Ex Parte Chi

• Decision Date: 09 June 2008
• Docket Number: No. AP-75931.,No. AP-75930.,AP-75930.,AP-75931.
• Citation: 256 S.W.3d 702
• Parties: Ex Parte Heliberto CHI, Applicant.
• Court: Texas Court of Criminal Appeals

256 S.W.3d 702

Ex Parte Heliberto CHI, Applicant.

No. AP-75930.

No. AP-75931.

Court of Criminal Appeals of Texas.

June 9, 2008.

Wes Ball, Arlington, David R. Dow, Houston, for Appellant.

Steven W. Conder, Asst. Crim. Dist. Atty., Fort Worth, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.

OPINION

HERVEY, J., announced the judgment of the Court and delivered an opinion in which KELLER, P.J., and MEYERS and KEASLER, JJ., joined.

Chi is a death-row inmate who had an execution date set when he filed a subsequent (second) habeas corpus application under Article 11.071, Tex.Code Crim. Proc, and a motion for leave to file a petition for a writ of prohibition. These pleadings contain a claim that Texas' lethal-injection protocol violates the Eighth Amendment's prohibition against cruel and unusual punishments and a request that Chi's execution be prohibited under Texas' current lethal-injection protocol.

In Ex parte Alba, the applicant challenged Texas' lethal-injection protocol in a subsequent habeas corpus application. See Ex parte Alba, 256 S.W.3d 682, 683-84 (Tex.Cr.App.2008). We held that this is not a cognizable habeas corpus claim under Article 11.071, and we dismissed Alba's subsequent habeas corpus application. See Alba, 256 S.W.3d at 687. Pursuant to Alba, we also dismiss Chi's subsequent habeas corpus application in Ex parte Chi, No. WR-61,600-02.

With respect to Chi's petition for a writ of prohibition, Chi is required to show that he has a clear legal right to the relief that he seeks (in this case the prohibition of his execution by what he claims is an unconstitutional lethal-injection protocol) and that he has no adequate remedy at law. See State ex rel. Wade v. Mays, 689 S.W.2d 893, 897-900 (Tex.Cr.App.1985). Chi obviously meets this latter requirement, since he has no right to present his Eighth Amendment claim by way of appeal or habeas corpus application under Article 11.071. The issue, therefore, is whether Chi has a clear right to the relief that he seeks. See Wade, 689 S.W.2d at 897 (entitlement to writ of prohibition must be shown to be "clear and indisputable," or "unequivocal," or "abundantly clear") and at 898 n. 11 (party seeking writ of prohibition "must make a clear showing that under certain facts, the law is subject to but one interpretation; he then must show that undisputed facts exist which entitle him unequivocally to a right flowing from that single interpretation").¹

Chi's petition for writ of prohibition is predicated on the United States Supreme Court's decision in Baze v. Rees, 553 U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).² In Baze, the United States Supreme Court by a 7-2 vote upheld Kentucky's lethal-injection protocol, which is materially indistinguishable from Texas' lethal-injection protocol.³ In addition, like the petitioners in Baze, Chi's principal claim in this proceeding is "the risk of pain from maladministration of a concededly humane lethal injection protocol."⁴ And, like the petitioners in Baze, Chi's maladministration claim focuses on the possibility that the first drug in the lethal-injection protocol, sodium thiopental (also known as Pentathol), will not be properly administered.⁵ The United States Supreme Court in Baze clearly and unambiguously upheld Kentucky's lethal-injection protocol. See Baze, 128 S.Ct. at 1533-1534 (Kentucky's lethal-injection protocol does not create substantial risk that first drug in the protocol will be improperly administered), and at 23 ("Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, the procedure will result in a painless death. The risks of maladministration they have suggested—such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel—cannot remotely be characterized as `objectively intolerable.' Kentucky's decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment.").⁶

Chi also points to a possible maladministration of a lethal-injection protocol during an execution of a person named Angel Diaz in Florida. See Chi's Petition for Writ of Prohibition at 11-14. This, however, is insufficient to establish an Eighth Amendment violation. See Baze, 128 S.Ct. at 1531 ("an isolated mishap alone does not give rise to an Eighth Amendment violation"); O'Brien, 190 S.W.3d at 682 (Cochran, J., concurring) ("Courts cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur") (emphasis in original).

