White, Garcia Glen ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-48,152-08
Ex parte GARCIA GLEN WHITE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 723847 IN THE 180TH JUDICIAL DISTRICT COURT
HARRIS COUNTY
R ICHARDSON, J., filed a concurring opinion in which H ERVEY and N EWELL, JJ.,
joined.
CONCURRING OPINION
I agree with the Court’s interpretation of the statutory language in question. It would
seem that the plain language of Article 11.073 restricts the meaning of the phrase, “would
not have been convicted,” to apply only to the verdict of guilt and not to the assessment of
punishment. This is consistent with the Court’s interpretation of this exact phrase in Ex parte
Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011). And, as noted by the majority,
Gutierrez was decided two years before Article 11.073 was enacted. The Legislature was
aware of how the phrase, “would not have been convicted,” would be interpreted by this
Court. Had the Legislature intended Article 11.073 to apply to punishment, it could have
explicitly said so. Therefore, I join the majority.
White Concurring Opinion — 2
However, this is a harsh result, particularly in a death penalty case where the jury is
often asked to evaluate expert scientific testimony and scientific evidence in assessing
whether the death penalty is the proper punishment. The points made by the dissenting
opinion are valid. In my opinion, Article 11.073 should have been written to apply to both
the guilt and punishment phases of a trial—at least a death penalty trial.
FILED: November 2, 2016
PUBLISH