IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUSTIN, TEXAS

__________________________________________)

)Ex Parte DAVID LEE POWELL, )

) TRIAL CAUSE NO.) 911524)

Applicant. ) COURT OF CRIMINAL) APPEALS ) NO. 71,399) NO. WR 7,407-04)

__________________________________________)

MOTION FOR RECONSIDERATION ON THE COURT’S OWN MOTIONDUE TO PROSECUTORIAL MISCONDUCT

David Lee Powell, by counsel, respectfully requests that the Court reconsider on its own

motion its order dismissing his Subsequent Application for Post-Conviction Writ of Habeas

Corpus, entered June 14, 2010. In support of this request, Mr. Powell set forth the following:

1. Before the subsequent application was transmitted to this Court on June 9, 2010,

Mr. Powell asked the trial court to withdraw or modify his execution date. The District Attorney

of Travis County filed the State’s Response Opposing Motion to Modify Execution Date. In that

response, the District Attorney drew the court’s attention to “a litany of acts and characteristics of

Mr. Powell that would be considered relevant to the issue of future dangerousness under any

conceptualization of that term. These are detailed on page 3 of the June 4, 2010, District

Attorney’s letter to the Texas Board of Pardons and Paroles, attached hereto as Exhibit A.” Id. at

1-2. In the letter to the Board, at the page referenced by the State’s Response, the District

Attorney noted several incidents that she believed ran counter to Mr. Powell’s claim that his

2

behavior in prison had conclusively refuted the prediction that he would continue to be

dangerous. The most significant, and clearly most inflammatory incident, was recounted as

follows:

Laura Popps an attorney with the Capital Litigation Division of the Attorney General’sOffice testified that in 1996 she received a call from a person named Jonathan Shrag. Shedocumented what he said in the phone call in a set of written notes. Popps testified thatShrag, an independent researcher, called her to tell her that in an interview with Powell,Powell told Shrag “that the best thing he could do when he got out of prison was toassassinate the justices of the United States Supreme Court.” Shrag had been to visitPowell in prison in 1993 and explained that Powell was upset about the Hererra decisionand that was the context in which those statements came up. Powell further told Shragthat he had a good insanity claim that should have gotten him off in his first trial. Shrag,who officed at the time at the Texas Campaign Against the Death Penalty, claimed that hecould not remember the conversation with Popps, but would not deny that it occurred. Infact he acknowledges he may have said it.

Id., Exhibit A, at 3-4 (emphasis in original).

2. This pleading, with the attached letter to the Board of Pardons and Paroles, was

transmitted to this Court on June 9, 2010, along with the subsequent habeas application, the

motion to withdraw the execution date, and a letter response undersigned counsel had quickly

filed after the District Attorney filed her opposition pleading. See Order of June 9, 2010, 167th

District Court of Travis County (transmitting the record to this Court).

3. The letter response that undersigned counsel filed within an hour of the District

Attorney’s filing of her pleading opposing the motion to withdraw the execution date was made

without reference to the trial record due to the shortness of time allowed by the 167 Districtth

Court for a response. Thus, the letter response did not argue to the trial court what undersigned

counsel now argues to this Court in this pleading. With respect to Mr. Powell’s alleged

assassination threat, the letter simply tried to downplay the comments as angry rhetoric.

3

4. Late in the afternoon on June 13, 2010, while working on a Petition for Writ of

Certiorari for the United States Supreme Court in anticipation of this Court’s dismissal of Mr.

Powell’s subsequent habeas application, undersigned counsel had occasion to review the trial

record with respect to the allegation that Mr. Powell had threatened to assassinate Supreme Court

Justices. What counsel found was shocking and deeply troubling.

(a) First, counsel found that the alleged testimony was only given in voir dire,

outside the presence of the jury, and was not allowed to be given to the jury. See Exhibit,

attached hereto (the transcript of testimony by Laura Popps and Jonathan Shrag).

(b) Second, counsel found that Jonathan Shrag, after having difficulty

remembering the incident in which an inmate made the assassination threat and his conversation

with Ms. Popps, testified unambiguously as follows:

A. I cannot testify that David Powell made that statement to me in the Texasdepartment of Corrections in 1993.

Q. And why is that, why can’t you testify to that?

A. Because I do not remember the face of – I don’t remember who I had theconversation with.

Q. Oh, somebody down there said this to you, you just can’t remember who it was?

A. That’s accurate. I can remember a conversation vaguely, some aspects of it moreclear than others, but I think I visited four or five guys on death – four or five guys in thatjail and we – and I talked about the Herrera case in particular with a number of them. Ithink it was sort of a big issue at the time. So exactly who said what is at this point intime confusing to me.

Trial Transcript, Vol. 38, at 265-66. At the end of his testimony, Mr. Shrag again testified, in

response to the district attorney’s characterization of his testimony:

4

A. No, that’s not my testimony. I can remember a conversation with a death rowinmate on death row who threatened a Supreme Court judge, justice, yes.

