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unpublished opinion delivered on June 17, 1998.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
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.
/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