                                                                                 WR-48,152-07
                                                                  COURT OF CRIMINAL APPEALS
                            WR-48,152-08                                           AUSTIN, TEXAS
                                                                Transmitted 1/22/2015 2:34:59 PM
                                                                  Accepted 1/22/2015 2:53:27 PM
                       EX PARTE GARCIA GLEN WHITE                                   ABEL ACOSTA
                                                                                            CLERK

                              WRIT NO. 48,152-07                      RECEIVED
                                                               COURT OF CRIMINAL APPEALS
                                                                      1/22/2015
                    IN THE COURT OF CRIMINAL APPEALS             ABEL ACOSTA, CLERK


                                        AT

                                 AUSTIN, TEXAS

                        ____________________________________


                              Cause No. 723847-E

EX PARTE                               §       IN THE 180TH DISTRICT COURT

                                       §       OF

GARCIA GLEN WHITE,                     §       HARRIS COUNTY, TEXAS
    Applicant

             STATE’S MOTION TO DISMISS APPLICATION FOR
                      WRIT OF HABEAS CORPUS

      Respondent, the State of Texas, by and through its Assistant District

Attorney for Harris County, files this, its Motion requesting that the Court of

Criminal Appeals dismiss the applicant’s fourth subsequent state application

for writ of habeas corpus. The applicant does not satisfy the requirements

for the filing of an additional subsequent writ application under TEX. CODE

CRIM. PROC. ANN. art. 11.071, § 5, and, alternatively, the applicant’s grounds for

relief are meritless. In support, Respondent would show the following:


                                           1
                         I. PROCEDURAL HISTORY

      The applicant is confined pursuant to the judgment and sentence of the

180th District Court of Harris County, Texas, in cause no. 723847 (hereinafter

“the primary case”), wherein a jury convicted the applicant of the felony

offense of capital murder. On July 23, 1996, the jury answered “yes” to the

first two special issues, and “no” to the last, and the trial court assessed

punishment at death.

      The Court of Criminal Appeals affirmed the applicant’s conviction in an

unpublished opinion delivered on June 17, 1998. White v. State, No. 72580

(Tex. Crim. App. June 17, 1998)(not designated for publication).

      On February 21, 2001, the Court of Criminal Appeals denied the

applicant relief on his initial state habeas application, cause no. 723847-A. Ex

parte White, WR-48,152-01 (Tex. Crim. App. Feb. 21, 2001).

      On April 17, 2001, the applicant filed an initial federal habeas petition.

However, the applicant subsequently moved to dismiss his petition in order

to return to state court, and the federal district court granted the applicant’s

motion on January 9, 2002. White v. Thaler, No. H-02-01805, 2011 WL

4625361 (S.D. Tex. Sept. 30, 2011).

      On January 11, 2002, the applicant filed a subsequent state habeas

application, cause no. 723847-B. The Court of Criminal Appeals dismissed

                                       2
the applicant’s subsequent state habeas application for abuse of the writ on

April 24, 2002. Ex parte White, WR-48,152-02 (Tex. Crim. App. April 24,

2002).

      On May 3, 2002, the applicant filed a federal habeas petition, and the

district court granted the applicant an administrative stay pending the

results of DNA testing. White v. Thaler, No. H-02-01805, 2011 WL 4625361

(S.D. Tex. Sept. 30, 2011).

      On June 30, 2007, and January 28, 2009, the applicant filed his second

and third subsequent state habeas applications, cause nos. 723847-C and

723847-D. The Court of Criminal Appeals dismissed both habeas petitions

on May 6, 2009. Ex parte White, WR-48,152-03 & WR-48,152-04 (Tex. Crim.

App. May 6, 2009).

      On September 30, 2011, following completion of the applicant’s post-

conviction DNA testing, the federal district court dismissed the applicant’s

federal habeas petition and denied the applicant a certificate of appealability

(COA). White v. Thaler, No. H-02-01805, 2011 WL 4625361 (S.D. Tex. Sept.

30, 2011).

      On April 1, 2013, the Fifth Circuit Court of Appeals denied the

applicant’s application for COA. White v. Thaler, 522 Fed. App’x. 226, 2013

WL 1442568 (5th Cir. 2013).

                                      3
      On January 13, 2014, the United States Supreme Court denied the

applicant’s petition for writ of certiorari. White v. Stephens, ___ U.S. ___, 134

S.Ct. 907 (2014).

      On January 15, 2015, the applicant filed requests for a stay of execution

and an authorization to file a subsequent federal habeas application in the

Fifth Circuit Court of Appeals.

      On January 15, 2015, the Court of Criminal Appeals denied without

written order the applicant’s motions for stay of execution, leave to file an

original application for writ of prohibition and leave to file an original

application for writ of habeas corpus. Ex parte White, No. WR-48,152-05 &

WR-48,152-06 (Tex. Crim. App. Jan. 15, 2015).

