Texas, E, 1955-1992, Undated

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AMNESTY
Tk INTERNATIONAL
| | USA

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 * Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881
1 May 1990 ;
Further Information on UA 69/90 (16 February, and follow-ups 2
February, and 23 March) -Death Penalty

USA (Texas): Edward Ellis

Fdward Ellis is scheduled to be executed in Texas on 19 June 1990. It
appears that the execution will now quite probably be carried out on
that date.

Edward Ellis, black, was convicted of the murder of an elderly white
woman and sentenced tc death in September 1983. He was previously
scheduled to be executed on 27 March 1990 but received a temporary
stay of execution which has now been lifted.

In July 1989 there were 287 prisoners under sentence of death in
Texas. There have been 34 executions since 1982, the most recent being
the consensual execution (ie. with his consent) of Jerome Butler on 21

April 1990. The method of execution is lethal injection.

Fdward Ellis is black and his victim-was white. On 26 February 1990,
after a study of capital sentencing practices, the General Accounting
Office, an independent agency of the federal government, reported that
the race of the murder victim influenced the likelihood that a
defendant would be charged with capital murder and receive the death
penalty if convicted. Eighty-two percent of the studies it examined
suggested that those who murdered white victims were more likely to be
sentenced to death than those who murdered black victims.

Amnesty International opposes the death penalty in all cases aS a
violation of the right to life and the right not to be subjected to
cruel, inhuman and degrading treatment or punishment, as proclaimed in
the Universal Declaration of Human Rights.

Recommended Action: telegrams/telephone calls/fax:
- urging that clemency be granted to Edward Ellis by commuting his
death sentence.

Appeals to:

The Hon. James Mattox (Telegrams: Atty. General Mattox,
Attorney General Austin, TX 78711)
Supreme Court Building (Telephone: (512) 463 2080
Austin, Tx 78711 (512) 463 2100

(Fax: (512) 463 1849
Chair (Telegrams: Board Pardons Paroles
Board of Pardons and Paroles Austin, TX 78711)
PO Box 13401 (Telephone: (512) 459 2716)
Capitol Station (Telex: 910 874 1340 GOVTEXOFC AUS)
Austin, Tx 78711 (Fax: (512) 459 2716)

This Urgent Action appeal originated from Amnesty International's research headquarters at the international Secretariat in London, United
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.

Please send appeals immediately, to arrive by 18 June 1990.

. : spe! 0+ ee
JG

OLN PP

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881

(Our International Secretariat issued this appeal today, February 28,
mainly for UA offices around the world to coordinate immediate phone calls,
. and other messages, which we are doing. I am also sending this to AIUSA
anti-death penalty coordinators in hopes that if you get it Monday, March
2, you will be able to act immediately by fax or telephone. I realize many
are frustrated at receiving many of these death penalty actions so late,
however, you will read here that we have worked for these two men
continuously for two years. If you get this after March 3rd, then use it
for information only.)

EXTRA 22/92 Death Penalty ae 28 February 1992

USA: (Texas) Edward ELLIS
Raymond KINNAMON

Edward Ellis and Raymond Kinnamon are scheduled to be executed by the state
of Texas, USA, within a day of each other on 2 and 3 March 1992.

Edward Ellis, white, aged 47, is facing his fourth execution date in two
years. He was convicted of the murder of an elderly white woman and
sentenced to death in September 1983 (UA 69/90 16 February 1990 and follow
ups 28 February 1990, 23 March 1990, 1 May 1990 and correction 17 May 1990,
es) June 1990 and 27 July 1990). He is due to be executed on 3 March 1992.

Raymond Kinnamon, white, sentenced to death in July 1985, is scheduled to
be executed on 2 March 1992.

BACKGROUND INFORMATION:

As of December 1991, there were 345 prisoners under sentence of death in
Texas. The last person to be executed in the state was Johnny Frank
Garrett, an extremely mentally impaired, chronically psychotic and brain-
damaged juvenile offender, on 11 February 1992 (UA 444/91 17 December 1991,
FU & January 1992, 10 January 1992, 6 February 1992 and 12 February 1992).
Execution in Texas is carried out by lethal injection. Forty-four prisoners
have been executed in Texas Since 1976, when a US Supreme Court ruling
permitted individual states to reinstate the death penalty for murder.

Amnesty International opposes the death penalty in all cases as a violation
of the right to life and the right not to be subjected to cruel, inhuman
and degrading treatment or punishment, as proclaimed in the Universal
Declaration of Human Rights.

RECOMMENDED ACTION: Telegrams/telexes/faxes/telephone calls:

- urging the Texas Board of Pardons and Paroles to recommend that the
“Governor grant clemency to Edward Ellis and Raymond Kinnamon by commuting
their death sentences;

- stating your opposition to the death penalty.

This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretariat in London. United
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin. language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. lt opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.

/ | AMNESTY
RA fp INTERNATIONAL
USA

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 ¢ Nederland, CO 80466-1270 « 303-440-0913 « FAX: 303-258-7881

28 February 1990
Further Information on UA 69/90 (16 February) - Death Penalty
USA (Texas): Carl Kelly
Edward Ellis

Carl Kelly, scheduled to be executed on 22 February 1990, has received
a temporary stay of execution. No further action is required in this
case at the moment.

Edward Ellis is due to be executed on 27 March 1990. No further

appeal on his behalf.

Recommended Action. Telegrams/telexes/telephone calls/faxes:

- urging that clemency may be granted to Edward Ellis by commuting his
death sentence.

Appeals to: [Suggested Salutation]
James Mattox [Your Honor] Telegrams: Atty. General Mattox,
Attorney General Austin, TX 78711
State Capitol Telephone: (512) 463 2080
“austin, Tx 78721 (512) 463 2100

Telex: 910 874 1367

Fax: 512 463 1849
Chair [Dear Chair]
Board of Pardons and Paroles
PO Box 13401 Telegrams: Board Pardons Paroles
Capitol Station Austin, TX 78711
Austin, TX 78711 Telephone: (512) 459 2716

Telex: 920 874 1340

Please send appeals immediately to arrive by 26 March 1990.

inl 9 AMNESTY
VON fp INTERNATIONAL
USA

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 » 303-440-0913 « FAX: 303-258-7881
23 MARCH 1990

FURTHER INFORMATION ON UA 69/90 (AMR 51/02/90, 16.FEBRUARY) AND
FOLLOW-UP AMR 51/04/90 (28 FEBRUARY 1990) - DEATH PENALTY

USA (TEXAS): EDWARD ELLIS

EDWARD ELLIS WAS SCHEDULED TO BE EXECUTED ON 27 MARCH 1990. HE HAS
RECEIVED A TEMPORARY STAY OF EXECUTION UNTIL JUNE 1990.

NO FURTHER ACTION IS REQUIRED AT THE MOMENT. THANK YOU TO ALL THOSE
OF YOU WHO SENT APPEALS ON HIS BEHALF.

This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretariat in London, United
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.

went in ard
around: and
through the
ithtub. All I

‘of blood.””

me like she
or was wide

told officers
yus about 8
out moving
ithe process
s attested to
round. The
»ccupied by
r governor,
isas in 1981
te’s Depart-

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attered, and
tially-filled
ead quickly
ninary facts
e detectives
itder house,

Probing bathtub murders (I. to r.): Sgts. Mosier, Novak and Kent; Lt. Kersten

Faubus phoned from Arkansas, having
heard the news on a TV broadcast.

Later on in the day, the former gov-
ernor was interviewed by newsmen. He
related that he had talked to his estranged
wife on Tuesday night, and ‘‘everything
seemed to be all right.’’ Speaking of his
wife’s having filed for divorce, Faubus
said, ‘‘Everything had worked out
according to her request. I followed
through on things which she suggested or
requested, and so the moving of the
piano was something she discussed
with me.”’

Police and reporters learned that Eli-

i: zabeth Faubus had filed for a ‘‘no fault’’

divorce in October, 1982. She had been
married to Orval Faubus since March,
1969, When they married, the winsome
brunette had been 30 years old, Faubus,
59.

Faubus had been governor of Arkan-
sas from 1954 until 1966. He made
national headlines in 1957 when he call-
ed out the state national guard to block
integration efforts at Little Rock’s Cen-
tral High School. Federal troops even-
tually were sent to integrate the high
school.

Faubus obtained a divorce from his
first wife of 37 years in 1967. The future

Mrs. Faubus, Elizabeth, had moved to
Arkansas in 1966 when a firm that em-

. ployed her for advertising work assigned

her there. She met Faubus through her
work with the State Democractic Party
while developing a television show. Af-
ter she and Faubus were married in 1969,
they moved into a million-dollar man-
sion located on 70-acre site near Hunt-
sville, Ark.

Thereafter the pretty brunette kept out
of the public eye until 1977, when she
became a free lance commercial an-
nouncer for radio and television. Faubus
ran for governor of Arkansas in 1970 and
again in 1974, but lost in the Democratic
primaries both times. For a while, he had
worked as a bank teller. ©

Because of Houston’s climate and
medical facilities—the ex-governor had
had a pacemaker implanted in his heart in

1967—Faubus moved to Houston. He. .

worked briefly in public relations for a
private investigations firm before he
wrote his memoirs. He peddled the book
himself in Arkansas because he said he
didn’t want to share profits with book-
store owners. .

Since the filing of the divorce and
Faubus’ return to Arakansas, Elizabeth
Faubus had lived alone.in the $250,000

{
|
home on Houston’s' west side, police

_ learned. ;

-Detectives canvassing the neighbor-
hood came up with little information.
Neighbors said that Elizabeth Faubus had
put the handsome, two-story brick home

up for sale recently and had been in the .

process of selling antiques and furniture
in the house. As a result of the newspaper
ad about the furnishings for sale, people

had been coming and going fairly reg-

ularly, said neighbors.

One neighbor had noticed an auto-
mobile in front of the Faubus home on
Wednesey night, but had paid no atten-
tion to the occupant, the investigators
were told.

Another neighbor who remembered
having talked with Mrs. Faubus on Satur-
day observed that she appeared de-
spondent over her then-pending divorce.
The neighbor recalled the pretty brunette
as saying, ‘‘What am I going to do
next?”’ :

During the search for possible leads,
detectives picked up one tip that Eli-
zabeth Faubus recently had rented an
apartment. The tipster thought the apart-
ment was located in the vicinity of the
home of Ruth Kottler.

The following day, taking up the
Faubus probe from the nightside homi-
cide men, Detectiies Carl Kent and Jerry

Novak were assigned to lead the in-:

vestigation. Joining them was Detective
J.C. Mosier. Although not assigned spe-

cifically to the other two bathtub homi-’

cides in west Houston, Mosier neverthe-
less had been helping out because of his
particular background. During off-duty
hours, Mosier had worked on private

(Continued on page 43)

Detectives Steve Ward (I.) and J.G.
Burmester obtained vital evidence in
probe Into murder of Bertie Eakens:

True Detective &5

wm,

i drink-
he ex-
z her to
“water.
‘s sent
raph to
ehada

nead in
} egan to
gation.
n that a
> apart-°
1s lived
nissing
2on the

‘ectives -

he man
y Ellis,
d been
1 at the

lived.
{ouston
in the

eck on
m
to
rovide

spect’s
escrip-
ac. La-
an An-
»urned,
nio de-
ids and
re also
assault

‘to one
on on
there—
,om the
© takeout
| a city-
it to be
i
'S $pot-
vorhood
lief the
the sus-
ygnized

. deput-
fleeing
iit. The
side of
‘en into

a.
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Antonio to question Ellis. Later, it was
disclosed that items belonging to Bertie
Eakens were found in his possession,
police said.

The suspect was returned to Houston.
The case against him was tightened when

ID experts determined that a fingerprint

found on a door in the freshly-painted
Eakens apartment matched Ellis’ print.
He was placed in the Harris County jail
to await grand jury action on the case.

He was questioned in the other bathtub
deaths, but investigators came up with
nothing that indicated he knew anything
about the other slayings.

About three days after sending off the
fingerprints of Woods, the suspect in the
killing of Elizabeth Faubus, Houston
homicide men received a report that left
little doubt in their minds that he was the
man wanted for the Faubus slaying.

The detectives learned that Woods
was not the suspect’s name. His real
name was David Scott Helfond, 24 years
old. Moreover, Helfond was wanted in
Dade County, Fla. on fugitive warrants
charging him with burglary, sexual
assault and kidnaping in an incident on
Oct. 27, 1982.

Bob Dworak, a detective with the Met-
ro Dade Police Department, told Houston
officials the charges had been filed
against Helfond in November, 1982,
stemming from an attack on a 27-year-
old Miami woman. The Florida detective
said the attack had occurred after Helfond.
had gone to the woman’s house to look at
some furniture she had advertise for sale.
The MO rang a bell immediately with the
detectives assigned to the Faubus
murder.

The day after the attack on the woman,
Miami police found Helfond’s car in a
repair shop. They knew what kind of car
the assailant was driving because the
woman had talked him into going to his
car for drugs and had managed to break

- away and run to safety. Detectives traced

the car to a relative of the suspect, but
Helfond was nowhere to be found, Dwor-
ak said.

Detectives in Miami received a tip la-
ter that Helfond and his girlfriend were
‘living i in Los Angeles and might be plann-
ing to move to Houston. But Los Angeles

authorities contacted by Miami officers:

had been unable to locate the suspect.
Houston police learned that -Helfond
apparently had been living in Houston
under the assumed name for about three
months.

The suspect’s record went back to
1976, according to the Dade County
Sheriff’s Department. According to
Dade County records, a deputy said, Hel-

fond had been convicted of sexual battery
that year and given a 15-year probated
sentence. On Aug. 4, 1980 in the same
county, he had been charged with at-
tempted armed robbery, battery and two
counts of armed robbery. The charges
grew from attacks on two women who
had allowed Helfond into their homes,
the Florida officers said.

Armed with this background informa-
tion, the Houston detectives lost no time
in returning to Don Woods-David Hel-
fond’s apartment. The suspect’s gray
Porsche was there, but Helfond wasn’t,
his girlfriend said. She said she didn’t
know where he had gone.

Detectives, after obtaining a search
warrant, confiscated the Porsche and
took it to police headquarters to be gone
over inch-by-inch by crime technicians.

With Helfond still among the missing

.on Wednesday, March 9, 1983, the

Houston homicide sleuths concocted a
plan to try to learn his whereabouts.

Mosier outlined the idea:

“‘Let’s take his car back, say we made
a mistake and we’re sorry. Let’s say we
cleared it all up with another guy.”’

For the past two days, detectives
staked out on surveillance of Helfond’s
apartment had drawn no leads on the
suspect. They had rented an apartment
near that of the suspect to maintain a
round-the-clock stakeout. But Helfond
hadn’t turned up nor had his girlfriend
seemed to make any effort to contact
him.

The detectives started the plan rolling.
They delivered the car and left. But the
surveillance remained on; in fact, it had
been enhanced by an ‘‘eye in the sky’’—
a police helicopter that hovered above
the apartment area. The copter and
police ground units were in communica-
tion with radio and walkie talkies.

The wait was a long one.

Thirty minutes after the Porsche had
been returned, the girlfriend left the
apartment, got into the sports car and
started driving away. It appeared she was
taking precautions in case she was being
followed. She drove all over Southwest
Houston. The copter tracked the vehicle
from above and police cars were in the
area, officers being careful not to be
spotted as a tail.

Finally, the girl pulled into a motel in
the 8200 block of the Southwest Free-
way, parked and entered a room. Police
units moved in and surrounded the
motel,

Detectives took up positions on either
side of the motel room door. Then they

knocked, guns at the ready.

David Helfond himself answered the
door. The detectives pushed in before the
suspect could offer any resistance. They
arrested him on an outstanding warrant
from Dade County, Fla. Some of the
jewelry taken from the Elizabeth Faubus
home was found in the suspect’s posses-
sion, according to the detectives.

Helfond and his girlfriend were taken
by police car to the district attorney’s
office at the Harris County courthouse.
They were placed in separate rooms for
grilling.

The detectives told Helfond he might
as well shoot straight with them. They

outlined the evidence that had been

gathered against him.

*‘Okay, don’t do anything to her,’’ the
suspect was quoted as having told the
investigators. ‘‘I’1] tell you about it.’’ He
referred to his girlfriend, who he said had
nothing to do with the slaying and didn’t
know he had been involved in it.

The suspect then gave a statement, in
which he admitted having met Elizabeth
Faubus when she came looking for an
apartment. He said he later went by him-
self to Mrs. Faubus’ home to look at
some of the items she had for sale. While
there, they had had ‘drinks. Sometime
during the evening, he had struck the
brunette with his drinking glass several
times, then encircled her neck with his

arm and strangled her, according to his:

story to police. He then had stripped off
her clothes and placed her in the bathtub
of water, he said.
_ He denied having tried to rape her, but
detectives said they think a sexual attack
resulted in the slaying, with robbery also
being a motive.

Detectives surmised that the suspect’s
putting the slain woman into the bathtub

might have been a ploy to make police:

believe she had been killed by the same
intruder who had slain Bertie Eakens and
Ruth Kottler. But the sleuths said Hel-

fond denied his actions had been a ‘‘copy

cat’’ killing.

On Thursday, March 10, 1983, a Har-
ris County grand jury indicted Helfond
for capital murder in the slaying of Mrs.
Faubus. The same day, the same grand
jury returned a capital murder indictment
against Edward Anthony Ellis in the kill-
ing of Bertie Eakens.

While Helfond was in the Harris
County jail awaiting trial, Houston
police received a tip that he was planning
to shoot his way out of the courtroom.
The tip was provided by an arson in-
vestigator, who had learned of the escape
plot while interviewing an arson suspect
held in jail. Helfond had told the arson

True Detective 45

located an apartment complex called
Oakwood Garden Apartments, ‘*Oak-
wood”’ being the nearest hing they could
find to ‘‘Woodlake Apartments.”’

Mosier contacted the manager, whom
he knew from his.previous assignments
in the area. He described Elizabeth
Faubus and showed he manager a recent
picture of the homicide victim, asking if
she had sought to rent an apartment or
had done so at the complex.

“She was here two or three days ago

trying to rent an apartment,’’ the mana-
ger recalled. ‘‘I sent her over to the
general area where some units are avail-

. able.”’

**Do you have anyone living here with

- the. first name of Donald who drives a

sports car, maybe a Porsche or a
Jaguar?’’ Mosier asked.

The manager responded that she knew
of one tenant, Donald Woods, who drove
a gray Porsche. She gave the detectives
his unit number and said it was located in
the same area where the manager had
directed Mrs. Faubus.

The sleuths drove the short distance
to the apartment unit specified by the
manager. Finding the apartment number,
they knocked on the door. ‘A girl who
appeared to be in her late teens answered.

When one of the detectives asked if
Donald Woods was in, the girl said he
wasn’t. In reply to questions by the in-
vestigators, she related that she and
Woods had met Elizabeth Faubus when
she came looking for an apartment.

Woods had been sitting on the patio.

outside his apartment when Mrs. Faubus
showed up. They had struck up a con-
versation and Woods had offered to let
the brunette look at his apartment, which
was similar in layout to the unit that was
for rent. While going through the apart-
ment, Mrs. Faubus had mentioned she
was moving out of her two-story home.
She said she had furniture for sale and
asked if Woods and the girl might be
interested in buying some of it.

The girl told the detectives she didn’t
know when Woods would be back. The
detectives told her to have him call the
homicide division when he returned.
They stressed they wanted to talk to him
as a possible witness in the case.

Later, Woods did phone the homicide
division. At the request of the in-
vestigators, he came to headquarters
voluntarily and gave a statement.

He reiterated what his girlfriend had
told detectives earlier about meeting Eli-
zabeth Faubus when she showed up to
look at an apartment. He said that he had

44 True Detective

gone to Mrs, Faubus’ home alone later on
Wednesday evening to look at the anti-
ques and furniture that was for sale:
He recalled a middle-aged couple
arriving to look at the items for sale while
he was there. Woods said he had left
shortly after the couple had and that Mrs.
Faubus had been all right at that time.
After giving his statement, Woods
agreed to be fingerprinted and to have his
photograph taken. When the ID work
was finished, he was released with in-
structions to remain available.
Meanwhile, preliminary results of the
autopsy conducted on Mrs. Faubus dis-
closed that she had been strangled and
died of suffocation. The pathologist’s
findings revealed that extreme pressure
had been applied on the front of the

woman’s neck. It was not known what

had made the wounds on her head, but
they had not been fatal.

**What we don’t know is whether her
death was caused by hands, an arm on
her neck or a belt,’’ Detective Mosier
said. ‘

Nor was the medical examiner able to

‘determine how long Mrs. Faubus had

been dead when found in the bathtub.

Mosier knew that the body having
been immersed in water would have
changed body temperature and would
hinder efforts to determine an exact time
of death.

Meanwhile, Detective Kent, who had
been assigned by Homicide Division
Captain Bobby Adams to spearhead the
Faubus murder probe, was doing what
his fellow investigators later would de-
scribe as ‘‘some plain, old-fashioned de-
tective work.’’ While surveying the
kitchen of the Faubus home, Kent
noticed that some drinking glasses were

on a table. He also saw a dark stain on.

the carpet, which he at first thought
might be blood. But sniffing at the spot,
he detected the odor of liquor. It
appeared a drink had been spilled on the
carpet.

He had the portion of the carpet with

the stain cut out for laboratory examina- '

tion. Lab tests confirmed that the spot
had been made by an alcoholic beverage.

Recalling the shape of the wounds
on Elizabeth Faubus’ head, Kent took a
glass from the home for an experiment in
his office.

The detective, holding the glass at an
angle where the circular rim of the open
end struck flush upon impact, banged the
glass into the sheetrock wall of the office
several times. The glass didn’t shatter,
and it left'crescent-shaped dents in the
soft wall that looked like the wounds on

Mrs. Faubus’ face and head. It app-

cared the killer had slammed a drink-
ing glass into the face of the ex-
governor’s wife before strangling her to
death and placing her in the tub of water.
The homicide investigators sent
Woods’ fingerprints and photograph to
the FBI in Washington to see if he had a
criminal record.
Even as the sleuths pushed ahead in
the Faubus murder case, things began to

break in the Bertie Eakens investigation. _

Investigators received information that a

former maintenance man at the apart-'

ment complex where Mrs. Eakens lived
had been seen in the woman’s missing
Cadillac not far from her residence on the
day of the slaying.

The witnesses who gave detectives -

statements said they recognized the man
in the Cadillac as Edward Anthony Ellis,
29. Police learned that Ellis had been
employed as a maintenance man at the
apartments where Mrs. Eakens lived.
But he had not been seen in Houston
since the time he was noticed in the
Cadillac.

The sleuths ran a record check on
Ellis. They learned he was wanted on
some outstanding warrants not related to
the murder case but which would provide
a reason to have him picked up.

A n all points bulletin for the suspect’s
arrest was issued, along with a descrip-
tion of Mrs. Eakens’ stolen Cadillac. La-
ter, the Cadillac was found in San An-
tonio, Tex. The car had been burned,
police there discovered. San Antonio de-
tectives knew that Ellis had friends and
even relatives in that city, and he also
was wanted there on an old assault
charge.

The San Antonio officers drove to one
relative’s home, seeking information on
Ellis. They learned he had been there—
in fact, had borrowed a car from the
relative. The lawmen placed a stakeout
on the relative’s home and issued a city-
wide bulletin for the car thought to be
driven by the suspect.

Bexar County sheriff’s deputies spot-
ted the car in a residential neighborhood
they had staked out on the belief the
wanted man might go there. As the sus-
pect drove up, he apparently recognized
the deputies and sped away.

During the high-speed pursuit, deput-
ies fired several shots but the fleeing
suspect and the car were noti hit. The
vehicle finally was forced to the side of
the street and the driver was taken into
custody without injury.

Notified of the arrest, Houston De-
tectives Burmester and Ward flew to San

Antonio t
disc
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charging
assault anc
Oct. 27, 1
Bob Dw
ro Dade Po
officials t
against H:
stemming
_ old Miami
said the att:
had pone tc
some
The]
detective:
murder.
The day
Miami poli
repair shop
the assaila
woman hac
car for dru;
- away andn
the car to ;
Helfond wa
ak said.
Detective

. ter that He!

living in Lo
ing to move
authorities
_had been u
Houston p
apparently

under the a: j

months.
The susy
1976, acco
Sheriff’s [
Dade Count

made public—were picked up foi violat-
ing ‘‘technical’’ provisions of their
paroles, including a prohibition against
associating with one another.
‘‘As far as what links them to the
Hynes case,”’ he said, ‘‘we’re simply
deferring to the Atlanta Police Bureau.”’
He added that charges of moving wit-
hout permission, lying to parole officers
and associating with persons of bad char-
acter were brought against both men.
Atlanta Police spokeswoman Marilyn
Foxworth would say only that the police
and parole board were working together
on the murder probe. ae é
The arrests did not signal an end to the

investigation, however. As they ex- |

amined the recent activities of Michael
Fortson and Henry Hamilton, pro-
secutors went over the film‘ from the
South DeKalb Mall automatic teller ma-
chine and then located a number of peo-
ple who had used it before and after the
man in the Kiss My Bass cap. One of them
selected Fortson’s picture from a photo
line-up as a man he had seen at the ma-
chine that Saturday night. What’s more,

-he recalled seeing a car with gold mag

wheels in the vicinity.

Fortson and Hamilton subsequently .

were indicted on charges of murder and
attempted armed robbery stemming from
the death of Stephen Hynes. At their trial,

which | got underway in Fulton County

Superior Court in mid-November,
Stephen Hynes’ former fiancee spent 45
minutes on the stand, tearfully recount-
ing the shooting on her patio.

On Friday, November 18th, Prosecut-
ing Attorney Michael Whaley placed on
the stand a number of witnesses who re-
called seeing Michael Fortson in bed with
bullet wounds in both legs at the close of
the Memorial Day weekend. Fortson had
explained that he did not want to go toa
hospital for treatment, because he had
been shot by his cousin.

Another prosecution witness was De-
tective Michael Crowder, who told the
court that not long after the killing he had
been contacted by a young man who
claimed to know who was responsible.
That youth, despite objections from de-
fense counsel, testified that Michael
Fortson had confessed to him that he and
Henry Hamilton had slain Stephen
Hynes.

‘‘He said he and Henry had went on a
lick,’’ the witness told the court. ‘‘He
said it was Stephen Hynes...He said,
‘Henry shot him in the back twice and I
shot him in the stomach.’ ”’

During their talk, the witness added,
Fortson was recuperating from gunshot
wounds of the leg.

The witness, who was in jail awaiting
trial on aggravated assault charges
stemming from an attack on a police offi-
cer, went on to say that he was hopeful of
collecting the $10,000 reward offered i in
connection with the case.

On Monday, November 21st, the de-
fense opened its case by calling a relative
of Michael, Fortson who told the court
that the defendant was home in’ bed with
an injured leg when,she went to work on
the morning of May 28th.

Another defense witness, a Peachtree
Road resident, contradicted prosecution
testimony that the area around the death
scene was well-lit.

Carol Hall, the assistant District Attor-
ney handling a pending case against the
prosecution witness who hoped to claim
the reward, told the court that she had

made no deal with the youth in exchange

for his testimony.

‘I told (him) on his arraignment day
that he would do hard time for stabbing a
police officer,’ she said.

Taking the stand in his own defense on
Tuesday, November 22nd, Michael
Fortson testified that the leg wound he
had suffered in May was the result of a
back street argument with a neighbor-
hood gambler, a man he had accused of
cheating at craps.

‘‘He took out a pistol and started

shooting, ’’ Fortson said. ‘‘I took out

running.
Fortson went on'to say that although

he was in the company of several other
men when the shooting took place, he
did not ask them to take him to a hospital
because he was afraid his parole officer
would learn that he was in violation of
his curfew. After a friend treated the
wound at her apartment, he claimed, he
spent the day and night of May 28th at
home.

On Wednesday, Novenber 23rd, the
day before Thanksgiving, Michael Fort-
son and Henry Albert Hamilton were
found guilty of murder. Sentenced im-
mediately to life in prison by Judge Joel
J. Fryer, they will become eligible for

parole, under Georgia law, in seven .

years.

An Atlanta-area prosecutor, speaking
with a reporter, was asked. why he be-
lieved the pair had included murder in
their 1983 crime spree.

‘*Seven years in prison was the differ-
ence,”’ he answered. ‘‘They didn’t get
smarter. They just got meaner. They di-
dn’t care.’

Commented Assistant District Attor-
ney Moskowitz; ‘‘They should never
have been released from prison.’

All of the Victims

Found in Bathtubs!

security assignments at various luxury
apartment complexes in the area and was
well acquainted with the apartment man-
agers.

Supporting the information that Eliz-
abeth Faubus had recently rented an
apartment, detectives going through
papers and records in the house where
she had been brutally slain came across a
check stub bearing the name ‘‘ Woodlake

‘Apartments’”’ that had been written on it.

Mosier and the other investigators
could find no apartments by that name,
but they knew that the Woodlake sub-

‘division contained a number of fancy

apartment layouts. It was an area also
close to the Kottler home.

But before the sleuths launched a hunt
for an apartment that the ex-governor’s
wife might have rented in that paket

sion, they received some additional in-
formation that opened up some further
speculation.

A Houston couple who had heard
about the Faubus murder on local radio
and TV newscasts contacted homicide
investigators. The middle-aged man and
wife said that they’d gone to the two-
story home of Elizabeth Faubus on
Wednesday night to look at the antiques
she had advertised for sale. ,

_ While at the house, Mrs. Faubus had
introduced the couple to a young man
who was present. The couple hadn’t paid
much attention, but they told the de-
tectives they thought the man’s first
name was Donald.

‘He acted like he was a friend of
hers,’’ said the husband. ‘‘We noticed
when we left that the man was driving a
sports car. It seems like it was either a
Porsche or a Jaguar, one of those fancy
jobs. It was parked out front.’

Following up the ‘‘Woodlake’’ angle,
Mosier and the other detectives drove to
the Woodlake subdivision. There they

*
True Detective 43

840 873 FEDERAL REPORTER, 2d SERIES

clude that Ellis received effective assist-
ance at trial.

B. Appellate Counsel

[10,11] In rather conclusory terms Ellis
also alleges that he did not receive effec-
tive assistance on appeal. He suggests
that the deficiency was in counsel’s failure
to raise meritorious claims on appeal. The
Constitution does not require appellate
counsel to raise every nonfrivolous ground
that might be pressed on appeal. Jones v.
Barnes, 463 U.S. 745, 751, 103 S.Ct. 3808,
3312, 77 L.Ed.2d 987 (1983). Here it ap-
pears that appellate counsel chose to con-
centrate on the six strongest points of er-
ror on appeal; that is a reasonable tactic.
Ellis has not directed our attention to any
issues that counsel failed to raise upon
which he was likely to prevail on appeal.
This claim is without merit.

VI. Evidentiary Hearing

[12] Finally, Ellis contends that the dis-
trict court erred in failing to hold an evi-
dentiary hearing to explore his claims that
he received ineffective assistance of coun-
sel and that Harris County systematically
excluded Hispanics from grand juries. To
receive a federal evidentiary hearing, the
burden is on the habeas corpus petitioner
to allege facts which, if proved, would en-
title him to relief. Wilson v. Butler, 825
F.2d 879, 880 (5th Cir.1987), cert. denied,
— US. —, 108 S.Ct. 1059, 98 L.Ed.2d
1021 (1988). The court need not “ ‘blindly
accept speculative and inconcrete claims’ as
the basis upon which to order a hearing.”
Lavernia v. Lynaugh, 845 F.2d 4938, 501
(5th Cir.1988) (quoting Baldwin v. Black-
burn, 653 F.2d 942, 947 (5th Cir.1981), cert.
denied, 456 U.S. 950, 102 S.Ct. 2021, 72
L.Ed.2d 475 (1982)). Nor is a hearing re-
quired when the record is complete or the
petitioner raised only legal claims that can
be resolved without the taking of additional
evidence. Id.

