Will, Robert Gene Ii ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
WR-63,590-03
EX PARTE ROBERT GENE WILL II
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. 862715-C IN THE 185 TH DISTRICT COURT
HARRIS COUNTY
Per curiam.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071, Section 5.
On January 23, 2002, Applicant was convicted of the offense of capital murder. The
jury answered the special issues submitted under Article 37.071 of the Texas Code of
Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court
affirmed Applicant’s conviction and sentence on direct appeal. Will v. State, No. AP-74,306
Will–2
(Tex. Crim. App. Apr. 21, 2004) (not designated for publication). We denied relief on
Applicant’s initial post-conviction application for writ of habeas corpus, Ex parte Will, No.
WR-63,590-01 (Tex. Crim. App. Mar. 29, 2006) (not designated for publication), and
dismissed his second such application, Ex parte Will, No. WR-63,590-02 (Tex. Crim. App.
Sept. 12, 2007) (not designated for publication). We received Applicant’s instant post-
conviction application for writ of habeas corpus on September 23, 2013.
Applicant presents three allegations in the instant application. In his first allegation,
Applicant contends that he is actually innocent. In his second allegation, Applicant asserts
that the State violated his due process rights under Brady v. Maryland1 by withholding
material exculpatory evidence. In his third allegation, Applicant argues as an alternative to
his Brady claim that, if the State did not withhold the evidence at issue, then his trial and
appellate counsel were constitutionally ineffective for failing to discover, investigate, and
present the disclosed exculpatory evidence.
After determining that we might consider this subsequent state application,2 see Ex
parte Soffar,143 S.W.3d 804 (Tex. Crim. App. 2004), we reviewed the application and found
that Applicant’s first and second allegations might satisfy the requirements of Texas Code
1
373 U.S. 83 (1963).
2
The record reflects that Applicant is currently challenging his conviction in Cause
No. H-07-CV-1000, styled Robert Gene Will II v. William Stephens, in the United States District
Court for the Southern District of Texas, Houston Division. The record also reflects that the
federal district court has entered an order staying its proceedings for Applicant to return to state
court to consider his current unexhausted claims.
Will–3
of Criminal Procedure Article 11.071, Section 5(a). Accordingly, we remanded this cause
to the trial court for consideration of Applicant’s first and second allegations.
The trial court, without holding an evidentiary hearing, adopted the State’s amended
proposed findings of fact and conclusions of law recommending that relief be denied because
Applicant had failed to establish his actual innocence or that the State committed a due
process violation under Brady.
This Court has reviewed the record with respect to Applicant’s allegations. We adopt
the trial judge’s amended findings and conclusions, with the following exceptions. We do
not adopt Factual Finding Number 70, which reads, in pertinent part, that “[t]he Court finds
unpersuasive trial counsel Cunningham’s habeas affidavit assertion that he would have called
[David] Cruz to testify in light of the applicant’s inability to corroborate Cruz’s assertions
with documentary evidence.” We also decline to adopt Factual Findings Numbers 76, 89,
and 92, and Conclusions of Law Numbers 2 and 6, to the extent they state that the evidence
is not favorable under Brady. Based upon the trial court’s amended findings and conclusions
and our own review, we deny relief.
IT IS SO ORDERED THIS THE 25TH DAY OF NOVEMBER, 2015.
Do Not Publish