          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. WR-48,152-08

                       Ex parte GARCIA GLEN WHITE, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
          IN CAUSE NO. 723847 IN THE 180TH JUDICIAL DISTRICT COURT
                               HARRIS COUNTY

       R ICHARDSON, J., filed a concurring opinion in which H ERVEY and N EWELL, JJ.,
joined.
                              CONCURRING OPINION

       I agree with the Court’s interpretation of the statutory language in question. It would

seem that the plain language of Article 11.073 restricts the meaning of the phrase, “would

not have been convicted,” to apply only to the verdict of guilt and not to the assessment of

punishment. This is consistent with the Court’s interpretation of this exact phrase in Ex parte

Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011). And, as noted by the majority,

Gutierrez was decided two years before Article 11.073 was enacted. The Legislature was

aware of how the phrase, “would not have been convicted,” would be interpreted by this

Court. Had the Legislature intended Article 11.073 to apply to punishment, it could have

explicitly said so. Therefore, I join the majority.
                                                         White Concurring Opinion — 2

       However, this is a harsh result, particularly in a death penalty case where the jury is

often asked to evaluate expert scientific testimony and scientific evidence in assessing

whether the death penalty is the proper punishment. The points made by the dissenting

opinion are valid. In my opinion, Article 11.073 should have been written to apply to both

the guilt and punishment phases of a trial—at least a death penalty trial.




FILED:        November 2, 2016

PUBLISH
