Carter, Tilon Lashon ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-70,722-03
EX PARTE TILON LASHON CARTER, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS
CORPUS IN CAUSE NO. C-371-011057-0949973-B
IN THE 2371ST JUDICIAL DISTRICT COURT
TARRANT 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 § 5.1
In November 2006, a jury found Applicant guilty of the offense of capital murder.
See TEX. PENAL CODE § 19.03(a). Based on the jury’s answers to the punishment phase
special issues set forth in Article 37.071, the trial court sentenced Applicant to death.
1
Unless otherwise indicated, all future references in this order to Articles refer to the
Texas Code of Criminal Procedure.
Carter - 2
This Court affirmed Applicant’s conviction and sentence on direct appeal. Carter v.
State, No. AP-75,603 (Tex. Crim. App. Jan. 14, 2009) (not designated for publication).
We also denied relief on Applicant’s initial post-conviction application for writ of habeas
corpus. Ex parte Carter, No. WR-70,722-01 (Tex. Crim. App. Dec. 15, 2010) (not
designated for publication).
On May 8, 2017, Applicant filed in the trial court this, his first subsequent
application for a writ of habeas corpus, raising three claims for relief. After reviewing the
application, this Court remanded to the trial court for a review on the merits Applicant’s
first and third claims, set forth below:
Claim 1 “[Applicant’s] Due Process Rights Were Violated When the
State Presented False or Misleading Testimony by the State
Medical Examiner [Dr. Nizam Peerwani] that [the Victim]
Had Been Intentionally Smothered”; and
Claim 3 “New Scientific Evidence, Unavailable at the Time of
[Applicant’s] Trial, Contradicts Scientific Evidence the State
Relied on at Trial and Establishes, by a Preponderance of the
Evidence, That He Would Not Have Been Convicted Had [I]t
Been Presented at Trial.”
Ex parte Carter, No. WR-70,722-03 (Tex. Crim. App. Sept. 27, 2017) (not designated for
publication). The case has now been returned to this Court.2
2
On July 29, 2019, while Applicant’s claims were pending in the trial court, Applicant
filed his second subsequent application for writ of habeas corpus, raising four claims. After
review, we determined that the allegations in Applicant’s second subsequent application did not
meet the requirements of Article 11.071, § 5, and dismissed that application as an abuse of the
writ. Ex parte Carter, No. WR-70,722-04 (Tex. Crim. App. Mar. 17, 2021) (not designated for
publication).
Carter - 3
We have determined that these claims should be filed and set. While the Court
will not hear oral argument, it has determined that both parties should file briefs. In
addition to any general briefing of the claims that the parties may wish to include, the
parties should brief the following issues:
1. Did any of the evidence presented and admitted at the evidentiary hearing
exceed the scope of the claims as Applicant phrased and argued them in his
application?
2. If so, should we consider any such evidence?
Briefs from both Applicant and the State are due in this Court within 30 days of the date
of this order. No motions for extension of time to file will be entertained.
IT IS SO ORDERED THIS THE 6TH DAY OF OCTOBER, 2021.
Do Not Publish