Ex parte White

506 S.W.3d 39

EX PARTE Garcia Glen WHITE, Applicant

NO. WR-48,152-08

Court of Criminal Appeals of Texas.

Delivered: November 2, 2016

Patrick F. McCann, Attorney at Law, Houston, TX, for Appellant.

Lynn Hardaway, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

KELLER, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, RICHARDSON, YEARY and NEWELL, JJ., joined.

In this death-penalty case, in a subsequent habeas application, applicant claims that, if certain newly discovered scientific evidence had been available at trial, it would likely have changed the jury's answers to the special issues. Applicant claims that this new evidence entitles him to relief under Article 11.073.¹ We conclude that it does not, because evidence that would have changed only punishment does not satisfy Article 11.073's requirement that the new evidence show that applicant "would not have been convicted." Consequently, we dismiss the application.

I. BACKGROUND

Applicant filed a previous application in January 2009, and he filed the current application in January 2015. He now alleges that a scientific paper written in 2009 indicates that a regular user of cocaine has a high probability of developing or experiencing psychotic symptoms.² He contends that this evidence would have changed the jury's or a juror's answers to one of the special issues. In our file-and-set order, we said, "By its plain language, Article 11.073 does not seem to apply to newly discovered scientific evidence affecting only the punishment stage of trial."³ Concluding that we needed to address this issue before ordering other proceedings on applicant's claim, we filed and set the application and ordered the parties to file briefs on "whether new scientific evidence presented pursuant to Article 11.073 can affect only punishment phase evidence."⁴ Applicant, the State, and two amici on behalf of applicant⁵ have filed briefs.

II. ANALYSIS

A. Meaning of the Statute

1. The Statutory Language and General Principles of Construction

Among other things, Article 11.073 requires an applicant to show that, "had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted."⁶ Applicant concedes that, "by its plain language, article 11.073 does not appear to apply to newly discovered evidence that would affect the punishment phase of a capital trial." He argues, though, that we are constitutionally required to allow challenges, under the statute, to punishment in a death-penalty case. The amici claim that the pertinent language of the statute can be construed to apply to death-penalty punishment determinations.

In construing a statute, we give effect to the plain meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.⁷ In determining plain meaning, we consult dictionary definitions, apply the rules of grammar, and consider words in context.⁸ If the statutory language is ambiguous or leads to absurd results, we can consider extratextual factors such as the object sought to be attained, the legislative history, and the consequences of a particular construction.⁹

2. "Would Not Have Been Convicted" versus "Would Have Received Different Punishment"

TCDLA amicus contends that the word "convicted" in Article 11.073 should be interpreted in light of the meaning that we have given to the word "conviction" and that the word "conviction" was construed in the habeas context in Ex parte Evans¹⁰ to include both the judgment of guilt and the assessment of punishment. OCFW amicus contends that "convicted" must be interpreted in light of the meaning of the word "conviction" as it appears in Articles 11.07 and 11.071 and that, in those contexts, the word is construed as encompassing both guilt and punishment.¹¹ It is true that legal dictionaries have sometimes referred to "convicted" by saying "See Conviction,"¹² and definitions of "conviction," though generally referring to guilt, sometimes include the assessment of punishment.¹³ It is also true, though, that the word "convicted" is more likely to refer solely to guilt than the word "conviction" is.¹⁴

But even if the term "convicted" includes the assessment of punishment, the amici's claims fail because of the context in which the word "convicted" is used in the statute. Evans was concerned with statutory language that referred to a challenge to an existing conviction.¹⁵ Likewise, Articles 11.07 and 11.071 are concerned with seeking relief from an existing conviction.¹⁶ A challenge to a sentence would necessarily be a challenge to an existing conviction.¹⁷ But the language in the statute before us—"would not have been convicted"—plainly refers to any possible conviction on the charges. That is, the question is whether the applicant would have been convicted at all of the charged offense. Even if an applicant proves that he would have received a different punishment for the charged offense, he has failed to establish that he "would not have been convicted." From the language and context of the statute alone, we conclude that the statute is unambiguous in requiring that a claim under Article 11.073 be one that undermines the verdict or finding of guilt.¹⁸