Q. (By Mr. Smith) You just can’t remember who did it now?

A. I cannot be certain of who did it, that’s correct.

Id. at 270.

(c) Third, in the face of this testimony, the trial court indicated that the

testimony would be excluded, but before he could do that, Assistant District Attorney Robert

Smith said, “I don’t want this in front of the jury. I wouldn’t sponsor this, Judge.” Id. at 270.

5. In light of the actual trial record, the District Attorney’s characterization of this

testimony in her letter to the Board of Pardons and Paroles is false in at least three respects.

First, it was not “testimony” at all, in the sense that it was admitted into evidence. Second, it

does not acknowledge in any respect that there was grave doubt about whether Mr. Powell, rather

than one of three or four other death row inmates, actually made the assassination threat. Third,

it does not acknowledge that the District Attorney’s own assistant refused to continue

“sponsor[ing]” this testimony because of the uncertainty about whether Mr. Powell made the

threat.

6. The only conclusion to be drawn from this matter is that the District Attorney was

trying to refute – in the most inflammatory way possible – the legion of evidence that Mr. Powell

has not posed a risk of danger for more than three decades. The District Attorney had to know

that this representation of the trial record was false and that it would have a devastating effect on

the claim that Mr. Powell was not only not dangerous but that he did not have the character to

pose a risk of dangerousness.

See also Ex parte Brooks, 219 S.W.3d 396, 400-01 (Tex.Crim.App. 2007) (noting that,1

in a subsequent application in a non-capital case, a habeas applicant must make a prima facieshowing of facts that establish a cognizable constitutional claim along with a prima facieshowing of innocence under a provision identical to Section 5(a)(2)); Ex parte Johnson, No. WR-56,197-02, Unpublished Opinion (Tex.Crim.App. July 20, 2007) (dismissal of application as anabuse of the writ under article 11.071 (5) for failure to make a “prima facie showing that theState withheld any evidence from its files” and for failure to show that the “‘newly discoveredevidence’ is either newly available or withheld by the state.”).

5

7. Mr. Powell cannot know whether this Court’s order of dismissal of June 14, 2010

was influenced by this gross and grossly prejudicial mis-representation of fact. What he does

know is that (a) the letter to the Board of Pardons and Paroles was transmitted to the Court from

the 167 District Court, (b) the District Attorney’s pleading to which this letter was attachedth

drew attention to this portion of the letter to the Board, (c) this Court simply noted that it was

dismissing Mr. Powell’s subsequent habeas application because of its failure to satisfy the

requirements of Article 11.071, § 5 of the Code of Criminal Procedure. What Mr. Powell also

knows is that in reaching such a determination, this Court has said repeatedly that it considers the

merits of the claim presented in a subsequent habeas application as well as the procedural

requirements of Section 5. See Ex parte Campbell, 226 S.W.3d 418, 421 (Tex.Crim.App. 2007)

(application of Section 5 requires consideration of whether a meritorious federal claim has been

alleged).1

8. For these reasons, it at least appears that the District Attorney’s false and

inflammatory representation of the trial record could have influenced this Court’s decision to

dismiss Mr. Powell’s subsequent habeas application.

6

9. The Supreme Court has long taught that the decision to take a person’s life must

be as reliable as it can be, and that the process by which this is done must be, and appear to be,

fair:

From the point of view of the defendant, [the decision to impose the death penalty] isdifferent in both its severity and its finality. From the point of view of society, the actionof the sovereign in taking the life of one of its citizens also differs dramatically from anyother legitimate state action. It is of vital importance to the defendant and to thecommunity that any decision to impose the death sentence be, and appear to be, based onreason rather than caprice or emotion.

Gardner v. Florida, 430 U.S. 349, 357-58 (1977). The District Attorney’s pernicious interjection

of a falsehood into the heart of the claim made by Mr. Powell creates the risk that this Court’s

decision to dismiss Mr. Powell’s claim was based on “caprice or emotion,” rather than reason.

Id. The only way to dispel this risk is to reconsider Mr. Powell’s case on the Court’s own

motion.

WHEREFORE, Mr. Powell requests that the Court reconsider the dismissal of his

subsequent habeas corpus application on its own motion.

Respectfully submitted,

RICHARD BURRTBA No. 240010052307 Union StreetHouston, Texas 77007(713) 628-3391(713) 893-2500 fax

Counsel for David Lee Powell

7

CERTIFICATE OF SERVICE

I certify that the foregoing application, with exhibit attached, was served on the State ofTexas by delivering a copy to Bryan Case, Assistant District Attorney, 509 W. 11 Street, Austin,th

Texas 78701, and to Tina Miranda, Assistant Attorney General, 300 W. 15 Street, Suite 800,th

Austin, Texas 78701, this 15 day of June, 2010.th

Richard H. Burr

8

Exhibit