Petition for Writ of Certiorari — Gary David Green, Petitioner v. Texas

No. _________

IN THE

Supreme Court of the United States

________________________________

GARY DAVID GREEN

Petitioner,

v.

STATE OF TEXAS,

Respondent.

________________________________

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________

RAOUL D. SCHONEMANN*

THEA J. POSEL

UNIVERSITY OF TEXAS SCHOOL OF LAW

727 East Dean Keeton Street

Austin, Texas 78722

(512) 232-9391

rschonemann@law.utexas.edu

Counsel for Petitioner

*Member, Supreme Court Bar

CAPITAL CASE

QUESTIONS PRESENTED

Petitioner Gary Green was sentenced to death in Texas in 2019. At the

sentencing phase of his capital trial, the State elicited misleading and highly

prejudicial testimony: that Gary’s own father allegedly wanted his son to die.

Though the elder Green was unable to testify at the trial, the State called

former Sheriff Bob Alford to testify that, after a domestic dispute at the Green home

decades prior, Bobby Green told the sheriff that he “wanted [the sheriff] to kill him.”

As the Texas Court of Criminal Appeals recognized, “maybe the jury felt less

moral trepidation about sentencing [Gary] to death knowing that his own father

approved.”

This petition thus presents the following questions:

Whether the holding of Andrew v. White, that general legal principles

established by this Court are to be applied to various factual patterns,

applies to the general Eighth Amendment principle established in

Caldwell v. Mississippi?

Whether the Texas Court of Criminal Appeals’ refusal to follow the

general legal principle of Caldwell v. Mississippi and assertion that

Caldwell is instead limited to its specific facts, constitutes an

unwarranted refusal to apply controlling Supreme Court precedent?

i

LIST OF RELATED DECISIONS

Texas Criminal Proceedings

State v. Green, Cause No. 19FC-1013C (94th Dist. Ct.

Nueces Co., Tex.) (state trial court proceeding)

Green v. State, 713 S.W.3d 865 (Tex. Crim. App. May 28,

2025) (Texas Court of Criminal Appeals decision on direct

appeal)

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

LIST OF RELATED DECISIONS................................................................................. ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW......................................................................................................... 1

JURISDICTION ............................................................................................................ 1

CONSTITUTIONAL PROVISIONS INVOLVED ........................................................ 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 4

HOW THE ISSUES WERE RAISED AND DECIDED BELOW ................................. 6

REASONS FOR GRANTING THE PETITION ............................................................ 9

THE TEXAS COURT OF CRIMINAL APPEALS’ ANALYSIS RELIED ON AN

OVERLY RESTRICTIVE INTERPRETATION OF THIS COURT’S

PRECEDENT AND FAILED TO ENGAGE WITH THE EIGHTH

AMENDMENT’S DEMANDS FOR HEIGHTENED RELIABILITY AND

INDIVIDUALIZED SENTENCING IN DEATH PENALTY CASES. ................. 9

I.

The State’s introduction of Sheriff Alford’s testimony regarding Petitioner’s

father’s hearsay statement violated Caldwell because it was offered to minimize

the jury’s sense of responsibility in determining whether death was the

appropriate punishment. ..................................................................................... 10

A. The Eighth Amendment demands heightened reliability in capital cases, and this Court has

applied and reaffirmed this general legal principle across various contexts in death penalty

proceedings. ............................................................................................................................ 10

1. The Eighth Amendment heightened reliability requirement in capital cases prohibits the

introduction of evidence that minimizes the jury’s sense of responsibility in

determining whether death is the appropriate sentence. ............................................. 11

iii

2. The State presented Bobby Green’s alleged statement for the apparent purpose of

minimizing the jury’s ultimate responsibility for its decision. ..................................... 12

3. This Court’s decisions compel the conclusion that admission of the statement rendered

the jury’s sentencing determination unconstitutionally unreliable under the Eighth

Amendment. ..................................................................................................................... 15

B. As this Court’s recent decision in Andrew v. White makes clear, the Texas Court of Criminal

Appeals’ blinkered application of the general legal principle announced in Caldwell

conflicts with this Court’s Eighth Amendment jurisprudence. ........................................... 16

II.

Sheriff Alford’s testimony that Petitioner’s father “wanted [Alford] to kill him”

was inadmissible as impermissible witness opinion testimony under Booth v.

Maryland and Payne v. Tennessee. ..................................................................... 19

A. Testimony or evidence of a witness’s opinions about the appropriate punishment is

irrelevant to a capital sentencing decision, and its admission creates a constitutionally

unacceptable risk that the jury may impose the death penalty in an arbitrary and

capricious manner. ................................................................................................................. 19

B. The principles of Booth and Payne forbidding the admission of “opinion” testimony by

members of the victim’s family regarding a capital defendant’s potential punishment

logically extends to similar testimony by victims of extraneous offenses, or by the members

of their family. ........................................................................................................................ 22

III. Because the Texas Court of Criminal Appeals’ decision below is irreconcilable

with this Court’s settled Eighth and Fourteenth Amendment jurisprudence,

summary reversal is warranted. ......................................................................... 23

