







 


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-51,264-03



EX PARTE DERRICK SEAN O'BRIEN

 




ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 9402971 FROM THE

184TH DISTRICT COURT OF HARRIS COUNTY




	Cochran, J., filed a concurring statement in which Keller, P.J., and Keasler,
and Hervey, JJ., joined.


CONCURRING STATEMENT


	I respectfully concur in the court's action lifting applicant's temporary stay of
execution.  Because of the last-minute nature of applicant's habeas corpus filing, a majority
of this Court voted to grant a stay to have sufficient time to assess both the procedural aspects
of the subsequent writ application and the merits of the claim. 
	Applicant, who was convicted of capital murder in 1994, does not, in this subsequent 
application, challenge Texas' right to execute him.  Indeed, he claims that he does not
challenge the method of his execution-lethal injection.  His sole challenge is to the specific
chemicals that the Texas Department of Criminal Justice (TDCJ) uses in its lethal injection
protocol.  He contends that two of these three chemicals, pancuronium bromide and
potassium chloride, are "unnecessary to carrying out his execution" and "unnecessarily create
a risk that O'Brien will suffer excruciating excessive pain during the administration of his
lethal injection." 
	Applicant argues that the United States Supreme Court has recently stayed the
execution of a Florida death row inmate and granted certiorari to address claims similar to
those raised in his successor application.  See Hill v. Crosby, 126 S.Ct. 1189 (2006).  The
questions on which the Supreme Court granted certiorari in Hill v. Crosby are:
	1. Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue
a challenge to the chemicals utilized for carrying out the execution, is
properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254.

2. Whether, under this Court's decision in Nelson, a challenge to a
particular protocol the State plans to use during the execution process
constitutes a cognizable claim under 42 U.S.C. § 1983.

These questions do not address the merits of whether the chemicals used in the Florida or
Texas lethal injection protocol are "unnecessary," "cause excruciating pain," or violate the
Eighth Amendment to the United States Constitution.  The case addresses only a procedural
issue under the federal Civil Rights Act, thus, there is no reason to stay applicant's execution
pending the Supreme Court's resolution in Hill.  Furthermore, applicant has not met the
Supreme Court standard for granting a stay of execution.
 A. 	The Supreme Court Standard for Granting a Stay to Litigate Eighth
Amendment Lethal Injection Claims.

	 Two years ago, in Nelson v. Campbell, the Supreme Court set out the standard for
granting a stay of execution to bring an equitable action challenging the methodology (or
chemical protocol) of an inmate's execution: 
	before granting a stay [of execution], a district court must consider not only the
likelihood of success on the merits and the relative harms the parties, but also
the extent to which the inmate has delayed unnecessarily in bringing the claim. 
Given the State's significant interest in enforcing its criminal judgments, there
is a strong equitable presumption against the grant of a stay where a claim
could have been brought at such a time as to allow consideration of the merits
without requiring entry of a stay. (1)

Thus, even if the Supreme Court, in the pending Hill case, allows an inmate to bring an
equitable action challenging the lethal injection chemical protocol, an inmate still would not
be entitled to either a stay or equitable relief unless, under Nelson, he has shown a fair
likelihood (such as a prima facie showing) of success on the merits of his claim, and that he
has not delayed unnecessarily in bringing it. (2) 
	In assessing the validity of a claim of "cruel and unusual" punishment, the Supreme
Court  has considered various factors, such as whether a method of punishment (1) deviates
from contemporary norms and standards of society; (2) offends the dignity of the prisoner
and society; or (3) inflicts unnecessary physical or psychological pain "contrary to
contemporary standards of decency." (3)  These factors dictate that punishments may not
include torture, slow death, or "unnecessary and wanton infliction of pain." (4)  Thus, to be
entitled to stay, an inmate must make a prima facie showing that the injection protocol causes
torture, a lingering death, or wanton infliction of pain contrary to contemporary standards of
decency.
	As the Supreme Court has repeatedly noted in the Eighth Amendment context of the
evolving standards of decency, "[t]he clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country's legislatures." (5)  Of the thirty-eight states that presently permit capital punishment, approximately thirty-seven of them have
adopted lethal injection as the primary means of execution. (6)  Almost every single one of
those states uses the same three chemicals as TDCJ. (7)  Moreover, I am unable to find any
court that has held that lethal injection in general, or a specific lethal-injection protocol in
particular, violates the Eighth Amendment. (8) 
B. Applicant has not made a prima facie showing that his constitutional claim is
meritorious. 

