Opposition Brief — Charles Victor Thompson, Petitioner v. Texas
Supreme Court briefJan 28, 2026
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Nos. 25-6670, 25A847
IN THE
Supreme Court of the United States
______________________________
CHARLES VICTOR THOMPSON,
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 TO PETITION FOR A
WRIT OF CERTIORARI AND APPLICATION FOR
A STAY OF EXECUTION
________________________________
KEN PAXTON
Attorney General of Texas
TOMEE HEINING
Chief, Criminal Appeals Division
BRENT WEBSTER
First Assistant Attorney General
JAY CLENDENIN
Assistant Attorney General
Counsel of Record
JOSH RENO
Deputy Attorney General
For Criminal Justice
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
jay.clendenin@oag.texas.gov
Counsel for Respondent
i
This is a capital case.
QUESTIONS PRESENTED
1.
Whether the Court has jurisdiction over claims that were disposed
of on an adequate and independent state law ground.
2.
Whether the Court should expend its limited resources to consider
fact-bound questions, raised at the latest possible moment in last-minute
litigation, where the claims are meritless and barred by non-retroactivity.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................. i
TABLES OF CONTENTS ................................................................................... ii
TABLE OF AUTHORITIES ............................................................................... iii
BRIEF IN OPPOSITION..................................................................................... 1
STATEMENT OF THE CASE ............................................................................ 3
I.
Facts of the Crime...................................................................................... 3
II.
Evidence Pertaining to Punishment ......................................................... 5
III.
Procedural History ..................................................................................... 7
REASONS FOR DENYING THE WRIT .......................................................... 10
ARGUMENT ...................................................................................................... 12
I.
The Court Below Dismissed Thompson’s Claims on an Adequate and
Independent State Law Ground, Which Deprives this Court of
Jurisdiction............................................................................................... 12
II.
Thompson Provides No Compelling Reason for Further Review, and His
Confrontation Claims Lack Merit in Any Event .................................... 23
III.
A.
Nonretroactivity principles bar relief ........................................... 24
B.
The claims are meritless ............................................................... 25
Thompson’s Application for a Stay of Execution Should Be Denied..... 33
CONCLUSION ................................................................................................... 35
ii
TABLE OF AUTHORITIES
Cases
Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010)............................................ 15
Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000) ....................................... 16
Beard v. Kindler, 558 U.S. 53 (2009) .......................................................... 13, 14
Bradshaw v. Richey, 546 U.S. 74 (2005)........................................................... 29
Brady v. Maryland, 373 U.S. 83 (1963) .............................................................. 9
Bucklew v. Precythe, 587 U.S. 119 (2019) ............................................. 21, 34, 35
Bullcoming v. New Mexico, 564 U.S. 647 (2011) .............................................. 21
Buntion v. Lumpkin, 31 F.4th 952 (5th Cir. 2022) .......................................... 20
Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) .................................. 21
Busby v. Dretke, 359 F.3d 708 (5th Cir. 2004).................................................. 16
Butler v. McKeller, 494 U.S. 407 (1990)............................................................ 24
Caspari v. Bohlen, 510 U.S. 383 (1994) ............................................................ 24
Coleman v. Thompson, 501 U.S. 722 (1991) ................................... 13, 17, 18, 19
Coy v. Iowa, 487 U.S. 1012 (1988)..................................................................... 28
Crawford v. Washington, 541 U.S. 36 (2004) ................................................... 27
Cruz v. Arizona, 598 U.S. 17 (2023) .................................................................. 17
Cutter v. Wilkinson, 544 U.S. 709 (2005).......................................................... 23
Cyr v. State, 665 S.W.3d 551 (Tex. Crim. App. 2022) ................................ 30, 33
iii
De Buono v. NYSA-ILA Medical & Clinical Servs. Fund, 520 U.S. 806 (1997)
............................................................................................................................. 16
Edwards v. Vannoy, 593 U.S. 255 (2021) ......................................................... 25
Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997) .............................................. 16
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007)............... 14, 20, 21
Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002) ..................................... 14
Ex parte Rubio, Nos. WR-65,784-02, WR-65,784-04, 2018 WL 2329302 (Tex.
Crim. App. May 23, 2018).................................................................................. 20
Ex parte Sales, No. WR-78,131-02, 2023 WL 382321 (Tex. Crim. App. Jan. 25,
2023) ................................................................................................................... 21
Expressions Hair Design v. Schneiderman, 581 U.S. 37 (2017) ...................... 16
Foster v. Chatman, 578 U.S. 488 (2016) ........................................................... 13
Fuller v. Johnson, 158 F.3d 903 (5th Cir. 1998) .............................................. 16
Harris v. Reed, 489 U.S. 255 (1989) .................................................................. 18
Herb v. Pitcairn, 324 U.S. 117 (1945) ............................................................... 17
Hill v. McDonough, 547 U.S. 573 (2006) .................................................... 33, 34
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008) ..................................... 15
Kunkle v. Texas, 125 S. Ct. 2898 (2004) ........................................................... 22
Lambrix v. Singletary, 520 U.S. 518 (1997) ..................................................... 17
Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) ............................ 28
Lee v. Kemna, 534 U.S. 362 (2002).............................................................. 13, 16
Lee v. State, 418 S.W.3d 892 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
............................................................................................................................. 28
iv
Massiah v. United States, 377 U.S. 201 (1964) .................................................. 9
Matchett v. Dretke, 380 F.3d 844 (5th Cir. 2004) ............................................. 15
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) .................................... 21
Michigan v. Long, 463 U.S. 1032 (1983) ..................................................... 17, 18
Moore v. Texas, 122 S. Ct. 2350 (2002) ............................................................. 15
Nelson v. Campbell, 541 U.S. 637 (2004) ................................................... 33, 34
Nken v. Holder, 556 U.S. 418 (2009) ................................................................. 34
Robbins v. State, 717 S.W.2d 348 (Tex. Crim. App. 1986)......................... 30, 33
Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010) ..................................... 19, 20, 22
Saffle v. Parks, 494 U.S. 484 (1990).................................................................. 25
Schriro v. Summerlin, 542 U.S. 348 (2004)...................................................... 25
Seavey v. Texas, 145 S. Ct. 368 (2024) .............................................................. 32
Smith v. Arizona, 602 U.S. 779 (2024) ......................................................passim
Stewart v. Smith, 536 U.S. 856 (2002).............................................................. 13
Teague v. Lane, 489 U.S. 288 (1989) ..................................................... 24, 25, 32
United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005) ......................... 28
United States v. Williams, 740 F. Supp. 2d 4 (D.D.C. 2010) ........................... 28
Walker v. Epps, 287 F. App’x 371 (5th Cir. 2008) ............................................ 35
Williams v. Illinois, 567 U.S. 50 (2012) ............................................................ 27
Ylst v. Nunnemaker, 501 U.S. 797 (1991) ......................................................... 18
v
Statutes and Rules
28 U.S.C. § 2244 ................................................................................................. 14
Sup. Ct. R. 10 ..................................................................................................... 23
Sup. Ct. R. 14.1 .................................................................................................. 23
Texas Code of Criminal Procedure Article 11.071, § 5 .............................passim
Texas Code of Criminal Procedure Article 11.073 ............................................. 2
Texas Court of Criminal Appeals Miscellaneous Rule 11-003 .................... 2, 34
Tex. Penal Code § 6.04 ........................................................................... 28, 29, 30
Tex. R. App. P. 33.1............................................................................................ 27
vi
BRIEF IN OPPOSITION
Charles Thompson is scheduled to be executed after 6:00 p.m.
today, January 28, 2026. He was convicted and sentenced to death in 1999
for the murders of Dennise Hayslip and Darren Cain. See Thompson v. State,
93 S.W.3d 16, 18 (Tex. Crim. App. 2001). Following a retrial as to punishment,
Thompson was again sentenced to death. See Thompson v. State, No. AP73,431, 2007 WL 3208755, at *1 (Tex. Crim. App. Oct. 31, 2007). While
Thompson was in jail following his second punishment trial and before he was
transferred to prison, he escaped from jail and fled to Louisiana. 1 Since then,
Thompson has unsuccessfully challenged his conviction and sentence in state
and federal court, see Thompson v. Davis, 916 F.3d 444, 451–53 (5th Cir. 2019)
(summarizing Thompson’s appeals), with federal habeas litigation concluding
in 2021, Thompson v. Lumpkin, 141 S. Ct. 977 (2021).
