State Ex Rel. Patricia R. Lykos v. the Honorable Kevin Fine

• Decision Date: 12 January 2011
• Docket Number: AP–76,471.,Nos. AP–76,470,s. AP–76,470
• Citation: 330 S.W.3d 904
• Parties: STATE of Texas ex rel. Patricia R. LYKOS, Relator,v.The Honorable Kevin FINE, Respondent.
• Court: Texas Court of Criminal Appeals

330 S.W.3d 904

STATE of Texas ex rel. Patricia R. LYKOS, Relator,

v.The Honorable Kevin FINE, Respondent.

Nos. AP–76,470

AP–76,471.

Court of Criminal Appeals of Texas.

Jan. 12, 2011.

Richard H. Burr, Houston, for Appellant.Alan Curry, Asst. D.A., Houston, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, and HERVEY, JJ., joined.

The real party in interest in this writ of mandamus and prohibition action is John Edward Green, Jr., the defendant in a pending capital murder case. Mr. Green has been charged with the capital murder of Tina Vo, and the State has given notice of its intent to seek the death penalty. The case has not gone to trial and no one knows what evidence the State will offer at trial. No one knows whether a jury will convict Mr. Green of capital murder if he is tried. No one knows whether Mr. Green will be sentenced to death by a jury of his peers if that jury should find him guilty of capital murder.

Nonetheless, on April 2, 2010, Mr. Green filed an “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional as Applied.” In that motion he asserts that Article 37.071, the Texas death-penalty sentencing statute, is unconstitutional because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.” ¹ On November 22, 2010, the State, acting through the Harris County District Attorney as Relator, filed a Motion for Leave to File Petition for Writ of Prohibition and Petition for Writ of Mandamus requesting this Court to prohibit a pretrial evidentiary hearing on Mr. Green's motion and to prohibit the trial judge from granting such a motion before the State has had an opportunity to prove its charged indictment before a jury. We denied the State's motion on November 29, 2010 because no such hearing had commenced in the district court and this Court could not know what evidence might be offered at such a hearing. The State's request was premature.² We stated that

it appears that much of the “evidence” respondent seems to want presented at this hearing is not relevant to the question at issue. However, because we cannot know whether relevant evidence will be presented, we find that relator's request that this Court order respondent to withdraw his order setting a hearing is premature and currently without a basis.³

On December 6, 2010, the trial judge of the 177th District Court in Harris County commenced an evidentiary hearing on Mr. Green's motion, and several witnesses testified to general data, issues and concerns about the death penalty in the United States and about some specific aspects of the Texas death-penalty statutory scheme. That hearing continued on December 7th. On that same day, the State filed a Motion for Reconsideration on the Court's Own Initiative and requested a stay in the proceedings. Finding that “[w]e now know what witnesses are going to testify,” and based on that additional information, we granted a stay of the proceedings in the trial court on December 7, 2010, to give all of the interested parties and the trial judge an opportunity to respond to the State's original request for leave to file an application for writ of mandamus or prohibition.

Based upon the filings that we presently have before us,⁴ we conditionally grant the State mandamus and prohibition relief because it has established both that (1) it has no other adequate legal remedy; and (2) it has a “clear right to the relief sought” and the merits of its legal position are “beyond dispute.” ⁵

A. What is This Evidentiary Hearing About?

Mr. Green's amended motion seeks a pretrial ruling from the trial judge declaring “Article 37.071, § 2 of the Texas Code of Criminal Procedure unconstitutional as applied pursuant to the Eighth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 13 of the Texas Constitution.” ⁶ Mr. Green points to a March 26, 2010 hearing in which the trial judge set out certain issues to be addressed in a pretrial evidentiary hearing that the judge proposed:

