NO. ________
IN THE COURT OF CRIMINAL APPEALS RECEIVED
COURT OF CRIMINAL APPEALS
OF TEXAS 1/8/2015
ABEL ACOSTA, CLERK
In re
GARCIA GLEN WHITE,
Relator-Petitioner
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
OR, IN THE ALTERNATIVE,
ORIGINAL PETITION FOR WRIT OF PROHIBITION,
AND MOTION FOR STAY OF EXECUTION
THIS IS A DEATH PENALTY CASE.
MR. WHITE IS SCHEDULED TO BE EXECUTED
ON JANUARY 28, 2015
Pat McCann - Counsel Mandy Miller – Co-Counsel
SBOT: 00792680 SBOT: 24055561
909 Texas Ave, Ste. 205 2910 Comm. Center Blvd, # 103-201
Houston, Texas 77002 Katy, Texas
Phone: 713) 223-3805 Phone: 832) 900-9884
writlawyer@justice.com mandy@mandymillerlegal.com
IDENTIFICATION OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 52.3(a), undersigned counsel sets out a list of all
parties, and the names and addresses of all counsel.
Respondent - Rick Thaler,
Director of the Texas Department of Criminal Justice
Institutional Corrections Division
P.O. Box 13084 - Capitol Station
Austin, TX 78711-3084
Counsel for Respondent-Edward L. Marshall,
Chief, Postconviction Litigation Division
Office of the Attorney General
330 W. 15th Street, 8th Floor,
William P. Clements Building
Austin, Texas 78701
Criminal District Attorney, Harris County, Texas-Devon Anderson,
1201 Franklin Street
Houston, Texas 77002
Chief, Writs division, Harris County District Attorney’s Office- Lynn Hardaway,
1201 Franklin Street
Houston, Texas 77002
Relator/Petitioner-Garcia Glen White,
Texas Department of Criminal Justice, Death Row
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351
Counsel for Relator/Petitioner-Pat McCann and Mandy Miller
ii
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL...............................................ii
STATEMENT OF THE CASE.................................................................................4
STATEMENT OF JURISDICTION.........................................................................5
ISSUES PRESENTED..............................................................................................6
STATEMENT OF FACTS........................................................................................6
ARGUMENT.............................................................................................................7
RELIEF REQUESTED AND PRAYER.................................................................12
CERTIFICATE OF SERVICE................................................................................14
VERIFICATION.....................................................................................................15
EXHIBITS...............................................................................................................16
APPENDIX
Exhibit 1: Judgment of Conviction and Sentence
Exhibit 2: Order Setting Execution
Exhibit 3: Report of Dr. Averill
Exhibit 4: Report of Dr. Jerome Brown
Exhibit 5: Transcript of Interview with Garcia G. White – State’s Exhibit: 56a
iii
NO. ________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
In re
GARCIA GLEN WHITE,
Relator-Petitioner
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
OR, IN THE ALTERNATIVE,
ORIGINAL PETITION FOR WRIT OF PROHIBITION,
AND MOTION FOR STAY OF EXECUTION
THIS IS A DEATH PENALTY CASE.
MR. WHITE IS SCHEDULED TO BE EXECUTED
ON JANUARY 28, 2015
STATEMENT OF THE CASE
Mr. White faces execution pursuant to a death warrant issued by the
convicting court to the Texas Department of Criminal Justice, Institutional
Division, pursuant to a conviction for Capital Murder and sentence of death in the
180th District Court, the Hon. Debbie Stricklin presiding in 1996. His direct appeal
was affirmed. No petition for writ of certiorari was filed. Mr. White has filed a
series of habeas applications, which have been reviewed by the Fifth Circuit and
the Supreme Court of the United States. No other petitions are currently pending.
4
STATEMENT OF JURISDICTION
This Court has original habeas corpus jurisdiction under Article V, § 5 of the
Texas Constitution and Article 4.04 of the Texas Code of Criminal Procedure.
And no statute limits the authority or jurisdiction of this Court to consider an
original habeas application. See Ex rel. Wilson v. Briggs, 351 S.W.2d 892, 894
(Tex. Crim. App. 1961) (“The original jurisdiction of this court to issue writs of
habeas corpus is unlimited.”).
This Court has original jurisdiction to issue a writ of prohibition under
Article V, § 5 of the Texas Constitution and Article 4.04 of the Texas Code of
Criminal Procedure. As this Court may issue a writ of mandamus to correct an
order that a judge had no power to render and that was, therefore, void 1, it has a
similar authority to issue a writ of prohibition to bar a respondent from carrying
out an act based upon a null and void judgment. If an order is void, then a relator
need not show that he did not have an adequate appellate remedy. In re Dickason,
987 S.W.2d 570, 571 (Tex. 1998); In re Union Pacific Resources Co., 969 S.W.2d
427, 428 (Tex. 1998).
