                                                                                   WR-48,152-08
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                   Transmitted 5/24/2016 9:49:27 PM
                                                                     Accepted 5/25/2016 6:30:17 AM
                                                                                     ABEL ACOSTA
                        NO. WR-48,152-08                                                     CLERK
            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        ________________________________________

                          GARCIA GLEN WHITE
                              APPLICANT
                                  V.                                        May 25, 2016

                          THE STATE OF TEXAS
                             RESPONDENT
                        ________________________________________

       On Application for Post-Conviction Writ of Habeas Corpus
        In Cause No. 723847 in the 180th Judicial District Court
                            Harris County
 MOTION FOR LEAVE TO SUBMIT AMICI CURIAE BRIEF IN SUPPORT OF THE
   APPLICANT ON BEHALF OF THE TEXAS CRIMINAL DEFENSE LAWYERS
ASSOCIATION, THE HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION, AND
          THE HARRIS COUNTY PUBLIC DEFENDER’S OFFICE


     The Texas Criminal Defense Lawyers Association, the Harris

County Criminal Lawyers Association, and the Harris County Public

Defender’s Office seek permission to jointly submit an Amici Curiae

brief for this Court’s consideration. See Tex. R. App. P. 11. In support of

this motion, Amici Curiae would state the following:

    I. A broad interpretation of Article 11.073 would better
 vindicate the rights of defendants who suffer confinement or
  collateral consequences due to unsound forensic evidence

     This Court’s interpretation of Article 11.073 is important to many

types of writ applicants. For example, a narrow definition of “convicted”

may foreclose relief to potential writ applicants placed on community

supervision who are not finally convicted or who are not adjudicated
guilty. Furthermore, a narrow definition of “convicted” could foreclose

relief to similarly-situated writ applicants based upon an arbitrary

distinction   between      sentencing   issues   that   occur   during   the

guilt/innocence phase of trial (for instance, jurisdictional enhancements,

aggravating factors, culpable states of mind, Tex. Code Crim. Proc.

38.37 evidence, extraneous offenses offered for permissible purposes) or

sentencing issues that occur during the punishment phase of trial (for

instance      mitigating     circumstances,      sentence    enhancements,

aggravating factors, extraneous offenses). Amici curiae are concerned

that a narrow interpretation of “convicted” will leave many writ

applicants whose punishment or degree of punishment rests upon

unsound forensic science without a legal basis for relief.

      II. Article 11.073’s legislative history supports a broad
                    interpretation of “convicted”

     Article 11.073 was conceived as a robust solution to the problem of

new forensic evidence undermining confidence in the outcomes of

criminal cases:

     The question of how to deal with convictions based on false
     and discredited forensic testimony has arisen more
     frequently as the forensic sciences in recent years have
     undergone extensive review, leading to correction and
     updating in various fields and sometimes discrediting
     certain forms of forensic testimony. Rather than establish
     additional chapters for arson, dog-scent lineups, and every
     discredited forensic method, SB 344 would establish a single
     standard for when this scenario arises.

HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B.344, 83rd Leg.

R.S. (2013). Amici curiae believes that there is no indication that Article

11.073 should be treated as a solution to inaccuracies that occur within

the guilt/innocence phase of trial but not the punishment phase of trial,

and a distinction between the phases for purposes of Article 11.073

would only frustrate the Legislature’s intent.

                                 Prayer

     Amici Curiae prays that this Court receive and consider the

accompanying Amici Curiae Brief, pursuant to Rule 11 of the Texas

Rules of Appellate Procedure.

                                        Respectfully submitted,

                                        SAM BASSETT,
                                        President,
                                        ANGELA MOORE,
                                        Co-Chair, Amicus Committee
                                        TEXAS CRIMINAL DEFENSE
                                        LAWYERS ASSOCIATION

                                        TYLER FLOOD
                                        President,
                                        HARRIS COUNTY CRIMINAL
                                        LAWYERS ASSOCIATION
                                      ALEX BUNIN,
                                      Chief Public Defender,
                                      HARRIS COUNTY PUBLIC
                                      DEFENDER’S OFFICE


                                      /s/ Nicolas Hughes
                                      NICOLAS HUGHES
                                      Counsel for Amici
                                      1201 Franklin Street, 13th Floor
                                      Houston, Texas 77002
                                      713-368-0016
                                      713-386-9278 fax
                                      TBA No. 24059981
                                      nicolas.hughes@pdo.hctx.net



                       CERTIFICATE OF SERVICE

     I certify that a copy of this Motion for Leave to Submit Amici Curiae

Brief in Support of the Applicant on Behalf of the Texas Criminal Defense

Lawyers Association, the Harris County Criminal Lawyers Association,

and the Harris County Public Defender’s Office (White) has been served

upon the Harris County District Attorney's Office and upon the attorney

for the Applicant (Pat McCann), on May 24, 2016 by electronic service.

                                            /s/ Nicolas Hughes
                                            NICOLAS HUGHES
                                            Counsel for Amici