The issue or issues that must be addressed are, first, whether or not it is a violation of due process to execute an innocent defendant; second, it must be determined whether or not the State of Texas under [art. 37.071] has, in fact, executed an innocent person; and finally, if they have executed an innocent person, does the defendant ... have a basis to raise a claim based on these facts.These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time. They are issues that opponents of capital punishment have been raising since the mid-nineteenth century.⁷ Certainly the Texas Legislature is an appropriate forum in which to debate these public policy issues.⁸ That is also an appropriate forum to decide whether to abolish the death penalty in Texas or to enact statutory or constitutional improvements to the current legislative system. The Legislature will be meeting in the very near future and is fully competent to address these issues. The trial judge correctly questioned whether a pretrial hearing in one particular capital murder proceeding, subject to the presentations only of the two particular parties before it—one criminal defendant and one prosecuting authority—is an appropriate forum to fully develop and debate these general issues. And, implicit in the trial judge's question, is the legal inquiry whether those general public-policy issues can or should be debated in a single criminal pretrial proceeding before the specific defendant is even placed in jeopardy of being convicted or sentenced.

In his amended motion, Mr. Green first argues that he states a pretrial Eighth Amendment claim based upon whether the capital-punishment procedures or factors give rise to a “substantial,” “unacceptable,” “significant,” or “intolerable” risk of an unreliable outcome or infliction of harm.⁹ Indeed, every defendant who pleads “not guilty” runs some risk of a “wrongful” conviction—the question is whether the entire criminal justice system is so fraught with errors, incompetence, or fraud that one should not be subject to its actions. Mr. Green then asserts that he will set out, in both his pleading and his pretrial evidentiary hearing, risk “factors that, in total or in combination, affect every person facing capital charges in Texas who claims to be innocent.” This sounds remarkably like a facial attack upon the Texas statutory death-penalty scheme.

1. Is this a facial challenge?

If Mr. Green is mounting a facial challenge to the Texas death-penalty scheme, then he must prove that the system can never be constitutionally applied to any Texas defendant charged with capital murder, no matter what the individual facts and circumstances of the particular case. A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute operates unconstitutionally in all of its applications.¹⁰ In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, rather than how it operates in practice.¹¹ Thus, if Mr. Green is challenging the constitutionality of Article 37.071 as it is written, he may not offer evidence to show how it operates in actual practice,¹² as such evidence is irrelevant to a facial challenge, which asserts that there are no factual circumstances under which the statute would be constitutional. ¹³ That is, a facial challenge to a statute is extremely difficult to prove as all courts presume that the Legislature enacted a constitutional law and all courts must seek to uphold the facial constitutionality of legislative enactments.¹⁴

In the context of capital punishment, the United States Supreme Court has already stated that, “in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity.” ¹⁵ It bears noting that no provision of the current Article 37.071 has been held unconstitutional by the Supreme Court or this Court, although that statute has been attacked many times.

Furthermore, “the constitutionality of a statute is not to be determined in any case unless such a determination is absolutely necessary to decide the case in which the issue is raised.” ¹⁶ Here, Mr. Green has not been convicted of anything, much less has he been sentenced pursuant to Article 37.071, § 2.¹⁷ “We have held that it is incumbent upon an accused to show that he was convicted or charged under that portion of the statute the constitutionality of which he questions. We do not write declaratory judgments.” ¹⁸ We therefore must presume Mr. Green is not attempting to litigate the facial constitutionality of Article 37.071, because then he would be seeking, in his own case, a prohibited declaratory judgment concerning Article 37.071.

2. This is a very strange as-applied challenge.

A litigant raising only an “as applied” challenge concedes the general constitutionality of the statute, but asserts that the statute is unconstitutional as applied to his particular facts and circumstances. ¹⁹ Because a statute may be valid as applied to one set of facts and invalid as applied to a different set of facts, a litigant must show that, in its operation, the challenged statute was unconstitutionally applied to him; that it may be unconstitutional as to others is not sufficient (or even relevant).²⁰

An “as applied” challenge is brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.²¹ “ ‘Since [a contention that a statute is unconstitutional as applied] requires a recourse...