      On January 21, 2015, the Court of Criminal Appeals denied without

written order the applicant’s motion for leave to file a second original

application for writ of prohibition. Ex parte White, No. WR-48,152-07 (Tex.

Crim. App. Jan. 21, 2015).

      On January 20, 2015, the applicant filed a fourth subsequent state

application for writ of habeas corpus in cause no. 723847-E.

      The applicant’s fourth subsequent state habeas application, cause no.

723847-E, as well as his requests for a stay of execution and an authorization

to file a subsequent federal habeas application are currently pending.

                                       4
      The applicant is scheduled for execution on January 28, 2015.

                          II. TRIAL PROCEEDINGS

                     State’s Evidence at Guilt-Innocence

      King Solomon was a sixty-four year old man who was married and had

seven children (XV S.F. at 35).      Bonita Edwards was his girlfriend in

November, 1989, and she lived with her identical twin daughters, Annette

and the complainant Bernette (XV S.F. at 35-6). Solomon often saw Bonita on

the weekends and called her during the week (XV S.F. at 38). He talked to her

on the telephone on Wednesday, November 29; however, she did not answer

the phone when he called her the next day (XV S.F. at 39). In fact, there was

no answer for the following two days (XV S.F. at 39).

      On the third day, Saturday morning, Solomon went to Bonita’s

apartment (XV S.F. at 40). He knocked on her door, but there was no answer

(XV S.F. at 40). He then returned home and watched television for much of

the day (RR. XV - 41). Later in the day, Solomon had his wife drop him off

approximately two blocks from Bonita’s apartment (XV S.F. at 41).         He

walked over to her apartment and saw another man standing on the porch

(XV S.F. at 41). The other man claimed to be responsible for maintenance but

stated that he did not have a key to the apartment (XV S.F. at 41). The man

told Solomon to get the manager (XV S.F. at 41). When the apartment

                                      5
manager opened the door, Solomon saw two bodies on the floor (XV S.F. at

45). The manager then pulled the door back and said, “Don’t you-all come in”

(XV S.F. at 46).

      Leonard Dawson, Houston Police Department (HPD) Homicide Crime

Scene Unit, was called to the scene (XV S.F. at 56-7). There was no sign of

forced entry on the front door to the apartment, and all of the windows were

locked and closed (XV S.F. at 69, 149). A bloody sock was found underneath

the Christmas tree (XV S.F. at 83). The door to the south bedroom appeared

to have been forced open (XV S.F. at 91, 151).

      Bonita was found in the dining and living room area (XV S.F. at 66-7).

She was wearing a blue and white printed blouse and black panties (XV S.F.

at 167). She had fourteen stab wounds to her chest: seven superficial and

seven that were five to six inches deep into her left chest area (XVII S.F. at

275, 278, 280).     One stab wound perforated her heart, and the others

penetrated her left lung (XVII S.F. at 278). All of the seven deep wounds had

the potential to kill her (XVII S.F. at 282). Bonita also had a contusion on the

right side of her neck (XVII S.F. at 277).

      Annette was found just inside the front door next to a love seat, just

wearing panties (XV S.F. at 66-7, 84). She had sustained eight stab wounds to

her chest, one stab wound in her neck, and two defensive wounds: a stab

                                         6
wound in her right arm and a cutting wound on her right hand (XVII S.F. at

287-288, 292-93). One of Annette’s chest wounds involved her left lung and

was fatal (XVII S.F. at 291). The neck wound penetrated into her trachea

(XVII S.F. at 292). She also suffered from two blunt trauma abrasions over

her left cheek (XVII S.F. at 288-89).

      The complainant, Bernette, was found in the south bedroom facing a

dresser and a bed (XV S.F. at 67-8). A pink shirt was wrapped around the

back of her neck and through her mouth to form a gag (XV S.F. at 85, 147).

There was a white discharge near her vaginal area and a white substance on

her lower abdomen indicating possible sexual assault (XV S.F. at 147).

Semen was detected on her vaginal and rectal swabs (XVI S.F. at 247).

Bernette had two stab wounds to her neck, eleven stab wounds to her chest,

stab wounds in the left elbow and hand, a cutting wound on the right hand,

and a stab wound on her right arm (XVII S.F. at 300). Any of the neck wounds

or five of the chest wounds were sufficient to cause death (XVII S.F. at 307).

The applicant’s DNA matched the semen gathered from the complainant, and

the probability that the applicant was the source of the semen was 99.9999

percent (XVII S.F. at 384-85).

