             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                     NO. WR-48,152-08



                    EX PARTE GARCIA GLEN WHITE, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. 0723847 IN THE 180 TH JUDICIAL DISTRICT COURT
                         FROM HARRIS COUNTY

       A LCALA, J., filed a dissenting opinion in which M EYERS and J OHNSON, JJ.,
joined.

                                 DISSENTING OPINION

       In his habeas application challenging his death sentence, Garcia Glen White,

applicant, contends that the new-science statute, Article 11.073 of the Code of Criminal

Procedure, applies to the evidence admitted in the sentencing phase of his death-penalty trial.

See T EX. C ODE C RIM. P ROC. art. 11.073. More specifically, applicant alleges that he is

“entitled to a new trial because newly discovered scientific evidence would have provided

compelling mitigating evidence that would have likely changed the jury’s answers to the

special issues.” This Court dismisses applicant’s habeas application on the basis that the
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new-science statute is inapplicable to the sentencing phase of his death-penalty trial. I,

however, conclude that the word “convicted” as it is used in Article 11.073 is ambiguous and

that extra-textual statutory analysis favors interpreting the word to include the sentencing

phase of a death-penalty trial. I conclude that applicant may assert a complaint under Article

11.073 about the scientific evidence introduced in the punishment phase of his trial at which

he was sentenced to death. I would remand this case for an evidentiary hearing and factual

findings by the habeas court. I, therefore, respectfully dissent from this Court’s dismissal of

this habeas application.

                                          I. Analysis

       Article 11.073 permits a convicted person to obtain relief based on new scientific

evidence showing that the person would not have been convicted if the newly available

evidence had been presented at trial. Id.; see also Ex parte Robbins, 478 S.W.3d 678, 690

(Tex. Crim. App. 2014). The statute applies to an offense for which a defendant was

“convicted,” which is a word that could be interpreted narrowly by limiting the statute’s

applicability to the guilt phase of trial, or it could be interpreted more broadly to include its

application to the punishment phase of a death-penalty trial. As I explain below, because the

statutory language is ambiguous, it is necessary to consider extra-textual factors, and those

factors suggest a legislative intent to apply a broader definition for the word “convicted.”

By more broadly construing the word “convicted” as it is used in Article 11.073 to include

a death sentence, an applicant would be permitted to specifically challenge discredited
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scientific evidence that was used in the punishment phase of a death-penalty trial.

       A. Statutory Language Is Ambiguous

       The statute states,

       PROCEDURE RELATED TO CERTAIN SCIENTIFIC EVIDENCE.
       (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 . . . 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 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.

T EX C ODE C RIM. P ROC. art. 11.073.

       To determine whether applicant may obtain relief on the basis of new scientific

evidence under Article 11.073 based on a complaint relating to the punishment phase of his

death-penalty trial, it is necessary to determine whether the word “convicted” limits the

statute’s application to evidence relevant to the guilt phase of trial only. See id. art.

11.073(b)(2). Thus, the availability of the habeas relief applicant seeks under Article 11.073
                                                                                         White - 4

depends on the meaning of the phrase “would not have been convicted.” See id.

       This Court uses rules of statutory interpretation to discern the Legislature’s intent.

Statutory interpretation seeks to “effectuate the ‘collective’ intent or purpose of the

legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991). Discerning this collective legislative intent or purpose requires focusing on the

literal text of the statute in question to “discern the fair, objective meaning of that text at the

time of its enactment.” Id. If the plain language of a statute would lead to absurd results or

is ambiguous, a court may consider certain extra-textual factors to ascertain the Legislature’s

intent. Id.; see also T EX. C ODE C RIM. P ROC. art. 3.01.

       With respect to the statutory language at issue in this case, I note that the word

“convicted” is defined neither in Article 11.073 nor elsewhere in the Code of Criminal

Procedure. In the absence of a specific definition for the word, it is necessary to examine

whether its meaning can be discerned from the context in which it is used in the particular

statute.

