Keyes v. School District No. 1 Denver, CO. Brief for Defendants-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant

v.
JAMES A. COLLINS, DIRECTOR 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, 
Respondent-Appellee

Appeal from the United States District Court 
for the Northern District of Texas,

BRIEF OF AMICUS CURIAE 
RICHARD GERRY DRINKARD

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 
707 Travis
Houston, Texas 77002
(713) 222-9955
fax (713) 222-6515
Counsel for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant

v.
JAMES A. COLLINS, DIRECTOR 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, 
Respondent-Appellee

Appeal from the United States District Court 
for the Northern District of Texas,

BRIEF OF AMICUS CURIAE 
RICHARD GERRY DRINKARD

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 
707 Travis
Houston, Texas 77002
(713) 222-9955
fax (713) 222-6515
Counsel for Amicus Curiae



TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS............................................ i
TABLE OF AUTHORITIES...................................... ii
I. BACKGROUND................................................ ..
II. A R G U M E N T ................................................ ..

A. A state procedural rule must be "strictly
and regularly" followed in order to be an 
independent and adequate state law ground.............2

B. Texas' Contemporaneous Objection Rule ..............  3
C. The Texas courts regularly waive or

ignore the contemporaneous objection rule.............3
D. The Texas contemporaneous objection rule 

is also not an adequate state law ground 
because the procedural rule is purely a
discretionary one.....................................5

E. At the very least, the Texas Court of 
Criminal Appeals has inconsistently 
applied the contemporaneous objection
rule in capital cases................................ 1 1

CONCLUSION................................................... 12
CERTIFICATE OF SERVICE ....................................  14

l



TABLE OF AUTHORITIES
CASES PAGES
Ardion v. State. 1992 WESTLAW 133777 at *2

(Tex.App.— Houston June 18, 1992).....................  7

Barnard v. State. 730 S.W.2d 703 (Tex.Crim.App.
1988)   12

Barney v. State. 698 S.W.2d 114 (Tex.Crim.App.
1985)   6,12

Barr v. City of Columbia. 378 U.S. 146 (1964)   2,5
Burks v. State. __ S.W.2d ___ (Tex.Crim.App.

March 9, 1994)   12
Burns v. State. 835 S.W.2d 733

(Tex.App.— Corpus Christi 1992) .....................  4

Butler v. State. ___ S.W.2d ___ (Tex.Crim.App.
March 9, 1994) .......................................  1

Carter v. State. 656 S.W.2d 468 (Tex.Crim.App.
1983) ................................................  6

Clark v. State. __ S.W.2d ___ (Tex.Crim.App.
March 9, 1994)   10,11

Clark v. State. __ S.W.2d - (Tex.Crim.App.
March 9, 1994)   4

Coleman v. Thompson. Ill S. Ct. 2546 (1991) ...............  7
Cordova v. State. 733 S.W.2d 175 (Tex.Crim.App.

1987)   12
Dugger v. Adams. 489 U.S. 401 (1989)   5,13
Ford v. Georgia. 498 U.S. 411 (1991)   2
Gardner v. State. 733 S.W.2d 195 (Tex.Crim.App.

1987)   12
Goodman v. State. 701 S.W.2d 850 (Tex.Crim.App.

1985)   12
Golden v. State. 1992 WESTLAW 1938 (Tex.App.—

Dallas January 3, 1992)................................  4

Green v. State. 840 S.W.2d 402 ............................. 12

ii



Gutierrez v. Moriartv. 922 F.2d 1464 (10th Cir.
1991) ................................................  8

Gutierrez v. Morgan. 922 F.2d 1464 (10th Cir. 1991............  10
Harmon v. Ryan. 959 F.2d 1457 (9th Cir. 1992) .............  8
Harris v. State. 790 S.W.2d 568 (Tex.Crim.App.

1989)   12
Hathorn v. Lovorn. 457 U.S. 255 (1982) ....................  2
Henry v. Mississippi. 379 U.S. 443 (1965) .................  2
Hensarlinq v. State. 829 S.W.2d 168

(Tex.Crim.App. 1992) .................................  9
Hill v. Black. 887 F.2d 513 (5th Cir. 1989) ...............  8
Hogue v. State. 711 S.W.2d 9 (Tex.Crim.App.

1986) ................................................  12
Huffman v. State. 746 S.W.2d 212 (Tex.Crim.App.