      Tecumseh Manuel was a thirty-four year old man who had known the

applicant “like a brother” for his entire life (XVI S.F. at 185). The applicant

                                        7
told Manuel that he stabbed a woman and her twin daughters (XVI S.F. at

186). On July 20, 1995, Manuel relayed this information to Todd Miller, HPD

Homicide Division (XVI S.F. at 186, 189). The applicant was arrested for the

crime at approximately 8:20 p.m., the next day and read his Miranda

warnings (XVI S.F. at 190-91).

      The applicant gave a videotaped statement in which he stated that he

and Terrence Moore went over to Bonita’s apartment and that both men had

rocks of cocaine. State’s Ex. 55. The men agreed to share their drugs with

Bonita in exchange for sex. State’s Ex. 55. Both men got naked; however,

neither was able to get sexually aroused, and they refused to share the drugs

with Bonita. State’s Ex. 55. The applicant stated that Bonita then became

upset and grabbed a knife out of the kitchen drawer. State’s Ex. 55. The

applicant grabbed her from behind while Moore took the knife from Bonita.

State’s Ex. 55. The applicant stated that he then threw Bonita on the floor

while Moore stabbed her. State’s Ex. 55.

      The applicant further stated that, while Bonita was screaming and

kicking, Annette and the complainant ran out of the bedroom. State’s Ex. 55.

The applicant grabbed the daughter who ran toward the front door. State’s

Ex. 55. He touched her breasts and vagina, held her down with his hand over

her mouth, and then ejaculated on her. State’s Ex. 55. Meanwhile, Moore

                                      8
forced open the bedroom door to obtain access to the other daughter. State’s

Ex. 55. Moore then exited from the bedroom and stabbed the daughter that

was with the applicant. State’s Ex. 55. The applicant stated that Moore was

wearing gloves and never ejaculated. State’s Ex. 55.

      After an investigation, Miller determined that Moore had been killed on

July 25, 1989, or four months prior to the deaths of the complainant, her

sister and her mother (XVI S.F. at 205-6, 224). On July 28, 1995, Miller again

interviewed the applicant (XVI S.F. at 206). After advising the applicant of his

rights, Miller confronted the applicant with the information regarding Moore

(XVI S.F. at 206-7).    The applicant waived his rights and gave another

videotaped statement during which he stated, “I made it all up…With the

Mom…She reached for a knife, and I took the knife and stabbed her…Some

kids come out…I went into the bedroom after them. Stab…I stabbed one in

the bedroom and one in the living room. That’s all I want to talk about.”

State’s Ex. 56.

                       State’s Evidence at Punishment

      During the punishment phase, the State reoffered all of the evidence

admitted during the guilt phase and introduced evidence that on March 20,

1995, the applicant received two years in state jail for theft which was

probated for three years (XX S.F. at 8)(XXI S.F. at 449, 452). John Thomas, a

                                       9
Harris County adult probation officer, testified that the applicant used

marijuana and tested positive for cocaine (XXI S.F. at 454, 460).

      The State also presented evidence regarding the murder of Greta

Williams. At approximately 11:30 a.m., on November 1, 1989, Philip Clark

with HPD was called to the 3400 block of Linn where he met Raymond

Manuel who then directed Clark to a vacant house at 3419 Linn (XX S.F. at

22-6). Clark pulled back a sheet of plywood that covered one of the windows

and saw a body in the back of the house (XX S.F. at 24).

      Wayne Wendel, HPD Homicide Division, responded to the scene where

he saw both Manuel and the applicant (XX S.F. at 29). The house was

boarded up and had been used by neighborhood drug users (XX S.F. at 30).

Inside was the body of Greta Williams; she had been beaten to death and was

partially covered by a carpet (XX S.F. at 31). There was evidence of severe

trauma to her head, and there were medium velocity blood spatter stains

along the west wall indicating repeated blows (XX S.F. at 37, 40). Williams’

clothes were under her body, and there were broken teeth by her neck (XX

S.F. at 38, 39). Also at the scene was a cigarette lighter with blood on it and a

used condom on the back steps (XX S.F. at 54-5).

      On November 2, 1989, Harminder S. Narula, a Harris County medical

examiner, performed Williams’ autopsy (XX S.F. at 92). She had blunt trauma

                                       10
over her face, head, chest, back, left forearm, and left hand, and six

lacerations on her left eyelid, mouth and chin (XX S.F. at 95-6). Williams had

a fracture on her left upper jaw, loose teeth in her lower jaw, and chipped

and broken upper teeth (XX S.F. at 97). There was bruising and a slight tear

on her heart as well as fractured ribs and a partial crushing of her liver (XX

S.F. at 100). Williams died from blunt trauma to her head, face, chest, and

abdomen which caused the fractured jaw, fractured ribs and lacerated liver

(XX S.F. at 102-3). A drug screen was negative, and there was no evidence of

semen in the body (XX S.F. at 103-4).

