                                                                      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


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                       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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