[13,14] Ellis’s claim that Hispanics
were excluded systematically from Harris
County grand juries is certainly a ‘“specula-
tive and inconcrete” claim. As we already
determined, Ellis did not and, more impor-

tantly, apparently could not allege facts or
produce evidence sufficient to make out a
prima facie case of discrimination in Harris
County’s grand jury selection. Therefore,
no evidentiary hearing was warranted on
that issue. As for his allegations of inef-
fective assistance of counsel, the state
court ordered trial counsel to file affidavits
addressing the allegations of ineffective-
ness in Ellis’s application. On the basis of
those affidavits, the trial court made its
findings. We have held that the denial of a
state writ application on the basis of plead-
ings and affidavits constitutes an adequate
“hearing.” Evans v. McCotter, 805 F.2d
1210, 1214 (5th Cir.1986). Ellis made no
new ineffectiveness allegations in his feder-
al petition; no additional hearing was re-
quired.

For the foregoing reasons, the judgment
of the district court is AFFIRMED.

JOHNSON, Circuit Judge, dissenting:

The majority today concludes that the
trial court properly excused venireman
Bradshaw for cause. This conclusion, in
this writer’s mind, is erroneously based on
the assumption that the trial court “clearly
could have been ‘left with the definite im-
pression that [Bradshaw] would be unable
to faithfully and impartially apply the
law.’” Wainwright v. Witt, 469 U.S. 412,
426, 105 S.Ct. 844, 858, 88 L.Ed.2d 841
(1985). The above rule of law which was
first enunciated by the Supreme Court in
Witt does not disturb the essence of the
earlier holdings of the Supreme Court in
Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968), and
Adams v. Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980) to the effect
that a juror shall not be challenged for
cause unless his “views [on capital punish-
ment] would prevent or substantially im-
pair the performance of his duties as a
juror in accordance with his instructions
and his oath.” Witt, 469 U.S. at 420, 105
S.Ct. at 850 (quoting Adams v. Texas, 448
US. 38 at 45, 100 S.Ct. at 2526). Against
the backdrop of the above standards, the
record in this case compels the conclusion
that venireman Bradshaw, had he been
sworn to take the oath as a juror, would

7
Cite :
have performed his duties as a
accordance with his instructions
oath. I therefore respectfully diss
the conclusion of the majority tha
man Bradshaw was properly exc
cause.
During voir dire, in response to
posed by the prosecutor, Brads!
eated that he harbored strong fee
favoring the death penalty. Re
further to prosecutorial probing, !
stated “I believe so” when askec
he would answer “no” to a specia
as to prevent the imposition of
penalty. During rehabilitative qi
by defense counsel, however,
categorically asserted that if
sworn as a juror he would “tell
when answering special issues e'
result would be the imposition of
penalty on the defendant. As ,
record, the prosecutor’s question
signed to elicit Bradshaw’s
against the death penalty. Ir
questions from defense counsel
establish whether Bradshaw was
abide by the law concerning the
alty if he were sworn as a juror
of any personal attitude that he 1
regarding capital punishment.
viewing the record on what m
essential inquiry of whether
could and would have faithfully
tially applied the law concerning
penalty, I am convinced that
had he been sworn as a juror,
done so. When questioned
about adhering to the juror’s
shaw pledged that if sworn as
was “going to follow it [the oat!
“would have to answer honestly
he was “not going to lie.” Si
even after the trial court remi)
shaw of his previously articulat:
concerning the death penalty,
persisted in his assertion that ‘
the oath, yes, sir, I would have
honestly.”

On the basis of the above te
Bradshaw, I am unable to join
clusion of the majority that
could have given the trial cour’
nite impression that he would t

|
t
i

ELLIS v. LYNAUGH 837
Cite as 873 F.2d 830 (5th Cir. 1989)

shaw’s] true views.” O’Bryan v. Estelle,

714 F.2d 365, 382 (5th Cir.1988), cert. de-.

nied, 465 U.S. 1013, 104 S.Ct. 1015, 79
L.Ed.2d 245 (1984).

Bradshaw’s responses to defense coun-
sel’s questions are best understood in the
context in which they were given. Defense
counsel had asked Bradshaw to assume
that he had already taken the oath—to
assume that he had sworn to return a
verdict based on the: law and evidence.
Quite understandably, then, when defense
counsel asked him what he would do if the
evidence convinced him beyond a reason-
able doubt that the punishment issues
should be answered affirmatively, Brad-
shaw answered that he would answer
truthfully. To do so undoubtedly would do
violence to his conscience; not to do so,
however, would subject him to the criminal
consequences of violating his oath.

When the court began asking Bradshaw
questions of its own in an effort to resolve
the conflict in his answers, it became ap-
parent that he was still operating under the
same assumption imposed by defense coun-
sel. Bradshaw told the court that, if he
had to take the oath for some reason, he
would answer the questions truthfully.
The trial court, seeing Bradshaw’s confu-
sion, reminded him that no one would be
forced to take the oath if to do so would do
violence to that person’s conscience and
soul. It was against this backdrop that
Bradshaw stated that he would refuse to
take the oath. We see no error here. See
Lockett v. Ohio, 438 U.S. 586, 595-96, 98
S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978).
Contrary to Ellis’s assertion that the trial
court’s remarks were designed to suggest
escape hatch for a troublesome venire-
an, we believe that the court’s comments
re intended to and did enable Bradshaw

7* give a clear statement of his position so

aa the trial court could better assess his
ications. Because the trial court
could have been “left with the defi-
ipression that [Bradshaw] would be
me to faithfully and impartially apply
ig Witt, 469 U.S. at 426, 105 S.Ct. at
we have determined that the trial

— 4 not engage in improper questioning of
lw, we do not address Ellis’s claim that

853, we hold that the state’s challenge for
cause was granted properly.”

III. Procedural Default

The state argues that Ellis raises three
issues on appeal that are barred from con-
sideration on the merits due to his failure
to comply with state procedural rules.
Those issues are (1) his challenge to the
sufficiency of the evidence to support the
indictment’s allegation that the manner and
means of the victim’s asphyxiation were
unknown to the grand jury, (2) his claim
that Hispanics were excluded systematical-
ly from serving on grand juries in Harris
County, Texas, and (8) his claim that His-
panics were excluded systematically from
serving as grand jury foremen on those
same grand juries.

[2] In the recent case of Harris v.
Reed, — U.S. —, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989), the Supreme Court
made clear that the “plain statement rule”
of Michigan v. Long, 463 U.S. 1082, 103
S.Ct. 3469, 77 L.Ed.2d 1201 (1988), applies
to cases on federal habeas review. Under
Long, review of an issue of federal law is
barred if the state court’s opinion contains
a “plain statement” that its decision rests
upon adequate and independent state
grounds. 463 U.S. at 1041, 103 S.Ct. at
3476. If a state court’s reasons for reject-
ing a claim are ambiguous, however, feder-
al review is not precluded. Jd., 103 S.Ct. at
3476-77. In Harris, the Supreme Court
recognized that the problem of ambiguous
state court references to state law is com-
mon to both direct and habeas review. It
therefore adopted “a common solution” to
this problem: “a procedural default does
not bar consideration of a federal claim on
either ‘direct or habeas review unless the
last state court rendering a judgment in
the case ‘clearly and expressly’ states that
its judgment rests on a state procedural
bar.” Harris, — U.S. at ——-——, 109
S.Ct. at 1043 (quoting Caldwell v. Missis-

the trial court's findings are entitled to no pre-
sumption of correctness under 28 U.S.C.
§ 2254(d).

icts or
- out a
Harris
refore,
ted on
of inef-
» gtate
‘idavits
fective-
sasis of
ade its
ial of a
plead-
quate
> F.2d
ide no
feder-
as re-

gment

‘ing:
at the
ireman
ion, in
sec
cle:
ite im-
unable
ly the
S. 412,
2d 841
ch was
purt in
of the
-ourt in
510, 88
3), and
0 S.Ct.
> effect
zed for
punish-
cally im-
§ as a
ructions
120, 105
ras, 448
Against
rds, the
iclusion
.e been
-, would

ELLIS v. LYNAUGH

841

Cite as 873 F.2d 830 (5th Cir. 1989)

have performed his duties as a juror in
accordance with his instructions and his
oath. I therefore respectfully dissent from
the conclusion of the majority that venire-
man Bradshaw was properly excused for

cause.
During voir dire, in response to questions
posed by the prosecutor, Bradshaw indi-
cated that he harbored strong feelings dis-
favoring the death penalty. Responding
further to prosecutorial probing, Bradshaw
stated “I believe so” when asked whether
he would answer “no” to a special issue so
as to prevent the imposition of the death
penalty. During rehabilitative questioning
by defense counsel, however, Bradshaw
categorically asserted that if he were
sworn as a juror he would “tell the truth”
when answering special issues even if the
result would be the imposition of the death
penalty on the defendant. As I view the
record, the prosecutor’s questions were de-
signed to elicit Bradshaw’s scruples
against the death penalty. In contrast,
questions from defense counsel sought to
establish whether Bradshaw was willing to
abide by the law concerning the death pen-
alty if he were sworn as a juror regardless
of any personal attitude that he might have
regarding capital punishment. After re-
viewing the record on what must be the
essential inquiry of whether Bradshaw
could and would have faithfully and impar-
tially applied the law concerning the death
penalty, I am convinced that Bradshaw,
had he been sworn as a juror, would have
done so. When questioned repeatedly
about adhering to the juror’s oath, Brad-
shaw pledged that if sworn as a juror he
was “going to follow it [the oath],” that he
“would have to answer honestly,” and that
he was “not going to lie.” Significantly,
even after the trial court reminded Brad-
shaw of his previously articulated scruples

concerning the death penalty, Bradshaw
persisted in his assertion that “{iJf 1 took
the oath, yes, sir, I would have to answer

honestly.”

faithfully and impartially apply the law.”
Witt, 469 U.S. at 426, 105 S.Ct. at 853.
(emphasis supplied). To the contrary,
Bradshaw’s responses concerning his abili-
ty to faithfully and impartially apply the
law if selected and sworn as a juror, indi-
cate a remarkable objectivity, honesty and
respect for the law particularly when
viewed in the light of his admitted reserva-

tions regarding capital punishment.

In sum, the guarantees afforded a capi-
tal defendant by the sixth amendment must
not be eroded in the guise of what is char-
acterized as a line of questioning designed
to “flush out [a potential juror’s] true
views.” The recognition by the Supreme
Court that the “voir dire practice of ‘death
qualification’ —the exclusion for cause, in
capital cases, of jurors opposed to capital
punishment—can dangerously erode this
‘nestimate safeguard [against the overzea-
lous prosecutor and the biased judge] by
creating unrepresentative juries “uncom-
monly willing to condemn a man to die’,”
Wainwright v. Witt, 469 U.S. 412, 489, 105
S.Ct. 844, 860 (Brennan, J., dissenting), is
as vital today as it was during Wither-
spoon’s trial. Witherspoon, 391 US. 510,
521, 88 S.Ct. 1770, 1776. So long as a
potential juror expresses @ willingness to

abide by the law regardless of his personal
views on capital punishment, that juror
should not be challenged for cause. In-
deed, in the instant case, juror Bradshaw
evinced not only a willingness, had he been
sworn as a juror, to adhere to the law, but

a categorial and resolute determination to

do so. It is for this reason that I must

respectfully dissent.

W
° E key NUMBER SYSTEM
T

On the basis of the above testimony of
Bradshaw, I am unable to join in the con-
clusion of the majority that Bradshaw
could have given the trial court the “defi-
nite impression that he would be unable to

ELLIS v. LYNAUGH

837

Cite as 873 F.2d 830 (Sth Cir. 1989)

shaw’s] true views.” O'Bryan v. Estelle,

714 F.2d 365, 382 (5th Cir.1983), cert. de-,

nied, 465 U.S. 1018, 104 S.Ct. 1015, 79
L.Ed.2d 245 (1984).

Bradshaw’s responses to defense coun-
sel’s questions are best understood in the
context in which they were given. Defense
counsel had asked Bradshaw to assume
that he had already taken the oath—to
assume that he had sworn to return a
verdict based on the law and evidence.
Quite understandably, then, when defense
counsel asked him what he would do if the
evidence convinced him beyond a reason-
able doubt that the punishment issues
should be answered affirmatively, Brad-
shaw answered that he would answer

truthfully. To do so undoubtedly would do
‘ violence to his conscience; not to do so,
however, would subject him to the criminal
consequences of violating his oath.

When the court began asking Bradshaw
questions of its own in an effort to resolve

ilt the conflict in his answers, it became ap-
ith parent that he was still operating under the
same assumption imposed by defense coun-

t's sel. Bradshaw told the court that, if he
we had to take the oath for some reason, he
ied would answer the questions truthfully.
hat The trial court, seeing Bradshaw’s confu-
eae sion, reminded him that no one would be
he forced to take the oath if to do so would do
<7. violence to that person’s conscience and
ate soul. It was against this backdrop that
—_ Bradshaw stated that he would refuse to
one take the oath. We see no error here. See
vent Lockett v. Ohio, 438 U.S. 586, 595-96, 98
he S.Ct. 2954, 2960, 57 L.Ed.2d 978 (1978).
a he Contrary to Ellis’s assertion that the trial
ecial court’s remarks were designed to suggest
that = escape hatch for a troublesome venire-
ene Man, we believe that the court’s comments
, giv- Were intended to and did enable Bradshaw
those '@ive a clear statement of his position so
juror the trial court could better assess his
nould me@itications. Because the trial court
vn the 4y could have been “left with the defi-
- ght, mpression that [Bradshaw] would be
line @ to faithfully and impartially apply
B nik »” Witt, 469 U.S. at 426, 105 S.Ct. at
Mis- ise we have determined that the trial
a 98 tdid not engage in improper questioning of

w, we do not address Ellis’s claim that

853, we hold that the state’s challenge for
cause was granted properly.”

Ill.

Procedural Default

[2] In the recent case of Harris v.
Reed, — U.S. —, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989), the Supreme Court
made clear that the “plain statement rule”
of Michigan v. Long, 463 U.S. 1082, 103
S.Ct. 3469, 77 L.Ed.2d 1201 (1988), applies
to cases on federal habeas review. Under
Long, review of an issue of federal law is
barred if the state court’s opinion contains
a “plain statement” that its decision rests
upon adequate and independent state
grounds. 463 U.S. at 1041, 103 S.Ct. at
3476. If a state court’s reasons for reject-
ing a claim are ambiguous, however, feder-
al review is not precluded. Jd., 103 S.Ct. at
3476-77. In Harris, the Supreme Court
recognized that the problem of ambiguous
state court references to state law is com-
mon to both direct and habeas review. It
therefore adopted “a common solution” to
this problem: “a procedural default does
not bar consideration of a federal claim on
either direct or habeas review unless the
last state court rendering a judgment in
the case ‘clearly and expressly’ states that
its judgment rests on a state procedural
bar.” Harris, — U.S. at ——_-——, 109
S.Ct. at 1043 (quoting Caldwell v. Missis-

the trial court's findings are entitled to no pre-
sumption of correctness under 28 U.S.C.
§ 2254(d).

Dilemncnitny

ey age oP

rae

FRONT PAGE DETECTIVE, March, 1955

April 4, 1957

barre!
of the
his gu
escape

This
Houst
boroug
duty »
roared
its gan
let the

Archie Lee, in custody of Detectives W. C. Doss and Breck Porter, told of cruis-
ing through pipeyards in search of wounded brother while cops hunted him.

re ae

Doyce Doolin; One bullet nicked his
cheek; another killed his partner.

Robert Crosby: Top grades in training
class at 26; murdered when he was 27.

“Prison is the worst. P'd rather go to the chair than get life”

silhouetted back of the driver, firing through the rear win-
dow.

Then he remembered the kid, and he shot at the tires
and gas tank while the car got away.

Another car stopped beside him. The driver saw the blood
soaking Scarborough’s right shirt sleeve. “Get in, Officer. I'll
take you to a doctor.” -

Scarborough shook his head as he jumped in beside the
driver. ‘“‘No, see if you can catch him.” :

But the Chevvy had had a head start, and they couldn’t
find it.

Scarborough stopped at the hospital in a nearby Houston’

suburb, and had his arm treated. The bullet had missed the
bone by a fraction of an inch.

A few minutes before Scarborough was wounded, the Chev-
rolet had slipped away from Highway Patrolmen Crosby and
Doolin. State Patrolman Robert James Crosby was a gangly,
freckled 27-year-old who'd made top grades in his training

”

class a year before. He drove the patrol car. His partner,
Doyle Doolin, was a round-faced, good-natured patrolman, as

‘jovial as Crosby was serious. They were buddies, opposite in

build and disposition, which made them admirers of each other
and close friends. They’d spotted the speeding, battered black
Chevrolet several minutes before Scarborough’s run-in with it.
The patrolmen had chased it with sirens wailing through
Houston traffic to the city limits, and they’d lost it when it
turned off on a side street.

Crosby and Doolin headed out the highway at top speed,
still thinking they’d overtake the Chevvy. While they were
searching for it, Scarborough was fighting his gun battle on
the edge of the city. When the patrolmen realized their quarry
had slipped away, they doubled back, unaware that the deputy
had been shot. Inside the city limits, they still found no trace
of the car. So they doubled back again, out the Beaumont
Highway.

They met the Chevrolet, fresh from its battle, speeding

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TRIAL

APPEALS

LAST WORDS

EXEGJTION
*

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When there is a potential killer on the loose you pay a hired

hunter to find him. That hunter is your cop. His job may cost him his life.

It cost the life of Robert Crosby. And then the cry went out...

GET THE MAN
WHO GOT CROSBY

by CALVIN C. DEWEY

@ You pay yourhired hunter to do your dirty work for you.
You curse him, call him overpaid, snarl every time you hand
over a penny of his salary. He’s a cop. He keeps you alive.

The murderer your cop stalks is as blood thirsty as a
killer lion. The killer moves by night. Once he’s tasted blood,
nothing stands between him and you except your cop. A
hunted man hates cops. He shoots to kill while the best police-
men dodge and plot and trap to take him alive and put him
in a cage.

The first shot Deputy Sheriff Jimmy Scarborough fired was
the instinctive, well-aimed blast of self-defense. Then he
remembered the thin young face, wide-eyed and scared, the
face of a kid who sat beside the driver of the’ battered
Chevrolet. His training slogan rushed back to him.

Don’t kill if you can help it.

He stood on the darkening highway, blood dripping from
his right elbow. But his hand was steady as he lowered the
barrel of his smoking .45 and fired at the gas tank and tires
of the Chevrolet. Gears ground and roared away. He emptied
his gun at the bobbing, disappearing taillights. The car
escaped, and the killer was riding in it.

This was the Beaumont Highway, a few miles east of
Houston, 9:30 p.m., Saturday, November 27. Deputy Scar-
borough was on his motorcycle, riding in to begin his night
duty when the black °46 Chevrolet scooted up ‘behind him,
roared, screeched its brakes, let him pull ahead, then started
its game again. Scarborough, a 46-year-old veteran officer,
let the driver behind him do it two more times. Every time

it was a little closer, as if they were playing to see how close
they could get to the cycle’s rear fender without barreling
over it.

Scarborough skidded off the pavement and waited until the
Chevvy passed him. In the darkness and quick flashes of
headlights, he couldn’t see the occupants. He pulled back on

~the highway and watched the car ahead of him shoot down the

highway. It passed another car, forcing an oncoming car to
the ditch. It teetered back and forth from one side of the
pavement to the other. Scarborough turned on his motorcycle
blinker and sped after it.

He caught it, and saw it stop on the shoulder. He parked
his cycle and walked toward the driver’s door. The driver had
opened his door and twisted around to look back at him.

He was a dark, good-looking man with a wisp of hair hang-
ing over his eyes. Scarborough glimpsed a young, scared face
peering back from the seat beside the driver. It looked, in the
half-light, like the face of a teenage boy. A drunk with a kid,
the officer guessed.

“Say, friend,” Scarborough drawled. ‘“You’ve driven about
far enough for the condition you’re in.”

The man slid out of the car without a word. Scarborough
saw a nickel-plated pistol gleaming in his hand. He dodged at
the same time the gun leaped. Scarborough’s shooting arm
burned above the elbow, and the officer dived for cover
behind the car as he pulled his own .45.

The driver was slamming the door and roaring the motor
when Scarborough fired the first shot, the one he aimed at the

continued on next page

t to self-de-

called it a day
it. nine jurors

three empty
t morning, and
after lunch.

yn session that
that night, the
case. The key
he defendant’s
supported by
iving highway

yand door and
| car,” stated
the tragic inci-
) blasts. They
blasts. I felt a
the left side of
and felt blood.
ther car had a
vas lying there

devoted to the
tion of the fam-
erle was so un-
ven his moth-
vod relatives

Betty batted
al hours on the
the juffy with

ier brother’s un-

h other children
tty remembered
etachment. “He
th his brothers
save spells. He’d
ile of the night
g his tongue.”
vierle went from
>ceiving a med-
he army at age
he came home,
went from one
ne place to an-

| house or a hotel,
where he thought
ing him around
his troubles with

painfully private
s stoic demeanor
trickled down his
| his sobs by jam-
mouth and gnaw-

final day, the
| the insanity strat-
th testimony from

DEADLY PAIN

the county psychiatrist, the medical
director for the Texas Department of
Corrections and his staff shrink. The
Harris County head doctor argued
Merle had always been in his right
mind and could clearly distinguish right
from wrong. The white coats on the
state payroll concurred with that diag-
nosis and emphasized that the defen-
dant did not exhibit symptoms of
mental illness while in their custody.

In their closing argument, the defense
lawyers did not dispute the facts of
the case. There was no denying that
on the night of November 27, 1954,
Merle shot and killed Robert Crosby.
However, if the jurors agreed the
murder was the act of a crazy man, they
had no alternative but to find him not
guilty.

In his first death-penalty case as
Houston’s head prosecutor, D.A.
Woodall pulled out all the stops dur-
ing an hour-long summation. He cau-
tioned the dozen law-abiding citizens
against being sucked into the insanity
swamp by the senselessness of the
crime. “There can be no logical ex-
planation for what he did,” the dis-
trict attorney conceded but focused
the jurors’ attention on the crucial point
of law. The absence of a rational mo-
tive did not make the confessed killer
crazy.

“I am willing to take my part for
the electrocution of Merle Wayne El-
lisor not in the spirit of vengeance,”
Woodall said in conclusion, “but be-
cause the law must be enforced and be-
cause the death penalty brings a loud-
er message to those criminally inclined
than any other I know.

“Be resolute. Be strong. Say with
your verdict: ‘It cannot happen here
and go unpunished.”

The jury retired to deliberate at 3:35
p.m. and came back at five minutes be-
fore four with their decisions on the

crime and punishment. As the guilty
verdict and death decree were read, the
condemned man’s mother sobbed hys-
terically.

Merle, who had regained his com-
posure, showed no visible reaction to
the judgment. As deputies led him
away, he cracked a crooked smile for
his crying kinfolks.

After twenty-five months on Death
Row, Merle’s number came up. A
last-minute application for a stay was
rejected by the board of pardons and
paroles on April 4, 1957, paving the

way for his midnight execution.

Over a traditional last meal of fried
oysters and shrimp, Merle said in a
death-cell interview, “I am ready to go.
In fact, I have been ready for a long
time.”

Prison officials arranged for Matthew
Ellisor, who was doing three years for
burglary, to visit his brother. Their re-
union was light-hearted and no men-
tion was made of what was waiting
behind the green door.

But it was a very different scene when
a sister came calling. Merle broke down
in tears after seeing her for the last time.

Merle Ellisor managed to pull him-
self together before following in the
footsteps of the three hundred and nine-
teen men who had preceded him. He
may have envied his cousin Clyde Bar-
row as the guards strapped him into
“Old Sparky” wishing he too could
have gone out in a blaze of hot-lead
glory. Instead, he had to settle for the
thousands of volts that fried him to a
crisp. *
(Editor’s note: The names Jed Marlowe,
Louise Fletcher and Betty are fictitious. To

reveal the real names of these individuals
would not serve the public interest.)

Che Ancient Wisdom OF

MADAME

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sive damage done by the shotgun,
and the bloodstained patient was pro-
nounced dead at 10:17 p.m.

Word of Crosby’s death was relayed
by radio to the hundred fellow offi-
cers already beating the bushes for
the perpetrators. Everyone understood
without a word being said that the
search would continue around the clock
until the cop killers were found.

By using backstreets and alleys
Archie Lee dodged the police road-
blocks and eventually reached the
perimeter of the pipe yard. He flashed
his headlights according to Merle’s
instructions, but his brother never
showed.

Deciding not to push his luck by
hanging around the cop-infested neigh-
borhood, Archie Lee returned to the
Marlowes’ where everyone was wait-
ing up for him. He had no trouble
convincing them that he should lie
low in Chambers County so long as the
heat was on in Houston.

The middle-of-the-night flight turned
into a family excursion complete with
crying kids. They parted company in
Liberty, and Archie Lee rented a dirt-

cheap cabin at the local tourist court,
the 1950’s ancestor of the modern
motel.

A posse led by Texas Ranger John-
ny Klevenhagen and a high ranking as-
sistant to the Harris County sheriff
kicked down the cabin door at the crack
of dawn. To their astonishment, Archie
Lee slept through the Sunday morn-
ing wake-up call and had to be shak-
en from his slumber.

Unlike Merle, who could look any-
body straight in eye and swear the
sun rose in the west, Archie Lee was
a lousy liar. He had the uncanny knack
of making the absolute truth sound pre-
posterous, especially when the chips
were down, and every last chip was
in the pot on the long ride back to Hous-
ton.

The tongue-tied youth began by
denying he even laid eyes on Merle the
previous night but drew a dumbfounded
blank when asked to explain his where-
abouts. He hemmed and hawed des-
perately trying to invent an‘alibi until
one of his captors set him straight.
Unless he came completely clean, he
was a sure bet for the electric chair.

A bolt of lightning could not have
come as a bigger shock. It had not
occurred to Archie Lee that he might
be subject to the death penalty. From
that moment on, he was the model of
cooperation. He provided blow-by-
blow descriptions of the Scarborough
and Crosby shootings pinning the
blame entirely on his ex-con brother.
He repeatedly insisted, perhaps a lit-
tle too self-righteously, that he never
fired a shot.

Archie Lee was taken to the crowd-
ed crime scene, where he readily reen-
acted the fatal run-in with the high-
way patrolmen and the Ellisors’ retreat.
He loved being the center of attention
and having everyone hang on his every
word. It was the closest the small-town
nobody would ever come to being a
big shot.

During his performance, an officer
inquired whether Archie Lee recog-

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23

nized the deputy sheriff standing off
to the side with his arm in sling. He
glanced at the man, whose eyes burned
with hatred, and shook his head.

“That’s Jimmy Scarborough, the first
cop you boys tried to kill.”

By noon Sunday, the manhunt for
Merle Ellisor had become the largest
in Harris County history. Three hun-
dred heavily armed trackers from every
law enforcement agency were assigned
full-time to the search.

In spite of the massive manpower,
the authorities had yet to pick up the
trail of the elusive fugitive. He had van-
ished into thin air.

Merle’s many relatives in metropol-
itan Houston and Chambers County
were rounded up and interrogated at
length but to no avail. Most behaved
like hostile prisoners of war giving only
their names, ranks and serial num-
bers. The few who were willing to talk,
like Jed Marlowe, had nothing worth-
while to say.

Marlowe, who along with his wife
was held overnight for questioning,
spoke to reporters upon his release.
“Merle’s a cold-blooded killer. I
wouldn't help him for anything. He will

kill me if he ever sees me again.”

In a jail-cell interview on Monday,
Archie Lee pleaded with Merle to
give himself up. “It doesn’t do any
good to keep running. If he doesn’t sur-
render, he will die either of his wound
or the officers will kill him.”

The teenaged son of a Houston po-
liceman came forward Monday and
sheepishly admitted he had uninten-
tionally helped the cop killer slip
through the dragnet. The youth was
stopped at a railroad crossing late
Sunday night, when a barefoot hitch-
hiker tapped on the car window and
asked for a lift. The soft-spoken
stranger claimed muggers had stolen
his shoes and wallet but paid for the
ride with five dollars in quarters.

The embarrassed adolescent con-
firmed the authorities’ worst fear. The
bottled-up fugitive had popped the cork
and could be anywhere.

The search shifted on Tuesday to
the waterfront shipyards on Brays
Bayou. Two tugboats had been ran-
sacked on Sunday and Monday nights,
and the thief made off with a shop-
ping list of supplies that would come
in handy on the lam: canned food,

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sweatshirts, blankets, two pairs of shoes
and a tarpaulin.

Archie Lee also made the news on
Tuesday. He ceased playing the part
of innocent bystander and at last ad-
mitted taking a shot or two at the
highway patrolman.

Louise Fletcher was hanging out
the wash the next morning in her
backyard on Brays Bayou, when an un-
shaven man jumped from the thicket
on the opposite side of the waterway
and took off running. The middle-
class matron did not pay him any
mind and finished her clothesline chore.

But when Mrs. Fletcher went back
in the house, it suddenly occurred to
her that the suspicious figure might
be the subject of the city-wide man-
hunt. “I spoke to my husband, and we
ran outside just as a police car stopped.
I told the officers what I had seen.”

The alarm was sounded, and in a mat-
ter of minutes a hundred lawmen con-
verged on the location. Armed with
shotguns, submachine guns, rifles and
pistols, they staged a shoulder-to-shoul-
der sweep of the dense brush where the
suspect was last seen.

Detectives M.L. Singleton and C.E.
Harrelson found fresh footprints on the

[=]

elrealrelfelrel
Possess sss s sss seas eaeeleleleeleelel

(el

bayou bank and tracked their prey
into the woods. They spotted Merle
lying flat on his stomach playing pos-
sum in the hope of avoiding detec-
tion.

“We held our guns ready and moved
toward him slowly not making a
sound,” Singleton subsequently re-
called. “He didn’t hear us until we
were right on him, and I spoke. I
leveled on him and told him to roll
over and put his hands behind his
back.”

Merle obeyed while indignantly dis-
puting his identity. But as the second
detective snapped the handcuffs on
his wrists, he snarled, “All, right. I’m
Merle Ellisor.”

The eighty-six-hour manhunt was
over.

Merle saved the detectives the trou-
ble of a long and tedious interrogation.
On the five-minute stroll to the po-
lice car, he confessed to the Crosby
killing and in the same breath absolved
Archie Lee of any involvement in the
homicide. Later at the station, he put
his incriminating words down on
paper.

From the moment of his apprehen-
sion, Merle’s chief concern was to get

his baby brother off the hook. If that
meant sealing his own fate with a
signed and sealed confession, then so
be it.

District Attorney Dan Woodall wait-
ed until the morning of the trial on Jan-
uary 9, 1955, to drop the capital mur-
der charge against Archie Lee. Merle
got his wish. He would face the music
alone.

Merle cleaned up for court. Gone was
the four-day beard, filthy clothes and
wild-eyed look that had been plas-
tered across the front pages of the three
daily newspapers following his sensa-
tional capture. He was clean shaven
with his hair neatly combed and wore
a blue-striped shirt with gray pants. And
he was calm almost to the point of in-
difference.

Merle’s white-haired mother took her
place directly behind her son. Dressed
in black from head to toe, she looked
like she had gone into premature
mourning.

The attorneys for the defense tipped
their hand early in the questioning of
prospective jurors. Several were asked
whether they could vote for acquittal
if persuaded Merle was insane at the
time of the murder, while others had

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their opinions on the right to self-de-
fense scrutinized.

