Ex Parte Graham

853 S.W.2d 565, 1993 WL 190937

Opinions

ORDER

MEYERS, Judge.

On our own motion and pursuant to rule 218(b) of the Texas Rules of Appellate Procedure, this day we reconsider, in part, our original ruling in Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993).

On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, punishment was assessed at death. This Court affirmed applicant’s conviction on direct appeal. Graham v. State, No. 68,916 (Tex.Crim.App. June 12, 1984) (unpublished). On April 27, 1993, this Court denied applicant relief in a habe-as corpus petition which contained issues similar to those presented today. Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993). The trial court has scheduled applicant’s execution to be carried out on or before sunrise, June 3, 1993.

In the instant cause, applicant filed a motion requesting this Court reconsider, our initial denial of relief. See Tex.R.App. Proc. 213(b). Applicant presents four grounds for reconsideration. In his first ground, applicant requests a stay of execution pending the resolution of Johnson v. Texas, No. 92-5653 (U.S.Sup.Ct., pending). Secondly, applicant requests this Court file and set his petition to determine the trial court’s reliance on Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion) and Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App.1984). Applicant’s third and fourth grounds for reconsideration in his petition concern constitutional protections against the execution of an “innocent person.” Upon due consideration, we refuse to consider the merits of applicant’s second, third and fourth grounds for reconsideration. See Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993). However, on our motion and for reasons which will become apparent, applicant’s execution is stayed. See Tex.R.App.Proc. 213(b).

This petition represents the worst-case scenario — the possibility that a person might be unconstitutionally punished by the legal system. That is, applicant could be put to death tomorrow for something which is, within thirty days, determined to be unconstitutional. With this much at stake, the State will wait thirty days.

In Graham v. Collins, the Supreme Court refused to decide the question of youth as a mitigating factor because, to do so would necessarily create a new rule which is not cognizable under federal habe-as law. Graham, — U.S. -, -, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993). Soon, the Supreme Court will squarely decide this question in Johnson v. Texas, but any relief accorded to Johnson will be provided only for litigants on direct review to the Supreme Court and not the applicants in federal habeas corpus petitions. Our position on the constitutionality of this issue has been clear. The question of youth as a mitigating factor can be considered in a constitutional manner within the scope of our special issues. Delk v. State, 855 S.W.2d 700 (Tex.Crim.App.1993); Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App. Feb. 3, 1993); Nelson v. State, 848 S.W.2d (Tex.Crim.App.1992). However, if the Supreme Court finds we have erred in our constitutional analysis, and Johnson was unconstitutionally sentenced due to the Texas system’s failure to allow juries to consider youth as a mitigating factor, then not only will Johnson be entitled to relief but, possibly, so too will Graham. The question of Graham’s youth might be cognizable under our State habeas corpus jurisprudence as a right not previously recognized under Ex parte Chambers, 688 S.W.2d 483 (Tex.Crim.App.1984) (Campbell, J. concurring, joined by PJ. McCormick, and JJ. Davis, Clinton, Teague and Miller). Accordingly, applicant’s execution is stayed for 30 days pending the resolution of Johnson v. Texas by the United States Supreme Court.

IT IS SO ORDERED.