Opposition Brief — Warren Darrell Rivers, Petitioner v. Texas

No. 18-5246

_______________________________________________________________________

In the Supreme Court of the United States

__________

WARREN DARRELL RIVERS,

Petitioner,

V.

STATE OF TEXAS,

Respondent.

__________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

__________

RESPONDENT’S BRIEF IN OPPOSITION

__________

KIM OGG

Harris County District Attorney

ERIC KUGLER*

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5800

kugler_eric@dao.hctx.net

*Counsel of Record

Counsel for Respondent

QUESTIONS PRESENTED (CAPITAL CASE)

The question presented for review is set out in the petition for

writ of certiorari as follows:

I. Whether prosecution evidence that a capital defendant has been

sentenced to death once before in the same case impermissibly

undermines the sentencing jury’s sense of responsibility for

determining the appropriateness of the defendant’s death, and

deprives the defendant of a reasoned, individualized sentencing

determination based on his record, personal characteristics, and

the circumstances of the crime in violation of the Eighth and

Fourteenth Amendments?

II. Whether denying a capital defendant the option of enlarging his

sentence and waiving his back-time credit in order to provide the

jury with a currently valid sentencing option of life without parole

violates the right to be free from cruel and unusual punishment

and denies due process of law under the Eighth and Fourteenth

Amendment.

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TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED (CAPITAL CASE) ...................................................... i

TABLE OF CITED AUTHORITIES ...................................................................... iii

STATEMENT OF THE CASE ..................................................................................1

SUMMARY OF THE REASONS FOR DENYING ISSUANCE OF THE WRIT ..1

ARGUMENT .............................................................................................................2

A. THE PETITIONER’S FIRST QUESTION PRESENTED BEARS NO RELATION TO THE

PETITIONER’S CASE, WHERE THE JURY NEVER HEARD THAT THE PETITIONER HAD

PREVIOUSLY BEEN SENTENCED TO DEATH. ...............................................................3

B. THE PETITIONER’S FIRST QUESTION PRESENTED LACKS MERIT BECAUSE THE

RULING BY THE STATE COURT RESTED ON ADEQUATE AND INDEPENDENT STATE

GROUNDS OR HAS BEEN REPEATEDLY DECIDED AGAINST HIM. .................................5

C. THE PETITIONER HAD NO RIGHT TO VIOLATE THE STATE SENTENCING

STATUTES THAT HAVE BEEN REPEATEDLY UPHELD BY THIS COURT, AND A REVIEW

OF THE ISSUE WOULD CONTRIBUTE LITTLE TO OUR JURISPRUDENCE. .......................7

CONCLUSION ..........................................................................................................9

ii

TABLE OF CITED AUTHORITIES

Cases

Andrade v. McCotter,

805 F.2d 1190 (5th Cir. 1986) ......................................................................................... 7

Arnold v. State,

873 S.W.2d 27 (Tex. Crim. App. 1993) .......................................................................... 8

Rules

SUP. CT. R. 10 .............................................................................................................2

SUP. CT. R. 13(1) ................................................................................................... 3, 5

iii

STATEMENT OF THE CASE

The Petitioner was convicted of the capital murder of an 11-year-old boy

while in the course of sexually assaulting him on May 3, 1987 (CR – 172) (CR

Supp. – 129). He was sentenced to death in 1988 but granted a new punishment

hearing in 2010. Rivers v. Quarterman, 661 F. Supp. 2d 675 (S.D. Tex. 2009);

Rivers v. Thaler, 389 Fed. Appx. 360 (5th Cir. 2010). At the conclusion of the

most recent punishment hearing, the Petitioner was again sentenced to death, and

the Texas Court of Criminal Appeals affirmed that sentence on December 20,

2017. Rivers v. State, AP-77,051, 2017 WL 6505792 (Tex. Crim. App. Dec. 20,

2017); (Pet. App. A). This Court returned the first petition, but allowed

resubmission, and granted the State until August 16, 2018, to respond.

SUMMARY OF THE REASONS FOR

DENYING ISSUANCE OF THE WRIT

The Petitioner has alleged that evidence at trial showed he had been

sentenced to death once before in the same case. But the jury did not hear such

evidence. The Petitioner also has alleged that the trial court’s refusal to allow him

the option of life without parole violates his Eighth and Fourteenth Amendment

rights to due process and to be free from cruel and unusual punishment. But this

Court has repeatedly denied writs for certiorari in cases similar to the present one

where the petitioner wanted the trial court to disregard the applicable sentencing

statute. The petitioner has presented no new or compelling arguments on this

issue so as to call for this Court’s intervention. Finally, the opinion issued by the

Texas Court of Criminal Appeals in this case is unpublished and has no

precedential value. See TEX. R. APP. P. 77.3 (“Unpublished opinions have no

precedential value and must not be cited as authority by counsel or by a court.”).

