Ex parte Barbee

• Decision Date: 10 February 2021
• Docket Number: NO. WR-71,070-03,WR-71,070-03
• Parties: EX PARTE Stephen Dale BARBEE, Applicant
• Court: Texas Court of Criminal Appeals

616 S.W.3d 836

EX PARTE Stephen Dale BARBEE, Applicant

NO. WR-71,070-03

Court of Criminal Appeals of Texas.

Delivered: February 10, 2021

OPINION

Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Slaughter, and McClure, JJ., joined.

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071, Section 5. Applicant seeks relief under McCoy v. Louisiana , ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018), which he claims was a previously unavailable legal basis for his claim. We filed and set his application to address whether he is entitled to relief under McCoy . We conclude that the legal basis for the current claim was previously available, and even if it were not, Applicant fails to allege facts that would entitle him to relief under McCoy . Consequently, we dismiss this subsequent application as an abuse of the writ. TEX. CODE CRIM. PROC. art. 11.071 § 5(c).

I. Article 11.071, Section 5

Unless an applicant for a writ of habeas corpus meets a very fine-tuned exception, he is limited to one full and fair opportunity to present any claims that may entitle him to relief from his judgment or sentence. Ex parte Kerr , 64 S.W.3d 414, 418-19 (Tex. Crim. App. 2002). "[E]verything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot." Id. (quoting S.B. 440, Acts 1005, 74th Leg., codified at TEX. CODE CRIM. PROC. art. 11.071 (Presentation by Representative Pete Gallego at second reading of S.B. 440 on the floor of the House of Representatives, May 18, 1995)).

Applicant relies on the "previously unavailable legal basis" exception to the bar against subsequent applications. Under that exception, we may consider the merits of a subsequent application if it contains sufficient specific facts establishing that the claim has not been and could not have been previously presented because the legal basis for the claim was unavailable when the previous application was filed. The exception says:

(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application[.]

TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1).

A legal basis was previously unavailable if it "was not recognized by or could not have been reasonably formulated from a final decision of" a relevant court "on or before" the date the previous application was filed. TEX. CODE CRIM. PROC. art. 11.071 § 5(d). A legal basis was previously available if it "could have been rationally fashioned" from relevant precedent, Ex parte Navarro , 538 S.W.3d 608, 615 (Tex. Crim. App. 2018) (construing same language as found in Texas Code of Criminal Procedure Article 11.07, Section 4(a)(1) and rejecting challenge to adequacy of juvenile transfer order), or if it is founded on "familiar principles articulated in earlier cases" from relevant courts. See Ex parte St. Aubin , 537 S.W.3d 39, 45 (Tex. Crim. App. 2017) (rejecting multiple-punishments, double-jeopardy claim in subsequent writ because legal basis was previously available). The likelihood of a claim's success is irrelevant to determining whether its legal basis was previously unavailable. Navarro , 538 S.W.3d at 615. But a legal basis was previously unavailable if subsequent case law makes it easier to establish the claim and renders inapplicable factors that had previously been weighed in evaluating its merits. See Ex parte Chavez , 371 S.W.3d 200, 207 (Tex. Crim. App. 2012) (holding that the legal basis for a due process violation based on the State's unknowing use of false testimony was previously unavailable).

In addition to establishing the previous unavailability of the legal basis for his claim, the applicant must allege facts that, if true, would entitle him to relief on that basis. See Ex parte Staley , 160 S.W.3d 56, 63 (Tex. Crim. App. 2005) (per curiam).

Applicant claims that his attorney violated his Sixth Amendment right to assistance of counsel by making a strategic concession of his guilt over his express objection. He argues that the legal basis for his claim was unavailable until 2018 when the Supreme Court issued its opinion in McCoy , 138 S. Ct. 1500. But the legal basis for Applicant's claim could have been reasonably formulated from existing precedent because McCoy was the logical extension of Florida v. Nixon , 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), based on the factual distinctions—not legal ones—between the two cases. Furthermore, Applicant does not allege facts that would entitle him to relief under McCoy ’s terms even if it were a previously unavailable legal basis for his claim. Consequently, we must dismiss his application. TEX. CODE CRIM. PROC. art. 11.071 § 5(c).

