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As of 12-5-12, 1,243 people (1,237 males and 6 females) have been executed. Only Virginia has executed more individuals overall; however, since the death penalty was re-instituted in the United States in the 1976 Gregg v. Georgia decision, Texas has executed (all via lethal injection) more inmates than any other state (beginning in 1982 with the execution of Charles Brooks Jr.), notwithstanding that two states (California and Florida) have a larger death row population than Texas.
Since 1923 the Texas Department of Criminal Justice (TDCJ) has been in charge of executions in the state. TDCJ houses death row prisoners after they are transported from their counties of conviction, and administers the death penalty on a condemned person's court-scheduled date of execution barring any last-minute stays.
Texas has used a variety of execution methods – hanging (until 1924), shooting by firing squad (used only four times during the Civil War period), electrocution (1924–1964) and lethal injection (1982 to present). Most executions were for murder, but other crimes such as piracy, cattle rustling, treason, desertion, and rape have been subject to death sentences. Seven sets of brothers have been executed, the most recent being Ronald (06/01/1995) and James (08/26/2004) Allridge for robbery-murders they committed in 1985.
Under current state law, the crimes of capital murder and capital sabotage (see Texas Government Code §557.012) or a second conviction for the aggravated sexual assault of someone under 14 is eligible for the death penalty (though the recent Supreme Court case Kennedy v. Louisiana removed the death penalty option for rapists). In order for a murder to be a "capital murder," it must meet one of the circumstances described below under the Capital Offenses section.
Prior to statehood in 1845, eight executions were carried out; all were by hanging. Upon statehood, hanging would be the method used for almost all executions until 1924. Hangings were administered by the county where the trial took place. The last hanging in the state was that of Nathan Lee, a man convicted of murder and executed in McKinney, Texas on August 31, 1923. The only other method used at the time was execution by firing squad, which was used for three Confederate deserters during the American Civil War as well as a man convicted of attempted rape in 1863.
Texas changed its execution laws in 1923, requiring the executions be carried out on the electric chair and that they take place at the Texas State Penitentiary at Huntsville (also known as Huntsville Unit). From 1928 until 1965, this was also home to the state's male death row. The first executions on the electric chair were on February 8, 1924, when Charles Reynolds, Ewell Morris, George Washington, Mack Matthews, and Melvin Johnson had their death sentences carried out. The five executions were the most carried out on a single day in the state. The state would conduct multiple executions on a single day on several other occasions, the last being on September 5, 1951. Since then, the state has not executed more than one person on a single day, though there is no law prohibiting it. A total of 361 people were electrocuted in Texas, with the last being Joseph Johnson on July 30, 1964.
The United States Supreme Court decision in Furman v. Georgia (408 U.S. 238 (1972)), which declared Georgia's "unitary trial" procedure (in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment) to be unconstitutional on the grounds that it was a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, essentially negated all death penalty sentences nationwide. At the time of the decision 52 inmates (45 on death row and seven in county jails awaiting transfer to TDCJ) had been given the death penalty; all were commuted to life in prison.
The Furman decision led to a 1973 revision of the laws, primarily by introducing the bifurcated trial process (where the guilt-innocence and punishment phases are separate) and narrowly limiting the legal definition of capital murder (and, thus, those offenses for which the death penalty could be imposed). The first person sentenced to death under a new Texas statute was John Devries on February 15, 1974; Devries hanged himself in his cell on July 1, 1974 (using bedsheets from his bunk) before he could be executed.
The Supreme Court decision in Gregg v. Georgia in 1976 once again allowed for the death penalty to be imposed. (A Texas case was a companion case in the Gregg decision and was upheld by the Court; the Court stated that Texas' death penalty scheme could potentially result in fewer death penalty cases, an irony given that post-Gregg Texas has by far executed more inmates than any other state.) However, the first execution in Texas after this decision would not take place until December 7, 1982 with that of Charles Brooks, Jr.. Brooks was also the first person to be judicially executed by lethal injection in the world, and the first African American to be executed in the United States since 1967.
In the post-Gregg era Texas has executed over four times more inmates than Virginia (the state with the second-highest number of executions in the post-Gregg era) and nearly 37 times more inmates than California (the state with the largest death row population).
The TDCJ website maintains a list of inmates with scheduled execution dates, which is generally updated within 1–2 days after an execution date is set, an execution takes place, or a stay of execution is granted and the date withdrawn.