1988)   12
James v. Kentucky. 466 U.S. 341 (1984) ....................  2
Johnson v. Mississippi. 486 U.S. 578 (1988) ...............  2
Jones v. Butler. 864 F.2d 348 (5th Cir. 1988) .............  11
Jones v. State. 356 So. 2d 1182 (Miss. 1978) ..............  4,9
Karis v. Vasquez. 828 F. Supp. 1449 (E.D. Cal.

1993) ................................................  8
Lamb v. State. 680 S.W.2d 11 (Tex.Crim.App.

1984)   12
Little v. State. 1992 WESTLAW 43934 at *1

(Tex.App.— Houston March 5, 1992).....................

Marin v. State. 851 S.W.2d 275 (Tex.Crim.App.
1993) ................................................  6

Milton v. Procunier. 744 F.2d 1091 (5th Cir.
1984)   13

Mock v. State. 848 S.W.2d 215 (Tex.App.— El
Paso 1993) ...........................................  4

Perry v. State. 669 S.W.2d 794
iii



Polk v. State. 729 S.W.2d 749 (Tex.Crim.App.
1987) ................................................  4

Price v. State. 1992 WESTLAW 360170 at *4
(Tex.App.— Dallas Nov. 19, 1992)......................  4

Ray v. State. 1991 WESTLAW 202754 at *1
(Tex.App.— Houston Oct. 10, 1991).....................  4

Rezac v. State. 782 S.W.2d 869 (Tex.Crim.App.
1990) ................................................  3,6

Richardson v. State. No. 70,743 ...........................  4,10
Rodriquez v. State. 1992 WESTLAW 5554 at *3

(Tex.App.--Houston Jan. 16, 1992).....................  4
Rouqeau v. State. 738 S.W.2d 651 (Tex.Crim.App.

1987)   12
Rousseau v. State. 855 S.W.2d 666

(Tex.Crim.App. 1993)   12
Smith v. State. 683 S.W.2d 393 (Tex.Crim.App.

1984)   12
State v. Johnson. 1992 WESTLAW 314359 at *2

(Tex.App. Oct. 29, 1992)..............................  4
Stoker v. State. 788 S.W.2d 1 (Tex.Crim.App.

1989)   12
Sullivan v. Little Hunting Park. 396 U.S. 229

(1969) ...............................................  7
Taylor v. Illinois. 484 U.S. 400 (1988) ...................  7
Thompkins v. State. 774 S.W.2d 195

(Tex.Crim.App. 1987)   12
Thompson v. State. 691 S.W.2d 627

(Tex.Crim.App. 1984)   12
Wainwriqht v. Svkes. 433 U.S. 72 (1977) ...................  2
Watts v. State. 1990 Tex. App. LEXIS 1384

(Tex.App.— Houston 1990) ............................ 4

White v. Estelle. 720 F.2d 415 (5th Cir. 1983) ............  4

(Tex.App.— Houston [1st Dist.] 1984)   2,9

IV



2
Wilcher v. Puckett. 978 F.2d 872 (5th Cir.

1992) ..............................
Williams v. Georgia. 349 U.S. 375 (1955) ..................  7

Williams v. State. 674 S.W.2d 315
(Tex.Crim.App. 1984) .................................  12

STATUTES
Miss. Code Ann. § 99-35-143 (1991) ........................  9

MISCELLANEOUS

Steven Goode et al., 3 3 Texas Practice,
Guide to the Texas Rules of Evidence:
Civil and Criminal § 103.5, at 18
(1988 & Supp.) .......................................  9

James P. Wallace, Texas Rules of Criminal 
Evidence Handbook: Part I, 30 Houston
L. Rev. 137, n. 110 (1993).............................  9

v



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant

v.
JAMES A. COLLINS, DIRECTOR 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, 
Respondent-Appellee

Appeal from the United States District Court 
for the Northern District of Texas,

Pursuant to Fed. R. App. Pro. 29, Amicus Curiae, Richard 
Gerry Drinkard, submits this amicus curiae brief, which addresses 
an important issue in the instant case —  namely, whether Texas' 
"contemporaneous objection rule" is an independent and adequate 
state law ground.

I. BACKGROUND
In his response to Mr. Mann's petition for a writ of habeas 

corpus, Respondent has argued that certain claims raised by Mr. 
Mann were procedurally defaulted under Texas' contemporaneous 
objection rule because they were not raised at trial. Mr. Mann 
appealed the district court's rejection of at least one of those 
claims, which was found to be procedurally defaulted.



