Ex parte Ricky Nolen McGINN, Applicant, 54 S.W.3d 324

McCORMICK, P.J., delivered a concurring opinion, in which KELLER and KEASLER, JJ., joined. This applicant’s 11 th'hour third habeas corpus application is an abuse of the writ and has been filed for purposes of delay. Applicant’s current writ contains a claim that could have and should have been raised in applicant’s initial habeas corpus application. I, therefore, concur in the Court’s decision to dismiss applicant’s third habeas corpus application.

In 1995 applicant, who at the time of this offense had sexually assaulted two women and his own three or four-year-old daughter, was convicted of the 1993 capital murder of his 12-year-old step-daughter. The evidence from the 1995 trial shows the following. Applicant murdered the victim while committing an aggravated sexual assault of her. Applicant killed the victim by hitting her several times in the head with an ax. The evidence from trial also shows the following. The victim’s mother went out of town and left applicant and the victim alone together at their home.

Applicant and the victim were alone together the entire day and applicant was the last one to see the victim alive. Later that night applicant called the sheriffs department and reported the victim missing. This occurred two to three hours after applicant claimed he realized the victim was missing. Applicant told the police that the victim went for a walk earlier that afternoon and that she never returned home. Police, friends and relatives searched the area during the night but did not find the victim. More volunteers along with several dogs arrived the next morning to search for the victim.

One of these dogs was trained to alert to the scent of a cadaver. This dog alerted to the back of one of applicant’s cars which led the police to search the car. The police found blood in various places in the car. Applicant explained that this was fish blood from when he and the victim went fishing in a stock tank the previous afternoon. Applicant claimed that he and the victim caught several fish which they threw in the back of the car. At trial, the prosecution claimed that applicant’s fish story was preposterous.

The police apparently did not believe applicant’s fish story either since they arrested applicant soon after the discovery of the blood in applicant’s car. The blood in applicant’s car turned out to be human and not fish blood. Applicant has Type 0 blood. The victim had Type A blood. The blood found in applicant’s car was Type A blood and, therefore, could not have belonged to applicant. Further testing of the blood established that it was consistent with the victim’s blood and it excluded 96.4 to 99.99 percent of the rest of the population as possible donors of the blood.

DNA typing of this blood was not possible. Hair found in one of the blood stains in applicant's car also had the same microscopic characteristics as the victim’s hair. The police found the victim’s body inside a metal culvert three days after she disappeared. She had been struck several times in the head with an ax. There also was evidence of sexual activity. The next day the police found an ax in a non-working pickup truck that belonged to applicant. This pickup truck also was located on the property where the victim was last seen alive.

Enzyme testing and PCR DNA analysis of the blood on the ax indicated a strong probability that this blood was the victim’s. Hair found in the blood on the ax also had the same microscopic characteristics as the victim’s hair. The prosecution presented other blood evidence from applicant's shoes and clothes all of which pointed to applicant’s guilt.

The prosecution presented other evidence that, when considered in its totality with the other evidence and not individually or in a vacuum, pointed to applicant’s guilt.- A semen stain was also found on the victim’s shorts and in swabs taken from her vagina during the autopsy. A pubic hair was also recovered from her vagina. The pubic hair had the same microscopic characteristics as applicant’s pubic hair. At the time of trial DNA analysis by the prosecution and the defense of the pubic hair and the semen was inconclusive except to establish that applicant was not excluded as a possible donor of the semen.

The semen and pubic hair evidence are the subjects of this, applicant’s third, habe-as corpus application. In this application applicant claims for the first time that “mitochondrial and STR DNA testing” of the semen and pubic hair evidence could provide “conclusive proof of his guilt or innocence.” Applicant also claims that this “mitochondrial and STR DNA testing” is new DNA technology that was developed since the time of his trial. Applicant, therefore, argues that he meets the

Section 5(a)(1) exception to the

Section 5(

a) procedural bar because the factual basis of his claim (i.e., the new DNA technology) “could not have been presented previously in [his] initial [habeas corpus] application.” See

Article 11.071,

Section 5(a)(1), V.A.C.C.P, and Applicant’s Memorandum In Support Of Habeas Corpus Relief at 19-20. But the record from the May 2000 hearing on applicant’s third habeas corpus application reflects that this “new” DNA technology has existed since at least 1996. Applicant filed his initial habeas corpus application in September 1997. The factual basis of the claim in applicant’s third habeas corpus application was, therefore, available to applicant when he filed his initial habeas corpus application. Applicant does not meet the

Section 5(a)(1) exception. It also should be remembered that the Legislature added

Article 11.071 in 1995 to prevent capital inmates from abusing the writ of habeas corpus like the applicant is doing here. See Ex parte Davis, 947 S.W.2d 216, 226-27 (Tex.Cr.App.1996) (McCormick, P.,J., concurring) (Article 11.071 is essentially a legislative codification of judicially created “abuse of the writ doctrine”). Applicant did not raise his “new” DNA technology claim in his initial habeas corpus application even though the claim was available.

