No. WR-75,015-01 No. WR-75.

105-02

In the

Court of Criminal Appeals of Texas At Austin

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IN RE THE STATE OF TEXAS EX REL. PATRICIA R. LYKOS

v.

HON. KEVIN FINE, PRESIDING JUDGE, 177th DISTRICT COURT OF TEXAS

Respondent

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REQUEST FOR RECONSIDERATION

ON COURT'S OWN INITIATIVE PURSUANT TO RULE 72.2 OF THIS COURT'S DENIAL OF WRIT OF PROHIBITION AND WRIT OF MANDAMUS

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PATRICIA R. LYKOS District Attorney Harris County, Texas

ALAN CURRY

State Bar No: 05263700 Assistant District Attorney Harris County, Texas

ErucKUGLER CAROLYNALLEN

BILL EXLEY

Assistant District Attorneys Harris County, Texas

1201 Franklin, Suite 600 ' Houston, Texas 77002 Tel.: 713/755-5826

FAX No.: 713/755-5809

.Attomeys for Relator

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. App. P. 53.2(a), a complete list of the names of all interested

parties is provided below so the members of this Honorable Court may at once determine

whether they are disqualified to serve or should recuse themselves from participating in the

decision of the case.

Complamant, victim, or aggrIeved party:

Tina Vo

Relator:

Patricia R. Lykos - District Attorney of Harris County, Texas, representing The State of Texas

Counsel for the Relator:

Patricia R. Lykos - District Attorney of Harris County 1201 Franklin, Suite 600, Houston, Texas 77002

Alan Curry; Eric Kugler - Assistant District Attorneys on appeal 1201 Franklin, Suite 600, Houston, Texas 77002

Bill Exley; CarolynAllen - Assistant District Attorneys at trial 1201 Franklin, Suite 600, Houston, Texas 77002

Respondent:

Hon. Kevin Fine, Presiding judge, 177th District Court of Texas 1201 Franklin, Suite 1900, Houston, Texas 77002

Real Party in Interest, the criminal defendant:

John Edward Green, Jr.

Counsel for Real Party in Interest:

John Keirnan, Attorney at Law

917 Franklin Street, #550, Houston, Texas 77002

1

Robert Loper, Attorney at Law

111 West 15th Street, Houston, Texas 77008

Richard Burr, Attorney at Law

2307 Union Street, Houston, Texas 77007

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TABLE OF CONTENTS

PAGE

IDENTIFICATION OF THE PARTIES i

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE 1

STATEMENT OF JURISDICTION 1

ISSUES PRESENTED 3

STATEMENT OF FACTS 3

RECONSIDERATION ON THE COURT'S OWN INITIATIVE 5

WRIT OF PROHIBITION : 6

WRIT OF MANDAMUS 7

ARGUMENT 8

PRAYER FOR RELIEF 11

CERTIFICATE OF SERVICE 12

111

INDEX OF AUTHORITIES

CASES

Buntion v. Harmon,

827 S.W.2d 40 (rex. Crim. App. 1992) 7

Curry v. Wilson,

853 S.W.2d 40 (rex. Crim. App. 1993) 6

Ex parte Gray,

649 S.W.2d 640 (rex. Crim, App. 1983) 6

Ex parte Moreno,

245 S.W.3d 419 (rex. Crim. App. 2008) ~ 6

Ex parte Seidel,

39 S.W.3d 221 (Tex. Crim. App. 2001) 10

Faulder v. State,

612 S.W.2d 512 (Tex. Crim, App. 1980) 2, 6

In re State ex rel. Robinson,

116 S.W.3d 115 (Tex. App.-Houston

[14th Dist.] 2002, orig. proceeding) 9

Kansas v. Marsh,

548 U.S. 163 (2006) 9

Knowles v. Scofield,

598 S.W.2d 854 (Tex. Crim. App. 1980) 7

Kopeski v. Martin,

629 S.W.2d 743 (Tex. Crim, App. 1982) ~ 2

LeBlanc v. Gist,

603 S.W.2d 841 (Tex. Crim, App. 1980) 6

Neveu v. Culver,

105 S.W.3d 641 (Tex. Crim. App. 2003) 7, 8

Padilla v. McDaniel,

122 S.W.3d 805 (Tex. Crim. App. 2003) 2

IV

Paredes v. State,

129 S.W.3d 530 (Tex. Crim. App. 2004) 4

Rachal v. State,

917 S.W.2d 799 (Tex. Crim. App. 1996) 9

S cheanette v. State,

144 S.W.3d 503 (Tex. Crim. App. 2004) 4,9

State ex rel. Curry v. Carr, ,

847 S.W.2d 561 (Tex. Grim. J\pp. 1993) , 10

State ex rel: Hill v. Fifth Court of Appeals,

34 S.W.3d 924 (Tex. Crim. App. 2001) 7, 8

State ex rel. Millsap v. uzano,

692 S.W.2d 470 (Tex. Crim. App. 1985) 2

State ex rel: Rosenthal v. Poe,

98 S.W.3d 194 (Tex. Crim. App. 2003) 7, 8

State ex rel. Smith v. Blackwell,

500 S.W.2d 97 (Tex. Crim. App. 1973) 6

State ex rel. Vance v. Clawson,

465 S.W.2d 164 (Tex. Crim. App. 1978) 6

State ex rel. Vam'e v. Clawson,

465 S.W.2d 164 (Tex. Crim. App. 1978) : 6

"

State ex rel. Vance v. Routt,

571 S.W.2d 903 (Tex. Crim. App. 1978) 2

State ex. RBL Healey v. McMeans,

884 S.W.2d 772 (Tex. Crim. App. 1994) 10

State of Texas ex rel. Lykos v. Fine, WR-75,015-01, WR-75,015-02,

2010 WL 4882024 (Tex. Crim. App. Nov. 29,2010) 1

State v. Morgan,

160 S.W.3d 1 (Tex. Crim. App. 2004) 8

State v. Patrick,

86 S.W.3d 592 (Tex. Crim. App. 2002) 7

v

Steames v. Clinton,

780 S.W.2d 216 (Tex. Crim, App. 1989) 7

Sutton v. Bage,

822 S.W.2d 55 (Tex. Crim. App. 1992) : .. ~ 7

Texas Board of Pardons and Paroles v. Mzller,

590 S.W.2d 142 (Tex. Crim. App. 1979) 2

Thomas v. Stevenon,

561 S.\X'.2d 845 (Tex. Grim. App. 1978) 2

Wortham v Walker,

128 S.W.2d 1138 (Tex. 1939) 7

VI

STATUTES

TEx. CODE CRIM. PROC. ANN. art. 4.04, § 1

r,:Y ernon 2005) 3

TEx. CODE CRIM. PROC. ANN. art. 4.04, § 2

r,:Y ernon 2005) 4

TEx. CODE CRIM. PROC. ANN. art. 44.01

(Vernon Supp. 2009) 11, 12

TEX. CODE CRIM. PROC. ANN. art. 37.071

(Vernon Supp. 2010) 13

RULES

TEx. R. App. P. 52 · 2

TEx. R. App. P. 53.2(a) i

TEx. R. App. P. 72.1 2

TEx. R. App. P. 72.2 1, 5, 11

CONSTITUTIONAL PROVISIONS

TEx. CONST. art. V, § 5(c) 2

Vll

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

The State filed a Writ of Mandamus and a Writ of Prohibition on November 19, 2010, to prevent the trial court from holding an evidentiary hearing into the constitutionality of the death penalty based on the possibility that an innocent person had been executed and

therefore that the criminal defendant John Edward Green should not be subject to a" death penalty prosecution. See State's Petition for Writ of Prohibition and Petition for Writ of Mandamus. This Court issued an opinion on November 29, 2010, denying the State's petitions because an order to withdraw respondent's order demanding an evidentiary hearing would "premature" and was without basis at that time because the Court was unaware of the evidence the criminal defendant sought to present. Exhibit A, State of Texas ex rel. Lykos v. Fine, WR-75,015-01, WR-75,015-02, 2010 WL 4882024 (Tex. Crim. App. Nov. 29, 2010). The hearing commenced on December 6, 2010, witnesses have been called, and the defense has indicated the evidence it intends to present at the hearing. See Exhibit B, affidavit of Ms. Carolyn Allen. The trial court has announced the evidence it intends to consider before ruling on its jurisdiction to hear the matter or the relevance of the evidence offered. See Exhibit B, affidavit of Ms. Carolyn Allen. Pursuant to Texas Rule of Appellate Procedure 72.2, the State requests that this Court reconsider its denial on the petitions "on its own initiative [.]"