On appeal, Respondent again invokes procedural default as 
a defense. Mr. Mann has responded that no federal deference is 
due to the Texas courts' application of the contemporaneous 
objection rule because the procedural default rule is not 
"strictly and regularly" applied and, thus, is not an 
"independent and adequate state law ground."

II. ARGUMENT
A. A state procedural rule must be "strictly and

regularly” followed in order to be an independent and 
adequate state law ground.

For a state procedural default rule to be an "independent 
and adequate" state law ground which precludes consideration of 
the merits of a constitutional claim in federal habeas 
proceedings,1 the rule must be "strictly and regularly" followed. 
See, e.q.. Ford v. Georgia. 498 U.S. 411, 423 (1991); Johnson v. 
Mississippi. 486 U.S. 578, 587 (1988); James v. Kentucky. 466 
U.S. 341 (1984); Hathorn v. Lovorn. 457 U.S. 255, 262-63 (1982);
Barr v. City of Columbia, 378 U.S. 146, 149 (1964); Wilcher v. 
Puckett, 978 F.2d 872, 879 (5th Cir. 1992). In determining 
whether a state court procedural bar is an independent and 
adequate state law ground, a federal court must review the 
question de novo. See Henry v. Mississippi, 379 U.S. 443, 447 
(1965) ("we have consistently held that the question of when and 
how defaults in compliance with state procedure can preclude

1 See Wainwright v. Sykes. 433 U.S. 72 (1977).
2



consideration of a federal question is itself a federal 
question").

B. Texas' Contemporaneous Objection Rule
In Texas a criminal defendant must contemporaneously object 

at trial to an alleged state or federal law violation in order to 
raise the claim in subsequent appellate proceedings. See Rezac 
v. State. 782 S.W .2d 869, 870 (Tex.Crim.App. 1990) ("[i]n order
for an issue to be preserved on appeal, there must be a timely 
objection which specifically states the legal basis for an 
objection [citation omitted][;] [a]n objection stating one basis 
may not be used to support a different legal theory on appeal" 
[citation omitted]). As the Court of Criminal Appeals has 
explained, "The failure of the appellant to complain or object in 
the trial court constitutes a procedural default under our law". 
Perry v. State. 703 S.W.2d 668, 670 (Tex.Crim.App. 1986). This 
rule has been codified in the Texas Rules of Appellate Procedure. 
See Tex. R. App. Pro. 52.

C. The Texas courts regularly waive or ignore the 
contemporaneous objection rule.

As Mr. Mann notes in his Reply Brief, during the last two 
decades there have been approximately three dozen published cases 
in which the Texas Court of Criminal Appeals has, without any 
consistent reason, waived or ignored the contemporaneous 
objection rule.2 The vast majority of those cases were decided

These cases are also listed in an Appendix to the amicus2
brief.

3



in the last decade. This number does not include the countless 
number of unpublished cases in which the procedural rule was 
ignored.3 Nor does this number include the many decisions 
rendered by the intermediate Texas appellate courts in which the 
procedural rule was ignored or waived.4 Since the Texas Court of 
Criminal Appeals has the authority to review decisions of the 
Texas Courts of Appeals in criminal cases sua sponte, see Tex. R. 
App. Pro. 200(a), the Court's decision to let stand the many 
Court of Appeals decisions ignoring the absence of a 
contemporaneous objection reflects clearly upon the Court of 
Criminal Appeals' inconsistent enforcement of the contemporaneous 
objection rule.5

3 See, e.q.. Richardson v. State. No. 70,743, unpublished 
slip op., at 4 (Tex.Crim.App. Dec. 1, 1993); Jones v. State, 
unpublished slip op., No. 70,740 (September 16, 1992); see also 
id. (White, J., dissenting) (majority addressed merits of claim 
despite procedural default). Mr. Mann's counsel obviously has 
limited access to such cases.

