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Rickey Nolen McGINN

 
 
 
 
 

 

 

 

 
 
 
Classification: Serial killer
Characteristics: Rape
Number of victims: 3
Date of murders: 1992 - 1993
Date of arrest: May 26, 1993
Date of birth: March 11, 1957
Victims profile: Christi Jo Eggers, 19 / Sherri Newman, 12 / Stephanie Rae Flanary, 12 (his step-daughter)
Method of murder: Beating with an ax / ???
Location: Brown County, Texas, USA
Status: Executed by lethal injection in Texas on September 27, 2000
 
 
 
 
 
 
 
 
 
 
 
 

Summary:

Ricky McGinn was sentenced to die for the rape and murder of his 12-year-old step-daughter, Stephanie Rae Flanary.

On the morning of May 22, 1993, Janet McGinn, Ricky Nolen McGinn's wife, left her home in Brownwood, Texas for a trip to Arlington. She left her 12-year-old daughter, Stephanie Flanary, in the care of McGinn.

McGinn and Stephanie spent the day alone together. Stephanie was sexually assaulted by McGinn and then beaten in the head with the blunt side of an ax. She died of multiple head injuries and a fractured skull.

Her battered body was found three days later in a culvert along a farm-to-market road near McGinn's residence in Brown County.

McGinn was granted a last-minute 30 day reprieve by Governor Bush to obtain DNA testing. Unfortunately for McGinn, the results of the DNA tests only confirmed his guilt.

 
 

Texas Attorney General

Wednesday, September 6, 2000

MEDIA ADVISORY - Ricky Nolen McGinn scheduled for execution

AUSTIN - Texas Attorney General John Cornyn offers the following information on Ricky Nolen McGinn who is scheduled to be executed after 6 p.m. on September 27th.

Ricky McGinn was convicted and sentenced to death for the May 1993 murder of his 12 year-old stepdaughter Stephanie Flanary.

Police found Stephanie's body three days after Stephanie's mother left Stephanie with McGinn while she traveled to Arlington. Stephanie's body was found about three miles from the McGinn home in a culvert off Highway 183 in Brownwood, Texas. Stephanie had been raped and beaten in the head with the blunt end of an ax.

McGinn told police that he spent the day working on his truck and fishing. McGinn said he and Stephanie fished and drank beer together, enough to make Stephanie sick.

McGinn claims that Stephanie fell asleep after drinking, woke up and went on a walk, and never returned. McGinn said that after he realized Stephanie was missing late that afternoon, he told a friend of his, but McGinn did not call the police about Stephanie's disappearance until 9:30 that night.

The next day police, with trained search dogs, searched McGinn's car. Police discovered numerous blood splatters in McGinn's car, which he maintained were from the fish he caught. However, testing identified the blood as human. The blood splatters matched Stephanie's blood type, as did blood from clothes McGinn had been wearing.

McGinn was subsequently arrested. The suspected murder weapon (an ax) was later found in a pickup truck on McGinn's property.

EVIDENCE

Blood splatters found in McGinn's car, matched Stephanie's blood type; Hair sticking to a blood stain in the car had the same microscopic characteristics as Stephanie's; DNA tests performed by DPS on blood from an ax found under the seat of McGinn's truck, matched the blood on the ax to Stephanie's blood type; Tests performed by DPS on hair found on the ax determined the hair had the same microscopic characteristics as Stephanie's hair; Blood stains found on McGinn's jeans matched Stephanie's blood type; Post-conviction DNA testing by prosecution and defense experts, matched sperm and pubic hairs found on Stephanie's body to McGinn.

APPEALS TIME-LINE

  • Jan. 21, 1998 - Court of Criminal Appeals affirmed McGinn's conviction and death sentence.

  • July 8, 1998 - Court of Criminal Appeals denied McGinn habeas corpus relief.

  • Nov. 2, 1998 - McGinn's petition for writ of certiorari was denied by the U.S. Supreme Court.

