                                                                    WR-40,339-08
                                                    COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                   Transmitted 6/12/2015 7:42:58 AM
                                                     Accepted 6/12/2015 8:04:43 AM
                                                                     ABEL ACOSTA
        IN THE TEXAS COURT OF CRIMINAL        APPBALS                        CLERK

                     AUSTINO TEXAS                         RECEIVED
                                                    COURT OF CRIMINAL APPEALS
                                                           6/12/2015
                                                      ABEL ACOSTA, CLERK

                          )     No. WR-40,339-08
EX PARTE                  )
BRIAN DAVIS,              )
         APPLICANT        )
                          )
                          )


 RESPONSE TO THE STATE'S MOTION TO DISMISS APPLICANT'S
  SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS

                 (THIS IS A CAPITAL CASE)

                          BRAD D. LEVENSON (No. 24073411)
                          Director, Office of Capital Writs
                          (E-Mail : Brad.Levenson@ocw.texas. gov)
                          JEREMY SCFIEPERS (No. 24084578)
                          (E-Mail : Jeremy. Schepers@ocw.texas.gov)
                          Post-Conviction Attorney
                          Office of Capital Writs
                          1700 N. Congress Ave., Suite 460
                          Austin, Texas 78701
                          (s12) 463-8600
                          (sI2) 463-8s90 (fax)

                          Attorneys for Applicant
              IN THE TEXAS COURT OF CRIMINAL APPEALS

                                   AUSTIN, TEXAS


                                         )       No. WR-40,339-08
EX PARTE                                 )
BRIAN DAVISO                             )
         APPLICANT                       )
                                         )
                                         )


  RESPONSE TO THE STATE'S MOTION TO DISMISS APPLICANT'S
   SUBSEQUENT APPLICATION FOR \ryRIT OF HABEAS CORPUS
      On May 7, 2015, Brian Davis ("Davis"), through his current counsel the
Office of Capital Writs ("OCW'), filed a subsequent application for writ of habeas
                                         (l) that his 1992 conviction violated his
corpus. Davis presented three allegations:
right to due process when the State used false evidence to obtain it (Subsequent
Application at 15-25); (2) that his 2011 punishment-only retrial death sentence
violated his right to due process when the State used false evidence to obtain it (id
at 25-29); and (3) that the State violated Brady v. Maryland by not disclosing
exculpatory and impeachment evidence prior to his 2011 punishment-only retrial
(id. at 30-34). All three allegations were based on the same new information, that
Detective Charles Smith-the lead investigator into the underlying offense-
provided contradictory information in a letter to the Texas Board of Pardons and
Parole (the "Letter") as compared to his trial testimony. (Id. at 9-10.) Specifically,
Smith stated in the Letter that Davis had confessed in exchange for his co-defendant,
Tina McDonald, not facing prosecution in the case; that statement is contrasted by
his testimony in both of Davis's prior trials that no such deal existed.
      On June 5,2015, the State filed a motion to dismiss Davis's subsequent
application, in which   it   presented two arguments. First, that Davis's subsequent
                                             I
application should be dismissed for failing to meet the requirements of Article
ll.07l,   section Five, of the Texas Code of Criminal Procedure. (Mot. to Dismiss at

6-10.) And second, that Davis's subsequent application fails on the merits. (Id. at
10-24.) Davis disputes both positions advanced by the State.
   A. Davis's Subsequent Application Meets the Requirements From the Texas
      Code of Criminal Procedure, Article 11.0710 Section 5(a)(1)
      The State argued that Davis's subsequent application should be dismissed
because Davis "could have obtained the 2004letter prior to       filing his 2012 initial
application and could have presented his claim at that time." (Mot. to Dismiss at 6.)
However, the State ignores the fact that it had a duty to turn over Smith's Letter prior
to Davis's 20ll retrial, and now seeks to benefìt from their prior violation of Davis's
rights. Both Davis's current and former counsel took steps, prior to his 20II retrial
and the   filing of his 2012Initial Application, which should have resulted in access
to the Letter. These steps included making specific requests for exculpatory and
impeachment evidence and reviewing the Harris County District Attorney's Office
case   file.   (Subsequent Application   at 12-15.) Had the State disclosed the letter
previously, as it was required to do, Davis would have raised these issues previously.
The State cannot now fairly contend that, because it failed to turn over to Davis
relevant exculpatory and impeachment evidence after appropriate requests were
made, that these claims should now be defaulted.