4 See. e.q.. Mock v. State. 848 S.W.2d 215, 222 (Tex.App.—  
El Paso 1993); Little v. State. 1992 WESTLAW 43934 at *1
(Tex.App.— Houston March 5, 1992); Golden v. State. 1992 WESTLAW 
1938 (Tex.App.— Dallas January 3, 1992); Ardion v. State. 1992 
WESTLAW 133777 at *2 (Tex.App.— Houston June 18, 1992); Price v. 
State. 1992 WESTLAW 360170 at *4 (Tex.App.— Dallas Nov. 19, 
1992); Rodriquez v. State. 1992 WESTLAW 5554 at *3 (Tex.App.—  
Houston Jan. 16, 1992); State v. Johnson. 1992 WESTLAW 314359 at 
*2 (Tex.App. Oct. 29, 1992); Burns v. State. 835 S.W.2d 733, 737 
(Tex.App.— Corpus Christi 1992); Ray v. State. 1991 WESTLAW 
202754 at *1 (Tex.App.— Houston Oct. 10, 1991); Watts v. State.
1990 Tex.App. LEXIS 1384, at *6 (Tex.App.— Houston 1990).

5 The Court of Criminal Appeals has frequently used its
review of intermediate criminal appellate court decisions to 
comment on the application of Texas' contemporaneous objection 
rule. See. e.q.. Perry v. State. 703 S.W.2d 668 (Tex.Crim.App. 
1986) (reversing Court of Appeals' decision to reach merits 
despite defendant's lack of contemporaneous objection); Polk v. 
State. 729 S.W .2d 749, 752 (Tex.Crim.App. 1987) ("[i]n our

4



This sizeable number of cases in which the Texas Court of
Criminal Appeals has failed to follow the contemporaneous 
objection rule eliminates the Texas rule as an independent and 
adequate state procedural ground, because it demonstrates that 
the rule is not "strictly or regularly followed," Barr v. City of 
Columbia. 378 U.S. at 149. There is no precise number of cases 
in which a state appellate court can excuse the failure to comply 
with such a rule before it is no longer "strictly or regularly 
followed." However, the number of cases in Texas in which this 
has occurred is far greater than the number —  five —  which the 
Supreme Court implied in Dugger v. Adams. 489 U.S. 401, 410 n.6 
(1989), might not be enough to show that a contemporaneous 
objection rule is not being strictly or regularly applied.

D. The Texas contemporaneous objection rule is also not an 
adeguate state law ground because the procedural rule is purely a discretionary one.

Although the cases cited herein are clearly sufficient to 
demonstrate that the Texas criminal courts inconsistently apply 
the contemporaneous objection rule, there is another, related 
reason why the federal courts cannot treat procedural default 
findings based on that rule as an independent and adequate state 
law ground.

judgment the Court of Appeals has been too niggardly in its 
application of the contemporaneous objection rule to the 
circumstances of this particular case"). Thus, the Court of 
Criminal Appeals letting stand many instances of non-enforcement 
of the contemporaneous objection rule is revealing.

5



The contemporaneous objection rule, which is codified in 
Tex. R. App. Pro. 52(a), is not jurisdictional or mandated by the 
Texas Legislature.6 Rather, it is a judicially-created 
procedural rule, which is purely discretionary. Texas appellate 
courts are free to waive the contemporaneous objection rule at 
their whim. As the Court of Criminal Appeals has held, "Once 
jurisdiction of a[] [Texas] appellate court is invoked, exercise 
of its reviewing functions is limited only by its own discretion 
or a valid restrictive statute." Carter v. State. 656 S.W.2d 
468, 469 (Tex.Crim.App. 1983) (emphasis added);7 Rezac v. State. 
782 S.W .2d 869, 870 (Tex.Crim.App. 1990) (same). Accordingly, in 
countless Texas cases, see, e.q.. the cases cited in the 
Appendix, the Texas Court of Criminal Appeals has reached out and 
addressed the merits of an otherwise procedurally defaulted claim 
"in the interest of justice."

When faced with similarly discretionary state procedural 
rules, the Supreme Court and the lower federal courts have 
generally held that such rules cannot serve as independent and

6 As the Texas court observed in Marin v. State. 851 S.W.2d 
275, 278 (Tex.Crim.App. 1993), "Rule 52(a) is not an act of the 
Legislature" but "'is plainly a rule of procedure and does not 
affect the substantive rights of a criminal defendant.'" The 
Texas Rules of Appellate Procedure were promulgated by the Texas 
Supreme Court and Texas Court of Criminal Appeals. The Rules 
were not enacted by the Texas Legislature.

7 Notably, Carter was cited by the Court of Criminal Appeals 
in Barney v. State. 698 S.W.2d 114 (Tex.Crim.App. 1985), as 
authority for waiving the contemporaneous objection rule in that 
case: "At trial, appellant failed to [present the claim raised on 
appeal]. Thus, nothing is preserved for review.... We 
nevertheless proceed to review the claim in the interest of 
justice." (Emphasis supplied).