  • Jan. 20, 1999 - District Court denied habeas relief.

  • Oct. 22, 1999 - 5th Circuit U.S. Court of Appeals denied permission to appeal.

  • Nov. 2, 1999 - McGinn filed a petition for writ of certiorari to the U.S. Supreme Court which was denied on Feb. 22, 2000. McGinn also filed a second state application for habeas relief which was dismissed by the Court of Criminal Appeals on Mar. 29, 2000.

  • June 1, 2000 - McGinn was scheduled to be executed, but received a reprieve from the Governor's office so additional DNA tests could be conducted.

  • Aug. 15, 2000 - DNA test results are released and confirm that McGinn is the person who raped and murdered 12 year-old Stephanie Flanary. New execution date of Sept. 27, 2000 is set.

CRIMINAL HISTORY

Evidence was introduced at trial that on Aug. 1, 1986, McGinn threatened Pamela Adams with a knife and forced her into sexual acts with him.

Evidence was also introduced at trial that in April of 1985, McGinn assaulted Sonya Vaughn, a sophomore at Abilene Christian University, when she refused to have sex with McGinn.

Latasha McGinn, McGinn's biological daughter, testified that McGinn sexually assaulted her in 1987, when she was three or four years old.

McGinn threatened to kill his daughter and her mother if Latasha McGinn told anyone about the incident. A couple of years later, when Latasha's mother, Imogene Bible, tried to prevent McGinn from visiting her daughter alone, McGinn threatened to beat Bible to death.

McGinn is currently the lead suspect in two other rape/murders that pre-date this capital murder and authorities hope that DNA testing will also help confirm McGinn's guilt in those cases, for which he has never been tried.

 
 

ProDeathPenalty.com

Ricky McGinn was sentenced to die for the rape and murder of his 12-year-old step-daughter, Stephanie Rae Flanary.

On the morning of May 22, 1993, Janet McGinn, Ricky Nolen McGinn's wife, left her home in Brownwood, Texas for a trip to Arlington. She left her 12-year-old daughter, Stephanie Flanary, in the care of McGinn.

McGinn and Stephanie spent the day alone together. Stephanie was sexually assaulted by McGinn and then beaten in the head with the blunt side of an ax. She died of multiple head injuries and a fractured skull.

Her battered body was found three days later in a culvert along a farm-to-market road near McGinn's residence in Brown County. Investigators found blood in the trunk of McGinn's car and a bloody ax under the seat of a broken truck in his yard.

 
 

Texas Execution Information Center

Txexecutions.org

Ricky Nolen McGinn, 43, was executed by lethal injection on 27 September in Huntsville, Texas for the murder of his stepdaughter.

In May 1993, McGinn's wife left her 12-year-old daughter, Stephanie Rae Flanary, in his care for the day.

According to McGinn, then 36, they drank beer together and dozed off. After she woke up, she went for a nighttime walk and never returned. McGinn said he looked for her and then called the police.

The following day, police found blood splatters and hair around the back of McGinn's car, a blood stain on the back of the driver's seat, and more blood on McGinn's clothing and shoes. Under the seat of a broken truck in McGinn's yard, officers found a bloody axe.

Two days later, Flanary's body was found dumped in a culvert. She had been raped and beaten and had a fractured skull. She died of multiple head injuries. According to DNA tests, the blood from the axe matched Flanary. DNA tests also showed that semen and pubic hair taken from Flanary's body and underwear matched McGinn.

A jury, who also heard three other females testify that McGinn had sexually assaulted them, convicted McGinn of capital murder and gave him the death sentence.

Afterward, McGinn was connected to the 1992 rape-murder of 19-year-old Christi Jo Eggers. DNA testing showed that semen found in her body matched McGinn, but McGinn was not tried for Eggers' killing because he was already on death row. In addition, Brown County officials suspected McGinn in the rape-murder of 12-year-old Sherri Newman.

