EX PARTE EX PARTE GARCIA GLEN WHITE WR-48,152-06 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/12/2015 5:08:38 PM Accepted 1/13/2015 9:30:06 AM ABEL ACOSTA CLERK WRIT NO. 48,152-06 RECEIVED COURT OF CRIMINAL APPEALS

- 1/13/2015 IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA, CLERK AT AUSTIN, TEXAS

Cause No. 723847 § IN THE 180TH DISTRICT COURT § OF GARCIA GLEN WHITE, Applicant § HARRIS COUNTY, TEXAS
STATE'S MOTION TO DISMISS APPLICATION FOR WRIT OF HABEAS CORPUS AND DENY REQUEST FOR STAY OF EXECUTION Respondent, the State of Texas, by and through its Assistant District Attorney for Harris County, files this, its Motion requesting that the Court of Criminal Appeals dismiss the applicant's application for writ of habeas corpus and request for stay ofexecution. The applicant does not satisfy the requirements for the filing ofa subsequent writ application under TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5, and, alternatively, the applicant's grounds for reliefaremeritless. In support, Respondentwould showthefollowing:
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I. 

### PROCEDURAL HISTORY The applicantis confined pursuanttothejudgmentand sentence ofthe 180th District Court of Harris County, Texas, in cause number 723847 (hereinafter "the primary case"), wherein a jury convicted the applicant of the felony offense of capital murder. On July 23, 1996, the jury answered "yes" to the first two special issues, and "no" to the last, and the trial court assessedpunishmentatdeath. The Court ofCriminal Appeals affirmed the applicant's conviction in an unpublished opinion delivered on June 17, 1998. 

### White v. State, No. 72580 (Tex. Crim. App. June 17, 1998)(notdesignated for publication). On February 21, 2001, the Court of Criminal Appeals denied the applicant relief on his initial state habeas application. 

### Ex parte White, WR48,152-01 (Tex. Crim. App. Feb. 21, 2001). On April 17, 2001, the applicantfiled his initial federal habeas petition. However, the applicant subsequently moved to dismiss his petition in order to return to state court, and the federal district court granted the applicant's motion on January 

### 9, 2002. 

### White v. Thaler, No. H-02-01805, 2011 WL 4625361 (S.D. Tex. Sept. 30, 2011). On January 11, 2002, the applicant filed a subsequent habeas application, cause no. 723847-B. The Court of Criminal Appeals dismissed
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the applicant's subsequent state habeas application for abuse ofthe writ on April 24, 2002. 

### Ex parte White, WR-48,152-02 (Tex. Crim. App. April 24, 2002). On May 3, 2002, the applicant filed a federal habeas petition, and the district court granted the applicant an administrative stay pending the results ofDNA testing. 

### White v. Thaler, No. H-02-01805, 2011 WL 4625361 (S.D. Tex. Sept. 30, 2011). On June 30, 2007, and January 28, 2009, the applicant filed additional subsequent state habeas applications, cause nos. 723847-C and 723847-D. The Court of Criminal Appeals dismissed both ofthese habeas petitions on May 6, 2009. 

### Ex parte White, WR-48,152-03 & WR-48,152-04 (Tex. Crim. App. May 6, 2009). On September 30, 2011, following the completion of the applicant's post-conviction DNA testing, the federal district court dismissed the applicant's federal habeas petition and denied the applicant a certificate of appealability (COA). 

### White v. Thaler, No. H-02-01805, 2011 WL 4625361 (S.D. Tex. Sept. 30, 2011). On April 1, 2013, the Fifth Circuit Court of Appeals denied the applicant's application for COA. 

### White v. Thaler, 522 Fed. App'x. 226, 2013 WL 1442568 (5th Cir. 2013).
3On January 13, 2014, the United States Supreme Court denied the applicant's petition for writ of certiorari. 