	 Applicant's claim, simply put, is that the lethal injection chemicals used by TDCJ
could cause a painful death.  Applicant offers neither evidence-much less scientific or
medical data, peer-reviewed journal articles, expert affidavits, or controlled scientific
studies-nor law to support this scientifically based medical claim.  But numerous courts
across this nation have rejected claims similar to applicant's-some after extensive evidentiary
hearings, (9) others based upon the face of the pleading. (10)
	According to the TDCJ response to applicant's administrative complaint, the lethal
injection method used by TDCJ is based upon three separate chemicals.  
	First, an inmate is given a "massive dose of sodium pentothal," a barbiturate also
known as sodium thiopental. (11)  This drug is most commonly used as a fast-acting medical
anesthesia.  It is given in small doses during operations, and, because it rapidly reaches the
brain, it generally causes unconsciousness within 30-45 seconds.  When used as a part of the
lethal injection process, however, it is injected at approximately nine to ten times the
medical-anesthesia level. (12)  TDCJ uses 3 grams of sodium pentothal in 30 milliliters of
solution.  TDCJ states that "[t]his dose is considered to be lethal in adults." (13)
	Second, the inmate is given an injection of pancuronium bromide which is a
neuromuscular blocking agent, similar to curare. (14)  Pancuronium bromide causes the inmate
to suffocate, because the lungs stop moving.  At the same time, the drug's paralytic effect
prevents the person from manifesting any sensation by facial expression, hand movement,
or speech. (15)  As explained by one court:
 Pancuronium suppresses involuntary seizures or motor manifestations that may
occur during the execution process.  These motor manifestations could give
witnesses the false perception that the condemned inmate was experiencing
pain.  In light of the large dose of sodium thiopental, the inmate does not
experience any pain associated with any potential involuntary motor reactions. 
Fifty milligrams of pancuronium bromide is a lethal dosage and will cause
death by the cessation of respiration within two minutes.  In this protocol, the
probability that the inmate would be conscious of the physical effects of
pancuronium is less than 1/100 of one percent. (16)

	Third, the inmate is given an injection of potassium chloride.  Potassium chloride
burns intensely as it goes through the veins toward the heart.  When potassium chloride
reaches the heart, it causes a heart attack. (17)
	Applicant points to the fact that numerous states, including Texas, have banned the
use of neuromuscular blocking agents such as pancuronium bromide for use in animal
euthanasia. (18)  These states generally require the use of a single barbiturate, such as sodium
pentobarbitol (which is a longer-acting barbiturate than sodium pentothal).  Some might
conclude that sodium pentobarbitol is a more humane sedative to use in conducting lethal
injections because it lasts longer.  But applicant has not shown that the massive dose of
sodium pentothal used by TDCJ fails to ensure the inmate's unconsciousness.  Moreover,
because of its infrequent use, pentobarbitol lacks the state-of-the-art scientific analysis
regarding its effects and dependability that is available for sodium pentothal.  It is not this
Court's function to suggest more humane or medically acceptable execution protocol, but to
determine whether the method adopted by TDCJ (and used widely across the United States)
is constitutionally sound. (19)
	Applicant's argument suggests that if the sodium pentothal does not work, or if it is
injected improperly, or if the dosage is not high enough, or if it wore off too soon, he could
be conscious at the time that the second injection (of pancuronium bromide) is given and he
would suffer great pain, but that pain would be masked because he could not move, speak,
or otherwise indicate his suffering.  All of these are conceivable possibilities, but they are
based upon the assumption that the sodium pentothal injection is ineffective or does not
cause a sufficiently long period of unconsciousness (even though it is a fatal dosage). (20) 
 Courts cannot judge the lethal injection protocol based solely on speculation as to
problems or mistakes that might occur.  Instead, they must examine the lethal injection
protocol as it exists today.  Applicant has provided no evidence that the TDCJ protocol is
subject to any realistic risk of unnecessary pain or suffering.  The Supreme Court of
Connecticut has reached the same conclusion: 
	The defendant's argument is premised on a series of presumptions:  that the
personnel will not be trained adequately; that the dosage of thiopental sodium
ten times the surgical dose will not be sufficient to render the inmate
unconscious; and that the agents will not be administered in the proper time
and sequence.  The evidence, however, supports a conclusion that reasonable
steps have been taken to eliminate human error. . . . We conclude . . . that  the
agents may be administered correctly and effectively, and that the possibility
of a "botched" execution is extremely remote under the protocol. (21)