McGinn had two prior execution dates in the year 2000. At the most recent one on 1 June, his final appeals had failed and the Texas Board of Pardons and Paroles denied his request for a reprieve. He had eaten his last meal and was about 18 minutes away from going to the death chamber when Governor George W. Bush granted an emergency stay of execution at the request of the state district judge who was presiding over McGinn's case. It was the first -- and so far, only -- time Bush has granted such a stay in 143 execution cases.

The reason for the stay was so that DNA evidence from the trial could be reexamined. McGinn's lawyers contended that DNA testing methods had advanced so much while McGinn was on death row that the evidence from the rape should be retested using current technology. If it could not be proven that McGinn raped Flanary, then the crime did not meet the legal definition of capital murder and his death sentence would have to be removed.

When the DNA tests came back, they showed that semen and pubic hair found on the victim positively matched McGinn. Despite the test results, McGinn maintained his innocence. He said, "it kind of blew me out of the water" that the DNA test was positive. "I had my stuff ready to be packed to go home," he said in a death-row interview. (McGinn would not have been able to go home if the test had been negative.) "I still want the world to know I'm not guilty. I don't care what the tests show. ... I didn't kill my little girl. I did not have sex with her, I did not rape her. I want the world to know that." Of the evidence that prove he raped his stepdaughter, he said "somebody else put that there."

Janet McGinn, the prisoner's ex-wife and victim's mother, believed in Ricky McGinn's guilt and supported his execution. At his execution, McGinn said nothing about the crime, the evidence, or his guilt or innocence. He expressed love for his family and his belief in Heaven. As the drugs began taking effect, he sputtered and groaned slightly. He was pronounced dead at 6:22 p.m.

 
 

Rapist-Murderer Put to Death

Amarillo Globe-News

HUNTSVILLE (AP) - Condemned killer Ricky McGinn, spared earlier this year in an unprecedented reprieve by Gov. George. W. Bush, was executed Wednesday for raping and fatally bludgeoning his 12-year-old stepdaughter.

McGinn, 43, insisted he was innocent of the 1993 killing of Stephanie Flanary and said additional DNA tests on hair and semen evidence would prove his case. Only minutes from execution June 1, McGinn won a 30-day reprieve from Bush so new tests could be conducted.

In a final statement, McGinn said, "Tell everybody I said hi, that I love them, and I will see them on the other side, OK? And now I just pray that if there is anything against me that God takes it home. I don't want nobody to be mad at nobody. I don't want nobody to be bitter. Keep clean hearts and I will see y'all on the other side."

He smiled to his family, many of whom were sobbing, and then sputtered as the drugs began taking effect. There was no reaction from family members of the victim. McGinn groaned slightly and then his eyes closed. He was pronounced dead at 6:22 p.m. CDT, eight minutes after the lethal drugs began taking effect.

The new DNA tests vindicated Brown County authorities who said McGinn killed his stepdaughter May 22, 1993, and dumped her body in a culvert where it was found three days later.

 
 

Convicted Killer to Face Injection

By Michael Graczyk - Amarillo Globe-News

Associated Press

HUNTSVILLE - Convicted killer Ricky McGinn was 10 minutes and about 10 steps from the Texas death chamber when the warden walked up and looked through the bars of his small cell. McGinn had changed his clothes, prayed with the prison chaplain and eaten his final meal - a double cheeseburger, fries and Dr Pepper. "I thought: It's time," McGinn recalled.

But the warden had good news. Gov. George W. Bush had given him temporary reprieve, the first time Bush used his authority as governor to stop an execution for 30 days. McGinn's supporters had requested the June 1 execution be put off until new DNA testing was conducted on evidence in his murder case. Rather than proving McGinn's innocence, the new methods solidified his guilt.