Almost five years later, and after the time expired for Thompson to file
pleadings seeking relief from his sentence, see Texas Court of Criminal Appeals
Death Row Escapee Caught, THE ASSOCIATED PRESS (Nov. 6, 2005)
https://www.cbsnews.com/news/death-row-escapee-caught/. Thompson reportedly
admitted he considered robbing a bank while he was evading capture, but he was
arrested before he did so. Death Row Inmate Says He’s Not Done Living, HOUSTON
PRESS (Oct. 27, 2025), https://www.houstonpress.com/news/death-row-inmate-sayshes-not-done-living/.
1
1
Miscellaneous Rule 11-003, 2 he filed a subsequent habeas application in state
court, as well as a suggestion that the court reconsider its dismissal ten years
ago of his first subsequent habeas application, and a motion for a stay of
execution. 3 In his subsequent application, Thompson re-raised a previously
rejected claim relating to a jailhouse witness, and he raised claims alleging
violations under the Confrontation Clause, a claim under Texas’s “new science”
statute, 4 and a claim alleging his counsel were ineffective at his second
punishment trial twenty years ago. See generally Subs. Appl. The Texas Court
of Criminal Appeals (TCCA) denied Thompson’s suggestion for reconsideration
and associated motion for a stay of execution without a written order, and it
dismissed the subsequent application and denied the related motion for a stay
of execution, stating Thompson “failed to show that he satisfies the
requirements of Article 11.071 § 5 or Article 11.073. Accordingly, we dismiss
the application as an abuse of the writ without reviewing the merits of the
Misc. Docket No. 11-003, Procedures in Death Penalty Cases Involving
Requests for Stay of Execution and Related Filings in Texas State Trial Courts and
the Court of Criminal Appeals (Tex. Crim. App. Sept. 1, 2011)
https://www.txcourts.gov/media/208124/miscruleexecution.pdf.
2
See generally Second Subsequent Appl. for Post-Conviction Writ of Habeas
Corpus, Ex parte Thompson, No. WR-78,135-04 (Tex. Crim. App. Jan. 21, 2026) (Subs.
Appl.); Suggestion that the Court Reconsider First Subsequent Application for PostConviction Writ of Habeas Corpus, Ex Parte Thompson, No. WR-78,135-03 (Tex.
Crim. App. Jan. 20, 2026); Mot. to Stay Execution, Ex parte Thompson, No. WR78,135-04 (Tex. Crim. App. Jan. 21, 2026).
3
4
See generally Tex. Code Crim. Proc. art. 11.073.
2
claims raised.” Order 3, Ex parte Thompson, No. WR-78,135-04 (Tex. Crim.
App. Jan. 27, 2026) (Ord.).
Thompson now seeks certiorari review of the TCCA’s dismissal of his
latest subsequent application. However, this Court is without jurisdiction to
hear his claims because they were dismissed on an adequate and independent
state law ground below. Moreover, Thompson is unable to present any special
or important reason for certiorari review, and he fails to demonstrate a
violation of any federal constitutional right. Further, the excessively dilatory
nature and absence of any arguable merit of Thompson’s petition foreclose his
request for a stay of execution. Certiorari review as well as Thompson’s request
for a stay of execution should be denied.
STATEMENT OF THE CASE
I.
Facts of the Crime
The federal district court summarized the facts of Thompson’s murder of
Dennise Hayslip and Darren Cain:
Thompson started dating Dennise Hayslip, who was twelve
years his senior, around June of 1997. Thompson soon moved in
with her. Thompson rarely worked, but relied on Hayslip and
another roommate for support. Thompson became increasingly
jealous, possessive, angry, and abusive. Thompson eventually
moved out.
Hayslip began dating Darren Cain, but still occasionally saw
Thompson. On April 30, 1998, Thompson was at Hayslip’s
apartment when Cain called at around 2:30 a.m. Thompson told
Cain “to come over there and he would beat his ass.” When Cain
3
arrived, Thompson answered the door with a stick. A fight ensued.
Thompson lost the fight.
Cain and Hayslip exited the apartment. Thompson walked
out also, yelling, cussing, and calling Hayslip a “whore.” As Cain
told Thom[p]son to “chill,” Thompson responded: “do you want to
die, mother fucker?”
By that time, the police had been called. The responding
officer encountered Thompson, Hayslip, and Cain standing
outside. Thompson’s eye was blackened from the fight he had
started. Because no one wanted to press criminal charges, a police
officer allowed Thompson to leave after threatening him with
criminal trespass should he return. After the responding officer
escorted him from the premises, Thompson went to get a gun.
Thompson later described to a friend, Diane Zernia, how he
returned to Hayslip’s apartment and shot both Hayslip and Cain.
Thompson kicked down the door to Hayslip’s apartment and
encountered Cain inside. As Cain grabbed the end of the gun,
Thompson began firing. Thompson shot Cain four times, and two
bullets missed. After Cain fell to the ground, Thompson reloaded
the gun, put it up to Hayslip’s cheek, and said, “I can shoot you too,
bitch.” The gun fired. The bullet traveled through Hayslip’s cheek,
into her tongue, and out the other side. Thompson later claimed
that he also tried to shoot himself, causing a wound on his arm.
Neighbors heard the gunshots. Shortly thereafter, Hayslip
began knocking on neighbors’ doors. A neighbor found her sitting
on the ground, gasping for breath as she leaned forward to prevent
drowning in her own blood. When emergency responders arrived,
they found Cain dead. Hayslip was bleeding profusely. Responders
took her by life flight to a hospital where she later died.
Leaving the apartment, Thompson threw his gun in a nearby
creek. Thompson then went to Zernia’s house and fell asleep on a
couch. When he woke up, he described the murders to Zernia.
Thompson then called his father, who picked him up and took him
to the police station.
4
The State of Texas charged Thompson with capital murder
for intentionally or knowingly causing the death of more than one
person in the same criminal transaction. See Tex. Penal Code Ann.
§ 19.03(a)(7). Specifically, the indictment required the prosecution
to prove that Thompson “unlawfully, during the same criminal
transaction, intentionally and knowingly caused the death of” Cain
by “shooting [him] with a deadly weapon” and also “intentionally
and knowingly caused the death” of Hayslip by “shooting [her] with
a deadly weapon . . . .” Thompson stood trial in 1999. The
prosecution presented testimony and evidence showing that
Thompson shot both Cain and Hayslip. The prosecution
particularly emphasized Thompson’s confession to Zernia that he
shot both victims. The main defensive argument at the
guilt/innocence phase was that medical malpractice, not the
gunshot through Hayslip’s mouth, was the primary cause of her
death. The jury convicted Thompson of capital murder. He was
sentenced to death.