When the judge finally called it a day
at nine o’clock that night, nine jurors
had been selected. The three empty
chairs were filled the next morning, and
the trial got under-way after lunch.

During another marathon session that
lasted until ten o’clock that night, the
prosecution presented its case. The key
piece of evidence was the defendant’s
confession, which was supported by
the testimony of the surviving highway
patrolman.

“I opened the right hand door and
stepped out of our patrol car,” stated
Doyce Doolin reliving the tragic inci-
dent. “Then I heard two blasts. They
sounded like shotgun blasts. I felt a
sting, a deadening, on the left side of
my face. I reached up and felt blood.
The back glass of the other car had a
hole in it. My partner was lying there
in the front seat.”

The third day was devoted to the
defense. With the exception of the fam-
ily doctor, who said Merle was so un-
stable “he’d kill anyone, even his moth-
er,” the witnesses were blood relatives
of the accused.

Merle’s older sister Betty batted
cleanup. She spent several hours on the
stand trying to sway the jury with
first-hand accounts of her brother’s un-
balanced behavior.

“He never played with other children
when he was small,” Betty remembered
with almost clinical detachment. “He
wouldn’t even play with his brothers
and sisters. He used to have spells. He’d
wake up in the middle of the night
screaming and chewing his tongue.”

Betty maintained Merle went from
bad to worse after receiving a med-
ical discharge from the army at age
twenty-two. “When he came home,
he was restless. He went from one
job to another, from one place to an-
other.

“Once in a rooming house or a hotel,
he had hallucinations where he thought
somebody was chasing him around
the room. After that, his troubles with
the law began.”

As Betty aired his painfully private
dirty laundry, Merle’s stoic demeanor
disintegrated. Tears trickled down his
face, and he silenced his sobs by jam-
ming a fist into his mouth and gnaw-
ing on his knuckles.

On the fourth and final day, the
prosecution countered the insanity strat-
egy of the defense with testimony from

A man who w

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death and then

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had been relea:
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the county ps)
director for the
Corrections and
Harris County
Merle had alu
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on the night <
Merle shot an
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520 Tex.

grant or refuse the motion. Upon refusal,
the court shall require the case to be tried
by the regular jurors summoned for the
week. The power of the trial judge to
order a special venire or not in cases where
at least one hundred prospective jurors
have been summoned for the week has been
held to be a matter within his discretion.
Smith v. State, Tex.Cr.App., 397 S.W.2d 70;
Johnson v. State, 167 Tex.Cr.R. 289, 319
S.W.2d 720.

It is appellant’s position that it is the
procedure in Harris County to summon pan-
els of prospective jurors on a daily basis.
He argues that Art. 34.01 gives the trial
court discretion to refuse a special venire
request only where at least one hundred
jurors have been summoned for “the week.”
Therefore, he continues, the trial court
lacked authority to refuse his request be-
cause it did not summon the panel for the
week.

The record shows that Harris County
does summon prospective jurors to appear
on a daily basis. The jury coordinator of
the court, Robert W. Clogston, testified that
hundreds of jurors are summoned daily in
Harris County.

Former Art. 2118 (Tex.Laws 1945, Ch.
229, Sec. 1, at 314) provided for the selec-
tion of qualified prospective jurors out of
those summoned for the week. That stat-
ute provided in part:

“On Monday, or other day, of each Court
week, when a jury has been summoned
and there are jury trials, the Court shall
select a sufficient number of qualified
jurors, in his discretion, to serve as jurors
for the week. <«

The present statute! provides in part:

“On any day when a jury has been sum-

moned and there are jury trials the court

shall select a sufficient number of quali-
fied jurors, in his discretion, to serve as
jurors. es

The change in the statutory language of
Art. 2118, supra, evidences a realization by

1. Tex.Rev.Civ.Stat.Ann. Art. 2118 (Supp.1980).

2. That statute provides in pertinent part that in
a capital case no defendant shall be brought to

595 SOUTH WESTERN REPORTER, 2d SERIES

our Legislature that in many metropolitan
areas with multiple judicial districts, pro-
spective jurors are now summoned and se-
lected on a daily basis. The record in the
instant case reflects that many more than
one hundred prospective jurors are sum-
moned on a daily basis in Harris County
and literally thousands were summoned for
the week in which the case was tried. We
conclude that the decision of whether to
grant a special venire was within the trial
court’s discretion.

[4] Appellant maintains that if the trial
court had discretion as to the granting of a
special venire, then the court abused that
discretion. He contends that providing him
with a list of the persons summoned was an
inadequate substitute for a special venire.
Appellant argues that due to the great
number of prospective jurors summoned
daily he could not, without a special venire,
intelligently exercise his peremptory chal-
lenges.

The record shows that in order to conduct
voir dire the prospective jurors were
brought into the courtroom in groups of 24
or 25 until a jury was chosen. Thus counsel
for both sides were limited to that extent in
evaluating the panel with their perempto-
ries in mind. The trial court provided de-
tailed questionnaires drafted jointly by both
sides. These forms were filled out by jur-
ors and returned to both parties. The rec-
ord shows that 72 of these forms were filled
out by prospective jurors. Individual mem-
bers of the panels filled out these forms and
the questionnaire was made available to
counsel during voir dire of each prospective
juror. Some 60 prospective jurors were
questioned before a jury was selected. The
transcript of the voir dire consists of 1,400
pages.

In the instant case, after denying the
request for a special venire, appellant was
furnished with a list of the persons sum-
moned as provided in Art. 34.04, V.A.C.C.P2

trial until he shall have had at least two days a
copy of the names of the persons summoned as
veniremen for the week in which his case is’set
for trial. ' /

smudges Saray?

MARI

ESQUIVEL v. STATE Tex. §21

Cite as, Tex.Cr.App., 595 S.W.2d 516

This action was in licu of a special venire
and in compliance with Art. 34.01, supra.
We conclude that the trial court’s action in
following the statutory procedure after de-
nying appellant’s request for a special ve-
nire, did not constitute an abuse of discre-
tion. Appellant’s second ground of error is
overruled.

[5] In his third ground of error, appel-
lant contends that the trial court erred in
denying his motion styled “Motion to Deter-
mine All Prospective Jurors for Jury Selec-
tion.” The motion was filed following the
denial of appellant’s request for a special
venire. In the pretrial hearing, appellant's
counsel stated the purpose of the motion in
the following manner:

“MR. ROGERS: I also have a motion

‘which I’m filing now. It is a Motion to
Determine all Prospective Jurors for Jury
Selection. We’re asking the Court to pick
from the jurors summoned from Harris
County, a sufficient number to pick the
entire panel from which the jury for this
case would be selected, for the reasons
stated in the motion.”

The trial court denied the motion after
noting that appellant had been provided
with a list of the prospective jurors who
would be summoned for the week. In sup-
port of his contention that the trial court
erred in overruling his motion, appellant
relies on Crow v. State, 89 Tex.Cr.R. 149,
230 S.W. 148. In that case, the defendant
requested the court to have all the venire-
men called and their general excuses heard
in order that he might know who among
the venire were left to be examined further
on voir dire. The record reflected that the
trial court adopted the plan, not of having
all the jurors sworn and tested primarily,
and to render excuses, but called them in
four at a time and had the four sworn,
excusing those who might have legal excus-
es, and then required the State and defend-
ant to examine and pass upon those of the
four who had not been excused. Although
the conviction was reversed on another
ground of error, the Court noted “this (pro-
cedure) was requiring both the State and

defendant to act somewhat in the dark with
reference to the other veniremen, and we
do not believe this is the proper practice.”

‘Crow v. State, supra at 153.

In the instant case, before the panels
were brought into the courtroom, each
member was tested as to his or her qualifi-
cations to serve and excuses were heard and
ruled upon. This preliminary examination
took place in the jury assembly room to
which all prospective jurors are ordered to
report. Once the panel of 24 or 25 prospec-
tive jurors arrived in the courtroom they
were further questioned by the trial court
pursuant to Art. 35.17(2), V.A.C.C.P. Each
attorney was then allowed to individually
voir dire the remaining panel members.

The record reflects that three separate
panels were questioned before a jury was
selected to serve in appellant’s trial. Seven
jurors were selected from the first panel,
two jurors were selected from the second
panel, and the remaining three jurors were
selected from the last panel. By the time
the third panel was brought into the court-
room, appellant had not yet used one-third
of his peremptory challenges. As noted
above, counsel was provided information
about each prospective juror through the
forms which the panel members filled out
prior to individual voir dire.

Under the circumstances of this case, we
cannot conclude that the court required ap-
pellant to “act somewhat in the dark with
reference to the other veniremen.” Fur-
thermore, counsel’s motion constituted an
attempt to have the court empanel the
equivalent of a “special venire” from which
a jury would ultimately be picked. As we
noted above, the trial court did not abuse
its discretion in denying appellant’s request
for a special venire. No error is shown in
the trial court’s denial of appellant’s motion
to determine all prospective jurors.

In his fourth ground of error appellant
argues that the trial court erred “by deny-
ing appellant his right under Art. 35.17(2),
V.A.C.C.P. to individual voir dire examina-
tion of prospective jurors separate and

Minnesota

A 23-year-old Douglas County, Minnesota, Sheriff's
deputy was killed while attempting to handcuff a prisoner
for transportation from the Sheriff's Office to a county jail.
As the officer prepared to handcuff him, the 32-year-old subject
produced a 9-millimeter handgun and shot the deputy, who had
3 years of law enforcement experience, twice in the abdomen.
The assailant then fled the scene in his pickup truck, and
following a high-speed chase and gun battle with responding

officers, was wounded and captured. The offender died 3 days
later as a result of his wounds.

Tennessee

On responding to a family disturbance call, two
patrolmen with the Chattanooga, Tennessee, Police Department
were shot and killed. Witnesses allege that the officers,
aged 35 and 29, arrived at the scene simultaneously, approached
the house, and knocked on the door. A male subject, aged 39,
allowed the officers to enter the residence, but minutes later
the victims were seen backing out of the doorway. Suddenly,
shots were heard and both officers dropped to the ground. One
officer, who had 6 years of law enforcement experience, managed
to return fire but died at the scene. The second officer, with
4 years of law enforcement service, died 3 days later. Both
patrolmen were shot once in the chest with a .38-caliber handgun.
The assailant also died at the scene as a result of the gunfire
returned by one victim officer.

Texas

While effecting a narcotics arrest, a 28-year-old
officer with the Houston, Texas, Police Department was slain
and a second officer injured. Following the arrest of a male
subject, aged 42, and two female companions, the officers had
returned to their patrol vehicles with the suspects. During
the subsequent searching procedure, the male assailant allegedly
produced a .38-caliber handgun firing at both officers. The
victim was shot in the head and abdomen and his partner sustained
gunshot wounds in the arm and back. Both officers were able to
return fire, injuring the subject. Several hours later, the
victim, who had over 3 years of law enforcement service, died.
All three suspects were arrested and the male assailant has been
charged with capital murder.

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516 Tex.

Rudy Ramos ESQUIVEL, Appellant,
Vv.
The STATE of Texas, Appellee.
No. 62779.

Court of Criminal Appeals of Texas,
En Banc.

Jan. 9, 1980.

Defendant was convicted in the 180th
Judicial District Court, Harris County, Fred
M. Hooey, J., for capital murder, and he
appealed. The Court of Criminal Appeals,
Tom G. Davis, J., held that: (1) trial court
did not err in denying defendant’s motion
for continuance; (2) trial court did not
abuse its discretion by refusing defendant’s
request for a special venire; (3) trial court
did not err in overruling defendant’s motion
to determine all prospective jurors for jury
selection; (4) trial judge did not err in
overruling defendant’s motion to determine
all prospective jurors for jury instruction;
(5) defendant waived his opportunity to
challenge array of prospective jurors by
failing to raise challenge before panel was
qualified; (6) there was no reversible error
in trial court’s excusing three prospective
jurors on its own motion; (7) trial court did
not abuse its discretion in refusing to allow
counsel to interrogate prospective jurors
relative to their understanding of terms
“deliberately” and “probability” as con-
tained in statute governing sentencing pro-
cedure in capital cases; (8) trial court did
not err in sustaining state’s challenge for
cause to prospective juror who indicated she
would require evidence of motive to support
a conviction for capital murder and to pro-
spective juror who was opposed to death
penalty and regardless of facts could not
vote to assess death as a punishment; (9)
trial court did not err in allowing former
district attorney who was in charge of for-
mer prosecution of defendant for rape to
express his opinion with regard to probabili-
ty of future acts of violence by defendant;
(10) indictment contained all elements of

595 SOUTH WESTERN REPORTER, 2d SERIES

officer to testify concerning out-of-court
test was harmless.

Affirmed.
Phillips, J., concurred in result.

Clinton, J., dissented and filed opinion
in which Roberts, J., joined.

1. Criminal Law @ 1166(8)

Trial court’s overruling of a motion for
continuance must amount to an abuse of
discretion in order to constitute reversible
error. Vernon’s Ann.C.C.P. art. 29.08.

2. Criminal Law @=608

Trial court did not abuse its discretion
in overruling defendant’s motion for contin-
uance on basis that pretrial publicity would
deprive him of a fair trial where defendant
produced no witnesses to testify that he
could not receive a fair trial, no motion for
change of venue was filed and evidence
supported trial judge’s implied finding that
defendant would not be deprived of a fair
and impartial trial. Vernon’s Ann.C.C.P.
art. 29.03.

3. Jury ¢=70(2)

Power of trial judge to order a special
venire or not in case where at least 100
prospective jurors were summoned on a dai-
ly basis was a matter within his discretion.
Vernon’s Ann.Civ.St. art. 2118; Vernon’s
Ann.C.C.P. art. 34.01.

4. Jury 69, 70(2)

In prosecution for murder, trial judge
did not abuse his discretion in denying de-
fendant’s request for a special venire and in
thereafter furnishing defendant with
names of persons summoned as veniremen
for week in which his case was set for trial
in lieu of special venire. Vernon’s Ann.C.
C.P. arts. 34.01, 34.04.

5. Jury @75

In prosecution for capital murder, trial
judge did not err in overruling defendant’s
motion to determine all prospective jurors
for jury selection, especially where motion
constituted an attempt to have court em-
panel equivalent of a “special venire” which

ESQUIVEL v. STATE Tex. 517
Cite as, Tex.Cr.App., 595 S.W.2d 516

6. Criminal Law ¢= 1035(6)

Defense counsel’s request to take up
issue of juror’s opinion as to defendant's
guilt or innocence on individual voir dire
examination of prospective jurors was not
an objection to trial judge’s conduct of voir
dire and, absent proper objection, alleged
error in refusal to allow counsel voir dire
was waived. Vernon’s Ann.C.C.P. art. 35.-
17, subd. 2.

7. Criminal Law ¢= 1030(1)
Failure to object at trial waives error,
if any.

8. Jury ¢=131(13)

In prosecution for capital murder, trial
court did not err in questioning jury panel
as a group concerning their opinion as to
defendant’s guilt or innocence and such
questioning did not constitute a denial of
defendant’s right to voir dire prospective
separately. Vernon’s Ann.C.C.P. art. 35.17,
subd. 2.

9. Jury ¢=110(1)

Where defense counsel did not raise his
challenge to array of prospective jurors be-
fore court qualified panel but, rather,
brought matter to attention of trial court
after voir dire had begun, defense had
waived opportunity to challenge array.
Vernon’s Ann.C.C.P. arts. 35.06, 35.10, 35.12.

10. Affidavits <=11
In order to constitute an “affidavit” an

instrument must be sworn to. V.T.C.A.,
Penal Code § 1.07(a\35).

lL. Jury 118
Defendant’s written challenge to array
of prospective jurors did not constitute an
affidavit as required for such challenges
where writing was not sworn to. Vernon’s

Ann.C.C.P. art. 35.07.

12. Criminal Law 1166.18
Defendant failed to demonstrate any

, harm in trial court’s overruling his chal-

lenge to array of prospective jurors where

defendant did not show he was forced to
‘ accept an objectionable juror. Vernon’s
' Ann.C.C.P. art. 35.12. '

13. Jury 109

A trial court should not, on its own
motion, excuse a prospective juror for cause
unless he is absolutely disqualified from
serving on jury. Vernon’s Ann.C.C.P. arts.
35.16, 35.19.

14. Homicide 131

Despite contention that indictment
failed to allege that deceased was a police
officer acting in lawful discharge of his
duties at time he was killed, a reasonable
reading of indictment made that allegation
clear and indictment contained all necessary
elements of capital murder. V.T.C.A., Pe-
nal Code § 19.03(a)(1).

15. Jury 142

Defendant’s failure to object at time
prospective jurors were excused by court
sua sponte waived any error. Vernon’s
Ann.C.C.P. arts. 35.16, 35.19.

16. Jury ¢=131(3)

Constitutional right to counsel and trial
by jury carry with them right of counsel to
interrogate members of jury panel for pur-
pose of enabling counsel to exercise intelli-
gently his peremptory challenges and, as a
general rule, great latitude should be al-
lowed by trial court for such interrogation.
U.S.C.A.Const. Amend. 6.

17. Criminal Law @1166.16

Whenever some type of limitation is
imposed upon voir dire examination, rever-
sal will result if such a limitation was an
abuse of discretion.

18. Jury ¢=131(4)

Trial court did not abuse its discretion
in refusing to allow counsel to interrogate
prospective jurors relative to their under-
standing of terms “deliberately” and “prob-
ability” as contained in statute governing
sentencing procedure in capital cases. Ver-
non’s Ann.C.C.P. art. 37.071(b)(1, 2).

19. Jury @=105(2)

Trial court did not err in sustaining
state’s challenge for cause to juror who
indicated she would require state to prove a
reason or motive to support a conviction for
capital murder, especially where state had

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518 Tex.

not exercised four of its peremptory chal-
lenges.

20. Jury 108

In prosecution for capital murder, trial
court did not err in sustaining state’s chal-
lenge for cause to prospective juror who
indicated she was opposed to death penalty
and regardless of facts could not vote to
assess death as a punishment.

21. Criminal Law 1166.17

In prosecution for capital murder, any
error in sustaining state’s challenge for
cause as to prospective juror was harmless
in view of fact that state used only 11 of its
15 peremptory challenges.

22. Criminal Law @986.2(3)

Trial court’s wide discretion at punish-
ment phase in admitting or excluding evi-
dence which it deems relevant extends only
to question of relevance of facts sought to
be proved and does not, alter rules of evi-
dence insofar as manner of proof is con-
cerned. Vernon’s Ann.C.C.P. art. 37.071(a).

23. Criminal Law ¢986.2(1)

Trial court did not err in allowing for-
mer district attorney who was in charge of
prosecution when defendant had been pre-
viously tried and convicted of rape to ex-
press his opinion that defendant would com-
mit criminal acts of violence and constitut-
ed a continuing threat to society. Vernon’s
Ann.C.C.P. art. 37.071(a).

24. Homicide ¢>127

Trial court did not err in failing to
grant an instructed verdict as to offense of
capital murder despite contention that in-
dictment failed to allege that deceased was
a police officer acting in lawful discharge of
his duties at time he was killed where rea-
sonable reading of indictment made that
allegation clear. V.T.C.A., Penal Code
§ 19.03(a)(1).

25. Criminal Law @388

Generally, results of an out-of-court ex-
periment are admissible in discretion of tri-
al court if experiment was made under sim-
ilar conditions to event to which results of
experiment relate; fact that experiment

595 SOUTH WESTERN REPORTER, 2d SERIES

was not made under exactly same condition
goes to weight and not admissibility of evi-
dence.

26. Criminal Law ¢=388, 1169.3

Where same chemical solution was not
shown to have been used in both tests and
reasons for results in each test were differ-
ent, trial court should not have admitted
officer’s testimony concerning out-of-court
trace metal detection tests which would de-
termine whether a person recently held a
metal object; but such error was harmless
where defendant testified that he had held
and fired gun which killed deceased.

27. Criminal Law ¢=1169.1(1)

A judgment will not be reversed for
admission of evidence that did not injure
defendant; question is whether there is a
reasonable probability that evidence com-
plained of might have contributed to con-
viction.

Donald W. Rogers, Jr., court appointed on
appeal, Houston, for appellant.

Carol S. Vance, Dist. Atty., Michael C.
Kuhn, James A. Moseley and Edward A.
Dodd, Asst. Dist. Attys., Houston, -Robert
Huttash, State’s Atty., Austin, for the
State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from conviction for capi-
tal murder. V.T.C.A. Penal Code, Sec. 19.-
03(a)(1). Punishment was assessed at
death.

On June 8, 1978 Officers Timothy Hearn
and Murry Jordan of the Houston Police
Department Narcotics Division received in-
formation that appellant possessed heroin.
After conducting surveillance the officers
approached appellant and several compan-
ions. Jordan attempted to search appellant.
Appellant pulled a pistol and shot Jordan.
Appellant then shot Hearn knowing at the
time he was a police officer. Officer Hearn
died as a result of the gunshot wounds and

ESQUIVEL vy. STATE Tex. 519
Cite as, Tex.Cr.App., 595 S.W.2d 516

his death forms the basis of this prosecu-
tion. Appellant testified that he shot
Hearn in self-defense.

{1] In his first ground of error, appel-
lant contends that the trial court erred in
not granting his motion for continuance.
Art. 29.03, V.A.C.C.P. provides that a crimi-
nal action may be continued upon motion of
the State or the defendant for sufficient
cause shown. A trial court’s overruling of a
motion for continuance must amount to an
abuse of discretion in order to constitute
reversible error. Nelson v. State, Tex.Cr.
App., 505 S.W.2d 271. Trial on the merits

' began on August 14, 1978.

The record reflects that a hearing was
held on appellant’s motion. He produced
witnesses who represented the major televi-
sion stations and newspapers throughout
Harris County. Their testimony shows that

the factual details surrounding the shooting

were thoroughly reported by the media the
day of the shooting and the day after. Sev-
eral newspaper articles noted appellant’s

prior criminal record and stated that he was |

on bond for possession of heroin at the time
of the shooting. A news short included

' film footage from a 1953 trial in which
' appellant was prosecuted for rape. The

week before trial a Tim Hearn Memorial
Softball Game was given radio and t. v.
coverage but no information regarding the
appellant was disseminated in these broad-
casts.

[2] Appellant produced no witnesses to '
testify that he could not receive a fair trial. —
No motion for change of venue was filed.

Upon cross-examination a number of appel-
lant’s witnesses testified that they knew of
no reason why appellant could not receive a
fair trial in Harris County. An examina-

' tion of the exhibits introduced at the hear-

ing on appellant’s motion and the testimony

» of the witnesses indicates that all the infor-

mation contained therein was factual and
informative. Adami v. State, Tex.Cr.App.,
524 S.W.2d 693; Morris v. State, Tex.Cr.
App., 488 S.W.2d 768; Taylor v. State, Tex.

Cr.App., 420 S.W.2d 601. We find that the

evidence supports the trial court’s implied
finding that appellant would not be de-

prived of a fair and impartial trial as the
result of any prejudice in the public mind
caused by pretrial publicity. Demouchette
v. State, Tex.Cr.App., 591 S.W.2d 488; Bell
v. State, Tex.Cr.App., 582 S.W.2d 800, 810.
No abuse of discretion is shown in overrul-
ing appellant’s motion for continuance.

In his second ground of error, appellant
contends that the trial court erred in deny-
ing his motion for a special venire. He
maintains that “the Court in this case was
without authority to refuse appellant’s re-
quest for a special venire because Harris
County, Texas, does not summon prospec-
tive jurors for the week, but rather on a
daily basis.”

Art. 34.01, V.A.C.C.P. provides:

“A ‘special venire’ is a writ issued in a

capital case by order of the district court,

commanding the sheriff to summon ei-
ther verbally or by mail such a number of
persons, not less than 50, as the court
may order, to appear before the court on
a day named in the writ from whom the
jury for the trial of such case is to be
selected. Where as many as one hundred
jurors have been summoned in such coun-
ty for regular service for the week in
which such capital case is set for trial, the
judge of the court having jurisdiction of a
capital case in which a motion for a spe-
cial venire has been made, shall grant or
refuse such motion for a special venire,
and upon such refusal require the case to
be tried by regular jurors summoned for
service in such county for the week in
which such capital case is set for trial and
such additional talesmen as may be sum-
moned by the sheriff upon order of the
court as provided in Article 34.02 of this

Code, but the clerk of such court shall

furnish the defendant or his counsel a list

of the persons summoned as provided in

Article 34.04.” (Emphasis added.)

[3] It can be seen from the text of the
statute that where as many as one hundred
prospective jurors have been summoned for
the week in which the capital case is set for
trial, and where a request for a special
venire is made, the trial court shall either

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Evans executed
for murder of
church pianist

HUNTSVILLE, Texas (UPI) —
*ormer mechanic Michael Wayne
ivans was executed early Thursday for
atally shooting a church pianist and
‘lashing her face with a carpet knife in
1 $40 robbery while she prayed, “God
orgive him.” .

Evans, the ninth Texas inmate put to
leath this year, prayed for his own
‘alvation with the encouragement of a
ison chaplain moments before the
ethal injection was administered.

“I just want to say that I’m sorry for
vhat I done, and that I pray that I’m
orgiven,” he said, pausing briefly.

“I don’t hold nothing against no one at
ill. Everyone done treated me pretty
vell. I know this is not easy. I’m sorry.”

Evans then closed his eyes and lay
juietly on the gurney. He was pro-
‘ounced dead by injection at 12:21 a.m.

Evans, 30, lost his final bid for a stay
f execution about eight hours earlier
‘hen the Supreme Court, on a 5-4 vote,

(See EVANS, Page 4A)

—

Executed Texas murderer Michael Wayne Evans bias:

Texas AG says
one execution
possibly wrong

HUNTSVILLE, Texas (UPI) — One of
the 19 men executed by Texas since 1982 .
may have been wrongly sentenced to die
instead of to life in prison, the state’s top
law enforcer said Thursday, denying
“any glaring abuse” of the death penalty.

Texas Attorney General Jim Mattox
also said it is possible at least two people
now awaiting execution by injection
should not have received the death
penalty. He would not identify the ex-
ecuted inmate or the other prisoners on
death row he referred to.

“I think there are cases that it could
be argued the punishment chosen was
not the proper one, but I don’t think I’ve
seen any glaring abuse of the process,”
Mattox said.

“I think there is one execution that’s
taken place that was of a marginal
nature that the individual could have
received some type of clemency or com-
mutation to a life sentence,” he said soon
after he witnessed the execution of

{See ONE TEXAS, Page 4A)

sy ~
a e

Thursday /2-4-8e “Lys Vesps Sens P91

Lud VIA) Su /A-Y-F%

(Continued from Page 1A)
refused to intervene. Earlier
Wednesday, a federal judge in
Dallas and the 5th U.S. Circuit
Court of Appeals in New Or-
leans also refused to block the
execution.

_ The condemned man’s attor-
ney had argued that the former
mechanic should not be ex-
ecuted because he was insane.

Evans spent most of Wednes-
day sleeping and responded
only with “OK” when told
courts had denied his requests
for a stay.

. He spoke by telephone with
his mother, his attorney and a

_friend in the final four hours
before his death, but he re-
quested no personal witnesses

(Continued from Page 1A)

Michael Wayne Evans early
Thursday — the 19th in Texas,
which leads the nation in execu-
tions since the Supreme Court
lifted its ban on capital punish-
ment in 1976.

Mattox said it would “not be
helpful” for him to identify the
inmate. But he may have been
referring to Charles Brooks, the
first man put to death when the
state resumed executions in
1982, or Doyle Skillern, who was
executed in 1985.

In both cases, the condemned
men were accomplices in
murders, but were not the ac-
tual gunmen.

. Mattox said he would not
hesitate to reeommend clemen-
cy or commutation of a death

Evans executed for. .
killing praying pianist

One Texas execution
may have been in error

_ Subjective evaluation of

¥
4
.
=

for‘ his execution. He also re-
fused a last meal.

Evans told police in a con-
fession that Guerrero prayed,
“God help him, God help him,
God forgive him,” while he
slashed her face from chin to
forehead with a carpet knife
after stealing $40 in church col-
lections and'shooting her.

He later recanted the con-
fession. :

Slain with Guerrero was and
her fiance, Mario Garza, 28. The
couple were accosted by two:
men and kidnapped shortly
after leaving a Sunday night
church service and driven to”
southern Dallas County where
they were shot to death and
their throats slashed.

sentence if he believes the
penalty is not appropriate.
“While I’m attorney general,
if we see a case is clearly
beyond what is reasonable, I
will try to take action to affect.
the sentence,” he said. -
Texas has executed nine men
this year, primarily, Mattox
said, because many of the con- |
demned killers have run out of.
legitimate issues to raise on
appeal and because his office.
does not allow the cases to
languish in court. u
“Our policy has not been to
rush these cases toward execu-
tion. Our policy has been to look
at cases and make a somewhat

whether or not the individual
has a claim that should be:
heard,” he said. ~

« ~~

MY Times /(2-4YU-F6G
Supreme Court Refuses

To Stay Execution P9:/2

WASHINGTON, Dec. 3 (AP) — The
Supreme Court today turned down an
appeal to halt the execution of Michael
Wayne Evans, who was scheduled to
die early Thursday in Texas for the

killing in 1977 of a woman he shot and

slashed in the face with a carpet knife.

Kathy Arberg, a spokesman for the
Court, said that Associate Justice
Byron R. White, to whom the appeal
was sent, referred the appeal to the
Court, which made its decision at about
5:40 P.M.

Associate Justices William J. Bren-
nan Jr. and Thurgood Marshall dissent-
ed. Associate Justices John Paul Ste-
vens and Harry A. Blackmun indicated
they would have granted the stay,

In Dallas, Federal District Judge
Barefoot Sanders had refused a stay,
saying there was insufficient proof that
Mr. Evans was insane, as his attorneys
asserted, The attorneys also contended
that Texas, when it applies the death
penalty, discriminates against blacks
who have killed whites.

Mr. Evans, 30 years old, faced lethal
injection before dawn Thursday. He
had been convicted in the slaying of El-
vira Guerrero, a pianist at the Second
Mexican Baptist Church in Oak Cliff,
Tex., who was leaving the church with
her fiancé when they were abducted
and robbed by Mr. Evans and another
man. Both were killed.

rn , a |

Murderer Executed by Injection

HUNTSVILLE, Tex., Dec. 4 (AP) —
Michael Wayne Evans, who fatally shot
and slashed a woman ‘‘to get her to
quit talking’ as she asked God to for-
give him, was put to death by injection
today for the murder.

“IT want to say I’m sorry for the
things I’ve done and | hope I’m forgiv-
en,”’ Mr. Evans said, tears in his eyes,
before the lethal injection. ‘‘I don’t hold
nothing against no one. Everyone has
treated me well and | know it’s not
easy for them. That’s all. I’m sorry.”

Mr. Evans, 30 years old, died at 12:2]
A.M., said Attorney General Jim Mat-
tox.

He had confessed committing the
1977 murder of Elvira Guerrero, a
church pianist who prayed to God to
forgive him and his accomplice, Earl
Stanley Smith.

“T cut the lady from the bottom of
her chin to her hairline above her fore-
head,’’ Mr. Evans confessed. ‘‘] was
trying to get her to quit talking.”’

Abduction of Couple

The execution, the 9th in Texas this
year and the 19th since the state re-
sumed the death penalty in 1982, came
after the Federal courts refused to
grant a stay Wednesday. Mr. Evans
had had two previous stays and two
trials.

Ms. Guerrero, 25, was abducted with
her fiancé, Mario Graza, after leaving
the Second Mexican Baptist Church in

Oak Cliff. She was robbed of $40 in
church offerings, shot twice and
slashed with a carpet knife.

