Opinion
NO. WR-84,322-01
02-08-2017
EX PARTE JAIME PIERO COLE
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 1250754-A IN THE 230 DISTRICT COURT HARRIS COUNTY Per curiam. ALCALA, J., filed a dissenting opinion. NEWELL, J., not participating. 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.
Applicant was convicted of murdering his estranged wife, Melissa Cole, and his fifteen-year-old stepdaughter, Alecia "Desirae" Castillo, during the same criminal transaction. See TEX. PENAL CODE § 19.03(a)(7)(A). On February 4, 2010, applicant went out to eat with the couple's two sons, ten-year-old Piero and two-year-old Lucas. During the meal, applicant told Piero where he should live if applicant or Melissa died. When applicant returned the boys to Melissa's apartment that evening, he argued with Melissa, then he shot and killed both Melissa and Desirae with a gun he had purchased the previous afternoon. He also pointed his gun at Melissa's nine-year-old niece during the incident. Applicant left the scene with Lucas, traveling at a high rate of speed and ramming his truck through the apartment's automatic gate. He then took $1,400 from a safe at his workplace and purchased 100 rounds of ammunition at a Walmart store in Wharton County. At approximately 11:00 p.m., police apprehended applicant as he was leaving the Walmart with Lucas. Police searched applicant's truck and found the gun he used to kill Melissa and Desirae, the cash he took from his employer, a large hunting knife, and a loaded shotgun.
In October 2011, a jury found applicant guilty of the offense of capital murder. At punishment, the jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Cole v. State, No. AP-76,703 (Tex. Crim. App. June 18, 2014).
Applicant presents eight allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing. The trial court adopted the State's findings of fact and conclusions of law recommending that the relief sought be denied.
This Court has reviewed the record with respect to the allegations made by applicant. In Claim 1, applicant asserts that the "10-12 Rule" is unconstitutional because it allows the majority of the jury to improperly pressure an individual juror who wants to vote for life instead of death. In Claim 2, applicant relies on a juror's affidavit to argue that a particular juror was in fact pressured to vote in this way. However, we have repeatedly upheld the "10-12 Rule" as constitutional. Leza v. State, 351 S.W.3d 344, 362 (Tex. Crim. App. 2011); Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005). And we may not consider the juror's affidavit under Rule 606(b) of the Texas Rules of Evidence. Without more, these claims have no merit.
In Claims 3, 4, and 5, applicant claims that his trial counsel were ineffective because they: failed to present the testimony of a psycho-pharmacology expert; failed to fully and accurately present applicant's life history of trauma at the punishment phase; and failed to object to the State's purposeful discriminatory use of peremptory strikes against minority veniremembers. In Claim 6, applicant argues that appellate counsel was ineffective for failing to raise additional constitutional challenges to the Texas death penalty scheme on direct appeal. Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984). He fails to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. at 689.
In Claim 7, applicant contends that the Texas death penalty scheme is unconstitutional because of prosecutorial discretion and racial disparity in seeking the death penalty and sentencing defendants to death. In Claim 8, he complains that the future dangerousness special issue is unconstitutionally vague. We will not review the merits of these habeas claims because applicant failed to raise them on direct appeal. Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004), citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991).
Based upon the trial court's findings and conclusions and our own review, we deny relief.
IT IS SO ORDERED THIS THE 8 DAY OF FEBRUARY, 2017. Do Not Publish