WR-48,152-08
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/25/2016 11:50:04 AM
MAY 25, 2016 Accepted 5/25/2016 1:45:41 PM
ABEL ACOSTA
NO. WR-48,152-08 CLERK
IN THE
COURT OF CRIMINAL APPEALS
_____________________________________________________
EX PARTE GARCIA GLEN WHITE, Applicant
_____________________________________________________
Successive Application for a Writ of Habeas Corpus
In Cause No. 0723857-E from the
180th Judicial District Court of Harris County
_____________________________________________________
BRIEF FOR THE
OFFICE OF CAPITAL AND FORENSIC WRITS
AS AMICUS CURIAE
SUPPORTING APPLICANT
_____________________________________________________
Benjamin B. Wolff, Director
(Texas Bar No. 24091608)
Office of Capital and Forensic Writs
1700 Congress, Suite 460
Austin, Texas 78701
(512) 463-8502
Benjamin.Wolff@ocfw.texas.gov
IDENTITY OF AMICUS CURIAE
The Office of Capital and Forensic Writs (“OCFW”) is a Texas state
public defender office located in Austin, Texas that represents
individuals in state post-conviction litigation. The OCFW, originally the
Office of Capital Writs, opened its doors in 2010, representing death-
sentenced persons in state post-conviction proceedings exclusively. On
September 1, 2015, the scope of the Office’s mission expanded to include
the representation of a select number of individuals raising challenges to
their convictions through forensic science writs, and its name changed to
reflect the expanded mandate.
The OCFW represents most people sentenced to death in Texas in
initial state habeas corpus applications and related proceedings and is
committed to exceptional, client-centered, post-conviction
representation, consistent with the Guidelines and Standards for Texas
Capital Counsel and the Supplementary Guidelines and Standards for
the Mitigation Function of Defense Teams in Texas Death Penalty Cases
adopted by the State Bar of Texas.
i
TRAP RULE 11 DISCLOSURE
This brief is tendered on behalf of OCFW. No fee was or will be
paid for the preparation of this brief, and all costs were borne by OCFW.
ii
TABLE OF CONTENTS
IDENTITY OF AMICUS CURIAE……………………………………………………i
TRAP RULE OF DISCLOSURE……………………………………………………ii
TABLE OF CONTENTS…………………………………………………………….iii
INDEX OF AUTHORITIES…………………………………………………….……iv
STATEMENT OF THE CASE………………………………………………………..1
INTRODUCTION………………………………………………………………...….4
ARGUMENT.………………………………………………………………………..6
I. The Word “Convicted” in Article 11.073 Should Be
Interpreted to Encompass Both Verdict and
Sentence………………………………………………………………..6
II. Article 11.073 Should Be Interpreted to Permit
Forensic Science Writs Relating to Claims of
Innocence of the Death Penalty…………………………………….7
III. Allowing Article 11.073 Writs Raising Forensic Science
Claims Relating to Punishment Is Consistent With
Eighth Amendment Jurisprudence……………………………….16
PRAYER……………………..………………………………………………..…..18
CERTIFICATE OF SERVICE………………………………………………………19
CERTIFICATE OF COMPLIANCE…………………………………………………19
iii
INDEX OF AUTHORITIES
Federal Cases
Ake v. Oklahoma, 470 U.S. 68 (1985)……………………………….………17
Atkins v. Virginia, 536 U.S. 304 (2002)…………………………….……9, 10
Baze v. Rees, 553 U.S. 35 (2008)………………………………………….….17
Beck v. Alabama, 447 U.S. 625 (1980)………………………………….…..16
Enmund v. Florida, 458 U.S. 782 (1982)…………………………….….9, 13
Gardner v. Florida, 430 U.S. 349 (1977)…………………………………...16
Godfrey v. Georgia, 446 U.S. 420 (1980)……………………………………16
Gregg v. Georgia, 428 U.S. 153 (1976)………………………………………16
Herrera v. Collins, 506 U.S. 390 (1993)……………………………………4, 7