Texas is scheduled to execute Kimberly McCarthy on January 29, 2013, the first woman put to death in the United States since September 23, 2010 and the first woman executed in Texas in more than eight years in the state. On the day of her scheduled execution, State District Judge Larry Mitchell issued a reprieve. Attorney's for McCarthy said the jury that convicted her of murder was not properly chosen on the basis of race. Dallas County Assistant District Attorney Shelly Yeatts said a new execution date was chosen for April 3, 2013.
With one exception, the only crime for which the death penalty can be assessed is "capital murder".
Unlike the Model Penal Code (which does not specifically define the crime of capital murder), the Texas Penal Code specifically defines capital murder (and, thus, the possibility of the death penalty as a punishment) as murder which involves one or more of the elements listed below:
The Texas Penal Code also allows for the death penalty to be assessed for "aggravated sexual assault of child committed by someone previously convicted of aggravated sexual assault of child". The statute remains part of the Penal Code; however, the Supreme Court of the United States's decision in Kennedy v. Louisiana which outlawed the death penalty for any crime not involving murder nullifies its effect.
The Texas Penal Code also provides for the crime of "Capital Sabotage", which while being essentially the same as Capital Murder (the statute provides for the death penalty for "sabotage directly resulting in death") is still listed in its own section of the Texas Penal Code.
The Texas Penal Code also allows a person can be convicted of any felony, including capital murder, "as a party" to the offense under its "law of parties", a variant of the common law felony murder rule. "As a party" means that the person did not personally commit the elements of the crime, but is otherwise responsible for the conduct of the actual perpetrator as defined by law; which includes:
The felony involved does not have to be capital murder; if a person is proven to be a party to a felony offense and a murder is committed, the person can be charged with and convicted of capital murder, and thus eligible for the death penalty.
A capital trial in Texas is a bifurcated trial, consisting of the "guilt-innocence phase" (where the jury must determine if guilt has been proven beyond a reasonable doubt) followed by the "punishment phase" (in which the jury determines whether the person will be sentenced to death or life in prison).
The guilt-innocence phase in a capital case in Texas proceeds identically to a non-capital case with the exception of voir dire (jury selection). In a capital case, voir dire is conducted on each potential juror individually rather than as a group, and voir dire must result in a death-qualified jury. If an acquittal occurs, the trial is over as the second phase is unnecessary.
A punishment phase will not take place if the death penalty will not be imposed. Reasons for such include:
If no punishment phase is held, the sentence is life imprisonment, with the actual sentence as follows:
As a result of the special issues in death penalty cases, there are different rules of evidence that apply in capital cases in the punishment phase than for a non-capital case. In a non-capital case, the State may introduce evidence of prior bad acts that did not result in a conviction only if "shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible." There exists no such limitation in capital cases, and the State may introduce evidence "as to any matter that the court deems relevant to sentence" without any burden of proof. As a result, the State may present evidence in the punishment phase relating to a case for which the capital defendant has in the past already been tried and acquitted on, and this has happened in Texas.
Since the re-introduction of the death penalty, Texas has always required the jury to decide whether to impose the death penalty in a specific case. However, Texas did not adopt the "aggravating factor" approach outlined in the Model Penal Code. Instead, once each side has pleaded its case, the jury must answer two questions (three, if the person was convicted as a party) to determine whether a person will or will not be sentenced to death:
In order for a death sentence to be imposed, the jury must answer the first question 'Yes' and the second question 'No' (and, if convicted as a party, the third question 'Yes'). Otherwise the sentence is life in prison.
The imposition of a death sentence in Texas results in an automatic direct appeal to the Texas Court of Criminal Appeals, the state's highest criminal tribunal (the intermediate Texas Court of Appeals is bypassed), which examines the record for trial error.
Beyond the direct appeal stage, any appeals not involving habeas corpus to the Federal level are not automatic and must be requested via writ of certiorari. The United States Court of Appeals for the Fifth Circuit has jurisdiction over Texas.
In Texas, capital defendants have a state statutory (not constitutional) right to representation by counsel during their initial state habeas corpus proceedings. Habeas proceedings, unlike direct appeals, consider matters extraneous to the trial record in order to determine the constitutionality of the proceedings and hence the validity of the conviction and sentence.
The habeas attorney is appointed at the same time as the direct appeal attorney, and the habeas application is due within 180 days. Although Article 11.071 of the Texas Code of Criminal Procedure guarantees the defendant ‘competent counsel’ in his state habeas corpus proceedings, the Texas Court of Criminal Appeals has held that this refers merely to the initial qualifications of the attorney, not to the end product of his representation.