Mr. Garza, who had been baptized at
the church earlier in the day, was
robbed of $12 and fatally shot with a
.22-caliber pistol that Mr. Evans said
he had stolen. The bodies were found in
a hayfield four days after they were re-
ported missing.

Mr. Evans and Mr. Smith, his accom-
plice, were not tried for Mr. Garza’s
killing after their convictions in the
death of Ms. Guerrero. Mr. Smith, now
32, received a life sentence.

‘“‘He was one of the sorriest human
beings ever,’’ said Kevin Byrne, who
prosecuted Mr. Evans.

Calvin Williams, a death row inmate
who watched Mr. Evans being moved
out of his cell Wednesday, said: ‘‘He
didn’t seem like he was too worried. He
had kind of a warm smile.”

Mr. Evans’s appeals were rejected
Wednesday by a Federal district judge
in Dallas, the United States Court of
Appeals for the Fifth Circuit in New
Orleans and the United States Supreme
Court.

Lieut. Gov. William Hobby, Acting
Governor while Gov. Mark White is out
of the state, also rejected a plea for a
30-day reprieve.

Defense lawyers contended Mr.
Evans was insane and attempted to
show he had unfairly been given the
death penalty because he was black.

United Press International
Michael Wayne Evans

‘I think he was sane,”’ said Mr. Mat-
tox, who witnessed the execution. ‘‘He

clearly understood his punishment.”
Mr. Evans, whose arrest record in-
cluded drug possession and robbery,
asked for no final meal and requested
no personal witnesses to his execution.

‘Advertising’:
Monday through Friday
in Business Day
The New York Times

NY Times Friday Roe py 15

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(£4un09 SBTTGq) sex wy ‘uotqoofut Teu1eT fog SHOVTG ‘oukey

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vatican opens

Texas Executes Convicted Slayer

om
etn a

}

“HUNTSVILLE, Tex., March 3' (AP):
— A man was executed by injection at:
the state prison here early today for’
strangling an elderly woman at’a Hous-

ton apartment complex where he had

been dismissed as a maintenance |

worker. ee
_ The 38-year-old prisoner, Edward El-
lis, was put to death after the United
States Supreme Court refused on Mon-
day night to grant a stay based on his’
lawyers’ claim of new evidence that:
another man, who died a year ago, was"
the killer.:: x: cs apriens
The victimgof the slaying was Bertie
Elizabeth Eakens, 74, who was found
strangled in her bathtub at a complex.
where Mr. Ellis had earlier been’ dis-
chared on suspicion of stealing. from
apartments. Mrs. Eakens’s killing was
one of three in 1983 that became known
as the Houston bathtub slayings.’ Mr.
Ellis was not implicated in the others. |
The motive was robbery, the authori-
ties said. Jewelry, checks. and “Mrs, :
Eakens’s Cadillac were stolen. Prose-

cutors Jater contended that Mr. Ellis’s.

fot i pessy “betas ces PRR SY pec
fingerprints had been found on the door.
“to the victim's apartment, and that.he.
had been seen driving:a car like hers;
‘and selling jewelry like the items taken:
from her homes) (Giyid oeaha

...... A Claim of Innocence © 1S
+ Intheir appeals, Mr. Ellis’s lawyers:
'.contended that another man had killed:

several years ago, when he. was in
prison, .The letter was addressed to his,

wife, who was illiterate.

‘We did not. know about this evi-
dence,.and we did not make this up,’’:
said-one of the lawyers, Mandy Welch!
of the Texas. Resource Center, which
provides legal help, to prisoners. on’
death row. “If we had known about it,

Mrs. Eakens. In the last of those ap-:
-peals,: they said, they. had obtained a:
letter of confession written by that man! |

BARE oP oe *
Associated Press. -

Edward Ellis

execution date to-bring it up.” . -.

But the courts upheld the conviction
-and sentence, and the Supreme Court
late Monday declined to issue a stay. :

Mr, Ellis became the 46th person

we would not have waited: until an,

executed in Texas since the Supreme.

Court in 1976.allowed the resumption of
capital punishment. The total is the
highest of any state.

#
3 tA

____ WEDNESDAY, MARCH 4 199.

‘ Kr0u NTT?

Death row appeals
reveal inconsistencies

BY'AARON EPSTEIN. :
Mereury News Washington Bureau ¥

‘WASHINGTON — Both were
convicted murderers on‘ death
rdw in Texas. Both presented the
Supreme Court with new evi-
dehcé at the 11th‘hour to support
their claims of innocence.

lowed to live while the Supreme
Cofirt ponders the fundamental
constitutional issue raised by his
cdse. ,

The other, Edward A. Ellis,
was executed this week, leaving
béhind a stark example of current
inconsistencies — some say injus-
tiees — in the treatment of death-
row cases. |

‘Actually, both men would. be
dead if it were up to the Supreme
Court, which in recent years has
bécome increasingly impatient
with execution delays and has
sharply curbed the power of fed-
eral courts to review state crimi-
n4l convictions. oo

‘Late last month, the conserva-
tive Supreme Court justices
agreed to consider Herrera’s con-
stitutional issue:

‘Does the Constitution forbid
the execution of a convicted mur-
derer who actually is innocent
and, if so, how should the courts
weigh claims of innocence?.

‘But the constitutional review
was no solace to Herrera. Herrera
got the four votes that are needed
to-put a constitutional issue on
the Supreme Court calendar. But
he could not get the five votes
néeded to stay an execution. Only
the subsequent intervention of
tywio state judges kept Herrera
alive.

Impatient Supreme Court

“This is a Supreme Court that
has lost any toleration for state
prisoners generally and state
prisoners on death row in partic-
ular,” said American University
law Professor Ira Robbins, an au-
thority on the federal appeal pro-
céss designed to protect prisoners
against state injustices.

“The Supreme Court is saying,
‘We don’t want to be the backstop
fdr the state courts anymore.
Right or wrong, it’s up to them.’ It
means federal courts must keep
their hands off. But what harm
would there have been to hold
one case (Ellis) for the outcome of
the other (Herrera)?”

“Herrera, 44, had been sched-
uled to die for the murders of two
pdlice officers in 1981. His law-
yers recently submitted affida-
vits stating that his brother, the
late Raul Herrera, actually com-
m{tted the crimes. The most sig-
nificant affidavit came from Raul
Herrera Jr., who said he saw his
father kill the policemen.

“The 5th Circuit U.S. Court of

4This is a
Supreme Court |
that has lost any °

toleration for

~ ‘One, Leonel E. Herrera, was al-

state prisoners
generally and
state prisoners on
death row in

particular. 9

— Ira Robbins,
American University

' Appeals denied Herrera’s request

for a hearing on the new evi-

dence. ‘‘Herrera’s claim of ‘actual

innocence’ presents no... sub-
stantial claim for relief’? under

federal law, the court said.
‘But Justices Harry Blackmun,
John Paul Stevens, Sandra Day

O’Connor and David Souter
agreed to hear Herrera’s constitu-
tional arguments.

Ellis, 38, was convicted of

strangling a 74-year-old women
in her bathtub. In recent weeks,
his lawyers uncovered a hand-
written note, allegedly written by
the late Pablo “Lucky” Alonzo to
his wife, in which Alonzo con-

-fessed: “I have to say that I killed

the poor woman that Eddie is
blame (sic) for.”

Suspicious evidence

Three federal appeals judges
said they could “not retry facts
already found by state courts.” It
made no difference, they said,
that the Supreme Court had de-
cided to review the Herrera case,
“especially in view of the high
court’s refusal to grant a stay of
execution.”

And they agreed with a state
court’s conclusion that the Ellis
affidavit and supporting docu-
ments ‘‘were suspect.”

Only Justices Blackmun and
Souter wanted to grant him a
stay, of execution to await a Her-
rera ruling. Ellis was executed by
lethal injection a few hours later.

“Actually, the evidence of in-
nocence in the Ellis case was
stronger than it was in Herrera,”
said defense lawyer Lynn B. Lam-
berty, who filed Ellis’ Supreme
Court petition. ‘A written confes-
sion is pretty compelling. What-
ever one thinks of its credibility,
it. was a case that cried out for a
hearing.”

But Robert Walt, the state
prosecutor in the Herrera’ case,
said he was “amazed that Herre-
ra received a stay.”

9A°

_ San Jose Mercury News m Saturday, March 7, 1992 .

ES et

Man executed despite
story another did it

HUNTSVILLE, TEXAS A maintenance
man convicted of strangling a,74-year-

_ old woman in 1983 was executed by,
injection early Tuesday, despite his law- |
yers’ claims to have new evidence that

‘another man, now dead, committed the

crime.

after the U.S: Supreme Court refused a)
last-minute stay. ;

“T just want everyone to know I think
the prosecutor and Bill Scott are some |
sorry sons of bitches,” he said in a final |
statement. Scott was a former inmate |

who testified against Ellis.

- ee eaT
Tuesday afternoon -
MARCH 3, 1992

Edward Ellis, 38, was put to death | Lo

bl og

‘baa |

Furs

out

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‘IU

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| stolen.

| Texas executes |
| | robber-murderer

ASSOCIATED PRESS

maintenance man convicted of
strangling a 74-year-old woman
was executed by injection early
|| Tuesday despite his lawyers’
|| claims to have new evidence that
_} another man, now dead, commit-
ted the crime.

Edward Ellis, 38, was put to
| death after the U.S. Supreme
Court refused a last-minute stay.

| “I just want everyone to know I

think the prosecutor and Bill Scott
are some sorry sons of bitches,” he
said in a final statement. Scott was
a former inmate who testified
against Ellis.

| 7
| HUNTSVILLE, Texas — A

_ Ellis was condemned for the
1983 slaying of Bertie Elizabeth
Eakens, who was found dead in her
bathtub at the apartment complex
where Ellis had been fired as main-
tenance man.

: | strangled with a pillowcase. Jewel-
ry, checks and her Cadillac were

In their appeals Monday, Ellis’
| | lawyers contended a man who died
; | ayear ago killed Eakens. fp: A. 7

She had been handcuffed and :

9 SRR par erent

* Tuesday, March 3, 1992

Texas Executes Man
For 1983 Strangling |

Huntsville, Texas — A man was

[SAA Frantiscc.

Chronicle

executed by injection early yester-
day for strangling a 74-year-old

woman in her bathtub at an apart- |
ment complex where he had been...
fired as a maintenance worker. , 1
-. Edward Ellis, 38, went -to’his ©

Court refused a last-minute stay.

. His, lawyers claimed Monday to
have new. evidence that another —
man, who died a year ago, was the

culprit. - 3 .

i sebp GD: |

death after the U.S. Supreme

{

35 *

' Bill Scott are some sorry sons o

om ' - . ae -# * we PA a 1 i | ,
~Inmate put to death for. strangling woman .

_‘T just want'éveryone to know I think’ the progécuts

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” he said in a final .
0 testified against Ellis.
ying of Bertie

n her bath
had been fired.

f bitches,

tub at the

David Helfond vented his sexual frustration
by strangling governor’s ex-wife.

combed the surroundings for any

usable prints. Due to no signs of forced
entry, investigators surmised that the
perpetrator probably was known to the
victim, or used some kind of ruse to
gain her confidence.

Upon completion of the crime scene
search, investigators began interview-
ing tenants in an attempt to unravel
any clues. A male tenant told investi-
gators he spotted a woman standing
near Kottler’s 1979 light-green
Thunderbird holding a tire tool shortly
before 8 o’clock. The tenant alerted
security officers, but when they arrived
the woman was gone. ‘He provided a

vague description of the woman who

he said appeared to be a drifter.

The slain woman’s son confided that
his mother’s purse containing business
cards, car keys and a small amount of
money was missing. On the other
hand, jewelry valued at $6,000
remained on her body. For the time
being, robbery was ruled out.as a

a burglar would have noticed the
jewelry and surely would have taken

it. However, homicide investigators.

are well trained to never accept
anything at face value.

The body was removed from the
scene and transported to the Harris
County morgue for an autopsy.
Tenants who lived in the complex
failed to provide any information as
to what had caused the woman’s
demise. With no possible evidence,
investigators and the crime lab
technicians departed the scene. Later
that day, homicide detectives would
conduct a follow-up investigation on
the case, but before they got started
they were summoned to Brittany Place
Apartments around 5:15 that evening,
located a short distance from where
the first slaying occurred.

. When detectives arrived at Apart-
ment 19, the clad body of 74-year-old
Bertie Eakens lay face-down in a tub
of water, handcuffed behind her back.
A coroner on the scene reported that
the victim had suffered a severe
beating prior to her death. The
woman’s head was bound in a bloody
pillowcase. Detectives at the scene

motive because investigators felt that: were J.C. Mosier, C.W. Kent, Kerry

Novack, S.P. Ward, J.G. Burmaster,
Gilbert Schultz, and Roy Ferguson.
These officers were well equipped and
well-trained to assimilate any trace of
evidence which they would then

Anthony Ellis, a self-perpetuating crime ma-
chine whose road led to the gas chamber.

attempt to piece together to form a °

picture of what might have occurred
to cause the victim’s demise. Hope-
fully, this picture would also point out
the suspect. Detectives theorized that
the slayings were connected, but they
needed all the evidence they could

gather in order to affirm if the same | _

culprit was responsible. There was no

indication of forced entry.
A maintenance worker at the,

apartment told detectives he became
concerned when he hadn’t seen Mrs.
Eakens since Sunday evening. His
anxiety increased when a tenant told
him that he heard a loud noise that
came from Eaken’s apartment on
Sunday.

‘Crime lab:technicians. combed every
inch of the apartment, hoping they’d
find any clues carelessly left behind
by the perpetrator. A fingerprint
expert was successful in lifting a set
of prints off the front door.

Relatives reported that Eaken’s 1982
cream-colored Cadillac was missing.
An alert was issued both local and
nationwide for all law enforcement
agencies in case the car was spotted.

(continued on page 36)

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failed to stop. The high-speed chase
came to a halt when Ellis slammed the
brakes on his car, leaped from the
vehicle and ran to a house where he
jumped a fence. Both officers drew
their weapons and ordered him to lie
on the ground. He was taken into
custody and lodged in the county jail.

Houston authorities traveled to San
Antonio to transfer the suspect into
their custody. San Antonio authorities
relayed considerable information to
detectives that Ellis had tried to sell

'Eakens’ Cadillac to the owner of a

paint and body shop. A week later the
stolen car was discovered in San
Antonio beneath a bridge in a pit,
burned to a crisp. Investigators failed
to obtain any clues due to the condi-
tion of the car.

Late that evening Ellis was returned
to Houston and lodged into the city
jail pending formal charges. Despite
several interrogations, detectives
failed to elicit any statement from the
shaggy-beard suspect. He was ques-
tioned concerning the deaths of Ruth
Kottler and Elizabeth Faubus, but Ellis
denied any involvement in those
slayings. Confronted with the eviden-
ce, he responded by saying he had no
knowledge of how his fingerprints got
there. Obviously, he was con-wise and

_vehemently denied he killed Bertie

Eakens.

Charges of capital murder were
brought against the 29-year-old ex--
convict. News of Ellis’s arrest attracted
public attention because it was thought
he was responsible for the other two
bathtub slayings. Apparently, he
wasn’t because detectives investigating
the murder of Elizabeth Faubus had
nearly struck paydirt.

The break came in the form of a
telephone call from a married couple
who related that on the day of the
murder they had visited with Mrs.
‘Faubus around 2:15 to discuss the
possibility of purchasing furniture she
had for sale. Knowing that a telephone
call could easily be a hoax, detectives
asked them to appear in person. |

Upon their arrival at the homicide
division, they said a man named
““Don’’ was there. ‘‘When we left, he
was still there. He was acting real
strange,’’? the woman replied. They
further said that, the man was driving
a yellow Porsche with Florida license
plates. They described the man as
white, average built, thin mustache,
in his mid 20’s, with wavy brown hair.

Again, detectives were aware that
there were enough ‘‘Dons’’ in Houston
to start a Vietnam War. However, they

felt an urge to question him because
he was possibly the last person at
Faubus’ house during the time in’
question. ae

“If the time is correct, he’s a good
suspect,’’ Mosier speculated. He was
referring to the fact that the woman
was discovered at 3 o’clock, and the
couple had said that they left the man
there at 2:30 that afternoon. Who was
Don, detectives wondered.

Detectives pursued another angle
when they questioned everyone who
Faubus had transacted business with
on that tragic day. A check stub
discovered in her purse written out to
Woodlake Apartments warranted
attention..

Detectives fanned out through the
Woodlake subdivision to learn which

apartment she had dealt with. They

located Tanglewilde Apartments in the
particular area. The apartment
manager disclosed that'a man from

Florida named Don who owned a

Porsche lived adjacent from where the
apartment Mrs. Faubus was going to
rent. Unfortunately, the man was not
home. Instead they left word with his
girlfriend to contact the homicide
division.

An hour later the man visited with
detectives. He answered the descrip-
tion as being the man last seen at
Faubus’ house. Despite a lengthy
interrogation, he denied any compli-
city in the case.

“I went there to look at the furni-
ture she had for sale, and’when I left
she was fine,’’ he responded in a calm
voice. ‘‘She was very nice. I have no
reason to harm her.”’

When they asked if he’d mind
submitting to a polygraph test and

authorize them. to search his -vehicle,
the suspect refused. Under Texas law,
a-person has the right-to decline a
polygraph test or refuse to have his
property searched. It would take a
court order to search his property.
Suspicion aroused because detec-
tives knew very well if he had nothing
to hide, he would have voluntarily

‘ agreed. Still, they had to release him.

But he remained a prime suspect.
They began checking his back-
ground by ‘introducing his fingerprints
into the NCIC (National Crime
Information Center). It was a correct
assumption. The man’s name was not
Don Woods. The computer revealed
him to be 25-year-old David Scott
Helfond wanted for three felony
warrants in Florida. Metro Dade police
in Miami had warrants issued in
October, 1982, for burglary, attempt-
ed sexual battery, kidnapping and pa-

_ role violation. In 1974, Helfond was

sentenced to 30 years in prison for

raping an 11-year-old girl in Miami, .

of which 15 years were probated. In
Mid-August, 1980, he was granted a
day-long furlough to visit his family.
During the visit, he sexually assaulted
two women in their homes.

Police arrested Helfond immedia-
tely. In a plea bargain, the district
attorney agreed to sentence him to an
additional 30 years to serve concurren
with the first sentence.

Dade County Prosecutor John
Hogan told Houston authorities that
Helfond was returned to the Miami
Department of Correction, but
meanwhile a state district judge had
made an error involving the rape of
the 11-year-old girl by reducing his first
30-year sentence to 15 years. Based on
that issue, Helfond was paroled in
October, 1982.

Shortly after his release, the young
sex monster sexually assaulted another
woman and fled the state in his
stepfather’s Porsche. Detectives set up
surveillance around his apartment.
Somehow he had vanished. Instead,
the car remained parked in the
driveway.

Late Wednesday evening on March

_ 9th, Helfond’s girlfriend hopped into

the car and exited on the Southwest:
Freeway. Detectives in unmarked
vehicles followed behind her. A police
helicopter joined in the search in case
detectives lost track of the vehicle
through the jammed traffic. She exited
off on Kirby Drive and headed to

LaQuinta Motel — room 262. Detec-

(continued on page 41)

ee ee ae ees

A Harris County coroner reported

that the woman appeared to have been’

strangled. The conclusion of an
inventory of contents in the house

conducted by relatives reported that -

jewelry valued at $5000 was missing.
Detectives questioned tenants, but they
learned nothing of significant impor-
tance as to why the woman was slain.

The following morning detectives set
in motion to probe into the personal
lives of both victims. A background
check into the once daily life of Ruth
Kottler revealed she was a widow who
managed Benjamin Franklin Loan
Company since 1980.

“I. don’t believe she had an. enemy
in this world,”’ her son said in a tearful
voice. Neighbors described her as a
very sweet person, ‘‘It’s a shock to
us,’’ a co-worker lamented.

Detectives learned Mrs. Eakens was
twice divorced and had no children.
Neighbors described her as a flashy
dresser who wore expensive jewelry
every day. ‘‘Why would someone kill

_ a helpless woman like Mrs. Eakens,’’

a friend asserted.
Detectives were baffled as to why

the women were slain in their bath- .

tubs. ‘‘People will kill for jewelry and
a $16,000 Cadillac, but if both cases
are related; then why was nothing of
value taken from Kottler’s house??’
Detective Burmaster wondered.

On March 3, 1983, an instant replay
occurred. The estranged wife of
former Arkansas Government Orval
Faubus was found dead in a bathtub
in her $250,000 mansion. A friend of

the family discovered the body at 3.

p.m. when he arrived to help the
woman move a piano. The woman was
identified as 44-year-old Elizabeth
Faubus.

The same squad of detectives who
investigated the previous bathtub
slayings were notified of the find after
uniformed officers confirmed that it
indeed was a homicide. Shortly
thereafter, a coroner followed by
crime lab technicians descended upon
the scene. Anything resembling a clue
was meticulously collected and tagged
as evidence.

She was nude, face-down in a tub
of water. Detectives surmised that the
murder very easily could have been
sexually motivated. However, they
were aware that killers with a different
motive had been known to deliberately
make a murder look like a sex crime;
therefore they weren’t prepared to
make a final conclusion. They’d wait
for an autopsy.

The coroner reported that the

woman suffered multiple head injuries
prior_to being slain. There were no
signs of forced entry, nor was the
house out of its prospective order.
Mosier told news reporters that the
once prominent woman apparently
was attacked in the living room, then
dragged to the bathtub where she was
murdered. Mrs. Faubus, who lived
alone, was last seen alive around 9
o’clock the previous evening by her
neighbors.

“‘Do you feel these slayings are
related?’’ a reporter asked.

Mosier shrugged and replied, ‘‘It’s
fair to say they might be, but we’re

not sure.’ -

When the coroner had completed his
work, the body was removed from the
scene to the Harris County Medical
examiner’s office for an autopsy.

From all interviews, detectives
managed to piece together an accurate
description of the victim. Mrs. Faubus
was in the final process of a divorce
from her husbarid, and her mansion
was up for sale. The divorce had ended
in a friendly relationship between the
couple. She married former Arkansas
Governor Orval Faubus in 1969.
Faubus served as governor from 1954
until 1966. Shortly after their marria-
ge, the couple moved from Little Rock
to Huntsville, Arkansas, where they
lived in virtual seclusion until they
moved to Houston.

Quite naturally, the citizens residing
in the area where the slayings occurred
were alarmed and frightened. They felt
this act of violence could be repeated
again. At the same time, detectives
working on the cases were receiving
an extensive amount of false informa-
tion sending them down dead-end
trails.

The following week Harris County
Medical Examiner Pat Harris affirmed
that. neither victim had been sexually
assaulted, but they all had suffered
multiple head injuries and cause of
death resulted from manual strangu-
lation.

. The days dragged by with no new
developments in the cases. On Sunday,
March 8th, an anonymous caller
provided detectives the first break in
one of the slayings. The unidentified
caller said, ‘‘In the Bertie Eakens
murder case, start looking for a guy
named Eddy.’’ With equal sincerity,
detectives felt this information was
stretchy — very slim indeed because
Eddy could be one of a million people
living in Houston.

A tenuous clue surfaced when
detectives remembered that the

manager at the Complex where Eakens
was killed had told them that someone
had stolen keys from the office,
including a key to Eakens’ apartment.
Now they figured it was time to
question tenants again at the complex.

They learned that Edward Anthony
Ellis, nicknamed ‘‘Eddy,”’ had been

fired and evicted last September. The °

manager confided that Ellis had been

fired because he was suspected in a,

rash of apartment burglaries. She
further related that Ellis was a very
polite, intelligent young man who was
nice to everyone.

As the investigation progressed, two
witnesses told detectives that they saw
Elllis driving a late-model yellow
Cadillac shortly after the woman was
discovered slain. The description
matched the vehicle stolen from the
woman’s residence. ‘‘I’ve never known
him to own a Cadillac,’ the witness
said. Still, this information didn’t

’ prove he was responsible for the crime.
’ They needed concrete evidence.

Ellis wasn’t a stranger to the judicial
system because he’d served four years
in the Texas Department of Correc-
tions for a 1971 burglary conviction
in Kendall County, Texas. He was
wanted on an aggravated assault
charge in San Antonio after he failed
to appear in court.

On February 12th, 1983, Houston

police officers responded to a family
quarrel between Ellis and his wife.
Officers searched the house and
confiscated several firearms. After
checking the identification numbers,
police learned the guns were stolen
during a burglary of two hardware
stores. Ellis was indicted by a Harris
County Grand Jury on felony theft
charges, and a warrant was issued for
his arrest. By this time, he had been
released on bond in San Antonio
involving the aggravated assault
charges. The fingerprints recovered

from Eakens’ apartment matched with

Ellis’ prints on police files.

Authorities received another tip that
Ellis was living with relatives in San
Antonio. A teletyped copy of the
felony theft warrant was forwarded to
Bexar County Sheriff Department,
and further information that Ellis was
a prime suspect in a homicide case.
Bexar County Detective Fred Moreno
assisted by his patrol partner staked
out Ellis’ relatives’ house.

On Tuesday evening, March 7th, he
arrived in a vehicle alone. Ellis spotted
the officers and raced away with the
officers in pursuit. Several shots were
fired at the vehicle, but the suspect

cnr ern SR St ttc ete ane 3 SiO ENNIO a siartie ene eanidimeteNteteine

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jumped
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their cu
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stolen
Antoni
burned
to obta
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there w:
to start

838 873 FEDERAL REPORTER, 2d SERIES

sippt, 472 U.S. 320, 827, 105 S.Ct. 2633,
2638, 86 L.Ed.2d 281 (1985)). The Court
noted that, as before, when a state court
addresses the merits of a claim as an alter-
native basis for denying relief, a federal
court is bound by the state court’s reliance
on the procedural bar. Harris, — USS. at
— n. 10, 109 S.Ct. at 1044 n. 10.

[3,4] In the state habeas corpus pro-
ceeding, the trial court held that Ellis had
not preserved properly his claims for re-
view. The court based its holding on the
fact that Ellis had failed to raise the suffi-
ciency of the evidence argument on direct
appeal as required by Ex parte McWil-
liams, 684 S.W.2d 815, 818 (Tex.Crim.App.
1980), cert. denied, 459 U.S. 1036, 103 S.Ct.
447, 74 L.Ed.2d 602 (1982), and that he had
failed to object to the composition of the
grand jury at the earliest time possible as
required by state law. See Tex.Code Crim.
Proc.Ann. art. 19.27 (Vernon 1977); Muniz
v. State, 672 S.W.2d 804, 807 (Tex.Crim.
App.1984). The trial court then found, in
the alternative, that each of Ellis’s conten-
tions failed on its merits. The Court of
Criminal Appeals denied relief without
written order.

Ellis made no effort either in this court
or in the court below to avoid imposition of
the procedural default doctrine by showing
that good cause existed for his failure to
comply with the state rules and that actual
prejudice resulted. Wainwright v. Sykes,
433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53
L.Ed.2d 594 (1977). He does, however, ar-
gue that his failure to make a timely objec-
tion to the composition of the grand jury
should be excused since, while his case was
pending, the Supreme Court decided a case
in which it held that the systematic exclu-
sion of members of an identifiable group
was a defect of constitutional magnitude.
See Vasquez v. Hillery, 474 U.S. 254, 106
S.Ct. 617, 88 L.Ed.2d 598 (1986). We find
no merit in this argument. Vasquez was
by no means the first case to hold that
racial discrimination in the selection of
grand jurors is constitutionally impermissi-

3. Because Ellis uses the same arguments and
authorities to support each of his claims, we

ble. See, @9., Rose v. Mitchell, 443 US.
545, 99 S.Ct. 2993, 61 L.Ed.2d 789 (1979);
Cassell v. Texas, 339 U.S. 282, 70 8.Ct. 629,
94 L.Ed. 889 (1950); Smith v. Texas, 311
U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940).
Accordingly, we hold that Ellis’s claims are
barred procedurally; however, we add a
brief discussion of their lack of merit also.

A. Sufficiency of the evidence

[5] The indictment alleged that Ellis
“caused the death of Bertie Elizabeth Ea-
kins by asphyxiating the complainant in a
manner and means unknown to the Grand
Jury.” Given this allegation the state was
required to prove beyond a reasonable
doubt that the grand jury, after efforts to
do so, was unable to find out the manner
and means by which the victim was asphyx-
iated. See Brown v. State, 704 S.W.2d 506,
508 (Tex.App.—Dallas 1986, pet. ref’d) (cit-
ing Clark v. State, 151 Tex.Crim. 388, 208
S.W.2d 6387, 638 (App.1948)). Ellis con-
tends that the state’s evidence was insuffi-
cient in this regard. If this raises a federal
due process question, it lacks merit be-
cause the state proved by convincing evi-
dence that the grand jury was indeed un-
able to discover the manner and means by
which the asphyxiation occurred.

B. Exclusion of Hispanics from the
grand jury

[6] Ellis contends that Harris County
systematically excludes Hispanics from
serving as grand jurors and as grand jury
foremen and that this violated his constitu-
tional rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments.’ In order to
secure federal habeas relief on this ground,
the petitioner must show (1) that he is a
member of a race or identifiable group
singled out for different treatment under
the state laws, as written or applied, (2) the
degree of underrepresentation of his group
by comparing the proportion of the group
in the total population to the proportion
called to serve as grand jurors over a sig-
nificant period of time, and (8) that the

discuss these issues together.

ELI

Cite as &

selection procedures employed are su:
ble to abuse or are not racially n«
Castaneda v. Partida, 4380 US. 48:
97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 +
The state concedes that Hispanics «
tute a recognizable class singled 0:
different treatment under the law an
the Texas “key man” method of se!
grand jurors is recognized as suscep!
abuse as applied. It argues, howev«
Ellis failed to present competent e\
that showed that Hispanics have nc
represented on Harris County gran¢
over a significant period time in pro
to their numbers in the general pop:
We agree. The “evidence” Ellis pré
in support of his claim was conclu:
best. This court has held that mere
sory allegations of discrimination ar:
ficient to entitle an individual to
Enriquez v. Procunier, 152 F.2d 1
(5th Cir.1984), cert. denied, 471 U.s
105 S.Ct. 2658, 86 L.Ed.2d 274 (19

{7] Ellis’s own figures on com;
of the grand jury do not entitle
relief. Ellis contends that Hispani:
prised only 13.7% of those summo:
grand jury duty from February
November 1982. The state cens
reau’s figures, offered by the stat
sponse to Ellis’s habeas corpus app
show that in 1980 Hispanics co
15.8% of the Harris County pop
This disparity (1.6%) is insufficient
port an inference of intentional dis
tion.

