Aguilar, Jesus Ledesma

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

  NO. WR-36,142-03

EX PARTE JESUS LEDESMA AGUILAR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 95-CR-1088 FROM THE

107^TH DISTRICT COURT OF CAMERON COUNTY

Price, J., filed a dissenting statement, in which Holcomb, J., joined.

                                                     DISSENTING STATEMENT

For reasons stated in my dissenting statements in Ex parte O=Brien, ^[1] and in Ex parte Hopkins,^[2] I dissent to the failure of the Court to grant a stay of execution to allow time to consider whether, and if so, how, we should treat the applicant=s Eighth Amendment challenge to Texas=s lethal injection protocol.

The concurring statement fails to see Ajurisprudential value in granting a last-minute stay of execution to consider either the merits of the claim or the proper procedure for bringing such a claim.@^[3]  The reason is twofold.  First, the concurring statement does not think that a claim that Texas=s lethal injection protocol violates the Eighth Amendment because of the risk that it inflicts cruel and unusual punishment states a viable legal claim, because no other jurisdiction has yet to find that it does.^[4] Second, the applicant fails to provide sufficiently reliable scientific proof that there is, in any event, Aa reasonable risk of unnecessary or wanton pain in the TDCJ protocol.@^[5]  The concurring statement reaches these conclusions on both the law and the facts without affording the applicant an evidentiary forum to adequately develop his claim.

A number of jurisdictions, both state^[6] and federal,^[7] have rejected claims such as the applicant=s, but only after the parties were given a full and fair opportunity to present their evidence in a hearing.  Other courts have rejected such claims, as the concurring statement

here and in O=Brien have done, solely on the pleadings.^[8] Meanwhile, in federal district courts in both California and Texas, lawsuits brought under 42 U.S.C. '1983, challenging the lethal injection protocols of those respective states, are currently pending evidentiary hearings. Assuming that we were to decide that the issue is legitimately before us B a question the concurring statement once again avoids B I would follow those courts that have recognized the prima facie validity of the claim, and, rather than to reject it outright, allow the applicant to proceed with his claim and put him to his proof.  But first, as I said in O=Brien, I would have the Court decide that threshold issue.  Because the Court does not, I respectfully dissent.

I would also stay this applicant=s execution in order to allow him to pursue his Sixth Amendment claims, predicated on Crawford v. Washington.^[9] The applicant argues that, because Crawford was decided since his last subsequent writ application was filed, it constitutes a legal basis for decision that was Aunavailable@ at the time of his previous applications.^[10] I agree, and would permit the applicant to proceed with his Sixth Amendment claims.

The facts as alleged, briefly, are these: A child witness at the guilt phase of trial testified that he saw the applicant and another man, Quiroz, shoot his parents.  The applicant shot his mother while Quiroz shot his father.  Quiroz later told a police officer he had only been outside driving the car, and that the applicant had gone into the house with other, unidentified men.  At the punishment phase of the applicant=s trial, the State elicited some, but not all, of this out-of-court statement.  As admitted into evidence, Quiroz=s statement did not mention the applicant at all.  But it did make clear that Quiroz claimed he did not directly participate in the murder.  This made it appear that the applicant=s complicity in the murders was much greater than the jury might have gathered from the child witness=s testimony at the guilt phase.  The applicant now claims that this Court=s Sixth Amendment analysis in his direct appeal was flawed in light of Crawford, and that, had he been able to cross-examine Quiroz, it might have made a difference.

On direct appeal, in an unpublished opinion, this Court held that the applicant=s confrontation rights were not Aimplicated@ because the part of Quiroz=s statement that mentioned the applicant was redacted.^[11]  In support of this proposition, the Court cited Bruton v. United States.^[12] Bruton involved the joint trial of co-defendants, where it will sometimes be the case that evidence relevant to convict one co-defendant may have no relevance whatsoever to convicting the other.  In that context, the out-of-court statement of a co-defendant may be admissible as against him, while at the same time its admission would violate the other co-defendant=s confrontation rights, at least to the extent that it also inculpated that other co-defendant.  In Bruton, the Supreme Court held that an instruction to the jury to disregard the out-of-court statement to the extent that it referred to the other co-defendant was insufficient to protect that other co-defendant=s Sixth Amendment right to confront his accusers.

Applying Bruton in the applicant=s case, we held that Quiroz=s out-of-court statement did not violate the applicant=s confrontation rights because all references to the applicant were removed.  This ignores the obvious point, however, that the out-of-court statement was admitted, not at the guilt phase of trial, but at the punishment phase, and that the State=s apparent intent in admitting it was to convince the jury that the applicant=s complicity was actually greater than it had been led to believe during the guilt phase of trial.  It also ignores the fact that the applicant and Quiroz were not even tried together in a joint trial.

Whatever the applicability of Bruton to the applicant=s direct appeal, since then, and since the applicant=s last post-conviction writ applictation was filed, Crawford has been decided.  Crawford made crystal clear that any product of police interrogation is absolutely inadmissible without unavailability of the declarant and a prior opportunity to cross-examine.^[13]  It did not split hairs whether the out-of-court declaration directly Aimplicated@ the defendant.  After Crawford, if the State is allowed to admit any police-generated out-of-court statement, it had better meet Crawford=s criteria, or else a Sixth Amendment confrontation violation will occur.

Here, Quiroz was obviously unavailable because of his Fifth Amendment privilege, but there was no prior opportunity to cross-examine him.  Thus, under Crawford, there was clearly Sixth Amendment error.  The rest is just a question of the harmfulness of the constitutional error.  And the applicant makes a reasonably persuasive argument why it harmed him.  Thus, the applicant has at least stated sufficient facts that he ought to be allowed to go forward with his writ application, under Article 11.071, ' 5(a).

Filed:    May 22, 2006

Do Not Publish

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^[1]

 2006 Tex. Crim. App. LEXIS 976, No. WR-51,264-03 (Tex. Crim. App., May 17, 2006) (Price, J., dissenting).

^[2]

 160 S.W.3d 9 (Tex. Crim. App. 2004) (Price, J., dissenting to denial of stay of execution).

^[3]

 (Slip op. at 10)

^[4]

 (Slip op. at 2)

^[5]

 Id.

^[6]

 Abdur=rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005); Sims v. State, 754 So.2d 657 (Fla. 2000); State v. Webb, 252 Conn. 128, 750 A.2d 448 (2000).

^[7]

 Reid v. Johnson, 333 F.Supp.2d 543 (E.D. Va. 2004).

^[8]

 E.g., Bieghler v. State, 839 N.E.2d 691 (Ind. 2005); Cooper v. Rimmer, 358 F.3d 659 (9^th Cir. 2004).

^[9]

 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

^[10]

 Tex. Code Crim. Pro. art. 11.071, '' 5(a) & (d).

^[11]

 See Aguilar v. State, No. 72,470 (Tex. Crim. App., decided October 29, 1997) (Slip op. at 20).

^[12]

 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

^[13]

 541 U.S. at 59, 124 S.Ct. at 1369.