                                 No. _______________

                                      IN THE                          RECEIVED
                                                               COURT OF CRIMINAL APPEALS
                                                                      1/8/2015
                     COURT OF CRIMINAL APPEALS            TEXAS ABEL ACOSTA, CLERK

                           IN RE GARCIA GLEN WHITE

                  PETITION FOR A WRIT OF PROHIBITION

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW, Garcia Glen White by and through counsel Patrick F. McCann

in the above-captioned and numbered cause with this his Petition For A Writ Of

Prohibition prohibiting the Texas Department of Criminal Justice from enforcing the

warrant issued by the 180th District Court of Harris County on April 28, 2014, setting

relators execution date for January 28, 2015. (Appendix A). As grounds for this

Petition Relator shows the Court the following:

                                          I.

                                  JURISDICTION


       In this pleading, relator seeks only to review the Texas Department of Criminal

Justice’s (TDCJ) procedures and policies in administering a sentence of death. Since

this concerns a criminal matter, this Court has exclusive jurisdiction to consider

relator’s writ of prohibition.

       The Texas Constitution grants the Court of Criminal Appeals jurisdiction over

all criminal matters. TEX. CONST. ARTICLE V, § 5 (c). And the Court is also
statutorily authorized to grant and issue prohibition in a criminal case. TEX. CODE

CRIM. PRO. ART. 4.04 § 1. Furthermore, this Court has explicitly established that it

maintains exclusive jurisdiction over a capital conviction and sentence of death. State

Ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 395-96 (Tex. Crim. App.

1994).

                                           II.

         REQUISITES FOR ISSUANCE OF A WRIT OF PROHIBITION

         Prohibition is an extraordinary remedy that will issue only to correct a clear

abuse of discretion or a violation of a duty imposed by law when there is no adequate

remedy by appeal. In re Ford Motor Company, 165 S.W.3d 315, 317 (Tex. 2005) (citing

In re Prudential Ins. Co. of Am., 148 S.W.2d 124, 135-36 (Tex. 2004)); Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992). As discussed above, there is no other court with

jurisdiction to consider challenges in criminal capital cases. Furthermore, relator has

no other vehicle within which to challenge the policies and procedure employed by

TDCJ in carrying out executions. See TEX. CODE CRIM. PRO. ART. 43.14 (granting

TDCJ authority to determine the manner in which an execution is to take place).




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                                                     III.

                                                  CLAIM

The secrecy of TDCJ’s method of execution presents an unreasonable risk of pain
and suffering to relator in violation of the United States and Texas constitutions.


        Texas Code of Criminal Procedure authorizes TDCJ to establish the policies

and procedures within which to carry out executions. This includes selecting and

administering the drug, or drugs, for lethal injection. TEX. CODE CRIM. PRO. ART.

43.14. At this time, it is believed that TDCJ intends to use the drug pentobarbital to

execute relator.

        There are no known studies carried out by TDCJ that ensures that

pentobarbital will not result in relator being subjected to cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments of the United

States Constitution. And there is no safeguard to establish that relator will not be

subjected to “torture, or ill treatment, or unnecessary pain,” as prohibited by Article

43.24 of the Texas Code of Criminal Procedure. In fact, there are documented cases

where pentobarbital has resulted in the unnecessary pain and suffering of one

sentenced to death 1. And there are reports that pentobarbital takes longer to cause

death than other drugs. (Appendix C). Additionally, TDCJ refuses to disclose the

manufacturer of the drug and/or who distributes it. This is especially concerning


1
 In January 2014, Michael Wilson was executed in Oklahoma with the use of the single drug, pentobarbital. Within
20 seconds of the drug being administered, Wilson stated “I feel my whole body burning.” (Appendix B).

                                                                                                              3
because its manufacture is often poorly regulated and contaminated doses of

pentobarbital may result in excruciating pain. (Appendices D & E).

      Furthermore, TDCJ’s own procedures and protocols do not require a doctor or

registered nurse to be part of the team who administers the drugs used during a lethal

injection. (Appendix F). Only a “medically trained individual” inserts the intravenous

catheters into the defendant’s arms. A “drug team” is responsible for administering

the drug, or drugs, used to commence with the execution. (Appendix F). These

procedures and protocols designed by TDCJ when carrying out executions fail to

include safeguards regarding the manner in which the execution is to be carried out,

fail to establish the minimum qualifications and expertise required of the personnel

performing the critical tasks in the lethal injection procedure, and fail to establish

appropriate criteria and standards that these personnel must rely upon in exercising

their discretion during the lethal injection procedures.

                                           IV.

                                       REMEDY

      The Texas Code of Criminal Procedure specifically delegates decisions

regarding the method and manner of conducting executions to TDCJ. Such decisions

must be reviewable for constitutionality by this Court. In order to properly exercise

its jurisdiction, this Court should appoint a Special Master in order to develop the

factual allegations raised by relator. In the alternative, this Court should remand the

case to the trial court to hold an evidentiary hearing. As this Court’s power to stay
                                                                                     4
relator’s execution until such fact-finding can be conducted is unquestionable the

Court is respectfully asked to stay the execution until the methodology can be

examined by the Court’s fact-finder.

                                           V.

                 CONCLUSION AND PRAYER FOR RELIEF
      Relator is being illegally confined and has been sentenced to death without

regard for the constitutional safeguards prohibiting cruel and unusual punishment.

      In view of the foregoing, relator GARCIA GLEN WHITE respectfully

requests that this Honorable Court:

      1.     Enter an order setting this Petition for a hearing;

      2.     Issue Writ of Prohibition ordering the Director of the Texas

             Department of Criminal Justice – Correctional Institutions Division not

             to carry out the provisions of Article 43.14, Texas Code of Criminal

             Procedure for the scheduled execution of relator set for January 28,

             2015;

      3.     Appoint a Special Master to hear evidence related to this petition or

             remand the case to the original trial court for a hearing;

      4.     Issue a stay of execution until the allegations in this petition are

             investigated and resolved.

      5.     Grant any other relief, which the law and justice require in this matter.



                                                                                         5
                                      Respectfully submitted,


                                      /s/ Patrick F. McCann
                                      /s/ Mandy Miller
                                      PATRICK F. McCANN (SBOT 00792680)
                                      MANDY MILLER           (SBOT 24055561)
                                      909 Texas Ave #205
                                      Houston, Texas 77002
                                      713-223-3805
                                      281-667-3352 FAX
                                      writlawyer@justice.com
                                      mandy@mandymillerlegal.com
                                      ATTORNEYS FOR RELATOR
                                      GARCIA GLEN WHITE




                             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 mail delivery to the

Defendants at: Lynn Hardaway, Harris County District Attorney’s Office, 1201

Franklin, Suite 600, Houston, Texas 77002 and the Capital Litigation’s Office at the

Attorney General’s Office.



                                                   /s/ Patrick F. McCann
                                                   Patrick F. McCann




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