CONCLUSION ............................................................................................................ 24

iv

TABLE OF AUTHORITIES

Cases

Federal

Andrew v. White, 604 U.S. __, 145 S. Ct. 75 (2025) .............................. 9, 10, 16, 17, 23

Beck v. Alabama, 447 U.S. 625 (1980) ........................................................................ 10

Booth v. Maryland, 482 U.S. 496 (1987) ..............................................................passim

Caldwell v. Mississippi, 472 U.S. 320 (1985) .......................................................passim

California v. Ramos, 463 U.S. 992 (1983) ................................................................... 10

Christeson v. Roper, 574 U.S. 373 (2015) .................................................................... 23

Gardner v. Florida, 430 U.S. 349 (1977)............................................................... 11, 20

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................ 10

Hinton v. Alabama, 571 U.S. 263 (2014) .................................................................... 23

Jefferson v. Upton, 560 U.S. 284 (2010) ...................................................................... 23

Kansas v. Carr, 577 U.S. 108 (2016) ........................................................................... 17

Lockett v. Ohio, 438 U.S. 586 (1978) .......................................................................... 15

Lynch v. Arizona, 578 U.S. 613 (2016) ........................................................................ 23

Panetti v. Quarterman, 551 U.S. 930 (2007)............................................................... 17

Payne v. Tennessee, 501 U.S. 808 (1991)..............................................................passim

Porter v. McCollum, 558 U.S. 30 (2009) ...................................................................... 23

Romano v. Oklahoma, 512 U.S. 1 (1994) .................................................................... 17

Sears v. Upton, 561 U.S. 945 (2010)............................................................................ 23

South Carolina v. Gathers, 490 U.S. 805 (1989) ........................................................ 20

Wearry v. Cain, 577 U.S. 385 (2016) ........................................................................... 23

White v. Woodall, 572 U.S. 415 (2014) ........................................................................ 16

v

Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................. 11, 15

Yarborough v. Alvarado, 541 U.S. 652 (2004) ............................................................ 16

State

Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................ 21

Constitutional Provisions

U.S. Const. amend. VIII .......................................................................................passim

U.S. Const. amend. XIV ........................................................................................... 1, 23

U.S. Const. Art. III, § 2 ................................................................................................ 16

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Tex. Code. Crim. Pro. art. 37.071 §2(b)(1) .................................................................. 14

Tex. Code. Crim. Pro. art. 37.071 §2(e)(1) .................................................................. 14

Rules

Sup. Ct. R. 13 ................................................................................................................. 1

Sup. Ct. R. 30 ................................................................................................................. 1

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Gary David Green respectfully petitions this Court for a writ of

certiorari to review the judgment of the Texas Court of Criminal Appeals in his case.

OPINION BELOW

The Texas Court of Criminal Appeals’ decision affirming Petitioner’s conviction

and death sentence on direct appeal is unpublished and is reprinted in full in the

Petition Appendix at pages 1a–40a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257(a). The Texas Court of

Criminal Appeals entered its judgment on May 28, 2025. This petition is timely

pursuant to Supreme Court Rules 13.3 and 30.1 and this Court’s order dated August

25, 2025.

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides, in

relevant part, that “cruel and unusual punishments [shall not be] inflicted.” U.S.

Const. amend. VIII.

The Fourteenth Amendment to the United States Constitution provides, in

relevant part, that “[no] State shall … deprive any person of life, liberty, or property

without due process of law....” U.S. Const. amend. XIV.

1

INTRODUCTION

In a capital case where the State seeks to minimize or displace the jury’s

responsibility for its sentencing determination, especially through the presentation

of misleading information, “the standard of reliability that the Eighth Amendment

requires” is not met. Caldwell v. Mississippi, 472 U.S. 320, 328–29 (1985).

The question presented here arises from the State’s introduction of out-of-court

statements allegedly made by Petitioner’s father in 1998, which were offered at

Petitioner’s trial through a third-party witness, former Johnson County Sheriff Bob

Alford. At the sentencing phase of trial, the prosecution called Alford to testify about

a hearsay statement ostensibly made by Petitioner’s father more than two decades

earlier when Alford responded to a call at the Greens’ home. According to Alford,

when he arrived at the Greens’ home he encountered Bobby Green, Petitioner’s

father, who said to Alford: “I want you to kill him.” 35 RR 13. Alford’s testimony

focused almost entirely on the 1998 conversation with Bobby Green and the

statement Mr. Green purportedly made to Sheriff Alford at that time. 35 RR 8–15.

The State’s apparent objective in eliciting Alford’s brief testimony was to

suggest to the jury that Petitioner’s father, who was not called as a witness by either

side at trial, endorsed the imposition of a death sentence. Alford had not witnessed

and had no personal knowledge of the events underlying the domestic dispute, and

the State did not elicit any testimony from him about it. Instead, the prosecution

called other witnesses to testify about the underlying dispute and the events

2

precipitating Alford’s arrival.1 Thus, the only apparent purpose of Alford’s brief

testimony was to suggest to the jury that Petitioner’s own father, who did not testify

as a witness at Petitioner’s trial, wanted him to be sentenced to death.

Over defense counsel’s objection, the trial court admitted Sheriff Alford’s

testimony about Bobby Green’s statement.

