Ex parte Medellín 280 S.W.3d 854

ORDER

PER CURIAM.

We have before us a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, a motion in the alternative for leave to file the application as an original writ of habe-as corpus, and a motion for stay of execution.

On September 16, 1994, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant’s punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Medellin v. State, No. AP-71,997 (Tex.Crim.App. Mar. 19, 1997) (not designated for publication). Applicant timely filed in the convicting court his initial post-conviction application for writ of habeas corpus in which he raised a claim alleging the violation of his rights under Article 36 of the Vienna Convention. The convicting court recommended that we deny this claim because applicant: (1) had failed to comply with the well-settled Texas contemporaneous-objection rule at trial; and (2) had no individually enforceable right to raise a claim, in a state criminal trial, regarding the Vienna Convention’s consular access provisions. We adopted the trial court’s findings of fact and conclusions of law and denied habeas relief. Ex parte Medellin, No. WR-50,191-01 (Tex Crim.App. Oct. 3, 2001)(not designated for publication). Applicant then filed the same claim in federal district court and was ultimately denied relief. Medellin v. Cockrell, Civ. No. H-01-4078, 2003 WL 24309306 (S.D.Tex. April 17, 2003).

On March 31, 2004, the International Court of Justice (ICJ) issued a decision in Case Concerning Avena and Other Mexican Nationals (Avena), 2004 I.C.J. No. 128 (March 31, 2004). The ICJ held that (1) the Vienna Convention guaranteed individually enforceable rights; (2) the United States must “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [specified] Mexican nationals”; and (3) the United States must determine whether the violations “caused actual prejudice” to those defendants, without allowing American procedural default rules or laws to bar such review. Id. at 121-22, 153. In response to the opinion, President Bush issued a memorandum in which he stated that the United States would discharge its obligations under the Avena judgment by having State courts give effect to the ICJ decision in accordance with general princi-*856pies of comity. Arguing that the ICJ opinion and the presidential memo were new legal and factual bases for his Vienna Convention claim, applicant filed a subsequent application for writ of habeas corpus with the trial court. Reviewing the claim under Article 11.071, § 5, this Court filed and set applicant’s case and ordered briefing. Ex parte Medellin, 206 S.W.3d 584 (Tex.Crim.App.2005). After briefing, argument, and an exhaustive analysis, this Court determined that neither the Avena decision nor the presidential memorandum constituted new legal or factual bases and dismissed the application. Ex parte Medellin, 223 S.W.3d 315, 352 (Tex.Crim.App.2006).

On this, his second subsequent application for writ of habeas corpus, and in his motion for a stay of execution, applicant again argues that new developments require us to provide him with judicial review and reconsideration of his Vienna Convention claim under Avena.2 Applicant argues that these new developments consist of: (1) the United States Supreme Court’s decision in Medellin v. Texas, — U.S. -, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008), affirming and clarifying this Court’s opinion in applicant’s case; (2) the fact that a bill has been introduced in the United States House of Representatives which, if passed into law, would grant applicant a right to the judicial process required by Avena-, (3) the indication by a Texas Senator that he will introduce similar legislation in the Texas Legislature in the 2009 session; and (4) the fact that the Inter-American Commission on Human Rights, allegedly the “only body to have reviewed all of the evidence pertaining to [applicant’s] Vienna Convention violation under the standard required by the ICJ,” on July 24, 2008, issued its preliminary findings concluding that applicant was prejudiced by the violation of his Vienna Convention rights. Application p. 2.

We have reviewed applicant’s second subsequent application and find that it does not meet the dictates of Article 11.071, § 5, and should be dismissed. Art. 11.071, § 5(a). Applicant’s motion in the alternative for leave to file the application as an original writ of habeas corpus is denied as is his motion for stay of execution.

IT IS SO ORDERED THIS THE 31ST DAY OF JULY, 2008.

PRICE, J., filed a concurring statement in which COCHRAN and HOLCOMB, JJ., joined, except for Part V; COCHRAN, J., filed a concurring statement in which HOLCOMB, J., joined; MEYERS, J., filed a dissenting statement.

PRICE, J.,

concurring statement in which HOLCOMB and COCHRAN, JJ., joined except as to Part V.