In re Johnson, 334 F.3d 403 (5th Cir. 2003)…………………………………10
Johnson v. Mississippi, 486 U.S. 578 (1988)………………………….…9, 16
Johnson v. Singletary, 938 F.2d 1166 (11th Cir. 1991)……………………..9
Kyles v. Whitley, 514 U.S. 419 (1995)……………………………………..…17
Lockett v. Ohio, 438 U.S. 586 (1978)…………………………………………16
Mills v. Maryland, 486 U.S. 367 (1988)…………………………………..…16
Napue v. Illinois, 360 U.S. 264 (1959)………………………………………13
Roper v. Simmons, 543 U.S. 551 (2005)………………………………….9, 10
iv
Sawyer v. Whitley, 505 U.S. 333 (1992)………………………………..…..8, 9
Tison v. Arizona, 481 U.S. 137 (1987)………………………………….….….9
United Sav. Assn. of Tex. v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365 (1988)…………………………….…….7
Woodson v. North Carolina, 428 U.S. 280 (1976)………………………….16
Zant v. Stephens, 462 U.S. 862 (1983)……………………………………….17
State Cases
Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009)…………….…13
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)……………4, 8
Ex parte Robbins, __ S.W.3d __, 2016 WL 370157 (Tex. Crim. App.
Jan. 27, 2016)………………………………………………………….…15
Ex parte White, No. WR-48,152-01 (Tex. Crim. App. Feb. 21, 2001)
(unpublished)……………………………………………………………...2
Ex parte White, No. WR-48,152-02 (Tex. Crim. App. Apr. 24, 2002)
(unpublished)………………………………………………………….…..2
Ex parte White, No. WR-48,152-03 (Tex. Crim. App. May 6, 2009)
(unpublished)………………………………………………………….…..2
Ex parte White, No. WR-48,152-04 (Tex. Crim. App. May 6, 2009)
(unpublished)………………………………………………………….…..2
In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015)……………………..….11
Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996)……………….11
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011)….7
v
White v. State, No. AP-73,850 (Tex. Crim. App. June 17, 1998)
(unpublished)………………………………………………………….…..1
State Statutes
Tex. Code Crim. Proc. art. 11.07……………………………………… passim
Tex. Code Crim. Proc. art. 11.071………………………………..….…passim
Tex. Code Crim. Proc. art. 11.072…………………………………………….5
Tex. Code Crim. Proc. art. 11.073………………………………..……passim
Tex. Code Crim. Proc. art. 37.071………………………………………10, 11
Tex. Code Crim. Proc. art. 38.43……………………………………………..16
Legislative History
BILL ANALYSIS, Tex. S.B. 344…………………………………………………15
Other Authorities
William N. Eskridge, Jr., et al., Cases and Materials on
Legislation (4th ed. 2007)…………………………………………………….…7
vi
NO. WR-48,152-08
IN THE
COURT OF CRIMINAL APPEALS
_____________________________________________________
EX PARTE GARCIA GLEN WHITE, Applicant
_____________________________________________________
Successive Application for a Writ of Habeas Corpus
In Cause No. 0723857-E from the
180th Judicial District Court of Harris County
_____________________________________________________
BRIEF FOR THE OFFICE OF CAPITAL AND
FORENSIC WRITS AS
AMICUS CURIAE SUPPORTING APPLICANT
_____________________________________________________
TO THE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
Garcia Glen White was indicted for capital murder under Cause
Number 723847 in the 180th Criminal District Court of Harris County. In
July 1996 he was found guilty and sentenced to death. The trial court’s
judgment was affirmed on appeal. White v. State, No. AP-73,580 (Tex.
Crim. App. June 17, 1998) (unpublished). No petition for writ of certiorari
was filed.
1
Mr. White filed an application for writ of habeas corpus, containing
numerous grounds, on October 16, 1998. That application was denied on
February 21, 2001, by the Court of Criminal Appeals. Ex parte White, No.
