Turner, Carlton Akee

• Court: Court of Criminal Appeals of Texas
• Decided: September 27, 2007
• Docket: WR-59,908-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-59,908-02 EX PARTE CARLTON AKEE TURNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. F99-00220-MS FROM THE

282^ND DISTRICT COURT OF DALLAS COUNTY

Price, J., filed a dissenting statement in which Womack, Johnson & Holcomb, JJ., join.

DISSENTING STATEMENT

Particularly in view of the United States Supreme Court's grant of certiorari this week in Baze v. Rees, Comm'r, Ky. DOC, ⁽¹⁾ and for reasons expressed in my dissenting statement in Ex parte O'Brien, ⁽²⁾ I dissent to the failure of the Court to grant the applicant's motion for stay of execution in order to decide whether the applicant has an available post-conviction forum in state court in which to pursue his claim that execution by lethal injection as presently carried out in Texas violates the Eighth Amendment to the United States Constitution. We have filed and set another successive post-conviction writ specifically in order to decide whether "a claim that the lethal-injection protocol violates the Eighth Amendment [is] cognizable under Article 11.071 of the Texas Code of Criminal Procedure[.]" ⁽³⁾ I do not understand why we would allow this applicant, who has expressly raised the same claim in this successor application, to proceed to execution without our having resolved that question. Moreover, the reason given in the concurring statement in Ex parte O'Brien, ⁽⁴⁾ namely, that the applicant had not made a prima facie showing of an Eighth Amendment violation, has surely been undermined by the Supreme Court's grant of certiorari review in Baze. Under the circumstances, this Applicant has stated facts which, if true, could establish a violation of the Eighth Amendment if the State proceeds with his execution according to its usual protocol. I would stay the applicant's execution. Because the Court does not, I dissent.

Filed: September 27, 2007

Do Not Publish

1.

No. 07-5439 (2007 U.S. LEXIS 9066)

2.

190 S.W.3d 677, 683-85 (Tex. Crim. App. 2006) (Price, J., joined by Holcomb, J., dissenting).

3.

Ex parte John Avalos Alba, No. AP-75,510 (Tex. Crim. App., Sept. 20, 2006) (Slip op. at 2).

4.

O'Brien, supra, at 683 (Cochran, J., concurring) ("I therefore join in the Court's decision to lift the temporary stay of execution and to the dismissal of applicant's subsequent petition for failing to make a prima facie showing of possible merit.").