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STATEMENT OF JURISDICTION

Jurisdiction of this Honorable Court is invoked pursuant to TEX. CONST. art. V, §

5(c); TEx. CODE CRIM. PROC. ANN. art. 4.04, § 1 (Vernon 2005); TEX. R. App. P. 72.1;. and

TEx. R. App. P. 52. See Faulder v. State, 612 S.W.2d 512,513 (Tex. Crim. App. 1980). See also

State ex ref. Millsap v. Lozano, 692 S.W.2d 470, 481 (Tex. Crim. App. 1985) (citing Texas Board

of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex. Crim. App. 1979); Thomas v. Stevenson, 561

S.W.2d 845 (Tex. Crim, App. 1978); State ex ref. Vance v. RiJutt, 571 S.W.2d 903 (Tex. Crim.

App. 1978); Kopeski v. Martin, 629 S.W.2d 743, 744 (Tex. Crim. App. 1982) (citing Thomas v.

Stevenson, 561 S.W.2d 845 (Tex. Crim. App. 1978»).'

When a court of appeals and the Court of Criminal Appeals have concurrent, original

jurisdiction over a petition for a writ of mandamus against the judge of a district or county

court, the petition should be presented first to the court of appeals, unless there is a

s

compelling reason not to do so. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App.

2003). This petition is being presented to this Court because this Court has sole jurisdiction

over death penalty appeals in Texas. See TEx. CODE CRIM. PROC. ANN. art. 4.04, § 2 (Vernon

2005). The Respondent's order is premised on the granting of a capital murder defendant's

motion, in which the Defendant seeks to have the Respondent declare the Texas death

penalty unconstitutional. Even if this Court had concurrent jurisdiction over this petition

with a court of appeals, there are compelling reasons to present this petition to this Court.

The Respondent's ruling has statewide, if not national, implications, and the issues will

eventually reach this Court. Furthermore, the courts of appeals are not accustomed to

handling death penalty issues, whereas this Court routinely deals with such matters.

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ISSUES PRESENTED

The Respondent has clearly erred in permitting Real Party At Interest John Edward Green, Jr., to present evidence of other people's exonerations in hopes of prohibiting the State from seeking the death penalty in a criminal prosecution, in direct contradiction to this Court's order stating that this type of "third-party innocence" evidence is not relevant to

determine the constitutionality of Code of Criminal Procedure Article 11.071.

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STATEMENT OF FACTS

In cause number 1170853, the Real Party in Interest, the Defendant, John Edward Green, Jr., was charged by indictment with the capital murder of Tina Vo, and the indictment was filed with the court of the Respondent, the Honorable Judge Kevin Fine of the 177th District Court of Harris County, Texas. The Defendant filed a "Motion to Hold that Tex. Code Crim. Proc. art. 37.0[7]1 is Unconstitutional," which argued that more than 100 death row inmates had been exonerated and that the Texas death penalty statute is unconstitutional based on the possibility of executing an innocent person. In relation to that general issue in this particular case, the Respondent twice stated that, if there were any judge in Texas who would be willing to hold the death penalty unconstitutional, he was that judge.

Trial counsel for Green notified the prosecution on December 1, 2010 that it intended to offer as witnesses at the December 6, 2010 hearing at least 12 witnesses, all of whom would be discussing evidence other than evidence of Green's "innocence." See Exhibit C, Letter from John Keirnan with attached witness list dated December 1, 2010. Rather, the witnesses were described as intending to testify to wrongful conviction numbers, risk factors for wrongful

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convictions, the use of eyewitness identification and "junk science" in wrongful convictions, risk factors for death qualified jurors, the use of race-based jury selection and its affect on accurate jury decisions, and witnesses discussing the guilt of two executed criminal defendants from other counties. Id.

During the hearing which began on December 6,2010, Respondent began the hearing

by acknowledging this Court's order, but contending that it referred only to Green's initial Fifth Amendment due process claim, not his amended Eighth Amendment cruel and unusual punishment claim. See Exhibit B, affidavit of Ms. Carolyn Allen. Therefore, Respondent argued that Paredes v. State, the case cited in this Court's order, did not prohibit Green's defense team from eliciting evidence of "third-party innocence" as support for its contention that the death penalty was unconstitutional as applied to Green. See Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004); see also Exhibit B, affidavit of Ms. Carolyn Allen,. The State cited this Court's decision in SdJeanette v. State which held that an Eighth Amendment claim of execution of an innocent person would not succeed without evidence that the named defendant was innocent in hopes of urging Respondent to permit evidence only of Green's guilt or innocence to support his claim that the statute is unconstitutional as applied to him. Scheanette v. State, 144 S.W.3d 503, 506 (Tex. Crim. App. 2004); Exhibit B, affidavit of Carolyn Allen. The Respondent, however, ignored this Court's clearly controlling precedent. See id.; Exhibit B, affidavit of Carolyn Allen.

