Opinion
No. WR-46,974-02
August 11, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. 1995-CR-4325 from the 227th District Court of Bexar County.
PER CURIAM. PRICE, J., dissents for the reasons expressed in his dissent in Ex parte O'BRIEN, 190 S.W.3d 677 (Tex.Crim.App. 2006). JOHNSON, J., filed a dissenting statement.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5, and a Motion for Stay of Execution. Applicant asserts the chemical protocol used by the State of Texas could amount to the infliction of cruel and unusual punishment in violation of the United States Constitution. Applicant was convicted of capital murder on July 25, 1997. This Court affirmed the conviction and sentence on direct appeal on October 27, 1999. Hinojosa v. State, 4 S.W.3d 240 (Tex.Crim.App. 1999). On July 20, 1999, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Hinojosa, No. WR-46,974-01 (Tex.Crim.App. January 31, 2001). Applicant's subsequent application and motion for stay were filed in the convicting court on June 30, 2006. We have reviewed applicant's second subsequent application and find that it should be dismissed. Ex parte O'Brien, 190 S.W.3d 677 (Tex.Crim.App. 2006). Applicant's motion for stay of execution is denied. IT IS SO ORDERED.
DISSENTING STATEMENT
We still have not answered the questions about what legal procedures are appropriate for challenging the execution protocol. Are the provisions of Article 11.071 the proper vehicle to challenge the constitutionality of the execution protocol used in conducting an execution in Texas? If not, what is the proper vehicle? What is the proper legal method for presenting facts regarding and challenging the execution protocol used in conducting an execution in Texas? The issue of the proper legal procedure for challenges to execution protocols must be addressed at some point. We recently said, albeit in an unpublished opinion, that a challenge is not ripe until the execution is "imminent." Doyle v. State, No. 74, 960 (Tex.Crim.App., delivered May 10, 2006). "Imminent" means "likely to occur at any moment; impending." Webster's Encyclopedic Unabridged Dictionary of the English Language (Gramercy Books 1989). The concurrence says that the challenge is ripe once a death date is set, although the Court has not said that. Death dates are set months in the future and so are not "imminent" when set. If both positions are taken as authoritative, both the applicant and the Court are caught in a Catch-22; the challenge cannot be raised or heard until it is "imminent," yet it must be raised and heard as soon as the death date is set. Thus these important issues can never be reviewed. Accepting arguendo that the current mixture of drugs does not violate constitutional protections, the issue must still be addressed. We cannot say that the protocol will never change. A different protocol may indeed violate constitutional guarantees. We will be then faced with the same legal issues we face today; they will still be unresolved and unresolvable because such challenges will always be both unripe and over-ripe, and the question of the proper vehicle for bringing such challenges will still be undecided. I respectfully dissent to the Court's failure to address these issues.