’S MOTION TO DISMISS
   APPLICANT’S SUBSEQUENT APPLICATION FOR WRIT OF HABEAS
                           CORPUS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       Comes now the State of Texas, by and through the District Attorney for the

105th Judicial District of Texas, and files this, its motion to dismiss Applicant’s

“Subsequent Application for Postconviction Writ of Habeas Corpus” and would

show the following:

                                             I.

                             Procedural History of this Case

       Applicant was convicted of capital murder and sentenced to death on the 5th



                                             1
day of March, 2010, for murdering a police officer a year earlier.1

        The verdict and judgment in Applicant’s case were reviewed on direct

appeal by this Court, which affirmed such judgment on October 12, 2012, see

Lopez v. State, No. AP-76,327, 2012 WL 5358863, 2012 Tex. Crim. App. Unpub.

LEXIS 1159 (Tex. Crim. App. Oct. 31, 2012) (not designated for publication), and

subsequently issued its mandate on November 27, 2012.

        On April 18, 2012, this Court accepted Applicant’s waiver of appointment

of counsel to represent him in a post-conviction writ of habeas corpus under Tex.

Code Crim. Proc. art. 11.071 and found that his failure to timely file an application

for habeas corpus relief under that article constituted a waiver of all grounds for

relief that were available to him before the last date on which his application could

have been timely filed. See Ex parte Lopez, No. WR-77,157-01, 2012 Tex. Crim.

App. Unpub. LEXIS 1376 (Tex. Crim. App. Apr. 18, 2012) (not designated for

publication).

        On July 1, 2014, the United States District Court for the Southern District of

Texas found Applicant competent to waive federal habeas review, found that he


        1
         As this Court noted in its opinion on Applicant’s direct appeal, the jury also convicted
him of nine other offenses arising out of the same episode: assault on a public servant, attempted
aggravated assault on a public servant, the attempted capital murders of five peace officers,
evading arrest or detention using a vehicle and causing death, and possession of a controlled
substance with intent to deliver.

                                                    2
did so knowingly and voluntarily, granted his motion to dismiss his habeas action

with prejudice, denied the post-judgment motion filed by his attorneys (the same

attorneys who have filed the present subsequent application), found that he was

competent to terminate representation by habeas counsel, and granted his motion

to dismiss counsel, effective on the conclusion of any appeal. See Lopez v.

Stephens, Civ. No. 2:12-CV-160, 2014 WL 2981056, 2014 U.S. Dist. LEXIS

89213 (S.D. Tex. July 1, 2014) (unpublished).

       Upon such appeal by counsel who were appointed for Applicant by the

federal district court against his will and who filed such appeal despite the

defendant’s wishes (the same attorneys who have filed the present subsequent

application), on April 6, 2015, the United States Court of Appeals for the Fifth

Circuit affirmed the district court’s order finding Applicant competent to waive

federal habeas proceedings and ordered that no further pleadings would be

accepted from counsel absent leave of court supported by Applicant’s election to

proceed through such counsel. See Lopez v. Stephens, 783 F.3d 524 (5th Cir.

2015), petition for cert. filed, No. 15-5141 (U.S. July 10, 2015).

       On or about April 13, 2015, the convicting court received a pro se “Motion

to Declare Information About Appeal and Execution,” wherein Applicant asked

such court to set his execution date.

                                             3
      Applicant’s conviction having become final, on May 12, 2015, the

convicting court, in accordance with Tex. Code Crim. Proc. art. 43.141, entered an

order setting Applicant’s execution for August 12, 2015.