 
 

DNA retesting denied for Texas death row inmate

By Kate Randall - World Socialist Web Site

June 1, 2000

The Texas Court of Criminal Appeals rejected on Tuesday by a 6-3 vote a plea by death row inmate Ricky Nolen McGinn for DNA retesting in his case. McGinn is scheduled to die by lethal injection on Thursday, June 1 for the 1993 rape and beating death of his 12-year-old stepdaughter Stephanie Rae Flanery.

The appeals court ruling comes within days of statements by Republican presidential candidate and Texas Governor George W. Bush that he supports DNA testing if it can confirm guilt or innocence in a death penalty case. "If the DNA testing helps to settle a case, or erase any doubts or concerns, we would support that," Bush commented on May 26.

Attorneys representing Ricky McGinn recently won the recommendation of the condemned man's trial judge for a retesting of hair and semen removed from the victim in the case. State District Judge Steve Ellis in Brownswood referred the trial judge's request to the appeals court, which rejected it on procedural grounds. The court is only authorized to review cases if it is presented with new facts or proof of innocence. Maurie Levin, an attorney from the Texas Defender Service who is working on McGinn's appeals, commented, "You need the evidence to show you're innocent, but you can't get into court without the evidence."

McGinn's lawyers contend that some items of evidence in his case were not collected and tested properly, and that some DNA testing was not conducted because the technology available at the time was not adequately developed. Levin commented, "Testing could be performed that would provide conclusive proof, one way or the other, of guilt or innocence."

Ricky McGinn and his family maintain that he is innocent. In a statement posted on a web site in McGinn's defense, his brother Mikel McGinn points to details casting doubt on his guilt: "My brother was arrested on Sunday and charged with capital murder for the disappearance of his 12-year-old stepdaughter who disappeared on Saturday evening. The culvert where the highway patrolman, Cappochino, found her body had been searched on Sunday afternoon and my brother was already in jail.... When found, the girl was lying in fresh blood." Mikel McGinn also says that the patrolman who found the girl's body changed his story three times.

While Governor Bush insists that every condemned inmate in Texas "has had full access to the courts," Mikel McGinn raises that his brother has received shoddy legal counsel. His present lawyer, Richard Alley, has been reprimanded several times, once for filing false documents while his license was suspended. He also contends that Brown County Sheriffs officers visited McGinn in the Huntsville prison trying to get him to confess to other crimes, reportedly telling him: "You're going to die anyway, so why don't you confess to these other murders so we can clear our books?"

Bush maintains that all of the 130 death row inmates executed during his term as governor have been guilty, and the Texas state appeals court has reversed only eight death penalty cases in the last five years. While the Texas governor cannot order the DNA retesting in McGinn's case, he does have the authority to grant a 30-day reprieve. Although under Texas state law the governor can only commute a death sentence if it is recommended by the Texas Board of Pardons and Paroles, all of the members of the board are Bush appointees and he could undoubtedly influence them to recommended a pardon. McGinn's lawyers are petitioning the 5th US Circuit Court of Appeals in New Orleans to order the additional DNA testing.

Four other men are scheduled to be put to death this week in the US. On Wednesday, May 31, Robert E. Carter is set to die by lethal injection in Texas, and Bennie Demps is scheduled to be put to death in Florida. James Robedeaux, a Native American, is scheduled to be executed in Oklahoma on Thursday, June 1.

Barring any last-minute stays, the state of Alabama plans to execute Purnell Ford on Friday, June 2. Ford was scheduled to be put to death in July 1999, but was granted a reprieve due to questions as to his mental competency. He was tried and convicted for the 1983 murder of a handicapped woman and her daughter. Ford was diagnosed with mental disorders at age six and was periodically institutionalized from ages 9 to 15. He insisted on representing himself at his trial, and wore a white sheet wrapped around him like a toga during closing arguments, insisting he was a prophet. Although he dropped his appeals, an attorney with the Equal Justice Initiative has been allowed to represent him in competency hearings.