1
Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986)
5
ISSUES PRESENTED
This Original Petition presents two issues for the Court’s review:
1. Was Mr. White’s invocation of counsel entitled to more deference under
Article I, Sec 10 of the Texas Constitution due to his limited borderline IQ?
2. Does the due course of law provision of Article I, Section 19 of the Texas
Constitution mandate additional scrutiny of an invocation of counsel when
the accused has mental limitations or illness, such as Mr. White manifests?
STATEMENT OF FACTS
In 1996, Mr. White was convicted and sentenced to death for the murder of
two young girls in the 180th District Court, Hon. D. Stricklin presiding. Mr. White
had incidences of head traumas which were introduced at trial. But only on initial
and subsequent habeas was his borderline IQ thoroughly vetted and introduced via
the reports of two psychological experts. [See Appendices 3 and 4, the reports of
Dr. Brown and Averill.]
Mr. White initially became a suspect as a result of the State’s key witness,
Tecumseh Manuel, Mr. White’s friend. After being detained as a suspect in the
murders, Mr. White underwent several interviews with police. During one
interview, Mr. White attempted to invoke his right to counsel and ask for a lawyer
to advise him. He stated that he had the right to have a lawyer present. [See pages
6
of trial testimony, attached as Exhibit 5 ]. However, the trial judge denied Mr.
White’s motion to suppress and the Court of Criminal Appeals upheld that decision
in an unpublished opinion dated June 17th, 1989. The Court of Criminal Appeals
decision regarding Mr. White’s invocation was based only on the federal Miranda
v. Arizona standard under the Fifth and Fourteenth Amendments. The Court did
not conduct an analysis into whether Mr. White’s low IQ should be a factor when
considering whether he properly invoked his right to counsel under state
constitutional principles.
The question before this Honorable Court then is as follows – what impact
does the Texas Constitution have in protecting the liberties of those who are less
capable, such as the mentally infirm, the disabled, or minors when it comes to their
invocation of counsel? The Petitioner/Relator argues that the Texas Constitution
requires more leniency in interpreting an invocation, under both Article I, Section
10, and Section 19 of the Texas Bill of Rights, and that Mr. White’s invocation
would qualify.
ARGUMENTS AND AUTHORITIES IN SUPPORT
A. Constitutional Analysis
Under our system of federalism, states may provide greater protection to its
citizens from government intrusion than the Federal Constitution. PruneYard
7
Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980);
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v.
California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The Texas Court of
Criminal Appeals has recognized that “[t]he federal constitution sets the floor for
individual rights; state constitutions establish the ceiling.” Heitman v. State, 815
S.W.2d 681, 690 (Tex. Crim. App. 1991)).
Article I, Section 10 of the Texas Constitution states that a person shall have
the right to be heard in trial by himself or with the assistance of counsel. Article I,
Section 19 provides that no person shall be deprived of life, liberty, property, or in
any way be disenfranchised, without due course of law. Both of these Sections are
worded differently, and more expansively, than their federal counterparts in the
Sixth and Fourteenth Amendments. Both were drafted after the federal
constitution, and in their original versions were drafted by men who believed
Texas would remain a sovereign nation. There are indications, although not
definitive, that the Texas’ Bill of Rights derived from such multiple sources as the
Spanish civil law, the Magna Charta, the English Bill of Rights, the Virginia Bill of
Rights, the Declaration of Independence, the United States Constitution, and the
early constitutions of other states, particularly those of Virginia, North Carolina,
Pennsylvania, Kentucky and Tennessee. See, J.E. Ericson, Origins of the Texas
Bill of Rights, 62 Sw. Hist.Q. 457, 458-66 (1958); see also, Matthew W. Paul &
8
Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St.
Mary’s L.J. 929, 936 (1992).
For over a hundred years, fundamental rights of privacy and protections
against arbitrary intrusion by state and local governments were secured only to the
extent granted and provided by state constitutions. Newman, The “Old
Federalism”: Protection of Individual Rights by State Constitutions in an Era of
Federal Court Passivity, 15 Conn. L. Rev. 21, 22 (1983). The guarantees in the
federal Bill of Rights were not intended to, nor did they protect against “state
action.” Barron v. Mayor of Baltimore, 32 U.S. 242 (1833). Therefore, at the time
these Sections were drafted, the Framers had little reason to believe the federal
protections would ever extend to them.
