In 2011  DNA Testing was finally done on the three hairs collected from Michael Foster's hand. None of the hairs belonged to Brian Davis. The three hairs did not belong to Tina MacDonald but there was other evidence linking her to the crime including handwriting. To date the three hairs which came from two different people have not been identified. Michael Foster grabbed hair from two different individuals during the struggle. Brian Davis has no physical link to this crime, no DNA or fingerprints.

An actual innocence claim was submitted to the Texas Court of Criminal Appeals on April 15, 2002. On April 29, 2002 the Texas CCA dismissed the writ of habeas corpus and denied a stay of the execution scheduled for May 7, 2002.

Brian Davis CLAIM of INNOCENCE is supported by numerous facts:

On August 13, 1991, the body of Michael Foster was found at his apartment around noon by his neighbor. Dr. Eduardo Bellas, an assistant medical examiner for Harris County, determined that Mr. Foster had been stabbed a total of 11 times, of these 10 were fatal stab wounds. All stab wounds were consistent with being inflicted by one knife, having 1 sharp edge and 1 blunt edge. The wounds were not inflicted with a dagger type knife with 2 sharp edges. Dr. Bellas testified that Foster died sometime after 1:00am on August 13, 1991.

A little after 2:00am on August 10, 1991, Foster was seen leaving the Pik 'N Pak with a white male with shoulder length hair and a thin red headed female in an old Camaro. Brian Davis was identified later primarily by a single photo of a tattoo shown to the owner of the Pik 'N Pak; he could only tentatively pick him out from a photo spread. Tina McDonald was identified from photos shown to the owner.

On August 17, 1991, Brian and Tina were arrested on an unrelated charge and taken to Harris County jail. Both were appointed counsel on this charge. Shortly after their arrest, Detective Smith's investigation of Foster's murder began to focus on Brian and his wife, Tina McDonald. Smith informed Sheriff's Deputy Strickland at the jail of developments in the investigation of Foster's murder. Smith and his partner, Detective Hendrix, made regular visits to Tina.

Smith and Strickland implemented a plan, which eventually led to Brian giving a videotaped confession. Strickland had the authority to move Brian and Tina around in jail and allowed them to communicate with one another, even though they were co-defendants as well as Suspects in the Foster murder. Smith also discussed the current status of the Foster investigation numerous times during September, October and November 1991 and informed Tina if a case was filed it would be for capital murder. He told her that she had been positively identified as being with Foster the last time he was seen alive, that Foster's property was recovered from her car, that red hair matching hers was found in Foster's hand, and that her handwriting sample was comparable to that found at the cime scene. McDonald admitted to writing on Foster's apartment wall and actually wrote the exact words for the detective. Smith told her all evidence pointed to her and none of the evidence linked Brian to the crime.

Approximately, 6 to 7 times from Sept. 16 to Nov. 19, 2001,Strickland would bring Brian to his office then relay to the jailer on Tina's floor and Tina would call Brian from a phone on her cell block. Tina told Brian she was afraid she would be charged with capital murder because all evidence pointed to her while Brian could not be linked at all. Brian and Tina were also allowed a face to face communication while sitting outside a courtroom.

On November 19, 1991, Brian requested to see Smith and told Smith that he would confess in exchange for immunity for Tina, if he could be moved from administrative segregation, and have a contact visit with Tina, but his main concern was immunity for Tina. Brian was known to have a low IQ and a very strong attachment to Tina with a need to protect her. Smith told Brian he would have to get with the DA's Office about his request and that he believed Tina was involved in Foster's murder. Brian was moved from administrative segregation shortly after his confession.

On November 21, 1991 Smith took Brian to a magistrate who Mirandized him. These warnings were videotaped. The judge warned Brian that he would be charged with capital murder but Casey O'Brien, an assistant District Attorney, interrupted and said they HAD NOT decided what the case should be.

Brian gave a lengthy confession, but at several points on the tape he is clearly confused on the facts. He stated he stabbed Foster with a double-edged dagger at Foster's home, which is contradicted by the testimony of Dr. Bellas regarding the wounds as being inflicted by a single edge with blunt edge knife. Detectives Smith and Hendrix tried to correct Brian on this issue and Brian states that he pulled a second knife from his pocket and used both knives to stabb Foster . Remember all evidence shows all stab wounds were inflicted with one knife with one single edge.

The time of death described by Brian is also at least 40 hours off. Brian's confession stated the murder occurred early in the morning of August 10, 1991, but Dr. Bellas' testimony places the time of death after 1:00am on August 13. On the videotape, Smith refers to this time disparity as a "problem" and tries to correct Brian's statement somehow to match the physical evidence.

