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Court of Criminal Appeals of Texas.


NO. WR-63,201-02

Decided: January 26, 2018

HERVEY, J., filed a concurring opinion in which KELLER, P.J., KEASLER, and NEWELL, JJ., joined.


I join the Court's order dismissing Rayford's first subsequent application for habeas corpus relief and denying his motion for a stay of his execution. I write separately to provide some context regarding his claims that his race was used as a factor in deciding whether he would be a future danger. The Court properly rejects Rayford's claim because his case is distinguishable from the recent decision of Buck v. Davis, 137 S. Ct. 759 (2017), by the United States Supreme Court.

Section 5

The dissent argues that the Court should file and set Rayford's subsequent writ application to determine whether Buck, 137 S. Ct. at 759, constitutes a new legal basis, but I conclude that it does not.

To satisfy the Section 5 subsequent-writ bar, an applicant must allege a new factual or legal basis. TEX. CODE CRIM. PROC. art 11.071 § 5(a)(1). When the issue is whether there is a new legal basis, the applicant must show both that the legal basis for the claim was not already recognized when the subsequent writ application was filed and that, if it was not recognized, the claim also could not have been reasonably formulated from the jurisprudence of the United States Supreme Court, federal circuit courts of appeals, or Texas appellate courts. Id. The problem with Rayford's claim is that it could have been reasonably formulated before Buck was decided; thus, as a result, and pursuant to Section 5, this Court is procedurally barred from considering the merits of his subsequent writ application.

Buck's claim is one of several that involved Dr. Quijano testifying specifically that some minorities are more likely to be a danger in the future. Buck's claim was based upon Saldano, an earlier case involving Quijano. See, e.g., Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002). In Saldano, Quijano testified that, as a Hispanic, Saldano was more likely to be a future danger. Saldano appealed Quijano's injection of race as a factor in determining his future dangerousness, and the case eventually wound up at the United States Supreme Court. Before the Supreme Court, the Texas Attorney General confessed error and asked the Supreme Court to vacate the judgment and to remand the cause because of Quijano's testimony, which the Court did. Buck, 137 S. Ct. at 770; Saldano v. Texas, 530 U.S. 1212 (2000). Subsequently, other defendants were also granted relief on the basis of similar testimony from Quijano. Buck, 137 S. Ct. at 770 (collecting cases).

When Buck was before the United States Supreme Court, he argued that his case should be controlled by Saldano, even though it was in a different procedural posture. In other words, Buck's claim was based on Saldano (a 2000 case). After Buck was decided, Rayford filed the instant subsequent writ application, and he alleges that his claim could not have been reasonably formulated before Buck. Logic, however, belies that assertion. If Buck's claim was based on Saldano, and Rayford's claim is based on Buck, then Rayford could have reasonably formulated his claim before Buck. As a result, the Court cannot consider the merits of his subsequent writ application.

Buck is Distinguishable

Buck argued that his trial counsel was ineffective when he introduced testimony from Quijano regarding his potential future dangerousness.1 According to him, his trial counsel was ineffective because, even though Quijano testified that Buck was not likely to be a future danger, he wrote in a report after his meeting with Buck that Buck had a higher probability of being a future danger due to his status as a black man.2 Despite knowing this, defense counsel specifically elicited testimony from Quijano that Buck's race was a predictive factor in determining whether Buck would be a future danger.3 The Supreme Court agreed and held that Buck had been deprived of his Sixth Amendment right to effective assistance of counsel due to his attorney's introduction of Quijano's testimony.4

At the punishment phase of Rayford's trial, Dr. Gilda Kessner, a clinical and forensic psychologist, testified on behalf of Rayford that, in her professional opinion, he did not pose a continuing threat to society. In rebuttal, the State called Royce Smithey, the Chief Investigator for the Special Prison Prosecution Unit. On direct examination, he testified in generalities about the prison system, but he did not testify specifically about Rayford.5

On cross-examination, the following exchange occurred between defense counsel and Smithey:

[Defense counsel]: So you could have units that were relatively assault free, and some that were disproportionate in the amount of assaults that occurred, correct?

[Smithey]: Yes.

[Defense counsel]: And in fact that's the way it shakes out. Some are relatively assault free and some have way more assaults than the rest of the system, right?

[Smithey]: That's correct.

[Defense counsel]: And there's factors that effect that such as gangs and other things, is that correct?

[Smithey]: Yes, sir.

[Defense counsel]: The racial makeup of the unit is also something that goes to the number of assaults or what have you, is that correct?

[Smithey]: It has a factor on it, even though under general Federal guidelines the racial breakdown of the units are predominantly the same or as close as they can get to it.

According to Rayford, this exchange proves that his attorney was ineffective when he elicited that testimony because it tied the issue of race to violence in prison.

The Supreme Court's decision in Buck, however, was based in part upon the need to treat Buck's case similarly to other cases infected by Quijano's testimony even though it was in a different procedural posture,6 and I do not read Buck as holding that defense counsel is ineffective for merely allowing a witness to use the word “race” in his or her testimony about future dangerousness. The expert in this case did not tie any likelihood of future dangerousness to Rayford's race. Smithey did not meet personally with Rayford and form a specific opinion about his propensity for violence, nor did he give any opinions about any particular race or how race factored into the violence in prison. Unlike Quijano's testimony in Buck, this response was not “potent evidence” that “appealed to a powerful racial stereotype.”7

The facts of this case do not present the “perfect storm” that the United States Supreme Court addressed in Buck. The Court properly dismisses Applicant's subsequent application for habeas corpus relief and denies his motion to stay his execution. With these thoughts, I concur.


1.   137 S.Ct. 759, 768 (2017).

2.   Id. at 768 (The report read in relevant part “4. Race. Black: Increased probability. There is an over representation of Blacks among the violent offenders.”).

3.   Id. at 768–69.

4.   Id. at 777.

5.   He said that murders and escapes happened even on death row. And he testified generally to the number of assaults that occurred in the system, major disciplinary actions, minor disciplinary actions, and opportunities inmates had to engage in violence against staff or each other.

6.   Id. at 779.

7.   Id. at 776.

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