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Vernon v. Davis

United States District Court, N.D. Texas, Fort Worth Division

April 13, 2017

ELI VERNON III, aka ELI MIMS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS UNITED STATES DISTRICT JUDGE

         Before 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.

         After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. FACTUAL AND PROCEDURAL HISTORY

         In 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 police.
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.)

         II. ISSUES

         Petitioner 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 ...

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