On appeal, the Texas Court of Criminal Appeals acknowledged that the jury

may have “felt less moral trepidation about sentencing [Petitioner] to death knowing

that his own father approved.” Pet. App. 23a. Indeed, by authorizing the jury to

deflect its responsibility for the sentencing decision, the State’s suggestion that

Petitioner’s own father wished him dead injected a fundamental unfairness into the

sentencing proceeding and deprived Petitioner of the heightened reliability that the

Eighth Amendment demands. But in affirming Petitioner’s death sentence, the Court

of Criminal Appeals commented that Petitioner’s constitutional complaint about the

admission of Bobby Green’s out of court statement “exceeds the Eighth Amendment’s

protections.” Pet. App. 21a.

In light of the Court of Criminal Appeals’ overly restrictive application of this

Court’s Eighth Amendment jurisprudence, this Court should summarily reverse

Petitioner’s death sentence and remand to the Texas courts for further proceedings.

1 Prior to Alford’s testimony, the State presented two other witnesses to describe the domestic

disturbance and police response. 34 RR 58–61 (neighbor describing what she heard and the

law enforcement response); id. at 246–48 (police officer describing his own conversation with

Petitioner when responding to the same incident). Immediately after Alford’s brief testimony,

the State called Petitioner’s ex-wife, Evelyn, the complaining witness in the underlying

domestic dispute, who described in detail the events leading to the 911 call that day. 35 RR

30–35.

3

STATEMENT OF THE CASE

Petitioner Gary Green was convicted of capital murder for fatally shooting

Upton County Sheriff’s Deputy Billy Kennedy during a shootout in a convenience

store parking lot in McCamey, Texas. At the penalty phase of the trial, the State

called former Johnson County Sheriff Bob Alford to testify about a brief exchange

between himself and Petitioner’s father, Bobby Green, in which Mr. Green expressed

his frustration with Petitioner at the time and told Alford, “I want you to kill him.”

35 RR 13.

Former Sheriff Alford’s testimony related to a 1998 incident where police

responded to a domestic dispute between Petitioner and his then-wife, Evelyn, after

which Petitioner barricaded himself in his room in his parents’ home. 35 RR 11–14.

Alford testified that when the Sheriff’s Department arrived at the house, he spoke to

Petitioner’s father, Bobby Green, who was “highly upset.” Id. at 12. The State then

elicited hearsay testimony from Alford by asking him what Bobby Green said to him.

Id.2

Alford testified that Bobby Green “looked [him] in the eyes” and said, “Bob, I

want you to kill him.” Id. at 13. Sheriff Alford testified that “it shocked [him that] a

man would ask you to kill his son.” Id. He explained to Bobby that Petitioner had

2 Defense counsel immediately objected to the prosecutor’s question, “[W]hat did he say to

you?” on hearsay grounds. 35 RR 13. The State contended the proffered statement was an

excited utterance and therefore excepted from the rule against hearsay. Id. The trial court

overruled the objection and allowed the testimony. Id. Petitioner’s challenge to this

evidentiary ruling on appeal was rejected by the Texas Court of Criminal Appeals. Pet. App.

21a. Petitioner does not seek review of the state court evidentiary ruling here.

4

“done nothing to die for,” and in fact “had a bedroom [and] they lived in at the house,

so [Petitioner] had … a right to be there.” Id. Alford determined that “there was no

need of anybody getting hurt that day” so he ordered law enforcement to back off and

leave. Id. at 14. A warrant was secured for Petitioner’s arrest and he was “arrested

without a problem” the following day. Id.

Petitioner’s father, Bobby Green, did not testify at the trial. However, Maureen

Green, Bobby Green’s wife and Petitioner’s mother, testified at the sentencing phase

and her testimony suggested that Petitioner and his parents had reconciled over the

years. 37 RR 44–94. She told the jury that she had forgiven Petitioner for an incident

in which he assaulted her in the early 2000s. When asked if she thought he deserved

that forgiveness, Maureen testified: “You know, he did…. [H]e acted really

remorseful[.]” Id. Maureen testified that she and her husband, Bobby, visited

Petitioner in jail before trial when they could, despite the five-hour drive from their

home to the jail where he was being held. Id. at 73.

5

HOW THE ISSUES WERE RAISED AND DECIDED BELOW

On direct appeal of his capital conviction and death sentence, Petitioner argued

that his Eighth Amendment right to a fair and reliable determination of sentence was

violated by the admission of former Sheriff Alford’s testimony about Bobby Green’s

alleged statement made two decades earlier.

Pointing out that the State did not call Mr. Green himself to testify about the

alleged statement or the incident that prompted him to make it, Petitioner argued

that the State’s sole objective in presenting Alford’s testimony was to elicit Bobby

Green’s alleged statement in order to convey to the jury that Petitioner’s father

wanted the death penalty to be imposed on his own son. Such evidence, Petitioner

argued, could only be intended to relieve the jury of their “awesome responsibility”

for determining the appropriateness of death in this case. See Caldwell v. Mississippi,

472 U.S. 320, 328–30 (1985) (“it is constitutionally impermissible to rest a death

sentence on a determination made by a sentencer who has been led to believe that

the responsibility for determining the appropriateness of the defendant’s death rests

elsewhere”).

