           .. .   ~                                                                                                                                                                                                                      ·   .~;. /\"~~•·,,                 ,.,:- . ~·.<         •c··~;   "1·>
                                  '.·     >,    ,'                                                                                                                                                                 ',        .           .· :;_,;:• •, · - WR-~2';639:.03
--.··
   '                                                                                                                                                                                                                      COURT OF CRIMJNAL APPEALS
                                                                                                                                                                                                                     ·. ,    .·  . :. · AUSTIN; TEXAS
                                                                                                                                                                                                                   . <Transmittecf112272015 3:o6:23PM
                                                                                                                                                                                                                          Accepted 1/22/2Q15 3:1'7:05 ~M
                                  '··.;    ,:                                                                                                                                                                              . .    . ..::. ,;.,,.:ABE~if\COSTA
                                                                                                                                                                                                                                     .. , '~····· · · ·. ' CLERK


        · · · EXPARTE ·

                                                                        _.•·   '       ~




           ROBERTCHARLESLADD

                                                                                                                                                                                                                                                                                            '.
                           STATE'S MOTION TO-DISMiss·A.P:PtiCATION FOR
                                 ·,·WRIT·OFHABEAS'GORPUSAND": ·•,
                            . DENYREQUESTFORSTAYO}'ExEcuriON:                                                                                                                                                                                             '·        :
                                                                                                                                                                                                                                                                      ·,       ,.·
                              '         ''                    . ', <.                      . ' ·:,..     .· ":;:/ :.   ~-:<. ';           : ... "· .   !'; ,'. ·.~·:1:., :~:·   .>.::: '                ·, :. ,.        ..


           TO THE HONORABLE COURT OF cRIMINAL APPEALS:
                      .            .                 '   .'      :·                '        ·.    '    . ~.'      '           '       .       '          ., '    ...   ·..      .   '•     .       '   . . .,       .   ;        '               ''   .    '   '   ( ·...     .,   '\   .
                                                                                                                                                                                                                                                                                        '    .' ..
                      Respondent, the State ofTexas, by and through its Assistant Crimiri.al District' ·. .

           Attorney for Smith County, files ~s, its Motionrequestinglhatfue Court ofci'iJ:Dip.~ ·

           Appeals dismiss this applicati6h
                                      .
                                            for writ of habeas corpus and deny his: request
                                                                                     .
                                                                                            for                                   '                '                                                                                 ~




           stay of execution. Applicant ·aoes not satisfy the iequlrements for the tlling
                                                                    .•                                                                                                                             .
                                                                                                                                                                                                                                                           of a .
                                                                                                                                                                                               ;



           subsequent ~t applic~tion uhder TEX~                                                                              c6nE' CR1M~PROC. ANN. Art 11.'67i' §. 5, .·
           and, alternatively, Applicant'sground for~eliefis merltless.Jn'support,Re~p:ot?-d€mt · ·
                                                                                                                       .                                                                                                                          '


           would· show the following:

           I.         PROCEDuRAL HISTORY

                      Il11978, Applicant was convicted ofmurderinga young n;totherandher                                                                                                                                                                   furo
           small children and setting fire to their hous·e. He was sente~ced t~ 40years in prison,

           but was released            after16years.See\i~ddv.                                                                                     Thaler,20l3                                     U.S~ Dist. LEXIS21614
           (E.D~ Tex. Feb. 15, 2013). In 1996, and while on parole from' his ftrst·murder

                                                                                                                                                                                                        JEJLIECCm(Q)JN1[(C
                                                                                                                                                                                                            illilllC(Q)mlQ)
 conviction, Applicant raped and killed Ms. Vicki Garner, a young mentally impaired··

 woman with whom he worked; .anc(set fue,to· her apa.rt:r:neni. AppliciUlt was ... •
                                 '            .   '       '             , · ; ,_:                    ,,   ·>,                    '                                 ·~       '                  '              .          '         '

                                                                                                                                                                                                           ,,I,   'I')




. subsequently indicted for capitiil r.nurder,' the killing having t*~n pl~ce dtirlrig the

·. commission ofburglary, robbery, sexlu¥ assault.~d .ar~m~. In Aligust_ of 1997, a jury .
                                         ;,           .       l     '                       :,,                 •                                                                                             '                •

                                                                                              . .:                                            > ,,.:
 coti.victed ~pplicant of capital murder.·and iD:lpose(i the death pehhltY. His cob:\riction •..
                                     .                                         ·.                          ·.                '        .   '        .                    .                     ..

 and sentence. were subsequently affirmed on October6, 1999. Ladd v...Texas, 3

 S.W.3d S47, 556 (Tex.Crim.App. 1999). Appllcant~8petiti<?nfora writ of certiorari .

 from this decision was later denied on April17, 2000.