II. Applicant's Confessions and Trial

Applicant was charged with capital murder for killing his pregnant ex-girlfriend, Lisa Underwood, and her seven-year-old son, Jayden, in the same criminal transaction.

Lisa was reported missing when she failed to show up for her baby shower. At her home, police found no signs of forced entry, but blood—later identified as hers—was on the walls, the furniture, and the floor in the living room. More blood was on the floor of the garage, and her car was gone.

Early that same morning, a deputy saw Applicant on foot, wet and covered in mud, near a creek. Applicant gave him a false name and fled into the nearby woods. Two days later, Lisa's car was found in the creek near which the deputy had encountered Applicant.

Applicant became a suspect in Lisa and Jayden's disappearance when police learned that Applicant could be the father of Lisa's unborn child. Lisa had been asking Applicant to tell his wife about the pregnancy and to provide insurance for the child, but Applicant refused to do so without a DNA test confirming that he was the father.

Applicant confessed to the police that he had killed Lisa and Jayden and showed them where he had buried the bodies. He also met with his wife, Trish Barbee, in the interrogation room, and that meeting was recorded. Trish asked Applicant how he killed Lisa, and he tearfully explained that he "held her down too long" and "it was an accident." He also admitted to his ex-wife that he had killed Lisa and Jayden but that he had not meant to do so.

Before trial, Applicant wrote a letter to his appointed attorneys recanting his confessions. He stated that he initially told the police that he did not know what happened to Lisa and Jayden, he was not there, and he did not do it. He told defense counsel that the detective threatened him with the death penalty if he did not talk, so he said the killings were an accident: he and Lisa got into an argument, she kicked him, he hit her in the nose, he held her down too long, and he put his hand over Jayden's face until he stopped screaming. Applicant recanted his confessions and changed his story, ultimately claiming that he was innocent of the murders. Applicant said he helped bury the bodies after his ex-wife's boyfriend and Applicant's employee, Ron Dodd, killed Lisa and Jayden.

Faced with Applicant's confessions, defense counsel concluded that the "Dodd did it" theory would not work at trial, and they instead pursued the theory that Lisa's death was accidental. This theory was supported by Applicant's confessions and by the medical examiner's testimony.

Dr. Marc Krouse, the medical examiner who performed the autopsy on Lisa, testified that Lisa's death resulted from traumatic asphyxiation

, possibly caused by smothering. He testified on cross-examination that, because Lisa was in a late stage of pregnancy, she was susceptible to smothering and might have stopped breathing after as little as thirty seconds of being held down.

The defense attorney summarized the theory in closing argument:

As hard as it is to say, the evidence from the courtroom shows that Stephen Barbee killed Jayden Underwood. There is no evidence to the contrary. The problem in the capital murder case is the evidence in this courtroom that you heard doesn't show that Stephen Barbee had the conscious objective or desire or that he knew his conduct was reasonably certain to cause the result, those two definitions there. And it is supported by the testimony of the 25-year veteran of the medical examiner's office, Dr. Marc Krouse. Dr. Krouse told you that he could not be sure when Lisa Underwood lost consciousness ... And Stephen Barbee's own words to his wife, it matches. That's the problem from their standpoint. What he told Trish Barbee is I held her down too long. That's exactly what matches the testimony of Dr. Marc Krouse. And as hard as it is to do, I submit to you that the evidence in this case, the conclusive beyond a reasonable doubt evidence, does not support an intentional or knowing murder for Lisa Underwood. Was he there? Yes. Did he hold her down? Yes. Did he know or intend that she was going to die or was that his conscious objective? The answer is no.

The trial court charged the jury on the lesser-included offenses of murder and manslaughter, but the jury found Applicant guilty of capital murder. Pursuant to the jury's answers to the special issues, the trial court sentenced Applicant to death.

Applicant did not testify at trial or object to the defense strategy.

III. Relevant Procedural History

We affirmed Applicant's conviction and sentence on direct appeal. Barbee v. State , No. AP–75,359, 2008 Tex. Crim. App. Unpub. LEXIS 900 (Tex. Crim. App., Dec. 10, 2008).

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