Thirty-nine people have been executed so far this year in the US, including 19 in Texas. There are 15 more executions scheduled in Texas between now and August 31, including 7 in June alone. Since the death penalty was reinstated in 1976, 637 people have been put to death nationwide. According to the Death Penalty Information Center, 87 inmates since 1973 have been exonerated and taken off death row, many as a result of DNA testing such as that being requested by Ricky McGinn.

  


 

Appeals court upholds McGinn's death sentence

By Anna M. Tinsley - Scripps Howard Austin Bureau

July 9, 1998

AUSTIN - A Brown County man convicted of raping and killing his 12-year-old stepdaughter, Stephanie Flanary, will die for his crime, the Texas Court of Criminal Appeals ruled Wednesday.

Ricky Nolen McGinn was convicted of capital murder and sentenced to die in 1995. On Wednesday, the state's highest criminal appeals court upheld the Brown County jury's decision.

This was the second time McGinn appealed the sentence. His first appeal was automatic because all capital-murder convictions - and death sentences - go for review before the state's highest criminal court.

He argued during this appeal that the trial court's decision to not move the trial to a larger city - where potential jurors may not have heard about Flanary's murder - prevented him from getting a fair trial.

McGinn also said jury members may have known he had been acquitted of another murder charge - and that two more girls had turned up dead in Brown County. These points were overruled.

After the initial appeal was upheld in January 1997, a second appeal, called a "habeas corpus,'' was filed to address problems outside the trial - such as incompetent representation by an attorney.

McGinn brought various allegations in which he challenged the validity of his conviction and sentence, court documents show.

The 35th District Court submitted conclusions of law and recommended that relief be denied, according to court records.

"Having reviewed the record, we adopt the trial court's finding of fact and conclusions of law and find that neither the facts nor the law support (McGinn's) allegations,'' according to Wednesday's ruling. "Accordingly, we order that relief on said grounds be denied.''

On May 22, 1993, McGinn reported that his 12-year-old stepdaughter was missing.

He and other community members began searching for Flanary. The next day, McGinn was arrested.

Flanary's body was found May 25 in a culvert about one mile north of Brownwood. She had been raped and killed by ax blows to the head.

On May 26, the bloody ax used to bludgeon Flanary was found in one of McGinn's vehicles, according to court testimony.

McGinn still can appeal the conviction and sentence in federal court, a Court of Criminal Appeals spokesman said.

 
 

213 F.3d 884 (5th Cir. 2000)

IN RE: RICKY NOLEN McGINN, Movant

No. 00-10367

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 1, 2000

United States District Court for the Northern District of Texas

Order on Application for Leave to File a Successive Writ

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:

Petitioner filed on April 11, 2000, a petition for leave to file a successive writ. Atthat time McGinn was scheduled for execution on April 27, 2000. The parties consented to a rescheduling of the execution date for June 1, 2000, an effort to accommodate petitioner's counsel whose records were scattered by a tornado which struck the city of Fort Worth, Texas. The State responded on April 28, 2000. Petitioner then sought relief in the Court of Criminal Appeals of Texas by filing a subsequent writ seeking a stay to allow additional DNA testing. That court found the application to be an abuse of the writ, and by order of May 30, 2000, denied the application. Petitioner's application to the Texas Court included "defendant's motion to authorize retesting of physical evidence by defense DNA expert...."

The State argues that this court should deny leave to file a subsequent writ on two grounds. First, the ruling by the Texas Court of Criminal Appeals that Petitioner had abused the process is an adequate and independent state ground. Second, this court lacks jurisdiction to grant the requested relief under 28 U.S.C. 2244.

We are persuaded that we cannot grant leave to file a successive writ because the petitioner cannot meet the requirements of 28 U.S.C. 2244(b)(2)(B)(i). Specifically, petitioner cannot show that "the factual predicate for the claim[s] could not have been discovered previously through the exercise of due diligence." It is clear that at the original trial there was extensive testing of blood samples, including reverse paternity DNA tests.