Applicant also did not raise this precise claim in his second habeas corpus application which this Court unanimously dismissed as an abuse of the writ in March 2000. Applicant did not raise his “new” DNA technology claim until this 11 th"hour third habeas corpus application less than two weeks before his scheduled June 1, 2000, execution date even though the basis of the claim had been available for about four years.

And, during the May 2000 hearing on applicant’s third habeas corpus application, the prosecution claimed that applicant’s 11 th'hour third habeas corpus application was filed solely for purposes of delay. “Then, there was expert testimony that the [pubic] hair that was recovered exhibited the exact same identical microscopic characteristics as those of [applicant]. The jury obviously found that evidence compelling in determining that that was indeed [applicant’s] pubic hair. So, now, at the — in the last few minutes of the 11th hour, [applicant] approaches this court to have this evidence re-tested.

And as the Court can tell from looking at the record in this case, we’re talking about two exhibits out of 169 exhibits that were presented in this trial that established his guilt. For that reason, the State assures the Court that clearly this motion is brought for the immediate purpose of delay.

We’re here on the eve of the execution talking about matters that could well have been presented on many occasions in the past, matters that are presently pending in the 5th Circuit and before the Board of Pardons and Paroles.” In addition, applicant essentially claims that the “new” DNA technology could clear him of the sexual assault but not clear him of the murder. So what it all comes down to is that at best the “new” DNA technology could establish that someone else sexually assaulted the victim and applicant then murdered her.

At the May 2000 hearing on applicant’s third ha-beas corpus application, applicant argued: “In other words, D.N.A. can exonerate a person to within a 99.5 percent accuracy or establish his guilt of a crime to that same degree, according to the information I’ve seen, in addition to published reports, even as late as last night. The point being that that being the case, we have an inconclusive on two vital pieces of evidence. The reason I say they are vital is this: This is a capital murder based upon an allegation of sexual assault.

Both of the pieces of evidence I focused on, one is a pubic hair found within the vaginal cavity of the victim. Obviously, it’s not hers. It would have to have been donated by the person who committed the sexual assault. “With respect to the alleged semen stain in the shorts of the victim, once again, that was evidence which was presented and argued to the jury as being evidence of a sexual assault. If there were no sexual assault in this case, then, there would not be the aggravating factor to elevate the murder to a capital murder.

In essence, if testing were done on these two pieces of evidence which were determined to be inconclusive originally, if they were conclusively found in my client’s favor, it would exonerate him from the aggravating factor to make this capital murder, and therefore, he would become ineligible not only for the conviction of capital murder, in other words, be actually and factually innocent, but he would also be ineligible for the death penalty since the only way you can get it is to be convicted of capital murder in addition to having the two or three special issues, as the case may be depending on the time frame as the Court is well aware of the jury.

Those are matters that I think are extremely important. “Now, I’m mindful of the fact that a court, including this court, has got to look at the totality of all of the evidence in making the determination of actual and factual innocence. However, it would be our position that the two bits of evidence that focused most directly on this are the two that I focused on. There is no doubt that there was blood evidence on the vehicle that was recovered. There was blood evidence on the axe.

There was other blood evidence on clothing and other matters that were tested, and of course, that has to be taken into account with everything else, but all they go to is establishing a murder. They do not establish in and of themselves a capital murder.” “Now, the two exhibits we talked about go specifically to the question of the Sexual Assault by [applicant] which is the next issue I want to take up with the State. I’m not saying that [the victim] was not sexually assaulted.

I only represent [applicant]. [Applicant] was convicted of a murder in the course of her sexual assault, and therefore, I am directing and have directed each and every of my arguments to the fact that the evidence in this case of sexual assault by [applicant] essentially comes down to those two exhibits when you look at that issue, so to speak, in a vacuum.

Although I know the Court can’t, but when looking at the issue of sexual assault, those are, of course, the most evocative arguments.” A fair and objective reading of all the relevant materials in this case clearly indicates that applicant is abusing the Great Writ. Applicant has received all the process that any civilized society can be expected to provide him. Cf. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 338, 102 L.Ed.2d 281 (1988) (in investigation of sexual assault of ten-year-old-boy, police failure to test semen samples with newer test device did not violate due process).

Legitimate finality concerns as well as legitimate concerns for the twelve-year-old victim, her family and society should prevail here. This case brings to mind the following passage from a treatise on due process of law: “It has become the fashion recently to speak as though the Constitution were devoted solely to the rights of the accused. But what are those rights? They are, first of all, the rights granted by the constitution and laws of the United States and of the states. Fundamentally, the accused has but one right by nature and that is the right to such rights as will inure justice.

Within the current fashion, it often appears that justice is nothing more than tender mercy for the accused — for the ‘underdog’ against whom the powerful forces of governmental prosecution have been brought to bear. Surely a harsh and cold disregard for the accused is not a hallmark of justice, but it must not be forgotten that justice is also concerned with the elderly widow who was strangled with malice aforethought and for the peace of the community which that strangulation breached.

Nor can we forget what the first count of the information upon which Appellant was tried reminds us of, that that elderly widow was a ‘human being’; nor what the instruction to the jury reminds us of, that malice aforethought involves an ‘abandoned and malignant heart.’ While passion for retribution must not be allowed to convict a man unfairly, neither should sympathy for the weaker side in a trial cause us to find injustice where it does not lie.