        0r1 August 13, 199~; Applicant filed with the. Court o:f..Crimin.al;\pt:>erus·~s                                                          •!>,>   "·   ~                • ' ,·   "•




. fust application for habeas relief under Art.. 11.~71 of the Code. of crimmru .

 Procedure.
   .
            This. Court
              ).     .  .·
                        .
                          denied relief
                                     '
                                        in.this application on De~ember. 15, 1999.
                                                                                .
                                                                                   Ex                                   •,                                                          '              '                          :

              .              .
                            '{
                                          .                                                                                                                                                                                  L,'       -l:'




 Parte Ladd, No~ 42,639-01 (Tex;Crim.App. 1999)...

        Applicant then fil~d his first application for federal habeas relief on Jariuary 18,

 2001, which was later denied~ The 5th Circuit subsequently afflrriu~d that' dem~: ·Ladd
                                     I                                              .


 v. 9ockrell, 311 F .3d 349,360 (5th Cir. 2002).
                    .                                                                                               .                                                                                  .

      . ·Following the Supreme Court's decision in;Atkinsv. Virginia, 536 U.S.304, .

  122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002), Applicant filed his second Art. '!1.071

 application on April 7,:.2003, arguing that he wascat~goricallyexcluded from the
                                                                                        .                                                                                                          .                               .

 death penalty because· ofmental retardation. This Court                                                                             con~idered                         the record and . ··


                                                                  .il··
                                                          ·-       :,._   .,-_,'                                                                                                                         ·_:,·

                                                                                                                                                                                                              ,·,,.' ','•' i




                                                                                                                                                                                                                                    ,   ::··,   lr


application and then dismissed· it               as a successive Writ o:n April17, 2003.,Ex Parte -·
      .                 .                                                                         .         '


Ladd, No. WR4~,639-~2 (Tex.Crim.App. 2003).
                                                                                                                                                           '·        '



          Applicant thereafter sought and -receivedauthorizati.()n from the 5th Circuit.·.·,,
                                 '        ·                    i          '                '    ' •   •'.       •   <-'      l   ;           :   'c'                         • ,                     '           ·,    < ''     '-~.




Court ofAppeals to file a second application for habeas reliefirl;he fede~ di~trict

court. His second application was filed in the Untied States District·Co~ for :t;he ·'_

EaaternDistrict ofTexas on June 20; 2003,-and againraisedanAt/dns·claim. QrrJun.e··                                                                                                                                                             '
27, 2005~ Applicant, with appointed counsel, was afforded a fulll.widimtiarY_hearing
                                                                                                                                                                                   ,"


on his Atkins claim-in the Umted States District Court sitting in BC?aumont, Texas~

          The District Court carefully considered .the evidence and then ·rejected .
                                                                                                                    , .l.   •:       '   ~                                          •            •        •           • I       '




Applicant's argume~t
                  ..
                     that   '
                                     he   ,..
                                                suffered from                          '
                                                                                               an               intellectual. <iisability.
                                                                                                                                      .
                                                                                                                                           (mental •
                                                                                                                                                 ;;             '•                      "                                                '




retardation). Ladd v.. Thaler, 201~ U.S. . Dist. .LEXIS
          '    .                      '            . . 21614.(E.p.
                                                           .
                                                                   Tex.; Eeb.
                                                                         ·.
                                                                               15, ·                                                                   '

                                                                     ..     .                                                                                                 ·             ;,




2013). The 5th Circuit Co.urt ofAppeals sub~equently affirined the decisiori·ofthe .

District Court on AprilS, 2014. Laddv. Stephens, 748 F.3d 637 (5ih Cir. Tex: 2014). ·

          On October 6, 2014, Applicant's petiti~n for a writ of certiorari to'thet.Jntied . -~, '

States Supreme Court was thereafter denied. Ladd v.' Stephens, 2014 U.S. LEXIS • ·

5311 (U.S., Oct. 6, 2014) ..

ll.       FACTS OF THE CASE
                                                      .                                                                                                                                                          .
                                                                                                                                                                         '                                                  '




          As discussed earlier, this CoUrt affirmed Applicant's conviction andsenterlce
                        .                                                          '                                                                                                '



on direct appeal. Ladd v. State, 3 S.W.3d 547, 556 (Tex.Crim.App. ·1999). In its

                                                          3
                                                                                                                                                            ',;:


opinion, the Court summarized ih~ gUilt/innocence .evidence ~ follows:
   i                          .   '            '                   '             -.                      ,,                             •'   ,,,,                      "':'       .. ,