        The State's attempt to analogizeDavis to the applicant in Ex parte Sledge is
misguided. 391 S.W.3d 104 (Tex. Crim. App. 2013); (Mot. to Dismiss at 9-10.) As
this Court noted in Sledge, "[a] new factual basis is one that could not have been
discovered through the exercise of reasonable diligence before the date of the initial
application. We have stated that reasonable diligence suggests at least some kind of
inquiry has been made into the matter at issue." Id. at 106 (internal quotations and
citations omitted). Davis's current and former counsel exercised reasonable

                                             2
diligence and took steps that should have resulted in receiving Smith's Letter. Had
the State appropriately responded to the prior requests, Davis would have had the
Smith Letter even before the 2011 retrial. A more appropriate analogy is Ex parte
Miles, in which the applicant did not receive the relevant information until
submitting a Freedom of Information Act request after his initial application was
filed, after the applicant had made previous requests that should have resulted in the
disclosure of the relevant information. 359 S.W. 647, 658 (Tex. Crim. App. 2012).
Similarly to the applicant in Miles, Davis's subsequent application should be
determined to meet to requirements of Article       lI.07l,   section Five because of his
prior attempts to obtain the relevant information.
   B. Denying the Subsequent Application on the Merits Would Require this
      Court to Make Credibility Determinations that Fall Within the Province
      of the Trial Court
      Altematively, the State requests that Davis's subsequent application be denied
on the merits. The State describes the Letter Smith sent to the Parole Board           as

"inartful" and "incomplete so it gives   a wrong   impression." (Mot. to Dismiss at   18,

20.) The   State has obtained an affidavit from Smith in which he states:

      In the letter,   I
                       said that "Davis agreed to confess to the crime in
      exchange for McDonald not facing prosecution." That sentence is true
      but it is incomplete so it gives a wrong impression. . . . I should have
      said that "Davis first agreed to confess to the crime in exchange for
      McDonald not facing prosecution, but no one would make him that
      promise and he ended up confessing without any promises being made
      to him."
(Aff. of Charles Smith at2-3.) Smith's affidavit displays an attempt to re-interpret
his statement in the Letter to the Parole Board to align with his previous testimony.
This is impossible. In the Letter, Smith explicitly stated that Davis "agreed" to
confess   if   McDonald would not be prosecuted. Davis could not have agreed to



                                           J-
something that did not exist, or was not offered; Smith's post-hoc attempt to
reconcile the statement with his previous testimony fails, because it cannot be done.
       Denying Davis's subsequent application on the merits would require this
Court to make a credibility determination that it is not situated to do. This Court
would need to weigh Smith's prior trial testimony, his letter to the Parole Board, and
his current affidavit to determine which,     if   any, are accurate. Further, it would need

to address the resulting impact on Davis's trial after Smith's credibility has been
questioned. The correct method for such credibility determinations to occur is in the
trial court,   al"   anevidentiary hearing where Smith would be present and subjected to
questioning. This Court is not positioned to make such a determination, and should
instead remand the case to the trial court to address the claims raised.

       Therefore, Davis asks that the three claims raised                 in his subsequent
application be determined to have met the requirements of the Texas Code of
Criminal Procedure, Article 11.071, section 5, and be remanded to the trial court for
an evidentiary hearing.


                                            Respectfull     submitted,


DATED:           June    ll,2015                     I
                                                           Brad           on

                                                          l¡,  l,-
                                                          r   eremy   Schepers




                                               4
                           CERTIFICATE OF SERVICE
      I, the undersigned, declare  and certifli that I have served the foregoing
Response to the State's Motion to Dismiss Applicant's Subsequent Application for
\ù/rit of Habeas Corpus to:

Texas Court of Criminal Appeals
P.O. Box 112308
Austin,   T){787ll
Harris County District Attorney
ATTN: Roe Wilson
Harris County Criminal Justice Center
l20l Frartklin, Suite 600
Houston, TX77002

Brian Davis
Polunsky Unit #999036
3872 FM 350 South
Livingston, Texas 773 5I


      This certification is executed on June ll,2015, at Austin, Texas. I declare
under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.

                                            /1^   l.
                                                Jeremy Schepers
                                            I




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