IV. Jury Instructions

[8] Ellis asserts that the tric
erred in failing to define the term ‘
ately” in its instructions to the jur
argument is meritless. Both this cc
the Texas Court of Criminal Appe:
held that the word “deliberately’
common meaning is sufficiently «
allow the jury to decide the specia
on punishment. Thompson v. L:
821 F.2d 1054, 1060 (5th Cir.), cert.
483 U.S. 1035, 108 S.Ct. 5, 97 LE:
(1987); King v. State, 553 S.W.2d
(Tex.Crim.App.1977), cert. denied,
1088, 98 S.Ct. 1284, 55 L.Ed.2d 79

ELLIS v. LYNAUGH 839
Cite as 873 F.2d 830 (5th Cir. 1989)

tion procedures employed are suscepti- V. Effective Assistance of Counsel
ble to abuse oF ae ae sere neutral. [9] Ellis next alleges that his attorneys
lege pot ne on 4 od pee na rendered ineffective assistance both at trial
dea ’ , ” pbx cent ( ) and on appeal. To prevail on such a claim,
The state concedes that Hispanics consti- , ’
tute a reco nizable class singled out for a defendant must show that counsel's per
; g : 8 formance was deficient—or unreasonable
different treatment under the law and that. }; +i .
the Texas “ke man” method of sebastien in light of prevailing professional norms—
: ey ; ; S and that the deficiency prejudiced the de-
grand jurors 1s recognized as susceptible to f Strickland Washingt 466
abuse as applied. It argues, however, that ve @ 68 ees oe 40.8 ne BEE, an 30
Ellis failed to present competent evidence LEd od eT4 (1984) We are scenes 4 af
that showed that Hispanics have not been ae mee :
represented on Harris County grand juries erent me a aL of nee 8 aa
over a significant period time in proportion Oath rm mae shed effort to elimr
to their numbers in the general population. nate “the distorting effects of hindsight.
We agree. The “ evidence” Ellis presented Id. at 689, 104 S.Ct. at 2065. We measure
in support of his claim was conclusory at appellate counsel’s effectiveness by this
pest. This court has held that mere conclu- ape oar ; ad v. nes 783
2d 487, 497 (5th ir.), cert. enied, 478

sory allegations of discrimination are insuf-
ficient to entitle an individual to relief. US. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 7238

selec

Enriquez v. Procunier, 752 F.2d 111, 115 (1986).
(5th Cir.1984), cert. denied, 471 U.S. 1126,
105 S.Ct. 2658, 86 L.Ed.2d 274 (1985). A. Trial Counsel
[7] Ellis’s own figures on composition Ellis maintains that he received ineffec-

of the grand jury do not entitle him to tive assistance at trial due to counsel’s
relief. Ellis contends that Hispanics com failure (1) to investigate the case adequate-
prised only 13.7% of those summoned for Jy, (2) to presertt the defense of insanity, (3)

grand jury duty from February 1978 to to ascertain the names and addresses of

November 1982. The state censit bu- witnesses against Ellis and to interview the

reau’s figures, offered by the state in re same, (4) to object to the racial composition
sponse to Ellis's habeas corpus application, of the petit and gran d juries, (5) to request
lesser included of-

ae that i eid ae ue a jury instruction on
nee aepoes a“ y at ation. fenses, and (6) to request a jury instruction
This disparity (1.6%) is insufficient to SUP- on the term “ deliberately.” In his state

port an inference of intentional discrimina- ort petition for habeas relief, Ellis al-

— leged these same deficiences on the part of
. his attorneys. The trial court ordered de-

IV. Jury Instructions ' ee tek 4
fense counsel to submit affidavits mm re-

8] Ellis asserts that the trial court sponse to the claims and, based on those
erred in failing to define the term deliber- affidavits, the trial court made numerous
” ately in its instructions to the jury: This findings of fact concerning the attorneys’
2 argument 1s meritless. Both this court and ;

a Rss" performance. According to 28 US.C.

me the Texas Court of Criminal Appeals have § 2254(d), we presume the state court’s

2 held that the word “deliberately” in its ¢, dings to be correct

common meaning is sufficiently clear to — °

allow the jury to decide the special issues The district court addressed at length
each ground of error that Ellis raised be-

n on punishment. Thompson Vv. Lynaugh,

re 821 F.2d 1054, 1060 (5th Cir.), cert. denied, fore deciding that this claim was without

ie 483 U.S. 1085, 108 S.Ct. 5,.97 L.Ed.2d 794 merit. Our review of the record convinces
State, 553 S.W.2d 105, 107 us that no other result could have been

(1987); King v.
(Tex.Crim.App-1977), cert. den
1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978).

ied, 434 U.S. reached. Therefore, for those same rea-
sons given by the district court, we con-

would

rioning
re was
ter he
on the
g”’ con-
oss and
ar, Ellis
‘ly sug-
ded to
y avoid
was to
~’s oath.
hat the
vhich it
usal to
thod to
‘oreed to
h penal-
rt then
ror was
result
not with

| COures
1 As we
oxplained
tset that
jling con-
ild not be
that law.
accurate
the pros-
no to one
to prevent
aposed, he
aired to be
‘the special
ests that
e counsel’s
caswers giv-
since those
1 as a juror
ions should
Given the
| the right,
ursue a line
‘h out [Brad-

|
-e Gray v. Mis-
‘5, 2055-57, 95

Si at SI ACE IM

ELLIS v. LYNAUGH

837

Cite as 873 F.2d 830 (Sth Cir. 1989)

shaw’s] true views.” O'Bryan v. Estelle,
114 F.2d 365, 382 (5th Cir.1983), cert. de-
nied, 465 U.S. 1018, 104 S.Ct. 1015, 79
L.Ed.2d 245 (1984). .

Bradshaw’s responses to defense coun-

sel’s questions are best understood in the
context in which they were given. Defense
counsel had asked Bradshaw to assume
that he had already taken the oath—to
assume that he had sworn to return a
verdict based on the law and evidence.
Quite understandably, then, when defense
counsel asked him what he would do if the
evidence convinced him beyond a reason-

: able doubt that the punishment issues
should be answered affirmatively, Brad-
shaw answered that he would answer
truthfully. To do so undoubtedly would do
violence to his conscience; not to do so,
however, would subject him to the criminal
consequences of violating his oath.

When the court began asking Bradshaw
questions of its own in an effort to resolve
the conflict in his answers, it became ap-
parent that he was still operating under the
same assumption imposed by defense coun-
sel. Bradshaw told the court that, if he
had to take the oath for some reason, he
would answer the questions truthfully.
The trial court, seeing Bradshaw’s confu-
sion, reminded him that no one would be
forced to take the oath if to do so would do
violence to that person’s conscience and
4 soul. It was against this backdrop that
G Bradshaw stated that he would refuse to
take the oath. We see no error here. See
Lockett v. Ohio, 488 U.S. 586, 595-96, 98
S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978).
Contrary to Ellis’s assertion that the trial
court’s remarks were designed to suggest
an escape hatch for a troublesome venire-
man, we believe that the court’s comments
were intended to and did enable Bradshaw
to give a clear statement of his position so
that the trial court could better assess his
qualifications. Because the trial court
clearly could have been “left with the defi-
nite impression that [Bradshaw] would be
unable to faithfully and impartially apply
the law,” Witt, 469 U.S. at 426, 105 S.Ct. at
2. Because we have determined that the trial

court did not engage in improper questioning of
Bradshaw, we do not address Ellis’s claim that

853, we hold that the state’s challenge for
cause was granted properly.”

III. Procedural Default

The state argues that Ellis raises three
issues on appeal that are barred from con-
sideration on the merits due to his failure
to comply with state procedural rules.
Those issues are (1) his challenge to the
sufficiency of the evidence to support the
indictment’s allegation that the manner and
means of the victim’s asphyxiation were
unknown to the grand jury, (2) his claim
that Hispanics were excluded systematical-
ly from serving on grand juries in Harris
County, Texas, and (3) his claim that His-
panics were excluded systematically from
serving as grand jury foremen on those
same grand juries.

[2] In the recent case of Harris v.
Reed, — U.S. ——, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989), the Supreme Court
made clear that the “plain statement rule”
of Michigan v. Long, 463 U.S. 10382, 1038
S.Ct. 3469, 77 L.Ed.2d 1201 (1983), applies
to cases on federal habeas review. Under
Long, review of an issue of federal law is
barred if the state court’s opinion contains
a “plain statement” that its decision rests
upon adequate and independent state
grounds. 468 U.S. at 1041, 108 S.Ct. at
3476. If a state court’s reasons for reject-
ing a claim are ambiguous, however, feder-
al review is not precluded. Jd., 103 S.Ct. at
3476-77. In Harris, the Supreme Court
recognized that the problem of ambiguous
state court references to state law is com-
mon to both direct and habeas review. It
therefore adopted “a common solution” to
this problem: “a procedural default does
not bar consideration of a federal claim on
either direct or habeas review unless the
last state court rendering a judgment in
the case ‘clearly and expressly’ states that
its judgment rests on a state procedural
bar.” Harris, — U.S. at —--——, 109
S.Ct. at 1043 (quoting Caldwell v. Missis-

the trial court’s findings are entitled to no pre-
sumption of correctness under 28 U.S.C.
§ 2254(d).

836

know if you take the oath that you will
[sic] a true verdict according to the law
and the evidence submitted to you, that
you are going to have to answer those
questions one way or another. And the
question they are trying to determine is
if it gets down to answering those ques-
tions and you have already taken the
oath now, you see what I am saying?
And you have got to answer those ques-
tions one way or another and you have
got some feelings against the death pen-
alty and at one point in time you said you
don’t believe in the death penalty.
THE VENIREMAN: I don’t but I have
to tell the truth, too.

THE COURT: What you are saying—
THE VENIREMAN: I’m going to follow
it.

THE COURT: No matter whether it does
injury to your conscience and your soul
or not?

THE VENIREMAN:
have to do because—
THE COURT: You don’t have to.

THE VENIREMAN: I’m not going to
lie.

THE COURT: But you don’t have to. If
your feelings are so strong—we are try-
ing to find out how strong your feelings
really are and we are not arguing about
it.

THE VENIREMAN: I understand that.
THE COURT: We need to find out how
strong your feelings really are. If your
feelings are strong enough that if you
take the oath and you are going to follow
your oath and it is not going to do dam-
age to your own conscience and your
own soul and if you are convinced be-
yond a reasonable doubt both of those
questions should be yes knowing full
well if you answer them yes that I am
going to assess the death penalty, then
you could do that?

THE VENIREMAN: If I took the oath,
yes, sir, I would have to answer honestly.
THE COURT: The next question: would
you take the oath?

If that’s what I

1. Were we to conclude that the trial judge en-
gaged in impermissible conduct, we would not
be able to conclude, as did the district court,

873 FEDERAL REPORTER, 2d SERIES

THE VENIREMAN: No, then I would
have to put myself in a situation.

Ellis maintains that, by questioning
Bradshaw as he did, the trial judge was
working “to disqualify the juror after he
had shown he [was] qualified to sit on the
jury” and that this “judicial meddling” con-
stituted a violation of his due process and
equal protection rights. In particular, Ellis
asserts that the trial judge improperly sug-
gested to Bradshaw that all he needed to
do to escape jury service, and thereby avoid
any moral dilemma he might have, was to
say that he refused to take the juror’s oath.
The district court agreed, finding that the
trial court’s line of questioning, in which it
“suggested to Bradshaw that refusal to
take the oath could be used as a method to
avoid the unpleasantness of being forced to
deal with his qualms about the death penal-
ty,” was impermissible. The court then
concluded, however, that such error was
harmless. We agree with the result
reached by the district court, but not with
its reasoning.

We do not believe that the trial court’s
conduct in this case was improper.! As we
previously noted, the trial court explained
to the venire members at the outset that
those individuals who had a compelling con-
scientious objection to the law would not be
forced to take an oath to follow that law.
We believe this was a justifiable, accurate
instruction. After Bradshaw told the pros-
ecutor that he would always vote no to one
of the special punishment issues to prevent
the death penalty from being imposed, he
told defense counsel that, if required to be
on the jury, he would answer the special
issues truthfully. Ellis suggests that
Bradshaw’s responses to defense counsel's
questions somehow trump the answers g1V-
en to the prosecutor and that, since those
responses seemed to qualify him as a juror
under Witt, no further questions should
have been asked. We disagree. Given the
conflict, the trial judge “ha{d] the right
within certain limitations, to pursue 4 line
of questioning designed to flush out [Brad-

that such was harmless error. See Gray v- 7
sissippi, 481 U.S. 648, 107 S.Ct. 2045, 2055-57.
L.Ed.2d 622 (1987).

Cite as
shaw’s] true views.” O’Bryan v. /
714 F.2d 365, 382 (5th Cir.1983), cc
nied, 465 U.S. 1018, 104 S.Ct. 10
L.Ed.2d 245 (1984).

Bradshaw’s responses to defense

sel’s questions are best understood

context in which they were given. D.

counsel had asked Bradshaw to a

that he had already taken the oa

assume that he had sworn to ret

: verdict based on the law and evi
BY Quite understandably, then, when d
counsel asked him what he would do
evidence convinced him beyond a r
able doubt that the punishment
should be answered affirmatively,
shaw answered that he would a

truthfully. To do so undoubtedly wo.
violence to his conscience; not to «
however, would subject him to the er
consequences of violating his oath.

When the court began asking Brac
questions of its own in an effort to r<
the conflict in his answers, it becam
parent that he was still operating und«
same assumption imposed by defense
sel. Bradshaw told the court that,
had to take the oath for some reaso
would answer the questions truth
The trial court, seeing Bradshaw’s c
sion, reminded him that no one wou
forced to take the oath if to do so wou
Violence to that person’s conscience
soul. It was against this backdrop
Bradshaw stated that he would refu:
take the oath. We see no error here.
Lockett v, Ohio, 438 U.S. 586, 595-96
S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1:
trary to Ellis’s assertion that the
Sourt’s remarks were designed to sug
m escape hatch for a troublesome ve)
h, we believe that the court’s comm:
intended to and did enable Brads
2 a clear statement of his positior
trial court could better assess

cations. Because the trial c
y could have been “left with the «
sion that [Bradshaw] woulc
2 to faithfully and impartially a;
1 Witt, 469 U.S. at 426, 105 S.C:

‘aid we have determined that the |
y. NOt engage in improper questionin
naw, we do not address Ellis’s claim

‘52 Tex.

“But neither nervousness, emotional in-
volvement, nor inability to deny or con-
. firm any effect whatsoever is equivalent
. to an unwillingness or an inability on the
part of the jurors to follow the court’s
instructions and obey their oaths, regard-
less of their feelings about the death
penalty. The grounds for excluding
these jurors were consequently insuffi-
cient under the Sixth and Fourteenth

Amendments.”

Adams, 448 U.S. at 50, 100 S.Ct. at 2529,
65 L.Ed.2d at 592-593.

The State refers us to Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978), in which the Supreme Court held
that four potential jurors had been proper-
ly excluded after “Each of the four specifi-
cally stated twice that he or she would not
‘take the oath.’” That sentence must be
read in context. It came only after the
trial court asked reegenas FN

“whether any of the prospective jurors

were so opposed to capital punishment

that ‘they could not sit, listen to the
“evidence, listen to the law, [and] make
’ their determination solely upon the. evi-
“dence and the law without considering
the fact that capital punishment’ might
be imposed. Four of the venire respond-
ed affirmatively. The trial judge then
~ addressed the following question to those
four veniremen:
‘([D]o you feel that you could take an
oath to well and truely [sic] try this
case... and follow the law, or is your
conviction so strong that you cannot
take an oath, knowing that a possibili-
ty exists in regard to capital punish-
ment?” O° a

Lockett, supra, 488 U.S, at 595-596, 98

S.Ct, at 2960, 57 L.Ed.2d at 984.

In Lockett the four veniremen “would”
not take the oath because they “could” not
follow it. Bradshaw in the instant case

had clearly stated he could.

If trial courts and prosecutors are al-
lowed to exclude potential’ jurors in this
fashion there will be no need for elaborate
questioning designed to discover whether a
venireman’s feelings about the death penal-
ty would impair his performance. Instead

726 SOUTH WESTERN REPORTER, 2d SERIES

anyone who evinces the slightest discom-

fort at serving in a death penalty case

could be excused after a simple ritual such
as this:

TRIAL COURT: Could you follow the
law and the evidence in arriving at your
verdict, in spite of your qualms about the
death penalty? ;

VENIREMAN: Yes.

TRIAL COURT: But you don’t have
to.

VENIREMAN: Then I won't.

Of course anyone at all uncomfortable at

the thought of answering questions know-

ing a death sentence could result would
choose to escape such service. But by
pointing out this escape. hatch to such ve-
niremen and then excluding them for cause
the trial court will inevitably produce what

Witherspoon condemned as “a jury uncom-
monly willing to condemn a man to die.”
Adams, 448 U.S. at 44, 100 S.Ct. at 2526,
65 L.Ed.2d at 588. In the words of Adams,

“ —. to exclude all jurors who would be
in the slightest way affected by the pros-
pect of the death penalty or by their
views about such a penalty would be to
deprive the defendant of the impartial
jury to which he or she is entitled under
the law.” °
Adams, 448 U.S. at 50, 100 S.Ct. at 2529,
65 L.Ed.2d at 593. Making clear to such
jurors an easy way to exclude themselves
produces the same effect. All those with
qualms about the death penalty would opt
out of jury service and the defendant
would be left with a jury composed solely
of those who were perfectly at ease with
assessing a sentence of death. Such a jury
could hardly be called impartial. It is in-
stead “a tribunal organized to return a
verdict of death.” Witherspoon, 391 U.S.
at 521-522, 88 S.Ct. at 1776, 20 L.Ed.2d at

784, : :

"<The exclusion of venireman Bradshaw
came after five weeks of voir dire examina-
tion in which more than a hundred venire-
men had already been examined. I sympa-
thize with the trial court’s seizing on what
appeared to be a formula, one magic ques-
tion to decide whether the venireman was
properly excluded for cause: “Would you

SSE ee ie oe

See SNE

HERNANDEZ vy, STATE

Tex. 53

Cite as 726 S.W.2d $3 (Tex.Cr.App. 1986)

take the oath?” A death sentence may not
be imposed where even one juror has been
improperly excluded, however. Davis v,
Georgia, 429 U.S. 122, 97 S.Ct. 399, 50
L.Ed.2d 339 (1976). This formula used by
the trial court was too easy. The prosecu-
tor and trial court, perhaps taking a cue
from the earlier venireman, told this pro-
spective juror from the beginning that he
could escape this discomfiting duty by sim-
ply refusing to take the oath. That is not
the law. The only reason for a juror to
refuse to take the oath is if he cannot
follow it. Bradshaw could. His exclusion
from the jury was therefore improper.

A defendant in a capital case as in all
others is entitled to an impartial jury. The
method used to exclude Bradshaw in this
case would produce instead a jury stripped
of all those who might hesitate to impose a
death sentence, We should not be willing
to live with such a system, nor to let some
die by it.

To the majority's unconstitutional dispos-
al of appellant’s third ground of error, I
respectfully dissent.

‘ TEAGUE and MILLER, JJ., join.

"ONION, P.J., not participating.

Paul HERNANDEZ, Appellant,
v. .
: The STATE of Texas, Appellee.
No. 1009-83.

- .Court of Criminal Appeals of Texas,

ORS En Banc.
_ Sept. 17, 1986.

art

Defendant was convicted in the 167th
District Court, Travis County, Tom Black-

well, J., of capital murder, and he a
’ ppealed.
; The Court of Appeals affirmed, and defend-

ant sought discretionary review.

Court of Criminal Appeals, Tom G. pking
J., held that defendant’s counsel’s conduct
at trial was not sufficiently ineffective to
establish reasonable probability that result
of trial would have been different if coun-
sel had acted more effectively.

Affirmed.
Campbell, J., concurred in result.

Clinton, J., concurred and filed opinion,
in which Miller, J., joined.

Teague, J., concurred in part and dis-
sented in part, and filed opinion.

1. Criminal Law @641.13(1), 1166.11(5)

State standards for determining inef-
fectiveness of counsel and for ascertaining
when ineffectiveness is prejudicial are not
more protective than those enumerated by
United States Supreme Court in Strick-
land. Vernon’s Ann.Texas Const. Art. 1
§ 10; U.S.C.A. Const.Amend. 6.

2. Criminal Law €641.13(6)

Defendant’s counsel's failure to inves-
tigate insanity defense in murder trial did
not constitute ineffective assistance of
counsel where record was silent as to ex-
tent of counsel’s investigation of insanity
defense, and as statute precludes use of
voluntary intoxication-insanity defense to
commission of crime, notwithstanding that
court psychologist reported that 15-year-
old defendant had mental development of
eight and one-half-year-old. V.T.C.A., Pe-
nal Code § 8.04; Vernon’s Ann.Texas
ot Art. 1, § 10; U.S.C.A. Const.Amend.

3. Criminal Law ©641.13(1)
Right to effective assistance of counsel
is not right to error-free counsel. Vernon’s

Ann.Texas Const. Art. 1, § 10; U.S
Const.Amend. 6. ae iis

4. Criminal Law @641.13(6)

Defendant’s counsel’s presentation of
evidence that rebutted defense of self-de-
fense against capital murder charge did not
constitute ineffective assistance of counsel
where evidence tended to support previous
testimony that defendant was being chased

PRTAR wanes ne

210 Tex.

ing jury did not adequately consider as

mitigating evidence his good prison discipli-
nary record. /d. 108 S.Ct. at 2328. Frank-

lin argued this mitigating evidence, which -
was the only such evidence introduced,

“had significance independent of its rele-

vance to the Special Issues—as a reflection

on his ‘character{,]’”” and requested a jury:
instruction which would allow. the jury to

impose a life sentence even if it answered.
“yes” to both punishment issues submitted.

Id. 108 S.Ct. at 2329. A plurality of the

Supreme Court concluded the jury’s consid-.”
eration of Franklin’s mitigating evidence
was not improperly limited because the

jury was free to give appropriate weight to

this evidence through its consideration of
the second special issue. /d. 108 S.Ct. at

2330. Thus, Franklin was not sentenced to

death in violation of the Eighth Amend-
ment.

Franklin foreshadowed the Supreme
Court’s opinion in Penry, 109 S.Ct. 2934,
the following term.. Penry argued that his .
mitigating evidence of mental retardation .
and child abuse had relevance to his moral
culpability beyond the scope of the special
issues under Art. 37.071(b), V.A.C.C.P., and
that the jury was unable to express its
“reasoned moral response” to that evidence
in determining whether death was the ap- ,
propriate punishment. 109 S.Ct. at 2948.
The Supreme Court agreed and stated a
special instruction with regard to the miti-
gating evidence was necessary.’

The Supreme Court addressed the need
for the additional instruction in light of the
three punishment issues, Art. 87.071(b)(1),
(2), and (3). As to the first issue, the Court .
opined that without this additional instruc-
tion “a juror who believed that Penry’s .
retardation and background diminished his
moral culpability and made imposition of |
the death penalty ‘unwarranted would be
unable to give effect to that conclusion if
the juror also believed that Penry commit-
ted the crime ‘deliberately’.” 109 S.Ct. at

3. Penry had requested a type of such an instruc: ©

tion during the punishment phase which the
trial judge denied. eS

4. The prosecutor used Mayo's history of abuse
as evidence of his potential for future danger-
ousness. He also used pictures introduced into

810 SOUTH WESTERN REPORTER, 2d SERIES

2949. The Court recognized the double-
edged sword characteristic of Penry’s miti-
gating evidence under the second special
issue. That is, the very evidence which,
might diminish his blameworthiness also
tended to show there was a probability that
he would be a continuing threat to society.
Thus, the second special issue did not pro-_

vide a vehicle for the jury to give mitigat-, -

ing effect to Penry’s “mitigating” evidence.
Id. Likewise, the Court found the third.
special issue addressing provocation, which
was given in Penry’s jury charge, failed to”
allow a juror who believed Penry lacked

the moral culpability to be sentenced to: _

death to express that view in this issue if:
the juror concluded Penry’s action was not.
a reasonable response to the provocation: ‘
Id. 109 S.Ct. at 2950. Thus, as applied to:
Penry, Art. 37.071 was unconstitutional.

The petitioner in Mayo, 893 F.2d 683,
also relied on the decisions in Franklin and i
Penry. Mayo’s counsel presented eight :
witnesses during the punishment phase of i
his trial who testified to Mayo’s -various:i
good works, his religious faith, his artistic»
ability and interest, and the mental‘ and!
physical abuse he suffered at the hands of ,
his father, who at the time of trial was
imprisoned for raping a child. The prose- ,
cutor’s closing argument “focused the,
jury’s attention on the exclusive relation-
ship between the evidence presented at the
guilt-innocence and sentencing phases and
the special issues, but[,]” the Fifth Circuit i
determined, “the special issues did not af-
ford sufficient opportunity for, considera- ,
tion of the mitigating evidence Mayo of: ;

fered.’4 Jd. at 688. The Fifth Circuit, -

concluded Mayo had presented sufficient
constitutionally mitigating evidence to war-
rant the additional “Penry” jury instruc-
tion. Jd. at 689. La

In the case at bar, applicant presented no
mitigating evidence during the punishment
phase of his trial, unlike the defendants in.,

evidence to show Mayo's artistic sensibilities as |
aggravating evidence by arguing the pictures

evidenced Mayo's fascination with young girls

“not unlike the victim of [his] crime.” 893 F.2d

at 688. :

‘EX PARTE ELLIS

m |

Cite as 810 S.W.2d 208 (Tex.Cr.App. 1991)

‘Franklin, Penry, and Mayo. There was,
however,. testimony ‘during: the guilt/in-
nocence phase of. the trial which applicant
asserts was mitigating but which could not
be given: effect by the jury. Specifically,
applicant-contends mitigating evidence was
introduced regarding his “drug abuse and
addiction, his intoxication at the time of the
offense, his mental and psychological insta-

bility'as demonstrated by a suicide attempt,

and:lack ‘of education.” There was also
evidence that: applicant had close family
ties.’ The State responds that this evidence
was not presented as “mitigating evidence”
but “rather came: to light ‘during the

guilt/innocence phasé: only through the:

State’s rebuttal witness’ and ‘the prosecu-
tion’s cross-examination in its “attempt to
impeach applicant’s alibi defense..and to

- ‘present a motive for the killing.” The

State also asserts this evidence was not
argued as mitigating applicant’s blamewor-
thiness for the crime, but rather applicant’s

counsel maintained applicant’s innocence.

during his jury argument at the punish-
ment phase. The State contends - appli-
eant’s claim is “highly suspect” in light of
this; record.. Heoey adlat.

: 2] In: its findings of fact, the trial
judge states .applicant’s asserted mitigating
evidence .was not in fact: “offered or
presented as mitigating evidence at his tri-

al.” “We find, however, that regardless of

when this evidence was presented during -

applicant’s trial—guilt/innocence or punish-
‘ment—it is before the jury, and it is a
proper subject for the jury’s consideration
when answering the: punishment issues.
See Keeton v. State, 724 S.W.2d 58, 61
(Tex.Cr.App.i987) (at penalty stage of trial,
jury may consider all. evidence adduced at
guilt stage). Whether evidence has “miti-
gating ‘value” is not determined by the
party who offers it, its time of admission,
or: its manner of admission (direct or cross-;
examination) into evidence during a trial.
The question is merely whether this evi-
dence was before the jury for its considera-
tion.’ Thus, we proceed to a review of the
evidence presented during applicant’s trial.

[3] The trial judge made the following
pertinent findings of fact in regard to the
evidence presented at trial:

9. Applicant presented no evidence at

the punishment phase of his trial.

10. During punishment argument, de-

fense counsel did not mention anything

concerning drug abuse and addiction, in-
toxication at the time of the offense,

-mental and psychological instability, lack
of education, positive character traits or
close family ties, much less argue that
isaid factors mitigated generally Appli-
cant’s blameworthiness for the instant
crime, made him unable to commit a de-
liberate act or showed that he was less
likely to be a future danger to society.
11. In his punishment argument, de-
fense counsel reasserted Applicant’s in-
nocence for the capital murder.

.12. There is no evidence in the record
that Applicant was intoxicated at. the
time of the instant capital murder.

13. There is evidence in the record,

presented by the prosecution, from which
the jury could infer that Applicant’s mo-
tivation for committing the underlying
burglary in the instant case was his need
for money for either drugs, drug deals or
both.

14. There is evidence in the record,
presented by the prosecution, from which
a jury could infer that Applicant was
suffering from withdrawal from drugs
after his arrest and incarceration in the

‘Harris County jail, approximately one to
two weeks following the killing.

16. Through rebuttal witness Bill Scott,
the prosecution presented evidence which
established, as a collateral matter, that
Scott first met Applicant in the Harris
County jail ..., while rendering medical
assistance to him after he had inflicted
rather superficial slash wounds on his
wrists ...:

16. This court finds that Applicant’s su-

' icide attempt, days after the instant capi-
tal murder following his arrest and incar-
ceration in the Harris County jail, in and
of itself, does not demonstrate psycho-
logical or emotional instability either
generally or at the time of the instant

AS 4

208. Tex. 810 SOUTH WESTERN REPORTER, 2d SERIES

Cr.App.1989) (plurality opinion), to find
that stopping appellee’s car at a sobriety
check point by police officers “‘was’ not
based on reasonable suspicion but was de-
signed to be preemptive in nature and
premised on nothing more that inarticulate
facts—hunches that criminal conduct would
occur.” 791 S.W.2d at 576. As such, the
Court of Appeals concluded that the stop
“was an infringement of individual. free-
dom of privacy and travel.” Jd.!

In King v. State, 800 S.W.2d 528 (Tex.Cr.
App.1990), we determined that Higbie,
along with its progenitors from this Court,
had been overruled by Michigan v. Sitz to
the extent that such cases purported to be
based upon the Fourth Amendment to the
United States Constitution. 800 S.W.2d at
529. Accordingly, to the extent that the
Court of Appeals decision relied upon Hig-
bie, it is reversed.

The judgment of the Court of Appeals is
reversed and the cause is remanded to that
court for consideration in light of Michiga
v. Sitz, supra, and King v. State, supra:

BAIRD, J., dissents.
MILLER, Judge, concurring.

In its opinion, the court of appeals cor-
rectly notes that there is no administrative
scheme permitting DWI roadblocks in this
state. 791 S.W.2d at 576. ' We discover in
Michigan Department of State. Police v.
Sitz) — U.S. —, 110 S.Ct. 2481, 110
L.Ed.2d 412 (1990), that the Michigan legis-
lature empowered its counterpart to our
Department of Public Safety to set up a
statewide administrative scheme for sobrie-
ty checkpoints. Pursuant to that scheme,
the director of the state police department
appointed a Sobriety Checkpoint Advisory
Committee which created guidelines setting
forth procedures governing checkpoint op-
erations, site selection, and publicity. The
Supreme Court of course upheld the sobrie-
ty checkpoint as being consistent with the
Fourth Amendment. If this is to be the
case in Texas, then the court of appeals’
opinion is correct when it says “Texas has

1. We understand this to be a holding that appel-
lee’s Fourth Amendment rights were violated

ELL/S _ CK eCufed

no such administrative scheme. This is a
task best left to the legislature.” 791
S.W.2d at 576. Thus, the issue presented
in this case may be resolved under Michi-
gan v. Sitz without the necessity of ad-
dressing the question of whether the DWI —
roadblock violated Art. I, § 9.

With these comments, I join the majority
opinion.

‘CLINTON and MALONEY, JJ., join | |
this opinion.

CAMPBELL, OVERSTREET and
BENAVIDES, JJ., join this opinion and-
the majority opinion. — . at

Ex parte Edward Anthony ELLIS.
No. 71107.

Court of Criminal Appeals of Texas,
En Banc.

May 29, 1991.

Defendant was convicted in the 263rd
Judicial District Court, Harris County,
Charles J. Hearn, J., of capital murder, and
he appealed. The Court of Criminal Ap-
peals, 726 S.W.2d 39, affirmed, and defen-
dant sought writ of habeas corpus. The
Court of Criminal Appeals, Miller, J., held
that: (1) asserted mitigating evidence con-
sisting of testimony regarding drug prob-
lem, suicide attempt, lack of education and
close family ties did not rise to level neces-

sary for additional instruction for jury to
consider and give effect to this’ evidence, -
and (2) capital sentencing scheme is consti-.
tutional. eB a

Relief denied. ' fet

Benavides, J., concurred in result, #1) |
since this is the issue he raised in the trial court.

jy &

‘ Clinton, J., filed dissenting opinion in
which Maloney, J., joined.

t
ive

1, Habeas Corpus 275

Claim that sentencing jury was pre-
cluded from considering and giving effect
to mitigating evidence presented during tri-
al could be raised for first time via writ of
habeas corpus. U.S.C.A. Const.Amends. 6,

2:: Criminal Law ¢986.2(1) °

hb» Regardless ‘of whether asserted miti-
gating evidence was presented during
guilt/innocence: or punishment stage, it

ing punishment issues.

