IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                NO. AP-75,207

                              EX PARTE JOSÉ ERNESTO MEDELLÍN, Appellant

                          ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 675430 FROM THE 339^TH DISTRICT COURT

OF HARRIS COUNTY

Hervey, J., filed a concurring opinion.

CONCURRING OPINION

This international cause célèbre centers around this applicant who makes no claim that he did not brutally rape and murder  two teenage girls (ages 14 and 16) with fellow gang members over 13 years ago in the summer of 1993.  The evidence from applicant=s 1994 trial shows that he boasted about his active participation in these crimes.  He bragged about how he sexually assaulted the two victims.  He related that he put his foot on the throat of one of the girls because he was having difficulty strangling her with a shoelace and she would not die.  The girls were unrecognizable when their bodies were found.

This case has dragged on for an amount of time equal to almost the entirety of the lives of these two girls.  For many years, in both state and federal courts, applicant has received the almost unparalleled due process protections afforded by our country=s laws.  Now, from half-way around the world, the International Court of Justice in its Avena decision has ordered our state courts to review applicant=s Article 36 Vienna Convention claim which applicant did not even raise until his first state habeas application.  The President of the United States has made a similar request.

But, all of this is really much ado about nothing because applicant received essentially the review mandated by the Avena decision during his initial state habeas corpus proceeding.^[1]  The Court=s 60 plus page opinion disposing of applicant=s current successive habeas corpus application provides applicant with much more than he deserves and is also consistent with the President=s unprecedented memorandum expressing the United States= intent to discharge its international obligations under Avena Aby having State courts give effect to the [Avena] decision in accordance with general principles of comity.@  The Court=s opinion in this proceeding affords the Avena decision all the Arespectful consideration@ that it deserves Ain accordance with general principles of comity.@

Finally, applicant is by no means a stranger in a strange land.  He has lived in this country and enjoyed its benefits since he was three-years old.  From the record, it appears that he is fluent in English.  Other than his surname, there is nothing to suggest that he is anything other than native-born.  Indeed, he did not bother telling the police of his non-citizenship.  And the constitutional rights available to all accused persons in American courts are his, as well.  According to the record, they were scrupulously protected.

Nevertheless, applicant maintains that the lack of intentional, reckless, or negligent wrongdoing by the State (other than, perhaps, the lack of clairvoyance), and despite his non-assertion of any privilege or immunity, he is entitled to an immunity heretofore not afforded to any citizen or nonresident under Texas or Federal lawBimmunity from procedural default.  He argues that he has this immunity simply because he happened to be born on foreign soil approximately 28 years ago and, for whatever reason, has elected not to apply for United States citizenship.

With these comments, I join the Court=s opinion.

Hervey, J.

Filed: November 15, 2006

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