Opposition Brief — Gary David Green, Petitioner v. Texas

No. 25-5750

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

Texas Court of Criminal Appeals

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

KEN PAXTON

Attorney General of Texas

CRAIG W. COSPER

Assistant Attorney General

Counsel of Record

BRENT WEBSTER

First Assistant Attorney General P.O. Box 12548, Capitol Station

Austin, Texas 78711

JOSH RENO

(512) 936-1400 Austin, Texas 78711

Deputy Attorney General

craig.cosper@oag.texas.gov

For Criminal Justice

TOMEE M. HEINING

Chief, Criminal Appeals Division

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

1.

Whether the admission of excited-utterance testimony indicating

Green’s father wanted a police officer to kill Green following a separate

violent assault on Green’s wife over twenty years prior to Green’s capital

murder trial violated the Eighth Amendment by minimizing the jury’s

sense of responsibility for determining the appropriateness of a death

sentence in his capital murder trial?

2.

Whether the admission of excited-utterance testimony indicating

Green’s father wanted an officer to kill Green following an assault on

Green’s wife, two decades before his capital murder trial, was

constitutionally impermissible victim testimony on the appropriate

sentence for the later murder of a police officer, even where the State

immediately elicited testimony that Green’s death was not warranted for

the prior assault and Green’s mother indicated the family later

reconciled?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................. i

TABLE OF CONTENTS ...................................................................................... ii

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

BRIEF IN OPPOSITION..................................................................................... 1

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

I.

Facts of the Crime.............................................................................1

II.

Punishment Phase Evidence ............................................................3

REASONS FOR DENYING THE WRIT ............................................................ 6

I.

II.

Certiorari Review Should Be Denied Where the TCCA’s Decision

Was Not Contrary to This Court’s Precedent........................................... 6

A.

Background .......................................................................................7

B.

The TCCA’s rejection of Green’s Caldwell claim was

consistent with this Court’s prior Eighth Amendment

decisions. ........................................................................................ 12

C.

Green’s father’s statement from 1998 was not impermissible

victim testimony about the appropriate sentence for Green’s

2013 murder of Deputy Kennedy. ................................................. 17

D.

Even if the lower courts erred in their analysis, Green’s

claim still fails because any error was harmless. ........................ 19

This Case Is a Poor Vehicle to Consider Green’s Eighth

Amendment Claim. .................................................................................. 20

CONCLUSION ................................................................................................... 21

ii

TABLE OF CITED AUTHORITIES

Cases

Andrew v. White, 604 U.S. 86 (2025) .................................................... 14, 15, 16

Booth v. Maryland, 482 U.S. 496 (1987)....................................................... 7, 17

Bosse v. Oklahoma, 580 U.S. 1 (2016) ........................................................ 17, 18

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

Cavazos v. Smith, 565 U.S. 1 (2011) ................................................................. 19

Chapman v. California, 386 U.S. 18 (1967) ..................................................... 19

Compton v. State, 666 S.W.3d 685 (Tex. Crim. App. 2023) ............................. 17

Dugger v. Adams, 489 U.S. 401 (1989) ............................................................. 12

Kansas v. Carr, 577 U.S. 108 (2016) ........................................................... 10, 14

Payne v. Tennessee, 501 U.S. 808 (1991) ................................................ 7, 16, 17

Romano v. Oklahoma, 512 U.S. 1 (1994) ........................................ 11, 12, 13, 14

Simpson v. State, 119 S.W.3d 262(Tex. Crim. App. 2003)............................... 17

Taylor v. Rojas, 592 U.S. 7 (2020) ..................................................................... 19

Statutes

28 U.S.C. § 2254(d)(1) ........................................................................................ 15

Rules

Sup. Ct. R. 10 ......................................................................................... 16, 19, 20

Constitutional Provisions

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

iii

BRIEF IN OPPOSITION

Petitioner Gary David Green was convicted of capital murder and

sentenced to death for killing Billy Kennedy, an Upton County Sheriff’s

Deputy, during a shootout at a gas station. Green now seeks a writ of certiorari

from the Texas Court of Criminal Appeals’ (TCCA) denial of his direct appeal.