       If a word’s meaning can vary depending on its usage, a contextual analysis that

focuses on the plain wording of the statute as a whole is used. See Ramos v. State, 934

S.W.2d 358, 364 (Tex. Crim. App. 1996); United Sav. Assn of Tex. v. Timbers of Inwood

Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (“Statutory construction . . . is a holistic

endeavor. A provision that may seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme—because the same terminology is used elsewhere in a
                                                                                      White - 5

context that makes the meaning clear, or because only one of the permissible meanings

produces a substantive effect that is compatible with the rest of the law.”) (internal citations

omitted).

       Here, an examination of this Court’s precedent reveals that the word “convicted” can

vary depending on its usage, but this Court has more often than not assigned a meaning to

the word that includes the punishment phase of trial. In particular, this Court’s precedent has

determined that the word “conviction” can be ambiguous and mean different things in

different statutes. See Ex parte Evans, 964 S.W.2d 643, 647 (Tex. Crim. App. 1998). Most

often, however, this Court has opted for the broader view of the meaning of the word in that

we have “construed the term ‘conviction’ to mean the judgment of guilt and the assessment

of punishment.” Id.

       Because the word “convicted” can vary depending on its usage, it is necessary to

examine how it is used in the particular statute to determine whether that sheds light on its

plain meaning. Here, the statute, when examined as a whole, does not specify whether the

Legislature intended to limit the statute’s applicability to only the guilt phase or to include

the sentencing phase of a death-penalty trial, but it appears more likely that the Legislature

intended the word to have the broader meaning. The Legislature enacted Article 11.073 to

address the problem of bad science that was used in criminal cases that affected their

outcome. See Bill Analysis, Tex. S.B. 344, 83d Leg., R.S. (July 3, 2013). In light of that

problem, the Legislature would likely have intended for a broader application of the statute
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to include the sentencing phase of a death-penalty trial. This view that the Legislature

intended a broader application of the statute is supported by Article 11.04, which mandates

construing the statutory language in Article 11.073 in a manner that would most favorably

provide for habeas relief. See T EX. C ODE C RIM. P ROC. art. 11.04, 11.073. Attributing

“convicted” a meaning of either a judgment of guilt or an assessment of punishment in a

death-penalty case accords with this mandate, and thus supports the broader view of the word

“convicted.”

       I disagree that it is appropriate to treat the word “convicted” as being limited to the

guilt phase of trial merely because the DNA statute has been interpreted by this Court as

being limited in that way. The DNA statute is not a statute that itself provides habeas relief

to an applicant. An applicant may use DNA evidence as part of his habeas application, but

the DNA statute is itself not a habeas statute. Moreover, Article 11.04’s requirement that

“[e]very provision relating to the writ of habeas corpus shall be most favorably construed in

order to give effect to the remedy, and protect the rights of the person seeking relief under

it” is inapplicable to the DNA statute. T EX. C ODE C RIM. P ROC. art. 11.04. But it is

applicable to Article 11.073. Thus, the Legislature has specifically required this Court to

interpret the meaning of the language in Article 11.073 in a light that would be most likely

to effect the remedy and protect the rights of the person seeking relief. See id. Given that

this Court has used “convicted” to include the punishment phase of a trial in other contexts

besides the DNA statute, and given that Article 11.04 requires us to examine the statutory
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language in a light that favors the availability of relief for an applicant, the statutory language

appears to favor the broader use of the term.1

       This Court’s majority opinion sets forth a plausible explanation for why the word

“convicted” may be reasonably limited to the guilt phase of trial, and, as I have explained

above, that word may also be reasonably read as applying to the punishment phase of a death-

penalty case. Because the word “convicted” may be reasonably understood in common

language to include only the guilt phase or to also include the sentencing phase of trial, and

because the words when examined in context of the statute as a whole would appear to

support the broader view of the term in light of Article 11.04’s requirement for construing

habeas statutes most favorably for granting relief, I conclude that the statute is ambiguous.

