            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                         NOS. WR-77,157-01 & WR-77,157-02



                    EX PARTE DANIEL LEE LOPEZ, Applicant



 ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
 AND MOTIONS TO STAY THE EXECUTION IN CAUSE NO. 09-CR-787-B IN
              THE 117TH JUDICIAL DISTRICT COURT
                        NUECES COUNTY

       A LCALA, J., filed a concurring statement in which J OHNSON, J., joins.

                            CONCURRING STATEMENT

       I concur in the Court’s judgment declining to reconsider the waiver of initial state

habeas proceedings and dismissing as subsequent the application for a post-conviction writ

of habeas corpus filed on behalf of Daniel Lee Lopez, applicant. See T EX. C ODE C RIM.

P ROC. art. 11.071. Although counsel has presented what otherwise might be compelling

arguments in support of his position that an applicant should not be permitted to waive all

initial state habeas review if significant evidence exists supporting a colorable claim of

innocence, I conclude that, under the particular circumstances and facts of this case,
                                                                                            Lopez - 2

applicant’s waiver should be upheld as valid.

       In 2010, applicant was convicted of capital murder for the intentional or knowing

killing of Stuart Alexander, a peace officer acting in the lawful discharge of an official duty.

It is undisputed that applicant caused Alexander’s death after running over him with his

vehicle while attempting to flee law enforcement.               After his conviction, applicant

subsequently waived all state and federal habeas review, expressing a consistent desire to

expedite his death sentence even while maintaining that he never intended to kill the officer.1

Now, in the present proceeding, counsel acting on applicant’s behalf asserts that this Court

should find applicant actually innocent based on evidence indicating his lack of intent to kill

the complainant. This evidence consists of vision screening reports from the Polunsky Unit

indicating that applicant has severely impaired eyesight; applicant’s testimony in federal

court indicating that he wore non-prescription, “off the streets” contact lenses and had been

blinded with pepper spray at the time of the offense; and applicant’s testimony in federal

court asserting that he accidentally ran over the complainant and never intended to kill him.

Recognizing that our ability to consider post-conviction claims in capital-murder cases is

limited by the statutory dictates of Code of Criminal Procedure Article 11.071, counsel



       1
        In the federal proceeding in which the district court obtained a waiver of applicant’s federal
habeas proceedings, applicant maintained that, although the killing was “never intentionally”
committed and he did not see the complainant “until the last minute,” he was “positive” that he did
not want to pursue any further review of his conviction and his “decision this whole time has been
constant.” He stated that he did not “think [he had] the evidence to prove [that he has] a good case”
and that he has “accepted the fact [of] what [his] outcome is going to be.” He indicated that he
wanted to accept his punishment and “move on with [his] life” and “start over.”
                                                                                     Lopez - 3

suggests that this Court may consider this claim either by reconsidering, on our own motion,

applicant’s waiver of initial state habeas proceedings on the basis that any waiver was

invalid, or by determining that this claim is cognizable in a subsequent writ proceeding under

Article 11.071, Section 5. See T EX. C ODE C RIM. P ROC. art. 11.071, § 5.

       Although counsel’s contention that a death-sentenced individual who has a colorable

claim of innocence may not validly waive all state habeas review of that claim is an argument

that I would ordinarily determine requires further review, I am persuaded that, even if this

Court were to reconsider the validity of applicant’s waiver and reopen his initial habeas

proceedings, his actual-innocence claim would, in any event, fail on its merits in light of the

fact that the jury already passed on the essence of the facts presented in this current

application. Counsel’s principal suggestion appears to be that permitting an innocent

individual to be executed would violate the Eighth Amendment prohibition on cruel and

unusual punishment and, as such, permitting a death-sentenced individual with a colorable

claim of innocence to waive all post-conviction review is similarly impermissible. I agree

with the underlying principle that, if significant evidence exists indicating a possibly

meritorious claim of innocence, a person convicted of capital murder and sentenced to death

should not be permitted to waive all post-conviction review, regardless of his apparent desire

to forgo all avenues for relief and expedite his death. As this Court has observed, “‘[t]he

quintessential miscarriage of justice is the execution of a person who is entirely innocent.’”

Ex parte Blue, 230 S.W.3d 151, 158 (Tex. Crim. App. 2007) (quoting Schlup v. Delo, 513
                                                                                      Lopez - 4

U.S. 298, 324-25 (1995)); see also Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App.