(Brian's taped confession stated that he and Tina had gone to the Pik N Pak to see a friend's band play on Friday Sept. 9 and that they were at Foster's apartment after they left on the early morning of Sept. 10. Brian's friends confirmed that he had been there on Friday night. The detectives talked to this friend and referenced it in Investigative Reports.)

A motion to suppress this confession was made at Brian's trial in June 1992. Tina McDonald was called to testify by Brian's trial attorney, Alan Myrtle, who was involved with his first capital defense. Other than stating her name for the record, Tina exercised her Fifth Amendment right not to testify.

Tina McDonald was never charged with capital murder or any other charge for her involvement in Foster's murder. On June 26, 1992, ten days after Brian was sentenced to death she was granted immunity for any actions regarding Foster and then pled guilty to another offense (aggravated robbery). This offense was the August 17, 1991 attempted robbery and murder of Steven Sherman with a knife. Brian was never prosecuted in the case of Steven Sherman.

David Cunningham was appointed by the trial court to represent Brian on direct appeal to the Texas Court of Criminal Appeals and filed his brief on September 1993. On January 27, 1997 the Texas CCA appointed Stephen Taylor to represent Brian
in state habeas corpus proceedings under article 11.071. On July 28, 1997, while Brian' s direct appeal was still pending, Taylor filed the Application for Writ of Habeus Corpus without even visiting Brian at the Ellis Unit in Huntsville. Mr. Taylor only brought forth four points presented in the direct appeal prepared by David Cunningham. He seems to have made no attempt to develop any new claims or points to help Brian's appeal.

On January 7, 1998 the Texas CCA affirmed Brian's conviction and sentence on direct appeal. Then on March 10, 1999 the CCA denied the relief requested in the state habeas corpus.

On March 3, 2000, Tina McDonald wrote an affidavit regarding her appearance on the witness stand. She was willing to provide answers but was instructed by the trial judge that she could not plead the fifth to selective questions. She states she would have testified about pressure exerted by Detective Smith and that she was afraid of being filed on for capital murder, because all evidence pointed to her and none to Brian. She also stated she would have testified that she told Brian of her fears through phone calls, letters, and in person and that Brian had written her before his confession stating that he had worked out a deal to confess in return for her immunity.

On March 9, 2000, a second Application for Writ of Habeas Corpus was filed in state court by attorneys retained by Brian's family. This was dismissed by the Texas CCA on September 13, 2000. On March 9, 2000 they also filed his federal Petition for Writ of Habeas Corpus in the U.S. District Court. On September 30, 2001, the District Court dismissed the petition as being procedurally barred. A notice of appeal to the Fifth Circuit Court was never filed by these attorneys even though it is a normal procedure in death penalty cases.

On September 29, 2000 and October 11, 2001, Tina McDonald provided affidavits confessing to the murder of Foster. She states that she and Brian left the Pik 'N Pak, she dropped Brian off at the Red Coach where they were staying, then she drove Foster home. She admits that she stabbed Foster with her buck knife having a single edge and a blunt edge. She states she acted alone and Brian was not involved. Ms. McDonald's affidavits are consistent with the evidence presented at trial by Dr. Bellas, as well as the presence of her hair and handwriting at the crime scene reinforcing her confession Ms. McDonald's confession constitutes a factual basis claim that was unavailable until her statements were drafted. Unfortunately, her statements are subsequent to the dates of filing on Brian's previous state and federal writs. The Texas Court of Criminal Appeals has refused to act on this new evidence and grant a stay of execution. It is our belief that had this evidence been available at trial that no reasonable juror could have found Brian guilty.


AUSTIN - A white supremacist scheduled to be executed next week for the murder of a Houston man was granted a reprieve Friday when the Texas Court of Criminal Appeals ordered new hearings to determine if he is mentally retarded.

The U.S. Supreme Court has ruled that executing mentally retarded inmates is unconstitutional.

The Texas appeals court ordered Brian Edward Davis' case returned to Harris County for hearings on whether he is retarded. Davis was scheduled to die by lethal injection next Tuesday.

Brian Edward Davis
Davis, 33, a parolee with a history of violence that began in grade school, was condemned for fatally stabbing Michael Foster and inscribing the victim's body with a swastika and initials of a skinhead group in 1991.

Although Davis did not offer a mental retardation defense during his trial, he won an 11th-hour reprieve from the Supreme Court in May. But the court refused to hear the appeal without explanation, and he was sent back to death row.

Davis' attorney, Greg Wiercioch of Austin, took the same claim to the Texas court.

"I think the (state court) did the right thing and is taking these mental retardation claims seriously," Wiercioch said.

As defined by the American Association of Mental Retardation, the mental retardation has three factors: below average intellectual functioning, usually an IQ of 70 or below; poor adaptive skills, such as inability to hold a job or communicate with others; and the onset of symptoms before age 18.