We reached the same conclusion regarding identical language in the DNA statute.¹⁹ To obtain DNA testing under Chapter 64, a person must show, among other things, "by a preponderance of the evidence that ... the person would not have been convicted if exculpatory results had been obtained through DNA testing."²⁰ In Ex parte Gutierrez , we emphasized the word "convicted" in the phrase "would not have been convicted" and held that Chapter 64 "does not authorize testing when exculpatory results might affect only the punishment or sentence."²¹ A prior construction of an identical phrase in another statute is evidence that the phrases mean the same thing.²²

Gutierrez 's construction of Chapter 64 occurred two years before Article 11.073 was enacted, so the legislature had notice of that construction when it chose to use identical wording.²³ Both Chapter 64 and Article 11.073 are remedial statutes that concern scientific evidence, and the presence of identical standards of proof in both statutes suggests that the legislature contemplated that these statutes would sometimes work together. A showing by a mere preponderance of the evidence that an applicant would not have been convicted if exculpatory DNA results are obtained is not sufficient to warrant relief under this Court's more onerous actual-innocence jurisprudence.²⁴ But Article 11.073 affords an avenue for relief under the preponderance standard.²⁵ The fact that these statutes are not only similar in purpose and operation, but also appear designed to work together, with the identical phrase accomplishing that cooperation, strongly supports interpreting the same phrase to mean the same thing.²⁶

3. Community Supervision and Deferred Adjudication

TCDLA also claims that the word "convicted" must be accorded a broad meaning to account for the fact that Article 11.073 provides a remedy for Article 11.072 filers, which include individuals on regular community supervision and deferred adjudication.²⁷ TCDLA claims that neither type of 11.072 filer has a final conviction. While not considered a final conviction for the purpose of Article 11.07²⁸ and many enhancement statutes, a judgment imposing regular community supervision is in fact a conviction with an assessed sentence, though that sentence is not imposed, and such a conviction is final for some purposes.²⁹ Consequently, nothing in our construction today prevents a person on regular community supervision from seeking relief under Article 11.073 as long as the new scientific evidence undermines the verdict or finding of guilt.³⁰

And even if the meaning of the word "convicted" did include defendants who were given regular community supervision or deferred adjudication, their new scientific evidence would still need to pertain to the verdict or finding of guilt in order for the statute to apply. The words "would not have been convicted" would prohibit challenges to a sentence, a fine,³¹ the term of community supervision, and a condition of supervision.³²

4. Lesser-Included Offenses versus Punishment Mitigating Issues

TCDLA also contends that restricting Article 11.073's application to the guilt phase of trial "would draw an arbitrary distinction between new forensic evidence which is relevant to a lesser-included offense and new forensic evidence which is relevant to a mitigation issue or aggravating factor." But the legislature is vested with broad power to classify crimes and punishments and can choose whether to define something as an element of the crime or as a punishment issue.³³ The issue of "sudden passion" illustrates how designating an issue as a punishment mitigator instead of as an element of an offense can cause an issue that would have otherwise existed to disappear altogether in a particular prosecution. Sudden passion used to be an element that distinguished a lesser-included offense of voluntary manslaughter from murder (and capital murder), but now it is a punishment mitigator for murder.³⁴ Under the old law, if evidence at the guilt phase of a capital-murder trial raised sudden passion, then the lesser-included offense of voluntary manslaughter could be submitted to the jury at that phase of trial.³⁵ Under current law, however, sudden passion would never be an issue in the guilt phase of any prosecution,³⁶ and sudden passion is not an issue submitted at the punishment phase of a capital-murder case,³⁷ so a defendant on trial for capital murder could not use the sudden passion issue at either guilt or punishment. So, in capital murder cases, the change in law eliminated the ability of defendants at trial to use the sudden-passion issue to secure a jury finding that would...