                 :.garly on 1he everiingofSeptember 2,4, 1996, Vicki, Ann Garn~r .. ·
          entertained a friendat Gamer's residence in Tyler. The friend left around · :
          8:15 p.m~ Sometime between 9:00ip.m: and'.,lO:OO p.m. that same· ..
        . evening, appellant met with John T. Robe~on at Robertson'~ residence ..
          in Tyl~r. RobertSon's residence was located le'ssthan one' mile frotn·.
       . Garner's. residence~ Appellant gave ~obertson sev.era} small household
          appliances. and other items hi :exchange for five "rocks".of ':crack'' · ·.
          cocaine. One of: the ·appliances ·\yas . an ·• RCA~brarid ·
          television-videocassette recorder (TV-VCR), serial number 619320052. ·
           '   '         <,   >       '   ':       '       •   '       "   '   '/~    '   ,o   H,   ),   ":     >"   ,,   :·~\:,   ,•           '   '   )"<<.( ' ,'
                                                       '       .                                         ·...                           ..          .        .

                 At around 6:45 a.m~ the next morning, the Tyler.}?ire Dep8.rtm(mt
         received a telephone call r~orting a: fire at Garner's residence. Tyler
       · firemen responded ·immediately and arrived at the· residence a few ·
         minutes later. The firemen forced Qpen the front and back doors to the··
         residence, which had beer:i locked, and entered. Oilce inside, they found
         much smoke but little fire~ They also found Garner's body in a bedi-oom.
         She was positioned face down on the floor, naked below the waist, her
         head and body battered and. partially burned, her hands tied .together.·
         with a cord. There was also a belt around her neck and ligature marks on
         her ankles. The residence itself appeared to have been ransacked, and ' ·,
       . the :fire appeared. to have been qeliberately set: . · . ~      ·

             ·A subsequent search ofthe residertce·byTylerpolice revealed,·.··                                                                                         ··,

        among other things, an instruction manual for an RCA~brand TV~VCR.
        The serial number ofthe appliance was :q.otedon the instruction manual                                                                                        : ~     '


        as 619320052. Tile police also fotmd a palm print matching appellant's
        on a kitchen cabinet.

              .An autopsy of Garner's body revealed that she died from manual
        strangulation. The autopsy also revealed the presence of spermatozoa ip.
        her vagina. Tests on that sperm revealed DNA.(fo·otnote oi:nitted) With
        characteristics that, in many respects, paralleled the characteristics of
        appellant's DNA; Such a DNA "match" could be expected from only
        one male in 170,000. ·
                                                        Ladd,'3 S.W.3d at556.
                                                                                                                          )    ,~_   .



                                                                                                           .      .
                                                                                                    /      ~~:




      n.     .APPLICANT BAS AN EXECUTION.l)ATE SET FOR JANUA.JlY 29, 2015.

             On December 1,'20 14, the .114th Dis1rict Courfof Srruth ~d\mty~'Te~a.S isstied· <'.
     . an order setting 8n e~ecution datein this case for January·29,         2oi5'.:   .·'


               ;                           :,


      Ill.   APPLICANT'S THiRD AR.T.l1.071 WRIT APPLICATION

             On January 21~ 2015, Applicant filed his·thiid
                                                        . . Art. 1L071 application for..
                                                                          .                    ',                         ,,


1-
      habeas reliefunderthe above-niunberedcause and again arguesthatheis entitled                               to
                                                                                                    '•··   j)-




      reliefbecause he is intellectually disabled (mentariyretil.rded) under theholdfn.g of·
                                                                                   '      ..
      Atkins, .supra. However, Applicant            h~   failed to ·show thfit he is    ~ntitled                 to

      consideration of this successive writ application where his Atkins. claiin ~as
                                                                                               .                      .



      previously ·rejected by this Court when it dis:niissed'his second Art. ·11.071 Writ.:· • ·

      application. Ex ParteLadd, No.     WR~42,639-02 (Tex.Crlnl.App. 2003)~
             More importantly, Applicant was provided court-appointed counsel_ an~.

      granted an evidentiary hearitlg onhisAtkins claim in the United States District Court.. · ·

      for the Eastern District of Texas. After a full hearmg, which included mentaJ health
                                                                 ,]   .



      expert testimony, that Court rejected· Applicant's argument that his execution is

      categorically precluded due to an alleged .intellectual disability.. Ladd v. Thaler,
                        .                       "                                    .
                                                                                           2013 .

      U.S. Dist. LiiXlS 21614 (E.D. Tex., Feb. 15, 2013). The 5th Circuit Court of Appeals

      subsequently affirmed the deCision of the District Court on April 8, 2014. Ladd v.