      On July 6, 2015, a petition for writ of certiorari was filed on behalf of

Applicant by at least one of the same attorneys who has filed the present

subsequent application. The case was docketed by the Supreme Court on July 10,

2015, and the State’s response is due to be filed in that court by August 10, 2015,

two days before Applicant’s scheduled execution. Lopez v. Stephens, No. 15-5141

(U.S. July 10, 2015) See:

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles\15-5141.htm

      On July 22, 2015, the District Attorney received notice from the Texas

Board of Pardons and Paroles that it had received a request, filed on behalf of

Applicant by at least one of the same attorneys who has filed the present

application, for Board consideration of commutation of Applicant’s death sentence

to a lesser penalty. The District Attorney responded to that request on July 27,

2015, notwithstanding the fact that he has never received a copy of such request.

      On July 27, 2015: (1) a “Suggestion that the Court, on its Own Motion,

Reconsider its Decision Accepting Daniel Lee Lopez’s Waiver of State Habeas

Review”; (2) a motion for stay of execution while the Court considers that

                                            4
“Suggestion,” (3) a motion for leave to appear in this Court to present that

“Suggestion”; (4) a motion for leave to appear in this Court to present a

subsequent application for writ of habeas corpus; and (5) a motion for stay of

execution while the Court considers that subsequent application for writ of habeas

corpus, were all filed this Court on behalf of Applicant by the same attorneys who

have filed the present application.

       On July 28, 2015, the present “Subsequent Application for Postconviction

Writ of Habeas Corpus,” which asserts a claim of actual innocence, was filed on

behalf of Applicant. In such application, counsel prays that this Court stay his

execution, find that the claim raised therein satisfies Article 11.071, § 5, and

remand this case to the convicting court to allow counsel “to develop additional

evidence in support of this claim and either a new trial or an evidentiary hearing to

make findings on [their] claim that [Applicant] is actually innocent.”

       It is unclear whether Applicant is aware of this subsequent application, the

clemency petition, the petition for writ of certiorari, the “Suggestion” that this

Court “on its own motion” reconsider its decision accepting Applicant’s waiver of

state habeas review, the motions for stay of execution, and the motions for leave to

appear, much less whether he authorized their filing on his behalf by the attorneys

he sought to dismiss .

                                             5
         On July 30, 2015, the State filed this motion to dismiss Applicant’s

subsequent application for habeas corpus, contending that the requirements of

Article 11.071, § 5(a) have not been satisfied, and requesting that, for that reason,

this Court enter an order dismissing his application as an abuse of the writ. See

Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c) (West 2015). One version is being

filed with the clerk of the convicting court, and an alternate version, with this

Court and its cause number in the caption, is being electronically filed with this

Court.

         In support of that motion, the State shows the following:

                                              II.

                 Basis for Dismissing Applicant’s Subsequent Application

                                             III.

                                        The standard

         If a subsequent application for a writ of habeas corpus is filed in a death

penalty case asserting a claim of actual innocence, as Applicant does here, a court

may not consider the merits of or grant relief based on the subsequent application

unless this Court finds that the application contains sufficient specific facts

establishing that, by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant guilty

                                              6
beyond a reasonable doubt. See Tex. Code Crim. App. Ann. art. 11.071, §5(a)(2),

(c) (West 2015).

      To prevail in a freestanding claim of actual innocence, an applicant must

prove by clear and convincing evidence that, despite the evidence of guilt that

supports the conviction, no reasonable juror could have found the applicant guilty

in light of the new evidence. Ex parte Harleston, 431 S.W.3d 67, 70 (Tex. Crim.

App. 2014). The burden placed upon the applicant to prevail in such a claim is a

“Herculean task,” id., and relief is not warranted without an applicant having made

an exceedingly persuasive case that he is actually innocent. See Ex parte Navarijo,

433 S.W.3d 558, 567 (Tex. Crim. App. 2014). To do so, the applicant bears the

burden to prove that, if true, the newly discovered evidence not only casts a

sufficient doubt to undermine confidence in the verdict, but it also creates a

probability that the verdict would be different on retrial. See Ex parte Elizondo,

947 S.W.2d 202, 209 (Tex. Crim. App. 1996), superseded by statute for death

penalty cases as recognized in Ex parte Blue, 230 S.W.3d 151, 162 n.46 (Tex.