WR-48,152-01 (Tex. Crim. App. Feb. 21, 2001) (unpublished). Three
subsequent applications for writs of habeas corpus were filed in 2002,
2007, and 2009. All were denied. Ex parte White, No. WR-48, 152-02 (Tex.
Crim. App. Apr. 24, 2002) (unpublished); Nos. WR-48,152-03 and WR-
48,152-04 (Tex. Crim. App. May 6, 2009) (unpublished).
After those applications were resolved, the Texas legislature
revised state habeas procedures to provide a specific remedy to address
convictions based on flawed science or where advances in science afforded
critical favorable evidence to a convicted individual. TEX. CODE CRIM.
PROC. art. 11.073. These revisions went into effect on September 1, 2013.
Article 11.073 now authorizes a court to grant relief on a habeas corpus
application containing “relevant scientific evidence” that “was not
available to be offered” at the convicted person’s trial or that “contradicts
scientific evidence relied upon by the state at trial.” Id. 11.073(a).
On January 20, 2015, with an execution date pending, Mr. White
submitted his fourth subsequent application for writ of habeas corpus
2
with this Court. On January 27, 2015 this Court stayed Mr. White’s
execution pending further order of the Court. On March 24, 2015, this
Court denied the first two claims in Mr. White’s petition as barred by Art.
11.071 § 5, but ordered further briefing on his third claim, that newly
discovered scientific evidence would have provided compelling mitigating
evidence that would have likely changed the jury’s answers to the special
issues. Specifically, before determining whether the claim qualifies for a
remand to the trial court, this Court ordered the parties to brief the issue
of whether Article 11.073 applies to new scientific evidence relevant only
to the punishment.
3
INTRODUCTION
In discussing post-conviction claims of actual innocence, both this
Court and the United States Supreme Court have recognized that “the
legitimacy of punishment is inextricably entwined with guilt.” Ex parte
Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) (quoting Herrera
v. Collins, 506 U.S. 390, 422 (1993) (Blackmun, J., dissenting)). This is
particularly true in capital cases, where the prosecution commonly relies
on evidence not only of the capital offense but also of prior convictions
and allegations of unadjudicated offenses in seeking to persuade the jury
to impose a death sentence. As a result, the jury’s consideration of the
defendant’s guilt of the capital offense, as well as of other criminal
offenses, is necessarily embedded in its assessment of punishment.
In 2013, the Texas Legislature created Article 11.073 as a dedicated
writ and procedure to allow for the litigation of claims related to faulty
forensic science. Under this writ and procedure, a court may grant a
convicted person relief on an application for a writ of habeas corpus based
on new scientific evidence that was not available to be offered by a
convicted person at the time of trial or that contradicts the scientific
evidence relied on by the State at trial. See TEX. CODE CRIM. PROC., art.
4
11.073(a). In order to grant relief, a court must find, inter alia, that “had
the scientific evidence been presented at trial, on the preponderance of
the evidence the person would not have been convicted.” Id. at (b)(2).1
Before this Court is the question of whether to interpret the word
“convicted” to encompass the guilty verdict and sentence, and thereby
permit an Article 11.073 application that challenges the sentence
imposed on the basis of flawed science. To exclude from the ambit of
1 The relevant text of the statute is as follows:
(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the convicted
person's trial; or
(2) contradicts scientific evidence relied on by the state at trial.
(b) A court may grant a convicted person relief on an application for a
writ of habeas corpus if:
(1) the convicted person files an application, in the manner provided
by Article 11.07, 11.071, or 11.072, containing specific facts
indicating that:
(A) relevant scientific evidence is currently available and was
not available at the time of the convicted person's trial because
the evidence was not ascertainable through the exercise of
reasonable diligence by the convicted person before the date of
or during the convicted person's trial; and
(B) the scientific evidence would be admissible under the Texas
Rules of Evidence at a trial held on the date of the application;
and
(2) the court makes the findings described by Subdivisions (1)(A)
and (B) and also finds that, had the scientific evidence been
presented at trial, on the preponderance of the evidence the person
would not have been convicted.
