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20
2
THE
COURT:
All
right.
Motion
ta
3
Hold
that
Texas
Code
of
Criminal
Procedure
Article
~
37.01
is
Unconstitutional.
5
MR.
LOPER:
Judge,
I
think
the
main
6
thrust
of
this
motion
is
that,
as
it
says,
there
7
h a v ( ~
been
people
exonerated
from
the
country's
death
8
rows,
not
just
Harris
County,
not
just
the
State
of
9
Texas,
and
just
from
the
standpoint
that
mistakes
10
are
made
and
obviously
there
are
no
go-backs
once
an
11
execution
has
taken
place.
That
for
all
of
the
12
reasonR
that
we
list
in
here
and
the
various
13
failures
as
far
as
notice
areconcerned,
wc::'
roe
111
ask.i
1
ig
you
-_.
~ - 1 e '
re
basically
s"aying
that
Wc;?
1 : h i n ~ :
15
t
hat.
l:
he
3
y:;
t
e
ill
t
11
a
i:
cl
e
i:
er
TIl
i
nes
w
11
0
sh
0U
.1.
d
die
j
n
16
Texas
is
bro}:en.
We're
asking
you
tofind
it
1"7
uncoIlstitutLonal.
IS
1
don'
t
kn
(')
win
10<,)
kin
g
'1.:
hat
He
19
have
any
cases
th3t
have
ruled
~ g a i n s t
us
directly
20
on
this.
21
22
TH
E
COUR'!':
HS_1\T
.
:r..
EN:
State.
Your
Honor,
because
)3
theydid
not
cite
any
specific
legal
reaS0n
that
the
2425
statute
should
be
declared
unconstitutional,
they
do
not
cite
any
'l'exLL3
Court
of
Criminal
AppeaJ.s
cases
I
____
.1
1
or
any
Supreme
Court
of
theUnited
states
cases
that
2
say
that
b ~ c a u s e
there
may
be
flaws
In
a
system
that
3
anything
canbe
declared
u n c o n s t i t l l ~ i o n a l ,
we4
respectfully
request
that
you
deny
the
motion.
5[
do
not
have
case
law
other
than
6
general
cases
[rom
the
Court
of
Criminal
Appeals
1
that
have
repeatedly
upheldthe
death
penalty
8
statute.
9
THE
COURT:
On
grounds
of.
10
everything
under
the
sun
except
this
one?
11
12
1
~
-.
:>
i'1;i•
ALLEN:
Nell
--
'rHE
COURT:
I
':m
asking.
HS.
ALI.EN:
And
1
--
you
know;
Judge,
in
looking
--
and
let
me
just
say
forthe
record
on
all
this,
the
Appellate
Division
c_id
16
much
--
aJ.most
<::11
of
the
legal
r.esearch
on
this.
17
So
I'm
in
great
deaJ
relying
on
t h ~
chiefof
the
18
A p p e l l a t ( ~
Divis.ion
on
this.
And
the.r.e
--
we
could
19
not
find
any
cases
rhat
directly
a d r l r e s ~
just
the
20
system
being
brokp.n
because
it
isn't
really
0
21
constitutional
issue
andso
or
it's
definitely
22
not
a
statutorv
issue.
23
'I'llE
COUR'l':
I
think
it
gives
rise
24
to
due
processclaim.
Would
you
argue
with
that?
25
1-1S.
ALl,EN:
I
would
agree
that
it
...
-------------'----
22
-----
._---_.-
1.
CO
U
1d
.b
ea
due
pro
ce
sse
1
aim,
b
il
tt
hat's
no
'I'l
h
(H'/
2
they
couched
it.
So
Uta
t
's
not
what
J'
m
p r e p ~ .
red
to
J
respond
to.
J1
ffHE
C O U I ~ T :
Well,
they've
listed
5
the
Sixth,
Eighth,
and
Fourteenth
Amendments,
6
Article,
S e c ~ l o n ,
due
process
under
Texas
7
Constitution,
10.
~ i : S .
AI.LEN:
The
Court
of
Crind.'nal
9
Appeals
in
and
I
cannot
pronounce
the
nawe;
10
SCH
'E
A
NET
TE
--
did
addressthe
Federal
due
11
process
claims
regarding
a
system
and
that
in
a12
study
that
says
that,
"While
the
executionof
an
13
innocen
t
person
may
via
1
a
te
E'ede.ca
1.
due
proces
s
(mc
14
can
be
considered
cruel
and
unusual
punishment,
15
appellant
does
not
claim
that
he
is
innocent
:in
that
16
case.
He,
therefore,
fails
todemonstrate
that
his
17
due
process
rjghts
or
his
right
to
be
free
from
18
cruel
and
u n u s u ~ l
punishment
havebeen
violated
by
19
our
death
penalty
statute."
20
21
THE
COURT:
MR.
LOPER:
Hr.
Loper.
Judger
I
hope
that
22
we're
not
going
to
have
to
wait
untilthere's
some
23
finding
that
our
client's
innocent
or
not
to
24
complain
about
the
statute.
If
we
were
to
get
to
25
that
point,
we
wouldn't
worry
about
the
statute.
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