Green fails to present a compelling issue for this Court’s review. The TCCA’s

rejection of Green’s claims was not contrary to any decision of this Court and

Green fails to present a compelling question calling for this Court’s review.

Thus, certiorari review is not appropriate here and Green’s petition should be

denied.

STATEMENT OF THE CASE

On direct appeal, the TCCA affirmed Green’s conviction and death

sentence for murdering Deputy Kennedy. Green v. State, 713 S.W.3d 865 (Tex.

Crim. App. 2025).

I.

Facts of the Crime

The TCCA provided the following summary of the facts of Green’s capital

crime:

On the night of October 2, 2013, Adan Silvas was working as

a clerk at the Stripes convenience store in McCamey when, around

9:30 PM, he noticed a red flatbed pickup truck had been parked for

a long time at one of the pumps. Silvas approached the truck and

talked with the driver who tried to get Silvas to give him some gas.

Silvas refused, and the driver told Silvas that “it was better for

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[him] to go back inside.” Silvas testified that “he didn’t feel

threatened in any way by [the driver]” but thought the comment

“was just weird.”

At 10:00 p.m., Silvas’ shift ended, Alexis Landon came on

duty, and Silvas told her about the truck before he left. Landon did

not approach the car. She talked briefly with Deputy [Thomas]

Stiles—whose wife worked at Stripes and who stopped by often—

but did not discuss the idle car with him. After Stiles left, the

driver of the truck entered the store. He tried to buy several items

and gas, but his debit card did not work, and he had no money. He

offered Landon his debit card in exchange for the gas and

merchandise. She refused that offer but gave him ten dollars’

worth of free food pursuant to a company policy. He told her that

he was “in hell” and that “[h]e didn’t want to get [her] in trouble,

but he also didn’t want anybody to die either.” Landon testified

that she “didn’t really think too much on that statement” or “think

that he really meant anything.” She considered him “just another

customer that was upset saying things.” But by about 11:00 she

was concerned enough to mention the conversation to Stiles when

he came back to the store with Deputy Kennedy.

After speaking to Landon, Stiles approached the truck,

considering it to be a welfare concern. He encountered a man

seemingly asleep in the driver’s seat. Stiles knocked on the window

and introduced himself as “Deputy Stiles with the Upton County

Sheriff’s Office.” He questioned the man about where he was

coming from and where he was going and asked for his driver’s

license. The man answered the questions and provided his driver’s

license. The driver’s license identified the man as Gary David

Green, Appellant in this case.

While Stiles was talking with [Green], Kennedy came out of

the store, stopped at his patrol SUV, and then walked over to stand

next to Stiles at the driver’s window where they both faced [Green].

Stiles and Kennedy then moved together to the back of the truck

where Stiles contacted the dispatcher to run [Green’s] driver’s

license and the truck’s license plate. The dispatcher told Stiles that

the truck had been reported stolen, Stiles told Kennedy, and

Kennedy walked past the driver’s door to the windshield to check

the truck’s vehicle identification number. Stiles heard a gunshot

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and saw Kennedy “flying across the ground.” Kennedy returned

fire from the ground, and [Green] kept shooting at him.

Stiles pulled his gun and ordered [Green] to drop his weapon,

but [Green] did not. Stiles moved toward the store for cover and

fired at [Green], and [Green] returned his fire until his gun

jammed. Stiles repeatedly ordered [Green] to drop his gun and get

out of the truck, but he would not. Ultimately, Stiles shot [Green]

while [Green] was leaning on the armrest of the open truck door.

[Green] fell to the ground, and Stiles kicked the gun away from

him and went to Kennedy’s aid. He performed CPR, but Kennedy

was “pretty much nonresponsive” by then, and he died there.

Green, 713 S.W.3d at 876–77; Pet. App’x 5a–7a.

II.

Punishment Phase Evidence

The TCCA summarized Green’s lengthy violent record, disregard for the

law, lack of remorse, and misbehavior in custody while holding the punishment

evidence supported the jury’s verdict:

B.

Evidence in Support of Finding

1.