      Stephens, 748 F .3d 637 (5th Cir. Tex~ 2014 ). On October 6, 2014, Applicantispetition

                                                     5
                                                                                                                        ,,                                                                        ;''




                                                                                                                                                                                        :.~   '   '
                                                         ',.'.



for a writ of certi.orari to the Untied States Supreme Court was: thereafter deni~d. Ladd :. .· ·
        L         •   .     >   •       '   '·,\'1                    '   L   'L             '·,.,                   ',•,::, ,'"         l           '         '•···                •




v. Stephens, 2014 .U.S. LB?QS 5311' {iJ.s~, ,Oct.                             6, 2,014)~·                    .·
  '                       '.'       '                    .                           '



      . In denying federal
                    .
                           habea8 relief. on Applicant's :At!iini cl~~the·Distrl~t
                                                                     .
                                                                                   Court'· ·
                                                                                         '           '            ';




expressly· held that:
             .        :                                      ... .                       ; . ,           ~. . ~ . . :.T;;.·~,. ,.                        ".            ..
                 To establish that he is mentally retarded, Ladd vvas required to ·
          establish by a preponderanee of.the evid~nbe that he ha.s significantly .
          sub-average intellectual functioning, that he ];las deficits in at least                                                                                 two -·
          adaptive skill areas· which are' both significant . an.a.·related ·to his
          sub-average . intelligence, ' and . that his '• sub.:.average . intellectqal .
          functioning and adaptive skills deficits manifest~d b~fore his 18trh
          birthday. Because Ladd' has failed to·establishby a preponderance ofthe · .
       · evidence the eXistence of t:wo significant deficits in adf;lptive b~Jw.vior.
      · whic~ were' both statisticiiilly significantand relateifto·his sbb~average ·· ·
      .. intellectual functioning, the court finds that he has n,o(established that '
      · he is mentally retarded. Ladd's application for a writ of habeas corpus
          (document #8) is DENIED with prejudice·and·:the Director's motion f¢r· :.
        judgment denying habeas corpus relief with prejudice (document #89) .
         'is GRANTED.          .            .                          .        . ..

                          . Laddv. Thaler, 2013 U.S. bist. LBXIS21614 at34-35 ..

       In this current application, Applicant
                                       .    .'
                                               argues
                                                  .. '
                                                      that this·..Court should grant relief
                                                                                   ,,,                                              .,           '       ·'.                ,   '




because thls Court's holding in Ex parteBriseno~A35 S.W3d 1 (Tex.Crim.App..
                                               .                                                                                             .
2004), is utilized in an unconstitutional manner as it~elates to.the determiriation'of ·..

deficits in adaptive furlctiotiing as the second prong under the intellectual disability

definition. (Writ App. at 9-21). This is specifically denied where the U.S. District

Court, which heard testimony from several mental health expe~s and cons1dered all



                                                                     6'
 of the. proof offeredat the Atkins 'evidentiary }learlng;: and 'did .riot rely~ anyrtianner
                                                                                                                                                                           ,,,,·


· upon the factors listed in Ex parle Briseno in denying-relief. --··



 "intellectual disability" . that· is· used by .the American ~sociation. of. Mental·· ·
                                                                                                   ;'i   .                                     .::·i
                                                                                                             '   ~ ",,~   '




'Retardatlon,·which is now ~own as .the American Association
                                                         ...
                                                             f(}r .Int~llectUal
                                                                       .   ·..
                                                                                                                                                            and
                              - .'               '.
                                                                                                                                                       .,        ·.. ~·
                                                                                                                                                                          ,"..:


 Developmental Di~abilities (AAJDJ?)~ Ladd v. 1'h,aler, 2013 U~S. Dist. tEXIS 216-14: ....

 at 7 ("Because the state courts did not provide Ladd ·a hearing, the court                                                                                 ~HI

 determine de novo whether Laddds mentally retarded, usingthe A:AtnD definition'· : ·: .· · · ·

 of mental. retardation.''). Applicant completely ignores this very important fact~ · ,
               "''                   .                    '•.'.         .              . .                                    .   •,
                                                                                                                                                                              ..    ':·


 boldly. asserting now that the "o~y" evaluation of his Atkins clai!n.was und,erthe ..
    '                                        .

 "faulty standard" 6f Ex parte Briseno. (Writ App. af 15).

        The 5th Circuit Court ofAppeals
                                   .
                                        affirmed
                                        .
                                                 the decision of"the U.S. District
                          .              .            .           . '          ,.                                     )       :..          '                        .
 Court after finding that the lower
                               .
                                    court, as
                                            .
                                              fact finder,·was in the best positiqnto
                                                                               ~                                                                            •'
                                                                                                                                                                                  •.•...

 make a determinatior1 o~ .the conflicting exp.erf testil:D.ony at the "extensiye'' .



 better position to reach _such a .conclusion,
                                    '
                                                                        arid   that·. such .a conclusion can be·
                                                                                             . '                                       '          "




 supported by the evidence, we find the district court's determination plausible and

 thus survives clear error revi~w."). Applicant ~gues that "the Fifth Circ'uit

 "specifically reli~d on the Briseno factorsii in affirming the District CoUrt's decision.