Mercy is a civilized component of, but it is not a surrogate for justice.” Echoing these concerns, the prosecution argued at the May 2000 hearing on applicant’s third habeas corpus application: “May it please the Court. Stephanie Flanary, the victim in this case, has been in her grave for over seven years. And it was about five years ago next month that a jury of twelve very carefully and fairly selected men and women from Brown County heard all the evidence in this case and determined that [applicant] was guilty of capital murder, determined unanimously and beyond a reasonable doubt.

They further determined he would be a continuing threat to society and found that there were no mitigating circumstances that would call for him to receive life imprisonment rather than the death penalty.

Since that time, over two dozen judges in Brownwood and Lubbock and Austin and New Orleans and Washington D.C., in some cases on two or three occasions, have considered the evidence in this case on direct appeal, state habeas and federal habeas proceedings, and in each case, they have upheld the decision that was made in this courtroom.” With these comments, I concur to the dismissal of applicant’s third habeas corpus application as an abuse of the writ. KELLER and KEASLER, JJ., join this concurrence. .

It should be noted that these DNA tests even if favorable to applicant would clear him of sexually assaulting the victim but not of murdering her. . The prosecution made the following uncon-troverted argument during the May 2000 hearing on applicant’s third habeas corpus application. “But, now, these changes in technology that are spoken of in the affidavit, are really not that new. The F.B.I. lab was doing mitochondrial D.N.A. work on a forensic basis in 1996. The S.T.R. extraction method was being used in 1996 in various laboratories and cases that already reached the appellate courts in Massachusetts in 1998.

So, although it is technology that has developed since the date of trial, to some extent, it's not technology that developed last week, last month, last year. It’s stuff that has been ongoing.” The affidavits filed in support of applicant’s third habeas corpus application do not contradict this as they refer to "DNA technology developed since the time of applicant’s trial.” But the relevant date is the date of applicant’s initial habeas corpus application. See

Article 11.071,

Section 5(a)(1). The habeas court’s findings also do not contradict the prosecution’s assertion that the "new” DNA technology has existed since at least 1996. And, even if they did, there would be no evidence to support them since the only evidence applicant relies on is the "new” DNA technology that has been developed "since the time of applicant’s trial.” This, however, does not establish or support a finding that this "new” DNA technology was unavailable when applicant filed his initial habe-as corpus application in 1997. To the extent the habeas court may have found to the contrary, the record does not support this finding. This is fatal to applicant’s claim that he meets a

Section 5(a)(1) exception since it is his burden to establish the exception. .Judge Price's dissenting opinion and the habeas court apparently would decide that applicant meets the

Section 5(a)(1) exception because when applicant filed his previous two habeas corpus applications "there was no expert who had stated what Dr. Giles stated in his affidavit of April 20, 2000.” This, however, is irrelevant. The issue is not whether applicant could previously have found an expert to state what Giles eventually stated in his 11 th-hour affidavit. The issue is whether the factual basis of applicant’s current claim was available when applicant filed his initial habeas corpus application. See

Article 11.071,

Section 5(a)(1). Here, the factual basis of applicant's current claim is "new” DNA technology. But, this technology was available when applicant filed his initial habeas corpus application in 1997. The habeas court, therefore, misapplied the law set out in the

Section 5(a)(1) exception to conclude that applicant’s current claim meets that exception. . This Court considered the merits of the claims set out in applicant’s first habeas corpus application and unanimously denied ha-beas corpus relief in July 1998. . Applicant filed his second habeas corpus application in February 2000. In this application, applicant requested DNA retesting of most of the evidence including the pubic hair and semen evidence. This habeas corpus application did not mention anything about any "new” DNA technology.

Rather, this habeas corpus application contained misrepresentations about the lack of independent defense DNA experts for applicant’s 1995 trial. The record, however, reflects that the taxpayers provided applicant with these experts for his 1995 trial. . The habeas court also was "disconcerted” about the "late filing” of applicant’s third habeas corpus application. "My problem is, I want to give you a full, fair and open forum to present it to me, hear everything you’ve got, and then the same thing for the State, and then rule on this matter.

Certainly right now this is a very important matter, we're here — I am a bit disconcerted that this was filed just last week and this man's execution date is the first of June, which is obviously next week. And I’m not particularly happy with what I view as the late filing in all of this, but I also understand that these are complicated things and there is a lot of things that are at stake here.” . Richard G. Stevens, Frankfurter and Due Process (1987) at 203-04. .

The Governor exercising his executive power to grant applicant a 30 day delay of his execution in no way undermines our decision to dismiss applicant’s current habeas corpus application as an abuse of the writ. The Governor has the power, authority and discretion to grant such a delay.

Article 11.071 grants this Court no such power and authority. See Davis, 947 S.W.2d at 224 (McCormick, P.J., concurring) (Article 11.071 contains exclusive procedures for exercise of this Court's original habeas corpus jurisdiction in death penalty cases).