       B. Extra-Textual Analysis Reveals Legislative Intent to Use Broader Meaning

       Having determined that it is necessary to look beyond the plain language in Article

11.073, I consider extra-textual factors to discern the Legislature’s intent. These factors

include, among other matters, (1) the object sought to be attained; (2) circumstances under

which the statute was enacted; (3) legislative history; (4) common law or former statutory

provisions, including laws on the same or similar subjects; (5) consequences of a particular


1
         This Court’s majority opinion holds that, because of the way in which this Court has
interpreted the word “convicted” in the context of the DNA statute, that word has the same meaning
in this statute, and thus the statutory-analysis question before us in the instant case may be resolved
based on the statute’s plain language. I have discussed the DNA statute in the course of analyzing
the statutory language in Article 11.073, but arguably that comparison is more appropriate as an
extra-textual consideration that takes into account how other statutes treat the same word. Although
I have included a discussion of the DNA statute in my assessment of the statutory language, that
discussion more likely belongs as an extra-textual consideration.
                                                                                       White - 8

construction; (6) administrative construction of the statute; and (7) title (caption), preamble,

and emergency provision. T EX. G OV’T C ODE § 311.023; Jordan v. State, 36 S.W.3d 871, 873

(Tex. Crim. App. 2001).

       In considering the object sought to be attained, the circumstances under which the

statute was enacted, and the consequences of a particular construction, as explained above,

the article was enacted to address the problem of bad science, which applies with equal force

in guilt or punishment. In considering the administrative construction of the statute, I note

that in other places, the Code recognizes “conviction” to refer to both the determination of

guilt and the assessment of punishment. The use of the broader view of the term in other

places in the Code also supports a conclusion that the Legislature would have anticipated this

same construction and thus would have intended to include the punishment phase of a death-

penalty trial within the statute’s scope.

       With particular respect to the punishment phase in death-penalty cases, I observe that,

because the State must prove some of the special issues beyond a reasonable doubt, the jury’s

affirmative answer to those special issues is, functionally speaking, a determination that the

defendant should be “convicted” of the death penalty. See T EX. C ODE C RIM. P ROC. art.

37.071, § 2(a)(1) (in death-penalty cases, after the finding of guilt, the court “shall conduct

a separate sentencing proceeding to determine whether the defendant shall be sentenced to

death or life imprisonment without parole”), (b) (describing future-dangerousness and party-

liability special issues that must be submitted to jury), (c) (State must prove special issues in
                                                                                       White - 9

Subsection (b) beyond a reasonable doubt; jury must return a “special verdict” on those

special issues). The requirement that the State prove some of the special issues beyond a

reasonable doubt distinguishes death-penalty sentencing determinations from other types of

punishment determinations, which do not require that the State satisfy such a heightened

burden of proof. In this sense, because the burden of proof at the punishment phase of a

death-penalty case is the same as in the guilt phase, the resulting verdict that a defendant

should be sentenced to death is in reality a determination that he is guilty of, and should be

convicted of, the death penalty. I note that this Court and other courts have suggested as

much by indicating that, in some cases, a defendant might present evidence showing that he

is actually innocent of the death penalty. See Ex parte Blue, 230 S.W.3d 151, 167 (Tex.

Crim. App. 2007); see also Sawyer v. Whitley, 505 U.S. 333, 349 (1992). Given the

functional and procedural similarities between a determination of guilt and a determination

that a defendant should be sentenced to death, it makes little practical sense to treat a death

sentence as an ordinary punishment rather than as a “conviction” of that penalty.

       The legislative history is informative of the Legislature’s intent. Article 11.073 was

enacted in the wake of a series of opinions that cast doubt on the role and weight of scientific

evidence in criminal trials. The legislative history of Article 11.073 “indicates that the intent

of this statute is to provide relief to those who were convicted on science or scientific

methodology that is now known to be unsound.” Robbins, 478 S.W.3d at 692 (Johnson, J.,

concurring). In short, the Texas Legislature chose to enact Article 11.073 to ensure accuracy
                                                                                            White - 10

in the criminal-justice system rather than endorse finality. See id. at 704 (Cochran, J.,

concurring). In this view, the phrase “would not have been convicted” within the meaning

of Article 11.073 envisions determinations of both guilt and punishment because the

concerns surrounding accuracy that the Legislature sought to codify would apply to both

wrongful verdicts and wrongful punishments in capital murder cases in which the death

penalty is imposed.

