           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-84,324-01



                     EX PARTE RICKEY DONNELL CUMMINGS



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
      FROM CAUSE NO. 2011-1513-C1 IN THE 19 TH DISTRICT COURT
                      McCLENNAN COUNTY

       Per curiam.

                                        ORDER

       This is an application for a writ of habeas corpus filed pursuant to the provisions of

Texas Code of Criminal Procedure Article 11.071.

       The record shows that the State indicted applicant for intentionally or knowingly

causing the March 28, 2011 deaths of Tyus Sneed and Keenan Hubert by shooting them with

a firearm during the same criminal transaction. See T EX. P ENAL C ODE § 19.03(a)(7)(A). The

State’s theory at applicant’s November 2012 trial was that applicant and two co-defendants,

Albert Love and applicant’s younger brother, D’Arvis Cummings, committed the murders
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in revenge against Keenan Hubert, whom they believed had killed their friend, Emuel

Bowers III.

       To support its theory, the State presented evidence that Bowers was shot to death in

April 2010 near an East Waco park. Applicant, D’Arvis, and Love were among Bowers’s

close friends. Applicant and Bowers’s family were intent on determining who killed Bowers,

and they came to believe that Hubert was the culprit. As the first anniversary of Bowers’s

murder approached, they were frustrated that the police had not arrested anyone. And, in the

period between Bowers’s murder and the instant offense, applicant and Hubert had various

tense encounters with each other.

       On the evening of the instant offense, applicant and Hubert had another unfriendly

encounter. Specifically, Hubert, Marion Bible, and Deontrae Majors were sitting in Majors’s

parked car at the Lakewood Villas, an East Waco apartment complex. They were smoking

marijuana and socializing. Applicant walked by the car and “mean mugged” or glared at

Hubert. Hubert responded by rapping some antagonizing song lyrics at applicant. After

applicant walked away, Tyus Sneed joined Hubert, Bible, and Majors in the car, and the

group continued to smoke and socialize.

       After glaring at Hubert, applicant was in an agitated state. Around this time, applicant

received a text from his girlfriend, asking if he was okay and if he was getting ready to fight

someone. Applicant also threatened to “shoot up” a car that was arriving at the complex,

because applicant believed the car had almost hit him. The car’s passenger, Darnell “Bo”
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Atkins, was arriving to visit his girlfriend. Bo knew applicant and talked to him. They then

went to Bo’s girlfriend’s apartment, where they talked and smoked marijuana. Bo’s teenage

son, Miche’al Atkins, was present and overheard applicant say something about how

applicant was going to shoot someone. Although Miche’al was in another room, Miche’al

was able to hear applicant’s statement because of the “above average” volume of applicant

and Bo’s conversation. After making the comment about shooting someone, applicant

received a telephone call. Miche’al could not hear applicant’s part of the conversation, but

when the call ended, applicant left the apartment.

       At about 11:20 p.m., roughly twenty minutes after applicant left Bo’s girlfriend’s

apartment, assailants riddled Majors’s car with gunfire, shooting out the back windows.

Hubert and Sneed, who were sitting in the back seat, died at the scene from multiple gunshot

wounds. Although they were both wounded, Bible and Majors escaped through the front

passenger side door and fled to a nearby apartment that Bible shared with various people,

including his girlfriend’s aunt, Nickoll Henry. Henry was inside the apartment and went to

the front door right after Bible and Majors burst in. Henry saw applicant standing about ten

feet away, trying to unjam a semiautomatic pistol. Henry shut the door, locked it, and fled

deeper inside the apartment until police and emergency medical personnel arrived.

       The shell casings and projectiles recovered from around Majors’s car indicated that

Hubert and Sneed’s assailants probably used an AK-47 or SKS assault rifle, as well as

firearms capable of firing .38-, .40-, and .45-caliber ammunition. In addition, Henry’s
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apartment had bullet damage to the exterior wall and a bullet hole in the wall behind the

living room couch. The bullet damage had not been there before the offense. There was also

a .45-caliber cartridge on Henry’s dining room floor. The cartridge had not been there before

the offense.

