Opinion
NO. WR-84,322-01
02-08-2017
EX PARTE JAIME PIERO COLE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1250754-A IN THE 230TH DISTRICT COURT FROM HARRIS COUNTY ALCALA, J., filed a dissenting opinion. DISSENTING OPINION
I respectfully dissent from this Court's order that denies the application for a post-conviction writ of habeas corpus filed by Jaime Piero Cole, applicant, who seeks relief from his sentence of death for capital murder. This Court's order rejects applicant's seventh and eighth claims for relief, in which he challenges the constitutionality of Texas's system for imposing a death sentence, without reviewing the merits of those claims. The basis for this Court's ruling as to these claims is that they should have been litigated on direct appeal, and, thus, they are now procedurally barred in the instant habeas proceeding. As I have indicated previously in similar situations, I would not reject these claims on procedural grounds, and instead I would permit applicant to litigate his constitutional challenges to his death sentence on the merits at this juncture. See, e.g., Ex parte Robinson, No. WR-81,583-01, 2016 WL 6610373, at *6 (Tex. Crim. App. Nov. 9, 2016) (not designated for publication) (Alcala, J., dissenting) (suggesting that procedural bar should not apply to claim raised on habeas when "'direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas proceeding'") (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)).
In his seventh claim, applicant asserts that his death sentence is unconstitutional "because it was assigned based on Texas' arbitrary system of administering the death penalty" in light of geographic and racial disparities in the imposition of death sentences. In his eighth claim, applicant contends that his sentence "was arbitrarily and capriciously assigned based on the jury's answer to the unconstitutionally vague future-dangerousness issue." Although applicant attempted to litigate some of these issues through pretrial motions in the trial court, these types of as-applied challenges to applicant's death sentence are not ripe until after he has been sentenced to death because his trial for capital murder could result in a life-without-parole sentence or a lower punishment on a lesser-included offense. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909, 911-12, 919 (Tex. Crim. App. 2011) (conditionally granting mandamus relief to the State to prevent pretrial hearing and ruling on defendant's motion raising as-applied challenge to constitutionality of Texas's statutory death-penalty scheme, and reasoning that pretrial consideration of his complaint was improper because defendant had "not been convicted of anything," and thus his complaint was "entirely hypothetical" at that stage; such a challenge "can only be made when and if [the defendant] has been convicted and sentenced to death"). Further, in Lykos, this Court reasoned that, with respect to an as-applied challenge to Texas's death-penalty scheme, such a complaint must be "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." Id. at 910. Because a challenge to a defendant's death sentence is not ripe until after he has been sentenced to death, this Court's instant holding places a burden on a capital defendant to object and present evidence supporting his contentions during an extremely short window of time that occurs after the judge imposes a death sentence against him in open court but before the judge enters his written judgment. This places a heavy burden on a defendant's trial counsel to be prepared to assert objections and present evidence establishing that (1) a defendant's death sentence was unconstitutional because it was assigned based on Texas' arbitrary system of administering the death penalty in light of geographic and racial disparities in the imposition of death sentences, and (2) the defendant's death sentence was arbitrarily and capriciously assigned based on the jury's answer to the unconstitutionally vague future-dangerousness issue.
I conclude that this is too heavy a burden to impose upon trial counsel during the narrow window of time that occurs after a defendant is sentenced to death but before the conclusion of the trial proceedings. I also conclude that it would serve no purpose to require counsel to present these complaints at that juncture, given that a habeas corpus proceeding is generally recognized as a proper vehicle for litigating constitutional complaints that depend on evidence from outside the normal trial record. Counsel should be permitted, as here, to present these types of challenges in an initial habeas proceeding at a time when he can fully compare the trial record evidence that pertains to his allegations with extra-record evidence that would support his contentions.
I would, therefore, remand this application to the habeas court for further proceedings as to applicant's seventh and eighth claims. Accordingly, I respectfully dissent from this Court's denial of relief. Filed: February 8, 2017 Do Not Publish