Thompson v. Davis, No. 4:13-CV-1900, 2017 WL 1092309, at *1–2 (S.D. Tex.
Mar. 23, 2017) (footnotes and record citations omitted).
II.
Evidence Pertaining to Punishment
The TCCA summarized the prosecution’s punishment evidence
presented during Thompson’s 2005 retrial:
A few hours after committing the murders, [Thompson] went
to the home of Diane Zernia and confessed to her. After calling his
father, [Thompson] surrendered to authorities. [Thompson] later
phoned Zernia from jail and tried to persuade her to lie about what
he had told her, but she refused. [Thompson] also attempted, from
[jail], to solicit someone to kill Zernia and was later indicted for
solicitation to commit capital murder. The State also presented
evidence that [Thompson] was associated with the Aryan
Brotherhood gang in [jail]. A fellow jail inmate testified that
[Thompson] gave him a list of people who [Thompson] believed
were potential witnesses and told the inmate that he would pay
him to “eliminate” the witnesses or otherwise make sure that they
5
would not appear in court. The inmate turned the list over to the
police.
The State also presented evidence that [Thompson] began
committing crimes as a juvenile. In 1984, while living with his
parents in an upper-middle-class neighborhood in Colorado,
[Thompson] committed a string of crimes that resulted in over
$60,000 of damage to homes and property. While on probation from
the youth center, [Thompson] stole his father’s motorcycle, ran
away, and committed a variety of crimes. He was arrested again
in 1987 and sentenced to a juvenile facility. [Thompson] had
problems with drugs and alcohol from an early age. He married,
but later abandoned his wife and two children. In 1996,
[Thompson] was arrested for transporting illegal immigrants from
Mexico.
Thompson v. State, 2007 WL 3208755, at *1–2.
The defense presented several witnesses in its mitigation case.
Thompson’s father testified about the crimes Thompson committed as a youth,
as well as Thompson’s alcohol and drug use from a young age. 18 Retrial
Reporter’s Record (RR-R) 283–85, 293; 19 RR-R 11. He also explained that
Thompson did not speak until age three and had trouble in school. 18 RR-R
274–78. Thompson’s brother testified that he had set a bad example for his
siblings and admitted he introduced Thompson to drugs when Thompson was
thirteen or fourteen years old. 18 RR-R 121–22, 128. Thompson’s brother and
the childhood friend with whom Thompson burglarized houses testified that
Thompson’s father had been a strict disciplinarian. 18 RR-R 126–27, 241–42.
6
Thompson’s ex-wife, and the mother of his two children, testified that he
drank a lot, used drugs, and came home only when he felt like it. 18 RR-R 258–
61. Thompson did not send money to help raise the children. 18 RR-R 262–63.
Several former employers testified about Thompson’s drinking and drug
use and his inability to maintain employment. 18 RR-R 104, 108, 212. One
testified that Thompson used cocaine intravenously. 18 RR-R 104, 108. The
other owned the moving company where Thompson worked with Zernia’s son
and counseled Thompson about his drinking after he missed work. 18 RR-R
208–12.
Several witnesses testified that, shortly after the murders, Thompson
had confessed to shooting Ms. Hayslip and Mr. Cain. 18 RR-R 109–10; 18 RRR 244–46.
Thompson also elicited testimony from several expert witnesses. A
physician specializing in addiction testified about Thompson’s alcohol and
cocaine dependence. 18 RR-R 165. A neuropsychologist testified that
Thompson was intelligent, with an 85th-percentile IQ, but some of his thought
processes were affected by mild, diffuse brain damage. 19 RR-R 45, 50–52, 56.
III.
Procedural History
Thompson was convicted on April 14, 1999, of capital murder. Clerk’s
Record (CR) 212–13. Pursuant to the jury’s answers to the special issues on
future dangerousness and mitigation, the trial court sentenced Thompson to
7
death. Id. The TCCA affirmed Thompson’s conviction on direct appeal.
Thompson v. State, 93 S.W.3d at 29. However, the court vacated Thompson’s
sentence and remanded the case for a new trial on punishment. 5 Id.
At retrial on punishment, the jury answered the special issues on future
dangerousness and mitigation as before, and Thompson was again sentenced
to death. Clerk’s Record-Retrial (CR-R) 240. The TCCA affirmed Thompson’s
sentence on direct appeal. Thompson v. State, 2007 WL 3208755, at *6.
Thompson filed a state application for a writ of habeas corpus following
his first conviction and sentence. State Habeas Clerk’s Record (SHCR)-01 at
2–92. He filed a second application following the retrial on punishment. SHCR02 at 2–117. As to all the allegations, the trial court entered findings of fact
and conclusions of law recommending that relief be denied. SHCR-01 at 224–
67; SHCR-02 at 218–61. Based on the trial court’s findings and conclusions,
and on its own review, the TCCA issued a combined order denying habeas
relief. Ex parte Thompson, Nos. WR-78,135-01 & WR-78,135-02, 2013 WL
1655676, at *1 (Tex. Crim. App. Apr. 17, 2013).
The TCCA granted Thompson’s first ground for rehearing in which he
maintained that the TCCA failed to fully consider his fourth point of error on original
submission; however, on further consideration, the TCCA concluded that its decision
was improvident and withdrew the order granting rehearing. Thompson v. State, 108
S.W.3d 269, 269 (Tex. Crim. App. Jan. 29, 2003).
5
8
On April 15, 2014, Thompson filed a federal habeas petition. Pet.,
Thompson v. Stephens, No. 4:13-CV-1900 (S.D. Tex. Apr. 15, 2014), ECF No.
21. The district court granted Thompson’s unopposed motion to stay the
proceedings to allow him to seek state court relief. Ord., Thompson v. Stephens,
No. 4:13-CV-1900 (S.D. Tex. May 6, 2015), ECF No. 52.
Thompson filed a subsequent habeas application on September 24, 2015.
SHCR-03 at 1–486. After reviewing the application and finding that it failed
to satisfy the requirements of Texas’s abuse-of-the-writ statute, the TCCA
dismissed it “as an abuse of the writ without considering the merits of the
claims.” Ex parte Thompson, No. WR-78,135-03, 2016 WL 922131, at *1 (Tex.
Crim. App. Mar. 9, 2016) (citing Tex. Code Crim. Proc. art. 11.071, § 5(c)).
Upon return to federal court, Thompson filed an amended petition, which
the district court denied. Thompson v. Davis, 2017 WL 1092309, at *33.
Thompson obtained a certificate of appealability as to whether he established
a violation under Brady v. Maryland, 373 U.S. 83 (1963), sufficient to overcome
procedural default and, if so, whether he was entitled to relief on his Brady
claim or his claim under Massiah v. United States, 377 U.S. 201 (1964), with
respect to a jailhouse witness’s testimony. Thompson v. Davis, 916 F.3d at 463.
The Fifth Circuit later affirmed the district court’s denial of habeas relief.
Thompson v. Davis, 941 F.3d 813, 817 (5th Cir. 2019), cert. denied sub nom.,
Thompson v. Lumpkin, 141 S. Ct. 977.
9
The state trial court then scheduled Thompson’s execution for January
28, 2026. Execution Ord., Texas v. Thompson, No. 0782657 (262nd Dist. Ct.,
Harris Cnty., Tex. Sept. 11, 2025). Thompson moved in federal court for
funding to support a clemency application, which the district court granted.