6



adequate state grounds for decision. In a capital case, Williams
v. Georgia, 349 U.S. 375 (1955), for example, the Georgia courts 
held that a constitutional claim was procedurally defaulted 
because the claim was not timely asserted at trial. A Georgia 
statute, however, permitted the state court to address the merits 
of the claim notwithstanding the procedural default —  but only 
if the court wished to exercise its discretion. The state 
appellate court refused to exercise that discretion. Justice 
Frankfurter's decision for the Court held that the state court's 
finding of procedural default was not an "independent and 
adequate state law ground" because the state procedural rule was 
a discretionary rule. "[T]he discretionary decision ... does not 
deprive this court of jurisdiction to find that the substantive 
issue is properly before us." Williams. 349 U.S. at 389. See 
also Coleman v. Thompson. Ill S. Ct. 2546, 2560 (1991) (noting 
that Virginia procedural rule at issue "is 'mandatory'" and that 
"the Virginia Supreme Court has reiterated the unwaivable nature" 
of the procedural rule); id. at 2569 (White, J., concurring) 
("[t]he predicate for [the petitioner's] argument is that on 
occasion the Virginia Supreme Court waives the untimeliness of 
the [procedural] rule[;] [i]f that were true, the rule would not 
be an adequate and independent state law ground barring ... 
habeas review"); Sullivan v. Little Hunting Park. 396 U.S. 229, 
233-34 (1969) (a state court procedural rule "more properly 
deemed discretionary than jurisdictional" does not bar federal 
review); Taylor v. Illinois. 484 U.S. 400, 421 (1988) (Brennan,

7



J., joined by Marshall & Blackmun, JJ., dissenting on other 
grounds) ("it is well established that where a state court 
possesses the power to disregard a procedural default in 
exceptional cases, the state court's failure to exercise that 
power in particular cases does not bar review by this Court") 
(citing cases); Gutierrez v. Moriarty. 922 F.2d 1464, 1469 (10th 
Cir. 1991) ("[w]hen assessing the adeguacy of the New Mexico
procedural bar rule, we must therefore recognize that the New 
Mexico state courts have expressly reserved their unfettered 
discretion to waive the [procedural rule][;] [t]his circumstance 
argues against the conclusion that the courts apply the rule 
regularly and evenhandledly"); Harmon v. Ryan. 959 F.2d 1457, 
1461 (9th Cir. 1992) ("[a] procedural default rule is ... not
'adequate' if ... the procedural rule appears discretionary"); 
Karis v. Vasguez. 828 F. Supp. 1449, 1461 (E.D. Cal. 1993)
("[t]he Supreme Court has ... held that a discretionary state 
[procedural] rule cannot bar federal review").

The kind of broad discretion exercised with respect to the 
procedural rules in these cases —  and in Texas —  must be 
distinguished from the consistent and narrowly limited exercies 
of discretion reviewed in Hill v. Black. 887 F.2d 513 (5th Cir. 
1989). In that case, a Mississippi habeas petitioner challenged 
the application of Mississippi's contemporaneous objection rule. 
This Court rejected the argument that the Mississippi courts had 
inconsistently applied that state's contemporaneous objection 
rule. The Court's reasoning is instructive here:

8



An analysis of the complete jurisprudence of 
Mississippi reveals that the [state] Supreme Court 
regularly applies the contemporaneous objection rule to 
cases before it. That Court also consistently follows 
a policy of disregarding the policy when plain error is 
involved. Thus, the Court often reviews the merits of 
errors to which no underlying objection was made at 
trial if the nature of the case and the nature of the 
alleged error combined or separately could affect 
fundamental justice. [Citation omitted].... The plain 
error exception to universal application of the 
procedural default bar does not render the application 
of the rule haphazard or arbitrary. Rather, the case 
law reveals that the rule and exception are applied in 
a regular and consistent fashion.