Following a hearing, if any, the defendant's counsel and the State both submit proposed findings of fact and conclusions of law, the trial court is to make its own written findings of fact and conclusions of law regarding the application, and the case is then transferred to the Court of Criminal Appeals of Texas, which can adopt or reject the findings and conclusions of the trial court, and will then render an order either granting or denying a new trial.
A subsequent petition for a writ of habeas corpus is any that is filed after the first.
If that writ contains claims that were also raised in a previous writ then it is known as a ‘successive petition’; it if has claims in that could have been raised previously but were not it is called an ‘abusive petition/abuse of the writ’, though bear in mind that these terms may be used fairly interchangeably (as what a defendant may call a "successive petition" the court may call an "abuse of the writ").
Section 11.071 §5 of the Texas Code of Criminal Procedure deals with subsequent habeas corpus petitions. The general rule (as in most others that regularly use the death penalty) is that the defendant must raise all the claims s/he wishes in the first habeas corpus writ. After this any subsequent habeas writ, whether it contains new evidence or not, will be rejected on procedural grounds without the courts considering the merits. However, a subsequent writ may be granted if any one of the four following exceptions are met:
The first two exceptions allow subsequent petitions regarding new evidence, but only if it was unavailable at the time of the previous petition; this obviously excludes successive petitions containing no new claims from being considered under either of these two exceptions. The second two exceptions have no such limitations and potentially allow a defendant to file a successive petition and re-litigate claims that have already been rejected.
In any second or subsequent petition filed at the Federal level, the US Code requires the assent of the applicable Court of Appeals before the petition can be filed in the District Court.
In addition to seeking judicial review of the sentence, a defendant may also appeal to the Texas Board of Pardons and Paroles, a separate agency from TDCJ, for commutation of the sentence to life in prison.
The Board, after hearing testimony, decides whether or not to recommend commutation to the Governor of Texas.
It should be noted that the Board members are gubernatorial appointees (though their terms overlap gubernatorial elections) and, thus, will most likely share the same political viewpoints as the Governor who appointed them.
Excluding cases where intervening Supreme Court decisions have negated death sentences (such as for juveniles and the mentally retarded) or where a specific death sentence was overturned and later reduced to a sentence of life imprisonment, since Texas reinstated the death penalty in 1976 only two defendants sentenced to death have been granted clemency by the Governor after a recommendation from the Board: Henry Lee Lucas in 1998 (on grounds of possible innocence) and Kenneth Foster in 2007 (on concerns regarding the simultaneous trials of Foster, convicted under Texas' law of parties, and an accomplice who actually murdered the victim and was also given a death sentence).
Male death row inmates are housed at the Polunsky Unit in West Livingston; female death row inmates are housed at the Mountain View Unit in Gatesville. All death row inmates at both units are physically segregated from the general population, recreate individually, and have individual 60 square feet (5.6 m2) cells. They receive special death row ID numbers instead of regular Texas Department of Criminal Justice numbers.
Death row prisoners, along with prisoners in administrative segregation, are seated individually on prison transport vehicles. The TDCJ makes death row prisoners wear various restrains, including belly chains and leg irons, while being transported. Death row offenders and offenders with life imprisonment without parole enter the TDCJ system through two points; men enter through the Byrd Unit in Huntsville, and women enter through the Reception Center in Christina Crain Unit, Gatesville. From there, death row inmates go to their designated death row facilities.
The judge presiding over a capital case sets the execution date once it appears that all the offender's appeals have been exhausted. The initial date of execution cannot be prior to the 91st day after the day the order is entered and (if the original order is withdrawn) subsequent execution dates cannot be less than the 31st day after the order is entered, provided that no habeas corpus motion has been filed under Article 11.071; otherwise, the date cannot be set prior to the court either denying relief, or issuing its mandate. In the event an offender manages to escape confinement, and not be re-arrested until after the set execution date, the revised date of execution shall be not less than 30 days from the date the order is issued.
The law does not prohibit multiple executions in a single day; however, Texas has not executed multiple offenders on a single day since September 5, 1951, when three offenders were executed on that day.
The law only specifies that "[t]he execution shall take place at a location designated by the Texas Department of Corrections in a room arranged for that purpose." However, since 1923, all executions have been carried out at the Huntsville Unit, the former location of death row.
