This section contains the nature of the case and procedural background.

McCullough (D) was tried before a jury and convicted of murder. The jury sentenced D to 20 years in prison. A new trial was granted by the judge based on prosecutorial misconduct. The state put on its case and presented two witnesses who had not testified at the first trial, that D and not his accomplices had cut the throat of the victim. D was found guilty again and elected under Texas law wherein the judge decides his sentence. D was sentenced to 50 years and upon motion made findings of fact as to why the sentence was increased; basically, she relied upon new evidence not presented at the first trial, and that D had been released from prison only four months before the murder. The Texas Court of Appeals reversed and resentenced D to 20 years. The Supreme Court granted certiorari.

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