                                                          7
                                                                        ·•., :·' ,,



.(Writ App. at 15). However,: this· is:,an' absohitelyfalse· assertiort:where 'tli~                                                                                                                                                                                  U.S~
                                                                                                                                                                .                                                                                                             '

  .              ,. ;,       •   .   '~·   ~ ...   ,( :   .'   •   .'              .   ~,\           ,:   ·   ;.•}:.,~ /,;    ,"·,       :; :          . •':'       ,:   ,,,,_.   ':·-:: '1'   ;   •                        •       -',,:\        '       i,"l       ,i   ~           ..._,


· District Court expressly :stated that it was ma!dng ~its· .determination .of Applicant's · ,·. ,·
                                                                                                                  .    ·'·.·

 mental capacity "using the.MJDD definition ofmenial retaJ'dation." Ladti~. Tha/e~, . .

.2013 U.S.     Di~ LEXIS 21614at ;, J\nd also becituseth~ 5" ccireuifs o~iilion d~s 11~ ..
·.even mtmtionthe seven .factors prriffered by1:1iis'Court ih'Ex parte Brisend;niUchles~{ · .

 "specifically rel[y]" upon them. SeeL~.v. Stephens,748F:3d at 645-47. 1 ·

         Respondent under8tands
                         .
                                that this is a last~minut~
                                                        .
                                                           effortto forestall
                                                                   . .
                                                                              Applicant's
                                                                              .              '                                                                                                                      \




 pending
    .
         execution, however, such cirqumstances ~ould seem                                                                                                                        to call for .an. honest
                                                                                                                                                                                        .


 discussion of the record and not deliberate attempts'to misl~ad ihe Cburt.

 1. .     Applicant has :pr~viously raised an Atki~s clai,m· in b~th State and fe(leraf .
        · courts and this Court should denybim a third chance to .do so.·'
                                                                               •            • • <    •        ~   ,,     ,.   ~          ,;,




        . Applicant clearly seeks a third bite at the apple and is requesting this Court. to ..
                         I                                                              '        •            '·.· •'•               •   ,     \   •                                    , •            •   '   ~                ~    •                •      '                    '




 remand the matter for yet anothe;r chance to litigate the issue of·his mental capacity.

 Applicant's second round of federal ·habeas filings was over upoh the denied of his

 petition for certiorari by the Supreme Couit
                                         .
                                              in October
                                                    ~.
                                                         of last year.Laddv.
                                                                          ..
                                                                             Stephenis;,
                                                                                     '· ...                                                                                                                    '•       .




 2014 U.S. LEXIS 5311 (U.S., Oct. 6, 2014). Thereis also rio question but that the

 opfui~n~ in both Atkins and Exparte Briseno are both ·over a decade old. As thi.s.

 Court has stated in the past, ';[i]n Texas habeas corpus law, as in federa~ law, 'equity

                                                                                                                                                                                                                                             .!       •          I




         1
             See also Ex parte Briseno, 135 S.W.3d l, 8 (Tex.Crim.App. 2004)~'

                                                                                   8
                                                                                      '       .                                 '.
                                                                                          '<'.<                 ,'·,
                                                                                                                           '
                                                                                                                               '   ..

  isnofintended for those who-sleep ·on their rights."'                     Jix ~arte steptbe; 132 s?w:3d.
  434, 439-440. (Tex.CririJ..App. 2004)~ Not only has Applicant'had afullevidentia&'

  hearing on the issue U!lder what he now argue~ is the applicable standard, he h~



  the last days before his exC?cu-q()n. ·
                                                                                                                               '.·]··:''
                               .                                                                                       .             -   ~




         State and fedenil coUrt~ ~pare _concurrcnthabe~ corpus jUrisdiction to r~view.~

  the constitutional legitimacy o_fa conviction
                                          .
                                                or death sentence obtained inState ~ourt
                                                        '   .   '                   . ,.. ...

