Ex parte Bobby Ray HOPKINS
No. 38173-02
Court of Criminal Appeals of Texas
Feb. 12, 2004
Whitаker argues in his first point of error that he established a prima facie case demonstrating his entitlement to DNA testing and the State failed to rebut that case. He claims the State‘s failure to submit any affidavit in resрonse to his affidavit required the trial judge to rule in his favor. Whitaker misunderstands the nature of Art. 64.03.
That statute requires thе trial judge to make certain findings before ordering DNA testing. It does not establish any presumptions in favor of the applicant when no response is filed by the State. The trial court may make findings for or against an applicant regardless of any response from the State. Whitaker‘s first point of error is overruled.
Finally, Whitaker argues in his third point of error that the trial judge erred in finding that he did not satisfy Art. 64.03(a)(2). Whitaker claims in his brief that a test would reveal that another individual committed the murder. He does not elaborate. The State responds that there was no evidence at trial whether the blood on the murder weapon belonged to Whitaker, the victim, or a mixture of both. As a result, the State implies, a DNA test would be meaningless.
We agree with thе State. Regardless of whose blood is on the rifle, other evidence at trial established Whitaker‘s guilt, including his statement that he had killed the victim.
We agree with the trial judge that Whitaker failed to establish by a prepоnderance of the evidence that he would not have been prosecuted or convictеd if exculpatory results had been obtained through DNA testing. Whitaker‘s third point of error is overruled.
Conclusion
The trial cоurt did not err in denying Whitaker‘s motion for forensic DNA testing. We affirm the trial court‘s judgment.
Gary A. Taylor, Austin, for appellant.
Dale S. Hanna, DA, Cleburne, Matthew Pаul, State‘s Atty., Austin, for state.
OPINION
Motion for stay of execution denied.
PRICE, J., filed a dissent to the order denying stay of execution.
PRICE, J., dissenting.
Today the Court votes to deny a stay of execution to an applicant who claims that the method and chemicals used in the administration of the death penalty in Texas is cruel and unusual under the Eighth and Fourteenth Amendments of the United Statеs Constitution. I write separately because I would stay the applicant‘s execution pending a determination by this Court that the current method of administering the death penalty in Texas meets all constitutional requirements.
The Supreme Court hаs stated that the “clearest and most reliable objective evidence of contemporаry values is the legislation enacted by the country‘s legislatures.”4 Additionally, in Atkins v. Virginia,5 the Court stated that “[i]t is not so much the number of thеse states that is significant, but the consistency of the change.”6 Here, although only twenty-one states have acted to ban the use of this pancuronium bromide in the euthanasia of animals, the consistency of this trend over the last several years indicates that there is a national trend recognizing that the use оf pancuronium bromide is inhumane in the euthanasia of animals.
Especially poignant is our own legislaturе‘s action in banning the chemical.7 Clearly, the State of Texas has acted to eliminate the cruеl and inhumane euthanasia of animals by limiting the procedures and chemicals that can be used to euthanize. It stands to reason that what is cruel and inhumane for use in animals is also cruel and inhumane for use in humаn beings. Therefore, a national trend that recognizes that pancuronium bromide is inhumane for use in animаls can also be said to be a national trend that recognizes that pancuronium bromide is inhumane fоr use in human beings.
Because this national trend only recently came to Texas and was only recently аcted on by the Texas Legislature, I believe that a new legal claim exists that was unavailable to thе applicant in his initial application. Therefore, this Court has jurisdiction to review applicant‘s claim pursuant to