State Ex Rel. Lykos v. Fine
2011 Tex. Crim. App. LEXIS 1
| Tex. Crim. App. | 2011Background
- Defendant John Edward Green, Jr. is charged with capital murder in Harris County; the State seeks the death penalty and trial has not yet occurred.
- Green filed an Amended Motion to Declare Article 37.071, § 2 unconstitutional as applied (pretrial).
- The trial court held an evidentiary hearing on December 6–7, 2010; witnesses testified on general death-penalty risk factors, many about non-Texas contexts.
- The State sought mandamus/prohibition to halt the pretrial hearing; the Court of Criminal Appeals initially denied as premature, then granted mandamus/prohibition conditioning relief.
- The opinion holds that Green cannot obtain a pretrial evidentiary ruling on the as-applied constitutionality of a penal statute, and the State has no adequate legal remedy other than mandamus to prevent such an advisory pretrial ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Face-to-face challenge to Article 37.071, §2 | Green argues facial unconstitutionality as applied to all cases. | Lykos contends facial challenge must show unconstitutionality in all applications. | Facial challenge not proven; pretrial ruling improper. |
| As-applied challenge pretrial viability | Green seeks pretrial as-applied review of constitutionality. | Normal as-applied challenges occur at trial, not pretrial, and only with concrete facts. | As-applied challenge cannot be raised pretrial; no authority to grant such ruling. |
| Adequate remedy at law | State could appeal pretrial ruling; there is a remedy at law. | Article 44.01 does not authorize such an appeal in this context. | State has no adequate remedy at law; mandamus proper. |
| Right to relief and scope of mandamus | Pretrial hearing would deprive State of chance to prosecute. | Harm would be advisory; no final disposition of indictment would occur. | Court grants mandamus/prohibition to dismiss the pretrial motion; limits on advisory rulings. |
Key Cases Cited
- State v. Patrick, 86 S.W.3d 592 (Tex. Crim.App.2002) (mandamus standards: no adequate remedy and clear right to relief)
- State ex rel. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim.App.2003) (mandamus relief for absence of adequate remedy at law)
- Morgan, 160 S.W.3d 1 (Tex.Crim.App.2004) (interlocutory appeal limitations; face of indictment unaffected by pretrial rulings)
- Baze v. Rees, 553 U.S. 35 (U.S. 2008) (death-penalty procedures must create substantial risk of harm; not require zero risk)
- Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (due process does not require eliminating all possibility of wrongful conviction before proceeding)