  As this Court has often ·noted, the abstention doctrine in both federal-and state coUrts··

· · and the exhaustion· Cloctrihe in federal courts, "complement each other and are·
                                                                                                                                             i   .



  designed to achieve the Jurisprudential goals of comity, effi~iency~ and expediency.'', ·                                                          ··

  Seee.g.,BxparteSoffar,.l'lO S.W.3d344,346(Te~.Crhn.App.2003)
                                     (  .            .
                                                               .. "0nth~whole,
                                                                      .
                                                                               ·· '




  they work well to give state prispner habeas applicants one, and only one, :full and faii

· opportunity to litigate constitutional claims sequentially, -first in stat~ court and, if ·.
                                                .                                                         ':,



  relief is denied there, then in federal   court~" !d. ..              .
                                            -       '                   .     '           '       .
         In this case, Applicant has unsuccessfully raised his AtJsins allegationin this

  Court under his second Art. 11.071 application, and also in the United States District .
                                                                    .                                 .                                  .

  Court with his second federal habeas application·; He has 'thus had his "full and fair

  opportunity to litigate constitutional claims. i• Even if comity or the possibility of

  inconsistent results are not implicated at this jundure,judicial economy and the

                                                 9
                                                                                   '·•   ''

against distUrbing[the Court's] nrltialcllsposition; ab~eD.t c~mpellmg ~k~titn:ftari~:;·.                       ;, . ·
Ex parte Moreno; 245 S.W.3d 419,428 (Tex.criin~App~ 2008). .A~ this ~oUrtfurthe~ '
                                                                          <   ·'




stated in Ex parte Moreno:
                                                                                                            /     .·

             We should and will be extremely hesitant ever to exercise· our
       authority to recon8ider a decision on .an· initial po~t~convlction habeas'
                                                                                                                   '   ·:'


       corpus application, particularly after the passage ofa substaptial number.
       of years. In a1most.every iristiuice, the State's legitiinate iriterest in'tlle;
       r~pose and finality of its, convictions~ even its interest in punishment as
       weighty and irrevocable 'as the death penalty -Will be substanti8.1 inde&d .·                    '   ''


       apd ought not to be disrurbe~ even in the face of a reasonable and good
       faith argument~ that our disposition on original submission '                          was '
       "incorrect."
                                                                                  !d.

       Applicant unquestionably
                  .             committed the horrendous rape and murder,'" of Ms ..
                                       .




Vicki. Garner in Septemberof 1996. Sirice that tiine, he has been convicted by ajury
           .                   ,            .        '        .                           .   •'   .·   .
and had that conviction affirmed oq direct appeal. He th~reafter unsuccess~llyurged

Atkins-relat~d grounds in several successive
                                  ..   '. .
                                             writ. applications in: both •.-.State .·and. .·
                                                         '•       .,




federal courts. There is nothing in the currcimt writ application that demonstrates that . ·.

there are ·now "compelling circumstances" which would mandate there-litigation of

Applicant's Atkins claims. 2       ·




       2
         Ironically, if this Court were to grant Applicant another Atkfns hearing, it would
       necessarily be conducted under· this Court's decision in Ex parte Briseno· absent an
       intervening decision by this Court to remove thatcase from the jurisprudence .of this
       State.                                                    ··                   · ·

                                                10
                                                                                              r'.                                                                                       ~




                                                                                                                                                                                             was·
                                                                                                                                                                              <




          . In a situation somewhat similar tb the
                                                ...
                                                    instant ·case, thi~. Court
                                                                          '.
                                                                               ruled that it
                                                                               '~                                                           .   .             .;                   .              .


    not n~cessary to order an evidentiary !learing on.~ Atkins claim raised for the first ·
                                                                                               >', ·,                                                                    0,       ,I• ':/,             it:t>~;




    time in an habe~ application where the. applicat1t pad a.Irea~y l:J.ad tJ:te "oppo!f:unity~ .·... ·
               '           :       '                              .            ·•   •   ~.               .    •             •   .   .                >.                       •        ·•     '   •.    •    • ••    "           •


                                                                                                                    '
    to fully develop the·pertin~ntfacts"in th~ punishril~nq)hase ofhistrlal. SeeExp~rte. ·
                                                                                                                                                                                                            ,.

    Simpson, 136 S~W.3d 660~ 663 (Tex.C~1App.~2004). Like the parties.inExparte

    Simpson, both sides in this case hfid aprevious opportunity to fully develop arecord' ·

    of the pertinent facts at the Atkins hearingheld inthe U.S~ DistrictCo~ and that ...
                                           . ·.       '                                            .                    .                                 '                                       .·
    court likewise had
                   .
                           an opportunitY to assess the . credibility. and demeanor of.the
                               .                                      •   •                  . .        '·.                             .           1,.            •'·                                 "'•               '   .

                                                  '   .
    witnesses when it presided over the hearing.

          ·Applicant has not alleged that there is newly available evidetice·that was not·                                                                                                                                           . ·

    presented· at his Atkins· hearing that would result in· a different holding. than~ th?se ..

    already entered by the several co-ints ihat have already. con~·idered the issue df hls ·
                                                                                                                  .,.

    mental capacity to· be executed. He h~ .merely, an4incbrrectly, argtied:that.this.