3. Criminal Law 796
t!? Asserted mitigating evidence consist-
ing' of testimony regarding drug problem,

family ties did not rise to level necessary
for additional instruction for jury to consid-
er-and give effect to this evidence. U.S.
C.A.. Const. Amends. 6, 8, 14.

val Criminal Law ¢1206.1(2)

- Capital sentencing scheme is constitu-
tional. Vernon’ s Ann.Texas C.C.P. art. 37.-
O71.

; Eden E. fierdieton, Paul Botte Austin,
for appellant.

John ‘B.’ “Holmes, Jr., Dist. Atty., and
- Caprice Cosper, Asst. Dist. Atty., Houston,
Robert Huttash, State’s Atty., Austin, for
the State.

*Before the ‘court en bance.

“OPINION |
ILLER, Judge. yatt
‘This is a post conviction application for

visions of Art. 11.07, V.A.C.C.P.

Applicant did, however, file pretrial doc-
uments challenging the constitutionality of Art.
37.071, V.A.C.C.P., but not on the basis present-
ed herein.

tb) (2 y Mhz

8, 14; Vernon’s Ann.Texas C.C.P. art. 11.

was before the jury, and was proper sub- |

ject: for jury’s consideration when answer- °

suicide attempt, lack of education and close :

yrit of habeas corpus filed pursuant to the °

EX PARTE ELLIS Tex. 20!
Cite as 810 S.W.2d 208 (Tex.Cr.App. 1991)

Applicant was convicted of capital mur-
der and sentenced to death by the trial
judge. Art. 87.071(e), V.A.C.C.P. This
Court affirmed applicant’s conviction and
sentence on direct appeal. Ellis v. State,
726 S.W.2d 39 (Tex.Cr.App.1986). Appli-
cant’s petition for writ of certiorari was
denied by the United States Supreme Court
on March 9, 1987. Ellis v. Texas, 480 U.S.
926, 107 S.Ct. 1888, 94 L.Ed.2d 702 (1987).

Applicant presents eight allegations in
this application challenging the validity of
his conviction and sentence. On July 6,
1990, without holding an evidentiary hear-
ing, the judge of the convicting court rec-
ommended applicant be denied relief. This
Court subsequently ordered this cause filed
and set for submission on applicant’s first
two allegations and granted applicant a.
stay of execution.

{1] In his first allegation, applicant
claims that his sentencing jury was pre-
cluded from considering and giving effect
to mitigating evidence presented during his
trial in violation of ‘the Sixth, Eighth and
Fourteenth Amendments to the United
States Constitution and similar provisions
of the Texas Constitution.” He relies upon
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989), Franklin v.
Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101
L.Ed.2d 155 (1988), and Mayo v. Lynaugh,
893 F.2d 683 (5th Cir.1990), for relief. Ap-
plicant did not object to the jury charge at
punishment on this basis or raise this issue
on direct appeal.! See Ellis, 726 S.W.2d
89. This Court recently held, however,
that this issue may be raised for the first
time via a writ of habeas corpus. Lx parte
Goodman (Tex.Cr.App. No. 70,887 deliv-

: ered May 29, 1991), slip op. at pp. 83-4.2, We

therefore address the merits of applicant’s
contentions.

In Franklin, 108 S.Ct. 2320, the petition-
er contended, inter alia, that his sentenc-

2. Also, applicant’s failure to specifically object
on this basis would not procedurally bar his
claim. See Black v. State (Tex.Cr.App. No. 69,-
648 delivered May 29, 1991) (Campbell, J., con-
curring to Part II.B.). :

i. halal aed CI 7 it

“Lb4/-S-E

“

MADR AR wee --

212 Tex.

* eapital' murder." Moreover, ' counsel ‘did
> not mention, much less argue to the jury,’
that Applicant was‘ psychologically or
emotionally unstable. i) 0 v
17. Applicant’s asserted Penry evidence
concerning lack of education was elicited
‘ by the prosecution during cross-examina-
tion of Claude’ Ellis (Applicant’s brother
“and alibi witness)’ while testing Claude’s
‘knowledge of his brother’s life and activi-
~< ties. ’ The ‘alleged ‘ mitigating evidence
‘'eonsists of’a single reference to the fact
‘that Applicant did not complete high
t gelvool 264 et eee vpn Ts re
18. Unlike the evidence in Penry, there
* was no evidence introduced at trial which
demonstrates that Applicant is mentally
retarded or impaired or that his lack of a
‘complete high school education somehow
made him less blameworthy for the in-
‘ stant capital murder. Moreover, counsel
did not mention, much less argue to the
jury, that Applicant suffered from a lack
‘of education. : ~
49.’ The court finds that Applicant's al-
‘leged evidence ‘of positive character
“traits and close family ties is not remark-
“able. ‘Moreover, counsel did not mention,
“much less argue to the jury, that Appli-
‘cant had ‘redeeming positive character
‘traits’ such as courteous, responsible be-
“havior and close family ties. ' woe

From the trial judge’s findings of fact, we
conclude that applicant’s asserted “mitigat-
ing evidence” consists of testimony regard-
ing a drug problem, a suicide attempt, @

8. In its findings of fact, the’ trial judge states
that applicant's suicide attempt, which resulted
in superficial wounds, did not indicate “psycho-
‘logical or emotional instability” and that appli-
-eant’s evidence of’ positive character traits was
jnot remarkable... (See findings of fact Nos. 16
,and 19). In essence, the trial judge is making a
“credibility or weight determination as to this
éevidence,'a function moré appropriately left to
_the trier of fact,. which was the jury in this
cause. Thus, we do not consider these remarks
‘tor our’ perceived force of this evidence, but
rather ‘only whether this mitigating evidence
3 was, in some respect, presented to the jury for
.its consideration.: +, |; se

wep dh 5 4
6.. Attached to. applicant's writ .application are
- affidavits presenting mitigating evidence which
was not offered during the punishment phase of
‘his trial“! According to applicant, this evidence

810 SOUTH WESTERN REPORTER, 2d SERIES

lack of education; and close family ties. It
is not determinative that applicant’s miti-
gating evidence does not consist of mental
retardation and‘an abusive childhood back-'
ground, as it did in the Penry ‘case.’ See'
e.g. Gribble v. State, 808 ‘S.W.2d 65 (Tex:
Cr.App.1990) (jury instruction required so’
that jury could consider and give effect to:

mitigating evidence of troubled childhood,: ©
abnormal mental and emotional condition;! .
and sexual. aberrations). «::: We ;conclude,: »--

however, that the mitigating evidence ins

this cause‘ does ‘not rise. to:the level ofi -

“Penry: evidence”:,and . no additional in-;
struction was necessary -for the jury to!

consider and give effect! to this evidence., |

Applicant’s first allegation is without ‘mer=?

it. : ioaaat! ¢ i were ee ves yotton

‘{4] ‘In‘his second writ allegation, appli!
cant contends the punishment issues “pre-!

cluded presentation and full jury consider‘,

ation” ‘of “compelling: ‘mitigating ‘ evi-'
dence.” * ‘Applicant argues that the opera-'
tion of Art. 37.071 deprived him of his’
constitutional ‘right to present mitigating’
evidence because it only permitted the jury*

to consider this mitigating evidence as ag":

gravating. Essentially applicant * claims
our capital sentencing scheme is facially

unconstitutional. ‘In’ Boyd ‘v.” State, 811’
S.W.2d 105,112 (Tex.Cr.App.1991),'we not!(
ed the United States Supreme Court specif->
ically declined to declare our scheme uncon?
stitutional in Franklinand Penry, and we?
also : refused’:to: overrule the Supreme’
Court’s precedent:::We adhere to that posi-3

booti ee yf bey oR ‘ Fae es 3 |
‘included “a history of prolonged, destructive ;

* drug ‘abuse,’an impoverished upbringing in’a

..ghetto’ racked with ‘violence, drugs and’ crime,”
and a tortured family history marked by the? /

abuse of an alcoholic father who glorified vi
lence and criminal activity[,]” and would sho

he was less morally culpable or undeserving of

the death penalty.” Included among the several
affidavits are two affidavits from his trial attor-
neys explaining their tactical decision not
present this evidence because, as the writ state:
Art. 37.071 “not only drained: his evidence’ of
mitigating weight, but converted it to aggravat
ing evidence[,] and “[tJhis is unconstitutional.”
Insofar as the affidavits rélate to this constitu:

tional attack, they will not be considered by this?

Court: See Ex parte Goodman, n. 6, — S.W. at

——- —,
1

ates esp erpl: Conde og aoc

“tion today." Applicant’s second allegation is
Also:without merit." . 0: te
oft

Renee

pi Pad ay
~ BENAVIDES, J., concurs in the result.
e ‘BAIRD, J., not participating.

ae a ?
Judea?

“CLINTON, Judge, dissenting. we

‘Thé' majority'tells us that the’source of
itigating ‘evidence is‘ unimportant; so
= long as it has mitigating value beyond the
= scope of: special .issues,.an instruction is:

U.S::802;-109: S.Ct. 2934, 106 L.Ed.2d 256 ©
(1989):: Furthermore, the majority assures
-us,"evidence does not have to fall into the
categories of mental retardation or abusive
4 family'history to invoke the Eighth Amend-
ei ment concerns Penry addressed. So far,
0!’ good. i See -my dissenting opinion in
y, Lackey v. State‘(Tex.Cr.App., No. 69,144,
yas delivered.this day). But then the majority
-simply ,‘concludes,” without further elabo-
ration, that the mitigating evidence produc-
= ed.at applicant's trial “does not rise to the
level:.of”,, Penry evidence. Without. some
alysis, the Court’s opinion does not serve ,
oan-adequate guide for. future decision.

am The‘majority brushes off applicant’s sec-:
, ond?elaim of Eighth Amendment violation
3: based-upon mitigating evidence he was con-
strained from producing at trial because it
“could only serve to harm him under Article
87,071(b), V.A.C.C.P. Op. at 212-2138, & n.
. Jam aware that the Fifth Circuit has
jected such claims when raised under the
. ghth Amendment. ‘ See May »v. Collins, '
904 F.2d 228 (CAS 1990); DeLuna v. Ly-
panals, 80 F.2d 720 (CA5 1990). It seems
rdly fair that.a capital accused should
os¢ such a claim, however, when it was the
ighth ‘Amendment deficiency in the stat-
ute, and “this Court’s staunch refusal to
acknowledge it,” that ‘ forced competent
counsel's decision to forego presenting the.

senting). Applicant has indeed “been

‘Accordingly. the relief sought is denied,

necessary under Penry v.:Lynaugh, 492°

Passe '* EX PARTE BALDREE ptr a Tex.
Cite as 810 S.W.2d 213 (Tex.Cr.App. 1991)

caught in a web spun of words and logic{.]”
May v. Collins, supra, at 234 (Reavley, J.,
concurring). I do not regard Penry as
having fashioned a right to a jury instruc-
tion so much as it reiterated a prohibition
against state imposition of the death penal-
ty unless the sentencer has been empow-
ered to take all “relevant” criteria into
account. See Black v. State (Tex.Cr.App.,
No. 69,648, delivered this day) (Clinton, J.,
dissenting). Applicant has shown that he
has been sentenced to death on the basis of
less than’all the constitutionally relevant
criteria. It was Article 37.071, supra, and
judicial construction thereof, that forced
this state of affairs. Ergo, the statute
operated in an unconstitutional manner as
applied to applicant. I would hold he is
entitled to relief. Instead, the majority
transforms applicant’s claim into a “‘facial”
attack, and disposes of it on the basis of
Franklin v. Lynaugh, 487 U.S. 164, 108
S.Ct. 2820, 101 L.Ed.2d 155 (1988). Frank-
lin did not purport to address the situation
before us here. I respectfully dissent.

MALONEY, J., joins.

Ex parte Earnest Orville BALDREE.
° No. 71114. . .

Court of ‘Criminal Appeals of Texas,
"tes. En Bane.

_ , May 29, 1991.

‘« Defendant was convicted in the 13th
Judicial District Court, Navarro County,
Kenneth A. Douglas, J., of capital murder.
Defendant appealed. The Court of Crimi-
nal Appeals, 784 S.W.2d 676, affirmed.
Postconviction application for writ of habe-
as corpus was filed. The Court of Criminal
Appeals, Miller, J., held that no further

question
tives in
officers
relatives
n’t know
he poly- -
: truth.
“He’s a
help him
ever sees -

2 and
ie |
ed to wil
- was con-

jurs after
iger Klev-
He knew
2 went to
nd on tug-

a reasoned,
r out near
inel.

ral tugboat
The infor-
3 more than

Leda B. at
mpany said
ise window
y with two
shirts and

d. “He just
aluable like
1 effects.”
Tug Splinter
rks said that
fonday night °
ied food and

formation the
-eened Bray §
ship channel.
long the piers
:ds of officers
{ brush.
carly Wednes-
ves in the area
dows.
. Gladys. Mc-
es the bayou.
ip of coffee at
»n window. she
of a railroad

her coffee,
id hailed a

1 out from the
sstle,” she said

‘

) eee

excitedly. “He kept looking back over his

shoulder like he -was scared. He was a
tall skinny man.”"

One detective relayed the report by
walkie-talkie to the search headquarters
near the ship channel, then quickly re-
joined three other officers in a scramble
across the trestle. Fog like a gray. lazy
quilt lay on the soggy earth on the bayou
bottom land.

“We'll split up here,” the officer with
the walkie-talkie said. “Two of us will
go to the right, two the other way.”

- Detectives. M. L. Singleton and C. E.
Harrelson drifted to the left. As they
crossed a dry stream bed, a branch, of
the bayou 100 yards from the trestle,
Singelton stopped. A set of footprints
was clearly etched on the soil.

Guns drawn the two detectives fol-
lowed the footprints. The trail led them
into an eerie world of. long dead oaks
and struggling sapling pines snarled by
thick vines. Beyond the tangle of vine
and brush lay a small clearing spiked
with Johnson grass.

Harrelson, his service revolver cocked,
suddenly froze. A figure lay still as death
in the weeds.

: “There he is,” he whispered to Single-
on.

‘The man lay as if he: was sleeping,
head cradled on a bent elbow.

“Stay where you are and don’t move
your arms!” Singleton ordered. f

The man on the ground stirred, rolled
to one side and propped himself on Jone
elbow. His body stiffened as if“he ex-
pected a hail of bullets to crash into
him. . ‘

He was unarmed, the detectives saw.

“Back on your stomach,” said Single-
ton. The man fell on his stomach.

“What’s your name?” asked Harrel-
son.

“Mike Jacobs,” the man said.

Singleton straddled the man, then
grabbed the prisoner’s arms and hand-
cuffed him. i

“T’m Ellisor,” he sighed. “It’s all over.
I know it.” :

“You know My we want you?”
“Sure, I fired t

just drunked up and crazy.” ‘

At police headquarters Merle Ellisor,
the raw bullet wound in his back swollen
and festering, signed a written statement
in which he admitted shooting to death
Trooper Crosby and wounding the two
other officers. He absolved his brother
Archie of all blame. ‘

Then he told of his amazing 84-hour.
flight of pain, starvation and loneliness.
He told of paying young Kelley to take
him to the Beaumont ‘highway Sun-,
day night, nearly 24 hours after the
killing. ; <

“Then I doubled back to the East End

near the ship channel. When.I busted jn ‘

that tugboat and got that canned food
Monday night, that was my first meal
in more than 48 hours.”

' Ettisor said he first shot at Deputy

Scarborough because “I had a carload of
stolen guns. I was out on parole, you

know, and I couldn’t let him get near .

the car and see those guns.. |

“T didn’t aim at him. I just stuck the
gun oiit the window and fired. And I
didn’t aim the shotgun at the troopers
either.” :

His pistol was never recovered. He-
said he threw it away during his flight.
His lean, hollow-cheeked face feverish,
he softly answered all questions. '

A detective gave him a cigaret. He took
it and said thanks. “I’m ready for the
chair,” the accused killer went on. “I’ve
been in prison before and serving time
is worse than dying.” i

A Harris County Grand jury indicted
the two brothers on charges of murder
on December 8, 1954.

Merle Ellisor was treated at a hos-
pital for his’ wound and he recovered.
oe is waiting now to stand trial for his
ife,

(The name Joe Ashe is fictitious to protect the -

identity of an innocent man involved in the in-
vestigation.—The Editor.)

cineca

Her One Last Fling—With
Murder

[Continued from page 15] ~

the Tahiti, Ruth had appeared gay and
talkative. But at the two places to which
she and her escort were traced afterward,
those who served them said she had been
very quiet. “Not. intoxicated ... more as
though she were all in and had trouble
staying awake,” explained a doorman who
had admitted the pair to the last place
they visited.

“Or as though she was under the in-
fluence of some drug?” suggested Nesbit
questioningly..

“Well... yes. I’ve seen ’em more than
once after someone slipped ’em a mickey.
And that’s exactly how she looked to me.
When they left here around midnight the
man was half carrying her and she had
her head ‘on his shoulder.”

The doorman remembered also, that a
shiny new black foreign looking sedan
had pulled up in front of the place shortly
after the pair arrived. The dark, middle-
aged driver had stayed in the lounge only
long enough for about one drink. Then
he had returned to his car and sat behind
the wheel until the girl and her escort
came out and got into the back seat. Like

the girl’s companion, this older man was

well dressed. :

Another day went by with still no signs
of Ruth Rawlins, nor of her expensive

. jewelry nor the second $50 bill. Mean-

while newspapers published her photo-
graph and police departments through-
out the state were asked to be on the
alert for her. are
Liéutenant Reichert was convinced that
no woman expecting a child-in a few
months would have run off voluntaril
with another man. The fact that a cheek

of bus depots, the airport and the railroad

station failed to turn up information on
anyone of Ruth’s or her escort’s descrip-
tion strengthened his belief that she-had

met a worse fate than what had at first -

looked to him like a setup for blackmail.

Rawlins and friends of the missing
Ruth meanwhile looked over police mug
shots of known and suspected gigolos,

‘and Chief Ike Mitchell of the Identifica-

tion Bureau carefully checked over
records on men who annually invaded the
city during the winter season to prey on
lonely female visitors.

They came up with exactly nothing.
The handsome youth with the boyish face
and crooked: smile’ was obviously a
stranger in the taverns he had visited-with
Ruth Rawlins, nor had his: oldet com-
panion ever been seen in any of the
places. ‘

Early on the fourth day following

e gun. My kid brother-
had nothing to do with it. I guess I was /

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> 75

d Harrel- Deputy Scarborough, far left, got a bullet in the arm when he tried to flag down a speeding driver. With
handcuffed Archie Ellisor in the search line, the posse made a foot-by-foot canvass of escape area.

; Trooper Robert Crosby, inset, was blasted to death when a shotgun roared a hail of lead into this ree
car. His partner was wounded but not enough to prevent his joining in the manhunt for the fugitive killer.

= ee
ome =
per
r rr _
a

de
» PUBLIC SAFI

Two other

30 the old
mm, leaving

\y night of
th as they |
| od; shot in

a page 73)

“Tell

: alert

went
rrived
y him-

i front

e kept
saun-
office.

ive ef- |

d said.
r cars.
nd the
dbucks .

e that,”
tep out-

1e used-
As the
cked up
s. “That
{1 to the
: at cars.

4 Lloyd
o arrive.

he sales- Pa
officers) : }

+ walked

ay, Pick-
covered
icked

unable to
:ket. The
round his
im, They
Iver in his
rapped in

trousers

im. “We're
iy duty to
say will be

‘Sure,” he
esn’t make |
ell, tell you

ly admitted

3; wife an
iarters, the ,
by Patrol- —
turned over
tors headed
y Frank S.

his confes- |
’ He related *
with neither
nova’s office
ufficient evi-

id jury atits » |

was not the ~
lain his wife,
ieath weapon
here in Dade
y West.” Al-

n has been -

not indicated

as transferred .- |

o the Howard

aber 12. Two °

red: by: Assist-.-

ova. The self-
- expressed

me of his °

rt.
ne is reported
. LT -should
long time ago.”

SANE d ie ea, ea] ;

St ARNED ert Ac.
Texas Manhunt
[Continued from page 10]

nétred a 10-foot barbed-wire fence the

. wounded one collapsed. A million needles

of pain stabbed at his spine. The slug

burned and ached: in his body. His ~

younger companion knelt by his side.
These were the fugitives wanted for
the trooper’s death.
The wounded.man was Merle Wayne

Ellisor, 32, an ex-convict freed on parole.

The man with him was his kid brother,

Archie Ellisor, 20. ‘

‘“We got to split up, Archie.. We ain’t

got a chance together,” insisted Merle.
Archie Ellisor said he wouldn’t leave.

- “I said you got to go,” Merle Ellisor .
snapped.
“AN ri

ght Merle. If that’s the way you
want it.’
. “That’s-the way I want it.”

“That cop’s dead, Merle. They'll kill
you when they find you. You know that
Merle.” ° |

“I know a lot of things. All bad. Now

beat it.

“Ill be back for you Merle.”
‘Young Ellisor turned his back on his
wounded brother, crossed an open

Jonely road. In the distance he saw an all-
night cafe, He walked toward it. . :
+ Behind him was a nightmare vio-
fence on the neon-splashed strip known
as McCarthy Drive. He would égtch a
cab, borrow ‘a car home and come back
for Merle. That’s the way Archie Ellisor
figured it. - 7” |
. His plans to aid his brother never bore
fruit; Within thirty minutes after the
fatal shooting of the trooper and wound-
ing of two other lawmen, every peace
offic

er in the city knew that one of their ©

own had been gunned down. The big man-
hunt moved into action.

As the hunt intensified, Texas Ranger
Johnny Klevenhagen, a quirt-tough hu--
man bloodhound, pieced together the
events leading up to the violence.

Two hours earlier Deputy Sheriff
Jimmy Scarborough was riding his mo-.
torcycle on McCarthy Drive. Without
warning a black sedan pulled up behind
him, slammed on its brakes, then whipped

out into the wrong lane, Oncoming -

traffic was forced off. the highway. ;
Scarborough bowed his neck and gave
chase. He curbed the speeder a mile later.

Parking his motorcycle, Scarborough ap-~

proached the speeder.
“Friend,” he said to the driver, “I guess
you’ve driven just about far enough in

. your condition.” '

A pistol barrel flashed and the next split

“second a slug ripped through the deputy’s
cight arm. ; teh
.: The deputy retreated behind the car,
‘Pulling

t his .45 service pistol; he fired’
once through theicar’s rear window on the

‘driver’s side. Glass: shattered as the car -

sped away. Scarborough emptied his gun
at the car’s gas tank and rear tires.
. He ‘learned later his first shot hit its
human target; the others missed.

A pagsing motorist, attracted by the
gunfire, rushed the wounded Scarborough
to a ri aed deputy was treated
for a flesh wound, released and later re-
turned to join the manhunt.

This was only the, beginning of the
blood-letting. Five minutes later and sev-
eral miles away. on McCarthy Drive, State
Troopers Crosby and Doyce Doolin
spotted a speeding dark sedan. They were

unaware that Scarborough had been shot.

field ”
“and kept walking until he reached a

The, patrol car gave chase.
‘at its wheel. The sedan was, no matc
for the patrol oar. The’ pursuit became
short-lived when the

speeding car
crashed into a drainage

ditch, : ,

opened his door a shotgun roared. °
Crosby collapsed on the front seat. He
was mortally wounded, his face, a foun- |

tain of blood. Then two more shots fol- 4

lowed. ; bh a)
+ Doolin reeled, feeling the stinging blow
- of shotgun pellets. in his right: cheek...

From the darkness a man shouted:) |:

“Get out and run for it Archie.”

That’s the story learned by~Ranger

Klevenhagen from Scarborough: and~
Doolin. Trooper Doolin was treated ata _
hospital and released.

' the hunt. 4 (> aah te 14
At midnight that Saturday, more than’ ~
100 officers, working under improvised:

giant floodlights, made an inch-by-inch 4}

search.’ They found a blood-splattered, ’
brown leather jacket. The jacket: hadia:.
bullet hole in the back just to the right. ¥

of center. geht aad? 7 NIN
The abandoned sedan,..a :1946, Model-
Chevrolet, furnished the lead clue to the’
, identity of the killers. Unless the ¢ar was.
stolen, its license registration. plates »
would lead to the fugitives.) HET
While. an. officer . at. headquarters -
checked the registration, Sheriff ,C.) ,
(Buster) Kern of Harris County arrived |
on-the scene to guide the manhunt. 3) |:
The search centered in the area near,
the Houston Belt and Terminal Railway
sa mere Then it spread to the Engle-
wood yards, a several-mile square area ©
laced by tracks and sheds and box cars. |
Beyond lay Mayes Bros. Inc., pipe yards,”
secure behind a 10-foot high barbed wire “}.
fence.‘ 4 }
Early Sunday morning a patrolman’s.
radio came alive, It was the dispatcher |
at headquarters, The abandoned Chevro-
let, he said, was registered to a man

named Joe Ashe whose address was in

Houston’s Deep East End. ©) 1]
-Klevenhagen and Sheriff Lieut. Loyd
Frazier drove to the Ashe ihome. Mrs,
Ashe said her husband was out with’ his:
brother-in-law. see

“Did he loan his car to‘anyone this |
afternoon?” the ranger asked. ©

Her face paled. “I don’t: know,” she
an “You'll: have ‘to wait for my’ hus- «
and,” Clb [ie ei

“We'll wait,” said Kléevenhagen, °

Ashe,’a big, ted-faced man; arrived fif-) if

‘teen minutes later. : iy uted ph gh dame
; “Where’s your car?” Frazier started
in. oe ba | fe
“Tt was stolen yesterday afternoon,” f
“Who you protecting?”
demanded. Saas ep ey yds Hime
“Nobody,”. Ashe said angrily, “I tell .
', you, it was stolen.” oye ag gle: Ra
“Why didn’t you report it right away?”),
The questioning «continued, ‘steady,’ |
‘persistent, monotonous. ‘Ashe | laste
‘thirty minutes. Then: he blurted out ‘that ,
he had loaned the car to his distant’
cousins, Archie and Merle Ellisor. *"

said.
“Where are they now?” Frazier asked.
“T don’t know,” Ashe said. ¢
. “Look, Ashe,” Klevenha:
flat voice; “you're in trouble. Now think
: jt ‘over real good. We got lots of time.to
wait for you.to talk. If not here, we'll

os *

h i
& py €
+
P } i 4
Trooper Crosby mechanically reached }]-
for his searchlight.and ticket pad, As‘ he «]'

He, too, rejoined

Klevenhagen, |.
f : ¥ ¢ , 1 *

ese -

“They took it to go on a picnic,” ‘Ashe!’ {

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‘Je Noting the.
| hitch-hiker, | Kelley © cagually asked :/
; "Looks ‘like you had a rough night.”

Ashe glanced at his wife. She looked
at the floor. Then Ashe started talking,

slowly at first.
“ “Archie is in Liberty right now. First
tourist cabins you hit on the other side
of the town. He was here last night
and he was scared and worried about
Merle. My brother-in-law loaned him a
car. Archie said he would try to find
Merle and help him. That’s all I know.”
In the dozing town of Liberty on the
banks of the muddy Trinity: thirty miles
from Houston, Ranger Klevenhagen and
Lieutenant Frazier pulled up to the tour-
ist courts named by Ashe.
_- They cautiously entered the office. A
bald-headed night clerk, nose buried in
True magazine, looked up.

checked’ in here by himself early’ this
re igi th Klevenhagen asked.
_The bald head nodded, “Last cabin,

' Officer,” he said, recognizing the ranger’s |

.. badge. . .

The two lawmen, quietly slipped into”

the darkness, There was no light in the

‘| last cabin,

- “Come on-out Ellisor!” No answer.

* Klevenhagen swung a booted foot and
the thin door splintered, am
Inside Archie Lee Ellisor slept. |
| ‘The ranger handcuffed him just as the
startled youth opened sleep-heavy eyes,
‘' “Okay, Ellisor,” Frazier grabbed him.

“Get dressed and let’s go.”

Riding back to Houston Ellisor ad-
mitted that he and his brother Merle
borrowed a-cousin’s car Saturday after-
noon, but insisted: they were innocent
‘of shooting anyone. He was to change
his story ‘considerably, later.

» As officers led him-to the scene of the

shooting he.told them:.

’ “Merle did it all, First he shot at the

motorcycle cop, Later’ on he emptied

the: shotgun at the state patrol car. I

sure hope he pees himself up. Shape he’s
, in, he'll die. If he doesn’t die, they'll kill

|" him when they find him. He had a gun
‘with him, a .38 caliber pistol. I think he

threw it away.” ; :
Then Archie Ellisor led his captors over

the escape route he and his brother had

taken. He led officers to a pair of shoes.
. “Those are mine,” he said. “They fell

‘off when I was running.”

* Later the shotgun and farther on a

‘powerful deer rifle were found in clumps

‘| © of short-haired grass,

Near the barbed wire fence surround-

K By the pipe yards, young Ellisor said:
“ce e

re’s where Merle dropped. Said he

‘|, gouldn’t goon and made me leave him. °

He gave me his shoes,”
“He'said his brother had talked “about

‘|, hiding in the pipe yards when I left him.”

Archie Ellisor’s fears that his brother
‘would die were ill-founded. At dusk Sun-
“day ‘while. officers..scoured the ‘brush
country, checked ‘empty box cars and
‘wwarehouses, a haggard, unshaven, bare-
ifoot man’ appeared on McCarthy . Drive.
» ‘It was the fugitive Merle Wayne Elli-

|< sor, Asa car driven by David Kelley,-19-,
| oyear-old son of a Ho

é uston policeman,
5% Bporoacued Ellisor flagged it down.
, Young Kelley stopped.

rx. “Worth five bucks to you to drive me

|: further out Highway 73?” asked Ellisor,
'}cfSure thing,” said young Kelley, glanc-

;‘ing at his wrist watch, He had loads of
‘time before he piceed up his date at 8 p.m.
lood-caked shirt on the

“A guy I was with rolled me, Even took
my shoes. Some friend, huh. Next time
SaP aot fe better than drink on McCarthy
“Drive,” ‘ .

Be ‘| So the guy says he got rolled, young
4 @? Ny RE <c308 soe ett up

‘You got a kid about 20, black-hedded,

Kelley thought. That’s nothing new for
the taprooms on McCarthy.

Several miles down the hi hway Merle
Ellisor handed Kelley $$ and said:
“Thanks pal. Here’s where I want off.”

Kelley watched the tall, unshaven
stranger walk away with a slight effort,
then dismissed the incident from his
mind, ‘ i

The next morning young Kelley told his
father.at breakfast about picking up the
hitch-hiker. Officer D. A. Kelley rose in
his chair. “Let’s hear the rest of it.”

“Sure Dad,” and the youth described
Ellisor in detail,

Kelley phoned Ranger Klevenhagen.
The ranger arrived at the Kelley home
with a police identification picture of the
‘wanted Ellisor.

“That's the man I gave a ride to,”
young Kelley said. “No doubt about it.
He didn’t seem to be hurt too bad.”

