                              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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