Crim. App. 2007). To determine whether an applicant has met this standard, the

habeas court must examine the new evidence in light of the evidence presented at

trial. See Navarijo, 433 S.W.3d at 567.




                                            7
                                            IV.

                            The gist of Applicant’s contention

       Applicant asserts that had he testified during his trial that he didn’t

intentionally kill Lt. Alexander, as he did during a hearing in federal court to

determine his competency to waive federal review of his conviction, and had

evidence been admitted regarding his poor vision, his wearing contact lens at the

time of he struck Lt. Alexander that he had purchased off the streets and that

weren’t prescribed to him, and that at the time he struck Lt. Alexander, his eyes

were burning from his being pepper-sprayed earlier that evening, no rational juror

could have found him guilty of capital murder.

                                             V.

                   But Applicant’s contention takes a lot for granted

       This contention presupposes that the jury would have believed such

testimony had it been offered. And that no rational juror could not have believed

such testimony. But consider some of the facts that this Court discussed in its

opinion on Applicant’s direct appeal.

       Appellant overlooks the fact that the jury also found him guilty of the

attempted capital murders of five other peace officers. Slip op. at 10. Did he not

intend any of those either?

                                              8
      And did his vision and the effects of pepper spray prevent him from seeing

Officer Cox, whom he had previously assaulted, when Applicant twice put his

Expedition in reverse and attempted to ram Cox’s vehicle, causing Cox to drive

onto curbs and sidewalks to avoid being hit? Could he not see Officer Ressler

when he was driving toward her at full speed and she had to sharply pull over to

the side of the road to avoid being hit head-on by Applicant? Or when he put his

Expedition in reverse and attempted to ram her vehicle? Could he not see Officer

Ybarra when Applicant made a U-turn during the pursuit and drove straight

toward Ybarra and Officer Cox, causing both of them to swerve out of his way?

Could Applicant not see the officers when he then made another U-turn and drove

toward them, forcing them to move out of his way? Or when he put his Expedition

in reverse, rammed the rear bumper of Ybarra’s vehicle, and drove away? Did

Applicant not see Officer Jasso or attempt to run into him when Jasso said

Applicant drove straight toward him, ran a stop sign, and made a “very specific

jerk” in his direction, forcing Jasso to drive “[a]bout two feet up onto the curb” to

avoid being struck by Applicant’s Expedition, as Applicant screamed out his

window at Jasso as he passed him? Slip op. at 5-6.

      Could he not see the stop sticks that Officer Cunningham placed on the road

and was he just lucky when he swerved around them? Could he not see another set

                                            9
of stop sticks that were placed in his path after striking Lt. Alexander and was he

again just lucky when he avoided them? Slip op. at 6-7.

       Could Applicant not see the patrol cars containing Officers Carrazco,

Muniz, and McDonald that he began ramming once he was surrounded? Could he

not see Officer Carrazco, who testified that when he exited his vehicle and drew

his gun after his patrol car was rammed by Applicant, Applicant looked directly at

him and “immediately gunned it” with his wheels spinning, forcing Carrazco to

jump over the hood of a patrol car to avoid being run over by Applicant? Slip op.

7-8.

       And would the jury necessarily have believed Applicant if he testified, as he

did during his federal court hearing, that he wasn’t going more than 2-3 m.p.h.

when he rammed the police cars that had surrounded him? (Subsequent

Application Ex. B, p. 86 [hereinafter “Ex. B”]). Or could a rational juror, as a

judge of the credibility of the witnesses, have believed the officers who testified

that as Applicant rammed their vehicles with his Expedition, he was using it as a

“battering ram,” while spinning his wheels and revvivng his engine, and that he

rammed one car hard enough that it pushed that car onto the grass and within a

few feet of a steep embankment. Slip op. at 7-8.