Circumstances of the Offense

When [Green] ambushed Kennedy, he had just stolen a truck

and gun from a ranch in Odessa. A jury could reasonably infer that

he opened fire on the deputies when he realized that his thefts

were about to be discovered. He stopped firing only when the gun

he had stolen jammed, and his pre-shootout comment that he

“didn’t want anybody to die” could have suggested to the jury that

he was contemplating murder even before the deputies approached

him.

2.

Prior Violence

In 1995 at age thirty-two, [Green] threatened to kill his

parents and burn down their house. Five years later, [Green] again

assaulted his mother, beating her so brutally that she suffered

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cognitive and speech problems afterwards. He was convicted of

aggravated assault for that later incident and placed on

community supervision, but it was revoked and he was sentenced

to ten years in prison. His parents got a protective order against

him, and he violated it. They feared him so much that they got

concealed-carry licenses and still had them when [Green] was tried

in this case.

When his son Kyler was a young child in 2000, Kyler’s

mother got a protective order on behalf of Kyler and herself. In

2011, when Kyler was a teenager, [Green] tied him to a cement

block and “beat him with a bull whip.”

[Green’s] three ex-wives testified that [Green] “beat” them

“often”; he punched them with his fists all over, including on the

face and head; he backhanded them, choked them, pushed them

up against walls, pulled them by their hair, and repeatedly

threatened to kill them. He perpetrated many of these assaults in

front of children. He assaulted Kyler’s mother while she was

pregnant with him. During a fight with his first ex-wife, he threw

a dog across the room and broke a chair across its back. He brutally

assaulted his second ex-wife just months before he murdered

Deputy Kennedy—nineteen years after their divorce.

[Green] was violent against non-family members, too. In

high school, [Green] got into a fight at a school dance. As an adult,

he assaulted a neighbor who tried to intervene when [Green]

assaulted his first wife. He hit an employer’s husband so hard that

the man fell to the ground. In prison, he assaulted his cell mate.

He repeatedly threatened to kill a man who dated his first wife

while they were separated when [Green] was in jail. A friend of his

testified that while [Green] was her housemate, she called 911

fearing that he and his girlfriend were going to “beat [her] up.” And

he set fire to his third ex-wife’s brother’s trailer.

3.

Escalating Violence and Disregard for the Law

Multiple witnesses, testified that [Green] was “definitely

not”—and was “everything but”—a law-abiding citizen; he was not

peaceful, he “didn’t follow the law,” and he had a “tendency for

violence.” Further, these witnesses testified, and the evidence

4

showed, that [Green’s] violent behavior escalated as he aged. He

was fifty when he committed this capital murder.

4.

Lack of Remorse

[Green] demonstrated a general lack of remorse while he was

in a substance abuse treatment program in 2011-2012; he denied

having harmed others and never expressed remorse for anything

he had done. He demonstrated a similar lack of remorse about

having killed Kennedy. In a phone call he made from jail while

awaiting trial, he described shooting Kennedy and referred to him

as “the one [he] took care of” and blamed Kennedy for provoking

the confrontation and shooting first.

5.

Misbehavior in Custody

In another call made while awaiting trial for this case,

[Green] admitted his guilt but schemed with a friend to influence

potential jurors with a Facebook page. In another call, he bragged

about fighting with his “cellie” while in TDCJ. In a call with his

mother, [Green] said that he was sending a “bad bastard” to “beat

the shit out of [his son Kyler]” if necessary. And, in a letter to

Kyler, who was also incarcerated, [Green] advised that “a fight

case sux, but there are necessary things that cannot be avoided”;

and he endorsed his son’s violence, expressing that “[t]he

important thing is that you beat the shit out of the other person

and made the consequences worth it.”

C.

Countervailing Evidence

[Green] offered a doctor’s testimony about the permanent

and degenerative nerve damage he suffered from his gunshot

wound, his need for a walker at the time of trial, and the likelihood

that he would eventually be wheelchair-bound. He presented

expert testimony from Frank AuBuchon about the prison

classification system and [Green’s] likely classification. AuBuchon

explained that the risk of violence “is a function of context” and

opined that, given [Green’s] physical disabilities, TDCJ would be

able to manage him and minimize any chance of future violence.

