The laws that apply to guilt do not always apply to punishment—at least that is the position of the Texas Court of Criminal Appeals (TexCrimApp). This can create a slippery slope in cases where new evidence tends to undermine both the guilt/innocence and sentencing phases of a criminal proceeding.


Favorable DNA Evidence


In 2001, the Texas Legislature created Chapter 64 of the Texas Code of Criminal Procedure that permits an inmate to file a post-conviction application for DNA testing if he or she can “establish by a preponderance of the evidence that he/she would not have been convicted if exculpatory DNA results been available to the jury at the time of his trial.”


Two years later the Legislature effectively noticed the TexCrimApp that its intent was to have the lesser “preponderance of evidence” standard utilized in these cases than the stricter “reasonable probability” standard the court had tried to apply to the statute.


Only Applies to Conviction Not Sentencing Error


In 2011, the TexCrimApp in Ex parte Gutierrez held that the DNA testing statute applies only to those inmates who “would not have been convicted” and “does not authorize testing when exculpatory results might affect only the punishment or sentence.”


Put simply, exculpatory DNA can only reverse of wrongful conviction, not the sentence resulting from that conviction.


Favorable Scientific Evidence Statute


In 2013, the Texas Legislature enacted a new forensic science statute and codified it in Article 11.073 of the Code of Criminal Procedure. The statute permits the filing of an application for writ of habeas corpus challenging a conviction based on new scientific evidence.


Again, the Legislature made it clear that these habeas applications would be guided by the “preponderance of evidence” standard.


It was inevitable that the TexCrimApp would be called upon to decide whether Article 11.073 applies solely to conviction and not punishment. The court decided this issue on November 2, 2016 in the case of Ex parte Garcia Glen White.


Amicus File Briefs, Argue Required in Death Penalty Cases


Through amicus briefs, the Texas Criminal Defense Lawyers Association, the Harris County Criminal Lawyers Association, Harris Country Public Defender’s Office, and the Office of Capital and Forensic Writs argued that the court should address this specific question: “whether new scientific evidence presented pursuant to Article 11.073 can affect only punishment phase evidence.”


Amici curiae conceded that the plain language of Article 11.073 “does not appear to apply to newly discovered evidence that would affect the punishment phase of a capital trial.” Their briefs, however, suggested that the court was “constitutionally required” to allow challenges to a death penalty in a capital case.


TCDLA amicus argued that the word “convicted” as used in Article 11.073 should be interpreted by the definition the TexCrimApp had given to the word “conviction” in the 1998 decision Ex parte Evans. The OCFW amicus argued that the word “convicted” should mean the same thing as the word “conviction” in Articles 11.07 and 11.071 which encompasses both guilt and punishment.


Texas Court of Criminal Appeals Refuses, Limits to Conviction


The TexCrimApp replied to these arguments, saying: “… It is true that legal dictionaries have sometimes referred to ‘convicted’ by saying ‘See Conviction,’ and definitions of ‘conviction,’  though generally referring to guilt, sometimes include the assessment of punishment. It is also true, though, that the word ‘convicted’ is more likely to refer solely to guilt than the word ‘conviction’ is.”


The TexCrimApp added:


“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, Likewise, Articles 11.07 and 11.071 are concerned with seeking relief from an existing conviction. A challenge to a sentence would necessarily be a challenge to an existing conviction. But the language is the statute before us—‘would not have been convicted’—plainly refers to any possible conviction on the charge. Even if an applicant proves that he would have received a different sentence 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 a claim under Article 11.073 be one that undermines the verdict or finding of guilt.”


11.073 Needs to be Amended


As we pointed out in our post this past February, there has been tension between the TexCrimApp. and the legislature over the intent of Article 11.073. As it did during it last session (2015), the legislature should revisit Article 11.073 and amend it so that it applies to both conviction and sentencing; that is, a defendant should be allowed to have flawed forensic evidence tested if he or she can show, by a preponderance of the evidence, that that evidence had an impact on the sentence imposed, particularly if the sentence is the death penalty.


It appears to us that the TexCrimApp has once again created a need for the legislature to act with regards to Article 11.073. We do not believe that the State should be allowed to execute an inmate or require him or her to spend the rest of their natural life in prison because flawed forensic science evidence resulted in those sentences.