       Had Applicant testified at trial as he did during his federal court hearing,

                                            10
would a rational juror have had to believe he didn’t intentionally or knowingly

cause Lt. Alexander’s death, in spite of the fact that he boasted to jailers that he

was “the cop killer everyone has been talking about?” And in spite of the fact that

Applicant found it humorous that he would probably be charged with capital

murder and would probably be incarcerated “forever,” because, as he told a jailer,

“it doesn’t make any difference because as cop killers, when we go to T.D.C.,

we’re kings” and would not “want for anything?” Slip op. at 9.

       In sum, would a rational juror have to have concluded, had Applicant

testified during his trial as he did during his federal court hearing, that he was

telling the truth and that he didn’t intend to run into Lt. Alexander that night, and

that he was little more than a Mr. Magoo, accidently driving toward everyone who

was pursuing him because of his vision problems, a bad set of contact lens, and the

effects of pepper spray?

       Or could a rational juror have believed Applicant’s brother, who testified

that Applicant was a good driver and had practiced evasive driving maneuvers?

And that during the chase through their neighborhood, Applicant was able to

avoid at least six police cars pursuing him and that he ran into several police cars

before doing a “doughnut in reverse” and taking off? (19 R.R. at 137-142, 144,

146, 148-150).

                                             11
       And might a rational juror have believed Applicant’s testimony during his

federal court hearing wherein he said that when he had the contact lens in question

on, he “could read from far away.” (Ex. B, p. 73).

                                            VI.

                And this “new” evidence is neither new nor significant

       As this Court noted in its opinion on Applicant’s direct appeal, the jury

heard testimony from his brother, his mother, and his ex-girlfriend. Applicant told

his brother and ex-girlfriend that he thought he hit a police officer, and he told his

mother that he thought “he ran over somebody.” When his mother later visited

Applicant in the hospital, he said, “They tell me I killed somebody” and explained

that he “couldn’t see” because “they had pepper sprayed him.” However, Officer

Cox testified that the pepper spray hit Applicant on the side of the head but not in

his eyes, and other officers testified that he did not appear to have been affected by

the pepper spray when he was taken into custody. Officer Garcia testified that he

heard Applicant tell his mother at the hospital that he “tried to stop before [he] hit

the officer.” Garcia added that there were no brake lights seen or skid-mark

evidence to substantiate that explanation. Slip op. at 8-9.

       And in addition to what this Court noted in its opinion:

       (1) Applicant’s ex-girlfriend testified that during one of numerous phone

                                            12
calls made between her and Applicant while the chase was underway, he told her

that he “ran over a cop” and thought he had killed him. She said Applicant’s voice

was calm and that he never indicated whether he had intentionally or accidentally

done so. (16 R.R. at 316- 318, 321-333; 30 R.R. at State’s Ex. 46).

        (2) Applicant’s brother testified that during one of the phone conversations

between Applicant and his ex-girlfriend, he (Applicant’s brother) grabbed the

phone from her and again told Applicant to stop. However, Applicant replied,

“No, because now there’s really something. They’re probably going to want to kill

me because I hit a cop ... Joey, I’m sorry, I think I hit a cop. I don’t know what to

do.” Applicant’s brother was puzzled by the latter statement, noting that if you hit

something with a vehicle, you know it. However, he said Applicant did not

indicate that he had done so on purpose. (19 R.R, at 138-139, 144-145, 147-149,

151).

        (3) Applicant’s mother testified acknowledged that although Applicant told

her when she visited him in the hospital, “Mom, they tell me I killed somebody.”

When she replied, “Yes, the officer,” Applicant replied, “Mom, I couldn’t see.”

She said Applicant told her that the reason he could not see was because he had

been pepper-sprayed. Applicant’s attorney reenforced that fact by asking her a

number of times if Applicant said he couldn’t see. She acknowledged that she had

                                            13
not mentioned that before trial but said that was because she had not been asked.