TEX. CODE CRIM. PROC., art. 11.073.
5
Article 11.073 claims that relate only to punishment would deprive the
law of its contemplated meaning and risk unintended, arbitrary results.
Rather, this Court should construe Article 11.073 consistent with the
constitutional principles underlying the Texas death penalty statutory
scheme itself.
ARGUMENT
I. The Word “Convicted” In Article 11.073 Should Be
Interpreted To Encompass Both Verdict And
Sentence.
Indisputably, an applicant may raise constitutional challenges
relating to both the guilt/innocence and punishment phases of a trial. An
11.071 application may challenge both a guilty verdict and the death
sentence, just the guilty verdict, or just the death sentence. This is true
of both initial applications and subsequent applications for post-
conviction relief. Article 11.071, however, defines the claims cognizable
under that section as those relating to a “conviction being challenged.”
See TEX. CODE CRIM. PROC. art. 11.071 § (5)(b)(2) & § (6)(c)(2). See also
TEX. CODE CRIM. PROC. art. 11.07 § (3)(c) & § (4)(a).
6
As the Texas Supreme Court has noted, “language cannot be
interpreted apart from context.” TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 441 (Tex. 2011). See also United Sav. Assn. of Tex. v.
Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (“A
provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme.”); William N. Eskridge, Jr., et al.,
Cases and Materials on Legislation 862 (4th ed. 2007) (describing the
“Whole Act Rule”). Thus, the word “convicted” as used in Article 11.073
should be interpreted in the context of Article 11.071, where the word
“conviction” clearly encompasses both verdict and sentence.2
II. Article 11.073 Should Be Interpreted To Permit
Forensic Science Writs Relating To Claims Of
Innocence Of The Death Penalty.
In the unique context of death-penalty cases, the Supreme Court
has recognized two distinct claims of “innocence” premised on “new”
evidence discovered after trial. This Court should construe Article 11.073
to allow for consideration of both.
2We are aware of statutory interpretation arguments made by the Texas Criminal
Defense Lawyers Association et al. as amici, see Amicus of TCDLA et al., at 16-23,
and while we believe those arguments to be cogent, we do not repeat them here.
7
The first type of innocence claim is one where the convicted person
asserts that he is factually innocent of the capital offense. Herrera v.
Collins, 506 U.S. 390, 417 (1993) (“We may assume, for the sake of
argument in deciding this case, that in a capital case a truly persuasive
demonstration of ‘actual innocence,’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a claim”); Ex
parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) (holding that
“claims of actual innocence are cognizable by this Court in a
postconviction habeas corpus proceeding whether the punishment
assessed is death or confinement”).
Secondly, the Supreme Court has also recognized that a capital
defendant may be “innocent of the death penalty.” Sawyer v. Whitley,
505 U.S. 333, 345 (1992). The Court has said that “innocence of the death
penalty” means “allowing a showing in addition to innocence of the
capital crime itself that there was no aggravating circumstance or that
some other condition of eligibility had not been met.” Id. (internal
quotation marks and footnote omitted). The Court has adopted this
phrase to refer to those defendants who are not eligible for a death
8
sentence either because the State is unable to prove the facts necessary
to make the defendant eligible for a death sentence as a matter of state
law, Sawyer v. Whitley, 505 U.S. 333 (1992) (defining the standard for
proving “actual innocence of the death penalty” and holding that in order
to proceed with a subsequent federal petition raising a constitutional
claim affecting punishment only, the petitioner must show “by clear and
convincing evidence that but for constitutional error, no reasonable juror
would have found him eligible for the death penalty under [state] law”),3
or because the defendant is a member of a class that is categorically
exempt from the death sentence under the Eighth Amendment. See, e.g.,
Enmund v. Florida, 458 U.S. 782 (1982), as modified by Tison v. Arizona,
481 U.S. 137 (1987) (holding that the Eighth Amendment prohibits
imposition of death penalty on aider or abettor who does not himself kill,
attempt to kill, or intend that a killing takes place or that lethal force
3 See also, e.g., Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir. 1991) (“Thus, a
petitioner may make a colorable showing that he is actually innocent of the death
penalty by presenting evidence that an alleged constitutional error implicates all of
the aggravating factors found to be present by the sentencing body. That is, but for
the alleged constitutional error, the sentencing body could not have found any
aggravating factors and thus the petitioner was ineligible for the death penalty. In
other words, the petitioner must show that absent the alleged constitutional error,
the jury would have lacked the discretion to impose the death penalty; that is, he is
ineligible for the death penalty.”).