      Wendel talked to Manuel three different times about Williams’ murder

(XX S.F. at 43). Furthermore, police took a written statement from the

applicant concerning the incident (XX S.F. at 46, 65). The applicant stated

that he was sitting on a front porch when Williams came by and asked what

was up (XX S.F. at 86). The applicant stated that Williams then left, and he

saw two guys named Daniel Noel and Tony Trahan say “hey baby” to her (XX

S.F. at 87). The case was referred to the grand jury which declined to indict

the applicant (XX S.F. at 49-50).

      On July 13, 1995, sixteen-year-old Hau Trung Pham was working with

his father on Roland Street in his father’s convenience store (XIX S.F. at 32-3).

Pham’s father weighed approximately 111 pounds and was 57 years old (XIX

                                        11
S.F. at 54). At approximately 11:00 that morning, the applicant and another

man came into the store and then exited (XIX S.F. at 34, 51). At about 3:00

p.m., Pham was asleep in the storeroom when he heard a scream (XIX S.F. at

34). The two men had returned, and one of them grabbed Pham’s neck and

told him to open up the cash register (XIX S.F. at 35). Pham saw his father

laying on the floor with the applicant standing next to him (XIX S.F. at 35, 42).

There was a broken chair very close to his father (XIX S.F. at 43). Pham’s

father had blood in his eyes and said nothing (XIX S.F. at 37). One of the

robbers then picked up the cash register and fumbled underneath it, while

the other robber took Pham to the back of the store and put a milk pot on his

head (XIX S.F. at 37). When the men left, Pham called the police (XIX S.F. at

37-43).

      James L. Crowson, HPD, responded to the call at the Village Food

Market at 3115 Roland (XIX S.F. at 11). He saw that an older Asian man had a

large gash over his left eye and was incoherent (XIX S.F. at 12). Crowson did

not call the crime scene unit because the crime was just an aggravated

robbery at the time; however, Pham’s father died within a few days as a

result of the injuries sustained during the robbery (XIX S.F. at 14). No

suspects were detained at the scene (XIX S.F. at 17).



                                       12
      Todd Miller, HPD homicide division, was contacted about the Roland

Street robbery on July 17, 1995, after Pham’s father died (XIX S.F. at 60-1).

During his investigation, he talked to Terrence Davis, Perry Harvey, and

Tecumseh Manuel (XIX S.F. at 65). Manuel told Miller about the Roland

Street robbery and the present triple murder on Weaver (XIX S.F. at 67). The

applicant then confessed to the crime. State’s Ex. 96.

      On July 17, 1995, Eduardo Bellas, Harris County medical examiner,

conducted an autopsy of Pham’s father (XIX S.F. at 81). The victim had a

fracture immediately above his eyeballs which was consistent with multiple

blows to that area (XIX S.F. at 84). The primary causes of death were a

fractured skull, brain contusions and lacerations, and infections to both lungs

which were complications from the other injuries (XIX S.F. at 84).

                     Defendant’s Evidence at Punishment

      Lizzie White, the applicant’s mother, testified that the applicant was

born in Houston, and he was the third oldest of seven children (XXI S.F. at

225-7). Lizzie lived in Kashmere Gardens and in the Fifth Ward area of

Houston (XXI S.F. at 228).

      Lizzie testified that the applicant went to Hilliard Elementary School,

Fleming Middle School, and Wheatley High School, and that he was a poor

student but had good conduct grades (XXI S.F. at 229-30). He did not miss a

                                      13
day of school in the twelfth grade (XXI S.F. at 234). According to Lizzie, the

applicant got along well with everyone and had no trouble with the juvenile

authorities; however, when the applicant was about fourteen years old, he

took one of his mother’s cars (XXI S.F. at 235). Also, Lizzie was once called to

school because the applicant did not dress for physical education (XXI S.F. at

236).

        Lizzie testified that the applicant played football for Wheatley as a

starter and graduated in 1981 (XXI S.F. at 237). The applicant then went to

Lubbock Christian College to play football; but he injured a knee in 1982 and

ended his football career (XXI S.F. at 239-40). The applicant dropped out of

school and returned to Houston to recuperate (XXI S.F. at            240).   The

applicant then started painting houses and working for his father, Leon

Charles, who had a mechanic’s shop (XXI S.F. at 241). The applicant left

home when he was about twenty-one and lived with the Manuel family (XXI

S.F. at 247).