The claim is that while better tests could have been performed then, developing science enhances the possibility of a better test today. Yet no submission has been made to this court that any testing methods developed in the five years following the testing done for trial were not available to allow timely submission to the federal district court by February 23, 1999, when it denied habeas relief in the first petition. We do not reach the issue of whether the petitioner could meet the statute's innocence requirement.

We do not suggest that in striving to both convict the guilty and free the innocent, criminal process can look away from exculpatory evidence with such potential explanatory power. Rather, we remind that this is a court of limited jurisdiction, only part of an entire system. We are persuaded that Congress has withheld jurisdiction from this court to grant the requested relief here. On the facts of this case, Petitioner must obtain his relief from other parts of this process, a process in which each player does his job. We express no opinion whether DNA evidence may, in other circumstances, allow a prisoner to escape the strictures of the subsequent writ.

The application for leave to file a subsequent writ and for stay of execution is DENIED.

 
 

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. 35,570-04

EX PARTE RICKY NOLEN MCGINN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BROWN COUNTY

Womack, J., filed a concurring opinion joined by Keller, J.

On June 7, 1995, the applicant was sentenced to death for a murder that was committed in the course of an aggravated sexual assault of the victim on May 22, 1993. On appeal this Court affirmed the judgment and sentence. (1)

On September 8, 1997, the applicant filed his first application for the writ of habeas corpus, seeking relief from the judgment of conviction. He presented eight points that raised constitutional issues about the trial procedures, including ineffective assistance of counsel for failing to call certain witnesses at the punishment stage. On May 8, 1998, the district court entered findings of fact and conclusions of law, and the application was sent to this Court. We adopted the trial court's findings and conclusions, and we denied habeas corpus relief on July 8, 1998. (2)

The applicant sought, and was denied, habeas corpus relief in federal courts. (3)

On February 25, 2000, the applicant filed his second application for writ of habeas corpus in the convicting court. This application contained two points challenging the trial court's judgment and two points about this Court's procedure on appeal. We dismissed this application on March 29, 2000. (4)

The convicting court entered an order setting the date of execution at April 27. Later the court accomodated the applicant's counsel by resetting the date of execution at June 1.

On or about May 15, 2000, the applicant filed in the convicting court a "Defendant's Motion to Authorize Retesting of Physical Evidence by Defense DNA Expert." This motion alleged that "a motion for habeas corpus relief [was] pending in the United States Court of Appeals for the Fifth Circuit. That petition asserts that if retested the physical evidence which was tested by DNA experts in this case previously yielding an inconclusive result because of new technology and other circumstances would yield more positive results and remove any doubt as to the correctness of the guilt and death penalty verdicts of the jury herein which the Defendant has called into question in his federal habeas corpus petition." The motion prayed for "the relief requested in this motion"; there was no request for relief other than that in the title of the motion. The convicting court heard the motion on May 23, 2000.

At the hearing, the State "question[ed] what legal authority there is for the court to do re-testing at this stage of the proceedings, and whether the court should defer any questions such as this to the Fifth Circuit and the Board of Pardons and Paroles, both of which are considering this very issue at this very time." The applicant confirmed that he was seeking re-testing before those entities. On May 25, the district court ruled that it would treat the motion as a subsequent application for writ of habeas corpus. It made findings of fact and conclusions of law, and the district clerk has transmitted the record to this Court. Thereafter, the applicant has treated the motion in the same fashion. (5) So has this Court, and I know of no other available procedure.

The Texas Constitution makes this Court's power to issue the writ of habeas corpus subject to regulation by statutes. (6) In 1995, Article 11.071 of the Code of Criminal Procedure was enacted to regulate the power of this Court to issue "a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death." (7) That statute forbids any court of this state to consider a second or subsequent application unless the application establishes one of three findings.

If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.0711. (8)

The statute specifies, "If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section." (9) The question, then, is whether the application contains sufficient specific facts establishing one of the three requirements. (10)

The application that is now before us does not satisfy the first requirement for an exception to the bar against subsequent applications because it does not contain sufficient specific facts establishing that the claim could not have been presented timely in the initial application, which was filed on September 8, 1997.