In the versions drafted after the Civil War, the legislative representatives had
been under military rule for years, and had been oppressed under often corrupt
imposed “carpetbagger” governments. Those drafters valued their personal
liberties highly enough that they were placed first in the document, not added as an
afterthought. To state in any way that the intent of these framers would have been
to interpret the Texas Constitution in lock-step with that of a frankly loathed
federal government denies history.
9
Likewise, the plain wording of the Sections indicates a more expansive view
of the scope of personal liberties protected. The due course of law language
implies direct access to courts, and the proscription against any further
disenfranchisement appears to be an additional safeguard. The wording in Article
I, Section 10 appears to be somewhat more broadly drafted than the Sixth
Amendment, and uses mandatory language as to the right to be heard by the
accused, with counsel or by himself. “Construction of a constitutional provision
should prevent any clause, sentence, or word from being superfluous, void, or
insignificant.” Autran, 887 S.W.2d at 38 (citing Cordova v. State, 6 Tex. App.
207 (1879)).
Although it is admittedly more difficult to determine any original framer
intent regarding the issue of how to handle those with mental illness or limitations,
there are some contextual, social historical clues in the origin of the Texas State
School system, which was specifically designed to care for those with the special
needs of limited intellectual functioning. Thus, Texas has a history of special care
for such individuals, and the many laws have their origin in that societal sense of
helping those who are less capable. There is every reason to extend such care into
the criminal justice system.
10
B. Public Policy reasons and alignment with modern statutes
Our current case law provides for findings of incompetency for mental
illness and mental retardation under Article 46B of the Texas Code of Criminal
Procedure 2. The Texas Health and Safety Code provides a detailed listing and
discussion of the State’s obligations to those who suffer from these maladies, and
likewise our own recent statutory interpretations under Article 38.22, Section 6 of
the Code of Criminal Procedure indicates that mental illness or retardation may be
considered in assessing the voluntariness of an accused’s statement. See
Oursbourn v. State, 259 S.W.3d 159 (2008). Thus, if our current case law appears
to acknowledge that the voluntariness of a statement may be reviewed while
weighing the capacity of an individual, should not our Texas Constitution permit
such a review as to the invocation of counsel?
There is no situation in which a person needs the assistance of counsel more
than when that person is either delusional or limited. A clever, educated person is
still not versed in law, and would often not know the procedural mistakes that
could ensnare them. How then is a person whose functional IQ would make them,
for all purposes, a minor, supposed to understand his situation without the
assistance of counsel under Article I, Section 10? How much more easily would
2
Modern practice indicates that the term “intellectual disability” is coming to replace the term retardation,
however that is still the term in the Code.
11
he or she be manipulated without a lawyer? Does not the due course of law under
Section 19 mandate that this person, who for whatever reason, the universe has
rendered less capable, be given more leniency in their attempts to invoke counsel?
This Court has the right to interpret its own Constitution according to the
plain meaning, the intent of the framers, and the unique situation and history of
Texas. It has every right to harmonize the modern statutory trend towards
recognition of those in our midst that are less capable, and to extend the
Constitution’s protections to them in a meaningful way. That is all we ask.
RELIEF REQUESTED AND PRAYER
Wherefore, pursuant to the powers of this Honorable Court under Article V,
Section V of the Texas Constitution and Article 4.04 of the Texas Code of
Criminal Procedure, the Petitioner/Relator respectfully prays this Court will
1) Stay his execution and set this matter for full briefing with argument;
2) Alternatively stay this execution and remand this matter to the convicting
court for fact-finding on the issues raised;
3) Grant any and all relief to which the Petitioner/Relator may be entitled.
12
Respectfully submitted,
/s/ Patrick F. McCann
Patrick F. McCann
SBOT: 00792680
909 Texas Ave., Ste. 205
Houston, Texas 77002
713) 223-3805
writlawyer@justice.com
/s/ Mandy Miller
Mandy Miller
SBOT: 24055561
2910 Commercial Center Blvd.
Ste. 103-201
Katy, Texas 77494
832) 769-0613
mandy@mandymillerlegal.com
13
CERTIFICATE OF SERVICE
I, Patrick F. McCann do hereby certify that a true and correct copy of the
above and foregoing has been served on January 8th, 2015 via hand delivery to the
Defendants at: Lynn Hardaway, Harris County District Attorney’s Office, 1201
Franklin, Suite 600, Houston, Texas 77002
/s/ Patrick F. McCann
Patrick F. McCann
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EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5