Court's d~cision in&
                  .
                     parte.
                      .
                            Briseno
                                .. .
                                     was improperly applied
                                                    .
                                                            when
                                                             .
                                                                 the U.S. District
                                                                           .                                                                                       ~·.




.                      .               '                      '                          -                                                            .            .                                             .
    Court denied him relief on his Atkins. claim. 1bis is clearly insufficientto support

    consideration of this subsequent habeas application.
                                                          .                                        .

    2.     Applicant has not met his Burden of Proof····.

           This is · a third and ·subsequent writ appli.cadon, · which ··falls ·under the .

    prohlbition found in Article 11.071 of the Code of Criminal Procedure,.whlch states

                                                                          11
                                                                                                                            '-t' .. '




in its pertinent parts· that:                                                                                        '<,'




                If a subsequent Jppll~tidh ~for: a, Writ ot'il~beas corpuiis tiled . .
      . after filing an initial applicati()n~ a qoUrt IDfl.Y ll()t cons~c;Ier Pte merits of •:
        or grantreliefbased onthe subsequent application wiless the applicati6n ·
      · contains sufficient specific facts establishing tlifit: , .

               (1) the cUrrent claims and issues have not beert arid .could
                                  •   •    .•   .   •      .   .       ,,        '•   ';'   -...1   '.,

               not have been presented previously in a.tiinely initial
               application or in a previously considered'a:ppl~cation filed ~ .
               under this article or Article 11.07 because the factual or                                                          .~   :

             . legal basis·forthe clrum was unavmlabfe ·on;\ffie;date'the. · ...
               applicant filed the previous application; ·. (emphasis
             • supplied)                                           ·

              (2) by a preponderance of the evidence, but for a vi~latitirt ..
              of the -United States Constitution no rational juror could
              have found the applicant guilty beyond a reasonable doubt;
              or

              (3) by clear and convincing evidence, buffor a violation
              of the United States Constitution no rational juror would
              have answered in the state's favor one or m:ore of the
              special issues that were submltted to the jury . in the.
              apj,licant's trial urtder ArtiCle 37.071, 37~0711, ot 37.072;

        TEx. CODE CRIM. PRO. ANN. Art.              11.071~ Sec.5 (a) (Vernon 2(H5)'.                            .

       Thus, underthe plain language ofthi~ statute, once Applicantfil~cl                                 his original
application under this criminal cause number, all subsequent applications regardfug

the same conviction must meet the conditions set forth in Art. 11 ~071. This Court has

previously determined that this subsection of Art. 11.071 was intended ''to limit a.

convicted person to 'one bite at the apple.'" See Ex parte Torres; 943,S.~.2cl469, · "'·.

                                                . 12




                                                                   .    ·~   .
                                                                                                                                                                                                                                                   '.f.




                                                                                                                                                                                                                                                          I
                                                                                                                                                                                                                                                                  ·'.
                                                                                                                                                                                                                                                                    • '       '
                                                                                                                                                                                                                                                              !       ~ ...




           ·application
            .      . '  .
                          provisio:ris
                            :-' ... '.:
                                  ;     . .
                                          .
                                            in both
                                              '. . . .....
                                                  ;
                                                           Arts;
                                                             .:
                                                                 1·1.07
                                                                  .:
                                                                        and· 1l.07J). . . ·'
                                                                  . . .. .    '                                  ·.        '                 \   ·~:       '·   '    ,'                                                                                                                            '    ,)   '~   .



                    .It is·submitted thatJ\.pPiicant has nofmadt~ the requisitepfelnrtinary _shoWing ·
}·.   +




          ·. for. consideration of his subseC}lient writ application. Particulal-1}' where.the Ciaiin he
                             ..   •   •   •                   •    t•"    •         <                                          •        .?                               .·        .:       .    •                .•               '           •                          •
                                              .   .                                            .             ~        ·.           ..   '              .            ..    ..                                                                       .              .

            now presents has·been previously considered arid-rejected-by this. CourtSee.TEx.:.;·•

           ·CODE CRIM. PRo. ANN. Art. 11.071, Sec~ 5 (~) ( 1)(vemori 20 i 5): Applic~t ha8 also :.
                                                                         :"   ').                  "''   .                                                                                                                         .. .. ·...                                         :""'     '



            failed to show ariyreason why·thls Court shoUld· grant him.at tlJ.e
                                                                            ,,.
                                                                                last ~ute
                                                                                       ...
                                                                                           the                                                     .                                        ,.           '                                                                             ;,..·       ..

            privilege of yet another review of an allegation which has been repeatedly rejected ·

            by .every court in which it has been raised.                                                              .
                                          '                                                                                                                                                          .                                 .