The risk of accident or negligence "cannot and need not be eliminated from the execution
process" for that method to survive constitutional review. (22)  Those courts that have
considered the issue of the lethal injection drug protocol have found that the likelihood of
constitutional error occurring "is so remote as to be nonexistent." (23)
	In sum, applicant has failed to produce any facts or scientific evidence that a scenario
involving unnecessary pain and suffering by the use of TDCJ's chemical protocol is anything
other than speculation.  I therefore join in the Court's decision to lift the temporary stay of
execution and to the dismissal of applicant's subsequent petition for failing to make a prima
facie showing of possible merit.	

Filed: May 17, 2006					
Publish
1.  Nelson v. Campbell, 541 U.S. 637, 649-50 (2004) (citations omitted).
2.  Applicant appropriately notes that this Court recently held that a direct appeal challenge
to the lethal injection chemicals used in Texas was not ripe because the defendant's execution
was not "imminent."  See Doyle v. State, No. 74,960, 2006 Tex. Crim. App. LEXIS 925, *10-11
(Tex. Crim. App., May 10, 2006) (not designated for publication).  Such a claim certainly is ripe
for review once an execution date is set.  Applicant's execution date was set on February 3, 2006. 
He filed his subsequent writ on May 10, 2006, five days before his scheduled execution.	
3.   Helling v. McKinney, 509 U.S. 25, 36 (1993); see also Wilson v. Seiter, 501 U.S. 294,
297-98 (1991).
4.  Estelle v. Gamble, 429 U.S. 97, 102 (1976) ("It suffices to note that the primary concern
of the drafters was to proscribe 'torture[s]' and other 'barbar[ous]' methods of punishment");  In
re Kemmler, 136 U.S. 436, 447 (1890) ("Punishments are cruel when they involve torture or a
lingering death. . .").  But traditional modes of execution, "such as hanging, have always
involved the possibility of pain and terror for the convicted person."  Gray v. Lucas, 710 F.2d
1048, 1061 (5th Cir. 1983) (rejecting claim that execution by cyanide gas-which could last seven
minutes and be extremely painful-violated Eighth Amendment).
5.  Penry v. Lynaugh, 492 U.S. 302, 331 (1989); Atkins v. Virginia, 536 U.S. 304, 312
(2002); Roper v. Simmons, 543 U.S. 551, 589 (2005) (O'Connor, J., dissenting).
6.  Cooper v. Rimmer, 358 F.3d 655, 659 (9th Cir. 2004); State v. Webb, 750 A.2d 448, 457,
n.10 (Conn. 2000) (summarizing legislation in 34 states).
7.  See Cooper v. Rimmer, 358 F.3d at 659.
8.  See Webb, 750 A.2d at 457-58 (collecting cases).  The following cases deny Eighth
Amendment challenges to the lethal-injection protocol on the merits:  Cooper, 358 F.3d at 659;
Wheeler v. Commonwealth, 121 S.W.3d 173, 186 (Ky. 2003); Bieghler v. State, 839 N.E.2d 691,
694-96 (Ind. 2005); Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005); Reid v.
Johnson, 333 F. Supp. 2d 543, 553 (E.D. Va. 2004); People v. Snow, 65 P.3d 749, 800-01 (Cal.
2003); Sims v. State, 754 So.2d 657, 668 (Fla. 2000); State v. Webb, 750 A.2d 448, 457 (Conn.
2000); LaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir. 1998) (lethal injection in Arizona). 
The following cases dismissed Eighth Amendment challenges to the lethal-injection protocol