       Minutes after the shooting and less than half a mile away, police officers made a

traffic stop of a car that was traveling away from the scene and which generally matched the

description of a vehicle reportedly involved in the shooting. D’Arvis Cummings was the

car’s driver and sole occupant. During that stop, officers seized a .45-caliber pistol later

shown to belong to applicant. A crime scene unit officer tested D’Arvis’s hands for gunshot

residue (GSR), obtaining a negative result, and photographed various items that were inside

the car. These items included several cell phones, a white t-shirt on the back seat, and a

bottle of hand sanitizer on the backseat’s floorboard.

       When investigators arrested applicant on April 1, they recovered a .40-caliber Ruger

pistol from his vehicle, as well as .45-caliber and .38 Special ammunition, a red sweater, a

red hoodie, and hand sanitizer. Applicant had a loaded .40-caliber magazine fitting the

Ruger in his front pocket. Applicant’s hands tested negative for gunshot residue. Ballistic

comparisons did not match either of the seized pistols to the shell casings or projectiles

recovered from the scene or the victims’ bodies. However, the .45-caliber ammunition

recovered from applicant’s car was the same, albeit widely-available, brand as the cartridge

collected from Henry’s dining room.
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       Although the seized pistols were later ruled out as the murder weapons and neither

applicant’s nor D’Arvis’s hands tested positive for gunshot residue, the evidence showed

that, about forty minutes before the shooting, Robert Sneed (Tyus Sneed’s father) saw and

talked to applicant in one of the Lakewood Villas’s breezeways. Applicant was wearing a

black hoodie with the hood raised. Two unfamiliar men were standing at the end of the

breezeway, although Robert did not know whether the men were with applicant.

       Immediately before the shooting, another witness saw three black males1 (one wearing

a black top, one wearing a red top, and one wearing a white top) sneaking across the

breezeway and around the corner of a building; the man wearing red carried a long gun

attached to a shoulder strap. And Bible testified that, in a police interview about the

shooting, he reported hearing a rumor that Love’s girlfriend had bought Love an AK-47 rifle.

Love had also previously shown Bible various handguns that Love owned, including a .38-

caliber pistol and a .45-caliber pistol. In addition, on the afternoon of the offense, a witness

saw a firearm consistent with an assault rifle lying on the backseat of applicant’s car,

although applicant was not in the car and the witness did not recognize the driver. The

witness photographed her cousin posing in the car with the weapon; this photograph was

admitted at trial and published to the jury.

       Cell phone records showed that applicant had several communications with D’Arvis

and Love shortly before the shooting occurred and that Love was in the vicinity of the



       1
           The record shows that Applicant and his co-defendants are black.
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Lakewood Villas at the time of those communications. Further, Brittany Snell was a friend

of applicant’s who lived at the Lakewood Villas. Snell testified that, shortly after the

shooting, applicant came to her apartment with Love and asked to use her phone so he could

call D’Arvis. Snell’s cell phone records established that applicant made this call to D’Arvis’s

at 11:32 p.m., and thus that applicant and Love were present at the Lakewood apartments

twelve minutes after the shooting. While in Snell’s apartment, applicant used the bathroom

and washed his hands, as did Love. After the shootings, other witnesses saw applicant in the

parking lot dressed in different clothing and watching while the bodies were removed.

       At 1:52 a.m. on March 29, Love called Bowers’s mother and had a two-minute-and

seven-second conversation with her. Love then sent Bowers’s mother a text message, to

which she responded at 1:56 a.m. with, “Love yall too!!!” At 1:57 a.m., Love texted

applicant, “Tbuck5,” Bowers’s rap name.

