United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by petitioner, Eli Vernon III,
also known as Eli Mims, a state prisoner, against Lorie
Davis, director of the Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent.
having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should
FACTUAL AND PROCEDURAL HISTORY
January 2013 in Parker County, Texas, Case No. CR13-0053,
Petitioner was indicted on one count of evading arrest or
detention with a motor vehicle. (Adm. R., Clerk's R. 79,
ECF No. 12-12.) A jury found Petitioner guilty, found that he
used a deadly weapon in the course of committing the offense,
found the enhancement allegations in the indictment true, and
assessed his punishment at 50 years' confinement.
(Id. at 13.) Petitioner appealed his conviction, but
the Eleventh District Court of Appeals of Texas affirmed the
trial court's judgment and the Texas Court of Criminal
Appeals refused Petitioner's petition for discretionary
review. (Id., Docket Sheet 2, ECF No. 9-5.)
Petitioner also sought state postconviction habeas relief by
filing a state habeas-corpus application, which was denied by
the Texas Court of Criminal Appeals without hearing on the
findings of the trial court. (Id., Writ Rec'd
& Action Taken, ECF Nos. 9-20 & 9-22.) The appellate
court summarized the testimony at trial as follows:
B.J. Ellis testified that, on the afternoon of November 14,
2012, he was at a gas station in Weatherford when Appellant
approached him and tried to sell him jewelry. Appellant
showed Ellis receipts from Gordon's Jewelers in an
attempt to prove that the jewelry was real. Appellant stated
that the jewelry was purchased with a stolen credit card and
that he was willing to sell the jewelry for “pennies on
the dollar.” Ellis believed that Appellant was involved
in criminal activity and rejected his offer.
After Appellant walked away, Ellis called 911 and reported
Appellant's behavior. Appellant drove off in what Ellis
believed was a black Chevrolet Malibu, and Ellis followed
him. Ellis continued to speak with the 911 dispatcher until
the responding police officers located Appellant's
vehicle. According to Ellis, the officers engaged Appellant
and motioned for him to pull over. Appellant did not pull
over; instead, he accelerated and erratically crossed lanes.
Appellant was eventually detained, and Ellis confirmed that
Appellant was the same individual who had attempted to sell
him jewelry at the gas station.
The 911 call was played for the jury. On the recording, Ellis
reports that he is traveling on Interstate 20, following a
black Chevrolet Malibu, because the driver just attempted to
sell him jewelry that was purchased with a stolen credit
card. The 911 dispatcher can then be heard incorrectly
relaying Ellis's report to police, stating that a man
tried to sell Ellis a stolen credit card.
Captain William “Billy” Ray of the Willow Park
Police Department (WPPD) testified that, on the afternoon of
November 14, 2012, dispatch informed him that Ellis was
following an individual who had just attempted to sell him a
stolen credit card. Captain Ray then headed to Ellis's
location in his marked police vehicle.
Captain Ray caught up with Ellis and observed that Officer
Tracey Cryer was already in pursuit of Appellant. As Captain
Ray and Officer Cryer chased Appellant, who was actually
driving a black Chevrolet Impala, 2 they reached
speeds up to 107 miles per hour. During the pursuit,
Appellant drove recklessly through traffic and erratically
switched lanes. Captain Ray noted that Appellant's
behavior was consistent with someone who was fleeing from the
2Captain Ray noted that a Chevrolet Malibu and a
Chevrolet Impala are similar in appearance.
The pursuit finally ended when another car swerved in front
of Appellant, which caused him to slam on his brakes and lose
control of his vehicle. Appellant's vehicle struck a
guardrail before it rammed into a light pole in the median of
the highway and came to a stop.
Captain Ray parked his patrol car directly in front of
Appellant's vehicle to prevent him from driving away.
Captain Ray then drew his weapon and ordered Appellant to
exit his vehicle. Appellant complied with the order, and
Officer Cryer assisted him out of the vehicle.3
3The video taken from the dashboard camera in
Captain Ray's patrol vehicle was also played for the
jury. The video corroborated Captain Ray's testimony.
Officer Cryer testified that, on November 14, 2012, he was
notified by dispatch that the driver of a black Chevrolet
Malibu, later confirmed to be Appellant, was reportedly in
possession of stolen jewelry and/or a stolen credit card.
Officer Cryer then headed to Appellant's location in his
marked patrol car. Officer Cryer eventually caught up to
Appellant's vehicle and turned on his lights and siren.
Officer Cryer reported that the officers reached speeds up to
107 miles per hour while in pursuit of Appellant. Officer
Cryer noted that Appellant drove recklessly and made it
apparent that he did not want to stop. Appellant's
vehicle eventually spun out of control, struck a guardrail,
and hit a light pole in the median of the highway.
Officer Cryer subsequently searched Appellant's vehicle
and found several small boxes containing various pieces of
inexpensive costume jewelry, a bag of loose costume jewelry,
and a number of receipts from Gordon's Jewelers. Officer
Cryer noted that the receipts had several obvious errors on
them that indicated they were fake.
Appellant made a motion for directed verdict and argued that
the State had failed to prove each element of the charged
offense. The trial court denied the motion.
(Id., Mem. Op. 2-4, ECF No. 9-6.)
raises the following grounds for relief:
(1) He was denied his Sixth and Fourteenth Amendment right to
a fair cross-section of the community on his venire panel;
(2) His indictment and jury charge failed to “give
culpable mental state” thereby rendering the trial