The applicant alleges three circumstances he contends should qualify him to re-raise his Vienna Convention claim in yet another subsequent post-conviction application for writ of habeas corpus.1 First, he points to the fact that Mexico has initiated another proceeding in the International Court of Justice (ICJ) seeking clarification of the Avena decision,2 and that the ICJ has requested the United States to take precautionary measures (i.e., refrain from executing him) until it can render a decision. Second, he points to a determination by the Inter-American Commission on Human Rights (IACHR), *857an international tribunal that is an arm of the Organization of American States, that he was in fact prejudiced by the violation of his Vienna Convention rights.3 Third, he argues that it would violate due process to execute him now because 1) legislation is pending in Congress that would effectively make the Avena judgment binding on domestic courts in the United States, and 2) a state senator has indicated he will introduce a similar bill in the next state legislature. I agree that none of these circumstances justifies this Court in entertaining a subsequent writ application under Article 11.071, Section 5.4 For the reasons about to be given, I believe this Court’s hands are tied. But that does not mean that the Executive Branch cannot act.

I. International Court of Justice

In his first subsequent writ application, the applicant argued that, under the Supremacy Clause,5 the Avena decision constituted binding federal law that trumped the abuse-of-the-writ provisions of Article 11.071, Section 5. In our opinion in Ex parte Medellin, we expressly rejected that argument.6 Alternatively, the applicant argued that the Avena decision constituted new law and/or new facts that would justify a subsequent writ application under Article 11.071, Section 5. We rejected that argument in Medellin as well.7 Having rejected these arguments, we cannot very well hold that a request for precautionary measures pending a new proceeding that has been instituted in the ICJ that would merely clarify the holding of Avena either trumps, or, alternatively, falls under the ambit of, Article 11.071, Section 5. The United States Supreme Court ratified our reliance upon the statutory abuse-of-the-writ doctrine, notwithstanding Avena, in its certiori review of our decision.8 We must therefore heed the current legislative prohibition against entertaining a subsequent writ under these circumstances— unless and until Congress should act in such a way that we should be bound by the Avena judgment, notwithstanding contrary state law.

II. Inter-American Commission on Human Rights

The applicant also alleges that the IACHR’s decision that the violation of his Vienna Convention rights was prejudicial and amounted to a violation of the due process guarantees embodied in the 1948 Declaration of the Rights and Duties of Man, constitutes both new law and new facts for purposes of Article 11.071, Section 5. But in Medellin, we held that the Avena decision constituted law, not fact, and the same must surely be said of any decision of the IACHR.9 With respect to new law, we held in Medellin that, to be cognizable under Article 11.071, Section 5, it must emanate from “a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state.”10 International tribunals are not included within this statutory ambit. In any event, it is not clear — and it has not been pled here — that a decision of the IACHR is *858binding on domestic courts in the same way that it has been arguable that a decision of the ICJ with respect to the Vienna Convention is binding under the Supremacy Clause by virtue of the Optional Protocol.11 Thus, even if the IACHR judgment somehow constituted a new fact or law for purposes of Article 11.071, Section 5, notwithstanding what we said in Medellin, it is still not clear that by invoking it the applicant has presented anything that, even if true, would entitle him to relief.

III. Pending Legislation

The applicant alleges that on July 14, 2008, a bill was introduced in the House of Representatives, entitled the “Avena Case Implementation Act of 2008,” which would expressly provide for judicial remedies to carry out the treaty obligations that Avena construed the Vienna Convention to impose.12 The applicant contends that to execute him while such legislation is pending would violate federal due process, given the fact that nobody disputes that the Avena decision, once implemented by Congress, would require domestic courts to undergo a review and reconsideration of his conviction and sentence before he could be executed.13 This is entirely too speculative to support a due process claim. The applicant has no expectation that the proposed legislation will be enacted. Until such a statute is passed, the Avena decision is not binding; and if Avena is not binding, the applicant cannot predicate a due process claim upon it. Again, the applicant simply fails to state facts that *859would entitle him to habeas corpus relief. Any claim based upon legislation that might be introduced at the next legislative session in Texas suffers a similar fate.