2004) (explaining that “execution of an innocent person would violate due process”). No

matter how adamant, articulate, or persistent a death-sentenced person may be in expressing

his desire to expedite his punishment, if he has a persuasive claim of innocence, then

permitting him to be executed without reviewing such a claim results in a possible

constitutional violation. The courts’ and the State’s complicity in accepting an applicant’s

waiver and permitting an execution to go forward under those circumstances would do little

to advance the retribution and deterrence justifications underlying the death penalty. See

Atkins v. Virginia, 536 U.S. 304, 318-19 (2002).

       But, given the facts and circumstances of the present case, I conclude that counsel’s

factual assertions do not rise to the level of indicating that applicant would likely succeed on

the merits of an actual-innocence claim, even were this Court to consider it. The primary

evidence upon which counsel relies—medical records indicating applicant’s vision problems,

evidence that applicant had been pepper sprayed and was vision impaired at the time of the

offense, and applicant’s own testimony indicating a lack of intent—all appears to have been

reasonably available and known to applicant as of the time of trial. That evidence, therefore,

is not newly discovered, as is required by our actual-innocence standard. See Ex parte

Holloway, 413 S.W.3d 95, 97 (Tex. Crim. App. 2013) (per curiam) (“An applicant for habeas

relief based on a claim of actual innocence must demonstrate that the newly discovered

evidence, if true, creates a doubt as to the correctness of the verdict sufficient to undermine
                                                                                        Lopez - 5

confidence in the verdict and that it is probable that the verdict would be different on

retrial.”). Perhaps more importantly, as the State observes in its response to these filings, the

focus of applicant’s defense at trial was his lack of intent to kill the complainant based on his

impaired vision. This assessment of the evidence was echoed in the federal district court

opinion in which the court accepted applicant’s waiver of federal habeas proceedings, in

which the court stated,

       As Lopez repeatedly threw punches, the officer tried to use pepper spray. A
       factual dispute arose at trial over whether the pepper spray impaired Lopez’s
       ability to see. . . . Lopez’s intent in killing Officer Alexander was the primary
       concern for jurors. . . . The State argued that the jury could infer Lopez’s intent
       from the circumstances surrounding the murder, including: Lopez’s repeated
       efforts to avoid arrest, his violence against the officer who first pulled him
       over, his attempts to run over other officers, and testimony from eyewitnesses
       that he maneuvered his vehicle directly into the victim. . . . The defense
       vigorously argued that Lopez lacked the intent necessary for a capital murder
       conviction. According to the defense, Lopez was traveling at a high rate of
       speed as he approached the stop sticks manned by Officer Alexander. Lopez
       swerved to avoid the stop sticks, but because of poor lighting and pepper spray
       in his eyes, he never saw the officer.

Lopez v. Stephens, No. 2:12–CV–160, 2014 WL 2981056 (S.D. Tex. July 1, 2014). Given

the similarities between the defensive evidence presented at trial and the evidence counsel

presents today, it appears that this defensive evidence was available at the time of trial and

largely has already been passed upon and rejected by the jury. That same evidence, without

more, cannot now serve as a proper basis for finding that applicant is actually innocent in the

sense that no rational juror, in light of that evidence, could have convicted him. See Ex parte

Elizondo, 947 S.W.2d 202, 210 (Tex. Crim. App. 1996).
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       Although I find persuasive counsel’s argument that it would be improper for this

Court to stand by and permit an individual with a colorable claim of innocence to waive all

post-conviction review and be executed, this case does not implicate such concerns. I cannot

agree that a convicted person may obtain relief on an actual-innocence claim that is premised

on a fact—here, that applicant was not able to see the complainant and thus could not have

formed the requisite intent—when that same fact was the basis for his defensive theory at

trial and reconciled against him by the jury in its finding of guilt. Whatever the cause of

applicant’s alleged inability to see at the time of the offense, the jury, in finding him guilty

of capital murder, determined that he was able to see the deceased well enough to form the

intent to kill him. The evidence presented by counsel that supposedly strengthens the claim

that applicant was unable to see—the ill-fitting contact lenses, for example—does not rise

to the level of changing the underlying character of the defensive theory that was before the

jury, that is, that applicant was unable to see the complainant. Because the jury reconciled

against applicant what is essentially the same defensive theory presented here,2 I join this

Court’s order upholding as valid applicant’s waiver of all post-conviction claims and

dismissing as subsequent this application for a post-conviction writ of habeas corpus.




Filed: August 4, 2015

Do Not Publish

       2
        See Ex parte De La Cruz, No. WR-76,781-01, 2015 WL 3764769 (Tex. Crim. App. June
17, 2015).