Detectives Rodriguez and Garcia, who were in the hospital room at the time, both

testified that Applicant’s mother never conveyed that information to them when

they interviewed her. Garcia also testified that Applicant never mentioned pepper

spray during the hospital visit. He did, however, testify, as this Court noted in its

opinion, that Applicant told his mother, “I tried to stop before I hit the officer.”

(17 R.R. at 55-60; 20 R.R. at 186-193, 242-249, 256-258).

         (4) A woman with whom Applicant had lived for four years as a teenager

when he was dating her daughter, testified that Applicant wrote her several letters

about a month after Lt. Alexander’s death. In one of them, Applicant explained

why he had done what he had done. However, she testified, in Applicant’s letters,

he never said that he had struck Alexander on purpose or that he had done so

accidentally. (20 R.R. at 227-238; 34 R.R. at State’s Ex. 248).

         Indeed, the basis for this subsequent application is no different than what

was also presented as the defensive theory at trial. As the federal district court

noted:

         [Applicant’s] intent in killing Officer Alexander was the primary
         concern for jurors. To secure a capital conviction, the State had to
         prover beyond a reasonable doubt that [Applicant] intentionally or
         knowingly killed the victim. ... The State argued that the jury could
         infer [Applicant’s] intent from the circumstances surrounding the

                                             14
       murder, including: [Applicant’s] repeated efforts to avoid arrest, his
       violence against the officer who first pulled him over, his attempts to
       run over other officers, and testimony from eyewitnesses that he
       maneuvered his vehicle directly into the victim. ... The State also
       emphasized that [Applicant] previously said he would “do everything
       in his power to resist” arrest and “would die before” he “went back to
       jail.”

       The defense vigorously argued that [Applicant] lacked the intent
       necessary for a capital murder conviction. According to the defense,
       [Applicant] was traveling at a high rate of speed as he approached the
       stop sticks manned by Officer Alexander. [Applicant] swerved to
       avoid the stop sticks, but because of poor lighting and pepper spray in
       his eyes, he never saw the officer. Under those circumstances, trial
       counsel urged the jury to find [Applicant] guilty of only a lesser
       offense. The jury found [Applicant] guilty of capital murder.

Lopez v. Stephens, 2014 WL 2981056, at *3.

       The only thing “new” that Applicant proffers in his subsequent application

is that he testified during his federal court hearing that he didn’t intentionally kill

Lt. Alexander, whereas his statements to that effect came in through other

witnesses at trial because he didn’t testify at that time. But there was nothing to

prevent him from doing so. And this “new” evidence is therefore not significant.

       Also “new” are the proffered two 2010 visual acuity tests reflecting

Applicant’s poor vision a year after Lt. Alexander’s was run down, and

Applicant’s testimony at the federal court hearing that the contacts he was wearing

at the time of Alexander’s death weren’t prescribed to him but rather were



                                              15
purchased “on the streets.” But he also testified at that hearing, as noted above,

that when he had the contact lens in question on, he “could read from far away.”

So this “new” evidence is not significant either.

                                           VII.

          And the federal courts were not persuaded by the same arguments

       Although he doesn’t mention this in his subsequent application, Applicant

raised a similar argument in his appeal from the federal district court’s order

finding him competent to waive federal review of his conviction and sentence. But

the Fifth Circuit found that it unpersuasive, noting:

       On appeal, two arguments are asserted. First, the argument is offered
       that [Applicant] is incompetent to waive habeas review because he is
wrong to think further judicial review would be unavailing. Specifically, counsel
contends that [Applicant’s] sight was impaired both by his poor vision and also by
pepper spray, and therefore he did not intentionally kill Lieutenant Alexander
when he swerved and struck him during a police chase. This argument fails on
several grounds. Factually, the jury heard testimony and attorney argument
relating to the fatal impact—and specifically, disputed facts as to [Applicant’s]
intentionality and vision—and, properly instructed as to the proof required of
[Applicant’s] state of mind, thereafter entered its verdict of capital murder.