Ord., Thompson v. Guerrero, No. 4:13-CV-1900 (S.D. Tex. Dec. 12, 2025), ECF
No. 118.
Thompson later filed in state court a suggestion that the TCCA
reconsider its 2015 dismissal of his first subsequent habeas application, a
motion for a stay of execution, and his second subsequent state habeas
application. See Ord. 2–3. On January 27, 2026, the TCCA declined to
reconsider its dismissal of Thompson’s first subsequent application, dismissed
the second subsequent application as an abuse of the writ, and denied a stay
of execution. Id. Thompson then filed in this Court a petition for a writ of
certiorari and an application for a stay of execution. The instant opposition
follows.
REASONS FOR DENYING THE WRIT
The claims for which Thompson seeks review were dismissed by the
court below on an adequate and independent state law ground, Texas Code of
Criminal Procedure Article 11.071, § 5(a), which deprives this Court of
jurisdiction to hear them. See Ord. 3. Even assuming jurisdiction, Thompson
10
has not furnished a reason the lower court erred in rejecting his claims, let
alone a compelling reason for this Court to grant a writ of certiorari.
Moreover, Thompson’s petition is a poor vehicle for his claims—factbound questions without development or merits analysis in the court below.
This is particularly true because the reason for the lack of development of the
claims is Thompson’s failure to properly raise them. Indeed, he filed his latest
subsequent application after the time expired for him to file pleadings in state
court challenging his conviction and sentence. See Ord. 2 (noting that
Thompson’s subsequent application was filed on January 21, 2026). His
Confrontation Clause claims are also plainly meritless and barred by nonretroactivity principles.
Perhaps most importantly, Thompson shot and killed Dennise Hayslip
and Darren Cain in the same criminal transaction, and his claims challenging
the finding that the gunshot wound he inflicted on Ms. Hayslip caused her
death have no merit. See Thompson v. Davis, 2017 WL 1092309, at *6–7;
Thompson v. State, 93 S.W.3d at 20–21. His own expert admitted at trial that
it was “reasonably medically likely that” Ms. Hayslip would have died without
medical intervention after Thompson shot her in the face, lacerating her
tongue and causing profuse bleeding that could have caused her to drown on
her own blood. 12 Reporter’s Record (RR) 245–46 (Thompson’s expert, Dr. Paul
Radelat, agreeing that Ms. Hayslip could have drowned on her blood), 251 (Dr.
11
Radelat testifying that “without any medical intervention it was reasonably
medically likely she would die”), 255–56 (Dr. Radelat’s testimony that the
“intermediate long term conditions without any medical intervention . . . would
probably be fatal”). Nothing Thompson presents now casts doubt on the jury’s
verdict. His last-minute effort to relitigate an issue he has repeatedly lost in
state and federal court, now under the guise of excessively dilatory
Confrontation Clause claims, should be rejected. His indisputable failure to
raise these claims diligently also precludes him from receiving equitable relief
from this Court.
Thompson’s petition is simply unworthy of the Court’s attention, and his
application for a stay of execution should be denied.
ARGUMENT
I.
The Court Below Dismissed Thompson’s Claims on an Adequate
and Independent State Law Ground, Which Deprives this Court
of Jurisdiction.
Thompson seeks review of the lower court’s dismissal of his
Confrontation Clause claims. See generally Pet. Cert. Despite the TCCA’s
explicit statement that it was not “reviewing the merits of the claims raised,”
Ord. 3, Thompson argues that it did so sub silentio, meaning this Court can
reach them too. Pet. Cert. 12–19. But he is wrong, and the TCCA’s dismissal
on a state law ground strips the Court of jurisdiction.
12
“This Court lacks jurisdiction to entertain a federal claim on review of a
state court judgment ‘if that judgment rests on a state law ground that is both
‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the
court’s decision.’” Foster v. Chatman, 578 U.S. 488, 497 (2016) (quoting Harris
v. Reed, 489 U.S. 255, 260 (1989)). The state law ground barring federal review
may be “substantive or procedural.” Coleman v. Thompson, 501 U.S. 722, 729
(1991).
To be adequate, a state law ground must be “firmly established and
regularly followed.” Lee v. Kemna, 534 U.S. 362, 885 (2002) (quoting James v.
Kentucky, 466 U.S. 341, 348 (1984)). Discretion does not deprive a state law
ground of its adequacy because “a discretionary rule can be ‘firmly established’
and ‘regularly followed’—even if the appropriate exercise of discretion may
permit consideration of a federal claim in some cases but not others.” Beard v.
Kindler, 558 U.S. 53, 60–61 (2009). Ultimately, situations where a state law
ground is found inadequate are but a “small category of cases.” Kemna, 534
U.S. at 381.
A state law ground is “independent of federal law [when it] do[es] not
depend upon a federal constitutional ruling on the merits.” Stewart v. Smith,
536 U.S. 856, 860 (2002). There is no presumption of federal law consideration.
Coleman, 501 U.S. at 735–36. To so find, the state court’s decision must “fairly
appear to rest primarily on federal law, or to be interwoven with the federal
13
law.” Id. Where there is no “clear indication that a state court rested its
decision on federal law, a federal court’s task will not be difficult.” Id. at 739–
40.
Texas, like Congress, has imposed significant restrictions on subsequent
habeas applications. Compare Tex. Code Crim. Proc. art. 11.071, § 5, with 28
U.S.C. § 2244(b); see Kindler, 558 U.S. at 62 (noting that federal courts should
not “disregard state procedural rules that are substantially similar to those to
which we give full force in our own courts”). A Texas court may not reach the
merits of a claim in a subsequent application “except in exceptional
circumstances.” Ex parte Kerr, 64 S.W.3d 414, 418 (Tex. Crim. App. 2002). The
applicant bears the burden of providing “sufficient specific facts establishing,”
Tex. Code Crim. Proc. art. 11.071, § 5(a), one of these “exceptional
circumstances,” Ex parte Kerr, 64 S.W.3d at 418.
Relevant here, an applicant can prove either factual or legal
unavailability of a claim. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). This
requires proof of unavailability in all prior state habeas applications. See Ex
parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007). A claim is legally
unavailable when its legal basis “was not recognized or could not have been
reasonably formulated from a final decision of [this Court], a court of appeals
of the United States, or a court of appellate jurisdiction of [Texas],” Tex. Code
Crim. Proc. art. 11.071, § 5(d), and factually unavailable when its factual basis
14
“was not ascertainable through the exercise of reasonable diligence,” Tex. Code
Crim. Proc. art. 11.071, § 5(e).
In the court below, Thompson accepted the burden of proving an
exception to the abuse-of-the-writ bar. For his first Confrontation Clause
claim, which related to his guilt trial, he argued the claim was based on a newly
available legal ground and also showed no juror would have convicted him of
capital murder but for the error. Subs. Appl. 41–50. For his second
Confrontation Clause claim, which related to his punishment retrial, he argued
only that it was based on a newly available legal ground. Id. at 52–56. As
mentioned before, the TCCA did not agree, finding that Thompson did not
satisfy “the requirements of Article 11.071 § 5 or Article 11.073,” and it
dismissed “the application as an abuse of the writ without reviewing the merits
of the claims raised.” Ord. 3.
Thompson challenges the adequacy of § 5(a)(1). Pet. Cert. 17–19.
