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 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
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.
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.
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
McGinn was subsequently arrested. The suspected
murder weapon (an ax) was later found in a pickup truck on McGinn's
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.
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
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
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
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.
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.
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
Ricky Nolen McGinn, 43, was executed by lethal
injection on 27 September in Huntsville, Texas for the murder of his
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
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
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
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
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
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
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
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 -
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
DNA retesting denied for Texas death row
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
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
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.
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
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
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
The 35th District Court submitted conclusions of
law and recommended that relief be denied, according to court
"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
213 F.3d 884 (5th Cir. 2000)
IN RE: RICKY NOLEN McGINN, Movant
IN THE UNITED STATES COURT OF APPEALS FOR THE
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.
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
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
The application for leave to file a subsequent
writ and for stay of execution is DENIED.
IN THE COURT OF CRIMINAL APPEALS
EX PARTE RICKY NOLEN MCGINN,
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.
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,
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
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
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
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
(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.
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
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
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.
Delivered June 14, 2000.
1. See McGinn v. State,
961 S.W.2d 161 (Tex. Cr. App.), cert. denied, 525 U.S.
2. Ex parte McGinn,
No. 37,750-01 (Tex. Cr. App. July 8, 1998) (not designated for
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
4. Ex parte McGinn,
No. 37,750-03 (Tex. Cr. App. March 29, 2000) (not designated for
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. §
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
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
(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).