In short, there is no reason for this Court to grant certiorari.

ARGUMENT

The rules of this Court provide that review on a writ of certiorari is not a

matter of right, but of judicial discretion, and will be granted only for compelling

reasons to do so. SUP. CT. R. 10. Furthermore, “[a] petition for writ of certiorari is

rarely granted when the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” SUP. CT. R. 10. In the present

case, the Texas Court of Criminal Appeals correctly stated the applicable law and

properly affirmed the Petitioner’s sentence. The petition presents no important

question of law to justify this Court’s exercise of its certiorari jurisdiction

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A.

The Petitioner’s first question presented bears no relation

to the Petitioner’s case, where the jury never heard that the

Petitioner had previously been sentenced to death.

The Petitioner claims that “the jury [was] explicitly and implicitly informed

that [Petitioner] had been sentenced to death by a previous jury…” (Pet. 5). But

there was no such conveyance of that information to the jury. The trial court

repeatedly reminded the parties not to inform the jurors that the appellant “has

been on death row for 27 years.” Prior to the testimony of a prison official, the

trial court warned the witness:

Now, the reason I have you in here is an admonishment that I

know you probably heard it at least once, if not a hundred times today

already, and that is, in this trial you cannot mention the fact that the

defendant…has been on death row, or that you’ve had any contact

with him on death row. All right. Polunsky Unit is fine, but you

cannot refer to the unit as a DR unit, or death row, or anything like

that, or refer to those inmates as DRs, that kind of thing, because that

would not be proper for this jury and it would complicate this case.

Nevertheless, when the prosecutor later asked the witness where the Petitioner

would be housed if sentenced to death, the official responded, “He would be

returned to the Polunsky Unit, which is where those offenders that are sentenced

to death are housed, placed back in a single cell, and segregated from the general

population.” The prosecutor clarified with the witness that the Polunsky Unit

housed prisoners from “G1 all the way up to maximum security settings and death

row.” The official also testified that inmates from the general population could

“find themselves in admin segregation housed in solitaire.”

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After the prison official testified, the Petitioner moved for a mistrial “based

on the linkage between the Polunsky Unit, [the Petitioner] being in a single cell,

and that that is the nature of housing for individuals on the Polunsky Unit who are

on death row.” The trial court denied the request, noting that there had been “no

evidence or statements that your client has been on death row for the last 27

years.” The Petitioner did not disagree with that statement. The trial court later

gave a similar admonishment to the Petitioner’s own witness after that witness

mentioned the Polunsky Unit.

The Petitioner claims that a State’s exhibit that was within view of the jury

had the words “capital murder” and “death” written in red on the back. (Pet. 5).

But the Petitioner did not make a timely objection to this display, and the

Petitioner never alerted the trial court that such an alleged viewing constituted

violations of his Eighth and Fourteenth Amendment rights to due process and to

be free from cruel and unusual punishment. In fact, the Petitioner stated, “we

agreed with the Court at that time that it would probably be imprudent and

drawing more attention to the jury were this Court then to call out each one of

these jurors and ask, A, if they saw it; and B, if they saw it, what impressions, if

any, it made on them. And we maintain that we agree with that.” It was not until

the next day that the Petitioner asked for a mistrial without stating the basis for the

objection as required by Texas law. See Yazdchi v. State, 428 S.W.3d 831, 844

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(Tex. Crim. App. 2014) (stating that, for a party to preserve a complaint for

appellate review, he must make a specific objection and obtain a ruling at the

earliest possible opportunity); Peyronel v. State, 465 S.W.3d 650, 654 (Tex. Crim.

App. 2015) (“Appellant had the burden to ‘state…the grounds for the

ruling...sought from the trial court with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context.’…Instead, Appellant is now trying to ‘raise an abstract claim ... as an

afterthought on appeal.’”) (citation omitted).

Therefore, under state law, the

Petitioner’s issue was not preserved with regard to the exhibits.

Nevertheless, in the interest of justice, the Texas Court of Criminal Appeals

examined the record and found no references to Petitioner’s prior death sentence.

