Rabbani, Syed Mohmed

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,593-01

EX PARTE SYED MOHMED RABBANI, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 489811-A
IN THE 262ND CRIMINAL DISTRICT COURT
HARRIS COUNTY

Per curiam.

OPINION

We have before us a postconviction application for a writ of habeas corpus filed

under Texas Code of Criminal Procedure Article 11.07. 1

1
Unless otherwise indicated, all mentions of Articles in this opinion refer to the Texas
Code of Criminal Procedure.
As explained below, the application before us was filed in July 1994, before the effective
date of Article 11.071. So, although the defendant in this case was sentenced to death, he
properly filed his application under Article 11.07. In 1994, the Texas Code of Criminal
Procedure referred to a filing made under Article 11.07 as a “petition.” See Art. 11.07, § 2 (West
1994). Today, the Code would refer to such a filing as an “application.” See Art. 11.07, § 1
(West 2022); Art. 11.071, § 1 (West 2022). For consistency’s sake, and purely as a matter of
nomenclature, we will use the terms “application” and “Applicant.”
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In July 1988, a Harris County jury found Applicant guilty of capital murder. Based

on the jury’s answers to the special issues set forth in Article 37.071, the trial court

sentenced Applicant to death. On direct appeal, Appellant raised seventeen points of

error. In an opinion only part of which was designated for publication, this Court rejected

Applicant’s points of error and affirmed his conviction and sentence. See Rabbani v.

State, 847 S.W.2d 555 (Tex. Crim App. 1992) (published portion); Rabbani v. State, No.

AP-70,455 (Tex. Crim. App. Sept. 23, 1992) (portion not designated for publication).

Applicant filed this habeas application in July 1994. In September 1994, the

habeas judge received a psychiatric report reflecting that Applicant was not competent to

be executed. See Ford v. Wainwright, 477 U.S. 399, 409–10 (1986). Resultingly, the

State declined to answer Applicant’s 11.07 application. The record before us suggests

that, because the State did not answer Applicant’s 11.07 application, the habeas

proceedings were effectively held in abeyance. This Court did not receive Applicant’s

11.07 application until August 2022.

In his application, Applicant raises seventeen claims for postconviction relief:

Claim 1. Petitioner is entitled to relief in that he was deprived of a fair trial under
the Fifth, Sixth, and Fourteenth Amendments by the trial court’s action
in granting the State’s challenge for cause of venireman, Timothy A.
Faison.
Claim 2. Petitioner is entitled to relief because the trial court erred when
sentencing the petitioner to death in violation of the Eighth and
Fourteenth Amendments to the United States Constitution because the
trial court failed to instruct the jury on how to weigh mitigating factors
in answering the special issues submitted to them [citing Penry v.
Lynaugh, 492 U.S. 302 (1989)].
RABBANI—3

Claim 3. Petitioner is entitled to relief because the trial court abused its discretion
in refusing to permit the petitioner to reopen [the presentation of
evidence] and testify at his own trial.
Claim 4. The trial court deprived petitioner of his state and federal constitutional
right to testify when it refused petitioner’s request to testify in his own
behalf.
Claim 5. Petitioner was deprived of a fair trial because the trial court received
prejudicial evidence of the separate extraneous offense of possession of
marijuana by petitioner prior to the case on trial.
Claim 6. Petitioner was deprived of a fair trial because the trial court received
prejudicial evidence of the separate extraneous offense of auto theft by
petitioner prior to the case on trial.
Claim 7. Petitioner was deprived of a fair trial in that the trial court erred in
admitting inadmissible hearsay testimony that suggested the
commission of extraneous offenses by petitioner.
Claim 8. The trial court denied petitioner a fair trial by failing to grant
petitioner’s motion for mistrial and in the alternative to quash the
testimony of firearms expert, Charlie Anderson.
Claim 9. Petitioner was deprived of a fair trial by the trial court’s admission of
inadmissible hearsay testimony against petitioner.
Claim 10. Petitioner was deprived of a fair trial by the trial court’s action in
permitting the introduction of hearsay testimony against petitioner.
Claim 11. The prejudicial jury argument of the prosecutor injecting her own
unsworn belief about a portion of the evidence requires the reversal of
petitioner’s death sentence.
Claim 12. The prejudicial jury argument of the prosecutor injecting her own
unsworn belief about a portion of the evidence deprived petitioner of a
fair trial.
Claim 13. The prejudicial jury argument of the prosecutor violating a mandatory
statute requires the reversal of petitioner’s death sentence.
Claim 14. Petitioner was deprived of a fair trial due to the gross negligence of the
law enforcement agency investigating this case.
Claim 15. The trial court deprived petitioner of a fair trial by admitting evidence of
a bullet found at the crime scene over petitioner’s objection.
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Claim 16. The evidence was insufficient to sustain petitioner’s conviction for the
offense of capital murder.
Claim 17. Petitioner’s death sentence violates the Eighth and Fourteenth
Amendments to the United States Constitution [citing Enmund v.
Florida, 458 U.S. 782 (1982)].
Significantly, Applicant’s postconviction claims are duplicates of his direct-appellate

points of error.

Reviewing Applicant’s 11.07 application earlier this year, we concluded that only

claim two, a Penry claim, see Penry v. Lynaugh, 492 U.S. 302, 328 (1989), alleged facts

that if true might entitle Applicant to relief. We therefore remanded claim two to the

convicting court for findings of fact and conclusions of law illuminating that claim. We

also explained that claims one and three through seventeen were procedurally barred and

so directed the convicting court not to develop them. Ex parte Rabbani, No. WR-86,593-

01 (Tex. Crim. App. Apr. 19, 2023) (not designated for publication) (passim).

On remand, the State submitted proposed findings of fact and conclusions of law

indicating that, in the State’s view, Applicant suffered reversible Penry error at trial.

Applicant, agreeing, submitted a “supplemental authorities” brief for the convicting court

to review. Reviewing these submissions, the convicting court adopted the State’s

proposed findings and conclusions. And so, having found that Applicant suffered

reversible Penry error at trial, the convicting court has returned this case to this Court

with a recommendation that this Court grant Applicant a new punishment proceeding.

We agree with the convicting court: Reversible Penry error occurred here. See

Penry, 492 U.S. at 328. So, with the parties’ agreement and on the convicting court’s

recommendation, relief is granted: The death sentence in cause number 489811 is set
RABBANI—5

aside. To the extent that Applicant’s remaining habeas claims challenge the jury’s guilty

verdict, those claims are denied as procedurally barred. See Ex parte Torres, 943 S.W.2d

469, 475 (Tex. Crim. App. 1997) (“Generally, a claim which was previously raised and

rejected on direct appeal is not cognizable on habeas corpus.”). The guilty verdict

remains in place.

Applicant is remanded to Harris County for a new punishment proceeding.

Delivered: September 6, 2023
Do Not Publish