The ranger telephoned search head-
quarters and the hunt shifted to the U.S,
Highway 73 area near where young
Kelley had taken Ellisor. ‘

Officers were dispatched to question
Merle Ellisor’s numerous relatives in .
neighboring Anahuac, . Other. officers. -
questioned Ellisor’s Houston relatives
and gave them lie tests. They didn’t know:
where Merle was, they said. The poly- -
graph said they were telling the truth,

One relative said of Merle: “He’s a
cold-blooded killer. I wouldn't help him
for anything..He’ll kill me if he ever sees .
me again.” ‘ ‘

The hunt fizzled in the Anahuac and
Highway 73 areas.-Several well-meanin
citizens phoned in tips which led to wil
goose chases. As far'as the law was con-
cerned, Ellisor had vanished. '

Late Tuesday night, 72 hours after
Trooper Crosby was slain, Ranger Klev-
enhagen played a longshot. He knew
that. Merle Ellisor, before he went to
rison, had worked as a deckhand on tug-

oats. : ‘
~» It was possible, Klevenhagen reasoned,
that Ellisor might be hiding. out near
‘familiar haunts, the ship channel,

* The anger talked to several tugboat
captains on the waterfront. The. infor-'
mation the ranger learned was more than’
he had‘ dared hope for. :

The captain.of the Tug Leda B. at
the Bludworth Shipyard Company. said
a thief smashed a pilothouse window
Sunday night ‘and got away with two
heavy blankets, two sweat shirts and
two pairs of shoes, ;

“Funny,” the captain said. “He just ~
‘took clothing.’ Nothing, valuable like ”
binoculars, radio or personal effects.” |
---And the captain of the Tug’ Splinter”
‘at the Middleton’ Boat ‘Works said that-.
a thief broke into the tug Monday night «
‘and stole a supply of. canned food and
a large tarpaulin. anes os

_On the strength of this information the

, Search shifted to brush-screened Bray’s

Bayou which flows into:the ship channel, .
Soon patrol cars crawled along the piers: '
of the channel and hundreds of officers
‘scoured nearby woods and brush.

’ As the search mounted early’ Wednes- -
day, peaanorhec’ housewives in the area -
watched from kitchen windows, ’

One of them was Mrs. Gladys, Mc- :
Donald, whose home faces the bayou. -
She was on her‘second cup of coffee at:
8:50 am. From her kitchen window she ’
had a commanding view of a railroad
trestle spanning the bayou.

She Spear nn tlh ova down ‘her coffee, |
dashed out her front door and hailed a .
group of detectives: ‘
'.“T just saw a man run out from the:

brush and cross the trestle,” she said ve

a i

excite
shouk
tall sk
€
i¢
t
joined

crossec
the ba
Singelt
was cle

uns
lowed t
into an
and stn
thick y:

ected a
him. ,
He wa
“Back
ton. The
“What’
son,
“Mike |
Singlet<
grabbed 1
cuffed hin
“I’m El
I know it

Her 0)

[Cc

the Tahiti,
kative. B
she and her
those who ;
very quiet.
though she
staying awa
d admitt<
they visited.
“Or as th
fluence of sc
questioning!
“Well...
once after so
And that’s e:
When they |
man was ha
er head on
The doorn
shiny new b
had pulled up
after the Pair
aged driver h
ng enough
e had return

. the wheel un

camie out and

Supreme Court Clears Way for Texas Execution

|
| HUNTSVILLE, Tex., June 8 (UPI)
' — The Supreme Court today denied a
stay for a man convicted of killing an
| undercover narcotics officer, clearing
the way for the execution early Mon-
day.
| The 50-year-old prisoner, Rudy
Ramos Esquivel, was scheduled to die
shortly after midnight for the 1978 slay-
ing.
| The state has put 13 men to death by
| injection since resuming capital pun-
| ' ishment in 1982. Two of the executions
| came in the past three months.

Mr. Esquivel was ordered to die for

the shooting on June 8, 1978, of Timothy

‘ Hearn, an undercover narcotics officer
who was slain during a drug raid in a

Hearn, 28, was shot once in the abdo-
men and three times in the face. His
partner and Mr. Esquivel were
wounded in the shootout.

Mr. Esquivel said the shooting oc-
curred after the officers tried to plant
heroin in his pocket because he had
refused to become an informer for
them. He said he was framed in the
killing, and that he was unfairly con-
victed by an all-white jury.

‘I Know I Was Right’

“‘T was set up and I have no remorse
in me,” Mr. Esquivel told reporters re-
cently. “I accept what is happening.
My great strength is that I know I was

southeast Houston parking lot. Mr. | right. 4

“If it happens, it happens,” he said of
his execution.

Mr. Esquivel, who spoke briefly with
a prison priest early today, watched
television most of the morning while
awaiting word on Supreme Court ac-
tion in his case, said Charles Brown, a
spokesman for the Texas Department
of Corrections.

The high court voted 7 to 2 at 12:35
P.M. to reject Mr. Esquivel’s request
to have the execution blocked.

He had won a stay of execution Fri-
day from a Federal judge, who gave
lawyers 20 days to present more evi-
dence on their claim that Hispanic resi-
dents were improperly excluded from
Mr. Esquivel’s trial jury.

But the state immediately appealed,

He also spent

, time in prison in Cali
and the United States Court of Appeals | fornia convicted of i ice
for the Fifth Circuit in New Orleans on | officer ang forger. ii a

Saturday reinstated the death date.

Mr. Esquivel has been on death row |
va since 1978, and has won stays of three
| previous execution dates.

The Texas Board of Pardons and Pa-
roles last week rejected requests from
two ministers to recommend a re-
prieve or commutation of Mr. Esquiv-
el’s death sentence.

Mr. Esquivel also wrote the board a
letter, telling them he had changed on
death row and wanted to preach to
other inmates.

At the time of the Hearn killing, Mr.
Esquivel was on parole from a 99-year
sentence he received in 1953, when he
was convicted on charges of participat-
ing in a gang rape of a woman on her
way to church. He served 11 years of
that sentence.

ry.

oenocann died at coat
lsotbeste penne

Ww # Texas execution: Rudy Ra-
wos ! m0s Esquivel was executed by injec-
Sy tion today in H untsville, Texas, for
i : the murder of an undercover narcot-
x ics officer. Esquivel, 50, died at 12:21
N a a.m. CDT, becoming the third man
NJ executed in Texas in as many
< months. He was the 14th person put
Sto death in Texas since it resumed
“1 & capital punishment in 1982 and the

o9th in the United States since the

\y Supreme Court reinstated the death

% Penalty in 1976. Esquivel was con-
victed of killing Houston police offi-

1c Cer Timothy Hearn, 28, on June 8,

\ 1978, during a shoot out. He claimed
police officers had tried to plant her-
oin on him and said he felt no re-
morse for the shootings.

om me - oo -

vewa sua,

fine OG 2c GE - DOU nee
Texas Cop-killer executed
; “GF-E
HUNTSVILLE, Texas — Rudy
mos Esquivel, convicted of Killing a
narcotics officer while on parole from
a rhe apa ae was executed by
Injection early toda after telli i
friends to “‘be cool.” obo
Esquivel was Pronounced dead at
12:21 a.m., Attorney General Jim
Mattox Said, 11 hours after the U.S.

3S
ye |
®
=]
®
2
8
<
S
g
ri
&
Ss
ig
<
Fs

ed executions in
1982. Eight People have been put to
death in the United States this

o om 1 lm |

we iw ' =_ te i) ®

° ms 2 +. T
ESQUIVEL, Rudy R., His., leth. inj

ib J

Tex. SP

meee weaeay

Convicted Killer Executed
Words: ‘Be Cool’ ¥

MeondAy

— Last
SF Chenicje
Huntsville, Texas

Rudy Ramos Esquivel, con-
victed of killing a narcotics of-
ficer while on Parole from a
rape conviction, was executed
by injection early today after
telling his friends to “be cool.”

Esquivel was Pronounced dead
at 12:21 a.m., said Attorney General

Jim Mattox, 11 hours after the U.S. |
Supreme Court voted 7 to 2to deny |
his request for a Stay.

The 50-year-old murderer had_ |
been sentenced to die forthe June |

8, 1978, shooting death of Timothy |
Hearn, 28.

“I just want to Say good-by to
my friends,” Esquivel Said just be.
fore he died. “Be cool. Give my love
to everybody. Thank you for being

| -° Pequest for-a-stay of the

x
Se
4 ON
ft
\9
1. \
aE SS
\
™~
|’
XN
Executed 3
Rudy Ramos Esquivel, c
convicted of killing a KR
Houston police officer
eight years ago while on YS
parole from a rape xX
conviction, was executed XS
by lethal injection early wy
today ina Huntsville, S
Texas, prison. Yesterday A
the U.S. Supreme Court Time)
denied the 50-year-old’s

death sentence.

4 WW A ow . ?
--~ aad ion

(Harris

“

Co, ) 6-9-1984,

IVEW surn a Sores

AY C~<~ 6
my friends. Give my love to every-
body.”

Associated Press

——ee

— >

Monday

(-9-$4
AG “men cé
NATIONAL

DIGEST 74/5
ake ie { 7
Execution in Texas
HUNTSVILLE, Texas — Rudy Ra-
mos Esquivel, who said he had “no
remorse” for killing an undercover
narcotics agent in a shootout over a
heroin deal, was executed by injec-
tion early today. ee
At the time of the police officer’s
1978 killing, Esquivel was on parole
from a 99-year sentence he received
in 1953, at age 17, for participation in
the gang rape of a woman. He served
11 years of that sentence.
‘He also served a prison term in
California for assaulting a police of-
ficer and for forgery. 7
Esquivel, a Hispanic, claimed he
was framed and convicted unfairly
by an all-white jury. He said officers
had tried to plant heroin in his pock-
et because he refused to become an
informant for them.
His last-minute appeal for a stay
was rejected Sunday on a 7-2 vote by
the Supreme Court.

Nanwar tusine--

. ae BOTS Goes
.B, Texas (UPI) =

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appellant.

ESQUIVEL v. McCOTTER 957
Cite as 777 F.2d 956. (5th Cir. 1985)

Will Gray, Houston, Tex., for petitioner-

Jim Mattox, Atty. Gen., Charles A. Palm-
er, Asst. Atty. Gen., Austin, Tex., for re-
spondent-appellee.

Appeal from the United States District
Court for the Southern District of Texas.

Before REAVLEY, POLITZ, and
HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Under capital sentence for the murder of
a police officer, Texas state prisoner Rudy
Ramos Esquivel appeals the denial of his
petition for habeas corpus, 28 U.S.C.
§ 2254. Being in full accord with the trial
court’s ruling, we affirm.

Esquivel was indicted in 1978 for the
murder of Houston police officer Timothy
Hearn during an incident in which Esquivel
also wounded Hearn’s partner, officer Mur-
ry Jordan. Esquivel pleaded self-defense
and presented witnesses in support of that
claim. The jury convicted him and sen-
tenced him to death. The Texas Court of
Criminal Appeals, en banc, affirmed the
conviction and sentence, 595 S.W.2d 516
(1980), and the Supreme Court denied cer-
tiorari, 449 U.S. 986, 101 S.Ct. 408, 66
L.Ed.2d 251 (1980). Esquivel sought post-
conviction review in the ‘Texas courts and,
after an evidentiary hearing, was denied
relief.

With state remedies exhausted, Esquivel
invoked 28 U.S.C. § 2254 seeking a federal
writ of habeas corpus. After a hearing
before a magistrate, the district court de-
nied the writ but granted a certificate of
probable cause.

[1] On appeal Esquivel claims that his
trial was constitutionally infirm because
the state trial judge would not permit his

1. Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) &
(2) (Vernon 1981) provides:

(b) On conclusion of the presentation of the
evidence, the court shall submit the following
issues to the jury:

(1) whether the conduct of the defendant

that caused the death of the deceased was

counsel to interrogate prospective jurors
during voir dire as to their understanding
of the words “deliberately” and “probabili-
ty” as used in Tex.Code Crim.Proc.Ann.
art. 37.071(b)(1) & (2) (Vernon 1981).! We
recently addressed.that contention and held
contrary to the position now urged by Es-
quivel. Our holding in Milton v. Procuni-
er, 744 F.2d 1091 (5th Cir.1984), cert. de-
nied, — US. ——, 105 S.Ct. 2050, 85

" L.Ed.2d 328, reh. denied, — U.S. , 105

S.Ct. 2667, 86 L.Ed.2d' 283 (1985), resolves
this issue and forecloses this argument.
Esquivel’s trial was not fatally tainted by
the challenged cabining of the voir dire
examination.

[2] Esquivel’s second claim is that the
Texas death-penalty scheme does not pass
constitntional muster because it fails to
provics «© jury with adequate guidance in
its consideration of mitigating circumstanc-
es. It cannot be gainsaid that to be consti-
tutional a death-penalty statute. must per-
mit a jury to consider mitigating factors

‘during the penalty phase of a capital trial.

Esquivel’s argument that the Texas stat-
ute, generally, and the procedure followed
in his trial, in particular, contravened the
Constitution ignores controlling precedent
and the record of this case. The Texas
statute was reviewed and approved by the
Supreme Court. Jurek v. Texas, 428 U.S.
262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
On the fact side of the ledger, it appears
certain that the jury did consider the miti-
gating self-defense factors Esquivel now
advances. As required by Tex.Code Crim.
Proc.Ann. art. 37.071(b)(8) (Vernon 1981),
during the sentencing phase the jury was
asked “whether the conduct of the defend-
ant in killing the deceased was unreason-
able in response to the provocation, if any,
of the deceased.” The jury answered that
inquiry adverse to Esquivel.

committed deliberately and with the reason-
able expectation that the death of the de-
ceased or another would result;

(2) whether there is a probability that the
defendant would commit criminal acts of
violence that would constitute a continuing
threat to society.... (Emphasis added.)

958 711 FEDERAL REPORTER, 2d SERIES

Esquivel seeks to buttress and shield his
argument by maintaining that in the ab-
sence of detailed instructions guiding its
consideration of mitigating factors, a jury
will be disposed to focus improperly on
aggravating factors. This argument is
foreclosed by Zant v. Stephens, 462 US.
862, 103 S.Ct. 2783, 77 L.Ed.2d 235 (1983),
wherein the Supreme Court held that the
Constitution does not require trial judges
to guide jury consideration of aggravating
and mitigating circumstances by specifical-
ly instructing jurors on how to balance
those circumstances. See also id. at 893,
"103 S.Ct. at 2751, 77 L.Ed.2d at 260 (Rehn-
quist, J., concurring in the judgment); see
generally Weisberg, Deregulating Death,
- 1983 Sup.Ct.Rev. 305 (criticizing Zant).
Zant validated our precedents in which we
have found this claim to be frivolous. See
e.g., Sonnier v. Maggio, 720 F.2d 401 (5th
Cir.1983), cert. denied, 465 U.S..1051, 104
S.Ct. 1331, 79 L.Ed.2d 726 (1984), Gray Vv.
Lucas, 677 F.2d 1086 (5th Cir.1982), cert.
denied, 461 U.S. 910, 103 S.Ct. 1886, 76
L.Ed.2d 815, reh. denied, 462 US. 1124,
103 S.Ct. 3099, 77 L.Ed.2d 1357 (1983).

Our decision today upholding the Texas
capital sentencing scheme is compelled by
Jurek and Zant and is consistent with our
dictum in Spivey v. Zant, 661 F.2d 464, 471
& n. 10 (5th Cir.1981), cert. denied, 458
USS. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374
(1982), in which we referred to Tex.Code
Crim.Proc.Ann. art. 37.071(b) as providing
juries with the “requisite guidance
without explicit discussion of mitigating
circumstances.”

The judgment of the district court is,
accordingly, AFFIRMED.

4ayms

UNITED STATES of America,
Plaintiff-Appellee,

Vv.

Arthur Thomas NIXON, David L.
Snoddy and Donald E. Gilbreth,
Defendant-Appellants. —

No. 84-3721.

United States Court of Appeals,
Fifth Circuit.

Dec. 2, 1985.

Defendants were convicted in the Unit-
ed States District Court for the Eastern
District of Louisiana, Veronica D. Wicker,
J., of various counts involving the attempt-
ed purchase, possession, and distribution of
over 40,000 pounds of marijuana, and they
appealed. The Court of Appeals, Garza,
Circuit Judge, held that: (1) entrapment
charge unmistakenly apprised jury of both
the quantum of proof required and upon
which party burden of proof fell; (2) failure
to grant pretrial access to confidential in-
formants did not result in prejudicial error;
(3) Government’s purported intimidation of
witness called by defendant who was ac-
quitted did not prejudice trial of two other
defendants; and (4) discretion was not
abused in allowing jury to view unintelligible
portions of audio visual tape.

Affirmed.

1. Criminal Law 735

Ruling on a motion to dismiss for
government overreaching is a matter of
law to be decided by the district court and,
yet, must necessarily be based on factual
findings made by the judge trying the case;
thus, the ruling ‘presents a question of
mixed law and fact.

2. Criminal Law €36.5
While conduct alleged to show govern-

ment overreaching might shock some sensi-

bilities, Court of Appeals must evaluate
such conduct in light of undercover activity
necessary to enforcement of criminal laws.

PTR el eign

Semel ya yar

EE PSNR A lis

WWVYEVTV 4O ALIS

42 93s er7m tem es

im}
gs 3

530 Tex.

Yet, in pattern and form jury charges on
punishment in a capital case the jury is not
instructed that it may, must or shall con-
sider evidence of mitigating circumstances
in responding to the first question? In-
deed, the Court held in King v. State, 553
S.W.2d 105, 107 (Tex.Cr.App.1977) that “de-
liberately” need not be defined in the
charge for, not being specially defined by
law, it is a word deemed simple in itself and
used in its ordinary meaning that jurors are
supposed to know.‘ So far as can be as-
certained we have not developed a standard
or measure by which this Court will review
an affirmative answer to the first question
in order to decide that mitigating circum-
stances were adequately considered or, for
that matter, considered at all by the jury.
Thus, while opinions of the Court use phras-
es like “the jury must consider” all relevant
evidence, we have no way of telling that it
did the duty it was not told it must perform
or for what purpose.

Now what was intimated in Chambers v.
State, 568 S.W.2d 318, 323 (Tex.Cr.App.
1978)—no abuse of authority in restricting
length of voir dire by excluding inquiry into
a venireman’s understanding of “deliberate-
ly”—becomes a definitive holding that an
accused is not entitled to question prospec-
tive jurors as their definition of the term.

Thus, the juror goes into the box without
the accused and his trial counsel having the
slightest inkling whether the juror under-

3. See Texas Criminal Pattern Jury Charges,
CPJC 19.03(P), 136 ff.; 8 Texas Practice, Crimi-
nal Forms, Willson (Morrison and Blackwell)
§ 81.13, 161 ff.; cf. McClung, Jury Charges for
Texas Criminal Practice 43, para. 3.

4. The King court also noted that in Jurek the
Supreme Court concluded that submitting the
three special questions “constitutionally guid-
ed” determination of the punishment issues
without requiring special definitions of the
terms. As already indicated, however, what
the Supreme Court pointed out was that this
Court had not then determined whether miti-
gating circumstances were to be included in
that determination. On this point King brings
the matter full circle. Similarly, Hovila v.
State, 562 S.W.2d 243, 249 (Tex.Cr.App.1978).

5. That the meanings are and were intended to
be different is implicit in the opinion of the
Court in Brown v. State, 554 S.W.2d 677 (Tex.

595 SOUTH WESTERN REPORTER, 2d SERIES

stands and appreciates that “deliberately”
as used in the first question means some-
thing more than “intentionally” or “know-
ingly” as will have been found extant from
the charge on the court in the offense
phase 5—indeed, without the juror even re-
alizing that in performing his duty during
the punishment stage he will be confronted
with the problem. During the trial, both at
the offense and punishment stages, the un-
informed juror naturally is not likely to be
alert for evidence of “deliberateness.” Un-
like the applicable culpable mental state
defined in the main charge, “deliberately”
need not be, and therefore probably will not
be, defined in the charge on punishment.
Still guideless in this respect the jurors will
deliberate, and perhaps argue, with one an-
other as to the common meaning of the
term “deliberately.” And, finally, no one
outside the jury room will ever be able to
determine just what meaning the jury set-
tled on and worked with in answering the
first question. A more wanton and freak-
ish method of achieving a responsive an-
swer to a question of life or death may be
conjured up, but not many.®

In order that a prospective juror may
engage in some measure of self analysis and
that an accused and his counsel may crit-
ically evaluate the prospects, to the end
that the jury which is finally selected at
least gives hope of being “fair” in a consti-
tutional sense, the seventh ground of error

Cr.App.1977) in disposing of the sixth ground
of error. —

6. As an aside, I am constrained to remark that
decisions such as made by the majority in over-
ruling the seventh ground of error are what
often bewilder the practitioner and perplex the
thinking layman. Here, in this very case, a
venireman may not be asked his understanding
of the meaning of “deliberately"—the key
phrase in one of two or three questions that he
must answer as a juror—but may be interroga-
ted at will by counsel for the State and the
accused and, yes, by the trial court concerning,
and be disqualified by the State for confusedly
answering questions as to, “‘motive”—which all
admit is a matter that need not be proved in
order to convict. /

EX PARTE KELLER Tex. 53]
Cite as, Tex.Cr.App., 595 S.W.2d 531

should be sustained. Because it is not I
dissent.

ROBERTS, J., joins.

W
© ; KEY NUMBER SYSTEM

Ex parte Shirley Ann KELLER.
Ex parte Jack Gordon FRANKLIN.
Nos. 62936, 62937.

Court of Criminal Appeals of Texas,
Panel No. 2.

Feb. 6, 1980.

Appeal was taken from judgment en-
tered by the 176th Judicial District Court,

Harris County, William Hatten, J., in habe-

as corpus proceedings denying petitioners’
request for reduction of bail set in three
separate cases for offense of theft by re-
ceiving stolen property alleged to be in ex-
cess of $1,000,000. The Court of Criminal
Appeals, Clinton, J., held that petitioners
adequately bore their burden of proof by
showing that each was entitled to reduction
in bail, which had been set at $200,000 in
each cause for one petitioner and $100,000
in each cause for the other; bail was set in
sum of $10,000 for each of the three pend-
ing causes.

Request for reduction of bail granted;

bail set.

Douglas, J., dissented.

1. Bail 51

Amount of bail set in criminal proceed-
ing should be sufficiently high to give rea-
sonable assurance that accused will appear
as required, but the power to set bail is not
to be used so as to make it instrument of
oppression.

2. Bail <=51

Ability or inability to make bail does
not in and of itself control in determining
amount to be set, but it is element to be
considered along with other statutory fac-
tors. i?

3. Bail e=53

In habeas corpus proceedings wherein
petitioners requested trial court to reduce
bail set in three separate cases for offense
of theft by receiving property alleged to be
in excess. of $1,000,000, petitioners ade-
quately bore their burden of proof by show-
ing than each was entitled to reduction in
bail, which had been set at $200,000 in each
cause for one petitioner and $100,000 in
each cause for the other; bail was set in
sum of $10,000 for each of the three pend-
ing causes.

Clyde W. Woody, Houston, for Keller.

Robert W. Tarrant, Houston, for Frank-
lin.

John B. Holmes, Jr., Dist. Atty., Alvin M.
Titus and W. Paul Mewis, Asst. Dist. Attys.,
Houston, Robert Huttash, State’s Atty.,
Austin, for the State.

Before DOUGLAS, ROBERTS and
CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a habeas corpus
proceeding wherein the petitioners request-
ed the trial court to reduce the bail set in
these causes.

Petitioners have been in custody since
August 22, 1979, each having been indicted
in three separate cases for the offense of
theft by receiving stolen property alleged to
be in excess of one million dollars. At the
conclusion of the hearing on their applica-
tions, the trial court set petitioner Keller's
bail in the amount of $100,000 in each cause
and set petitioner Franklin’s bail in the
amount of $200,000 in each cause. It is
from these orders that petitioners have per-
fected this appeal.

956 717 FEDERAL REPORTER, 2d SERIES th Cn Poe

claim of disabling pain. Had the Secretary
been presented with such evidence, her de-
cision “might. reasonably have been differ-
ent.”

The quotation is from King, and express-
es the standard. of materiality under
§ 405(g) applied in this circuit. —

The Court of Appeals for the Fifth Cir-
cuit in Chaney v. Schweiker, 659 F.2d 676
(1981), phrased the standard in terms of a
“reasonable possibility” that the Secretary
‘might have reached a different decision.
See also. Dorsey v. Heckler, 702 F.2d 597
(5th Cir.1983). .

In Chaney, 659 F.2d. at 679 n.-4,-and in
Dorsey, 702 F.2d at. 605 n. 9, there are
references to King’s “stricter” standard.
The “stricter” standard, however; was de-
rived from a misquotation of this court’s
words. In both cases it was said that this
court in King had said that. the evidence is
material if “reasonably likely to have re-
sulted in a different decision.”

That criticism of King based upon the
mistaken quotation has been repeated in
Booz v. Secretary of Health and Human
Services, 734 F.2d 1378, 1380-81 (9th Cir.
1984); Huffer v. Heckler, 591 F.Supp. 626,
627-28 (S.D.Ohio 1984); and Czubala v.
Heckler, 574 F.Supp. 890, 899 (N.D.Ind.
1988).

When one looks at the words actually
used in King, we perceive no difference
between the standard as expressed there
and the standard as expressed by other
courts. The standard as applied in this
court appears “stricter” only if one adds to
and qualifies the words actually used by
this court.

III.

Because of our conclusion that the case
should be remanded for the submission and
receipt of further evidence, we do not con-
sider the other contentions made in this
court. Ss

REMANDED.

Rudy Ramos ESQUIVEL, /<? -
Petitioner-Appellant,

» ve

O.L. McCOTTER, Director, Texas
Department of Corrections,
Respondent-Appellee.

No. 85-2074..

United States Court of Appeals,
Fifth Circuit.

~ Nov. 19, 1985.

Appeal was taken from order of the
United States District Court for the South-
ern District of Texas, Gabrielle K. Mc-
Donald, J., denying petition for habeas cor-
pus. The Court of Appeals, Politz, Circuit
Judge, held that: (1) refusing to permit
defense counsel to interrogate prospective
jurors during voir dire as to their under-
standing of words “deliberately” and
“probability” as used in statute, setting
forth issues to be considered by jury in
sente.icing defendant in capital case, did
not fatally taint petitioner’s murder trial,
and (2) Texas death penalty scheme was
not unconstitutional.

Affirmed.

1. Jury €131(4)

Refusing to permit defense counsel to
interrogate prospective jurors during voir
dire as to their understanding of words
“deliberately” and “probability” as used in
Vernon’s Ann.Texas C.C.P. art. 37.071(b)(1,
2), setting forth issues to be considered by
jury in sentencing defendant in_ capital
case, did not fatally taint petitioner’s mur-
der trial.

2. Criminal Law €1206.1(2)

Texas death penalty scheme was not
unconstitutional on grounds it failed to pro-
vide jury with adequate guidance in its
consideration of mitigating circumstances.
Vernon’s Ann.Texas C.C.P. art. 37.071(b).

‘As

Killer saves final | ;
words for lawyer

HUNTSVILLE, Texas, — A.
man was executed by injection
early Tuesday for strangling a.
74-year-old woman. in her bath- .
tub at an apartment complex °
where he had been fired as a.
maintenance worker. | sce
i= Edward Ellis, 38, went to his
death after..the U.S. Supreme .
Court refused a. last-minute
stay: His lawyers claimed Mon-
day to have new evidence that
another man, who. died a year.

statement. Scott was a former -
inmate who testified against
Ellis. oi poe enc |

~~} EXECUTION: Edward Ellis, 38, was put to death b
lethal injection in Texas for the 1983 seranpulation of Bettie
Elizabeth Eakens, 74, in her bathtub.

& WINE CENCTIDEN The RAinhianesn

CriseaeAmaA Court

Usa “CebAy
[A] IQGo—

(4-1)

Court overturns conviction,
upholds 7 other sentences. @e7y:

By DOUGLAS FREELANDER | |
OF THE HOUSTON POST STAFF

The Texas Court of Criminal Ap-
peals overturned the conviction of
a condemned killer from Houston
Wednesday but upheld seven death
sentences in rulings that could
speed the pace of executions in
Texas.

The court threw out the death
sentence of Michael Goodman, 36,
who has been on death row since

1982 for shooting Jackie Quin to ,

death in 1979 while robbing her
van in Houston.

Officials said Goodman will be
brought to trial again and will re-
main incarcerated until then.

The court was responding to the
U.S. Supreme Court's decision in
the case of Johnny Paul Penry,
convicted in the 1979 rape-slaying
of a Livingston housewife.

The Supreme Court overturned
Penry’s death sentence in 1989,
ruling that Penry’s jury should
have had the chance to weigh
Penry’s background of retardation
and child abuse. Penry was retried
in 1990 and again sentenced to
death. .

In Goodman’s case, the Su-
preme Court ruled that, as with
Penry, the jury was not allowed to
consider Goodman’s background
of mental retardation.

But Goodman is a fairly intelli-
gent man, said Caprice Cosper, a
prosecutor who handles capital
cases for Harris County.

Cosper said Goodman will be
tried again ‘I can’t think of any
reason why he can’t be tried,”’
Cosper said. ‘“‘There is ample evi-
dence he was not retarded to the
extent that was claimed by his de-
fense.”’

Cosper said the next step will be
to round up witnesses.

While the state appellate ruling

is expected to accelerate execu-
tions, there will be no stampede,
said state Assistant Attorney Gen-
eral Bob Walt, chief of the litigation
section.

' “I! think we will see'some in-
crease in executions but I don’t see
it asta floodgate situation,’\ he said.

The state appellate court ruled
that, in death sentences prior to
Penry, the defendants can make

'Penry-like appeals, even if they did
not object at the time of the trial
that their background wasn't given
special consideration.

But the court said that it would
not consider evidence that was not
brought up during the trial.

esponding to a question from
the Supreme Court, the appellate
court also ruled that John Henry
Selvage, who killed a deputy sheriff
in Houston 11 years ago, is not
barred from making an appeal un-
der the Penry decision. *

The appeals court upheld the |
death sentences of Edward Ellis,
another condemned Houston kill-
er, as well as Harvey Earvin, Rob-
ert Black Jr., Clarence Lackey, Clif-
ford Boggess, Earnest Baldree and

Leonel Herrera. ae
- Wednesday, there were 339
men and four women on death row
in Texas, which has executed exe-
cuted 39 men since capital punish-
ment resumed in 1982.
Several inmates on death row
criticized the state court’s decision.
“This ruling can open the flood-
gates for a lot of executions,” Ear-
vin told reporters.
— “T want to cry. This is a real bad
thing for a whole lot of people, a
whole lot of my friends,” said one
inmate who asked not to be identi-
fied. ‘How can they play with peo-
ple’s lives like this?”

The Associated Press contribut-
ed to this report.

MHouSTOW

fes7

TAVARS ,

MAY Zo,
(99)

New evidence cited

yers for a condemned man said

early today for the death of Ber-

tie Elizabeth Eakens, who. was,
found dead in her bathtub
March 1, 1983. BG: F hes

av «

The Fresno Bee .
Tuesday Call F.

March 3, 1992
LASTS

6V 7661 ‘py YoueW ‘Aepsaupam e jeul4 aag OJUaWeIDeS ay]

: es

_ Inmate executed in Texas

UNTSVILLE, Texas — A man
was executed by injection
Tuesday for strangling a 74-year-

old woman in her bathtub at an

apartment complex where he had
been fired as a maintenance work-
er,
Edward Ellis, 38, went to his
death after the U.S. Supreme Court
refused a last-minute Stay. His law-
yers claimed Monday to have new
evidence that another man, who
died a year ago, was the culprit.

The killing was one of three in
1983 that became known as the
Houston bathtub slayings. Ellis was

not implicated in the others.

Bertie Elizabeth Eakens was
strangled with a pillowcase and
found in her bathtub. Jewelry,

. Checks and her car were stolen.