Petitioner further argued that the trial court’s admission of this evidence not

only violated the rule of Caldwell but also violated the rule of Payne v. Tennessee, 501

U.S. 808 (1991). As Petitioner argued below:

Were the State to attempt to introduce this kind of statement by a

victim’s family member, it would be constitutionally prohibited as

impermissible victim impact evidence under Payne v. Tennessee, 501

U.S. 808 (1991). In Payne, the Supreme Court held that evidence as to

the harm that the defendant’s crime has caused a surviving or co-victim

may be relevant to a jury’s sentencing determination, overruling the

prior holding of Booth v. Maryland barring victim impact evidence writ

6

large. Id. at 825. But the Payne Court explicitly retained the prohibition

on victim family’s opinions regarding the defendant or the punishment

he should receive. Id. at 830, n. 2…. While the statement at issue here

was not made by a victim’s family member, the same underlying

rationale for prohibiting such statements applies. The opinion of

Appellant’s father regarding whether he should receive the death

sentence is similarly irrelevant to Appellant’s sentencing determination.

Appellant’s Brief on Appeal, at 62−63.

The Texas Court of Criminal Appeals held that Petitioner’s claim “exceeds the

Eighth Amendment’s protections.” Pet. App. 21a. In so holding, the state appellate

court reasoned that Petitioner “misses Caldwell’s explicit limits,” Pet. App. 22a,

because “[Petitioner]’s father’s statement did not tell the jurors anything about their

role in the sentencing process.” Id. But, according to the Court of Criminal Appeals,

“[t]o invoke Caldwell, a defendant must show that ‘the remarks to the jury improperly

described the role assigned to the jury by local law.’ … [Petitioner]’s father’s

statement did not tell the jurors anything about their role in the sentencing process;

it certainly did not mislead them about their role.” Pet. App. 22a–23a. In so deciding,

the court reasoned:

Maybe the jury felt less moral trepidation about sentencing Appellant

to death knowing that his own father approved. But that is not the test.

The test is whether the statement might mislead the jury about its role

in deciding Appellant’s sentence. We acknowledge that jurors often

misunderstand how the criminal justice system works. See Caldwell,

472 U.S. at 342. But we cannot conceive how a juror may believe that

the accused’s father’s opinion plays any role in setting the punishment

for the crime.

Pet. App. 23a.

Therefore, the Court of Criminal Appeals held, “[t]he statement at issue did

not violate [Petitioner]’s Eighth Amendment rights.” Pet. App. 23a.

7

Nowhere in the state court opinion does the court below engage with the

Booth/Payne argument made by Petitioner. See Pet. App. 1a–40a.

8

REASONS FOR GRANTING THE PETITION

THE TEXAS COURT OF CRIMINAL APPEALS’ ANALYSIS

RELIED ON AN OVERLY RESTRICTIVE INTERPRETATION OF

THIS COURT’S PRECEDENT AND FAILED TO ENGAGE WITH

THE EIGHTH AMENDMENT’S DEMANDS FOR HEIGHTENED

RELIABILITY AND INDIVIDUALIZED SENTENCING IN

DEATH PENALTY CASES.

Petitioner’s constitutional argument below relied on the general legal principle

of Caldwell v. Mississippi that where the State seeks to minimize the jury’s sense of

responsibility for determining the appropriateness of death through unreliable,

misleading, and irrelevant evidence, the resulting sentence does not meet the

standard of reliability that the Eighth Amendment requires. Caldwell, 472 U.S. at

341. But according to the Court of Criminal Appeals, Petitioner’s arguments “miss[ed]

Caldwell’s explicit limits”—suggesting that the principle of Caldwell is limited to the

facts of Caldwell itself.

But just last term, in Andrew v. White, 604 U.S. __, 145 S. Ct. 75 (2025), this

Court emphasized that certain general legal principles necessary to the resolution of

constitutional cases may, and indeed should, be applied to various factual patterns

that implicate the general rule. In Andrew, at issue was the general principle that

introduction of unduly prejudicial evidence “could, in certain cases, violate the Due

Process Clause.” Andrew, 145 S. Ct. 80–82. Because the Tenth Circuit Court of

Appeals erroneously held that such a principle was not clearly established federal

law, this Court summarily reversed for further proceedings while emphasizing that

the Due Process principle on which Andrew relied was “indispensable to the decision

in Payne [v. Tennessee, 501 U.S. 808 (1991)].” Id. at 81.

9

Because the Texas Court of Criminal Appeals’ affirming Petitioner’s death

sentence mimics the Tenth Circuit’s error in Andrew, this Court should summarily

reverse the judgment below and remand for further proceedings.

I.

The State’s introduction of Alford’s testimony regarding

Petitioner’s father’s hearsay statement violated Caldwell because

it was offered to minimize the jury’s sense of responsibility in

determining whether death was the appropriate punishment.

A. The Eighth Amendment demands heightened reliability in

capital cases, and this Court has applied and reaffirmed this

general legal principle across various contexts in death penalty

proceedings.

