APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS IN
CAUSE NO. 506814 IN THE 208TH DISTRICT COURT
are post-conviction applications for writs of habeas corpus
filed pursuant to the provisions of Texas Code of Criminal
Procedure Article 11.071 § 5.
13, 1989, a jury convicted applicant of the offense of
capital murder. Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure
Article 37.071, the trial court sentenced applicant to death.
Article 37.071(e). This Court affirmed applicant's
conviction and sentence on direct appeal. Jennings v.
State, No. AP-70, 911 (Tex. Crim. App. Jan. 20,
1993)(not designated for publication). On September 20, 1996,
applicant filed his initial post-conviction application for a
writ of habeas corpus in the convicting court. On June 16,
2001, applicant filed in the convicting court a
"supplement" to that application. This Court
received the applications in March 2007.
reviewing the cases, this Court filed and set two of the
ineffective assistance claims from the initial writ
application, and it filed and set the single claim raised in
the subsequent application. The Court ultimately issued an
opinion denying applicant relief. Ex parte Jennings,
Nos. AP-75, 806 and AP-75, 807 (Tex. Crim. App. Nov. 26,
2008)(not designated for publication). Applicant filed his
second subsequent application in the trial court on May 4,
second subsequent application, applicant asserts that: (1)
the State destroyed, lost, or suppressed relevant mitigating
evidence; (2) the unconstitutional "nullification"
instruction prevented the jury from fully considering and
giving effect to certain mitigating evidence; (3) trial
counsel were ineffective in failing to discover and present
certain mitigating evidence; and (4) the death penalty
violates the constitutional prohibition against cruel and
unusual punishment. After reviewing applicant's writ
application, we find that he has failed to make a prima
facie showing of a Bradyviolation, and he has
otherwise failed to satisfy the requirements of Article
11.071 § 5. Accordingly, we dismiss the application as
an abuse of the writ without reviewing the merits of the
claims. Art. 11.071 § 5(c).
20, 2016, applicant filed in the trial court a pleading
titled a "Supplement to Subsequent Application for a
Writ of Habeas Corpus, " in which he raises a claim that
"the unconstitutional 'nullification'
instruction prevented the jury from fully considering and
giving effect to mitigating evidence of [his] remorse."
After reviewing applicant's claim, we find that he has
failed to satisfy the requirements of Article 11.071 §
5. Accordingly, we dismiss this subsequent application as an
abuse of the writ without reviewing the merits of the claim.
Art. 11.071 § 5(c).
Hervey, J., filed a concurring opinion in which Keller, P.J.,
Keasler and Newell, JJ., joined.
Mitchell Jennings filed two subsequent writ applications
arguing that he is entitled to a new trial on five different
grounds. The Court stayed Jennings' execution to consider
his writ applications, and today it properly dismisses them
as subsequent. Ex parte Jennings, Nos. WR-67, 208-03
& WR-67, 208-04, 2016 WL 4637367 (Tex. Crim. App. Sept.
2, 2016) (per curiam, not designated for publication). I
write separately to address two of those claims.
argues that the mitigation instruction given by the trial
court was constitutionally deficient and that he was entitled
to a Penry instruction or additional special issue
because he exhibited remorse for the capital murder that he
committed. Ex parte Jennings, Nos. AP-75, 806 &
AP-75, 807, 2008 WL 5049911, at *7-*8 (Tex. Crim. App. Nov.
26, 2008) (not designated for publication) (addressing the
merits of, and rejecting, Jennings' Penry
overcome the subsequent-writ procedural bar, Jennings argues
that there is a new legal basis for relief in the form of a
decision from the Southern District of Texas. Williams v.
Davis, 192 F.Supp.3d 732 (S.D. Tex. 2016); see
Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). He
contends that, in that case, the district court held that the
future-dangerousness special issue did not give the jury a
meaningful vehicle through which it could give effect to
Williams's evidence of remorse.
Williams filed a post-conviction writ application in federal
court, this Court denied relief on his Penry claim.