[Green] also offered testimony from nine jailers who said that

while he was in custody awaiting trial, he was “cooperative,” “very

5

polite,” “respectful,” and “follow[ed] rules”; and he had no

disciplinary infractions or negative interactions with law

enforcement officials or fellow inmates.

D.

Analysis

The jury’s affirmative answer was supported by the facts of

this capital murder, its surrounding circumstances, [Green’s] lack

of remorse in general and his lack of remorse for this crime in

particular, his blaming Kennedy for this crime, and his

longstanding and escalating patterns of violence and disrespect for

the law. His countervailing evidence did not render the evidence

in favor of “yes” legally insufficient. The jury was free to discount

it and had reasons to do so. For example, several witnesses

testified that they had seen [Green] ambulate without his walker,

and anyway there was nothing wrong with his hands, often his

weapon of choice throughout his life. As for his good behavior in

jail while awaiting trial, he had a self-serving motivation to

behave, and he undermined the weight of this good-behavior

evidence by contemporaneously promoting violence to his son and

scheming to influence his future jury via Facebook.

Green, 713 S.W.3d at 879–80; Pet. App’x 11a–15a.

REASONS FOR DENYING THE WRIT

I.

Certiorari Review Should Be Denied Where the TCCA’s Decision

Was Not Contrary to This Court’s Precedent.

Green claims the admission of testimony indicating Green’s father

wanted law enforcement to kill Green during a different violent incident that

occurred approximately fifteen years before the 2013 capital murder of Deputy

Kennedy, and over twenty years before the capital murder trial, violated his

Eighth Amendment rights. Pet. i, 2–3, 6–23. Specifically, Green asserts the

testimony violated the rule of Caldwell v. Mississippi, 472 U.S. 320 (1985), by

6

minimizing

the

jury’s

sense

of

responsibility

for

determining

the

appropriateness of a death sentence through unreliable, misleading, and

irrelevant evidence. Pet. 2–3, 6–7, 9–18. Green also asserts the testimony

violated the rule of Payne v. Tennessee, 501 U.S. 808 (1991), and Booth v.

Maryland, 482 U.S. 496 (1987), because it was constitutionally impermissible

victim testimony expressing an opinion regarding the appropriate sentence.

Pet. 6–8, 19–23. But contrary to his assertions, the TCCA’s decision did not

misapply or conflict with the cases cited by Green. Therefore, this Court should

deny certiorari.

A.

Background

Green raised his Eighth Amendment claims concerning the testimony

from Sheriff Alford on direct appeal. Appellant’s Brief on Appeal, at 52−66. The

TCCA summarized the testimony at issue as follows:

Alford testified for the State about an incident in which law

enforcement responded to the home of [Green’s] parents when

[Green] had assaulted his then-wife Evelyn Green and barricaded

himself inside. The Sheriff testified about his on-the-scene

encounter with Bobby Green, [Green’s] father[.] The statement

in dispute was Bobby’s wish that the Sheriff would kill [Green]:

Q.

Okay. And could you give the jury just a little bit

of context about what you saw and what

happened while you were there?

A.

We received a call that it was a domestic issue

going on, a barricaded subject, and we were told

that it was [Green] barricaded in the house. We

7

arrived on scene and found that Maureen[ 1] had

been assaulted and Bobby was -- Bobby was

there and highly upset.

Q.

Okay. Did you have a conversation with Bobby?

A.

Yes, ma’am, I did.

Q.

Okay. Were there multiple law enforcement

agencies represented in person and by their

vehicles?

A.

Just us and the Godley P.D. as best I recall.

Q.

And describe Bobby’s demeanor during this

time.

A.

Bobby was very agitated, very upset, mad.

Q.

And what was he mad about?

A.

He was mad about [Green] being in the house

and assaulting Maureen.

Q.

Okay. And was he under the -- the impact of

everything that was going on at the -- at that

moment when you were having your

conversation with him?

A.

Yes, ma’am.

Q.

And what did he say to you?

[DEFENSE COUNSEL]:

Your Honor, we’re going

to object to the hearsay

on this.