9
will be employed, and who was not a “major participant” in the felony
and whose mental state was not one of “reckless indifference to human
life”); Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth
Amendment prohibits imposition of the death penalty on intellectually
disabled defendants); Roper v. Simmons, 543 U.S. 551 (2005) (holding
that the Eighth Amendment prohibits imposition of the death penalty on
juvenile offenders).4
The statutory “special issues” that Texas juries must answer before
a defendant can be subjected to the death penalty attempt to capture both
categories of “innocent of the death penalty” that the Supreme Court
delineated in Sawyer. Before a jury considers whether sufficient
mitigating circumstances exist that warrant a sentence of life in prison
without parole rather than a death sentence, it must first find that the
State has proved beyond a reasonable doubt that:
The defendant would constitute a continuing threat to society,
Art. 37.071 § (2)(b)(1); and
where a defendant has been convicted at the guilt phase under
the “law of parties,” whether the defendant actually caused the
death of the deceased or did not actually cause the death of the
deceased but intended to kill the deceased or another or
4See also, e.g., In re Johnson, 334 F.3d 403, 404-05 (5th Cir. 2003) (holding that
defendant’s evidence of mental retardation made him innocent of the death penalty).
10
anticipated that a human life would be taken, Art. 37.071 §
(2)(b)(2).
Furthermore, where a defendant asserts that intellectual disability
renders him exempt from the death penalty pursuant to Atkins v.
Virginia, 536 U.S. 304 (2002), this Court has endorsed the submission of
a “special issue” to the jury regarding whether a defendant is
intellectually disabled. See, e.g., In re Allen, 462 S.W.3d 47, 51-52 (Tex.
Crim. App. 2015).
In capital cases, the State commonly offers evidence of
unadjudicated extraneous offenses and conduct in connection with the
jury’s determination of the special issues that relate to death penalty
eligibility. Article 37.071 § (2)(a)(1) allows the State to introduce evidence
of unadjudicated extraneous conduct relevant to sentence. When
evidence of an extraneous offense has been offered, the law requires that
it be proved beyond a reasonable doubt that the defendant committed the
offense, regardless of the phase of trial in which it is offered. See Mitchell
v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996).
While the law requires that an extraneous offense be proved beyond
a reasonable doubt, when extraneous offenses are not otherwise
adjudicated there is not another forum or case in which they may be
11
challenged on appeal or on post-conviction proceedings. This means that
in the event that the evidence supporting the unadjudicated extraneous
offense is undermined by new scientific evidence, see, e.g., Article 11.073
§ (a)(1), the only case in which it may be challenged is the case in which
it was introduced into evidence—and such an attack is, by nature,
collateral.
Article 11.073 provides the only means to collaterally attack
unadjudicated extraneous offenses that are undermined by new scientific
evidence. Article 11.073 applies to “relevant scientific evidence that: (1)
was not available to be offered by a convicted person at the convicted
person’s trial; or (2) contradicts scientific evidence relied on by the state
at trial.” Thus, the statute contemplates two distinct scenarios: new
forensic evidence that did not exist at the time of trial and new forensic
evidence that contradicts the evidence presented at trial.