The State sought to clarify the intentions of the hearing, whether it was to test the reliability of the State's scientific evidence for trial or to suppress eyewitness identification. See Exhibit B, affidavit of Carolyn Allen. Green's defense counsel acknowledged that the hearing

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was not intended to substitute for a suppression or Daubert hearing, but was instead solely to determine the constitutionality of the death penalty statute as applied to Green. See Exhib,it B, affidavit of Carolyn Allen. He argued that the Respondent should consider the evidence of third-party exonerations to determine whether Green was being placed at risk for wrongful conviction and execution, but he wanted this determination before the State had been

permitted to present any evidence. See Exhibit B, affidavit of Carolyn Allen.

Yet, Green's counsel acknowledged in its opening statement that no constitutionality challenge could succeed without a showing of Green's actual innocence and contended that it would establish he was not guilty of the capital murder. See Exhibit B, affidavit of Carolyn Allen. In contradiction, the first witness at the hearing Dick Dieter, the executive director of the Death Penalty Information Center, testified only to cases of exoneration across the country without any specific reference or knowledge of the case against Green. See Exhibit B, affidavit of Carolyn Allen. Green next called Sandra Thompson, a member of the Timothy Cole Advisory Panel, to testify about to inadequacies in certain types of evidence without specific reference to the facts or procedures used in the investigation of Green.

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RECONSIDERATION ON THE COURT'S OWN INITIATIVE

Texas Rule of Appellate Procedure 72.2 permits this Court to reconsider a denial of a motion for leave on its own initiative. While this Court has not had an occasion to consider application of this rule in a mandamus or prohibition case, in Ex parte Moreno the'Gourt considered application of Rule 79.2(d) to reconsider a writ of habeas corpus on its own initiative despite the fact that the defendant could not meet the statutory requirements for a

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statutory writ. Ex parte Moreno, 245 S.W.3d 419, 427 (Tex. Crim. App. 2008). The circumstances for reconsideration in this matter are more compelling than they were in Moreno because the statutes potentially barred reconsideration in Moreno, and no such statutory prohibitions exist in this case.

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WRIT OF PROHIBITION

A writ of prohibition is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested. Faulder, 612 S.W.2d at 513 (citing State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1978)). A writ of prohibition will issue in order to prevent the commission of a future act, but not to undo, nullify, or review an act already performed. A writ of prohibition will not be granted when the act sought to be prevented is already accomplished, but will be granted when such act is not a full, complete, and accomplished act. LeBlanc v. Gist, 603 S.W.2d 841, 843 (Tex. Crim. App. 1980) (citing State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex. Crim. App. 1973); State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1978)); Ex parte Grqy, 649 S.W.2d 640, 642 (Tex. Crim._ App. 1983).

This Court has the power to issue writs of prohibition in criminal law matters.

Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or are incident to a criminal prosecution, are criminal law matters. Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993). In

6

order to show that she is entitled to relief on a petition for a writ of prohibition, a relator must demonstrate that: (1) she has no other adequate remedy at law; and that (2) she is clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d at 43-44 (citing Buntion v. Harmon? 827 S.W.2d 40, 43-44 (Tex. Crim. App. 1992); Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992); Steames v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989».

A writ of prohibition "issues to require the execution of a matter whose merit is beyond dispute, and may not be employed as scales in which to balance the weight of evidence or to bridge the gap between broken and disconnected facts." Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex. Crim. App. 1980) (citing Wortham v Walker, 128 S.W.2d 1138, 1151 (Tex. 1939».

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WRIT OF MANDAMUS

Mandamus relief may be granted if the relator can demonstrate that: (1) the act sought to be compelled is purely ministerial, and (2) that relator has no other adequate legal remedy. Neveu v. Culver, 105 S.W.3d 641,642 (Tex. Crim. App. 2003) (citing State ex rei. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003»). This Court has alternatively stated that, in order to be entitled to a writ of mandamus, the relator must demonstrate that: (1) there is no other adequate legal remedy, and (2) there is a clear and indisputable right to the relief sought. State v. Patrice, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (citing State ex rei. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001».

7

The ministerial act requirement has been described as a requirement that the relator have "a clear right to the relief sought" meaning that the relief sought must be "clear and indisputable" such that its merits are "beyond dispute" with "nothing left to the exercise of discretion or judgment." Neveu v. Culver, 105 S.W.3d at 642 (citing State ex rel. &senthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003); State ex rel. Hill v. Fifth Court of Appeals, 34.

S.W.3d 924, 927-28 (Tex. Crim. App. 2001)).