       I also note that if Article 11.073 is deemed to apply only to guilt determinations,

applicants who cannot make out a cognizable constitutional claim will have no avenue of

collateral attack on flawed scientific evidence used only in the punishment phase and no

forum to introduce newly discovered scientific evidence that militates against death but does

not bear on guilt.2 That narrower view of the new-science statute would appear to be


2
        I acknowledge that, even without utilizing the statutory basis in Article 11.073, a defendant
who can establish a due-process violation on the basis that false scientific evidence was presented
at the punishment phase of his capital-murder trial would be entitled to relief on that basis. See TEX .
CODE CRIM . PROC. art. 11.071; Estrada v. State, 313 S.W.3d 274, 288 (Tex. Crim. App. 2010). But
not all new-science claims will give rise to a constitutional violation. In some cases, for example,
there may have been no scientific evidence presented in the punishment phase at all; in those
situations, under the majority opinion’s construction of Article 11.073, even if a litigant were to
present new scientific evidence that would persuasively show that the jury’s conclusion on
punishment was in error, he likely would not be entitled to relief because he could not show any
constitutional violation stemming from the introduction of materially false evidence at the
punishment phase. In short, some, but not all, new-science claims will also give rise to a
constitutional violation that may be litigated through the traditional vehicle of Article 11.071. For
those claims that do not rise to the level of establishing a constitutional violation, the majority’s
construction of Article 11.073 will preclude relief, even in situations in which the new scientific
evidence clearly calls the correctness of the jury’s punishment determination into question. A
suggestion that Article 11.073 does not apply to the punishment phase of a death-penalty trial
because there is another habeas statute that could possibly provide relief for constitutional or
jurisdictional violations entirely misses the point that the Legislature enacted Article 11.073 to more
broadly provide relief on the basis of new scientific evidence.
                                                                                    White - 11

inconsistent with the Legislature’s intent to keep flawed scientific evidence from infecting

criminal cases. It is similarly inconsistent with its intent to ensure certainty in criminal

convictions by providing relief based on exonerating evidence that was not available at the

time of trial. See T EX. C ODE C RIM. P ROC. art. 11.073(a)(1).

       Furthermore, interpreting conviction or “convicted” to encompass both the guilt and

punishment phases of a capital-murder trial comports with the Supreme Court’s death-

penalty jurisprudence. The Supreme Court has held that certain defendants are categorically

ineligible for death sentences due to age, intellectual disability, or deficient criminal

culpability. See Roper v. Simmons, 543 U.S. 551, 575 (2005); Atkins v. Virginia, 536 U.S.

304, 321 (2002); Tison v. Arizona, 481 U.S. 137, 158 (1987). To the extent that such

individuals, though actually guilty of the capital offense, are, in fact, ineligible for death

sentences based on new science, interpreting “conviction” to include the punishment phase

adheres to the Supreme Court’s restrictions placed on capital punishment. For example, a

death sentence may be erroneously imposed after a jury concludes beyond a reasonable doubt

that the Article 37.071 special issues are met based on flawed science. See T EX. C ODE C RIM.

P ROC. art. 37.01, § 2(b), (c). If later-discovered scientific evidence weighs against those

conclusions by showing that the defendant was intellectually disabled, posed no future threat

to society, or that mitigating circumstances were present, habeas relief could be granted to

an applicant if Article 11.073 were to apply to the punishment phase of a death-penalty trial.

Based on this view shared by the Supreme Court and this Court that a capital-offense
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conviction includes the penalty phase of a death-penalty trial, it reasonably suggests that the

Legislature would have known that the use of that word likewise would include the penalty

phase of a death-penalty trial.

       In applying the new-science statute to a “conviction,” the Legislature likely intended

it to apply to the penalty phase of a capital-murder trial because the Supreme Court and this

Court have discussed the death penalty as part of a defendant’s conviction for capital murder.

The Legislature’s apparent intent to curb the use of flawed science and achieve greater

accuracy in criminal cases is best achieved by a broader view of the word “conviction” that

encompasses both the guilt phase and punishment phase of a death-penalty trial.

                                        II. Conclusion

       The plain language in the new-science statute in Article 11.073 is ambiguous because

the word “conviction” has been used to include both the determination of guilt and death

sentence in a death-penalty trial. Consideration of all the relevant extra-textual factors shows

that the Legislature intended for Article 11.073 to apply to both the guilt and penalty phases

of a death-penalty trial. For the foregoing reasons, I respectfully dissent.




Filed: November 2, 2016

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