IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-84,327-01

EX PARTE JOSEPH FRANCOIS JEAN, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 1302120 IN THE 230 JUDICIAL DISTRICT COURT

th

HARRIS COUNTY

Per curiam. YEARY, J., filed a dissenting opinion. KELLER, P.J., and

SLAUGHTER, J., dissent. NEWELL, J., not participating.

O P I N I O N

This is an initial application for a writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071.

In June 2011, Applicant was convicted of capital murder and sentenced to death

for killing teenaged cousins Chelsy Lang and Ashley Johnson in the same criminal

transaction. See TEX. PENAL CODE § 19.03(a)(7)(A). We affirmed the conviction and

sentence on direct appeal. Jean v. State, No. AP-76,601 (Tex. Crim. App. June 26,
Jean - 2

2013)(not designated for publication).

On August 9, 2013, Applicant filed in the trial court this application for a writ of

habeas corpus, in which he raises seventeen claims challenging the validity of his

conviction and resulting sentence. Applicant asserts in one of those claims (Claim 10)

that he is intellectually disabled and ineligible for the death penalty. See Atkins v.

Virginia, 536 U.S. 304 (2002). On July 21, 2016, the habeas judge signed an order

adopting the State’s proposed findings and conclusions and recommending that relief be

denied on all of Applicant’s claims. Those findings and conclusions cited Briseno in the

rejection of Applicant’s intellectual disability claim. Ex parte Briseno, 135 S.W.3d 1

(Tex. Crim. App. 2004).

The United States Supreme Court subsequently decided Moore v. Texas, 137 S. Ct.

1039 (2017) (Moore I), in which it rejected various aspects of this Court’s analytical

approach to Atkins claims, including our use of the Briseno factors. Consequently, we

remanded this case on June 28, 2017, with instructions for the habeas judge to “[hold] a

live hearing to further develop evidence and make a new recommendation to this Court

on the issue of intellectual disability.” The United States Supreme Court thereafter

decided Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II). The habeas judge held a live

hearing in 2021.

During the hearing, Applicant presented the testimony of multiple expert and lay

witnesses in support of his intellectual disability claim. On December 13, 2021, the
Jean - 3

habeas judge signed an order adopting Applicant’s proposed findings of fact and

conclusions of law pertaining to the intellectual disability claim. The habeas judge

1

recommended that “punishment-phase relief” be granted on Claim 10 because Applicant

“met his burden to prove by a preponderance of the evidence that he satisfies the legal

and clinical criteria for a diagnosis of intellectual development disorder and is therefore

ineligible for the death penalty[.]”

We agree that Applicant has shown that he is a person with intellectual disability

under Moore I and II. Based upon the trial court’s findings and conclusions and our own

review, we grant relief on Claim 10. We reform Applicant’s sentence of death to a

sentence of life imprisonment without parole.

Applicant raises three other challenges to his death sentence. In Claim 11,

Applicant contends that he could have avoided a death sentence if trial counsel had called

lay and expert witnesses to “present a full narrative of [his] life story” at the punishment

phase of trial. See Strickland v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 123

S. Ct. 2527 (2003). In Claim 16, he alleges that his “death sentence is unconstitutional

because it was assigned based on Texas’ arbitrary system of administering the death

penalty.” In Claim 17, he asserts that his “death sentence should be vacated because the

punishment phase jury instruction restricted the evidence the jury could determine was

 The habeas judge who signed the 2021 findings and conclusions is not the same habeas 1

judge who signed the 2016 findings and conclusions. Judge Brad Hart presided over this case in

2016. Judge Chris Morton, who was elected to the 230 Judicial District Court of Harris County th

in 2018, signed the 2021 findings and conclusions. 
Jean - 4

mitigating.” Because we reform Applicant’s death sentence to a life sentence, Claims 11,

16, and 17 are rendered moot, and are, therefore, dismissed.

Applicant also challenges the validity of his capital murder conviction by raising

multiple claims of ineffective assistance of trial and appellate counsel. Applicant asserts

that trial counsel failed to: present a false confession expert (Claim 1); present expert

testimony to rebut the credibility of eyewitness Jonathan Bradford (Claim 2); “effectively

retain and present testimony regarding DNA evidence” (Claim 3); impeach State’s

witness Dorian Terry (Claim 5); and “challenge and rebut” testimony and multiple pieces

of evidence offered by the State (Claim 6). In Claim 7, Applicant contends that he was

deprived of a “constitutionally-sound trial” due to the cumulative effect of each of these

instances of ineffective assistance of counsel.

In Claim 8, Applicant alleges that trial counsel “effectively abandoned” him by

presenting only one witness at the guilt phase of trial. He further alleges that trial counsel

failed to object to the State’s discriminatory use of peremptory strikes (Claim 12) and

preserve the record for appeal (Claim 14). In Claim 13, he complains that appellate

counsel failed to “appeal the trial court’s erroneous denial of [his] valid challenges for

cause of four prospective jurors.” And he argues in Claim 15 that appellate counsel

“effectively abandoned [him] by waiving oral argument.”

This Court has reviewed the record with respect to these allegations. We deny

relief on these claims because Applicant has not met his burden under Strickland. He has
Jean - 5

failed to show by a preponderance of the evidence that his counsel’s representation fell

below an objective standard of reasonableness and that the deficient performance

prejudiced the defense. Id. at 689.

In Claim 4, Applicant complains that the State withheld favorable evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). We agree with the trial court’s

conclusion that this claim has no merit. Applicant has failed to meet his burden under

Brady to show that the evidence at issue was suppressed, favorable, and material. Id. at

87.

In Claim 9, Applicant asserts that the State mischaracterized “inconclusive DNA

test results” during jury argument. We will not review the merits of this habeas claim

because Applicant failed to raise it on direct appeal. Ex parte Nelson, 137 S.W.3d 666,

667 (Tex. Crim. App. 2004), citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim.

App. 1991). Applicant also asserts in Claim 9 that trial counsel were ineffective because

they failed to request an instruction to disregard the State’s argument or move for a

mistrial. This assertion fails because Applicant has failed to meet his burden under

Strickland to show both deficient performance and prejudice. Id. at 689.

Based upon the trial court’s findings and conclusions and our own review, we deny

relief on Claims 1 through 9 and 12 through 15.

IT IS SO ORDERED THIS THE 19 DAY OF APRIL, 2023.

th

Do Not Publish
Jean - 6