In this exchange, Alford refers to Maureen, [Green’s] mother, as the victim of

the assault. Both parties indicate in their briefing that the sheriff mistakenly referred

to Maureen when the incident involved Evelyn, [Green’s] third wife.

1

8

[PROSECUTOR]:

THE COURT:

It’s

an

excited

utterance, Your Honor.

All right. It’s overruled.

Q.

(BY [PROSECUTOR]) You can answer.

A.

Bobby Green looked me directly in the eye and

said, “Bob, I want you to kill him.”

Q.

And how did you end that conversation with

Bobby?

A.

Well, it shocked me a man would ask you to kill

his son. It really just set me back. And I just took

a breath and I said, “Bobby, he’s done nothing to

die for today. I can’t kill him.”

Green, 713 S.W.3d at 880–81; Pet. App’x 15a–17a.

The statement from Green’s father and the events described by Sheriff

Alford occurred in 1998, over twenty years prior to Green’s 2019 trial. 35 RR

1, 11–15. Sheriff Alford also noted that the case was a simple assault, not even

a felony, and officers determined it was not necessary to take Green’s life. 35

RR 13–14. In fact, they simply backed down and arrested Green the following

day. 35 RR 14.

Sheriff Alford went on to describe a separate assault on Green’s mother

from 2000. 35 RR 14. He also provided testimony that Green was a frequent

guest in the county jail, and he was everything but a law-abiding citizen. 35

RR 15.

9

In addition to the testimony elicited by the prosecution about why

Green’s death was not an appropriate outcome for the 1998 incident, there was

also testimony from Green’s mother about how the family later reconciled. 37

RR 70–75. Green’s father was in the hospital and did not testify himself. 34 RR

34; 37 RR 44. When questioned about the possible death sentence, Green’s

mother told the jury how Green’s life had value. 37 RR 74–75.

The TCCA rejected Green’s Eighth Amendment claim. Pet. App’x 21a–

23a. On direct appeal, Green raised a two-part claim alleging the instant

Eighth Amendment challenge as well as a Sixth Amendment confrontation

allegation, both of which the State argued were not properly preserved. See

Pet. App’x 21a. The TCCA did not address the Sixth Amendment allegation,

finding it inadequately briefed. Pet. App’x 21a. The court also did not address

whether Green could raise his Eighth Amendment claim for the first time on

direct appeal, finding instead that his claim was outside the Eighth

Amendment’s protections. Pet. App’x 21a. Specifically, the Court rejected the

claim noting first that “the Eighth Amendment is not a rule of evidence,” and

“is ‘inapposite to claims that evidence should not have been admitted, even if

that evidence would ‘render the trial fundamentally unfair.’” Pet. App’x 21–

22a (citing Kansas v. Carr, 577 U.S. 108, 123 (2016)).

The TCCA also rejected Green’s Caldwell argument, finding that Green

“miss[ed] Caldwell’s explicit limit[ation]” to testimony that was “false and

10

misleading.” Pet. App’x 22a (citing Caldwell, 472 U.S at 328–29 (plurality

opinion); and id. at 341–43 (J. O’Connor, concurring)). However, the TCCA

found that it was permissible to give “nonmisleading and accurate information

regarding the jury’s role in the sentencing scheme” and, to invoke Caldwell,

Green must show that the testimony “’improperly described the role assigned

to the jury by local law.’” Pet. App’x 22a (citing Romano v. Oklahoma, 512 U.S.

1, 9 (1994)).

On these grounds, the TCCA denied relief, concluding that Green’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’x at 22–23a; see Romano, 512 U.S. at 9 (the evidence was acceptable

because “it was neither false at the time it was admitted, nor did it even pertain

to the jury’s role in the sentencing process”). And while Green’s father’s

testimony may have caused the jury to feel “less moral trepidation about

sentencing [Green] to death knowing that his own father approved,” that is not

the test. Pet. App’x 23a. Rather, the test is whether the jury was misled about

its role in deciding Green’s sentence. Id. The TCCA 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.” Id. Consequently, the statement did not violate

Green’s Eighth Amendment rights. Id.

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B.

The TCCA’s rejection of Green’s Caldwell claim was

consistent with this Court’s prior Eighth Amendment

decisions.