With respect to punishment questions, if new forensic evidence
contradicts the evidence presented during the punishment phase, a
habeas applicant does not have to rely exclusively on Article 11.073 to
provide a procedural mechanism to challenge junk science presented at
trial; instead, he or she may raise a junk science claim under Article
12
11.073 as well as a Chabot5 or Napue6 claim under Article 11.071. In
other words, an applicant may challenge the faulty science employed at
trial under both Article 11.073 and a due-process theory.
If, however, a death-sentenced person discovers new scientific
evidence relevant to punishment considerations that was unavailable at
the time of trial that would have changed the result had it been
presented, the exclusive procedural pathway through which relief can be
sought would be through Article 11.073.
Consider a hypothetical situation involving a law-of-parties case. A
defendant is convicted at trial of capital murder, based on a theory that
he was the triggerman in a case involving multiple actors. The defendant
always maintained that he did not kill the decedent or intend for the
decedent to be killed or reasonably foresee it, so he was “innocent of the
death penalty” pursuant to Enmund v. Florida, 458 U.S. 782 (1982). The
defendant, however, was rendered eligible for the death penalty after the
jury affirmatively answered the “future dangerousness” special issue and
5 Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009) (holding that the
defendant’s due process rights were violated by state’s unknowing presentation of
false testimony).
6Napue v. Illinois, 360 U.S. 264 (1959) (holding that knowing use of false testimony
violates due process).
13
found that the defendant had “actually killed” the decedent. Years later,
DNA tests were conducted on the gun that exonerated the defendant as
the triggerman and inculpated a co-defendant. The new forensic evidence
would support a constitutional claim of “innocent of the death penalty.”
Unless Article 11.073 applies to punishment-phase claims of death
eligibility, the hypothetical defendant in this scenario is left without a
vehicle to challenge his unconstitutional sentence.
Consider a hypothetical involving a defendant who was found guilty
of capital murder. To meet its burden of proof regarding the future
dangerousness special issue, the State offered evidence of an
unadjudicated homicide. The jury answered the “future dangerousness”
special issue affirmatively, and the defendant was rendered eligible for
the death penalty. Years later, post-conviction counsel obtained the
physical evidence from this unadjudicated extraneous offense, and
sought to have it tested for the first time. The test results exonerated the
defendant of this otherwise unadjudicated homicide and made it probable
that the jury would not have answered the future dangerousness
question affirmatively. The new forensic evidence would thus support a
constitutional claim of “innocent of the death penalty.” Unless Article
14
11.073 applies to punishment-phase claims of death eligibility, the
hypothetical defendant in this scenario would be left without a vehicle to
challenge his unconstitutional sentence.
Employing these two hypotheticals again, but instead of relying on
new scientific evidence that was unavailable at trial, see art. 11.073 §
(a)(1), consider that the applicant argued that the relevant scientific
evidence contradicted the evidence presented at trial. See id. § (a)(2). In
the latter scenario, a claim of “innocent of the death penalty” could be
raised as a due process claim under Article 11.071, while in the former,
an applicant would be left without a path to relief simply because no
scientific evidence was presented at trial, and there was thus no false
testimony or evidence presented. Such an arbitrary result is inconsistent
with the intent of Article 11.073. See, e.g., BILL ANALYSIS, Tex. S.B. 344
(explaining that Article 11.073 was intended to create a “single standard”
for how to deal with convictions unsupported by science); Ex parte
Robbins, __ S.W. 3d __, 2016 WL 370157 at *27 (Tex. Crim. App. Jan.
27, 2016) (per curiam, denying rehearing) (J. Newell, concurring) (“By
enacting Article 11.073 without any express limitation on what
15
constitutes ‘scientific knowledge,’ the Legislature tipped the scales in
favor of accuracy perhaps at the expense of finality.”).7
III. Allowing Article 11.073 Writs Raising Forensic Science
Claims Relating to Punishment Is Consistent With
Eighth Amendment Jurisprudence.
The Supreme Court has repeatedly recognized that the “qualitative
difference between death and other penalties calls for a greater degree of
reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S.