### White v. Stephens, 134 S.Ct. 907 (2014). The applicantis scheduled for execution on January28, 2015. II. TRIAL PROCEEDINGS State's Evidence atGuilt-Innocence King Solomon was a sixty-fouryear old manwho was married and had
seven children (XV S.F. at 35). Bonita Edwards was his girlfriend in November 1989, and she lived with her identical twin daughters, Annette and Bernette, the complainant (XV S.F. at 35-6). Solomon would often see Bonita on the weekends and call her during the week (XV S.F. at 38). He talked to her on the telephone on Wednesday, November 29; however, she did not answer the phone when he called herthe next day (XV S.F. at 39). In fact, therewas no answerfor the followingtwo days (XV S.F. at 39). On the third day, Saturday morning, Solomon went over to Bonita's apartment (XV S.F. at40). He knocked on her door, butthere was no answer (XV S.F. at 40). He then returned home and watched television for much of the day (RR. XV

- 41). Later in the day, Solomon had his wife drop him off approximately two blocks from Bonita's apartment (XV S.F. at 41). He walked over to her apartment and saw another man standing on the porch
4 ((XV S.F. at41). The othermanclaimedto beresponsible for maintenancebut stated that he did not have a key to the apartment (XV S.F. at 41). The man told Solomon to get the manager (XV S.F. at 41). When the apartment manager opened the door, Solomon saw two bodies on the floor (XV S.F. at 45). The managerthen pulledthe doorbackand said, "Don'tyou-all comein" (XV S.F. at46). Leonard Dawson, Houston Police Department homicide crime scene unit, was called to the scene (XV S.F. at 56-7). There was no sign offorced entryon the front doorto the apartment, and all ofthewindows were locked and closed (XV S.F. at 69, 149). A bloody sock was found underneath the Christmas tree (XV S.F. at 83). The door to the south bedroom appeared to havebeenforced open (XV S.F. at91, 151). Bonita was found in the dining and living room area (XV S.F. at 66-7). She was wearing a blue and white printed blouse and black panties (XV S.F. at 167). She had fourteen stab wounds in her chest: seven superficial and
seven that were five to six inches deep into her left chest area (XVII S.F. at 275, 278, 280). One stab wound perforated her heart and the others penetrated herleft lung (XVII S.F. at 278). All ofthe seven deep wounds had the potential to kill her (XVII S.F. at 282). Bonita also had a contusion on the rightside ofherneck (XVII S.F. at 277). 5Annette was foundjustinsidethe front doornextto a love seat (XV S.F. at 66-7). She was wearing only a pair of panties (XV S.F. at 84). She sustained eight stab wounds to her chest, one stab wound in her neck, and two defensive wounds: a stab wound in her right arm and a cutting wound
on her right hand (XVII S.F. at 287-288, 292-93). One of Annette's chest wounds involved her left lung and was fatal (XVII S.F. at 291). The neck wound penetrated into hertrachea (XVII S.F. at 292). She also suffered from twoblunttrauma abrasions overherleftcheek (XVII S.F. at 288-89). The complainant, Bernette, was found in the south bedroom facing a dresser and a bed (XV S.F. at 67-8). A pink shirt was wrapped around the back ofher neck and through her mouth to form a gag (XV S.F. at 85, 147). There was a white discharge near hervaginal area and a white substance on her lower abdomen indicating a possible sexual assault (XV S.F. at 147). Semen was detected on her vaginal and rectal swabs (XVI S.F. at 247). She had two stab wounds to her neck, eleven stab wounds to her chest, stab wounds in the left elbowand hand, a cuttingwound on the righthand, and a stab wound on her right arm (XVII S.F. at 300). Any one of the two stab wounds to the neck or ofthe five to the chestwere sufficient to cause death (XVII S.F. at 307). The applicant's DNA matched that ofthe semen gathered

6from the complainant, and the probabilitythat the applicant was the source ofthe semenwas99.9999 percent(XVII S.F. at 384-85). Tecumseh Manuel was a thirty-four year old man who had known the applicant "like a brother" for his entire life (XVI S.F. at 185). The applicant told Manuel that he stabbed a woman and her twin daughters (XVI S.F. at 186). On July 20, 1995, Manuel relayed this information to Todd Miller, Houston Police Department homicide division (XVI S.F. at 186, 189). The applicantwas arrested for the crime atapproximately 8:20 p.m., the nextday and readhis 

### Miranda warnings (XVI S.F. at 190-91). The applicant gave a videotaped statement in which he stated that he and Terrence Moore went overto Bonita's apartmentandthatboth men had rocks of cocaine. 

### State's Ex. 55
.. The men agreed to share their drugs with Bonita in exchange for sex. 

### State's Ex. 55. Both men got naked; however, neitherwas able to get sexually aroused, and theyrefusedto sharethe drugs with Bonita. 