Green’s Caldwell claim is meritless. As this Court has made clear, to

establish a Caldwell violation, the defendant must show the jury was

misinformed about its legal role. Romano, 512 U.S. at 9; Dugger v. Adams, 489

U.S. 401, 407 (1989) (“To establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly described the

role assigned to the jury by local law.”). Here, as the TCCA found, Green’s

father’s statement twenty-year’s prior, did not say anything about the jury’s

role at Green’s capital murder trial, nor did it mislead the jury about their legal

role in that trial. Pet. App’x 22a–23a. In denying relief, the TCCA simply

applied this Court’s controlling precedent requiring proof that the testimony

was both false and misleading about the jury’s role in the sentencing system.

See Caldwell, 472 U.S. at 328–29; id. at 341–43.

Green highlights the TCCA’s statement that “[m]aybe the jury felt less

moral trepidation” about imposing a death sentence due to Green’s father’s

statement. Pet. i, 3, 13, 16, 18. Yet, in Romano, this Court rejected a Caldwell

claim where the jury was informed that another jury had already sentenced

the defendant to death in a separate case. Romano, 512 U.S. at 3–4, 6, 8–10.

That separate conviction and death sentence were overturned later. Id. at 5.

Nevertheless, the Court found no Caldwell violation because “the jury was not

12

affirmatively misled regarding its role in the sentencing process” and “[t]he

evidence at issue was neither false at the time it was admitted, nor did it even

pertain to the jury’s role in the sentencing process.” Id. at 9–10. If knowledge

of a prior jury’s death sentence was insufficient for relief under Caldwell,

Bobby Green’s exited utterance from two decades prior does not support a

claim that his statement minimized the jury’s role here. Consequently, Green’s

Caldwell claim lacks merit.

Additionally, contrary to his assertions, Pet. 13–14, Green fails to show

Sheriff Alford’s testimony about Bobby Green’s statement was false,

unreliable, misleading, or irrelevant. He presents no proof contradicting the

testimony or showing it was unreliable. The statement did not misleadingly

suggest Green’s father now favored death for the murder of Officer Kennedy.

Indeed, evidence from trial indicated the two had reconciled. 37 RR 70–75.

The evidence was certainly relevant to future dangerousness. In its brief

on appeal, the State indicated it offered Bobby Green’s statement to support

the evidence that Green’s abusive and violent behavior was continuing to grow

as he aged. State’s Brief on Appeal, at 27–28, 33–34. The prosecutor asserted

Green’s father’s statement expressed a growing concern that his son was

becoming more and more violent when the incident occurred in 1998, over

twenty years before Green’s capital murder trial. State’s Brief on Appeal, at

27–28, 33–34. Evidence that Green’s own father even briefly wanted his son

13

dead shows how dangerous and violent he had become and was relevant to

future dangerousness. As to his reliance on the TCCA’s statement that it 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. 14, the court did not say

the testimony was irrelevant. Rather, in the context of the opinion, the TCCA

was simply saying it did not impact the jury’s role and responsibility in setting

punishment. Pet. App’x 23a.

In any event, as the TCCA recognized, the Eighth Amendment does not

“establish a special ‘federal code of evidence’ governing ‘the admissibility of

evidence at capital sentencing proceedings.’” Carr, 577 U.S. at 123 (quoting

Romano, 512 U.S. at 11–12 (1994)). “[M]ere admission of irrelevant and

prejudicial evidence,” without more, does not violate the Eighth Amendment.

Romano, 512 U.S. at 11. Thus, for the reasons provided by the TCCA, Green’s

Caldwell claim lacks merit. 2

Green argues that the holding of Andrew v. White, 604 U.S. 86 (2025),

recognizing that general legal principles established by the Supreme Court are

to be applied to various factual patterns, applies to the general Eighth

Green did not object on the basis of relevance or that it was unduly prejudicial

at trial, and he did not raise such claims under Texas Rules of Evidence 402 or 403

on direct appeal, although he did claim it was irrelevant, unreliable, misleading, and

prejudicial as part of his multifarious fourth ground raised for the first time on direct

appeal. Appellant’s Brief on Appeal, at 52−66.