586, 604 (1978) (emphasis added).8 Consequently, when “a defendant’s
life is at stake, the Court has been particularly sensitive to insure that
every safeguard is observed.” Gregg v. Georgia, 428 U.S. 153, 187 (1976).
As a result, the Supreme Court has embraced procedures that minimize
the risk of error in capital cases, even if these same procedures are not
7 In 2013, the same year Article 11.073 was enacted, Senate Bill 1292 was also signed
into law, amending Article 38.43 of the Texas Code of Criminal Procedure and
expanding the availability of DNA testing to persons facing capital murder
prosecution. See TEX. CODE CRIM. PRO. art. 38.43. Under this law, there is a right to
pretrial DNA testing of all biological evidence collected as part of the investigation
into the offense. Id. The legislature did not draw any distinction between biological
evidence that might be relevant to the determination of guilt and that relevant to
questions of punishment.
8Accord Johnson v. Mississippi, 486 U.S. 578, 584 (1988); Mills v. Maryland, 486 U.S.
367, 383-84 (1988); Ake v. Oklahoma, 470 U.S. 68 (1985); Beck v. Alabama, 447 U.S.
625 (1980); Gardner v. Florida, 430 U.S. 349 (1977); Godfrey v. Georgia, 446 U.S. 420,
427-28 (1980); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality
opinion).
16
constitutionally mandated in a noncapital case. As former Chief Justice
Burger stated, the finality of a death sentence “warrants protections that
may or may not be required in other cases.” Ake v. Oklahoma, 470 U.S.
68, 87 (1985) (Burger, C.J., concurring). Indeed, procedural safeguards
are particularly essential in capital cases because “the risk of error in
capital cases may be greater than in other cases because the facts are so
often disturbing that the interest in making sure the crime does not go
unpunished may overcome residual doubt concerning the identity of the
offender.” Baze v. Rees, 553 U.S. 35, 84-85 (2008).
Further, the Eighth Amendment “heightened reliability” doctrine
extends to heightened standards of review once a death sentence has been
assessed at trial. See, e.g., Kyles v. Whitley, 514 U.S. 419, 422 (1995)
(“[O]ur duty to search for constitutional error with painstaking care is
never more exacting than it is in a capital case”) (internal quotation
marks omitted); Zant v. Stephens, 462 U.S. 862, 885 (1983) (“[A]lthough
not every imperfection in the deliberative process is sufficient, even in a
capital case, to set aside a state-court judgment, the severity of the
sentence mandates careful scrutiny in the review of any colorable claim
of error”).
17
In sum, the Eighth Amendment’s “heightened reliability” doctrine
applies to the procedural protections afforded to capital prisoners,
whether the procedures apply before, during, or after a capital trial.
These procedural protections are not just aimed at ensuring that only the
guilty are convicted, but also that only the most death-worthy prisoners
are sentenced to death.
PRAYER
The Amicus prays that this Court construes the word “convicted” in
Article 11.073 to encompass claims relating to both guilt and
punishment.
Respectfully submitted,
OFFICE OF CAPITAL AND
FORENSIC WRITS
/s/ Benjamin B. Wolff
Benjamin B. Wolff
(Texas Bar No. 24091608)
1700 North Congress Avenue,
Suite 460
Austin, Texas 78701
(512) 463-8600
(512) 463-8590 (fax)
Benjamin.Wolff@ocfw.texas.gov
18
CERTIFICATE OF SERVICE
I certify that a copy of this Amicus Curiae Brief in Support of the
Applicant (White) has been served upon the Harris County District
Attorney’s Office and upon the attorney for the Applicant (Patrick McCann),
on May 25, 2016, by electronic service.
/s/ Benjamin B. Wolff
BENJAMIN B. WOLFF
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R.
APP. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the page and word count limitations of TEX. R. APP. P.
9.4(i), if applicable, because it contains 3,513 words excluding portions
not to be counted under TEX. R. APP. P. 9.4(i)(1).
/s/ Benjamin B. Wolff
BENJAMIN B. WOLFF
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