Ex Parte O'Brien

PRICE, J.,

filed a dissenting statement in which HOLCOMB, J., joined.

On May 15, 2006, this Court stayed the applicant’s imminent execution in order to allow time to consider what he styles a subsequent post-conviction application for writ of habeas corpus brought pursuant to Article 11.071, Section 5(a) of the Texas Code of Criminal Procedure.1 In his purported subsequent writ application, the applicant alleges that the particular three drug protocol for executing capital offenders in Texas violates the Eighth Amendment ban on cruel and unusual punishments. It has long been my position that such a claim satisfies the criteria for a subsequent writ application under Article 11.071, section 5(a).2

Today the Court has lifted O’Brien’s stay, and has denied a stay of execution to a second applicant who has raised a claim identical to O’Brien’s, and who is scheduled to be executed this evening. In her concurring statement, Judge Cochran ultimately concludes that the applicant has failed to allege facts sufficient to make out a prima facie case for establishing an Eighth Amendment violation. But of course, that is not the question before us. Under Article 11.071, Section 5(a), the question before us is whether the current claim has not been and could not have been presented previously in a timely initial post-conviction writ application because the factual or legal basis for the claim was unavailable when the previous application was filed. The applicant has alleged an Eighth Amendment violation. Whether the facts he has stated in support of that claim would, if true, entitle him to *684relief, is a question in the first instance for the convicting court to resolve,3 in the event we decide the criteria of Section 5(a) have been satisfied. All we are authorized to decide at this juncture is whether those facts were previously “unavailable,” as that term is defined in Article 11.071, Section (5)(e) of the Code of Criminal Procedure.4

On the other hand, there may be a legitimate question whether a challenge to the lethal injection protocol actually constitutes a post-conviction application for writ of habeas corpus at all, under Article 11.071, since it may not constitute a challenge to “a judgment imposing a penalty of death.”5 We originally granted the stay in this cause, by my understanding, in order to allow ourselves sufficient time to decide whether a claim such as the applicant’s challenge to the lethal injection protocol may even be brought under Article 11.071, and whether, if a post-conviction challenge under that specific provision is not appropriate, any other extraordinary remedy may be available for the applicant to present his challenge. It has long been the practice of this Court not to be bound by the denomination of a pleading for extraordinary relief, but to issue whatever remedy may be appropriate in light of the substance of the pleading.6

Nobody doubts that whether Texas’s three drug protocol violates the Eighth Amendment is a substantial and troubling question, one that even a casual perusal of Judge Cochran’s concurring statement demonstrates is presently vexing courts all over the country. If there exists a legitimate vehicle for a condemned inmate to bring that issue before us, even at the eleventh hour, surely we should address it on the merits. But it is incumbent upon us first to decide whether such a vehicle does exist. That was the impetus behind our granting the applicant’s stay.

Today, instead, the Court rushes to judgment, apparently assuming (at least judging by Judge Cochran’s concurring statement) that the applicant’s claim is legitimately before us as a subsequent post-conviction habeas corpus, but leaping to a premature conclusion with respect to the merits of the Eighth Amendment issue. Moreover, in rejecting the claim on the merits, the Court (again via Judge Cochran) apparently concludes that the applicant “has failed to produce any facts or scientific evidence” to support his claim. It is manifestly unfair, in my estimation, to fault the applicant for a failure of proof without first affording him an opportunity to present evidence at a hearing, or through one of the other mechanisms that the statute allows for presentation of evidence, once it is determined that facts have been alleged, which, if true, may entitle the applicant to relief.7 It is not clear to me that the lethal injection protocol we use in Texas to execute capital offenders does not constitute cruel and unusual punishment. It is evident enough from the applicant’s pleadings that it might. I would not reject the applicant’s claim (assuming we can reach it) without affording *685the applicant an evidentiary forum to substantiate his claim.

For all of these reasons, I respectfully dissent to the order of the Court lifting the applicant’s stay of execution.

. Tex.Code Crim. Pro. art. 11.071, § 5(a).

. See Ex parte Hopkins, 160 S.W.3d 9 (Tex.Crim.App.2004) (Price, J., dissenting to denial of stay of execution).

. See Ex parte Simpson, 136 S.W.3d 660, at 668-69 (Tex.Crim.App.2004) ("We are not the convicting court, and we are not the original factfinders.”)

. Tex.Code Crim. Pro. art. 11.071, § (5)(e).

. See Ex parte Kerr, 64 S.W.3d 414, at 418 (Tex.Crim.App.2002) (quoting Tex.Code Crim. Pro. art. 11.071, § 1).

. See e.g., Houlihan v. State, 579 S.W.2d 213, at 216 (Tex.Crim.App.1979) ("Nor ... does the form in which the matter is originally presented control the form of writ by which the matter is disposed.”).

. Tex.Code Crim. Pro. art. 11.071, § 9(a).