Ex parte Medina

• Decision Date: 25 January 2017
• Docket Number: WR-41,274-05
• Citation: Ex parte Medina, WR-41,274-05 (Tex. Crim. App. Jan 25, 2017)
• Parties: EX PARTE ANTHONY SHAWN MEDINA
• Court: Texas Court of Criminal Appeals

EX PARTE ANTHONY SHAWN MEDINA

WR-41,274-05

COURT OF CRIMINAL APPEALS OF TEXAS

January 25, 2017

ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 726088 IN THE 228^TH JUDICIAL DISTRICT COURT HARRIS COUNTY

NEWELL, J., filed a concurring opinion in which KELLER, P.J., YEARY, and WALKER, JJ., joined.

OPINION

Anthony Shawn Medina has filed a fifth post-conviction application for a writ of habeas corpus, as well as a motion to reconsider a previously filed application. He comes to this Court again seeking relief based on alleged Brady/Giglio/Napue violations and claims of trial counsel's ineffective assistance. Additionally, he asserts a claim of actual innocence for the first time. The merits of Medina's Brady/Giglio/Napue and ineffective assistance claims-which underlie his actual innocence claim-have been completely and thoroughly reviewed and rejected. Medina is not entitled to re-litigate claims that have already been resolved on the merits. I agree with this Court's dismissal of Medina's post-conviction application pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5, and the Court's decision to refuse reconsideration of Medina's prior subsequent writ application.

The Capital Murder

The evidence in this case establishes that shortly after midnight on January 1, 1996, a blue Oldsmobile, full of La Raza 13 ("LRZ") gang members, slowed down in front of the Rodriguez home. The front seat passenger held an SKS assault rifle out of the window and opened fire into a crowd of children and teenagers standing in the well-lit front yard of the home. The young people, mostly family, were attending a New Year's Eve celebration.

Gunfire struck several cars, the home, and three people. Rocio Pedrosa, 18, was shot in the abdomen. She survived. The capital murder victims-an eight-year-old boy and his thirteen-year-old sister-were nearest to the gunfire. The boy sustained two fatal wounds; one piercedhis head while the other pierced his arm and traveled into his chest. His sister sustained a non-fatal wound, which pierced her right breast, and a fatal wound, which pierced her left shoulder and traveled into her neck.

The Rodriguez home had been targeted by the LRZ gang because Veronica Rodriguez, the victims' cousin, was the girlfriend of Marco "Blue" Martinez, an H-town Crip. Marco, who wasn't welcome inside the Rodriguez home, was not there: he had picked Veronica up earlier in the evening, and dropped her off after the shootings. The drive-by was retaliation for the H-town Crips' murder of a LRZ gang member at the Meyer Park Cinema a year earlier.

There was evidence that Applicant (age 21), D.H. (age 16), James Moore (age 22), J.V. (age 14), V.P. (age 13), and S.P. (age 16)-all members or associates of the LRZ street gang-were in the Oldsmobile during the drive-by. Moore was the driver; it was his car. J.V., V.P., and S.P. were alleged to be in the backseat. Also possibly in the car were LRZ's Alex "Slim" Perez (age 18) and R.J. (age 15). D.H. claimed to have been in the back seat while Medina sat in the front passenger seat and fired the SKS assault rifle during the drive-by. And that was the State's theory at trial. The defense theory was that D.H. was the shooter and that Medina was not even in the car.

Although Medina denied being in the Oldsmobile at the time of the shooting, he acknowledged riding around in it with everyone, being with the LRZ's who brandished guns at Hector Argueta's party on Ingomar Way (once at 11:00 p.m., and once around 2:00 a.m.), and going to an LRZ party at the home of Candelario "Candyman" Guerrero. Medina's statement was that, after the parties, he saw Moore and D.H. leave with the SKS assault rifle in Moore's car, and he did not know about the shooting until the next day. The defense in closing focused on the fact that D.H.'s palm prints were found on the plastic wrapping in which the SKS assault rifle (along with another rifle, two magazines and some cartridges) had been buried after the crime. But the jury convicted Medina of capital murder based on his role as the shooter and sentenced him to death.