        Lizzie stated that, in 1984, the applicant started sandblasting buildings

with a company called Clean America (XXI S.F. at 244). In March of 1988, the

applicant was hospitalized with a hurt hand and head after falling three or

four stories off of a building (XXI S.F. at 246). When the applicant was

released from the hospital, he did not come around the family as much (XXI

                                        14
S.F. at 248). He started hanging out with drug users and lived with the

mother of his children at the Manuels (XXI S.F. at 249). The applicant had

three children: fourteen-year-old Christopher, ten-year-old Porsha, and six-

year-old Jared (XXI S.F. at 249). The applicant was behind in child support;

however, he still loved his children (XXI S.F. at 253). Finally, Lizzie asked the

jury to give the applicant a life sentence (XXI S.F. at 254).1

       Monica Garrett, the applicant’s sister, testified that the applicant was a

nice brother, and she helped him with his homework (XXI S.F. at 271). She

also stated that the applicant was a good football player, but his college

career ended with a knee injury after the first semester (XXI S.F. at 273).

Finally, Garrett asked the jury for a life sentence (XXI S.F. at 275).2

       Robert Yohman, Ph.D., clinical neuropsychologist, testified that he

reviewed the applicant’s records and tested him with the Wechsler Adult

Intelligence Scale, academic achievement batteries, and personality tests (XXI

S.F. at 312-13). Yohman stated that the applicant had an IQ of 76, which was

in the sixth percentile for intellectual functioning and borderline between

average and mental retardation (XXI S.F. at 315-16). The applicant did not


1 Lizzie testified on cross-examination that the applicant had known Tecumseh and
Raymond Manuel since junior high school (XXI S.F. at 259).
2 On cross-examination, Garrett admitted that the applicant’s grades improved when he

applied himself, and the applicant never asked for help with his problems (XXI S.F. at 277-
78).

                                            15
have elevated levels of distress in his life which suggested that he handled his

impulses through denial (XXI S.F. at 326-27). Yohman stated that cocaine use

could accentuate impulsive behavior caused by a head injury (XXI S.F. at

336). Yohman concluded that the applicant would not be a future danger in a

controlled prison environment because of the limitations on cocaine use (XXI

S.F. at 346).3

       Dennis Nelson, Ph.D., stated that the applicant had an IQ of 85 to 87

(XXI S.F. at 392).          He concluded that the applicant was reasonably

responsible, not violent, fairly quiet, somewhat socially inhibited, and not

prone to digging into trouble (XXI S.F. at 410). The applicant told Nelson that

cocaine was the major drug that he abused (XXI S.F. at 413). Nelson stated

that the applicant was dependent on circumstances and that a properly

functioning prison should be a controlled environment (XXI S.F. at 425).

    III. APPLICANT FAILS TO MEET ART. 11.071, § 5 REQUIREMENTS
          ALTERNATIVELY, APPLICANT’S CLAIMS ARE MERITLESS

       In the instant subsequent state application for writ of habeas corpus

filed on January 20, 2015, the applicant urges the following three grounds for


3 During cross-examination, Yohman admitted that there was no evidence that the
applicant suffered a brain injury (XXI S.F. at 352). He also stated that, if the applicant lied
during the interview, then the diagnosis of cocaine addiction was inaccurate (XXI S.F. at
365). Yohman stated that the applicant was capable of anger and lust (XXI S.F. at 370).
Finally, Yohman admitted that his conclusions were based on the assumption that drugs
were not available to prison inmates (XXI S.F. at 375).

                                              16
relief: (1) that the applicant’s invocation of counsel is entitled to more

deference due to his alleged limited intellectual capacity; (2) that alleged

newly discovered DNA evidence would have changed counsel’s trial strategy

and raised questions as to the applicant’s culpability for the primary offense;

and, (3) that alleged newly discovered scientific evidence presents

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

answers to the special issues. Applicant’s writ at 6, 14, 15.

-INVOCATION OF COUNSEL

      The applicant’s claim that his invocation of counsel is entitled to more

deference due to his alleged limited intellectual capacity does not meet the

statutory requirements for filing a subsequent state application for writ of

habeas corpus. See TEX. CODE CRIM. PROC. art. 11071, § 5. The instant habeas

claim is merely a reiteration of previously urged and rejected claims.

      On direct appeal, the Court of Criminal Appeals overruled the

applicant’s challenge to the admissibility of his custodial statement based on

his alleged invocation of the right to counsel. White, No. 72580, slip op. at 4-

8. The applicant urged the same claim in his initial state habeas application,

cause no. 723847-A, and the Court of Criminal Appeals adopted the trial

court’s findings and denied the applicant habeas relief. White, No. 48,152-01,

slip op. at 2. In the applicant’s second subsequent state habeas petition,

                                       17
cause no. 723847-C, filed in 2007, the applicant alleged that he suffered from

impairment and mental problems, including cocaine addiction, and was not

competent to waive his rights to silence and counsel. Applicant’s writ, cause

no. 723847-C, at p. 3, 7. In his third subsequent state habeas petition, cause

no. 723847-D, filed in 2009, the applicant relied on the 2008 psychological

report of Patricia M. Averill, Ph.D., to argue that trial counsel was ineffective

for failing to discover his IQ of 78. Applicant’s writ, cause no. 723847-D, at 3-

5. On May 6, 2009, the Court of Criminal Appeals dismissed the applicant’s

second and third subsequent state habeas applications, cause nos. 723847-C

& D. White, WR-48,152-03 & WR-48,152-04.