### State's Ex. 55. The applicant stated that Bonita then became upset and grabbed a knife out of the kitchen drawer. 

### State's Ex. 55. The applicant grabbed her from behind while Moore took the knife from Bonita. 

### State's Ex. 55. The applicant stated that he then threw Bonita on the floor while Moore stabbedher. 

### State'sEx. 55.

7The applicant further stated that, while Bonita vyas screaming and kicking, Annette and the complainant ran out ofthe bedroom. 

### State's Ex. 55. The applicant grabbed the daughter who ran toward the front door. 

### State's Ex. 55. He touched herbreasts andvagina, heldher down with his hand over her mouth, and then ejaculated on her. 

### State's Ex. 55. Meanwhile, Moore forced open the bedroom door to get the other daughter. 

### State's Ex. 55. Moorethen exited from bedroom and stabbedthe daughterthatwaswiththe applicant. 

### State'sEx. 55. TheapplicantstatedthatMoore waswearinggloves andneverejaculated. 

### State'sEx. 55. After aninvestigation, Miller determinedthatMoore hadbeenkilled on July 25, 1989, or four months prior to the deaths of the complainant, her sisterand her mother (XVI S.F. at 205-6, 224). On July 28, 1995, Miller again interviewedthe applicant (XVI S.F. at 206). Afteradvisingthe applicantofhis rights, Miller confronted the applicantwith the information regarding Moore (XVI S.F. at 206-7). The applicant waived his rights and gave another videotaped statement during which he stated, "I made it all up...With the Mom
...She reached for a knife, and I took the knife and stabbed her
...Some kids come out...l went into the bedroom after them. Stab
...I stabbed one in the bedroom and one in the living room. That's all I want to talk about." 

### State'sEx. 56.
8State's Evidence atPunishment During the punishment phase, the State reoffered all ofthe evidence admitted during the guilt phase and introduced evidence that on March 20, 1995, the applicant received two years in a state jail for theft which was probated for three years (XX S.F. at 8)(XXI S.F. at 449, 452). John Thomas, a Harris County adult probation officer, testified that the applicant used marijuana andtestedpositivefor cocaine (XXI S.F. at454,460). The State also presented evidence regarding the murder of Greta Williams. At approximately 11:30 a.m., on November 1, 1989, Philip Clark, Houston Police Department, was called to the 3400 block of Linn where he met Raymond Manuel (XX S.F. at 22, 26). Manuel directed Clark to a vacant house at 3419 Linn (XX S.F. at 23). Clark pulled backa sheetofplywoodthat covered one ofthewindows and sawa bodyin the backofthe house (XX S.F. at24). Wayne Wendel, Houston Police Department homicide division, responded to the scene where he sawboth Manuel and the applicant (XX S.F. at 29). The house was boarded up and had been used by neighborhood drug
users (XX S.F. at 30). Inside was the body of Greta Williams; she had been beaten to death and was partially covered by a carpet (XX S.F. at 31). There
was evidence ofsevere trauma to her head, and there were medium velocity 9blood spatter stains along the westwall which indicated repeated blows (XX S.F. at 37, 40). Williams' clothes were found under her body, andthere were
somebroken teeth nextto herneck (XX S.F. at 38, 39). Also atthe scenewas
a cigarette lighterwith blood on it and a used condom on the back steps (XX S.F. at 54-5). On November 2, 1989, Harminder S. Narula, a Harris County medical examiner, performed the autopsy on Williams (XX S.F. at 92). She had blunt trauma over her face, head, chest, back left forearm, and left hand, and six lacerations on her left eyelid, mouth and chin (XX S.F. at 95-6). She had a fracture on her left upperjaw, loose teeth in her lowerjaw, and chipped and broken upper teeth (XX S.F. at 97). There was bruising and a slight tear on her heart as well as fractured ribs and a partial crushing ofher liver (XX S.F. at 100). Williams died from blunt trauma to her head, face, chest, and abdomen which caused the fractured jaw, fractured ribs, and lacerated liver (XX S.F. at 102-3). Adrug screen was negative, and there was no evidence of