This Court has stressed repeatedly since Gregg v. Georgia, 428 U.S. 153 (1976),

that the Eighth Amendment requires a heightened degree of reliability in any case

where a State seeks to take the defendant's life. See, e.g., California v. Ramos, 463

U.S. 992, 998–999 (1983) (noting that “[t]he Court, as well as the separate opinions

of a majority of the individual Justices, has recognized that the qualitative difference

of death from all other punishments requires a correspondingly greater degree of

scrutiny of the capital sentencing determination”).

The demand of “heightened reliability” in capital cases has been applied in

various contexts. Beck v. Alabama, 447 U.S. 625, 637–638 (1980) (heightened

reliability requirement has led this Court to invalidate procedural rules that

“diminish the reliability” of both guilt and sentencing determinations); Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (the “qualitative difference between

death and other penalties calls for a greater degree of reliability when the death

sentence is imposed,” including an individualized determination of sentence in which

10

the sentencer may “not be precluded from considering, as a mitigating factor, any

aspect of a defendant's character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than death.”); Gardner v.

Florida, 430 U.S. 349, 358–359 (1977) (plurality opinion) (heightened reliability

prohibits “a trial judge [from] impos[ing] the death sentence on the basis of

confidential information which is not disclosed to the defendant or his counsel”);

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) (need for

heightened reliability in capital cases prohibits states from imposing mandatory

death penalty upon conviction for a death-eligible crime). Of particular relevance

here, this Court held that in Caldwell v. Mississippi, 472 U.S. 320 (1985), that the

where the State seeks to minimize or displace the jury’s responsibility for its

sentencing determination, especially through the presentation of misleading

information, “the standard of reliability that the Eighth Amendment requires” is not

met. Caldwell, 472 U.S. at 328–329 (jury argument that “sought to minimize the

jury's sense of responsibility for determining the appropriateness of death” runs afoul

of the Eighth Amendment).

1. The Eighth Amendment heightened reliability requirement in

capital cases prohibits the introduction of evidence that

minimizes the jury’s sense of responsibility in determining

whether death is the appropriate sentence.

As this Court recognized in Caldwell, the capital jury’s sentencing decision is

a weighty and unfamiliar one, and a “capital sentencing jury is made up of individuals

placed in a very unfamiliar situation and called on to make a very difficult and

uncomfortable choice … confronted with evidence and argument on the issue of

11

whether another should die [and] asked to decide that issue on behalf of the

community.” Id. at 333. Therefore, when the State suggests that the responsibility

for the sentencing decision is diminished or lies elsewhere, jurors may in fact welcome

the chance to minimize their responsibility by displacing that responsibility on

others. 472 U.S. at 333.

In Caldwell, the State misled the jury by mischaracterizing the appellate court

as the reviewing and deciding authority on the appropriateness of death. Id. at 325–

26. This Court noted that the State’s remarks to the jury not only diminished the

jury’s sense of its sentencing responsibility but were also misleading and inaccurate.

Caldwell, 472 U.S. at 336. Additionally, the State’s argument was not linked to a

valid sentencing consideration; a jury’s reliance on the fact that appellate review is

available to a capital defendant is not a permissible reason to return a death sentence

and fact is “wholly irrelevant to the determination of the appropriate sentence.” Id.

2. The State presented Bobby Green’s alleged statement for the

apparent purpose of minimizing the jury’s ultimate

responsibility for its decision.

As in Caldwell, the prosecution’s introduction of Petitioner’s father’s out-ofcourt statement, related to an incident that occurred more than two decades earlier,

diminished the jury’s sense of responsibility for its sentencing decision and was

unreliable and “wholly irrelevant to the determination of the appropriate sentence.”

Caldwell, 472 U.S. at 336.

Suggesting to the jury that Petitioner’s own father wanted his son to die was

the State’s apparent objective in presenting Alford’s testimony about the statement,

as the State did not elicit any other testimony from Alford related to the underlying

12

incident. Indeed, in its opinion affirming Mr. Green’s death sentence, the Texas Court

of Criminal Appeals recognized that the evidence may well have had precisely this

effect. Pet. App. 23a (“[m]aybe the jury felt less moral trepidation sentencing

[Petitioner] to death knowing his own father approved”). The possibility that the jury

felt “less moral trepidation sentencing [Petitioner] to death knowing his own father

approved” is precisely the consequence that Caldwell and this Court’s heightened

reliability principle forbids.

The evidence was misleading because its apparent purpose was to suggest to

the jury that Petitioner’s father favored imposition of a death sentence on his son

when in fact there was no reliable evidence before the jury that he did. The State did

not call Bobby Green himself to testify; thus, the jury was deprived not only of the

context of Bobby Green’s feelings at the time the alleged statement was made but

also reliable evidence of his views (to the extent they were relevant at all) regarding

the appropriate penalty at the time of trial. In fact, to the extent that the record sheds

light on this question at all, it suggests the opposite: that Petitioner and his parents,

who had a somewhat troubled relationship in the past, had since resolved their issues

and reconciled. 37 RR 70–73.