      The applicant again relied on Dr. Averill’s 2008 report in his original

application for writ of habeas corpus filed in the Court of Criminal Appeals on

January 8, 2015, and denied on January 15, 2015. White, No. WR-48,152-05

& WR-48,152-06. Yet again, in the applicant’s instant subsequent habeas

application, he attempts to rely on Averill’s 2008 report to argue that his

invocation of cousel is entitled to more deference due to his alleged limited

intellectual capacity. Applicant’s Appendix B. In sum, the applicant presents

nothing new in the instant habeas petition.        He is presenting the same

evidence which was previously rejected and dismissed. Regardless, the

applicant’s claim is without merit.

                                       18
      In her 2008 psychological report, Dr. Averill reported that the

applicant attained a Full Scale IQ score of 78 on the Wechsler Adult

Intelligence Scale – Third Edition; that he did not qualify for a diagnosis of

mental retardation; that he functioned at a borderline intellectual level; and,

that his intellectual limitations likely resulted in social vulnerabilities. Dr.

Averill stated that the applicant’s adaptive functioning was difficult to

ascertain due to a lack of information, but she remarked that the applicant

attended college on a football scholarship until he sustained a knee injury;

that the applicant maintained employment for several years; that the

applicant had a family; that the applicant got along well with others; and, that

the applicant had no social/interpersonal skill difficulties.     Notably, Dr.

Averill reached no conclusions regarding the applicant’s ability to invoke his

right to counsel. Applicant’s Appendix B.

      There is no support for the applicant’s assertions concerning his ability

to invoke counsel or request for heightened scrutiny of his invocation of

counsel.   See Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App.

2007)(holding that the totality of the circumstances standard for assessing

the voluntariness of a confession given by a person of normal mentality is the

appropriate standard to apply when a confession is made by someone

suffering from mental retardation and mental illness). The Court of Criminal

                                      19
Appeals has upheld the admission of confessions made by defendants

suffering from mental impairments, including mental retardation. See Bell v.

State, 582 SW.2d 800, 809 (Tex. Crim. App. 1979)(defendant was mildly

mentally retarded and lacked capacity to read and understand certain

statements); Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App.

1970)(defendant was illiterate with a second grade level education and an IQ

of 68). The applicant fails to show that his invocation of counsel should be

given more deference based on his intellectual capacity.

       Also, to the extent that the applicant argues that he has low intellectual

functioning, the applicant cannot now urge that his execution is barred under

Atkins v. Virginia, 536 U.S. 304 (2002), for two reasons. First, the applicant

has bypassed the opportunity to raise the issue of mental retardation.4 See

Ex parte Blue, 230 S.W.3d 151, 154 (Tex. Crim. App. 2007)(holding that

constitutional prohibition against executing mentally retarded person does

not mean that such claim can be made “at any time;” the Legislature may

exercise its “regulatory authority to impose limitations on successive and


4 In Hall v. Florida, ___ U.S. ___, 134 S. Ct. 1986, 1990 (May 27, 2014), the United States
Supreme Court replaced the term “mental retardation” with “intellectual disability” in its
opinion. Because the applicant’s claims and the Court’s ensuing orders predate Hall and
use the term “mental retardation,” the State will refer to mental retardation unless
discussing an opinion where the term “intellectual disability” is used.



                                            20
abusive state post-conviction writs”). Second, given the applicant’s IQ testing

results, the applicant cannot satisfy even the first prong criteria for mental

retardation, significantly subaverage general intellectual functioning, much

less the adaptive functioning and early onset prongs. Ex parte Briseno, 135

S.W.3d 1, 7 (Tex. Crim. App. 2004)(to establish mental retardation, defendant

must prove by a preponderance of the evidence that he meets all three

prongs of the three-prong test of mental retardation:          (1) significantly

subaverage general intellectual functioning; (2) that is concurrent with

deficits in adaptive behavior; (3) and, originates during the developmental

period); see also TEX. HEALTH & SAFETY CODE, § 591.003 (13).