IV. Original Application for Writ of Habeas Corpus

The applicant urges us to by-pass the abuse-of-the-writ provisions of Article 11.071, Section 5, by simply treating his application as an invocation of our original writ jurisdiction. This we may not do. It is indisputable that the applicant is challenging the validity of his conviction and death sentence. We have made it clear that under such circumstances we are bound to entertain any post-conviction writ of habeas corpus only under the purview of the procedures set out in Article 11.071— including the abuse-of-the-writ provisions in Article 11.071, Section 5.14

V. Executive Clemency

For all of the above reasons, this Court is not at liberty to stop the applicant’s execution. But the Governor is. The applicant informs us that he has requested that the Board of Pardons and Paroles recommend to the Governor that he grant the applicant a 240-day reprieve so that there will be time for the proposed federal legislation to be considered in Congress.15 Moreover, the Governor himself may grant a 30-day reprieve even absent a recommendation from the Board.16 It would be an embarrassment and a shame to the people of Texas and the rest of the country (albeit not presently unconstitutional) if we were to execute the applicant despite our failure to honor the international obligation embodied in the Avena judgment when legislation may well be passed in the near future by which that obligation would become, not merely precatory, but legally (and retroactively) binding upon us. The Executive Branch most appropriately exercises its clemency authority when the judicial branch finds itself powerless to rectify an obvious and manifest injustice. This, I think, is such a situation, and I would urge the Board and the Governor to act.

COCHRAN, J.,

concurring statement, HOLCOMB, J., joins.

I join the Court’s Order denying applicant’s motion for leave to file an original application and motion for a stay of execution and dismissing his third application for a writ of habeas corpus. Even if our law allowed for consideration of this third (and repetitious) application, which it does not, applicant is not entitled to any relief on the merits of his claim under Texas or United States law.

First, let us be clear about applicant’s claim. Born in Mexico, applicant was brought to the United States when he was three years old and, at the time he was arrested, had lived in this country for fifteen of his eighteen years. He spoke fluent English, but he never obtained, nor apparently ever sought, U.S. citizenship. So, at the time of his arrest and trial, he was legally a Mexican citizen. His claim is that no one informed him of his right to contact the Mexican consulate. This is true. It is also true that he was never denied access to the Mexican consulate. The problem is that he apparently never *860told any law enforcement or judicial official that he was a Mexican citizen until some four years after his conviction. Applicant never informed the arresting officers that he was a Mexican citizen.1 He makes no claim that he informed any magistrate that he was a Mexican citizen. He points to no evidence that he informed the trial judge before or during his trial that he was a Mexican citizen.2 We do not know what the arresting officers, the magistrate, or the trial judge would have done had any of them been informed that applicant was a citizen of Mexico. Perhaps they would have informed him of his right to contact his consulate for assistance. While Texas authorities clearly failed in their duty to inform this foreign national of his rights under the Vienna Convention, this foreign national equally failed in his duty to inform those authorities that he was a Mexican citizen. Although one would like to think that all Texas public officials are clairvoyant about the nationality of all who appear before them, they are not required to be, nor, when there is no reason to believe that a defendant is anything but a U.S. citizen, should they be.

As this Court explained at considerable length in applicant’s last application for a writ of habeas corpus,3 Texas law does not permit a defendant to raise a claim four years after his trial that he was not notified before or during his trial of his rights under the Vienna Convention, the U.S. Constitution, the Texas Constitution, or any other law. This claim was procedurally defaulted by the failure to raise it in a timely manner.

In Texas, we have a contemporaneous objection rule which requires all litigants to make a timely request, claim, or objection or forfeit the right to raise that request, claim, or objection after trial. This same rule applies in every jurisdiction in America. As the Supreme Court explained over thirty years ago, the contemporaneous objection rule serves important judicial interests in American criminal cases and deserves respect throughout the land.

A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question.4

Furthermore, a contemporaneous objection permits the trial judge to remedy potential error before it occurs.5 In the present case, for example, had applicant *861informed any legal officer that he was a Mexican national and wanted to consult with his consulate, any such official could have (and presumably would have) willingly complied with the requirements of the Vienna Convention. If applicant had delayed telling anyone of his Mexican citizenship until trial, the trial judge could have immediately informed the Mexican consulate, allowed applicant to do so himself, or perhaps given him a continuance to seek assistance from his consulate.