semeninthebody (XX S.F. at 103-4)
.. Wendel talked to Manuel three different times about the Williams' murder (XX S.F. at 43). Furthermore, police took a written statement from the applicantconcerningtheincident (XX S.F. at46, 65). The applicantstated that he was sitting on a front porch when Williams came by and asked what 10was up (XX S.F. at 86). The applicantstated that Williams then left, and he
sawtwo guys named Daniel Noel and Tony Trahan say "heybaby" to her (XX S.F. at 87). The case was referredto thegrandjury, butthe applicantwas nobilled (XX S.F. at49-50). On July 13, 1995, sixteen-year-old Hau Trung Pham was working with his father on Roland Streetin his father's convenience store (XIX S.F. at32-3)
.. Pham's father weighed approximately 111 pounds andwas 57 years old (XIX S.F. at 54). At approximately 11:00 that morning, the applicant and another
man came into the store and then left (XIX S.F. at 34, 51). At about 3:_00 p.m., Phamwas sleepingin the storeroomwhen he heard a scream (XIX S.F. at 34). Thetwo menhadreturned, and one ofthem grabbedhis neckandtoldhim to open up the cash register (XIX S.F. at 35). Pham sawhis fatherlaying on the floor withthe applicantstandingnextto him (XIX S.F. at 35, 42). Therewas a broken chairverycloseto his father (XIX S.F. at43). Pham's fatherhadblood in his eyes and was not saying anything (XIX S.F. at 37). One ofthe robbers then picked up the cash register and fumbled underneath it, and then the other robber took Pham into the back ofthe store and put a milk pot on his head (XIX S.F. at 37). When the men left, Pham called the police (XIX S.F. at 37-43).

11James L. Crowson, Houston Police Department,respondedto the call at theVillage Food Market at 3115 Roland (XIX S.F. at 11). He sawthatan older Asian man had a large gash over his left eye and was incoherent (XIX S.F. at 12). Crowson did not call the crime scene unitbecausethe crimewasjustan aggravated robbery at the time; however, Pham's father died within a few days as a result ofthe injuries sustained during the robbery (XIX S.F. at 14). No suspects were detained atthe scene (XIX S.F. at 17). Todd Miller, Houston Police Department homicide division, was contacted about the Roland Street robbery on July 17, 1995, after Pham's father died (XIX S.F. at 60-1). Duringhis investigation, he talked to Terrence Davis, Perry Harvey, and Tecumseh Manuel (XIX S.F. at 65). Manuel told Miller about the Roland Street robbery and the present triple murder on Weaver (XIX S.F. at 67). The applicantthen confessedto the crime. State'sEx. 96. On July 17, 1995, Eduardo Bellas, Harris County medical examiner, conducted an autopsy of Pham's father (XIX S.F. at 81). The victim had a fracture immediately above his eyeballs which was consistent with multiple blows to that area (XIX S.F. at 84). The primary causes of death were a fractured skull, brain contusions and lacerations, and infections to both lungs whichwas a complication ofthe otherinjuries (XIX S.F. at84). 12Defendant's Evidence atPunishment Lizzie White, the applicant's mother, testified that she named the applicant after a nurse's last name (XXI S.F. at 225). White had seven children; the applicantwasthethird oldestandwas bornin Houston (XXI S.F. at 226-27). She lived in Kashmere Gardens and in the Fifth Ward area of Houston (XXI S.F. at228). The applicant's mother testified that the applicant went to Hilliard Elementary School, Fleming Middle School, and Wheatley High School, and thathe was a poor studentbuthad good conduct (XXI S.F. at229-30). He did notmiss a day ofschool in thetwelfth grade (XXI S.F. at

### 234). Whitetestified that her son got along well with everyone and did not have trouble with the juvenile authorities; however, when the applicant was about fourteen years old, he took one ofher cars (XXI S.F. at 