Wiercioch said Davis was tested with an IQ of 74 as a teenager and can prove a pattern of poor adaptive skills. He says the IQ test's plus-or-minus range of five points could put Davis below the threshold.

When charged with murder, he was on parole from a marijuana conviction. It was during that prison sentence where Davis turned to the Aryan Brotherhood of Texas and adopted their beliefs to help better protect himself.

Davis said he did not kill Foster, 31, a mildly mentally retarded man who met Davis and Davis' wife at a Houston bar.

"I'm innocent of this crime," Davis said. "I was wrong to confess ... but I was trying to save my wife."



NO. AP-76,263






Per Curiam. Keller, P.J., delivered a dissenting opinion in which Meyers, Keasler, and Hervey, JJ., joined.

In this cause, we take the unusual step of reconsidering, on our own initiative, a claim raised in a previous application for writ of habeas corpus in a capital murder case, but rejected by this Court in an order issued in 2002.

In June 1992, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Davis v. State, No. AP-71,513, published in part at 961 S.W.2d 156 (Tex. Crim. App. 1998). Applicant filed his initial application for a writ of habeas corpus in the convicting court on July 28, 1997. This Court denied relief. Ex parte Davis, No. WR-40,339-01 (Tex. Crim. App. March 10, 1999)(not designated for publication). Applicant later filed three more habeas applications which were all dismissed for failing to satisfy the requirements for a subsequent writ under Article 11.071 § 5. Ex parte Davis, No. WR-40,339-02 (Tex. Crim. App. Sept. 13, 2000)(not designated for publication); No. WR-40,339-03 (Tex. Crim. App. April 29, 2002)(not designated for publication); and No. WR-40,339-04 (Tex. Crim. App. May 7, 2002)(not designated for publication).

Applicant filed another subsequent application raising a mental retardation claim under Atkins v. Virginia, 536 U.S. 304 (2002), which this Court held satisfied the requirements of Section 5. After remanding the case to the trial court, this Court found that applicant was not mentally retarded and denied him relief. Ex parte Davis, No. WR-40,339-05 (Tex. Crim. App. Mar. 29, 2006)(not designated for publication). The Court also determined that the Penry II/nullification claim raised in applicant’s fifth subsequent application met the requirements of Article 11.071 § 5, and we remanded the case to the trial court to consider applicant’s claim. Ex parte Davis, No. WR-40,339-06 (Tex. Crim. App. Mar. 29, 2006)(not designated for publication). But because of changes in the law since the time that we remanded that case, we subsequently determined that applicant’s fifth subsequent application should be dismissed. However, the same changes that led us to dismiss applicant’s fifth subsequent writ application have led us to the conclusion that the Penry II/nullification claim, which was previously raised in his second subsequent writ application and dismissed by this Court, should be reconsidered. See Ex parte Davis, No. WR-40,339-03 (Tex. Crim. App. April 29, 2002)(order dismissing application not designated for publication). It is to that claim we now turn.

In his second subsequent writ application, applicant alleged that the nullification instruction in the charge to his jury did not allow the jury to consider and give effect to mitigating evidence presented at his trial in violation of the Eighth Amendment. See Penry v. Johnson ("Penry II"), 532 U.S. 782 (2001).

At the conclusion of the punishment phase of applicant’s trial, the jury was given the deliberateness and future dangerousness instructions as dictated by Article 37.071(b). The trial court also submitted the following supplemental/nullification instruction to applicant’s jury:

You are instructed that when you deliberate on the questions posed in the special issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character, background, record, emotional instability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve and thereafter, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to that special issue under consideration.

The nullification instruction given to applicant’s jury is nearly identical to the instruction that was at issue in Penry II. See Penry, 532 U.S. at 790 ("If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.").

Furthermore, the mitigating evidence presented by applicant is the sort of evidence that this Court has said is not encompassed within the former statutory special issues. The jury was presented with evidence that applicant suffered from severe learning disabilities, functional illiteracy, childhood head injuries, deficits in social functioning, drug and alcohol "dependency" by age fifteen, and a physically violent and emotionally traumatic upbringing. Much of this evidence is the type of evidence for which the jury should have been given a vehicle to give it meaningful consideration. See Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2007) (multiple hospitalizations in state psychiatric facilities, abuse of alcohol at a young age, troubled childhood); see also Ex parte Moreno, 245 S.W.3d 419, 422 (Tex. Crim. App. 2008) (troubled childhood).

The nullification instruction given to applicant’s jury was not a sufficient vehicle to allow jurors to give meaningful consideration and full effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant’s trial is the type of evidence for which he was entitled to a separate and sufficient vehicle, we remand the case to the trial court for a new punishment hearing.