“The passages cited by [Petitioner] include only discussions that he had already

been found guilty and that, if asked to serve on the jury, the veniremen would have

to assess only [Petitioner’s] punishment.” Rivers, 2017 WL 6505792, at *5. Thus,

there is no constitutional issue to review.

B.

The Petitioner’s first question presented lacks merit

because the ruling by the state court rested on adequate

and independent state grounds or has been repeatedly

decided against him.

Even if the Petitioner had preserved a claim that had a factual basis in the

record, he cannot show that the Texas Court of Criminal Appeals necessarily

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affirmed the death sentence based on federal law. See Michigan v. Long, 463 U.S.

1032, 1041-42 (1983) (“we will not review judgments of state courts that rest on

adequate and independent state grounds.”). The Texas court stated that “[t]o the

extent [Petitioner] is attempting to raise an as-applied constitutional challenge to

Texas’s death penalty statute, he has inadequately briefed this point of error,” and

no federal sources were cited by the court in support of that holding. Rivers, 2017

WL 6505792, at *5. Thus, the court’s ruling was based on state legal briefing

requirements rather than on substantive federal law.

Finally, to the extent that the Petitioner is attempting to mount a facial

constitutional challenge to Texas's death penalty statute on the grounds that the

statute does not permit a jury to render a reasoned, individualized sentencing

determination

based

on

a

death-eligible

defendant's

record,

personal

characteristics, and the circumstances of his crime, his argument has no merit.

Rivers, 2017 WL 6505792, at *5. The Texas Court of Criminal Appeals has

repeatedly resolved similar issues against the criminal defendant raising it, and

this Court has repeatedly refused to grant writs of certiorari in those cases. See

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S.

1070 (1999); Williams v. State, AP-77,053, 2017 WL 4946865 (Tex. Crim. App.

Nov. 1, 2017), cert. denied, 2018 WL 692261 (U.S. May 14, 2018).

The

Petitioner has not advanced any new or compelling reason for this Court to

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consider this issue in the context of the present case. Therefore, certiorari review

of this claim in the present case is unwarranted.

C.

The Petitioner had no right to violate the state sentencing

statutes that have been repeatedly upheld by this Court,

and a review of the issue would contribute little to our

jurisprudence.

In his second and final question presented, the Petitioner complains that the

trial court violated his rights under the Eighth and Fourteenth Amendments to the

United States Constitution when it denied his motion to include life without parole

as a sentencing option and instead tried him pursuant to the applicable statutory

sentencing provisions. (Pet. 15-24). But this Court has approved Texas’s capital

murder sentencing scheme, and there is no constitutional requirement that Texas

district courts violate that scheme in order to expand the sentencing options.

In Andrade v. McCotter, 805 F.2d 1190 (5th Cir. 1986), the Fifth Circuit

addressed the question and explained:

The Texas capital punishment statute passed muster in Jurek v.

Texas, 428 U.S. 262 (1976). The punishment to be assessed for the

offense of capital murder, as for all other state criminal offenses, is a

matter for the state legislature. Neither the eighth amendment nor any

other provision of the Constitution mandates the enactment of a

particular punishment for a particular crime. That determination is

left to the exercise of judgment by each “democratically elected

legislature.” The Texas legislature has established two punishments

for capital murder, death and life imprisonment. Neither sentence is

constitutionally disproportionate and a constitutional sentencing

7

scheme does not require the establishment of the third sentencing

option…

Id., 805 F.2d at 1193 (citations omitted). The Texas Court of Criminal Appeals

has repeatedly rejected claims that the applicable sentencing scheme is

unconstitutional for failing to provide the jury with the sentencing option of life

without parole, and this Court has repeatedly refused to grant petitions for

certiorari in those cases. Buntion v. State, 482 S.W.3d 58, 105 (Tex. Crim. App.

2016), cert. denied, 136 S. Ct. 2521 (2016); Luna v. State, 268 S.W.3d 594, 609

(Tex. Crim. App. 2008), cert. denied, 558 U.S. 833 (2009); Arnold v. State, 873

S.W.2d 27, 39–40 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830 (1994). The

decision of the Texas Court of Criminal Appeals is not in conflict with the

decisions of this Court or any other court, and this Court should deny the petition

for writ of certiorari.

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CONCLUSION

It is respectfully submitted that the petition for writ of certiorari should be

denied.

KIM OGG

Harris County District Attorney

ERIC KUGLER*

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

*Counsel of Record

Counsel for Respondent

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