### 235). Also, she was once called to school because the applicant did not dress for physical education (XXI S.F. at 236). White testified that the applicant played football for Wheatley as a starter and graduated in 1981 (XXI S.F. at 237). The applicant then went to Lubbock Christian College to play football; but he busted one ofhis knees in 1982 and ended his football career (XXI S.F. at 239-40). The applicant dropped out of school and returned to Houston to recuperate (XXI S.F. at 13240). The applicantthen startedpainting houses and workingfor his father, Leon Charles, who had a mechanic's shop (XXI S.F. at 241). The applicantleft home when he was about twenty-one and went to live with the Manuel family (XXI S.F. at 247). White statedthat, in 1984,the applicant started sandblastingbuildings with a companycalled Clean America (XXI S.F. at 244). In March of 1988,the applicant was hospitalized with a hurt hand and head after falling three or four stories off of a building (XXI S.F. at 246). When the applicant was released from the hospital, he did not come around the family as much (XXI S.F. at 248). He started hanging outwith drug users and was living with the mother ofhis children at the Manuels (XXI S.F. at 249). The applicant had three children: fourteen-year-old Christopher, ten-year-old Porsha, and sixyear-old·Jared (XXI S.F. at 249). The applicant was behind in child support; however, he still loved his children (XXI S.F. at 253). Finally, White askedthe juryto give hersona life sentence (XXI S.F. at 254). 1 Monica Garrett, the applicant's sister, testified thatthe applicantwas a nice brother and that she helped him with his homework (XXI S.F. at 271). She also stated that the applicant was a good football player, but his college

1 During cross-examination, it was revealed that the applicant knew Tecumseh and Raymond Manuel sincejuniorhigh school (XXI S.F. at259). 14career ended with a knee injury after his first semester (XXI S.F. at 273). Finally, she askedthejuryfor a life sentence (XXI S.F. at 275).2 Robert Yohman, Ph.D., clinical neuropsychologist, testified that he reviewed the applicant's records and tested him with the Wechsler Adult Intelligence Scale, academic achievementbatteries,andpersonalitytests (XXI S.F. at 312-13). Yohman statedthatthe applicanthad an IQ of76, which was in the sixth percentile for intellectual functioning and on the borderline between average and mental retardation (XXI S.F. at 315-16). The applicant did nothave elevatedlevels ofdistress inhis life which suggestedthathewas handling his impulses through denial (XXI S.F. at 326-27). Yohman stated thatcocaineuse could accentuateimpulsivebehaviorcausedbya headinjury (XXI S.F. at 336). Yohman concludedthatthe applicantwould notbea future danger in a controlled prison environment because of the limitations on cocaineuse (XXI S.F. at 346).3 Dennis Nelson, Ph.D., stated that the applicant had an IQ of 85 to 87 (XXI S.F. at 392). He concluded that the applicant was reasonably

2 It was revealed during cross-examination thatthe applicant could do betterwith grades when he applied himself, and the applicant never asked for help with his problems (XXI S.F. at 277-78). 3 During cross-examination, Yohman admitted that there was no evidence that the applicant suffered a brain injury (XXI S.F. at 352). He also statedthat, ifthe applicantlied during the interview, then the diagnosis ofcocaine addiction was inaccurate (XXI S.F. at 365). Yohman stated that the applicant was capable ofanger and lust (XXI S.F. at 370). Finally, Yohman admitted that his conclusions were based on the assumption that drugs arenotavailable to prison inmates (XXI S.F. at375). 15responsible, not violent, fairly quiet, somewhat socially inhibited, and not proneto digging intotrouble (XXI S.F. at410). The applicanttold Nelson that cocaine was the major drug that he abused (XXI S.F. at 413). Nelson stated that the applicant was dependent on circumstances and that a properly functioning prison shouldbe a controlled environment (XXI S.F. at425). III. APPLICANT FAILS TO MEET ART. 11.071, § 5 REQUIREMENTS ALTERNATIVELY, APPLICANT'S CLAIMS ARE MERITLESS In the instant application for writ ofhabeas corpus filed on January 8, 2015,the applicanturgestwoissues relatingtothe admission ofhis custodial statement: (1) that his invocation of counsel is entitled to more deference due to his alleged borderline IQ; and, (2) that the Texas Constitution mandates additional scrutiny ofthe applicant's invocation ofcounsel due to the applicant's alleged mentallimitations orillness. In support of his allegation of a borderline IQ, the applicant relies on the 2008 psychological report of Patricia M. Averill, Ph.D., which was previously included with the applicant's third subsequent state habeas application, cause no. 723847-D. Applicant's Exhibit 3. According to Dr. Averill's report, the applicant achieved a Full Scale IQ score of 78 on a WechslerAdult Intelligence Scale- Third Edition. Dr. Averill concludes that, while the applicant does not qualify for a diagnosis ofmental retardation, he