                    Finally, since his conviction                                             m. 1997 Applicanthas had severalopporttlmties ·
           ·in both State. and ·.federal· court to chRilenge the propriety of his conviction a.D:d

            sentence.· See Ladd v. Stephens, 748 F.3d 637, 639-42. (5th Cir. Tex.. 2014).The
                                                                                                                                                                                                                                                                  .               .

            undersigned has personal kriowledge thatMs:_Garner's family has patiently waited for.

          . justice for over eighteen
                         .      . .
                                      ~ears as this case worked.
                                                           .  "
                                                                its way through
                                                                         . .
                                                                                the appellate
                                                                                      ·.
                                                                                              and
                                                                                             . .                                                                                                             ''            '




            habeas processes. They must understandably have ·little· faith-in a•crimin'al justice.

            system that released a convicted triple
                                                 .
                                                    murderer before he served even halfofthe
                                                      .                             .              .                                    "              .                                                                       '




            sentence previously assessed only to have him brutally tape and murder Ms. Vi~ki ·: ·
                                                                                                                      '                                                                 '                              .

            Garner "While out on parole. Applicatit has had much more than his day in coUrt. His ·
                                                          •                             ·.,                                                                                    '                                               •       r:o.·              '       •




            rights have been scrupulously protected both at trial and in his. many post-conviction. ·

                                                                                                             13
     1   .•




               proceedings.·   His .current writ application offers nothlng that has not b~en~ already ·
               been found t~ be without merit several times over;' A~licant has had his tib1e~ Most
                           '            •   •   ~       •   '   ',       •                    '   t                       •         •   '                  •• ,   '.       ·'




              .· respectfully, it is now time· forj'!:l-sti,ce fo:t; Ms::.\Ticki Garner..., ..
                                                                                '·                         -,·. , .
'.                                                                           • _l,



                                                                                                                                        ::   ·;        .

                                                                                                                                                                                .j;.-

                     ·. WHEREFORE, ·PREMISES. CONSIDERED,: the Respon~ent respectfully. .
                                                                     .               .                                                            ;.                   -         '


               requests that the Court of Crin:llnal Appeals, dismiss the applicant's ~t 9riginal ·

               application'for
                            . .
                                writ ofhabeas corpus and/or denythe
                                                                 .
                                                                    applicanfhabeas
                                                                    .
                                                                                    relief
                                                                                       . as well '                                                     :   '


               .                    .               .                                                             '



               as. deny the applicant's·requesffor stay ofexe.cution. ·

                                                                              Respectfully submitted,
                                                                                                                      ;       -_,




                                                                              D: MATT BINGifAI\.1
                                                                             .CrfunnEll District Attorney
                                                                             . Smith County, Texas
                                                                                 . ; .?_'-:
                                                                                      4.··            .·
                                                                                                                '

                                                                                 . ael J.·West
                                                                              As~ .. Criminal District Attorney
                                                                               SBQT#~21203300         .                                      .
                                                                                .         . .·
                                                                             .· 100 N: Broadway, 4th Fl.
                                                                               Tyler; Texas 75702
                                                                                (903) 590-:1720
                                                                                (903) S90-1_719 (fax)
                                                                               mwest@smith-county.com




                                                                                         14
        '   .
                                               -,   .   t-,


I   '




                  ·.Pursuant to Texa8 RUle. of Appellate.Procedtrre 9.4~ the UD.dersigned ~fi~k~~
                              <                                '         •   ~.   •   •                   '       -                  '·            •   •

                                                                                                                                                           ...
                                                                                                                                                                 .
                                                                                                                                                                 ·'"   ..   ~·

                                  '' ,                                                                                                                      r~ r~·£

            ·certifies that the .word count for this document is 2,403 words
                                         ':'                       '     .
                                                                             as calculated by Corel·
                                                                                              ·, "".                                      .




            WordPerfect X6. . · ·
                                                                                                                      ,,   .   '•




                                                                                                                                                           . . \:




                                                    CERTIFICATE OF SERVICE

                  .I hereby certify tha.t a copy of the· M,OTION TO DISMI~S 'AfPLICATION .
                                                                                          ',·,'I''



            FOR WRIT oF        HABEAs coRi>us·A.Nn· DENY REQUEST
                                                         ·'•                                         •,
                                                                                                          FOR '
                                                                                                                           sTAY bF ·. '   '   •"




            EXECUTION was elecironic8.J.ly served on the attorney for Applicant, Mr.. Brian : ·

            Stull, 201 W. Main Street, Ste.402, Durham, NC; 27701, at bstull@aclu.org.                                                                                           . ·'




                                                                       15 .