Lopez v. Stephens, 783 S.W.3d at 526.

       In a footnote, the court added:

       In district court, counsel acknowledged that the “chief issue, the
       central issue at trial was whether [Applicant] saw Officer Alexander
       and intentionally ran him over,” but suggested that the jury had not
       heard all relevant evidence pertaining to [Applicant’s] impaired

                                            16
       vision. As the district court catalogues, however, the pepper spray
       evidence was presented to the jury. Moreover, in district court, having
       heard counsel characterize him as legally blind, [Applicant] himself
       explained that yes, he has “terrible vision,” “but I had contacts, and I
       could see.”

Lopez v. Stephens, 783 S.W.3d at 526 n.2.

       Thus, in his subsequent application, Applicant is simply re-urging the same

argument that Fifth Circuit found unpersuasive.

                                          VIII.

 Applicant has failed to make a threshold showing under Article 11.071, § 5(a)(2).

       Applicant contends in his subsequent application and in his motion for stay

of execution that this Court should enter an order finding that the requirements of

Article 11.071, § 5(a)(2) have been satisfied. But for the reasons discussed above,

they have not.

       Applicant has not proved by clear and convincing evidence that, despite the

evidence of guilt that supports his conviction, no reasonable juror could have

found him guilty in light of the “new” evidence he proffers in his subsequent

application—evidence that is essentially that which was presented to, but rejected

by, the jury during his trial, and which the Fifth Circuit did not find persuasive in

his appeal from the federal district court’s order finding him competent to waive

federal review of his conviction and sentence. And as such, his subsequent

                                            17
application for writ of habeas corpus does not contain sufficient specific facts

establishing that, by a preponderance of the evidence, but for a violation of the

United States Constitution no rational trier of fact could have found the applicant

guilty beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 11.071, §

5(a)(2) (West 2015).

                                           IX.

                                       Conclusion

         Because Applicant has failed to make a threshold showing that the

requirements of Article 11.071, § 5(a) have been satisfied, the State’s motion to

dismiss Applicant’s “Subsequent Application for Postconviction Writ of Habeas

Corpus” should be granted.

         WHEREFORE, the State prays this Court find that the requirements of

Article 11.071, § 5(a) have not been satisfied, and that it therefore enter an order

dismissing Applicant’s subsequent application for writ of habeas corpus as an

abuse of the writ, pursuant to Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c) (West

2015).




                                            18
                                         Respectfully submitted,

                                            /s/ James D. Rosenkild
                                         James D. Rosenkild
                                         State Bar No. 17279200
                                         Assistant District Attorney
                                         901 Leopard St., Rm. 206
                                         Corpus Christi, Texas 78401-3602
                                         (361) 888-0410
                                         (361) 888-0700 (fax)
                                         james.rosenkild@co.nueces.tx.us

                         CERTIFICATE OF COMPLIANCE

        This is to certify that the word count of the computer program used to
prepare this motion indicates that such motion contains 4,013 words, not counting
the following, if part of this motion: the caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix. See Tex. R. App. P. 9.4(i).

                                           /s/ James D. Rosenkild
                                          James D. Rosenkild

                            CERTIFICATE OF SERVICE

       This is to certify that a copy of this motion to dismiss was served this 30th
day of July, 2015, via certified electronic service provider on David R. Dow, Esq.,
at ddow@central.uh.edu (and mailed to him at University of Houston Law Center,
100 Law Center, Houston, TX 77204-6060), and on James Gregory Rytting, Esq.,
at james@hilderlaw.com (and mailed to him at Hidler & Associates, 819 Lovett
Blvd., Houston , TX 77006-3905), and was mailed to Applicant, TDCJ #999555,
TDCJ-CID, Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351.

                                           /s/ James D. Rosenkild
                                         James D. Rosenkild

                                           19