without reaching the merits:  Boyd v. Beck, 404 F. Supp. 2d 879, 883-84 (E.D.N.C. 2005); 
Aldrich v. Johnson, 388 F.3d 159, 161 (5th Cir. 2004) (lethal injection in Texas); Harris v.
Johnson, 376 F.3d 414, 419 (5th Cir. 2004) (lethal injection in Texas).  In the following cases,
the issue remains ripe:  Rutherford v. Crosby, 126 S.Ct. 191, 546 U.S. ___ (Jan. 31, 2006)
(granting stay of execution pending disposition of cert. pet.); Anderson v. Evans, No. CIV-05-0825-F, 2006 U.S. Dist. LEXIS 1632, at *1-2, (W.D. Okla. Jan. 11, 2006) (denying motion to
dismiss 42 U.S.C. § 1983 Eighth Amendment challenge to lethal-injection protocol). 
9.  See, e.g., Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005); Reid v. Johnson,
333 F. Supp 2d 543 (E.D. Va. 2004); Sims v. State, 754 So.2d 657 (Fla. 2000); State v. Webb,
252 Conn. 128 (Conn. 2000); State v. Deputy, 644 A.2d 411 (Del. Super. 1994).
10.  See, e.g., Bieghler v. State, 839 N.E.2d 691 (Ind. 2005); Boyd v. Beck, 404 F. Supp. 2d
879 (E.D.N.C. 2005); LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998); Woolls v. McCotter,
798 F.2d 695 (5th Cir. 1986); Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992); Cooper v.
Rimmer, 358 F.3d 659 (9th Cir. 2004).
11.  Appendix C to Derrick O'Brien's application for writ of habeas corpus (Texas
Department of Criminal Justice Inter-Office Communication to Derrick O'Brien, dated March
27, 2006).
12. See Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005) (noting that
"[a]ccording to the State's expert, over 99.999999999999% of the population would be
unconscious within sixty seconds from the start of the administration of five grams of sodium
pentothal-which is 12.5 times the normal surgical dosage-and would render most people
unconscious for a period in excess of 13 hours"); Reid v. Johnson, 333 F. Supp. 2d at 546-47.  In
Reid, the court explained:
 The first drug, sodium thiopental [also known as sodium pentothal] is a barbiturate
sedative.  Two grams of sodium thiopental is approximately five to eight times the
dosage that would be used to render a 176 pound individual unconscious for general
surgery.  Within moments after the injection of the sodium thiopental, the inmate will
be rendered unconscious.  The condemned inmate will slip into unconsciousness in
the same manner as that experienced by a general surgery patient.  The probability
of the inmate regaining consciousness within the ensuing ten minutes is 3/1000 of
one percent.  The probability of the inmate regaining consciousness by minute fifteen
is 6/1000 of one percent.  The probability of the inmate regaining consciousness
within twenty minutes never rises above 1/100 of one percent.  In light of the
inordinately high dosage, the weight or other physical attributes peculiar to a
particular inmate will have a negligible impact on these  probabilities.
Id. 
13.   Appendix C.  See Beardslee v. Woodford, 395 F.3d at 1071 (noting that the parties
agreed that the dosage of sodium pentothal used during California executions "would be
sufficient to induce unconsciousness, and even cause death itself, if administered properly");
Evans v. Saar, 412 F. Supp. 2d 519, 521 (D. Md. 2006) ("The parties agree that this dosage [3
grams of sodium pentothal], if successfully administered, is enough to drive any human being