The "motion" that has been treated as an application is completely silent on this point. The applicant introduced in evidence an affidavit, dated April 20, 2000, from the Science Director of a DNA-testing laboratory that had done work for the defense at trial. The affidavit says that "technological advances [have been] made since the original tests were performed," and that there have been "recent advances in DNA testing" and "newer methods." The affidavit also said that it would be more than reasonable to allow the applicant an opportunity to prove his claim of innocence by new DNA tests. No other evidence was introduced on this point. The applicant also has filed with this Court a brief, to which is attached an affidavit from a law professor, who is of counsel to the applicant. The affidavit says, "Since the conviction in this matter" a new technique of testing DNA is being used, and, "Since the time of this trial" another new technique has been developed.

But the question that the statute requires us to ask is not what has happened since the time of the original testing or what has happened since the trial in 1995. The mandatory question is whether this subsequent application contains specific facts establishing that the current claim could not have been presented in the initial application because the factual basis of the claim was unavailable on the date the applicant filed the initial application: September 8, 1997. The present motion completely and conspicuously fails to contain any such fact.

This Court cannot find that the applicant failed to meet this requirement because he was ignorant of it or because it was not an issue at the hearing. The applicant's counsel specifically told the district court that he was trying to meet a similar requirement in the federal courts. (11) And the State argued that the tests the applicant sought were available before 1997. (12)

The district court found that the factual basis for the claim was unavailable on the date the applicant filed his initial application. The finding was "based upon the arguments of Defendant's attorney at the hearing in that there was no expert who had stated what [the Science Director of the DNA testing laboratory] stated in his affidavit of April 20, 2000." This finding is not supported by the record.

The district court's finding evidently refers to counsel's request for permission to supplement the record with other affidavits. He said that he had "been in contact with a number of experts over the course of several weeks and months, attempting to get additional proofs from them." The court asked what counsel hoped to prove with additional affidavits. Counsel said that the office of "Dr. Blake, who is a D.N.A. expert out in California," said it would send "an affidavit that would be very similar to that offered by [the Science Director whose affidavit was in evidence] as regards to the efficacy of re-testing D.N.A. in light of the advances." Counsel also said that he had been offered an affidavit from the law professor, which has in fact come to this Court. Counsel said these affidavits would essentially corroborate the affidavit that was in evidence, as to the amount of time needed for testing and the "desirability of re-testing in light of the type of case this is."

Even if this Court could accept the arguments of counsel as a substitute for the specific facts that the statute requires to be contained in the application, counsel's argument stated nothing relevant. To begin with, counsel's inability to find an expert who had stated what the applicant's expert stated in his affidavit of April 20, 2000 in no way proves the unavailability of the "newer" methods of DNA testing on September 8, 1997. The affidavits from the Science Director and the law professor provided no proof of unavailability on the date of the initial filing, and more similar affidavits would provide no more support for the finding of unavailability.

The district court also found, "Frankly, it is questionable as to whether or not this factual basis could have been ascertainable through the exercise of reasonable diligence on or before May 15, 2000, which is the date that the Defendant filed his Motion to Authorize Retesting of Physical Evidence." The affidavits and the arguments on which the district court relied provide no support for this finding. And in any event such a finding could not authorize this Court to consider this application. What the statute requires is not that the availability of facts be "questionable." It requires that the application contain specific facts establishing that the current claim could not have been presented previously in a timely initial application because the factual basis for the claim was unavailable.