However, the Fifth Circuit “has held that, since 1994, the Texas abuse of the
writ doctrine has been consistently applied as a procedural bar, and that it is
an . . . adequate state ground for the purpose of imposing a [federal] procedural
bar.” Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008). 6
See also Moore v. Texas, 122 S. Ct. 2350, 2352–53 (2002) (Scalia, J., dissenting);
Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010) (recognizing that § 5 is an
adequate state law ground for rejecting a claim); Matchett v. Dretke, 380 F.3d 844,
848 (5th Cir. 2004) (“Texas’ abuse-of-the-writ rule is ordinarily an ‘adequate and
6
15
Thompson argues the bar is inadequate here because, if the TCCA found
his confrontation claims were available to him when he filed a subsequent
application in 2015, it would constitute a departure from the definition of legal
availability because his claims are based on this Court’s opinion in Smith v.
Arizona, 602 U.S. 779, 802 (2024), which postdated his first subsequent
application. Pet. Cert. 18. But, as discussed further below, such a finding would
be plainly consistent both with the statutory definition of availability, Tex.
Code Crim. Proc. art. 11.071, § 5(d) (a claim is legally unavailable if the legal
basis “could not have been reasonably formulated from a final decision of the
United States Supreme Court, . . . or a court of appellate jurisdiction of this
state on or before that date”), and this Court’s explanation in Smith that its
opinion in that case “follow[ed] from all this Court has held about the
Confrontation Clause’s application to forensic evidence.” 602 U.S. at 802.
This is simply not a situation where the state court’s imposition of a bar
was exorbitant. See, e.g., Kemna, 534 U.S. at 376, 381–84. Thompson’s
independent’ procedural ground on which to base a procedural default ruling.”);
Busby v. Dretke, 359 F.3d 708, 724 (5th Cir. 2004) (“the Texas abuse of the writ
doctrine is an adequate ground for considering a claim procedurally defaulted.”);
Barrientes v. Johnson, 221 F.3d 741, 758–59 (5th Cir. 2000); Fuller v. Johnson, 158
F.3d 903, 906 (5th Cir. 1998); Emery v. Johnson, 139 F.3d 191, 195–96 (5th Cir. 1997)
cf. Expressions Hair Design v. Schneiderman, 581 U.S. 37, 45 (2017) (noting that this
Court generally defers to a court of appeals’s interpretation of their respective states’
laws); De Buono v. NYSA-ILA Medical & Clinical Servs. Fund, 520 U.S. 806, 810 n.5
(1997) (noting “settled practice of according respect to the courts of appeals’ greater
familiarity with issues of state law”).
16
meritless confrontation claims could have been raised before, and it is utterly
unremarkable that the TCCA refused to authorize further proceedings. This is
simply not an “exceptional case[]” or “the rarest of situations, [where] ‘an
unforeseeable and unsupported state-court decision on a question of state
procedure does not constitute an adequate ground to preclude this Court’s
review of a federal question.”’ Cruz v. Arizona, 598 U.S. 17, 26 (2023) (citing
Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)).
The only question then is whether § 5 is independent of federal law. It
is, and the state court’s dismissal of Thompson’s claims deprives this Court of
jurisdiction. Indeed, this Court has held on numerous occasions that it “will
not review a question of federal law decided by a state court if the decision of
that court rests on a state law ground that is independent of the federal
question and adequate to support the judgment,” Coleman, 501 U.S. at 729,
because “[the Court] in fact lack[s] jurisdiction to review such independently
supported judgments on direct appeal: Since the state-law determination is
sufficient to sustain the decree, any opinion of this Court on the federal
question would be purely advisory.” Lambrix v. Singletary, 520 U.S. 518, 523
(1997) (citing Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945), and Sochor v.
Florida, 504 U.S. 527, 533–34 & n.112 (1992)); see Michigan v. Long, 463 U.S.
1032, 1042 (1983).
17
Despite this long-standing precedent, Thompson now argues that § 5 is
not independent of federal law. Pet. Cert. 12–17. But even considering this
Court’s federal habeas jurisprudence—which does not apply to a
jurisdictional bar—Thompson’s arguments are wrong. In Long, the Court
made clear that, in determining whether a state-court judgment is
independent and adequate on direct review, it would first decide whether a
state court decision “fairly appears to rest primarily on federal law, or to be
interwoven with the federal law.” 463 U.S. at 1040. If this predicate was met,
the Court would presume that the state court’s decision turned on federal law
unless the “adequacy and independence of any possible state law ground” was
“clear from the face of the opinion.” Id. at 1040–41. This framework was
imported into the federal habeas context in Harris v. Reed, 489 U.S. 255, 260–
63 (1989), and it has since been called the “Harris presumption” when it is
applied in such matters. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 802
(1991).
The Court later made clear in Coleman that a two-part, conjunctive test
is required:
In habeas, if the decision of the last state court to which the
petitioner presented his federal claims fairly appeared to rest
primarily on resolution of those claims, or to be interwoven with
those claims, and did not clearly and expressly rely on an
independent and adequate state ground, a federal court may
address the petition.
18
501 U.S. at 735. Coleman rejected the notion that Harris imposed a “clearly
and expressly” requirement on all procedural default holdings. Id. at 736.
Rather, the Court explained that the Harris presumption, and hence the
“clearly and expressly” requirement, “appl[ies] only in those cases in which it
fairly appears that the state court rested its decision primarily on federal law.”
Id. (internal quotation marks omitted); see also id. at 735 (describing this
“predicate to the application of the Harris presumption”). Thus, contrary to
Thompson’s suggestion, Pet. Cert. 14, there is no presumption of federal-law
consideration unless it is first determined that the state court decision “fairly
appears to rest primarily on federal law, or to be interwoven with the federal
law.” Coleman, 501 U.S. at 735. Where there is no “clear indication that a state
court rested its decision on federal law, a federal court’s task will not be
difficult.” Id. at 739–40.
In Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010), the Fifth Circuit
considered the independent nature of Texas’s § 5 bar in the federal habeas
context. There, the court rejected Rocha’s contention “that § 5(a)(1) is
dependent on federal law in all cases.” Id. at 835. Instead, whether a § 5(a)(1)
dismissal is independent of federal law turns on case-specific factors. Id. As
the court held,
If the [T]CCA’s decision rests on availability, the procedural bar
is intact. If the [T]CCA determines that the claim was
unavailable but that the application does not make a prima facie
19
showing of merit, a federal court can review that determination
under the deferential standards of AEDPA.
Id.
In this case, there is no need to assume. The TCCA dismissed
Thompson’s application as “an abuse of the writ without reviewing the merits
of the claims raised.” Ord. 3. And contrary to Thompson’s argument, Pet. Cert.