      Finally, the applicant’s argument that the Court of Criminal Appeals

should consider the instant habeas claim because Hall v. Florida, ___ U.S. ___,

134 S.Ct. 1986 (2014), announced a new rule of law, similar to Atkins and

Roper v. Simmons, 543 U.S. 551 (2005), is meritless. Applicant’s writ at 14-

15. The Fifth Circuit recently held that Hall did not implicate Texas. Mays v.

Stephens, 757 F.3d 211, 218 (5th Cir. 2014). Further, Hall did not affect the

Fifth Circuit’s reading and application of Briseno or overturn/question Atkins.

Id.




                                      21
-DNA EVIDENCE

       The applicant’s claim that he is entitled to habeas relief because of the

alleged impact of post-conviction DNA retesting does not meet the statutory

requirements for filing a subsequent state application for writ of habeas

corpus.5 See TEX. CODE CRIM. PROC. art. 11071, § 5. Again, the applicant merely

reurges a previously raised and rejected allegation and fails to meet the

statutory requirements for filing a subsequent state application for writ of

habeas corpus. See TEX. CODE CRIM. PROC. art. 11071, § 5.

       In his second subsequent state habeas writ, cause no. 723847-C, which

the Court of Criminal Appeals dismissed as an abuse of the writ in 2009, the

applicant relied on a 2004 Identigene DNA report to argue that there was

another unaccounted for individual at the scene which was material new

evidence and raised a colorable claim of actual innocence.                  White, WR-

48,152-03 & WR-48,152-04.

       In his first amended federal habeas petition, filed on December 31,

2009, the applicant again relied on the 2004 Identigene DNA report to claim

that he was actually innocent of the primary offense and to argue that the


5
  In 2003 and 2004, Identigene conducted retesting of the applicant’s DNA evidence and
issued a series of reports. State’s Ex. A. Upon the request of habeas counsel, Serological
Research Institute also analyzed the evidence and issued a report of its findings on
October 18, 2006. State’s Ex. B.


                                           22
2004 DNA testing showed that an unknown third person was present at the

crime scene. White, No. H-02-1805, 2011 WL 4625361, at *3-5. The federal

district court held that the applicant failed to demonstrate that his conviction

or sentence constituted a fundamental miscarriage of justice because, while

the DNA retesting established that an unidentified third person was at the

complainant’s apartment at some point, retesting also conclusively

established that the applicant was present at the scene and ejaculated. Id. at

*5.

      In his instant subsequent habeas application, the applicant once again

presents the 2004 Identigene report and also presents the January 20, 2015

affidavit of trial counsel Brian Benken to argue that another person’s DNA,

likely a male, was present at the scene. The applicant also argues that such

information might have allowed trial counsel to argue that the applicant was

merely present at the scene and acted as a party. Applicant’s Appendices C &

D. Regardless of the applicant’s failure to meet the requirements of TEX. CODE

CRIM. PROC. art. 11.07, § 5 for the filing of his subsequent claim, however, the

applicant’s claim is without merit.

      Identigene tested several areas – areas E, G, P, and V, of a beige sheet

recovered from the scene of the instant capital murder and determined that

the applicant could not be excluded as a contributor, with testing producing

                                      23
probabilities such as 1 in 2.8 x 1017, 1 in 1.4 x 1016, and 1 in 6.6 x 1013. State’s

Ex. A. DNA testing results from the lab chosen by the applicant for post-

conviction testing, were similarly inculpatory, with the lab’s report stating, in

part, the following:

      The primary donor of the epithelial cell DNA fractions from areas
      E, G, P and V is, in my opinion, Garcia Glen White . . . . The DNA
      from the sperm fractions of areas G and P (items 4 and 5)
      originated, in my opinion from Garcia Glen White . . . . The DNA
      from the sperm fraction areas E and V (items 3 and 6) is a
      mixture. The primary donor is, in my opinion, Garcia Glen White.

State’s Ex. B.

         The applicant’s argument regarding the impact of the DNA retesting

results on trial counsel’s strategy decisions is meritless.         In its opinion

granting the State’s motion for summary judgment and denying the applicant

federal habeas relief, the federal district court noted that the jury heard

testimony from the State’s serological expert regarding a possible third DNA

donor.     White, No. H-02-1805, 2011 WL 4625361, at *5.                On cross-

examination at trial, HPD serologist Joseph Chu testified that there were

indications of another DNA contributor with regard to samples taken from

the beige sheet; that there was a letter in Chu’s records stating that stains

from the beige sheet were compared to the DNA of G.L. Williams, and the

result was that it could possibly have come from a close relative of Williams;


                                        24
and, that testing of a semen stain on a blue sheet not admitted into evidence

revealed DNA that did not match the applicant’s DNA (XVII S.F. at 388, 404-

5). Therefore, the applicant’s jury was aware that there was possibly another

DNA contributor on the samples taken from the beige sheet, and trial counsel

was free to raise the possibility of another individual’s involvement in the

primary offense based on such testimony.