Id. at 516.
The Texas contemporaneous objection rule is markedly 

different from the Mississippi rule at issue in Hill. Unlike 
Mississippi, Texas has no generic, consistently applied "plain 
error" exception.8 There has been no singular, narrowly applied 
exception in the many cases in which the Texas courts have

8 See Steven Goode et al., 33 Texas Practice, Guide to the 
Texas Rules of Evidence: Civil and Criminal § 103.5, at 18 (1988 
& Supp.) (no such thing as a "fundamental error" exception to 
contemporaneous objection rule in Texas Court of Criminal 
Appeals' jurisprudence); James P. Wallace, Texas Rules of 
Criminal Evidence Handbook: Part 1, 30 Houston L. Rev. 137, n.110 
(1993) (same). All judicial attempts to create a generic "plain" 
or "fundamental" exception in the modern era have failed. See. 
e.g., Hensarlinq v. State. 829 S.W.2d 168, (Tex.Crim.App. 1992) 
(Maloney, J., dissenting) (urging application to "fundamental 
error" exception in case where defendant alleged his 
"constitutionally protected right to due process was violated"); 
Perry v. State. 669 S.W.2d 794, 801 (Tex.App.— Houston [1st 
Dist.] 1984) (reaching merits of federal constitutional claim 
despite defendant's failure to contemporaneously object at 
trial), rev'd. 703 S.W.2d 668 (Tex.Crim.App. 1986).

Furthermore, Mississippi's contemporaneous objection rule at 
issue in Hill was one created by statute, not by a court-made 
rule. See Miss. Code. Ann. § 99-35-143 (1991) ; see also Jones v. 
State, 356 So.2d 1182, 1184 (Miss. 1978). As noted, Texas' 
contemporaneous objection is not a creature of the legislature, 
but instead is enforceable at the whim of the Texas courts.

9



overlooked the failure to comply with the Texas contemporaneous 
objection rule. Unlike the Mississippi Supreme Court, the Texas 
Court of Criminal Appeals has not singled out any particular type 
of claims for which relaxation of the contemporaneous objection 
rule would be appropriate. Rather, the Texas Court overlooks the 
procedural bar unpredictably, unguided by any apparent 
standards.9

Accordingly, we urge this Court to reach the conclusion the 
Tenth Circuit reached in Gutierrez v. Morgan. 922 F.2d 1464 (10th 
Cir. 1991), when faced with virtually the same situation as that 
in Texas. Holding that the New Mexico courts' application of 
that state's contemporaneous objection rule was not an 
"independent and adequate state law ground" binding on the 
federal habeas courts, the Tenth Circuit explained the basis in 
state law for its conclusion: "Our research has discovered no

9 For instance, in Richardson v. State. No. 70,743, 
unpublished slip op. (Dec. 1, 1993), the court waived the 
procedural default rule and reach the merits regarding a garden- 
variety state evidentiary law claim that "the trial court 
erroneously admitted a crime-scene photograph of the victim and 
an autopsy photograph of the victim." Id. at 4. Conversely, in
Clark v. State. ___ S.W.2d ___, No. 71,251 (Tex.Crim.App. March
9, 1994), the court refused to reach the merits of a 
Confrontation Clause claim that argued that the trial court erred 
by disallowing the admission of highly damaging impeachment 
material of a State's psychiatrist during the capital sentencing 
phase. See id.. slip op., at 14-16 ("the record reveals that it 
appears to have been somewhat ambiguous as to whether at trial 
appellant was seeking to impeach [Dr. Grigson] in this way or in 
a different manner...[;] we conclude that appellant did not 
sufficiently present to the trial court the claim that he now 
makes on appeal"). A review of the Texas Court of Criminal 
Appeals' complete jurisprudence reveals a great number of such 
arbitrary applications of the Texas contemporaneous objection 
rule.

10



case articulating the parameters within which the New Mexico 
courts exercise [their] discretion, and it appears that there are 
no standards governing those courts' discretionary review of 
cases raising defaulted fundamental constitutional rights...."
Id. at 1469.10

E. At the very least, the Texas Court of Criminal Appeals 
has inconsistently applied the contemporaneous objection rule in capital cases.

Even assuming arguendo that Mr. Mann has not established 
that in all Texas criminal cases the Texas courts have 
inconsistently applied the contemporaneous objection rule, Mr. 
Mann has certainly established that the Texas Court of Criminal 
Appeals has inconsistently applied the procedural rule in capital 
cases. See Jones v. Butler. 864 F.2d 348, 369 (5th Cir. 1988)
(on rehearing) ("[i]n capital cases, the Louisiana Supreme Court 
does not 'strictly and regularly' apply a procedural bar to 
claims of error at trial") (emphasis supplied). Mr. Mann has 
identified no less than two dozen Texas capital cases in which 
the Court of Criminal Appeals has waived the contemporaneous 
objection rule.11

10 If anything, Mr. Mann has made out a stronger case than 
the habeas petitioner in Guiterrez. because in that case the 
state court had at least conceded that there was such a thing as 
a generic "fundamental error" exception in New Mexico. 
Conversely, the Texas courts have steadfastly denied that such a 
generic exception exists in Texas, while at the same time the 
Texas criminal courts have repeatedly waived the contemporaneous 
objection rule "in the interest of justice."