14, the TCCA conducts the availability and prima facie inquiries
“sequentially,” Rocha, 626 F.3d at 833–34 (discussing Ex parte Campbell, 226
S.W.3d at 422), and there is absolutely no indication the TCCA proceeded to a
prima facie merit analysis instead of resting its decision on availability. See
Buntion v. Lumpkin, 31 F.4th 952, 962–63 (5th Cir. 2022) (holding that
argument similar to Thompson’s “undebatably fail[ed]” because it was based
on a misreading of Ex parte Campbell). Thompson also argues the TCCA does
not mean it when it says it dismisses a claim without reviewing the merits
because sometimes the TCCA finds no prima facie merit and still says that it
is not reaching the merits, Pet. Cert. 14–16, but the TCCA’s instant order does
not resemble Thompson’s cited orders, which specifically reference the “prima
facie” requirement. E.g., Ex parte Rubio, Nos. WR-65,784-02, WR-65,784-04,
2018 WL 2329302, at *5 (Tex. Crim. App. May 23, 2018).
The adequacy and independence of the TCCA’s dismissal is borne out by
the fact that Thompson’s latest subsequent state habeas application was
20
indeed subject to dismissal on an adequate and independent state law
ground—availability. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1); see Ex parte
Campbell, 226 S.W.3d at 421; Ex parte Sales, No. WR-78,131-02, 2023 WL
382321, at *1 (Tex. Crim. App. Jan. 25, 2023) (“[T]he factual basis must have
been unavailable as to all previous applications.” (emphasis added)). Even
assuming Thompson could not have formulated a Confrontation Clause claim
in his initial applications based on the admission of the non-testifying
pathologist’s autopsy report and the testimony of the pathologists who testified
about the report, he could have formulated such a claim in his 2015 subsequent
application. See Ex parte Campbell, 226 S.W.3d at 421.
At that time, this Court’s opinions in Bullcoming v. New Mexico, 564 U.S.
647 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), were
indisputably available to Thompson. See Smith, 602 U.S. at 802 (this Court’s
explanation that its holding “follow[ed] from all this Court has held about the
Confrontation Clause’s application to forensic evidence”). 7 Thompson also
could have formulated his claims in 2015 based on the TCCA’s opinion in Burch
v. State, in which it held the defendant’s right to confrontation was violated by
Notably, Thompson chose to wait a year and a half after this Court decided
Smith to attempt to raise his confrontation claims, and then only did so after the time
expired for him to raise the claims in state court. That delay means summary
dismissal is appropriate, as it suggests the claims are nothing more than a dilatory
tactic. See Bucklew v. Precythe, 587 U.S. 119, 149–50 (2019).
7
21
the introduction of a surrogate analyst’s testimony and the non-testifying
analyst’s report. 401 S.W.3d 634, 637–40 (Tex. Crim. App. 2013) (finding
confrontation error where the prosecution “attempted to submit testimonial
evidence that the appellant possessed cocaine without giving the appellant the
opportunity to cross-examine the analyst who testified the cocaine and made
the affirmation of its contents”); see also Tex. Code Crim. Proc. art. 11.071,
§ 5(d) (a claim is legally unavailable if the legal basis “could not have been
reasonably formulated from a final decision of the United States Supreme
Court, . . . or a court of appellate jurisdiction of this state on or before that
date”). Therefore, the TCCA’s boilerplate dismissal of Thompson’s subsequent
application represents a decision independent from federal law. See Rocha, 626
F.3d at 836 (“A [T]CCA decision fairly appears to rest on state law if it
dismisses a subsequent habeas application under § 5(a)(1) because the
application does not raise a claim that was factually or legally unavailable.”).
Ultimately, the abuse-of-the-writ bar—a state-law ground clearly and
unambiguously applied by the TCCA—prohibits this Court from exercising
jurisdiction over the claims for which Thompson now seeks review. See Kunkle
v. Texas, 125 S. Ct. 2898, 2898 (2004) (Stevens, J., concurring) (“I am now
satisfied that the Texas court’s determination was independently based on a
determination of state law, see Tex. Code Crim. Proc. art. 11.071, § 5 [ ], and
therefore that we cannot grant petitioner his requested relief.”). Thompson’s
22
claims are foreclosed by an adequate and independent state procedural bar and
certiorari review should be denied.
II.
Thompson Provides No Compelling Reason for Further Review,
and His Confrontation Claims Lack Merit in Any Event.
The Court requires those seeking a writ of certiorari to provide “[a] direct
and concise argument amplifying the reasons relied on for allowance of the
writ.” Sup. Ct. R. 14.1(h) (emphasis added). The Court would be hard pressed
to discover any such reason in Thompson’s petition, let alone amplification
thereof. Indeed, Thompson makes no allegation of circuit or state-court-of-lastresort conflict. See Sup. Ct. R. 10(a)–(b). Left with no true ground for review,
the only conclusion is that Thompson seeks correction of what he believes was
error by the lower court. But that is a plainly inadequate basis for this Court
to expend its limited resources. Sup. Ct. R. 10. And such a request is
particularly inappropriate here because, as discussed above, the court below
did not reach the merits of Thompson’s claims, and this Court is one “of review,
not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). Indeed,
Thompson’s petition is founded on the notion that the TCCA resolved his
confrontation claims by deciding an important federal question contrary to this
Court’s holding in Smith, but the TCCA did no such thing. Supra Argument,
Part I. Consequently, Thompson’s petition is an exceptionally poor vehicle for
23
reaching the merits of his claims, and his petition should be denied for that
reason alone. Nonetheless, Thompson’s claims are not compelling.
Thompson raised two Confrontation Clause claims in the court below
alleging the testimony of pathologists who testified at his guilt trial and his
retrial on punishment violated his constitutional rights. Subs. Appl. 27–56. As
discussed below, his claims are barred by principles of non-retroactivity, see
Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality op.), and are meritless.
A.
Nonretroactivity principles bar relief.
Habeas is generally not an appropriate avenue for the recognition of new
constitutional rules. Teague, 489 U.S. at 310. Thus, for the most part, new
constitutional rules do not apply to convictions final before the new rule was
announced. 8 Id. This facilitates federal- and state-court comity by “validat[ing]
reasonable, good-faith interpretations of existing precedents made by state
courts even though they are shown to be contrary to later decisions.” Butler v.
McKeller, 494 U.S. 407, 414 (1990).
Thompson seeks retroactive application of this Court’s opinion in Smith.
But Smith was issued years after Thompson’s conviction and sentence became
final. See Teague, 489 U.S. at 301 (“[A] case announces a new rule if the result
For purposes of Teague, Thompson’s conviction became final on October 6,
2003, and his sentence became final on October 8, 2006, when this Court denied his
petitions for a writ of certiorari on direct appeal. See Caspari v. Bohlen, 510 U.S. 383,
390 (1994).
8
24
was not dictated by precedent existing at the time the defendant’s conviction
became final.”). The inquiry then turns on whether the rule Thompson
proposes is substantive or a watershed rule of criminal procedure. It is neither.
The rule in Smith is not substantive—it does not “prohibit the imposition
of capital punishment on a particular class of persons.” Saffle v. Parks, 494
U.S. 484, 495 (1990). Rather, it is clearly procedural. Cf. Schriro v. Summerlin,
542 U.S. 348, 353 (2004) (“[R]ules that regulate only the manner of determining
the defendant’s culpability are procedural.”). And because the “watershed”
exception is “moribund,” Edwards v. Vannoy, 593 U.S. 255, 272 (2021), Smith
does not qualify for retroactive application. As such, Teague’s non-retroactivity
bar applies, and Thompson’s petition should be denied.
B.
The claims are meritless.
In Thompson’s guilt trial, Dr. Patricia Moore testified regarding the
autopsies of Mr. Cain and Ms. Hayslip. 12 RR 78–131. Dr. Moore conducted
the autopsy on Mr. Cain. 12 RR 80. Dr. Paul Shrode conducted the autopsy on
Ms. Hayslip. 12 RR 102–03. Dr. Moore testified regarding the injuries Ms.
Hayslip suffered as indicated in Dr. Shrode’s autopsy report as well as
photographs of Ms. Hayslip and her medical records and said Dr. Shrode’s
conclusion was that the cause of Ms. Hayslip’s death was the gunshot wound
to the face. 12 RR 104, 106–08, 113–14. Dr. Moore testified that her opinion
based on the report and the autopsy photographs was the same. 12 RR 106.