16

---- - -- - - -- - -- --functions at a borderline intellectual level, and his intellectual limitations likely result in social vulnerabilities. Dr. Averill states that the applicant's adaptive functioning is difficult to ascertain due to a lack ofinformation, but she remarks that the applicant attended college on a football scholarship until he sustained a knee injury; that the applicant maintained employment for severalyears; thatthe applicanthad a family; thatthe applicant got along well with others; and, that the applicant had no socialjinterpersonal skill difficulties. Notably, Dr. Averill reaches no conclusions regarding the applicant's abilityto invokehis rightto counsel. The applicant also proffers the 1998 report ofJerome Brown, Ph.D., a report that was previously presented in the applicant's initial state application for writ ofhabeas corpus, cause no. 723847-A Applicant's Ex. 4. Dr. Brown's report, however, contains no reference to the applicant's intellectual functioning. Rather, the thrust ofthe report is thatthe applicant does not represent a danger to others provided he is not using street chemicals; that the applicant adjusted well to prison; and, that the applicant shouldrespondwell to a structuredenvironmentandprovideno problemfor prisonauthorities. Notwithstanding that the instant habeas petition is labeled an "original" habeas application and that it was filed directly with the Court of
17Criminal Appeals, the applicant does notmeetthe statutoryrequirements for filing a subsequent state application for writ ofhabeas corpus. 

### See TEX. CODE CRIM. PROC. art. 11071, § 5. The instanthabeas claims are merelyreiterations of previously urged and rejected claims. On direct appeal, the Court of Criminal Appeals overruled the applicant's challenge to the admissibility of his custodial statement, based on his alleged invocation of his right to counsel. 

### White, No. 72580, slip op. at 4-8. The applicant urged the same claim in his initial statehabeas application, andthe CourtofCriminalAppeals adopted the trial court's findings and denied the applicant habeas relief. 

### White, No. 48,152-01, slip op. at 2. In his second subsequent state habeas petition, cause no. 723847-C, filed in 2007, the applicant alleged that he suffered from impairment and mental problems, including cocaine addiction, and was not competent to waive his rights to silence and counsel. 

### Applicant'swrit, cause no. 723847-C, atp. 3, 7. Included with the applicant's petition was the 2002 evaluation of Seth Silverman, M.D., referencing the punishment phase trial testimony of RobertYohman, Ph.D., a clinical neuropsychologist, and Dennis Nelson, Ph.D.,

18a psychologist, concerning the applicant's intellectual functioning. 4 Applicant's writ, cause no. 723847-C, Exhibit E. The purpose of Dr. Silverman's evaluation, however, was not to gauge the impact of the applicant's alleged limited intellectual functioning on his ability to waive his right to silence and counsel but to examine the applicant's drug use at the time of the primary offense and its effect on his judgment and ability to engage in deliberate thought. Applicant's writ, cause no. 723847-C, Exhibit E at1. In his third subsequent state habeas petition, cause no. 723847-D, filed in 2009, the applicantrelied on Dr. Averill's 2008 report, which the applicant again presents in the instant habeas application, to argue that trial counsel
was ineffective for failing to discover his IQ of78. Applicant's writ, cause no. 723847-D, at3-5. In his habeas petition filed in federal district court, the applicant again challenged the admissibility of his confession, arguing, in part, that he was not competentto waive his Miranda rights due to his substance abuse. The