into deep unconsciousness for hours"); Abdur'Rahman v. Bredesen, 181 S.W.3d at 303 ("Dr.
Heath agreed that an injection of two grams of sodium pentothal would cause unconsciousness in
all but 'very rare' cases and that an injection of five grams of sodium pentothal 'would almost
certainly be fatal.'").
14.  Curare is a dried extract from a vine used by South American Indians to poison arrow
tips and, by doctors, as a muscle relaxant.  Merriam-Webster Online Dictionary
(http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=curare) (last visited on May 17,
2006).
15.  Beardslee v. Woodford, 395 F.3d at 1071.
16.  Reid v. Johnson, 333 F. Supp.2d at 547.
17.  Beardslee v. Woodford, 395 F.3d at 1071; Reid v. Johnson, 333 F. Supp.2d at 547. 
"One hundred milliequivalents of potassium chloride is a lethal dose.  Within moments after the
potassium chloride has been injected, the heart of the inmate will stop beating.  Shortly
thereafter, brain activity will cease.  Within three minutes after the injection of the potassium
chloride, the inmate will be brain dead."  Id.
18.  Florida, Fla. Stat. §§ 828.058 and 828.065; Georgia, Ga. Code Ann. § 4-11-5.1;
Maine, Me. Rev. Stat. Ann., tit. 17, § 1044; Maryland, Md. Code Ann., Criminal Law, § 10-611; Massachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.j. Stat. Ann. 4:22-19.3;
New York, N.y. Agric. & Mkts Law § 374; Oklahoma, Okla. Stat. tit. 4, § 501; and
Tennessee, Tenn. Code Ann. § 44-17-303.  States that require the use of a particular method for
animal euthanasia, and therefore implicitly ban the use of neuromuscular blocking agents are: 
Connecticut, Conn. Gen. Stat. § 22-344a; Delaware, Del. Code Ann. tit. 3, § 8001; Illinois,
510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Kentucky, Ky. Rev.
Stat. Ann. § 321.181(17) and Ky. Admin. Regs. 16:090 section 5(1); Louisiana, La. Rev.
Stat. Ann. § 3:2465; Missouri, Mo. Rev. Stat. § 578.005(7); South Carolina, S.c. Code Ann.
§ 47-3-420; Texas, Tex. Health & Safety Code Ann. § 821.052(a).  Most frequently, these
states require either the use of the sedative sodium pentobarbitol, or adherence to the American
Veterinary Medical Association Panel on Euthanasia's published method.
19.  See Reid v. Johnson, 333 F. Supp. 2d at 547-48.
20.  See Sims, 754 So.2d at 666 n.17 (noting that "[o]n the issue of dosage, a defense expert
admitted that only one milligram per kilogram of body weight is necessary to induce
unconsciousness, and that a barbiturate coma is induced at five milligrams per kilogram of body
weight.  Thus, two grams of sodium pentothal (i.e., 2000 milligrams) is a lethal dose and certain
to cause rapid loss of consciousness (i.e., within 30 seconds of injection).  The expert further
stated that muscle paralysis occurs at .1 milligram of pancuronium bromide per kilogram of body
weight.  Thus, fifty milligrams of pancuronium bromide far exceeds the amount necessary to
achieve complete muscle paralysis.  Finally, the expert admitted that 150 to 250 milliequivalents
of potassium chloride would cause the heart to stop if injected quickly into the inmate and that an
IV push would qualify as 'quickly.'").
21.   Webb, 750 A.2d at 456.
22.   Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994).
23.  Reid, 333 F. Supp. 2d at 551.