The only other finding that might satisfy the requirements of article 11.071 is that the application contain specific facts establishing that by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt. (13) If it is assumed that such a claim involves a violation of the Constitution that is amenable to the writ of habeas corpus, (14) the application does not contain specific facts establishing innocence. The applicant's position at the hearing was that, because the murder was a capital offense only because he committed it during the course of committing a sexual assault on the victim, if he is innocent of the sexual assault on the victim he would be innocent of capital murder (though guilty of murder). The only fact that this application establishes is the possibility that, if the applicant is truthful about being innocent of the sexual assault, further DNA testing would produce evidence of his innocence. This does not meet the requirement of the statute. The statute could authorize a subsequent habeas corpus application for the purpose of gaining time to get evidence, but it does not.

Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. This law was passed by the legislature and approved by the governor, in accordance with our constitutional form of government. The law is clear: this court shall dismiss this application because it was filed late. If the law is barbarous, the legislature should repeal it or the governor should commute or pardon those who are subjected to it. In the meantime, we must follow it. (15)

Article 11.071, section 5, leaves this Court no authority to do anything other than dismiss this application as an abuse of the writ.

En banc.

Delivered June 14, 2000.

*****

1. See McGinn v. State, 961 S.W.2d 161 (Tex. Cr. App.), cert. denied, 525 U.S. 967 (1998).

2. Ex parte McGinn, No. 37,750-01 (Tex. Cr. App. July 8, 1998) (not designated for publication).

3. McGinn v. Johnson, No. 6:98-CV-073-C (N.D. Tex. Jan.20, 1999), aff'd., 199 F.3d 440 (5th Cir. 1999) (opinion not published), cert. denied, 528 U.S. ---, 120 S.Ct. 1179, 145 L.Ed.2d 1086 (2000).

4. Ex parte McGinn, No. 37,750-03 (Tex. Cr. App. March 29, 2000) (not designated for publication).

5. On May 26, he filed a "Memorandum of Law in Support of Subsequent Application," a term that is used in the habeas corpus statute, as is explained below.

6. "Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari." Tex. Const. art. V, 5.

7. Tex. Code Crim. Proc. art. 11.071, 1. The statute does not violate the separation of powers provision or the open-courts provision of the state constitution, nor suspend habeas corpus, nor deny equal protection or due process or due course of the law, nor deny the constitutional rights to counsel. Ex parte Davis, 947 S.W.2d 216 (Tex. Cr. App. 1996).

8. Tex. Code Crim. Proc. art. 11.071, 5(a). A "factual basis for a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable by the exercise of reasonable diligence on or before that date." Id. 5(e).

9. Id. 5(c).

10. The dissenting opinion says that the writ is not barred by the statute because the application "contains sufficient facts to distinguish it from his previous claims." Post at 3. A subsequent application does not meet the requirements of the statute merely because it presents a different claim. Section 5 of the statute is meant to prevent applicants from presenting different claims in a subsequent application unless they could not have been presented in the initial application.

11. A similar statute governs federal habeas corpus applications for relief from state judgments:

A claim presented in a second or successive application that was not presented in a prior application shall be dismissed unless --

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. 2244(b)(2). An order from a court of appeals must be obtained before a second or successive application is filed in the district court. Id. 2244(b)(3)(A). In the convicting court, counsel for the applicant referred to the application of section 2244 to the proceedings he had brought in the federal court of appeals.

12. The district attorney told the district court, "But, now, these changes in technology that are spoken of in the affidavit, or the various affidavits, are really not that new. The F.B.I. lab was doing mitochondrial D.N.A. work [one of the methods of testing being sought] on a forensic basis in 1996. The S.T.R. extraction method [the other method] was being used in 1996 in various laboratories and cases that already reached the appellate courts in Massachusetts in 1998. So, although it is technology that has developed since the date of the trial, to some extent, it's not technology that developed last week, last month, last year. It's stuff that has been ongoing." The applicant did not reply to this argument.

13. See Tex. Code Crim. Proc. art. 11.071, 5(a)(2). The third statutory exception, see id. 5(a)(3), involves only applications that seek relief from the punishment rather than the conviction.

14. See Herrera v. Collins, 506 U.S. 390 (1993).

15. Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Cr. App. 1998).

 

 

 
 
 
 
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