Opinion
WR-88,477-01
03-27-2024
EX PARTE ISIDRO MIGUEL DELACRUZ, Applicant
Do Not Publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. B-14-1134-SA-W-1 IN THE 119TH JUDICIAL DISTRICT COURT TOM GREEN COUNTY
ORDER
PER CURIAM
This is an initial application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
Unless we specify otherwise, all references in this order to "Articles" refer to the Texas Code of Criminal Procedure.
In April 2018, a jury convicted Applicant of capital murder for intentionally or knowingly causing the death of an individual under ten years of age. Tex. Penal Code § 19.03(a)(8). Based on the jury's answers to the special issues set forth in Article 37.071, Sections 2(b) and 2(e), the trial court sentenced Applicant to death. See Art. 37.071, § 2(g). We affirmed Applicant's conviction and sentence on direct appeal. See Delacruz v. State, No. AP-77,079 (Tex. Crim. App. Mar. 1, 2023) (not designated for publication).
In February 2022, Applicant filed the instant initial writ application in the trial court, raising thirteen claims for habeas relief. Paraphrased, in those claims Applicant alleges that:
• he was deprived of his federal and state constitutional rights to confront non-testifying DNA analyst Daniel Lindley (Claim 1);
• his trial counsel rendered constitutionally ineffective assistance by failing to: (a) raise timely Confrontation Clause objections (Claim 2), (b) retain an independent DNA expert (Claim 3), (c) present Crime Scene Investigator Christine Ramirez's findings on various issues (Claim 4), (d) retain an independent "CSE/BPA" expert (Claim 5), and (e) cite relevant intervening legal authority in support of his motion for new trial (Claim 11);
• the State used false and material lay testimony and expert testimony to obtain Applicant's conviction (Claims 6 and 7);
• the State's investigation of the victim's death was so flawed and improper that it denied Applicant his federal and state constitutional rights to due process, due course of law, and trial by a fair and impartial jury (Claim 8);
• the State did not disclose potentially exculpatory evidence in sufficient time for the defense to use it at trial (Claim 9);
• the trial court erred at the punishment phase because its charge did not inform the jury that, if it was unable to answer any special issue submitted under Article 37.071, §2(b) or (e), then the trial court would sentence Applicant to life imprisonment without parole (Claim 10);
• Applicant's appellate counsel rendered constitutionally ineffective assistance because appellate counsel failed to cite relevant intervening legal authority to support direct appeal point of error number 10, which concerned the "12-10 Rule"
(Claim 12); and
• Applicant is actually innocent of the decedent-child's murder (Claim 13).
The record before us shows that the trial court held a live evidentiary hearing on Claims 2 through 5 in September 2022. At the evidentiary hearing's conclusion, the trial court directed the parties to submit proposed findings of fact and conclusions of law (FFCLs) concerning all thirteen allegations raised in Applicant's initial writ application.
On March 6, 2024, we received the trial court's FFCLs regarding Applicant's habeas allegations and its recommendation that we deny habeas relief on those claims on procedural grounds, substantive grounds, or both. 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) ("We have said countless times that habeas corpus cannot be used as a substitute for appeal, and that it may not be used to bring claims that could have been brought on appeal.").
We have reviewed the record concerning Applicant's habeas allegations. Claims 1, 6, 7, 8, 9, and 10 are procedurally barred from receiving a merits review in this habeas proceeding because they were either raised and rejected on direct appeal, or could have been raised but were not. See Hood, 304 S.W.3d at 402 n.21; Nelson, 137 S.W.3d at 667.
As to Applicant's claims alleging that he received ineffective assistance of trial counsel (Claims 2, 3, 4, 5, and 11), he fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his trial 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).
Concerning Applicant's contention that his appellate counsel rendered ineffective assistance (Claim 12), he has failed to show that appellate counsel's decision not to cite to the legal authority at issue was objectively unreasonable, or that there is a reasonable probability that, but for counsel's failure to cite to this authority, Applicant would have prevailed on appeal. Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012).
Regarding Applicant's Schlup -based actual innocence allegation (Claim 13), Applicant has failed to show that in light of new evidence, it is more likely than not that no rational juror would have convicted him beyond a reasonable doubt. Ex parte Reed, 670 S.W.3d 689, 745 (Tex. Crim. App. 2023).
Schlup v. Delo, 513 U.S. 298, 314 (1995).
We adopt the trial court's FFCLs. Based upon the trial court's FFCLs and our own review, we deny habeas relief as to all of Applicant's claims.
IT IS SO ORDERED THIS THE 27th DAY OF MARCH, 2024.
Yeary, J., concurred.