      Regardless, the DNA retesting results did not rule out the applicant’s

guilt, a point that the federal district court and Fifth Circuit noted in denying

the applicant habeas relief and COA. White, 522 Fed. App’x at 233, 2013 WL

1442568, at *6; White, No. H-02-01805, 2011 WL 4625361, at *5. The federal

district court remarked that the DNA retesting “unequivocally” proved that

the applicant was present and ejaculated in his victims’ apartment.           Id.

Further, such evidence was not newly presented in light of the trial

testimony of HPD serologist Chu. White, 522 Fed. App’x. at 233.

      Finally, the applicant relies on Article 11.073 of the Texas Code of

Criminal Procedure in arguing that he is entitled to a new trial based on the

retesting of DNA evidence in 2003 and 2004. Applicant’s writ at 15. Article

11.073 applies to relevant scientific evidence that was not available to the

defense at trial and contradicts scientific evidence relied on by the trial

prosecutors. TEX. CODE CRIM. PROC. art. 11.073(a). As noted above, however,

                                       25
the DNA retesting results did not contradict the prosecution’s scientific

evidence from trial, i.e., the trial testimony of HPD serologist Chu. Further,

Article 11.073 does not provide the applicant with an additional basis for

habeas relief because the applicant does not show by a preponderance of the

evidence that he would not have been convicted if the DNA retest results had

been presented at trial. Compare with Ex parte Robbins, No. WR-73,482-02,

2014 WL 6751684, at *8 (Tex. Crim. App. 2014)(holding that defendant

entitled to habeas relief under Article 11.073 based on medical examiner’s

post-trial reconsideration of autopsy findings).

-MITIGATION

      Finally, the applicant’s claim that he is entitled to habeas relief based

on alleged newly discovered mitigation evidence does not meet the statutory

requirements for filing a subsequent state application for writ of habeas

corpus. See TEX. CODE CRIM. PROC. art. 11071, § 5. Specifically, the applicant

refers to the 2015 report of neuropharmacologist Wilkie Wilson, Ph.D., which

outlines the possible effects of cocaine and marijuana on the applicant at the

time of the primary offense. Applicant’s writ at 15: Applicant’s Appendix F.

      Notably, Dr. Wilson’s opinions are based on nothing more than his

review of the 2002 and 2008 reports of Drs. Silverman and Averill which the

applicant previously presented to various courts throughout state and

                                      26
federal habeas litigation.6 Applicant’s Appendix F at 2. Dr. Wilson did not

evaluate the applicant or review his medical records, much less review the

trial record. Moreover, Dr. Wilson’s conclusions are entirely speculative.

Therefore, the applicant does not meet the statutory requirements for filing a

subsequent state application for writ of habeas corpus with the instant claim.

See TEX. CODE CRIM. PROC. art. 11071, § 5.

      Based on the foregoing, the applicant fails to meet the requirements of

TEX. CODE CRIM. PROC. art. 11.071, § 5. In the alternative, and notwithstanding

the applicant’s failure to meet the statutory requirements of art. 11071, § 5

for the filing of a subsequent application for writ of habeas corpus, the

applicant’s claims are meritless.




6 The applicant referenced Drs. Silverman and Averill’s reports in his state habeas
applications filed in cause nos. 723847-B, C and D, as well as in federal habeas.

                                        27
                            IV. CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, the Respondent respectfully

requests that the Court of Criminal Appeals dismiss the applicant’s instant

subsequent application for writ of habeas corpus and/or deny the applicant

habeas relief.


                                         Respectfully submitted,


                                         /s/LYNN HARDAWAY
                                         LYNN HARDAWAY
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin, Suite 600
                                         Houston, Texas 77002
                                         (713) 755-6657
                                         (713) 755-5240 fax
                                         TBC 08948520
                                         Hardaway_Lynn@dao.hctx.net




                                    28
              V. CERTIFICATE OF SERVICE AND COMPLIANCE

      Service has been accomplished by sending a copy of this instrument by

mail to counsel for the applicant on this the 22nd day of January, 2015.

      Pat McCann
      Attorney at Law
      909 Texas Ave. #205
      Houston, Texas 77007
      713 223-3805
      713 226-8097 fax
      writlawyer@justice.com

Pursuant to TEX. R. APP. P. § 9.4, I certify that the instant document contains

6325 words.


                                           Respectfully submitted,


                                           /s/LYNN HARDAWAY
                                           LYNN HARDAWAY
                                           Assistant District Attorney
                                           Harris County, Texas
                                           1201 Franklin, Suite 600
                                           Houston, Texas 77002
                                           (713) 755-6657
                                           (713) 755-5240 fax
                                           TBC 08948520
                                           Hardaway_Lynn@dao.hctx.net




                                      29
