Ex parte Graham

• Decision Date: 02 June 1993
• Docket Number: No. 17568-03,17568-03
• Citation: 853 S.W.2d 565
• Parties: Ex parte Gary GRAHAM.
• Court: Texas Court of Criminal Appeals

Page 565

853 S.W.2d 565

Ex parte Gary GRAHAM.

No. 17568-03.

Court of Criminal Appeals of Texas,

En Banc.

June 2, 1993.

Order July 5, 1993.

Michael E. Tigar, Austin, Richard Burr, New York City, Anthony S. Haughton, Robert C. Owen and Mandy Welch, Houston, for applicant.

John B. Holmes, Jr., Dist. Atty., Roe Wilson, Asst. Dist. Atty., Houston, Robert S. Walt, Asst. Atty. Gen. and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ORDER

MEYERS, Judge.

On our own motion and pursuant to rule 213(b) of the Texas Rules of Appellate Procedure, this day we reconsider, in part, our original ruling in Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993).

On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, punishment was assessed at death. This Court affirmed applicant's conviction on direct appeal. Graham v. State, No. 68,916 (Tex.Crim.App. June 12, 1984) (unpublished). On April 27, 1993, this Court denied applicant relief in a habeas corpus petition which contained issues similar to those presented today. Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993). The trial court has scheduled applicant's execution to be carried out on or before sunrise, June 3, 1993.

In the instant cause, applicant filed a motion requesting this Court reconsider, our initial denial of relief. See Tex.R.App.Proc. 213(b). Applicant presents four grounds for reconsideration. In his first ground, applicant requests a stay of execution pending the resolution of Johnson v. Texas, No. 92-5653 (U.S.Sup.Ct., pending). Secondly, applicant requests this Court file and set his petition to determine the trial court's reliance on Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion) and Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App.1984). Applicant's third and fourth grounds for reconsideration in his petition concern constitutional protections against the execution of an "innocent person." Upon due consideration, we refuse to consider the merits of applicant's second, third and fourth grounds for reconsideration. See Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993). However, on our motion and for reasons which will become apparent, applicant's execution is stayed. See Tex.R.App.Proc. 213(b).

This petition represents the worst-case scenario--the possibility that a person might be unconstitutionally punished by the legal system. That is, applicant could be put to death tomorrow for something which is, within thirty days, determined to be unconstitutional. With this much at stake, the State will wait thirty days.

In Graham v. Collins, the Supreme Court refused to decide the question of youth as a mitigating factor because, to do so would necessarily create a new rule which is not cognizable under federal habeas law. Graham, 506 U.S. 461, ----, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993). Soon, the Supreme Court will squarely decide this question in Johnson v. Texas, but any relief accorded to Johnson will be provided only for litigants on direct review to the Supreme Court and not the applicants in federal habeas corpus petitions. Our position on the constitutionality of this issue has been clear. The question of youth as a mitigating factor can be considered in a constitutional manner within the scope of our special issues. Delk v. State, 855 S.W.2d 700 (Tex.Crim.App.1993); Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App. Feb. 3, 1993); Nelson v. State, 848 S.W.2d 126 (Tex.Crim.App.1992). However, if the Supreme Court finds we have erred in our constitutional analysis, and Johnson was unconstitutionally sentenced due to the Texas system's failure to allow juries to consider youth as a mitigating factor, then not only will Johnson be entitled to relief but, possibly, so too will Graham. The question of Graham's youth might be cognizable under our State habeas corpus jurisprudence as a right not previously recognized under Ex parte Chambers, 688 S.W.2d 483 (Tex.Crim.App.1984) (Campbell, J. concurring, joined by PJ. McCormick, and JJ. Davis, Clinton, Teague and Miller). Accordingly, applicant's execution is stayed for 30 days pending the resolution of Johnson v. Texas by the United States Supreme Court.

IT IS SO ORDERED.

MALONEY, Judge, concurring and dissenting.

This case is before us on a motion to stay issuance of the death mandate and to reconsider on our own motion our order of April 27, 1993, denying relief on applicant's postconviction writ of habeas corpus under TEX.CODE CRIM.PROC.ANN. art. 11.07. At the outset it should be noted that the trial judge in making findings did not conduct an evidentiary hearing, but alternatively rendered his findings on the basis of affidavits as he was authorized to do under TEX.CODE CRIM.PROC.ANN. art. 11.07. By order entered today, this Court has granted a stay of the mandate pending further orders of this Court to which action I concur; but has refused to grant further relief to which refusal I dissent.

In Herrera v. Collins, 506 U.S. 390, ----, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993), the United States Supreme Court recognized, albeit arguendo, that there may be cases in which the applicant's showing of actual innocence is sufficiently high to entitle him to relief under the Eighth Amendment:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. ¹

Id (emphasis added).

As to capital cases where newly discovered evidence is presented in support of a claim of actual innocence, this Court should establish a threshold standard to be applied by us in reviewing such a claim. In my opinion, the threshold question should be whether the newly discovered evidence, if true, would create a doubt as to the efficacy of the verdict to the extent that it undermines our confidence in the verdict and that it is probable that the verdict would be different. Once this threshold question of actual innocence is satisfactorily answered, due process demands the attention of a forum for further consideration of the evidence.

As applicant points out, the three mechanisms conceivably available under Texas law for addressing such a claim fail. A motion for new trial based upon newly discovered evidence is not available more than thirty days after conviction. See TEX.R.APP.P. 31. Further, this Court has previously held that newly discovered evidence is not cognizable in an application for postconviction writ of habeas corpus. Ex parte Binder, 660 S.W.2d 103, 105-106 (Tex.Crim.App.1983). ² Finally, the process of seeking executive clemency is inadequate for testing the credibility of newly discovered evidence of innocence due to the lack of formal procedures controlling its use. See TEX. CONST. art. IV, § 11; 37 TEX.ADMIN.CODE §§ 143.41, 143.43, 143.51, 143.57 et seq.

Although the United States Supreme Court has suggested that executive clemency provides an adequate forum for claims of actual innocence, Justice Blackmun, joined by Justices Stevens and Souter, have recognized the fallacies in that contention:

III

'The Eighth and Fourteenth Amendments, of course, are binding on the States, and one would normally expect the States to adopt procedures to consider claims of actual innocence based on newly discovered evidence. See Ford v. Wainwright, 477 U.S. at 411-417 [106 S.Ct. 2595, 2602-06, 91 L.Ed.2d 335 (1986) ] (plurality opinion) (minimum requirements for state-court proceeding to determine competency to be executed). The majority's disposition of this case, however, leaves the States uncertain of their constitutional obligations.

A

Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The majority correctly points out: "A pardon is an act of grace." Ante, at 22 . The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, we explicitly rejected the argument that executive clemency was adequate to vindicate the Eighth Amendment right not be executed if one is insane. 477 U.S., at 416 . The possibility of executive clemency "exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless." Solem v. Helm, 463 U.S. 277, 303 [103 S.Ct. 3001, 3016, 77 L.Ed.2d 637] (1983).

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 1 Cranch 137, 163 (1803). If the exercise of a legal right turns on "an act of grace," then we no longer live under a government of laws. "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia State Board of Education v. Barnette, 319 U.S....