11 Butler v. State.   S.W.2d __, No. 70,745, slip op., at
12, 15 (Tex.Crim.App. March 9, 1994); Clark v. State. __  S.W.2d
___, No. 71,251, slip op., at 7 n.7 (Tex.Crim.App. March 9,

11



These circumstances establish a frequent enough disregard of 
the contemporaneous objection rule to eliminate that rule as an 
independent and adequate state procedural ground in Texas capital 
cases. No one can fairly conclude that the rule is "strictly or 
regularly followed" in capital cases in Texas. Cf. Dugger v. 
Adams. 489 U.S. at 410 n.6.

1994); Burks v. State. ___ S.W.2d ___, No. 70,971, slip op., at
40, 50 (Tex.Crim.App. March 9, 1994); Richardson v. State. No. 
70,743, unpublished slip op., at 4 (Tex.Crim.App. Dec. 1, 1993); 
Jones v. State, unpublished slip op., No. 70,740 (September 16, 
1992); see also id. (White, J., dissenting) (criticizing majority 
for addressing merits of claim despite procedural default); 
Rousseau v. State. 855 S.W.2d 666, 681 (Tex.Crim.App. 1993);
Green v. State. 840 S.W.2d 402, 403 nn. 6 & 7 (Tex.Crim.App. 
1992); Harris v. State. 790 S.W.2d 568, 583 n.13 (Tex.Crim.App. 
1989); Stoker v. State. 788 S.W.2d 1, 16 n.10 (Tex.Crim.App. 
1989); Huffman v. State. 746 S.W.2d 212, 222-23 (Tex.Crim.App. 
1988); Barnard v. State. 730 S.W.2d 703, 716 (Tex.Crim.App.
1988); Gardner v. State. 733 S.W.2d 195, 203 (Tex.Crim.App.
1987); Rougeau v. State. 738 S.W.2d 651, 667 (Tex.Crim.App.
1987); Cordova v. State. 733 S.W.2d 175, 191 (Tex.Crim.App.
1987); Thompkins v. State. 774 S.W.2d 195, 214 (Tex.Crim.App. 
1987); Hogue v. State. 711 S.W.2d 9, 13, 28 (Tex.Crim.App. 1986); 
Barney v. State. 698 S.W.2d 114, 123 (Tex.Crim.App. 1985);
Goodman v. State. 701 S.W.2d 850, 864 (Tex.Crim.App. 1985); 
Williams v. State. 674 S.W.2d 315, 321-22 (Tex.Crim.App. 1984); 
Smith v. State. 683 S.W.2d 393, 404-05 (Tex.Crim.App. 1984); 
Thompson v. State. 691 S.W.2d 627, 633 (Tex.Crim.App. 1984); Lamb
V-i_State. 680 S.W.2d 11, 13 (Tex.Crim.App. 1984); see also White
v_;— Estelle, 720 F. 2d 415, 418 (5th Cir. 1983) ("No objection was 
made at [trial]. ... However, the Texas courts did not clearly
reject White's petition for state collateral relief on that 
procedural ground."); Milton v. Procunier. 744 F.2d 1091, 1094 
(5th Cir. 1984) (same).

12



CONCLUSION
For the foregoing reasons, amicus curiae urges the Court to 

reject the State's argument that the Texas contemporaneous 
objection rule is an independent and adequate state law ground.