       The State also presented evidence that, after the offense, applicant tried to establish

an alibi; destroy evidence of his participation, including incriminating texts on his cell phone;

and intimidate witnesses such as Henry from cooperating with law enforcement.                 As

additional proof of applicant’s motive, the State presented evidence that he and Bowers had

not just been friends, but had also been fellow members of a criminal street gang.

       Applicant testified in his own defense. He denied having had any role in the shooting

and he also denied having any involvement in an organized gang.

       The jury charge permitted the jury to convict applicant as a principal or a party. The
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jury found applicant guilty as alleged in the indictment. Pursuant to the jury’s answers to the

special issues, including an anti-parties special issue under Article 37.071, § 2(b)(2), the trial

court sentenced applicant to death. This Court affirmed applicant’s conviction and sentence

on direct appeal. Cummings v. State, No. AP-76,923 (Tex. Crim. App. Dec. 17, 2014) (not

designated for publication).

       In his application, applicant presents fourteen challenges to the validity of his

conviction and sentence. The habeas court held an evidentiary hearing on applicant’s Claims

1 through 9 and Claim 14. It thereafter entered findings of fact and conclusions of law

recommending the denial of relief on Claims 1 through 9 and Claim 14. The habeas court

entered no findings of fact or conclusions of law or a recommendation regarding Claims 10

through 13.

       We have reviewed the record regarding applicant’s allegations. Claims 10, 11, 12,

and 13, in which applicant raises constitutional challenges to Texas’s capital sentencing

scheme, are procedurally barred because habeas is not a substitute for matters which were

or should have been raised on direct appeal. See Ex parte Hood, 304 S.W.3d 397, 402 n.21

(Tex. Crim. App. 2010) (“[T]his Court does not re-review claims in a habeas corpus

application that have already been raised and rejected on direct appeal.”); Ex parte Nelson,

137 S.W.3d 666, 667 (Tex. Crim. App. 2004) (“It is ‘well-settled that the writ of habeas

corpus should not be used to litigate matters which should have been raised on direct

appeal.’”).
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       In Claims 1 through 9 and 14, applicant alleges that his trial counsel were

constitutionally ineffective for failing to: thoroughly rebut eyewitness Nickoll Henry’s trial

testimony and to present testimony from an eyewitness identification expert (Claim 1);

present expert testimony from a forensic linguist to support applicant’s testimony about

incriminating messages found on his cell phone (Claim 2); present testimony from a gang

expert to rebut the State’s assertion that applicant was affiliated with the Bloods gang (Claim

3); object to the admission of certain irrelevant and inflammatory photographs and a rap

music video, which the State asserted were probative of applicant’s gang affiliation (Claim

4); object to the admission of an irrelevant and highly prejudicial photograph of a woman

holding an AK-47 firearm (Claim 5); object to alleged victim impact evidence that was

presented by the State at the guilt-innocence phase (Claim 6); object to hearsay testimony

given by Marion Bible, one of the surviving victims of the shooting (Claim 7); fully

investigate and present certain lay witness testimony at the punishment phase (Claim 8);

present expert testimony from a social historian at the punishment phase (Claim 9); and

preserve the record for appeal (Claim 14). However, applicant fails to meet his burden under

Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence

that his counsel’s representation fell below an objective standard of reasonableness and that

there was a reasonable probability that the result of the proceedings would have been

different but for counsel’s deficient performance. See Ex parte Overton, 444 S.W.3d 632,

640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
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        As to the habeas court’s findings of fact and conclusions of law, we decline to adopt

them.2 See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). Instead, based

upon our independent review of the record and consistent with our role as the ultimate

factfinder in habeas corpus proceedings, we deny relief.

        IT IS SO ORDERED THIS THE 28TH DAY OF MARCH, 2018.


Do Not Publish




        2
           We also decline to adopt the document in the habeas record entitled, “Observations and
Opinion,” to the extent that this document can be construed as the habeas court’s supplemental findings
of fact and conclusions of law.
