Office of the Attorney General News Release Archive

Friday, Aug. 9, 2002

MEDIA ADVISORY

Brian Edward Davis Scheduled to be Executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on Brian Edward Davis, who is scheduled to be executed after 6 p.m. on Tuesday, Aug. 13, 2002.

On June 16, 1992, Brian Edward Davis was sentenced to die for the capital murder of Michael Alan Foster, which occurred in Harris County, Texas, on Aug. 11, 1991. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On Aug. 10, 1991, Brian Edward Davis and his wife, Tina McDonald, neo-nazi associates of a local skinhead organization, attended a live band performance at a Houston-area establishment where they met 31-year-old Michael Foster, a mildly retarded regular of the club. At closing time, Foster left with Davis and McDonald in a brown Camaro with Davis driving.

Three days later, a neighbor discovered Foster's body in his apartment. Foster had 11 stab wounds to his neck, chest, abdomen, and back. Foster also had a broken nose, contusions and cuts, and a swastika with the letters "NSSH" had been written on his abdomen in ink. A swastika with the letters "NSSH" was also found on Foster's living room wall along with the words "skin head."

On Aug. 17, 1991, Harris County police arrested Davis and McDonald on an unrelated attempted murder charge in a crime that was similar to the Foster murder. While in custody, police recovered items in Davis' possession and items that had been removed from McDonald's car, linking the two to the Foster murder. The items recovered included a missing dagger from Foster's apartment, identification cards, Foster's black leather motorcycle jacket, and a knife with a broken tip, later proved to be the murder weapon. Promotional flyers found in Foster's apartment led police to the Houston club where Davis and McDonald were identified as being the ones who had picked up Foster.

While in custody, Davis confessed in detail to Foster's murder. The confession was videotaped and played to the jury.

PROCEDURAL HISTORY

January 7, 1992 - Davis was indicted for the capital murder of Michael Alan Foster.

June 11, 1992 - A jury found Davis guilty of capital murder.

June 16, 1992 - Davis was sentenced to death in accordance with state law.

January 7, 1998 - The Court of Criminal Appeals affirmed Davis' conviction and sentence on direct appeal.

March 10, 1999 - The Court of Criminal Appeals denied habeas corpus relief.

March 9, 2000 - Davis filed a successive state habeas application, which was dismissed on Sept. 13, 2000 as an abuse of the writ.

March 9, 2000 - Davis filed a federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas.

Sept. 30, 2001 - The District Court dismissed the petition as being procedurally barred.

Nov. 1, 2001 - The deadline to file a notice of appeal in the Fifth Circuit expired.

Feb. 4, 2002 - A death sentence was issued; date of execution set for May 7, 2002 after 6:00 p.m.

April 15, 2002 - A successive application for writ of habeas corpus was filed in state court raising a claim under Penry v. Johnson (Penry II), 532 U.S. 782 (2001).

April 29, 2002 - The Court of Criminal Appeals dismisses the application as an abuse of the writ.

May 3, 2002 - Davis filed a motion for leave to file a successive federal habeas corpus application in the Fifth Circuit Court of Appeals raising a claim of actual innocence.

May 3, 2002 - An original petition for writ of habeas corpus was filed with the United States Supreme Court raising a claim under Penry II.

May 6, 2002 - The Fifth Circuit denied Davis' motion to file a successive federal application.

May 7, 2002 - The U.S. Supreme Court denied the petition and application for stay of execution.

May 7, 2002 - Davis filed a fourth state habeas application raising a claim of mental retardation, which the Court of Criminal Appeals dismissed as an abuse of the writ on the same day.

May 7, 2002 - Davis filed a petition for writ of certiorari in the U.S. Supreme Court challenging the state court dismissal of his mental retardation claim.

May 7, 2002 - Without ruling on the cert. petition, the Supreme Court stayed the execution pending the outcome of Atkins v. Virginia, 122 S. Ct. 2242 (June 20, 2002).

June 28, 2002 - The U.S. Supreme Court denied the petition for writ of certiorari.

July 3, 2002 - Execution order issued re-setting Davis' execution date for Aug. 13, 2002.

Aug. 7, 2002 - Davis filed a fifth state habeas application in the Court of Criminal Appeals, raisng a claim of mental retardation.

Aug. 9, 2002 - The Court of Criminal Appeals isssued a stay of execution. The court remanded Davis' case to the trial court for a mental retardation determination in light of Atkins.

CRIMINAL HISTORY

Davis has a lengthy documented criminal history:

Oct. 28, 1986 - Davis was placed on probation in Tarrant County for delivery of marijuana.

Sept. 9, 1988 - Davis violated the terms of his probation by failing to report. His probation was revoked and he was sentenced to six years in the penitentiary.

February 1989 - Davis was released to a pre-release community-based correctional facility, but two weeks later Davis was terminated from the program for failing to return.

July 1990 - Davis was paroled.

Aug. 5, 1990 - Davis and co-actor accompanied Douglas Carnes to Carnes' residence for conversation and sex. Carnes paid Davis and co-actor. Davis then began hitting Carnes in the face with his fists. Davis took Carnes' money and other property from the residence.

July 1991 - Davis beat his wife, Tina McDonald, causing bleeding from her ears and nose, a split mouth, and bruising on her side, arms and legs. Charges against Davis were dismissed because Tina McDonald failed to appear to testify.

Aug. 11, 1991 - Michael Alan Foster is murdered.

Aug. 16, 1991 - Approximately one week after Michael Foster's murder, Steven Sherman met Davis and McDonald in a Houston bar. Sherman offered to help get them a motel room. Sherman picked up a young man and some cocaine and they all went to the motel. Sherman and the young man stayed in the room first, shooting up the drug. Davis and McDonald returned and Davis shouted wanting drugs and money. He hit Sherman in the face and tied him up. After rummaging through the room, Davis repeatedly stabbed Sherman in the throat, chest, abdomen, and back. A motel employee who heard screaming, banged on the door and threatened to call the police. Sherman managed to escape and the employee was able to write down the number of the Camaro as McDonald and Davis drove away. Davis and McDonald were arrested shortly thereafter.

MISCELLANEOUS

For additional information and statistics, please log on the Texas Department of Criminal Justice website, www.tdcj.state.tx.us.

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