2

14

Amendment principle established in Caldwell. Pet. i, 9, 16–18. Green is trying

to use Andrew to expand Caldwell’s holding to the facts here. Green’s reliance

on Andrew is meritless.

Andrew is not relevant or applicable here, as it is both legally and

factually distinguishable. First, Andrew is a federal habeas case discussing the

proper application of 28 U.S.C. § 2254(d)(1), see Andrew, 604 U.S. at 91–92,

while Green’s case comes off a direct appeal. Second, in Andrew, the Court

found “[t]he State spent significant time at trial introducing evidence about

Andrew’s sex life and about her failings as a mother and wife, much of which

it later conceded was irrelevant.” Id. at 87. In contrast, the testimony here was

brief, the statement’s impact was minimized by other testimony about the

family’s later reconciliation and the inappropriateness of death for the assault,

and the statement was relevant to the jury’s determination of the future

dangerousness issue. And the State has not conceded it was irrelevant.

Third, in Andrews, this Court determined the federal appellate court had

erroneously rejected Andrew’s claim that the evidence had been so prejudicial

as to violate the Due Process Clause because it wrongly thought no holding of

the Court established a general rule that the erroneous admission of

prejudicial evidence could violate due process. Id. at 87–88. The Court noted it

had made clear that when “evidence is introduced that is so unduly prejudicial

that it renders the trial fundamentally unfair, the Due Process Clause of the

15

Fourteenth Amendment provides a mechanism for relief.” Id. at 88 (citing

Payne, 501 U.S. at 825). The federal appellate court in Andrew did not even

consider whether the Oklahoma Court of Criminal Appeals unreasonably

applied Payne. Id. at 91.

Here, the TCCA recognized the general rule from Caldwell, it just

concluded that Green’s father’s statement did not tell the jurors anything

about their role in the sentencing process or mislead them about their role. Pet.

App’x 21a–23a. Therefore, unlike the court Andrew, the TCCA applied and

distinguished the applicable law, rather than say there was no applicable rule

at all. On these facts, Andrew adds little to this case.

Ultimately, Green presents no compelling reason for the Court to expend

its limited resources and grant certiorari. Green essentially argues the TCCA

misapplied this Court’s precedent by applying an “overly restrictive”

interpretation of Caldwell. Pet. 3, 9. This is not a good reason for a grant of

certiorari on what is ultimately an unpreserved challenge to a state court

evidentiary ruling. See Sup. Ct. R. 10 (“A petition for a 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.”) Therefore, certiorari

should be denied.

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C.

Green’s father’s statement from 1998 was not impermissible

victim testimony about the appropriate sentence for

Green’s 2013 murder of Deputy Kennedy.

Green also argues that Sheriff Alford’s testimony about Green’s father’s

statement violated the “spirit” of Booth v. Maryland, 482 U.S. 496 (1987), and

Payne v. Tennessee, 501 U. S. 808 (1991), because it was impermissible victim

opinion testimony about the appropriate sentence in this case. Pet. 19–23. The

State recognizes that despite the Supreme Court overruling part of Booth in

Payne, the Eighth Amendment still bars victim opinion testimony on the

appropriate verdict. Bosse v. Oklahoma, 580 U.S. 1 (2016) (per curiam) (“The

Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on

characterizations and opinions from a victim’s family members about the

crime, the defendant, and the appropriate sentence unless this Court

reconsiders that ban.”). But Bobby Green’s statement does not constitute

victim opinion testimony about the appropriate verdict in this case as

contemplated by Booth.

Although the TCCA did not specifically address the Booth/Payne

component when rejecting Green’s likely unpreserved fourth ground on direct

appeal, the TCCA recognizes that victim opinion testimony about the

appropriate sentence is impermissible. Compton v. State, 666 S.W.3d 685, 713

(Tex. Crim. App. 2023); 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

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fall beyond the parameters of victim-impact evidence and are not admissible.”).