Finally, the evidence was simply not “relevant to a valid state penological

interest.” Caldwell, 472 U.S. at 336. Under the Texas capital sentencing scheme,

Petitioner’s sentence was determined by the jury’s answers to two statutory “special

issue questions”: (1) “whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat to society;” and (2)

13

“whether taking into consideration all of the evidence, including the circumstances of

the offense, the defendant’s character and background, and the personal moral

culpability of the defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment without parole rather

than a death sentence be imposed.” Tex. Code. Crim. Pro. art. 37.071, §§ 2(b)(1),

2(e)(1).

Sheriff Alford’s testimony about Bobby Green’s statement to him twenty years

earlier was not relevant to either one. Had the State elicited testimony from Sheriff

Alford about the facts of the domestic dispute that occurred that day, such evidence

would arguably have been relevant to the question of future dangerousness under the

Texas capital sentencing statute and the determination of sentence in this case.

However, the entirety of Alford’s testimony consisted of background information

intended to lay the foundation for admission of Bobby Green’s statement as an

“excited utterance.” Cf. 35 RR 8–15. And as noted above, prosecutors called several

additional witnesses to testify about the events surrounding the call to law

enforcement, including a neighbor and Petitioner’s ex-wife, the complaining witness

in the underlying incident.

Indeed, the Texas Court of Criminal Appeals itself could not “conceive how a

juror may believe that the accused’s father’s opinion plays any role in setting the

punishment for the crime.” Pet. App. 23a. Thus, “the formal presentation of this

information by the State [could] serve no other purpose than to inflame the jury and

divert it from deciding the case on the relevant evidence concerning the crime and

14

the defendant.” Booth v. Maryland, 482 U.S. 496, 508 (1987). Its admission “clearly

is inconsistent with the reasoned decisionmaking [this Court] require[s] in capital

cases.” Id. at 509.

3. This Court’s decisions compel the conclusion that admission

of the statement rendered the jury’s sentencing determination

unconstitutionally unreliable under the Eighth Amendment.

Because the State impermissibly diminished the jury’s sense of responsibility

by falsely suggesting that Bobby Green wanted the death penalty to be imposed on

his own son, the erroneous admission of the statement led to an unreliable sentencing

determination by the jury in violation of the Eighth Amendment.

While Bobby Green did not take the stand to call for Petitioner’s death, the

State’s introduction of hearsay testimony suggesting to the jury that Bobby in fact

wanted Petitioner dead had the same impermissible impact. And as the Texas Court

of Criminal Appeals acknowledged, the jury may well have opted to shift that

responsibility and give weight to Bobby Green’s purported wishes, shirking their

“truly awesome responsibility” for the ultimate sentencing determination. See

Caldwell, 472 U.S. at 341; Pet. App. 23a (“Maybe the jury felt less moral trepidation

about sentencing Appellant to death knowing that his own father approved.”).

The State’s presentation of the hearsay statement injected a constitutionally

intolerable risk that the jury’s decision rested on this impermissible purpose and that

Petitioner was not given full consideration of his character and record, as required by

the Eighth Amendment’s individualized sentencing. Lockett, 438 U.S. at 601 (citing

Woodson, 428 U.S. at 304). The jury’s sentencing decision in this case “[does] not meet

15

the standard of reliability that the Eighth Amendment requires.” Caldwell, 472 U.S.

at 341.

Because the testimony of Alford introduced inaccurate and misleading

evidence wholly irrelevant to the sentencing determination that served to diminish

the jury’s sense of responsibility and “less[en its] moral trepidation about sentencing

Appellant to death,” the sentencing determination in this case “[does] not meet the

standard of reliability that the Eighth Amendment requires.” Caldwell, 472 U.S. at

341.

B. As this Court’s recent decision in Andrew v. White makes clear,

the Texas Court of Criminal Appeals’ blinkered application of

the general legal principle announced in Caldwell conflicts

with this Court’s Eighth Amendment jurisprudence.

Certain principles “are fundamental enough that when new factual

permutations arise, the necessity to apply the earlier rule will be beyond

doubt.” White v. Woodall, 572 U.S. 415, 427 (2014) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 666 (2004)).3 And this Court’s recent decision in Andrew v.

White, 604 U.S. __, 145 S. Ct. 75 (2025) again makes clear that the Texas court’s

decision rejecting Petitioner’s Eighth Amendment claim was fundamentally flawed.

Through the strictures of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), this Court in Andrew considered whether the proposition drawn from

Payne v. Tennessee that “the introduction of unduly prejudicial evidence could, in

3 While White concerned an analysis of 28 U.S.C. § 2254(d)(1), the power of this Court to

review federal constitutional questions on direct review of state court judgments concerning

questions of constitutional dimension is beyond question. U.S. Const. Art. III, §2.

16

certain cases, violate the Due Process Clause” was “clearly established” under federal

law. Andrew, 145 S. Ct. 80–82. Finding that petitioner Andrew had indeed “properly

identified” clearly established federal law for the purposes of AEDPA, this Court first

observed that “[t]he legal principle on which Andrew relies, that the Due Process

Clause can in certain cases protect against the introduction of unduly prejudicial

evidence at a criminal trial, was … indispensable to the decision in Payne [v.

Tennessee, 501 U.S. 808 (1991)].” Id. at 81.