As the Supreme Court has explained, the failure to abide by the contemporaneous objection rule “may encourage ‘sandbagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off.”6 Finally, it is the criminal trial itself that is “the main event”; it is not “a tryout on the road” to more than a decade of appellate review and re-review.7

The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.8

Texas courts have long followed the Supreme Court’s reasoning concerning the importance of the contemporaneous objection rule in the fair, effective, and efficient operation of its state courts.9 Indeed, the *862contemporaneous objection rule has been a bulwark of the Anglo-American Common Law for centuries. It is based upon our fundamental concept of an adversarial system of justice. The International Court of Justice, however, is more familiar with the Napoleonic Code and an inquisitorial system of criminal justice. That system is very different from our own, and has its own virtues and vices. It does not rely upon our adversarial principles in which a jury listens to opposing lawyers presenting all of the relevant, conflicting, and competing evidence and witnesses to the factfin-der at one time and in one place with the judge ruling on all legal questions and claims at that time. In our Anglo-American system the trial is the main event. The European criminal justice system does not depend upon our finely-tuned jury trial procedures, and thus it need not be concerned about the importance of our contemporaneous objection rule or that of procedural default. But those rules are essential to our American justice system.

Applicant claims that the Avena, judgment necessarily trumps all Texas and federal procedural rules because it ordered that the convictions of fifty-four foreign nationals be “reviewed” regardless of bedrock American procedural default rules. The Supreme Court held otherwise in its recent decision in Medellin v. Texas.10 Although we accord the greatest respect to, and admiration for, the International Court of Justice (ICJ) and its judgments, we, like the Supreme Court, cannot trample on our own fundamental laws in deference to its judgment. We would give even the Devil the benefit of our American law, but if we cut down our laws to suit another sovereign that operates under a different system of justice, we could not stand upright in the lawless winds that would then blow.11 If we violate our state and federal procedural rules for this particular applicant, we should violate them for all American defendants as well. And then we would have no rules and no law at all.

But it seems that the ICJ intended to do just that: to impose its sense of Napoleonic Code inquisitorial justice without regard for other sovereigns’ well-established laws and procedures. So let me consider this case from its perspective and review the merits of applicant’s claim in accord with the ICJ’s Avena judgment.12

*863Applicant was arrested for, charged with, and convicted of an extraordinarily gruesome rape and murder of two teenaged girls in Houston, Texas, in 1993. The two girls, 14-year-old Jennifer Lee Ert-man and 16-year-old Elizabeth Pena, were friends and classmates at Waltrip High School. They were simply walking home one June evening when they were attacked by applicant and several of his gang-members who repeatedly raped both girls, then dragged them into the woods to kill them and hide their bodies. Applicant helped to strangle at least one of the girls with her own shoelace. He later complained to a friend that he had a hard time getting Jennifer Ertman to die and had to step on her throat to finish her off. The girls’ decomposed bodies were discovered four days later.

Applicant bragged to his buddies that both of the girls were virgins until he and his cohorts raped them. He confessed to police officers after being properly advised of his rights to counsel under Miranda.13 He explained, in great detail, how his group was involved in a gang-initiation rite until the two girls innocently wandered past them on their way home. His written confession displayed a callous, cruel, and cavalier attitude toward the two girls that he had raped and helped to murder. Surely no juror or judge will ever forget his words or his sordid deeds.

Applicant and four of his fellow gang members were convicted of these murders and all were sentenced to death.14 One of them, Sean Derrick O’Brien, has been executed. The death sentences for two of the gang members were later commuted to life in prison under Roper v. Simmons, because they were seventeen at the time of the murders.15 Applicant and Peter Cantu both remain in prison awaiting execution.