Further, unlike Bosse, there is no evidence the TCCA concluded Payne

overruled all of Booth. Bosse, 580 U.S. at 2–3. Here, Green’s father’s statement

does not constitute victim opinion testimony about the appropriate sentence in

this case under Booth. Booth and Bosse prohibit the use of formal victim impact

statements on the appropriate sentence for the crime being tried. Bosse, 580

U.S. at 2–3. Bobby Green’s 1998 statement, an excited utterance made in the

heat of the moment regarding an instance of domestic violence, and apparently

reconsidered later, was not victim opinion testimony about the appropriate

sentence for this capital murder case that went to trial in 2019. See supra, Part

I(A). Bobby Green’s statement did not address the special issues the jury had

to decide after hearing all the evidence on future dangerousness and mitigating

circumstances, especially the evidence from 1998 to the 2019 trial. It was not

constitutionally impermissible testimony expressing an opinion regarding the

appropriate sentence in this case, as it happened twenty years prior, involved

a different incident, and by Green’s own admission, was later changed.

Appellant’s Brief on Appeal, at 61. It was also not a formal victim impact

statement prepared after thoughtful consideration for sentencing purposes in

this case. Further, immediately after the testimony about the statement,

Sheriff Alford made clear the Green had not done anything that warranted his

death during that assault incident. 35 RR 13–14. Under the facts of this case,

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Bobby Green’s statement was not impermissible victim testimony about the

appropriate sentence in this capital murder case, and the State made clear that

the prior assault did not warrant a death sentence itself. Therefore, there was

not a Booth/Payne violation.

As with his Caldwell claim, Green presents no compelling reason for the

Court to grant certiorari. Green arguments amount to claims that TCCA

misapplied this Court’s precedent. Such claims rarely warrant a grant of

certiorari. See Taylor v. Rojas, 592 U.S. 7, 11 (2020) (Alito, J., concurring) (A

question “which turns entirely on an interpretation of the record in one

particular case, is a quintessential example of the kind that we almost never

review.”); Cavazos v. Smith, 565 U.S. 1, 11 (2011) (Ginsburg, J., dissenting)

(noting the Court rarely engages in error correction); Sup. Ct. R. 10 (“A petition

for a 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.”).

D.

Even if the lower courts erred in their analysis, Green’s

claim still fails because any error was harmless.

Even if the Texas courts erred by admitting the testimony at issue, any

error was harmless. The State has the burden of proving constitutional error

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18

(1967). Here, Green admits his mother, the victim in a prior assault case for

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which Green was sentenced to prison, testified that the family had since made

amends, and his parents supported him. Appellant’s Brief on Appeal, at 61; see

supra, Part I(A). Moreover, Sheriff Alford, the law enforcement officer who

arrived at the scene stated he was shocked by Green’s father’s statements and

noted Green had not done anything he should die for that day. 35 RR 13–14.

The idea the jury relied on Bobby Green’s decades old statement to impose

death for a capital murder that occurred years later is farfetched given the

facts of the case and the extensive punishment evidence about Green’s

increasingly long and violent history. Pet. App’x 11a–15a. Any error from the

admission of Bobby Green’s twenty-year-old statement, was harmless beyond

a reasonable doubt. Thus, there is no compelling reason to grant certiorari in

this case.

II.

This Case Is a Poor Vehicle to Consider Green’s Eighth

Amendment Claim.

Ultimately, this case is a poor vehicle for the Court to take up any of

Green’s issues. First, Green fails to show the TCCA’s decision violated any

precedent of this Court. See supra, Parts I(B), I(C). Second, his claims allege

the TCCA misapplied prior decisions by this Court, but even if that were true,

that is also not typically worthy of this Court’s attention. See Sup. Ct. R. 10.

Third, even if there were constitutional error, any error was harmless beyond

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a reasonable doubt. See supra, Part I(D). Consequently, the Court should not

expend its resources and grant certiorari in this case.

CONCLUSION

For all these reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

For Criminal Justice

TOMEE M. HEINING

Chief, Criminal Appeals Division

s/ Craig W. Cosper

CRAIG W. COSPER

Assistant Attorney General

State Bar No. 24067554

Counsel of Record

Post Office Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

craig.cosper@oag.texas.gov

Attorneys for Respondent–Appellee

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