The Direct Appeal

We upheld the conviction on direct appeal. Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999). Addressing a complaint that no accomplice witness instructions had been given, we found error on the lack of instruction for D.H. but no harm because of the non-accomplice evidence linking Medina to the offense. J.V. and R.J., who we determined were not accomplices, both connected Medina to the offense. J.V.testified that he saw Medina take the SKS assault rifle out of the trunk of the car and bring the gun with him into the front seat. Medina then shot six or seven times out the window as the car drove by the Rodriguez home. R.J. testified that, on the night of the murders, Medina admitted to being the shooter. She also testified that she saw Medina with the SKS assault rifle that night-a weapon that Medina, after he was arrested, instructed her to get rid of.

Medina connected himself to the crime through his written words. After the offense, Medina wrote a letter to Luisa Escobar. In that letter Medina wrote that he had "really fucked [himself] this time," and he begged Escobar not to let anyone tell his son, Matthew, how rotten he had been. Near the end of the letter Medina wrote, "Matthew, well, son, your pops made a real big screw up this time." Medina further wrote: "Just remember to always think before you do something. I never did. You see, I thought I had to always be the baddest around and I screwed myself trying in doing this."

Medina wrote a second letter to Escobar stating: "I was a bad boy out there, but don't let no one know. Okay? That's my big secret. . . . I always had to be the star of the show. I don't know why. But I built Ridgemont, me, Creeper, and I built a reputation every cop and hoodlumknew about. Everyone knew, everyone knew that when it came to the streets I was king. They knew if they tried me, I'd put them hoes to rest."

Previous Post Conviction Proceedings

Medina's -01 habeas application was dismissed as untimely in April 1999 (before the enactment of Article 11.071, Section 4A). Ex parte Medina, WR-41,274-01 (Tex. Crim. App. April 28, 1999) (not designated for publication). We later granted Medina new counsel pursuant to Article 11.071 § 4A. New counsel timely filed an application, the -02, with the trial court on November 21, 2001. While that application was still pending, Medina filed -03 and-04 applications. The -03 application, containing a single claim that Medina's death sentence was unconstitutional under Ring v. Arizona, was dismissed as an abuse of the writ in 2005. Ex parte Medina, No. WR-41,274-03, 2005 WL 3119179 (Tex. Crim. App. Nov. 23, 2005) (not designated for publication). Medina's -02 application-raising the following allegations-was received in this Court on June 17, 2009.

• The State withheld material evidence in violation of Brady v. Maryland and knowingly allowed false testimony to be presented to the jury in violation of Giglio v. United States and Napue v. Illinois.

• Trial counsel failed to meet minimal standards of representation, resulting in an unjust conviction; Medina was denied the effective assistance of counsel at the punishment phase of his trial; Medina's counsel on direct appeal rendered ineffective assistance.

• The trial court's charge at punishment was erroneous.

• The cumulative effect of the ineffective assistance of counsel and the State's Brady violations undermined all confidence in the verdict at Medina's trial.

• One of the jurors who sat in judgment of Medina lied about her criminal past so that she could serve.

• The process by which Harris County selects its grand juries produces an unconstitutional under-representation of Hispanics, in violation of the Sixth and Fourteenth Amendments.

• The trial court denied Medina due process when it rejected his request that Robert Baldwin, the State's firearms examiner, conduct testing which would have exculpated Medina.

• Medina's right to a fair trial under the Sixth Amendment, the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment was violated by the hostile atmosphere in the courtroom.

• In denying the jury's request for an instruction on voluntary intoxication as a mitigator, the trial court denied Medina's right to individualized sentencing under Lockett v. Ohio.

• The State's refusal to grant "use" immunity to two potential defense witnesses violated Medina's constitutional rights and his rights under international law.

• Medina's Fifth and Sixth Amendment rights to be present at all phases of the proceedings were violated when voir dire of potential jurors was conducted outside his presence.

• Medina's due process rights were violated when jury selection proceeded without him.

• Medina's sentence was enhanced by a finding that was not presented to the grand jury or alleged in the indictment, in violation of Apprendi v. New Jersey.

• Medina's prolonged stay on death row violates his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution.

The trial court did not hold an evidentiary hearing. The trial court adopted the State's proposed findings of fact and conclusions of law recommending that the relief sought be denied.

This Court reviewed the record with respect to the allegations made by Medina, and adopted the trial court's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, we denied the relief sought. See Ex parte Medina, Nos. WR-41,274-02 & -04, 2009 WL 2960466 (Tex. Crim. App. Sept. 16, 2009) (not designated for publication). In that same order, the -04 application, containing the single claim that "the judgments of conviction and sentence of death in Medina's case are void because the judicial officer who presided at histrial was without authority to preside over the trial," was dismissed as an abuse of the...