Respectfully submitted,

RICHARD GERRY DRINKARD

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 
707 Travis
Houston, Texas 77002 
(713) 222-9955 
fax (713) 222-6515
Counsel for Amicus Curiae

13



CERTIFICATE OF SERVICE
I hereby certify that on this ay of , I have

caused a true and correct copy of this BRIEF FOR AMICUS CURIAE,
to be served by U.S. mail on:

Dean S. Neuwirth 
Martin D. Beier 
COGHILL & GOODSPEED, P.C.
1675 Broadway 
Suite 2800
Denver, Colorado 80202
Eden Harrington 
Texas Resource Center 
1206 San Antonio 
Austin, Texas 78701
William Zapalac 
Enforcement Division 
Office of the Attorney General 
209 West 14th
Price Daniel Sr. Bldg., 8th Floor 
Austin, TX 78701

Douglas M. O'Brien

14



APPENDIX

Butler v. State. ____ S.W.2d ___, No. 70, 745, slip op., at 12,
15 (Tex.Crim.App. March 9, 1994)

Clark v. State. ___ S.W.2d ___, No. 71, 251, slip op., at 7 n. 7
(Tex.Crim.App. March 9, 1994

Burks v. State. ____ S.W.2d ___, No. 70, 971, slip op., at 40, 50
(Tex.Crim.App. March 9, 1994)

Rousseau v. State. 855 S.W.2d 666, 681 (Tex.Crim.App. 1993)
Duran v. State. 844 S.W.2d 745, 746 n.l (Tex.Crim.App. 1992)
Green v. State. 840 S.W.2d 402, 403 nn. 6 & 7 (Tex.Crim.App.

1992)
Montgomery v. State. 810 S.W.2d 372, 395 (Tex.Crim.App. 1991), 

aff'q. 760 S.W.2d 323 (Tex.Crim.App.— Dallas 1988)
Harris v. State. 790 S.W.2d 568, 583 n.13 (Tex.Crim.App. 1989)
Stoker v. State. 788 S.W.2d 1, 16 n.10 (Tex.Crim.App. 1989)
Huffman v. State. 746 S.W.2d 212, 222-23 (Tex.Crim.App. 1988)
Barnard v. State. 730 S.W.2d 703, 716 (Tex.Crim.App. 1988)
Gardner v. State. 733 S.W.2d 195, 203 (Tex.Crim.App. 1987)
Cordova v. State. 733 S.W.2d 175, 191 (Tex.Crim.App. 1987)
Rouqeau v. State. 738 S.W.2d 651, 667 (Tex.Crim.App. 1987)
Thompkins v. State. 774 S.W.2d 195, 214 (Tex.Crim.App. 1987)
Hogue v. State. 711 S.W.2d 9, 13, 28 (Tex.Crim.App. 1986)
Landry v. State. 706 S.W.2d 105, 113 (Tex.Crim.App. 1985)
Goodman v. State. 701 S.W.2d 850, 864 (Tex.Crim.App. 1985)
Williams v. State. 674 S.W.2d 315, 321-22 (Tex.Crim.App. 1984)
Smith v. State. 683 S.W.2d 393, 404-05 (Tex.Crim.App. 1984)
Thompson v. State. 691 S.W.2d 627, 633 (Tex.Crim.App. 1984)
Lamb v. State. 680 S.W.2d 11, 13 (Tex.Crim.App. 1984)

*

1



Matthews v. State. 635 S.W.2d 532, 539 (Tex.Crim.App. 1982)
Porter v. State. 623 S.W.2d 374, 378, 385 (Tex.Crim.App. 1981)
Crawford v. State. 617 S.w.2d 925, 9287 (Tex.Crim.App. 1980)
Carrillo v. State. 566 S.W.2d 902, 912 (Tex.Crim.App. 1978)
Ferguson v. State. 573 S.w.2d 516, 520 (Tex.Crim.App. 1978)
Felder v. State. 564 S.W.2d 776, 778 (Tex.Crim.App. 1977)
Brock v. State. 556 S.W.2d 309, 312-13 (Tex.Crim.App. 1977)
Ruth v. State. 522 S.W.2d 517, 519 (Tex.Crim.App. 1975)
Guerrerro v. State. 487 S.W.2d 729, 733 (Tex.Crim.App.1972)
McGee v. Estelle. 722 F.2d 1206, 1213 (5th Cir. 1984) ("In the
state habeas proceedings, the state court ... did not apply its 
contemporaneous objection rule to petitioner's [otherwise 
defaulted] claims.")
Whitley v. Estelle. 720 F.2d 415, 418 (5th Cir. 1983) ("No 

objection was made at [trial] . ... However, the Texas
courts did not clearly reject White's petition for state 
collateral relief on that procedural ground.")

Milton v. Procunier. 744 F.2d 1091, 1084 (5th Cir. 1984) (same)
Brocker v. Lvnauah. 872 F.2d 100, 100 (5th Cir. 1989) (same)
Shaw v. Collins. 5 F.2d 128, 131 (5th Cir. 1993) (same)

2