25
Thompson objected “[a]ccording to the Rules of Evidence” to Dr. Moore’s
testimony about Dr. Shrode’s opinion as to the cause of Ms. Hayslip’s death, 12
RR 105, and objected on “the same basis” to the introduction of Dr. Shrode’s
report, 12 RR 109. Dr. Moore testified that Ms. Hayslip would not have
survived if she had received no medical help. 12 RR 110.
At Thompson’s punishment retrial, Dr. Dwayne Wolf testified regarding
Ms. Hayslip’s autopsy. 16 RR 221–41. Thompson did not object to the
introduction of Dr. Shrode’s autopsy report. 16 RR-R 227 (Thompson’s counsel
stating “I have no objection to the autopsy portion of the report”). Dr. Wolf
reviewed the photographs from Ms. Hayslip’s autopsy as well as photographs
from the hospital where she was treated. 16 RR-R 229–31. Dr. Wolf testified
regarding the efforts made at the hospital to save Ms. Hayslip, 16 RR-R 235–
39, and said the cause of death was the gunshot wound to the face. 16 RR-R
238–39 (“[Ms. Hayslip] was in dire need of medical intervention because she
had this wound. Unfortunately, the efforts at the hospital were unsuccessful.”).
Thompson did not object to Dr. Wolf’s testimony regarding Ms. Hayslip’s cause
of death.
In Smith, the Court held that “[w]hen an expert conveys an absent
[forensic] analyst’s statements in support of his opinion, and the statements
provide that support only if true, then the statements come into evidence for
their truth.” 602 U.S. at 783. In doing so, the Court rejected the contrary view
26
some state courts had taken in the wake of Williams v. Illinois, 567 U.S. 50
(2012). Smith, 602 U.S. at 783, 789. Further, the Court reiterated that if the
absent analyst’s statements are testimonial, they are barred by the
Confrontation Clause as recognized in Crawford v. Washington, 541 U.S. 36
(2004). Smith, 602 U.S. at 783, 789. The Court did not decide whether the
analyst’s statements were testimonial but instead remanded the case back to
the state court with guidance. Id. at 801–03.
Thompson fails to show the non-testifying pathologist’s autopsy report
was testimonial. 9 He has not shown the report was prepared for the primary
purpose of accusing him or that it possessed the requisite solemnity and
formality envisioned by Justice Thomas in Williams. In Williams, Justice
Thomas wrote a concurring opinion explaining that while he did not agree with
the plurality’s primary purpose test, he thought the report was not testimonial
because it lacked the necessary solemnity and formality as it was neither
sworn nor a certified declaration of fact. 567 U.S. at 103–04, 110–13.
As discussed above, Thompson did not specifically object to the admission of
the autopsy report or Dr. Moore’s testimony regarding Ms. Hayslip’s cause of death
on Confrontation Clause grounds—only evidentiary rules—at his guilt trial, 12 RR
105, 109, and Thompson did not object to the report’s admission or Dr. Wolf’s
testimony at his punishment retrial, 16 RR-R 227. Consequently, he did not preserve
any objection to the report’s admission or the testimony on Confrontation Clause
grounds, and any such claim is barred. See Tex. R. App. P. 33.1; see also Thompson v.
Davis, 2017 WL 1092309, at *32 (the federal habeas court’s opinion addressing
Thompson’s claim alleging his trial counsel were ineffective “for not raising a
Confrontation Clause objection because Dr. Moore, rather than Dr. Shrode who
performed the autopsy, testified about the cause of Hayslip’s death”).
9
27
Additionally, the testifying pathologists’ testimony about the autopsy
photographs was not testimonial. Lee v. State, 418 S.W.3d 892, 898 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d); United States v. Williams, 740 F.
Supp. 2d 4, 10 (D.D.C. 2010) (suggesting autopsy photos could form the basis
for an independent expert opinion); cf. United States v. Lopez-Moreno, 420 F.3d
420, 436 (5th Cir. 2005) (holding that admission of a photocopy of a voter
identification card did not violate the Confrontation Clause because it did not
involve a witness bearing testimony).
Nonetheless, even if there was confrontation error, it was harmless
because there was no relevant, compelling factual dispute about the cause of
Ms. Hayslip’s death. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (confrontation
error subject to harmless error analysis); Langham v. State, 305 S.W.3d 568,
582 (Tex. Crim. App. 2010) (same). Thompson has repeatedly attempted to
avoid the consequences of his shooting Ms. Hayslip in the face by blaming her
death on the medical treatment she received after the shooting. E.g.,
Thompson v. Davis, 2017 WL 1092309, at *6. His claims have consistently
failed because controlling Texas law provides that a person is criminally
responsible “if the result would not have occurred but for his conduct . . . unless
the concurrent cause was clearly sufficient to produce the result and the
conduct of the actor clearly insufficient.” Tex. Penal Code § 6.04(a) (emphasis
added); see Thompson v. State, 93 S.W.3d at 20. As the TCCA held in
28
Thompson’s case, “even assuming, arguendo, that the conduct of the doctors
was clearly sufficient to cause Hayslip’s death, the conduct of [Thompson] was
not ‘clearly insufficient’ so as to absolve him of criminal responsibility under
§ 6.04.” Thompson v. State, 93 S.W.3d at 21. That interpretation of state law
cannot be questioned by this Court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“We have repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.”).
Indeed, Thompson’s own expert, Dr. Paul Radelat, admitted at trial that
Ms. Hayslip likely would have died without medical intervention after
Thompson shot her in the face. See Thompson v. State, 93 S.W.3d at 20–21.
Moreover, Dr. Radelat testified at length about the treatment Ms. Hayslip
received at the hospital and about the alleged errors committed by the treating
personnel. 12 RR 214–33.
None of the “new” evidence Thompson has marshalled since—whether it
is the 2014 letter from Dr. Lloyd White, or the last-minute reassessment by
Dr. Patricia Moore 10—contradicts the evidence from trial that Ms. Hayslip
Dr. White’s 2014 letter was submitted with Thompson’s first subsequent
habeas application stated, “[t]he fact that Ms. Hayslip almost certainly would have
survived but not [sic] for this medical treatment error raises a substantial question
of intervening cause of death, albeit the gunshot wound was the reason she came to
the hospital in the first place.” SHCR-03 at 483. Dr. Moore’s 2026 affidavit similarly
states only that the gunshot wound did not “independently” cause Ms. Hayslip’s
10
29
would not have survived without medical intervention. Indeed, the only
evidence Thompson has presented that has addressed the relevant question
under Texas law—whether Thompson’s conduct was clearly insufficient to
cause Ms. Hayslip’s death, Tex. Penal Code § 6.04(a)—is Dr. Radelat’s
testimony, and his testimony supported the jury’s verdict. 11 12 RR 243–56. Any
notation in the autopsy report as to whether Ms. Hayslip’s cause of death was
the gunshot wound to her face or a “medical misadventure” is a red herring. It
does not answer the relevant question under Texas law, i.e., whether
Thompson is criminally responsible for her death. He is. See Tex. Penal Code
§ 6.04(a); Cyr v. State, 665 S.W.3d 551, 557 (Tex. Crim. App. 2022) (“[A]n actor
need not be the sole cause of the harm. Causation is established where the
conduct of the defendant is the ‘but for’ cause ‘operating alone or concurrently
with another cause.’”); Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App.
