No. _______________
IN THE RECEIVED
COURT OF CRIMINAL APPEALS
1/8/2015
COURT OF CRIMINAL APPEALS TEXAS ABEL ACOSTA, CLERK
IN RE GARCIA GLEN WHITE
PETITION FOR A WRIT OF PROHIBITION
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Garcia Glen White by and through counsel Patrick F. McCann
in the above-captioned and numbered cause with this his Petition For A Writ Of
Prohibition prohibiting the Texas Department of Criminal Justice from enforcing the
warrant issued by the 180th District Court of Harris County on April 28, 2014, setting
relators execution date for January 28, 2015. (Appendix A). As grounds for this
Petition Relator shows the Court the following:
I.
JURISDICTION
In this pleading, relator seeks only to review the Texas Department of Criminal
Justice’s (TDCJ) procedures and policies in administering a sentence of death. Since
this concerns a criminal matter, this Court has exclusive jurisdiction to consider
relator’s writ of prohibition.
The Texas Constitution grants the Court of Criminal Appeals jurisdiction over
all criminal matters. TEX. CONST. ARTICLE V, § 5 (c). And the Court is also
statutorily authorized to grant and issue prohibition in a criminal case. TEX. CODE
CRIM. PRO. ART. 4.04 § 1. Furthermore, this Court has explicitly established that it
maintains exclusive jurisdiction over a capital conviction and sentence of death. State
Ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 395-96 (Tex. Crim. App.
1994).
II.
REQUISITES FOR ISSUANCE OF A WRIT OF PROHIBITION
Prohibition is an extraordinary remedy that will issue only to correct a clear
abuse of discretion or a violation of a duty imposed by law when there is no adequate
remedy by appeal. In re Ford Motor Company, 165 S.W.3d 315, 317 (Tex. 2005) (citing
In re Prudential Ins. Co. of Am., 148 S.W.2d 124, 135-36 (Tex. 2004)); Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992). As discussed above, there is no other court with
jurisdiction to consider challenges in criminal capital cases. Furthermore, relator has
no other vehicle within which to challenge the policies and procedure employed by
TDCJ in carrying out executions. See TEX. CODE CRIM. PRO. ART. 43.14 (granting
TDCJ authority to determine the manner in which an execution is to take place).
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III.
CLAIM
The secrecy of TDCJ’s method of execution presents an unreasonable risk of pain
and suffering to relator in violation of the United States and Texas constitutions.
Texas Code of Criminal Procedure authorizes TDCJ to establish the policies
and procedures within which to carry out executions. This includes selecting and
administering the drug, or drugs, for lethal injection. TEX. CODE CRIM. PRO. ART.
43.14. At this time, it is believed that TDCJ intends to use the drug pentobarbital to
execute relator.
There are no known studies carried out by TDCJ that ensures that
pentobarbital will not result in relator being subjected to cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments of the United
States Constitution. And there is no safeguard to establish that relator will not be
subjected to “torture, or ill treatment, or unnecessary pain,” as prohibited by Article
43.24 of the Texas Code of Criminal Procedure. In fact, there are documented cases
where pentobarbital has resulted in the unnecessary pain and suffering of one
sentenced to death 1. And there are reports that pentobarbital takes longer to cause
death than other drugs. (Appendix C). Additionally, TDCJ refuses to disclose the
manufacturer of the drug and/or who distributes it. This is especially concerning
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In January 2014, Michael Wilson was executed in Oklahoma with the use of the single drug, pentobarbital. Within
20 seconds of the drug being administered, Wilson stated “I feel my whole body burning.” (Appendix B).
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because its manufacture is often poorly regulated and contaminated doses of
pentobarbital may result in excruciating pain. (Appendices D & E).
Furthermore, TDCJ’s own procedures and protocols do not require a doctor or
registered nurse to be part of the team who administers the drugs used during a lethal
injection. (Appendix F). Only a “medically trained individual” inserts the intravenous
catheters into the defendant’s arms. A “drug team” is responsible for administering
the drug, or drugs, used to commence with the execution. (Appendix F). These
procedures and protocols designed by TDCJ when carrying out executions fail to
include safeguards regarding the manner in which the execution is to be carried out,
fail to establish the minimum qualifications and expertise required of the personnel
performing the critical tasks in the lethal injection procedure, and fail to establish
appropriate criteria and standards that these personnel must rely upon in exercising
their discretion during the lethal injection procedures.
IV.
REMEDY
The Texas Code of Criminal Procedure specifically delegates decisions
regarding the method and manner of conducting executions to TDCJ. Such decisions
must be reviewable for constitutionality by this Court. In order to properly exercise
its jurisdiction, this Court should appoint a Special Master in order to develop the
factual allegations raised by relator. In the alternative, this Court should remand the
case to the trial court to hold an evidentiary hearing. As this Court’s power to stay
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relator’s execution until such fact-finding can be conducted is unquestionable the
Court is respectfully asked to stay the execution until the methodology can be
examined by the Court’s fact-finder.
V.
CONCLUSION AND PRAYER FOR RELIEF
Relator is being illegally confined and has been sentenced to death without
regard for the constitutional safeguards prohibiting cruel and unusual punishment.
In view of the foregoing, relator GARCIA GLEN WHITE respectfully
requests that this Honorable Court:
1. Enter an order setting this Petition for a hearing;
2. Issue Writ of Prohibition ordering the Director of the Texas
Department of Criminal Justice – Correctional Institutions Division not
to carry out the provisions of Article 43.14, Texas Code of Criminal
Procedure for the scheduled execution of relator set for January 28,
2015;
3. Appoint a Special Master to hear evidence related to this petition or
remand the case to the original trial court for a hearing;
4. Issue a stay of execution until the allegations in this petition are
investigated and resolved.
5. Grant any other relief, which the law and justice require in this matter.
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Respectfully submitted,
/s/ Patrick F. McCann
/s/ Mandy Miller
PATRICK F. McCANN (SBOT 00792680)
MANDY MILLER (SBOT 24055561)
909 Texas Ave #205
Houston, Texas 77002
713-223-3805
281-667-3352 FAX
writlawyer@justice.com
mandy@mandymillerlegal.com
ATTORNEYS FOR RELATOR
GARCIA GLEN WHITE
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 mail delivery to the
Defendants at: Lynn Hardaway, Harris County District Attorney’s Office, 1201
Franklin, Suite 600, Houston, Texas 77002 and the Capital Litigation’s Office at the
Attorney General’s Office.
/s/ Patrick F. McCann
Patrick F. McCann
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EXHIBIT
A
EXHIBIT
B
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EXHIBIT
C
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EXHIBIT
D
10
EXHIBIT
E
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EXHIBIT
F
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