Applicant’s argument on the merits of his consular notification claim is as follows:

• If I had been told before trial that I could notify the Mexican consulate that I had been arrested for a double murder and rape, I would have done so;

• If I had notified the Mexican consulate before trial that I wanted its help, it would have given me “substantial assistance”;

• The “substantial assistance” that the Mexican consulate would have given me would be that of providing me with a top-notch lawyer instead of the lawyer that the trial court appointed to represent me;

*864• The lawyer that did represent me at trial had been suspended from the practice of law for ethics violations in a different case;

• If a different, better lawyer, paid by the Mexican Consulate, had represented me at trial, I would not have been sentenced to death for the rape-murder of these two girls, even though my four cohorts were all sentenced to death in their trials, represented by their lawyers.

Applicant argues that a lawyer chosen by the Mexican consulate would have introduced sufficient background, character, and “life history” evidence that the jury would necessarily have sentenced him to life in prison instead of death. He argues that a better pretrial investigation by a better lawyer would have shown that applicant grew up in an environment of abject poverty and violence. He states that he was abandoned by his parents at the age of four and left to live with an elderly relative. He also states that he became “exposed to serious violence shortly after rejoining his parents in Houston five years later.” Then, simultaneously abandoned and abused by his parents, he was further exposed to “bad influences” in middle school. He claims that, “[a]s recent immigrants, his parents lacked the skills to understand and address the pressures [applicant] faced at school.” So he developed behavioral and emotional problems as well as an alcohol abuse problem, and he dropped out of school. And those “profound experiences” explain why he and his five fellow gang-members raped, robbed, and killed two teen-aged girls who just happened to walk by during their gang initiation. Applicant asserts, “On the record before this Court, the result is not fairly in doubt: were it not for the violation of the Vienna Convention, [applicant] would not be on death row.”

This argument might have some plausible intellectual appeal had just one, any one, of applicant’s cohorts not been sentenced to death despite the best efforts of their respective attorneys during their individual trials. Applicant may or may not have been the ringleader of this gang, but he was, at a minimum, fully and gleefully involved in the brutal rapes and murders of these two young girls.16 The evidence at trial showed that he bragged about his gory and sadistic exploits to his friends. The State also put on considerable evidence showing his prior violence and post-offense violence in jail. The jurors heard a great deal of evidence about applicant’s extensive gang-related illegal activities before this crime and how he was expelled from school because of gang activities. No Officer Krupke would ever conclude that applicant’s crimes and those of his cohorts were just the unfortunate product of a sad and sorry upbringing.17

Applicant complains that his trial attorney was incompetent. These claims have been reviewed by the trial court, by this Court, by a federal district court, and by the Fifth Circuit Court of Appeals.18 All *865of these courts (a total of fourteen individual judges) have rejected those complaints as being totally without merit. This claim could have been, but was not, submitted to the U.S. Supreme Court. Further review by any lower court would be redundant. It is highly improbable that any lawyer in the State of Texas, the United States, the European Union, or any other jurisdiction could have saved applicant (or any of his cohorts) from a sentence of death for the heinous, horrific and mindless offenses that they committed during one summer evening in 1998 in the State of Texas.

In sum, I wholeheartedly agree with Justice Stevens’s conclusion that “[t]he cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellin.” 19 I would go further: there is no likelihood at all that the unknowing and inadvertent violation of the Vienna Convention actually prejudiced Medellin. This was a truly despicable crime committed by five truly brutal young men who were deadly dangerous to anyone who might find themselves near them. All five were sentenced to death by separate juries after hearing all of the evidence in each of their individual trials. No matter how long the courts of this state, this nation, or any other nation review, re-review, and re-review once again the disgusting facts of this crime and these perpetrators, the result should be the same: These juries reached a reasonable verdict, beyond a reasonable doubt, that a sentence of death was the only appropriate punishment under Texas law.

Some societies may judge our death penalty barbaric. Most Texans, however, consider death a just penalty in certain rare circumstances. Many Europeans may disagree. So be it. But until and unless the citizens of this state or the courts of this nation decide that capital punishment should no longer be allowed under any circumstances at all, the jury’s verdict in this particular case should be honored and upheld because applicant received a fundamentally fair trial under American law.

MEYERS, J.,

dissenting statement.

I would file and set applicant’s Article 11.071/original writ. See Ex parte Davis, 947 S.W.2d 216 (Tex.Crim.App.1996).