On the afternoon of a prisoner's scheduled execution, he or she is transported directly from his or her death row unit to the Huntsville Unit. Men leave the Polunsky Unit in a three-vehicle convoy bound for the Huntsville Unit; women leave from the Mountain View Unit. The only individuals who are informed of the transportation arrangements are the wardens of the affected units. The TDCJ does not make an announcement regarding what routes are used.
Before 2011, the condemned was given an opportunity to have a last meal based on what the unit's cafeteria could prepare from its stock. Robert Perkinson, author of Texas Tough: The Rise of America's Prison Empire, said in 2010 that most condemned prisoners order "standard American fare in heaping portions, the sorts of meals that recall a childhood Sunday." Many female prisoners under the death sentence did not take a last meal. However, Lawrence Russel Brewer, a white supremacist gang member convicted for the high-profile hate crime dragging death of James Byrd, Jr., ordered a large last meal and did not eat it before his execution. In response, John Whitmire, a member of the Texas legislature, asked the TDCJ to stop special meals. Whitmire stated to the press that Brewer's victim, Mr. Byrd, "didn't get to choose his last meal." The TDCJ complied. Brian Price, a former prison chef, offered to personally cook and pay for any subsequent special last meal since the TDCJ is not paying for them anymore. However, Whitmire warned in a letter that he would seek formal state legislation when lawmakers next convened if the "last meal" tradition wasn't stopped immediately. Afterwards, the TDCJ stopped serving special last meals, and will only allow execution chamber prisoners to have the same kind of meal served to regular prisoners. Many prisoners requested cigarettes (which were denied as TDCJ has banned smoking in its facilities).
Under Texas law, executions are carried out at or after 6 p.m. Huntsville (Central) time "by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead". The law does not specify the substance(s) to be used; previously, according to the Texas Department of Criminal Justice the chemicals used for the lethal injection were the commonly-used three-drug combination of (in order) sodium thiopental (a lethal dose which sedates the offender), pancuronium bromide (a muscle relaxant which collapses the diaphragm and lungs), and potassium chloride (which stops the heartbeat). The offender is usually pronounced dead approximately seven minutes after start of the injection process; the cost for the three substances is $86.08 per offender. As a result of drug shortages, sodium thiopental was replaced by pentobarbital in 2011. Further shortages of this drug have pushed the cost of the drugs to approximately $1300 per offender. Still further shortages of pancuronium bromide (and the expiration of the existing stock) forced the state into switching to a single-drug protocol, using solely pentobarbital.
The only persons legally allowed to be present (none of whom can be convicts) at the execution are:
In response to victims rights groups, TDCJ adopted a board rule in January 1996 allowing five victim witnesses (six for multiple victims). Initially the witnesses were limited to immediate family and individuals with a close relationship to the victim, but the board rule was modified in 1998 to allow close friends of surviving witnesses, and further modified in May 2008 to allow the victim witnesses to be accompanied by a spiritual advisor who is a bona fide pastor or comparable official of the victim's religion.
In addition, five members of the media are also allowed to witness the execution, divided equally as possible between the rooms containing the offender's and victim witnesses. Under current TDCJ guidelines, a representative of both the Associated Press and The Huntsville Item (the local newspaper) are guaranteed slots to witness an execution (Michael Graczyk from the AP's Houston office is a frequent attender, having attended over 300 executions). Other media members must submit their requests at least three days prior to the execution date; priority will be given to media members representing the area in which the capital crime took place. College and university media are not permitted to be witnesses.
Upon the offender's death the body shall be immediately embalmed, and shall be disposed of as follows:
Texas may have a much lower rate of death sentencing than other states, according to a study by Cornell University faculty members. The study showed that states with more objective laws defining a death penalty offense (such as Texas; as shown in the Capital Offenses section above Texas has defined specific, objective circumstances which constitute a capital murder offense) sentenced defendants to death less (about 1.9 percent in 1977-99) than states whose laws were more subjective in defining a death penalty offense (which assigned it about 2.7 percent during that period).
Texas' active use of the death penalty has led death penalty opponents to claim that Texas has executed persons who were, in fact, innocent. One notable case involves Cameron Todd Willingham, who was executed by lethal injection on February 17, 2004 for murdering his three daughters in 1991 by arson, but where a 2009 article in The New Yorker, and subsequent findings, have cast doubt on the evidence used in his conviction.
In 2009, a report conducted by Dr. Craig Beyler, hired by the Texas Forensic Science Commission to review the case, found that "a finding of arson could not be sustained". Beyler said that key testimony from a fire marshal at Willingham's trial was "hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”.