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ARGUMENT

The Relator, the State of Texas, has no right to appeal the intended action of the Respondent in this case. See TEx. CODE CRIM. PROC. ANN. art. 44.01 (Vernon Supp. 2010). Article 44.01 allows the State to appeal an order of a court in a criminal case if the order dismisses an indictment or any portion of an indictment, arrests or modifies a judgment, grants a new trial, sustains a claim of former jeopardy, grants a motion to suppress evidence in certain cases, is issued for forensic DNA testing, or pronounces an illegal sentence. TEX. CODE CRIM. PROC. ANN. art. 44.01 (Vernon Supp. 2010).

The only provision of Article 44.01 that arguably applies to the present case is the one for an order that dismisses any portion of an indictment, but this Court has foreclosed the use of that provision in similar situations where a trial court simply alters the range of punishment. In State v. Morgan, 160 S.W.3d 1, 2 (Tex. Crim. App. 2004), the defendant was charged with a class A offense as a second-offender, but the trial court decided to treat it as a class B first offense, and the State appealed. The court of appeals accepted jurisdiction' and affirmed, but this Court granted the State's petition and held, "The order in this case affected

8

only Morgan's possible punishment range. As a result, this is an interlocutory appeal for which appellate courts have no jurisdiction." Id., 160 S.W.3d at 5. This Court then dismissed the appeal.

Respondent's presiding over an evidentiary hearing to determine whether an innocent person has been executed in relation to if the State may seek the death penalty in the

prosecution of John Edward Green, Jr. violates well-settled State and federal precedent. See Kansas v. Marsh, 548 U.S. 163, 180 (2006) (holding that the availability of DNA testing, and the question it might raise about the accuracy of guilt/innocence-stage determinati?ns in capital cases, was irrelevant to the question of concerning the constitutionality of Kansas's capital sentencing system); Paredes, 219 S.W.3d at 540 (holding a Fifth Amendment constitutional challenge to Texas Code of Criminal Procedure Article 37.071 did not permit presentation of evidence regarding "third-party innocence"); Scheanette, 144 S.W.3d at 506 (holding an Eighth Amendment constitutional challenge to Texas Code of Criminal Procedure Article 37.071 did not permit presentation of the evidence regarding "third-party innocence"); Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996) (holding scientific evidence unrelated to the defendant's guilt was irrelevant and inadmissible). Additionally, the theory that wrongful conviction invalidates the imposition of the death penalty is wholly without support and therefore mandamus is appropriate. In re State ex rel. Rnbinson,'l16 S.W.3d 115, 117 (Tex. App.-Houston [14th Dist.] 2002, orig. proceeding) (holding void a trial court's order to compel psychological examinations of child witnesses because order was beyond the trial court's scope of authority). Lastly, were Respondent to grant the relief Green seeks, the order would be void because he lacks the authority to prohibit the State

9

from seeking the death penalty against Green or for dismissing the prosecution. State ex. ReI.

Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) ("Trial judges do not enjoy

the freedom to ignore the law."); Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001)

(holding the trial court lacked authority to dismiss prosecution "with prejudice" and

therefore the error was void). Furthermore, neither the State nor defense have waived their

..

right to a jury trial, but Respondent seeks to reach a determination on Green's guilt for the

capital murder prior to the State's presentation of evidence. State ex rel. Curry v. Carr, 847

S.W.2d 561, 562 (Tex. Crim. App. 1993) (granting mandamus to set aside an order denying

the State's request to have the defendant tried by a jury).

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PRAYER FOR RELIEF

The State respectfully requests this Court reconsider and grant, on its own initiative,

the State's motion for leave to file application for writ of mandamus and prohibition

pursuant to Rule 72.2.

Respectfully submitt d,

~

ALAN CUR Assistant District Attorney Harris County, Texas

1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826

TBC No. 05263700

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to the

following addresses on December 7, 2010:

Hon. Kevin Fine

Presiding judge, 177th District Court

Greg Abbott

Office of the Attorney General

1201 Franklin, Suite 1900 Houston, Texas 77002

P.O. Box 12548

Austin, Texas 78711-2548

John Keirnan Attorney at Law

917 Franklin Street, #550 Houston, Texas 77002

Jeffrey Van Horn

State Prosecuting Attorney P.O. Box 12405

Austin, Texas 78711

Robert K. Loper Attorney at Law

111 West 15th Street Houston, Texas 77008

Richard Burr

Attorney at Law

2307 Union Street Houston, Texas 77007

ALAN CU~\...I.'-""''_'''' Assistant District Attorney Harris County, Texas

1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826

TBC No. 05263700

Date: December 7,2010

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