Ex parte Williams, No. AP-76, 455, 2012 WL 2130951,
at *15 (Tex. Crim. App. June 13, 2012) (not designated for
publication). We reasoned, contrary to the district court,
that Williams was not entitled to a Penry
instruction based on the remorse evidence because the jury
could have given effect to that evidence through the
future-dangerousness special issue. Id.
we issued our decision, Williams filed a writ application in
federal court, alleging that this Court's decision was an
unreasonable application of federal law. The district court
agreed and conditionally granted relief, ordering the State
of Texas either to hold a new punishment hearing or to
commute his sentence to life imprisonment. Williams,
192 F.Supp.3d at 772.
Jennings makes the same claim as Williams, the decisions of
federal district courts are not binding on this Court and
cannot constitute a new legal basis for purposes of
the subsequent-writ procedural bar. See In re
Medina, 475 S.W.3d 291, 304 (Tex. Crim. App. 2015)
(noting that constitutional interpretations by federal
district courts are not binding on this Court); see also
Ex parte Hood, 211 S.W.3d 767, 775 (Tex. Crim. App.
2007) (holding that, to constitute a new legal basis, an
applicant must prove that his claim could not have been
reasonably formulated based on precedent from the United
States Supreme Court, federal appellate courts, or state
appellate courts). In fact, Section 5(d) of Article 11.071
speaks to only appellate courts; there is no mention of state
or federal trial courts. Tex. Code Crim. Proc. art. 11.071,
§ 5(d). To entertain Jennings' already litigated
Penry claim, the Court would need to overrule
Hood and hold that a federal district court decision
meets the dictates of Section 5(a)(1) of Article
11.071. But such a conclusion would fly in the
face of the plain language of the statute. Id.
Jennings cannot overcome the procedural bar preventing us
from considering the merits of his renewed Penry
claim, the Court properly dismisses it. I note, however,
that even if the Court were to reach the merits of his claim,
of Penry Claim
contends that he was entitled to a Penry instruction
because the cassette tape recording of his post-arrest
statement shows that he was remorseful for committing capital
murder. He alleges that,
• he cried during portions of the interview;
• he said that he was "real upset" because he
shot someone and did not know whether that person was alive
• when asked at the end of the interview if there was
anything else he wanted to say, he responded, "Remorse
in the way I feel about the incident that happened"; and
• he said he wished he could "take it all
back" and that he would "face whatever punishment I
listened to the entirety of Jennings' recorded audio
statement and having read habeas counsel's transcript
exhibit, it is my opinion that neither contains mitigating
evidence. With respect to Jennings' claims of crying, it
is not clear to me that he actually cried during the
interview. But even if he did, I understand him to be saying
that he was scared because he had shot someone while
perpetrating a robbery, that he did not know if the person
was still alive, and that he was "real upset" and
"hurting" because his accomplice unexpectedly shot
him when he returned to the getaway car. He also explained
that, because he was unable to find a permanent job after
being released from TDC, and "his people" were
already "hurting" when he got out, he started
committing robberies so he could provide for them. He claimed
that he used the money to buy clothes and other things. While
it is true that he used the word "remorse" during
his statement, when his comments are considered within the
context of the entire interview, it seems he regretted only
that the robbery was not routine as usual-meaning that they
got the money without anyone getting hurt-and that he will no
longer be able to provide for "his people" because
he will be in prison. The following are the relevant
[OFFICER]: Why did you keep this wallet?
[JENNINGS]: Probably cause I was hurting. It was in my pocket
when David shot me and it come out the window and, and you
know, it was happen real fast, right. I was, I was real
scared cause I know I had shot somebody in his place, you
know. I didn't know, and I was real upset and when, when
David shot me, you know, that threw me, where I tried to get,
run for my life and you know, it had me all upset, you know,
and when I got these people to my sister's house, I just
took everything out of my pocket and put it in my drawer at
the bottom of the dresser drawer.
* * *
[OFFICER]: [Jennings], anything (inaudible) that you would
like to say?
[JENNINGS]: Remorse in the way I feel about the incident that
happened. It was, I had been, we had been drinking, you know,
and I had seen this, when I come in the place, right, it was
just like we can do same or routine, like it had been going
easy, you know, no problem and then all of a sudden,
(inaudible), this dude come at me running, you know, and I
wish I could take it all back, you know, I know how you said
whatever punishment I get, if I could take it back, I would.
But it is, it happened, so I'm going to face whatever
punishment I have coming. Because if I'd been more
patient, you know, everybody tell you be patient, be patient,
be patient. But I thought that once I got out and went out
and applied applications all over, everywhere for everything
I knew how to do, driving, certified butcher, you know, all,
all the skills I had, things I know that I can be comfortable
with, things that I could do then nobody would call, you
know, and then it get a little (inaudible) here and little
(inaudible) there, like I didn't give it enough time to,
to come before I had to go out and react. My people need and
you know, they been needing before I got out this times. They
was needing, you know.
[JENNINGS]: And they got by, you know. Why couldn't I