Governor Rick Perry expressed skepticism of Beyler's findings. He stated that court records showed evidence of Willingham’s guilt in charges that he intentionally killed his daughters in the fire. Perry is quoted in the report as stating of Willingham, "I’m familiar with the latter-day supposed experts on the arson side of it," and Perry said that court records provide "clear and compelling, overwhelming evidence that he was in fact the murderer of his children."
On July 23, 2010, the Texas Forensic Science Commission released a report saying that the conviction was based on "flawed science" and that there is no indication that the arson authorities were negligent or committed willful misconduct. Willingham remains the only person in the United States executed since 1976 for murder by arson. 
Carlos DeLuna was convicted of murder and executed in 1989 for the killing of a 24-year-old gas station attendant on the evening of February 4, 1983. Since DeLuna's execution by lethal injection, doubts have been raised about the conviction and the question of his guilt. An investigation published by the Columbia Human Rights Law Review in May 2012 has strengthened these claims of innocence by detailing a large amount of evidence suggesting the actual murderer was Carlos Hernandez, a similar-looking man who lived in a nearby neighborhood.
Two Mexican nationals have been recently executed in Texas – José Medellín in 2008, and Humberto Leal García in 2011. (Prior to Medellin v. Texas, four Mexican nationals were executed by Texas, who were Ramón Montoya, Irineo Montoya, Miguel Flores, and Javier Suárez Medina, in 1993, 1997, 2000 and 2001 respectively.) At the time of their arrests in the early 1990s, neither had been informed of their rights as Mexican nationals to have the Mexican consulate informed of the charges and provide legal assistance. A 2004 ruling by the International Court of Justice concluded that the U.S. had violated the rights of 51 Mexican nationals, including Medellín and García, under the terms of a treaty the U.S. had signed. In response to the ruling, the Bush administration issued an instruction that states comply, but the U.S. Supreme Court ruled that he had exceeded his authority. The Supreme Court also ruled in Medellin v. Texas that the treaty was not binding on states until Congress enacted statutes to implement it, and in Leal Garcia v. Texas declined to place a stay on the executions in order to allow Congress additional time to enact such a statute. A 2008 ruling by the International Court of Justice asked the United States to place a stay on the executions, but Texas officials stated that they were not bound by international law.
García supporters complained about the use of bite mark analysis and luminol in determining his guilt. However, García accepted responsibility for the crimes and apologized before his execution.
Regarding the García execution, Texas Governor Rick Perry stated that "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws."
The Texas Coalition to Abolish the Death Penalty, a 501(c)(3) grassroots membership organization was founded in 1998. TCADP has members across the state of Texas working to educate their local communities on the problems of the Texas death penalty. TCADP hosts multiple education and training opportunities each year around the state including releasing an annual report on December 7 and a day-long annual conference which includes workshops, panel discussions, networking and awards. The conference is held in Austin during legislative years and in other Texas Cities in non-legislative years (2012: San Antonio). TCADP opened a state office in Austin in 2004 with a paid program coordinator and hired an executive director in 2008. TCADP is affiliated with the National Coalition to Abolish the Death Penalty.
The March to Abolish the Death Penalty is the current name of an event organized each October since 2000 by several Texas anti-death penalty organizations, including Texas Moratorium Network, the Austin chapter of the Campaign to End the Death Penalty, the Texas Death Penalty Abolition Movement and Texas Students Against the Death Penalty. Anti-Death Penalty Alternative Spring Break is an annual event started by Texas Moratorium Network in 2004 and now co-organized by Texas Students Against the Death Penalty. It serves as a training ground for students who oppose the death penalty.
The Death Row Inner-Communalist Vanguard Engagement (D.R.I.V.E.) consists of several male death row inmates from the Polunsky Unit. Through a variety of non-violent strategies, they have begun launching protests against the perceived bad conditions at Polunsky, in particular, and capital punishment, in general. They actively seek to consistently voice complaints to the administration, to organize grievance filing to address problems. They occupy day rooms, non-violently refuse to evacuate their cells or initiate sit-ins in visiting rooms, hallways, pod runs and recreation yards when there is the perception of an act of abuse of authority by guards (verbal abuse; physical abuse; meals/recreations or showers being wrongly denied; unsanitary day rooms and showers being allowed to persist; medical being denied; paper work being denied; refusing to contact higher rank to address the problems and complaints) and when alleged retaliation (thefts, denials, destruction of property; food restrictions; wrongful denials of visits; abuse of inmates) is carried out in response to their grievances.
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