4 Dr. Yohman testified that he evaluated the applicant in order to ascertain his cognitive and emotional status. Based on that evaluation, Dr. Yohman concluded that the applicant had a cocaine dependency and borderline intellectual functioning but no major psychopathology (XXI S.F. at 298). Dr. Yohman stated that the applicant's IQ was 76, placing him in the 6th percentile for intellectual functioning or the borderline range (XXI S.F. at 315-16). Dr. Nelson testified that the applicant's IQ was in the 85 to 87 range (XXI S.F. at 392).
19federal districtcourtheldthatthe applicant's claim was meritless. White, No. H-02-01805, 2011WL 4625361,at*12-14. Finally, in his petition to the Fifth Circuit, the applicant again challenged the admissibility ofhis confession, arguing, in part, that he was notcompetentto waive his rights. The Fifth Circuit overruledthe applicant's claim, noting the testimony of the officer who conducted the applicant's interview that the applicant was not intoxicated at the time of questioning, and the applicant specifically told the officer that he was drug free for a few days. White, 522 Fed. App'x. at 231, 2013 WL 1442568, at *5. In sum, the applicantpresents nothingnewintheinstanthabeas petition. Further, there is no supportfor the applicant's assertions regardinghis abilityto invoke counsel orrequest for heightened scrutiny ofhis invocation of counsel. See Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007)(holding that the totality ofthe circumstances standard for assessing thevoluntariness ofa confession given bya person ofnormal mentalityis the appropriate standard to apply when a confession is made by someone sufferingfrom mental retardation and mentalillness). The Court ofCriminal Appeals has upheld the admission of confessions made by defendants suffering from mental impairments, including mental retardation. See Bell v. State, 582 SW.2d 800, 809 (Tex. Crim. App. 1979)(defendant was mildly
20mentally retarded and lacked capacity to read a11d understand certain statements); Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970)(defendantwas illiteratewith a second grade level education and an IQ
0 f68). Additionally, to the extent that the applicant argues that he has low intellectual functioning, the applicant cannot now urge that his execution is barred underAtkinsv. Virginia, 536 U.S. 304 (2002). First, the applicanthas bypassed the opportunityto raise mentalretardation. 5See ExparteBlue, 230 S.W.3d 151, 154 (Tex. Crim. App. 2007)(holding that constitutional prohibition against executing mentally retarded person does not mean that such claim can be made "at any time;" the Legislature may exercise its "regulatory authority to impose limitations on successive and abusive state post-conviction writs"). Moreover, given the applicant's IQ testingresults, the applicant cannot satisfy even the first prong criteria for mental retardation, significantly subaverage general intellectual functioning, much less the adaptive

5 In Hall v. Florida, _U.S._, 134 S. Ct. 1986, 1990 (May 27, 2014), the United States Supreme Court replaced the term "mental retardation" with "intellectual disability" in its opinion. Because the applicant's claims and the Court's ensuing orders predate Hall and use the term "mental retardation," the State will refer to mental retardation unless discussing an opinionwherethe term "intellectualdisability" is used.

21functioning and early onset prongs. Exparte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004)(to establish mental retardation, defendant mustprovebya preponderance ofthe evidence that he meets all three prongs ofthe threeprong test of mental retardation: (1) significantly subaverage general intellectual functioning; (2) that is concurrent with deficits in adaptive behavior; (3) and, originates duringthe developmental period); see also TEX. HEALTH & SAFETYCODE,§ 591.003 (13). Based on the foregoing, the applicant fails to meetthe requirements of TEX. CODE CRIM. PROC. art. 11.071, § 5. In the alternative, and notwithstanding the applicant's failure to meet the statutory requirements of art. 11071, § 5 for the filing of a subsequent application for writ of habeas corpus, the applicant's claims aremeritless.

22IV. CONCLUSION WHEREFORE, PREMISES CONSIDERED, the Respondent respectfully requests that"the Court of Criminal Appeals dismiss the applicant's instant original application for writ of habeas corpus and/or deny the applicant habeas reliefas well as denythe applicant's requestfor stayofexecution.

23 Respectfully submitted,
Is/LYNN HARDAWAY LYNN HARDAWAY AssistantDistrictAttorney Harris County,Texas 1201 Franklin, Suite 600 Houston,Texas 77002 (713) 755-6657 (713) 755-5240 fax TBC 08948520 Hardaway _Lynn@dao.hctx.netV. CERTIFICATE OF SERVICE AND COMPLIANCE Service has been accomplished bysendinga copy ofthis instrumentby mailto counselfor the applicantonthisthe 12thdayofJanuary, 2015. PatMcCann AttorneyatLaw 909 TexasAve. #205 Houston, Texas 77007 713 223-3805 713 226-8097 fax writlawyer@justice.com Pursuantto TEX. R. APP. P. § 9.4, I certifythatthe instantdocument contains 5,155 words.

24 Respectfully submitted,
Is/LYNN HARDAWAY LYNN HARDAWAY AssistantDistrictAttorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657 (713) 755-5240fax TBC 08948520 Hardaway _Lynn@dao.hctx.net