Concluding that Chi's Eighth Amendment claim has no merit, we decide that Chi cannot establish that he has a clear right to the relief that he requests. Chi's petition for writ of prohibition is denied and his stay of execution is lifted.

COCHRAN, J. filed a concurring opinion in which WOMACK, J., joined.

PRICE, J., filed a dissenting opinion.

JOHNSON, J., filed a dissenting opinion in which HOLCOMB, J., joined.

COCHRAN, J., filed a concurring opinion in which WOMACK, J., joined.

I agree that applicant is not entitled to relief on either his application for a writ of habeas corpus or his petition for a writ of prohibition because he has not made a prima facie showing of a constitutional violation. I believe that applicant's writ application could be recharacterized by this Court as an original writ under the Texas Constitution.¹ Regardless, further factual development by this applicant under this particular pleading could not result in any relief because he has not made a sufficient showing of any constitutional violation. He has pled facts, and offered evidence of those pleaded facts, that bring him within the ambit of the majority decision in Baze v. Rees,² and our prior decision in Ex parte O'Brien.³ Furthermore, we have received a post-Baze supplemental response from the Texas Department of Criminal Justice (TDCJ) that graphically demonstrates the similarities between the Texas lethal-injection protocol and that of Kentucky which was upheld by the United States Supreme Court in Baze.⁴ TDCJ's comparison is based primarily upon data in the TDCJ Execution Procedural Manual which was attached to applicant's Petition for Writ of Prohibition.⁵ Thus, the underlying data that negates applicant's claim of a constitutional violation was supplied by applicant himself. Furthermore, applicant, like the petitioner in Baze, fails to articulate a readily implemented and feasible alternative to the Texas lethal-injection protocol such that the failure to implement that new, significantly superior procedure might constitute cruel and unusual punishment.⁶ Finally, applicant discusses the "botched" execution of Angel Diaz in Florida as some evidence that the same could happen to him. But Texas is not Florida, and applicant has failed to show that any lethal-injection execution in Texas has presented the same problems as that in the Diaz case. At any rate, "an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a `substantial risk of serious harm.'"⁷

Therefore, I agree that we must dismiss the present application for a writ of habeas corpus and the petition for writ of prohibition because neither one sets out a prima facie showing of a constitutional violation.

PRICE, J., filed a dissenting opinion.

Eight months ago, the momentum of the death machine in Texas propelled us to an unseemly execution. On the same day that the United States Supreme Court agreed to examine the constitutionality of the Kentucky protocol for lethal injection,¹ Michael Richard died on the gurney before the mechanism could grind to a halt. The Supreme Court has since spoken, and a plurality has provided us with a standard for measuring the constitutionality of our own execution protocol.² The question for our consideration is whether our own lethal-injection protocol, particularly the protocol for assuring that the first anesthetic drug is properly administered, is "substantially similar" to that in Kentucky which the plurality upheld.³ Today, a plurality of this Court dismisses two habeas corpus applications raising such a claim,⁴ holding that the claim is not cognizable under Article 11.071 of the Texas Code of Criminal Procedure, our capital habeas corpus statute.⁵ In my view, the claim falls comfortably within the ambit of the statute. Nevertheless, the Court insists on withholding the rudiments of due process and due course of law in its equally unseemly haste to crank the machine back up. I cannot go along with this.

COGNIZABILITY UNDER ARTICLE 11.071

I have argued in the past that a challenge to our lethal-injection protocol ought to be entertained in a subsequent application for writ of habeas corpus under Section 5 of Article 11.071.⁶ I have also dissented to the Court's unwillingness in the past even to consider "whether a challenge to the lethal-injection protocol actually constitutes a post-conviction application for writ of habeas corpus at all, under Article 11.071, since it may not constitute a challenge to `a judgment imposing a penalty of death.'"⁷ Today the Court finally reaches the question of cognizability of such a claim and concludes that it is not cognizable. I disagree.

"The writ of habeas corpus is a procedural device for subjecting executive, judicial, or private restraints on liberty to judicial scrutiny."⁸ Even a death-row inmate retains certain residual—albeit necessarily limited, but nevertheless constitutionally protected—liberty interests.⁹ Among those is the interest in not having the executive branch of government, in the form of the Texas Department of Criminal Justice, Correctional Institutions...