1986) (en banc) (“If concurrent causes are present, two possible combinations
exist to satisfy the ‘but for’ requirement: (1) the defendant’s conduct may be
sufficient by itself to have caused the harm, regardless of the existence of a
death, and she admits the manner of death was homicide “because Ms. Hayslip would
not have been in the hospital but for the gunshot wound.”
Dr. Radelat testified on direct examination that Ms. Hayslip’s wound was
“survivable,” but he acknowledged it was “life threatening” if “not properly handled.”
12 RR 232–33.
11
30
concurrent cause; or (2) the defendant’s conduct and the other cause together
may be sufficient to have caused the harm.”).
Notably, Thompson has grossly downplayed the severity of Ms. Hayslip’s
injury that he inflicted, suggesting it was not serious because she was
ambulatory and communicative. Pet. Cert. 2. To the contrary, the gunshot
wound Thompson inflicted nearly severed her tongue, causing profuse bleeding
that could have caused her to drown and could have caused her tongue to swell
to the point of causing her to suffocate. See Thompson v. State, 93 S.W.3d at
20. Indeed, Ms. Hayslip was bleeding so profusely that she was unable to even
lean back, and she was unable to speak—she communicated by moving her
head, signing with her hands, or writing notes. See, e.g., 11 RR 59–63, 82–87,
243–45; 12 RR 11, 22; 16 RR-R 95–97, 122–28. It would be flatly incredible to
suggest Ms. Hayslip would have survived such an injury without medical
intervention. That is perhaps why none of Thompson’s experts have ever
suggested she would have. 12 RR 232–33, 243–56 (Dr. Radelat’s testimony);
SHCR-03 at 482 (Dr. White’s letter stating “there is reasonable medical
probability she would have survived had treatment been carried out as
originally planned” (emphasis added)); Subs. Appl. at 58 (quoting affidavit of
Dr. Moore stating “Ms. Hayslip most likely would have survived the wound but
for the medical misadventure” (emphasis added)).
31
Thompson argues the only evidence that Ms. Hayslip’s cause of death
was the gunshot wound to her face came from Dr. Shrode. Pet. Cert. 12. But
this is again a sleight of hand. In addition to Dr. Radelat, the surgeon who was
in charge of Ms. Hayslip’s care, Dr. Robert Marvin, testified that she would
have been unable to breathe if she had laid back, and her tongue would have
progressively swollen and cut off her airway. 12 RR 7, 11, 16. Further, she
would have bled into her lungs, which could have caused her to die. 12 RR 16–
17. Consistent with the testimony of Thompson’s expert, Dr. Marvin testified
that Ms. Hayslip “would not have survived” the gunshot wound without
medical intervention. 12 RR 29. Nothing Thompson identifies now casts any
doubt on that conclusion.
Thompson also argues his case is “on all fours” with Seavey v. Texas, 145
S. Ct. 368 (2024), in which this Court vacated an intermediate court’s opinion
and remanded for further consideration in light of Smith. Pet. 30. But unlike
Seavey, Thompson’s claims arose in habeas—decades after his trial—and are
subject to both the jurisdictional bar of Article 11.071, § 5(a), as well as
Teague’s prohibition against retroactive application of new rules. See supra
Argument, Parts I, II(A). So Seavey doesn’t avail Thompson any more than
Smith does. And in any event, as discussed above, the cause-of-death testimony
Thompson challenges here is a red herring because, as the TCCA has
explained, the relevant question is whether Thompson’s shooting Ms. Hayslip
32
in the face was “clearly insufficient” to cause her death. 12 Thompson v. State,
93 S.W.3d at 21. It was not.
Thompson’s Confrontation Clause claims are wholly meritless. His
petition should be denied.
III.
Thompson’s Application for a Stay of Execution Should Be
Denied.
This Court should also deny Thompson’s request for a stay of execution.
A stay of execution “is not available as a matter of right, and equity must be
sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” Hill v. McDonough, 547
U.S. 573, 584 (2006) (citing Nelson v. Campbell, 541 U.S. 637, 649–50 (2004)).
Rather, the inmate must satisfy all the requirements for a stay, including a
showing of a significant possibility of success on the merits. Id. (citing Barefoot
v. Estelle, 463 U.S. 880, 895–96 (1983)). When the requested relief is a stay of
execution, a court must consider:
(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be
Thompson seems to suggest the prosecution was required as an independent
matter to “exclude any reasonable possibility that the medical misadventure was
clearly sufficient to cause” Ms. Hayslip’s death, Pet. Cert. 24, but that is not the law.
Cyr, 665 S.W.3d at 557 (“[A]n actor need not be the sole cause of the harm. Causation
is established where the conduct of the defendant is the ‘but for’ cause ‘operating
alone or concurrently with another cause.’”); Robbins, 717 S.W.2d at 351 (“If
concurrent causes are present, two possible combinations exist to satisfy the ‘but for’
requirement: (1) the defendant’s conduct may be sufficient by itself to have caused
the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s
conduct and the other cause together may be sufficient to have caused the harm.”).
12
33
irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481
U.S. 770, 776 (1987)). A court must consider “the State’s strong interest in
proceeding with its judgment” and “attempt[s] at manipulation.” Nelson, 541
U.S. at 649–50 (citing Gomez v. U.S. Dist. Court for Northern Dist of California,
503 U.S. 653, 654 (1992)).
Thompson’s latest challenge to his conviction and sentence was filed at
the latest possible moment, see Texas Court of Criminal Appeals Miscellaneous
Rule 11-003, and his attempt to raise several fact-bound claims at the last
minute forecloses his appeal to equity. See Bucklew, 587 U.S. at 149–51. That
delay, alone, requires a “strong equitable presumption” against a stay of
execution. Hill, 547 U.S. at 584. Further, as demonstrated above, Thompson’s
petition is unworthy of this Court’s attention, and he fails to demonstrate a
likelihood of success on the underlying claims that are jurisdictionally barred,
barred by principles of non-retroactivity, and meritless.
Moreover, “[b]oth the State and the victims of crimes have an important
interest in the timely enforcement of a sentence.” Hill, 547 U.S. at 584.
Thompson’s victims have waited almost thirty years for Thompson’s sentence
to be carried out. His last-minute attempt to raise meritless claims is plainly a
dilatory effort to delay his sentence. Such tactics underscore why the Court
34
should deny his application for a stay. See, e.g., Bucklew, 587 U.S. 149–51.
Thompson presents no reason to delay his execution date any longer. His
victims deserve justice for his decades-old crimes.
Lastly, Thompson cannot overcome the strong presumption against
granting a stay or demonstrate that the balance of equities entitles him to a
stay of execution. For the same reason, Thompson fails to show that he would
suffer irreparable harm if denied a stay of execution. Walker v. Epps, 287 F.
App’x 371, 375 (5th Cir. 2008) (explaining that “the merits of [the movant’s]
case are essential to [the court’s] determination of whether he will suffer
irreparable harm if a stay does not issue”). This Court should deny Thompson’s
application for a stay of execution.
CONCLUSION
For the reasons set forth above, Thompson’s petition for a writ of
certiorari and his application for a stay of execution 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
35
TOMEE HEINING
Chief, Criminal Appeals Division
s/ Jay Clendenin
*JAY CLENDENIN
Assistant Attorney General
Texas Bar No. 24059589
Counsel of Record
Office of the Attorney General
Criminal Appeals Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1600
jay.clendenin@oag.texas.gov
Counsel for Respondent
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.