Noting that it has “accordingly applied Payne’s framework to a claim much like

Andrew’s” in Romano v. Oklahoma, 512 U.S. 1, 12 (1994), and “relied on Payne in the

same way that Andrew sought to rely on it here” in Kansas v. Carr, 577 U.S. 108, 123

(2016), this Court pointed out it “has also relied on the underlying fundamental

fairness principle in the jury-impartiality context.” Id. at 82 (citations omitted). To

the extent that the lower court restricted the holding of Payne to its facts, this Court

held, “it was mistaken.” Id. And to the extent that the Texas Court of Criminal

Appeals held that Petitioner’s Eighth Amendment claim “misses Caldwell’s explicit

limitations” and “exceeds the Eighth Amendment protections,” the court below was

mistaken, too.

If the restrictive analysis of AEDPA does not “require … some nearly identical

factual pattern before a legal rule must be applied,” Panetti v. Quarterman, 551 U.S.

930, 953 (2007), the Texas Court of Criminal Appeals’ decision, which recognizes the

potential for the statement at issue to “less[en]” the jury’s “moral trepidation about

sentencing [Petitioner] to death,” cannot stand.

17

The Court of Criminal Appeals “[could not] conceive how a juror may believe

that the accused’s father’s opinion plays any role in setting the punishment for the

crime,” and Petitioner agrees that it should not. Just as in Caldwell, the purported

statement was “wholly irrelevant to the determination of the appropriate sentence.”

Caldwell, 472 U.S. at 336. But as the Texas Court of Criminal Appeals recognized,

the admission of the statement allegedly made by Petitioner’s father decades before

his trial may have “less[ened]” the jury’s “moral trepidation about sentencing

[Petitioner] to death” by suggesting that his “own father approved.”

By contending that Caldwell’s rule—which prohibits a state from minimizing

a capital jury’s sense of responsibility for determining the appropriateness of death

by introducing inaccurate or misleading evidence or argument—is “explicit[ly]”

limited to its facts, the Texas court below failed to recognize the appropriate scope of

this Court’s Eighth Amendment jurisprudence. As a result of this analytical error,

the Court of Criminal Appeals failed to protect Petitioner’s right to heightened

reliability in the determination of sentence that the Eighth Amendment requires in

capital cases. Because this erroneous and restrictive view of the Caldwell rule may

affect numerous other capital defendants facing the death penalty in Texas, this

Court’s intervention is therefore warranted.

18

II.

Sheriff Alford’s testimony that Petitioner’s father “wanted [Alford]

to kill him” was inadmissible as impermissible witness opinion

testimony under Booth v. Maryland and Payne v. Tennessee.

This Court’s intervention is also appropriate because the suggestion, through

Alford’s hearsay testimony, that Bobby Green “approved” of a death sentence in this

case violated the spirit of Booth v. Maryland and Payne v. Tennessee.

A. Testimony or evidence of a witness’s opinions about the

appropriate punishment is irrelevant to a capital sentencing

decision, and its admission creates a constitutionally

unacceptable risk that the jury may impose the death penalty

in an arbitrary and capricious manner.

Several decades ago, this Court confronted the admission of victim impact

evidence in capital sentencing proceedings in Booth v. Maryland, which considered

the admissibility of two types of victim impact evidence: (1) the emotional trauma

suffered by the family and the personal characteristics of the victims, and (2) the

family members’ opinions and characterizations of the crimes. 482 U.S at 503, 508

(1988). The Booth Court held that the admission of both types of evidence violates the

Eighth Amendment on the grounds that such information is “irrelevant to a capital

sentencing decision, and … its admission creates a constitutionally unacceptable risk

that the jury may impose the death penalty in an arbitrary and capricious manner.”

Id. at 503, 509.

With regards to opinion evidence, this Court wrote:

One can understand the grief and anger of the family caused by the

brutal murders in this case, and there is no doubt that jurors generally

are aware of these feelings. But the formal presentation of this

information by the State can serve no other purpose than to inflame the

jury and divert it from deciding the case on the relevant evidence

concerning the crime and the defendant. As we have noted, any decision

19

to impose the death sentence must “be, and appear to be, based on

reason rather than caprice or emotion.” Gardner v. Florida, [430 U.S.

349, 358 (1977)] (opinion of STEVENS, J.). The admission of these

emotionally charged opinions as to what conclusions the jury should

draw from the evidence clearly is inconsistent with the reasoned

decisionmaking we require in capital cases.

Booth, 482 U.S. at 508–09.

In Payne v. Tennessee, 501 U.S. 808 (1991), this Court overruled its prior

holdings in Booth and South Carolina v. Gathers, 490 U.S. 805 (1989) in part. The

Payne Court allowed that “[a] State may legitimately conclude that evidence about

the victim and about the impact of the murder on the victim’s family is relevant to

the jury’s decision as to whether or not the death penalty should be imposed.” Payne,

501 U.S. at 827. This is because “the assessment of harm caused by the defendant as

a result of the crime charged has understandably been an important concern of the

criminal law, both in determining the elements of the offense and in determining the

appropriate punishment.” Id. at 819.

