EX PARTE HELIBERTO CHI (concurring)

OF TEXAS

NO. AP-75,930 & AP-75,931

EX PARTE HELIBERTO CHI, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS AND PETITION FOR

A WRIT OF PROHIBITION IN CAUSE NO. 0805594

IN THE CRIMINAL DISTRICT COURT NUMBER 3

OF TARRANT COUNTY

Cochran, J., filed a concurring opinion in which Womack, J., joined.

O P I N I O N

I agree that applicant is not entitled to relief on either his application for a writ of habeas corpus or his petition for a writ of prohibition because he has not made a prima facie showing of a constitutional violation. I believe that applicant s writ application could be recharacterized by this Court as an original writ under the Texas Constitution. // Regardless, further factual development by this applicant under this particular pleading could not result in any relief because he has not made a sufficient showing of any constitutional violation. He has pled facts, and offered evidence of those pleaded facts, that bring him within the ambit of the majority decision in Baze v. Rees, // and our prior decision in Ex parte O Brien. // Furthermore, we have received a post-Baze supplemental response from the Texas Department of Criminal Justice (TDCJ) that graphically demonstrates the similarities between the Texas lethal-injection protocol and that of Kentucky which was upheld by the United States Supreme Court in Baze. // TDCJ s comparison is based primarily upon data in the TDCJ Execution Procedural Manual which was attached to applicant s Petition for Writ of Prohibition. // Thus, the underlying data that negates applicant s claim of a constitutional violation was supplied by applicant himself. Furthermore, applicant, like the petitioner in Baze, fails to articulate a readily implemented and feasible alternative to the Texas lethal-injection protocol such that the failure to implement that new, significantly superior procedure might constitute cruel and unusual punishment. // Finally, applicant discusses the botched execution of Angel Diaz in Florida as some evidence that the same could happen to him. But Texas is not Florida, and applicant has failed to show that any lethal-injection execution in Texas has presented the same problems as that in the Diaz case. At any rate, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. //

Therefore, I agree that we must dismiss the present application for a writ of habeas corpus and the petition for writ of prohibition because neither one sets out a prima facie showing of a constitutional violation.

Filed: June 9, 2008

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