Opinion
NO. WR-80,923-01
12-16-2020
EX PARTE RODERICK HARRIS, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. F-0900409-Y IN CRIMINAL DISTRICT COURT NO. 7 DALLAS COUNTY
Per curiam. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In May 2012, a jury convicted Applicant of the capital murder of Alfredo Gallardo in the course of committing or attempting to commit robbery. See TEX. PENAL CODE § 19.03(a)(2). 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. Harris v. State, No. AP-76,810 (Tex. Crim. App. May 21, 2014) (not designated for publication).
Unless otherwise indicated, all references to "Articles" refer to the Texas Code of Criminal Procedure.
In his application, Applicant presents six claims challenging the validity of his conviction and sentence. The trial court held an evidentiary hearing, entered findings of fact and conclusions of law, and recommended that we deny the relief that Applicant seeks.
We have reviewed the record regarding Applicant's allegations. Some of his claims are multifarious and overlapping. In Claims 1 and 2, Applicant argues that counsel were ineffective for failing to introduce certain mitigating evidence, including: • Expert testimony to show that he has suffered permanent brain damage due to Fetal Alcohol Spectrum Disorder and toxic lead exposure; • A social worker to explain how his childhood experiences influenced his behavior; • A gang expert to rebut the State's gang expert and to place in context Applicant's past involvement in a youth gang; and • An expert to discuss the "school to prison pipeline."
In Claim 3, Applicant argues that his counsel were ineffective for failing to object to testimony that he was wearing a stun belt when he was inadvertently allowed to ride unsupervised in an elevator. In Claims 4 and 5, Applicant faults defense counsel's decision not to object—and appellate counsel's decision not to bring a claim—regarding testimony and evidence about: • The fatal injuries Applicant inflicted on Carlos Gallardo, Alfredo Gallardo's brother, during the same criminal transaction; • First responders' efforts to save Alfredo Gallardo; • The fact that Applicant shot at responding officers as he tried to escape; • Items found in a car that was parked at the scene of the crime; and • Applicant's booking sheet which listed the car's license plate.
Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of these proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
In Claim 4, Applicant additionally alleges that he was denied due process by trial counsel's failure to object—and the trial court's overruling counsel's pretrial evidentiary objections—to the admission of forensic evidence regarding the death of Carlos Gallardo. Applicant killed Carlos Gallardo during the same robbery in which he killed Alfredo Gallardo. He fails to demonstrate that the trial court or trial counsel erred. Cf. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) ("Evidence of another crime, wrong, or act also may be admissible as same-transaction contextual evidence where 'several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony . . . of any one of them cannot be given without showing the others.'") (citations omitted); see also Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) ("[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence."). Similarly, Applicant has not demonstrated that a due process violation resulted from counsel's decision not to object to the forensic evidence enumerated in Claim 5.
Applicant's constitutional challenge in Claim 6 to Article 37.071's "10-12 Rule" is not cognizable on habeas review and lacks merit; he raised a similar claim on direct appeal and we have previously rejected such challenges. See Ex parte Hood, 304 S.W.3d 397, 402 n.21 (Tex. Crim. App. 2010) ("[T]his Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal."); see also Smith v. State, 297 S.W.3d 260, 278 (Tex. Crim. App. 2009) (rejecting the argument that the "10-12 rule" violates the Eighth Amendment principles discussed in Mills v. Maryland, 486 U.S. 367 (1988), and that the trial court violated the defendant's constitutional rights "by instructing the jury in this manner"). Applicant also argues in Claim 6 that the statutory instructions misled at least one juror, offering a juror's affidavit in support. The affidavit describes the juror's deliberative process and purports to convey aspects of the group's deliberations. Her affidavit is not competent, admissible evidence here. See TEX. R. EVID. 606(b).
We adopt the trial court's findings of fact and conclusions of law. Based upon the trial court's findings and conclusions and our own review of the record, we deny relief. IT IS SO ORDERED THIS THE 16TH DAY OF DECEMBER, 2020. Do Not Publish
We note that, in Findings 264, 355, and 365, the habeas court refers to "the capital murder of Carlos Gallardo," instead of the capital murder of Alfredo Gallardo. This appears to be a clerical error and does not affect the validity of the court's findings. --------