However, Payne explicitly did not address, and therefore left undisturbed,

Booth’s holding that “family members’ opinions and characterizations of the crimes

and the defendant … [are] irrelevant to a capital sentencing decision” and that

admission of such opinion testimony “creates a constitutionally unacceptable risk

that the jury may impose the death penalty in an arbitrary and capricious manner.”

Booth, 482 U.S. 502–03; Payne, 501 U.S. 833 (O’Connor, J., concurring) (“Booth also

addressed another kind of victim impact evidence—opinions of the victim’s family

about the crime, the defendant, and the appropriate sentence … in today’s decision,

we do not reach this issue.”).

20

Texas courts observe the distinction between permissible victim-impact

evidence related to the character of the victim and the impact of their loss on loved

ones, and constitutionally impermissible testimony expressing an opinion regarding

the appropriate sentence. See, e.g., Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.

App. 2003) (“The wishes of the victim’s family members as to the defendant’s fate fall

beyond

the

parameters

of victim-impact evidence and

are

not

admissible.”)

(citing Payne, 501 U.S. at 830 n. 2, as “overruling the portion of Booth v.

Maryland, […] relating to victim-impact evidence, but not overruling the prohibition

on the victim’s family’s opinions on the defendant or the punishment he should

receive.”)).

A statement concerning the opinions of a victim’s family or friends about the

proper punishment for the defendant does not reveal how their lives have been

impacted by the victim’s death and is therefore irrelevant to the capital sentencing

determination. Payne, 501 U.S. at 830, n. 2; see also Simpson, 119 S.W.3d at 272.

Were the State to attempt to elicit this kind of evidence from a victim’s family

member—suggesting that they wished Petitioner to die—it would be constitutionally

prohibited as impermissible victim impact evidence under Payne, in which this Court

explicitly retained the prohibition on victim family’s opinions regarding the

defendant or the punishment he should receive. Id. at 830, n. 2.

21

B. The principles of Booth and Payne forbidding the admission of

“opinion” testimony by members of the victim’s family

regarding a capital defendant’s potential punishment logically

extends to similar testimony by victims of extraneous offenses,

or by the members of their family.

While Booth and Payne were specifically concerned with victim-impact

testimony by family members of the victim of the capital offense, the rationale of those

opinions forbidding opinion testimony as to the defendant’s sentence logically extends

to opinion testimony elicited from any witness at the penalty phase of a capital trial—

including, as here, a family member of a victim of an extraneous offense that was

admitted at the penalty phase of a capital trial.

Opinion testimony as to the defendant’s sentence is no more relevant when

elicited from family members of the victims of extraneous offenses than those of the

victims of the capital offense. Any attempt to distinguish Booth and Payne and confine

the rationale and principles of those cases to opinion testimony by family members of

the victim of the capital offense would be indefensible.

Here, the State’s presentation of Bobby Green’s alleged desire for his son’s

death served no other purpose than to inflame the jury. See Booth, 482 U.S. at 509.

Bobby Green’s views about Petitioner’s sentence were no more relevant to the jury’s

determination of sentence than those of the family members of the victim of the

capital offense. And in their closing argument, prosecutors reminded the jury that

there “were so many more” victims than just the victim of the homicide. 39 RR 43. In

this way, the State subtly suggested to the jury that a community of victims existed

in Petitioner’s wake, and summoned Bobby Green’s voice, through Alford’s hearsay

testimony, as a figurehead. And as the Texas Court of Criminal Appeals itself

22

acknowledged, perhaps “the jury felt less moral trepidation sentencing [Petitioner] to

death knowing his own father approved.” Pet. App. 23a.

Because the admission of “emotionally charged opinions” of victims “clearly is

inconsistent with the reasoned decisionmaking” this Court requires in capital cases,

Booth, 482 U.S. at 508–09, the sentencing decision in this case is inconsistent with

this Court’s requirements in this way as well.

III.

Because the Texas Court of Criminal Appeals’ decision below is

irreconcilable with this Court’s settled Eighth and Fourteenth

Amendment jurisprudence, summary reversal is warranted.

Summary reversal is appropriate. “[S]ummarily deciding a capital case, when

circumstances so warrant, is hardly unprecedented.” Wearry v. Cain, 577 U.S. 385,

395 (2016); see, e.g., Andrew v. White, 604 U.S. __, 145 S. Ct. 75 (2025); Lynch v.

Arizona, 578 U.S. 613 (2016); Christeson v. Roper, 574 U.S. 373 (2015); Hinton v.

Alabama, 571 U.S. 263 (2014); Sears v. Upton, 561 U.S. 945 (2010); Jefferson v.

Upton, 560 U.S. 284 (2010); Porter v. McCollum, 558 U.S. 30 (2009). The Court has

also “not shied away from summarily deciding fact-intensive cases where, as here,

lower courts have egregiously misapplied settled law.” Cain, 577 U.S. at 395

(summarily deciding that a capital defendant’s due process rights were violated). The

Court should do so here.

23

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Raoul D. Schonemann

Raoul D. Schonemann

Thea J. Posel

Capital Punishment Clinic

University of Texas School of Law

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-9391

rschonemann@law.utexas.edu

tposel@law.utexas.edu

24