ERE WESE7 Were see

TEXAS modified date 2b JULY 1990 LETUAL INJECTION _
EDWARD ANTHONY ELLIS, (White), age 37 has been on death row since
September 1983. He was convicted of the robbery/murder of a white
elderly female.

TAKE ACTION, CONTACT:
Attorney General Jim Mattox Gov. William P. Clements Jr.

State Capitol PO Box 12428
Austin, TX 78711 Austin TX 78711
(512) 463-2100 (512) 463-2000

FAX: (512) 463-1849

ILLINOIS **KSUICIDE** 12 SEPTEMBER 1990 LETHAL INJECTION
Charles Walker, (White), age 49, hae been on death row gince 1983.
Walker pled guilty to 2 counts of murder. The victime, a white male
and female, were engaged to be married. Walker, drunk at the time,
wanted to rob the couple but then was recognized by one of them.
Rather than be identified, he killed them both. ae

A clemency petition ie being handed to the Governor at the end of
June. Illinois hag not had an execution since 1962.
TAKE ACTION, CONTACT: Gov. James R. Thompson Prigoner Review Board

State House Chair Glen Klincar
Springfield IL 62706 319 E Madison St. Ste A
(217) 782-6830 (217) 782-7273

JOO RKO KOR KKK AOR ROR ROR KOR AAO A HR RA A A HR HACK

UPDATES-- Jesegie Tafero, Florida, was executed May 4, 1990.
Wilford Stokes, Miggsouri, was executed May 11, 1990.
Leonard Laws, Missouri, was executed May 17, 1990.
Johnny Ray Andergon, Texas, Was executed May 17, 1990.
Dalton Prejean, Lovuieiana, was executed May 18, 1990.
Thomas Baal, Nevada, was executed June 3, 1990.
Cesar Fierro, Texas, received a 6tay.
Frederick Kirkpatrick, Louisiana, received a 30-day reprieve.
John Edward Swindler, Arkansas, was executed June 18, 1990.

ORO RRR RR ROKK ROKR OK RK ROK ROK FR OK CK OR ROK KR OK ROR KKK A KR KK RRR CC ARKO OR AK KR BRK
There have been 130 executions in the United States since the
reinetatement of the death penalty in 1976.

National Execution Alert Network
c/o NCADP

1325 G St. NW Lower Level B
Washington DC 20005

(202) 347-2411

iN |
so ton Ce ak ae

t \\ ‘ Capital Funishment
ae a Research Project
FO Drawer 277

Headland AL 36345

AMNESTY
Th INTERNATIONAL
USA

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881

17 Ma 1990
Correction to follow-up FU 69/90 (1 May) *

’ USA (Texas): Edward Ellis

Please note the facts given in the above follow-up about Edward
Ellis were incorrect. He is not, as was stated, black. Please

anend your records accordingly. We are sorry for the inconvenience
caused.

Edward Ellis is still scheduled to be executed in Texas on 19
June 1990. Appeals on his behalf should continue.

17 May 1990
Correction to UA 194/90 (16 May)

Please note that the address for the Istanbul Chief of Police should
not have been included in the above Urgent Action. Please remove the
address from the urgent action. We apologize for the inconvenience

caused.

This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretariat in London, United
Kingdom. Amnesty International is an independent worldwide movement working for the international! protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.

aANntho oF hy 9

‘, hi 4 Teth tow 4
WELL UGS , we = ULL» aad o

They don’t get any weirder than this one...

HOUSTON'S COPY-CAT
~ STRANGLER WAS A WOMAN

by CLARENCE WALKER

Texas. As manager of the firm, the 61-year-old blonde widow was as solid an employe

i t just wasn’t like Ruth Kottler to be late for work at Benjamin Loan Office in Houston,

as they come, generally arriving at her desk well in advance of her staff. But on Tues-
day, March 1, 1983, she was already 45 minutes late and repeated phone calls to her home

went unanswered.

Office personnel contacted the
Houston Police Department thinking
the woman might have been involved

"in an automobile accident. The traffic

department had no record of an

accident in which a person answering
to her name and description was
involved.

As time elapsed, anxiety increased
among personnel at the office who

knew Kottler would have called and
reported her absence. Around 9
o’clock, a co-worker arrived at the
apartments where she lived. The
woman took her matters to the
manager who advised a maintenance
worker to investigate. Kottler’s car was
still parked on the lot. The couple

approached the woman’s second floor ~

apartment. There was no reponse to
repeated rings of the doorbell. Now,
the maintenance worker decided to use

. one of his master keys for entry.

Upon entering the apartment, it
appeared immaculately in order — no
outward indication of why she hadn’t
responded. A curious search for the
woman. proved futile. They heard

’ water running in the bathroom, but

the door was closed.

“‘She’s probably taking a bath,’’ the ~

woman replied. ‘‘Ruth, are you in
there?’’ she called out. Hearing no

_ answer, she opened the door and inside

revealed the reason why the woman
hadn’t reported for work.

Kottler’s fully clothed body lay
face-up in a tub of water. To the
untrained eye, it appeared she prob-
ably had suffered a dizzy spell and
slipped into the tub and drowned, or
one of many other reasons. Momen-

Woman’s body lies in blood-

stained bathtub water, one of
three identical scenes discov-
ered by Houston lawmen.

SSPSES Ges

5 Sas 3
Cee toes ae

Reo

Fugiti
Squad
de de
left, ar.

now

tarily, th

what real

grief, th:
police.

? : Short

converge

checked t

of life. T

ters to ex)

| a corone

|: Meanwhi

preserve '

Short

homicide

premise

techniciar

coroner s

| from a pi

ais

Fugitive David Helfond enters
squad car escorted by’homici-
de detectives Gilbert Schultz,
left, and Roy Ferguson. Helfond
now is behind bars for life.

tarily, they stood there in shock as to
what really had happened. Frantic with
grief, the maintenance man phoned
police. ;

Shortly, a team of patrolmen
converged on the scene. Two officers
checked the corpse; there were no signs
of life. The officers radioed headquar-
ters to expedite homicide investigators,
a coroner and crime lab technicians. '
Meanwhile, they secured the area to
preserve the scene intact.

Shortly afterward, a crew of
homicide investigators arrived on the.
premises followed by crime lab
technicians and a county coroner. The
coroner stated that it did not appear,
from a preliminary examination, that

the woman had been sexually assault-
ed. He further reported that the
woman appeared to have been strangl-
ed before she was submerged in the

_ water. The usual blood tests,’ urine

samples, hair and fingernail scrapings
were taken.

“*She’s been dead at least six
hours,’’ the coroner surmised.

In the living room, investigators
observed a mass of blood smeared on

a sofa, indicating the woman had been
attacked there and dragged to the
bathroom. Identification technicians
took pictures of the corpse from
various angles together with shots of
interior views of the luxury apartment,
while a fingerprint expert meticulously

(continued on next page)
33

AMNESTY
INTERNATIONAL
USA

ENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881
Further information on TLX 14/90, 16 May, and TLX 14/90-1, 18 May

Death Penalty 19 June 1990

USA (Texas) : Cesar R Fierro

Cesar Fierro, who was scheduled to be executed on 14 June, has
received a stay of execution; we do not Lave any further details at
present, but pleasé stop sending appeals on his behalf for the time
being.

19 June 1990
Further information on UA 69/90 (16 February, and follows-ups 28
February, 23 March, and 1 May, and correction to 17 May) - Death
Denalty

USA (Texas): Edward ELLIS

Edward Ellis, who had been scheduled to be executed on 19 June, has
received a stay of execution until 25 July 1990. No details of the
reasons for the stay are known at present; however, please continue
sending appeals on his behalf.

Edward Ellis, white, was convicted of the murder of an elderly white
woman and sentenced to death in September 1983. This is now the third
execution date he has received; on both the previcus occasions, 27
March and 19 June 1990, he received temporary stays of execution.

@. of 2 May 1990 there were 312 prisoners under sentence of death in
Texas. There have been 34 executions since 1982, the most recent
being the consensual execution (ie. with his consent) of Jerome Butler
on 21 April 1990. The method of execution is lethal injection.

Amnesty International opposes the death penalty in all cases as a
violation of the right to life and the right not to be subjected to
cruel, inhuman and degrading treatment or punishment, as proclaimed in
the Universal Declaration of Human Rights.

FURTHER RECOMENDED “ACTION: Teiegrams/Telepnone cails/FAX:

- urging that clemency be granted to Edward Ellis by commuting his
death sentence.

APPEALS TO:

The Hon. James Mattox Telegrams: Atty. General Mattox,
Attorney General Austin, TX 78711
Supreme Court Building Telephone: (512) 463 2080
Austin, TX 78711 (512) 463 2100
FAX: (512) 463 1849
Chair Telegrams: Board Pardons Paroles
Board of Pardons and Paroles Austin, TX 78711, USA
PO Box 13401 Telephone: (512) 459 2716
Capitol Station. Telex: 910 874 1340 GOVTEXOFC AUS
UStin, TX 78711 FAX: (5i2} 459 2716

PLEASE SEND APPEALS IMMEDIATELY, TO ARRIVE BY 24 JULY 1990.

sat Sa rena

suspect about the escape plan.
Houston police and the arson in-
vestigator'worked out a plan themselves.

The arson investigator posed as a poten-

tial hit man who had been alerted by
Helfond’s girlfriend. The investigator
talked to Helfond through the jail phone
system and agreed to do the job for
$5,000. The girlfriend was to furnish a
gun and pay the $5,000.

The meeting was set up and police
videotaped the action. -

The girl was arrested and jailed on
misdemeanor charges, but because of
her age and other factors the charges
against her later were dropped.

On Monday, Oct. 3, 1983, Helfond
entered a plea of guilty to a charge of
murder in the Elizabeth Faubus death.
Under a plea-bargain deal, the charge
was reduced from capital murder—that
could carry the death penalty—to the les-
ser charge of murder. Following the
recommendation of the prosecuto”, State
District Judge Pat R. Lykos sentenced
Helfond to life in prison.

Because of the previously discovered
plan of Helfond’s to ‘‘shoot his way out’’

‘of the courtroom, security was heavy,

with extra deputies on duty.

An assistant district attorney told
reporters that the district attorney’s office
agreed to the plea bargain because ‘‘evi-
dence we had hoped would develop to
show the murder was committed during a
robbery and rape never did.’’

‘‘We seriously questioned whether we
could have gotten a capital murder con-
viction. A jury could have found him not
guilty, and he would have been set free.”’

On Thursday, Sept. 8, 1983, Edward
Ellis was found guilty of capital murder
by a jury in the court of State District
Judge Charles Hearn and was given the
death penalty. The jury deliberated only
27 minutes. He was convicted of killing
Mrs. Eakens during a burglary. Under
Texas law, the capital murder conviction
was appealed automatically to the Texas
Court of Criminal Appeals.

Although homicide detectives had in-
terviewed more than 50 persons and filed
enough report to fill four desk drawers,
the slaying of Ruth Kottler remained un-
solved at this writing. o¢o¢

f Pesticide Made Him
Crush Her Skull!

(Continued trom page 20)

Chelmsford, Massachusetts, the wit-

. Nesses agreed. Thanking them for their

help, the homicide probers hurried to

. Chelmsford, a community of 6000 resi-

dents some 10 miles southeast of Dunst-
able. At the lawn care company they
spoke with a supervisor who readily ac-
knowledged that one truck of his had
been to Dunstable that afternoon.

‘‘Who was driving it?’’ one of the
homicide detectives asked.

‘*‘David Garabedian,”’ the witness an-
swered.

**Who’s he?’’

Garabedian, the police would learn,

. Was a 22-year-old employe of the firm, a
_ hulking young man who carried some

230 pounds on a six-foot, four-inch
frame. A lawn survey sheet he had filled
out indicated that the Chelmsford resi-
dent had visited the Muldoon property
about 5:15 that afternoon. °.

A quick check into David Garabe-
dian’s recent history revealed that the
young man was a 1979 graduate of
Chelmsford High School, where he was
remembered as a quiet and reserved stu-
dent from a close-knit, church-going

46 True Detective

family. Following his graduation, he had
spent two years in Buffalo, New York,
studying communications at Medille
College. Returning to Massachusetts, he
had found work with a Lowell-based out-
fit before accepting positions with area
lawn care companies.

Of greater interest to the homicide
probers was word that in the hours prior
to the murder of Eileen Muldoon, David
Garabedian had been spotted in his com-
pany’s pickup truck by a state trooper.
Although there might have been ‘‘some
contact between a state trooper and
Garabedian,’’ according to First Assis-
tant Middlesex County District Attorney
Thomas Reilly, it was not likely that the
vehicle had been curbed.

Around midnight, homicide probers
paid a visit to the Chelmsford home
David Garabedian shared with his fami-
ly. After speaking with the young for a
short while, the lawmen asked to see the
work clothes he had worn that afternoon.
Garabedian reportedly produced a pair
of work pants, some work boots and a
work shirt, as well as a green work jacket
emblazoned with the logo of the lawn
care company. State Trooper Laura Be-
urman subsequently would report that
the jacket was missing its drawstring and
that there were maroon stains on
the pants.

At precisely 1:11 on Wednesday

morning, March 30th, state and Dunst-
able police took David Garabedian into
custody on charges of murdering Eileen
Muldoon. He was brought to the Chelm-
sford police station and held overnight
pending arraignment in Ayer District

-Court.

A spokesman for the Middlesex Coun-
ty district attorney’s office told reporters
that the case would be prosecuted on a
priority indictment’’ from the grand jury.

The news of David Garabedian’s arrest
had a predictably dismaying effect on his
friends and acquaintances in the Lowell
area.

‘‘Everyone is in a state of shock,”’ said
the pastor of the Chelmsford church
which Garabedian attended with his
family. ‘‘If he had been a troublesome
person with a history of obstinacy and
unmanagibility then you might be able to
be prepared for something like this.

‘*I can’t comprehend it. It’s shocking
when you’re suddenly confronted by
something you never dreamed could exist
in the perspective of somcone you knew
so well.”’

‘*He was a good boy, a churchgoer, a
person with a trouble-free past, not a kil-
ler,’’ said a friend of the suspect. ‘‘It
must all be a terrible mistake.”’

“It’s so unbelievable,’’ said the prin-
cipal of Chelmsford High School.
‘*When I heard it this morning at 5:30, I
thought it’s so out of character. I said,
‘That can’t be the David I know.”

“‘Thope there’s nothing to it, that’s all.
This kid is a good-sized boy. But he’s
harmless.

“*He never had any problems in
school.’’

_ “This isn’t like David at all,’’ a friend
said. ‘‘He was a very quiet fellow. What
turned him on were cars and rock bands,
not violence. What we all loved him for
was his sense of humor.’”’

At his arraignment, Wednesday morn-

ing, David Garabedian pleaded innocent .

to first-degree murder charges. Judge
David Williams ordered him remanded to
the Billerca House of Correction without
bond pending further action on his case.

Speaking later with newsmen, First
Assistant District Attorney Reilly said
that witnesses had been found who
claimed to have seen David Garabedian
talking to Eileen Muldoon in front of her
house in the moments before her death.

‘*We have no information that he was
ever in the house,”’ Reilly said. ‘‘We
don’t think that he was.

‘‘He had completed’ or was aboutsto
complete the estimate when Mrs. Mul-
doon came home. The two were seen

outside
screams
Dailh
lo!
cao.
house.
Garabec
shortly a
had retu
hour lat
“She
place at
“*The
from wt
After
Reilly ¢
parked |
book in
with D
vestigat:
gone to}
Tuesday
with Mi
he had t
compan
“Tew
custome
ing imp
said. ‘‘7
ers in |
weeks a
cally fo
vide a {
Mrs. M
advertis

gor un
Massact
defenda
their clic
of the k:
the che:
contact
It wa:
that Gar
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garrotin;
his unif<
failed tc
fendant
least tw
murder
that ther
ity in th,
Amor’é
nesses
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who hac§
slaying.
rocks a:
head anc

NELLIS, chuahA, Tx 2319924

U.4, SUPREME COURT REPORTS 107 L Ed 94

No. 88-2026. Clement J. Pacyna

No. 89-5683. Edward Anthony El- _ Petitioner v John O. Marsh, Jr.
lis, Petitioner v James A. Ly- Secretary of the Army, et al.

naugh, Director, Texas Depart- 493 US 970, 107 L Ed 2d 384. 1),
ment of Corrections S Ct 420. : » 110

493 US 970, 107 L Ed 2d 384, 110 November 13, 1989. The petitior

S Ct-419. for rehearing is denied.

November 13, 1989. Petition for 5
writ of certiorari to the United L py in ee aa US 819, 107
States Court of Appeals for the Fifth : ‘

Circuit denied.

Same case below, 873 F2d 830. No. 88-5682. Barbara W. Levitt
Justice Brennan and Justice Mar- Petitioner v University of Texas
shall, dissenting. at El Paso, et al.

Adhering to our views that the 493 US 970, 107 L Ed 2d 384, 110
death penalty is in all circumstances §S Ct 420.

cruel and unusual punishment pro- 7
hibited by the Eighth and Four- November 13, 1989. The petition

teenth Amendments, Gregg v Geor- for rehearing is denied.

gia, 428 US 153, 227, 231,49 L Ed Former Decision. 488 US 984. 102
2d’ 859, 96 S Ct 2909 (1976), we 1 ka od 567 109SCt536.
would grant certiorari and vacate

the death sentence in this case.

No. 88-7104. Charles Wesley

No. 89-494. In Re Gerald Sparks, Baker, Petitioner v United
Petitioner States

493 US 963, 107 L Ed 2d 384,110 _ 493 US 970, 107 L Ed 2d 384, 110
S Ct 419, reh den 493 US 1037, 107 5 Ct 420.
L Ed 2d 778, 110 5 Ct 763. November 13, 1989. The petition

November 13, 1989. The petition for rehearing is denied.
for writ of mandamus is denied. Former Decision, 493 US 827. 107 3

L Ed 2d 58, 110 S Ct 93.

No. 88-1964. Earlene Polyak, Peti-
Jim Hamilton, Judge, |
Chancery and Circuit Gourtso¢ No. 88-7221. In Re James L. Mar |

Lawrence County tin, Petitioner

493 US 970, 107 L Ed 2d 384, 110 _ 493 US 970, 107 L Ed 2d 384, 110 J
S Ct 419. S Ct 420. a

November 13, 1989. The petition November 13, 1989. The petition 3
for rehearing is denied. for rehearing is denied.

Former Decision, 493 US 815, 107 _ Former Decision, 493 US 806, 10
L Ed 2d 33, 110 S Ct 66. L Ed 2d 175, 110 S Ct 222.

384

Count denied fir~o
/3-F9 (7-2)

LUIS CXC efed 3-3 -97 Punfsvi fey
TX :

830

Consequently, I am dubious of today’s rul
ing on Louisiana claim preclusion law.

W
° H KEY NUMBER SYSTEM
T

Edward Anthony ELLIS,
Petitioner-Appellant,

James A. LYNAUGH, Director, Texas
Department of Corrections,
Respondent~Appellee.

No. 88~2829,

United States Court of Appeals,
Fifth Circuit.

May 30, 1989,

der prosecution. The United States Dis-

trict Court for the Southern District of

Texas, David Hittner, J., denied relief. Pe-
titioner appealed. The Court of Appeals,
Reavley,
tential juror, who gave conflicting answers
regarding ability to assess death penalty,
was properly excused for Cause; (2) claims
regarding sufficiency of the evidence and
method of grand jury selection were proce-
durally barred; (3) evidence was sufficient
to support allegations in indictment; and
(4) petitioner was not entitled to evidentia-
ry hearing on claims regarding grand jury
selection and alleged ineffective assistance
| of counsel.

Affirmed.

Johnson, Circuit Judge, dissented and
filed opinion,

1. Jury @131(10)

Trial court’s questioning of potential
juror, who had given conflicting answers
regarding ability to assess death penalty,
was not designed to Suggest escape hatch
for potential juror, but rather, was intend-

Petitioner sought habeas corpus relief
m death sentence imposed in Texas mur-

Circuit Judge, held that: (1) Po- tioner was denied fair and impartial trial,

73 FEDERAL REPORTER, 2d SERIES

- ed and did enable potential juror to give
clear statement of his position, and tria]
court clearly could have been left with def}.
nite impression that juror would be unable
to faithfully and impartially apply the law:
therefore, potential juror was Properly ex.
cluded for cause, in murder Prosecution.

2. Habeas Corpus ¢>422

On federal habeas corpus petition, re.
view of issue of federal law is barred jf
State court’s opinion contains “plain state.
ment” that its decision rests upon adequate
and independent state grounds; however
if state court’s reasons for rejecting claim
are ambiguous, federal] review is not pre.
cluded. 28 U.S.C.A. § 2254.

3. Habeas Corpus ¢=339

Petitioner's failure to raise sufficiency
of evidence argument on direct appeal pre.
cluded federal habeas corpus review of
whether evidence was sufficient to prove
allegations in murder indictment. 28 US.

C.A. § 2254,

4. Habeas Corpus ¢=337

Petitioner's failure to object to compo-
sition of grand jury at earliest time possi-
ble as required by state law precluded fed-
eral habeas corpus review of whether peti-

due course of law, due process and equal
protection of law and right to be free of
cruel and unusual punishment by system-
atic exclusion of Hispanics from grand ju-
ries and from Service as grand jury fore-
men in county in which grand jury returned
indictment charging petitioner with mur
der. 28 U.S.C.A. § 2254.

5. Homicide >236(1)

The state proved by clear and convine
ing evidence that grand jury was unable to
discover manner and means by which as- ,
Phyxiation occurred, in prosecution under g
indictment charging defendant with nue
der by asphyxiation while in the course of :.
committing burglary.

6. Constitutional Law €>221(5)
Criminal Law 1213.7
Grand Jury e2'h, 21

In order to secure federal habeas co™ j
pus relief on ground that county system 4

BTCAN Gey yr
arsha Al Se

Snce of

ELLIS y. |
Cite as 873 F.2d 8

atically excludes Hispanics from Serving as
grand jurors and as grand jury foremen in
violation of constitutional rights under the
Fifth, Sixth, Eighth, and Fourteenth
Amendments, petitioner was required to
show that he is member of race or identifia-
ble group singled out for different treat-
ment under the state laws, as written or
applied; degree of underrepresentation of
his group by comparing proportion of
group in total population to proportion
called to serve as grand jurors over signifi-
cant period of time; and that selection pro-
cedures employed are Susceptible to abuse
or are not racially neutral. 28 U.S.C.A.
§ 2254; U.S.C.A. Const.Amends. 5, 6, 8, 14,

7. Grand Jury 17

Evidence that Hispanics comprised
only 13.7% of those summoned for grand
jury duty was insufficient to support infer-
ence of intentional discrimination in the
selection of grand jurors; state census bu-
reau figures for similar time period stated
that Hispanics comprised 15,3% of county’s
population. U.S.C.A. Const.Amends. 5, 14.

& Homicide e311

Trial court was not required to define
term “deliberately” in its instructions to
jury in Texas murder prosecution; word
“deliberately” in its common meaning is
sufficiently clear to allow jury to decide
*pecial issues on punishment.

9. Criminal Law €641.13(1)

To prevail on claim that counsel ren-
unconstitutionally ineffective assist-

counsel, defendant was required to

that counsel’s performance was defi-

or unreasonable in light of prevail-

Professional norms—and that deficien-

Prejudiced defense. U.S.C.A. Const.
nd. 6.

tinal Law ¢641.13(7)

he Constitution does not require ap-
Counsel to raise every nonfrivolous
that might be Pressed on appeal.
Const.Amend. 6.

anal Law €>641.13(7)

lure of appellate counsel to raise
Meritorious claims on appeal from
Conviction was not ineffective as-

Oo ores

atically excludes Hispanics from serving as
grand jurors and as grand jury foremen in
yiolation of constitutional rights under the

ifth, Sixth, Eighth, and Fourteenth
Amendments, petitioner was required to
show that he is member of race or identifia-
ple group singled out for different treat-
ment under the state laws, as written or
applied; degree of underrepresentation of
his group by comparing proportion of
group in total population to proportion
called to serve as grand jurors over signifi-
eant period of time; and that selection pro-
cedures employed are susceptible to abuse
or are not racially neutral. 28 U.S.C.A.
§ 2254; U.S.C.A. Const.Amends. 5, 6, 8, 14.

7. Grand Jury ¢17
Evidence that Hispanics comprised
only 18.7% of those summoned for grand
| jury duty was insufficient to support infer-
| ence of intentional discrimination in the
| selection of grand jurors; state census bu-
reau figures for similar time period stated
| that Hispanics comprised 15.3% of county’s
population. U.S.C.A. Const.Amends. 5, 14.
‘8. Homicide ¢=311

i Trial court was not required to define
- ‘term “deliberately” in its instructions to
oOo in Texas murder prosecution; word
deliberately” in its common meaning is
sufficiently clear to allow jury to decide

special issues on punishment.

%. Criminal Law ¢641.13(1)

To prevail on claim that counsel ren-
dered unconstitutionally ineffective assist-
snce of counsel, defendant was required to
show that counsel’s performance was defi-
tent—or unreasonable in light of prevail-
mg professional norms—and that deficien-
prejudiced defense. U.S.C.A. Const.
ind. 6.

Criminal Law ¢641.13(7)

© The Constitution does not require ap-
erate counsel to raise every nonfrivolous
mand that might be pressed on appeal.
PXA. Const.Amend. 6.

nal Law ¢641.13(7)
ure of appellate counsel to raise
Meritorious claims on appeal from
Conviction was not ineffective as-

ELLIS v. LYNAUGH
Cite as 873 F.2d 830 (5th Cir. 1989)

831

sistance of counsel; appellate counsel’s
choice to concentrate on six strongest
points of error on appeal was reasonable
tactic, and defendant failed to point to any
unraised issue upon which defendant would
have been likely to prevail on appeal. U.S.
C.A. Const.Amend. 6.

12. Habeas Corpus ¢705, 741

To receive federal evidentiary hearing,
burden is on habeas corpus petitioner to
allege facts which, if proved, would entitle
him to relief; court need not blindly accept
speculative and inconcrete claims as basis
upon which to order hearing, and hearing is
not required when record is complete or if
petitioner raised only legal claims that can
be resolved without the taking of additional
evidence. 28 U.S.C.A. § 2254.

13. Habeas Corpus ¢°745

Federal habeas corpus petitioner was
not entitled to evidentiary hearing on claim
that Hispanics were systematically exclud-
ed from grand juries; claim was specula-
tive and inconcrete, and petitioner did not
allege facts or produce evidence sufficient
to make out prima facie case of discrimina-
tion in grand jury selection. 28 U.S.C.A.
§ 2254.

14, Habeas Corpus ¢746

Federal habeas corpus petitioner was
not entitled to evidentiary hearing on alle-
gations of ineffective assistance of counsel;
state court had ordered trial counsel to file
affidavits addressing allegations of ineffec-
tiveness, and on the basis of those affida-
vits, trial court made its findings. 28 US.
C.A. § 2254.

Donald F. Killingsworth, Tyler, Tex., for
petitioner-appellant.

Bill Zapalac, Asst. Atty. Gen., Jim Mat-
tox, Atty. Gen., Austin, Tex., for respon-
dent-appellee.

Appeal from the United States District
Court for the Southern District of Texas.

Before REAVLEY, JOHNSON and
DAVIS, Circuit Judges.

ion

t, Ebi niche

Edward. Anthony ELLIS, , Apellant,

3 . -A

5 a es

The STATE of nas aniline veg!

“No. 69210. eae

“Court. of Criminal ‘Appeals of Texas,
: _En Banc.

Saly 2 2, 1986.

Defendant was convicted in the 263rd
Judicial District Court, Harris County,
Charles J. Hearn, J., of capital murder, and
he appealed. The Court of Criminal Ap-
peals, Tom G. Davis, J., held that: (1) evi-
dence was sufficient to permit a rational
trier of fact to find that the defendant
entered the victim’s apartment without her
effective consent as an element of the ag-
gravating offense of burglary; (2) it was
constitutionally permissible to remove for
cause jurors who indicated that they would
not take the oath of a juror if required to
address death penalty i issues; (3) the indict-
ment was not fundamentally defective; (4)
an instruction on the effect of a vote of ten
or more jurors against a special issue in the
punishment phase of the trial complied
with the article governing procedures in
capital cases; and (5) the prosecutor’s ar-
gument during the punishment phase of
the trial which indicated that the defendant
had burglarized another apartment, differ-
ent from the one in which the victim was
killed, was-a a deduction from the
evidence.

- Affirmed. —

Clinton, J., dissented with opinion ‘in
which Teague and ae JJ., joined.

1. Homicide 354

' Evidence was sufficient for reasonable
trier of fact to find that defendant entered
victim’s apartment without her effective
consent with intention of stealing money

and jewelry as element of aggravating of- |

fense of burglary i im prosecution for capital
murder. V.T.C.A., Penal Code ~ §§ 19.-
03(a)(2), 30.02(a); ‘Vernon’s Ann.Texas
C.C.P. art. 37.071(b). .

£4. 1 -- 9
IS v. STATE ;
Che as Load S.W.2d 39 (Tex.Cr.App. 1986)

PEA

2. Jury 69108 tie? we eg desis

It was constitutionally permissible to
exclude for cause’ venireman who’ stated
unequivocally that he would not take oath

of juror if he was peserks to address dogs o .
penalty questions. *

3. Homicide. e138.

Capital murder indictment « was “not
fundamentally defective where it alleged
that defendant intentionally caused death
of victim while in course of committing or
attempting to commit burglary; indictment
was not required to allege that defendant
intentionally knowingly and intentionally
caused death. V.T.C.A., Penal Code §§ 19.-
02(a)(1, 2), 19.03(a)(2).

4. Homicide 311

Instruction in punishment phase of
capital murder trial that if ten jurors or
more voted “no” to any special issue, then
answer of jury would be “No” to that issue
and foreman would so record jury’s answer
by signing his name to finding reflecting
such answer in form provided for that pur-
pose complied with article governing proce-
dures in capital case and, therefore, trial
court was not required to instruct jury that
foreman should not sign his name to any
answer form for special issue to which ten
or more jurors voted no. Vernon’s Ann.
Texas C.C.P. art. 37.071(c-e).

5. Criminal Law ¢=722',

Argument by prosecutor in punish-
ment phase of capital murder trial that
defendant had burglarized another apart-
ment, in addition to apartment in which
victim was killed, was reasonable deduction
from evidence, not invitation to jury to
consider that burglary as prior unadjudicat-
ed offense. V.T.C.A., Penal Code §§ 19.-
03(a)(2), 30.02(a); Vernon’s Ann.Texas
C.C.P. art. 37.071(b). a

-Frumencio Reyes, Jr., Renato Santos, Jr,
Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and
James C. Brough, Asst. Dist. Atty., Hous-

ton, Robert Huttash, State’s AY Austin,
for the State. a

Zz fn t> yi/fe

FS (V2

ELLIS vy.

[t]his line of cases establishes the gener-
al proposition that a juror may not be
challenged for cause based on his views
about capital punishment unless those
views would prevent or substantially
impair the performance of his duties as
a juror in accordance with his instruc-
tions and his oath. The State may in-
sist, however, that jurors will consider
and decide the facts impartially and con-
scientiously apply the law as charged by
the court.

448 U.S. at 45, 100 S.Ct. at 2526 (emphasis
added).

Recognizing that the already difficult
task of distinguishing between prospective
jurors whose opposition to capital punish-
ment would impair their impartiality and

iM those whose opposition could be set aside

effectively had been made more difficult

“by the fact that the standard applied in

Adams differ[ed] markedly from the lan-

guage of [Witherspoon ],” the Supreme

Court undertook to clarify the issue in

Wainwright v. Witt, 469 U.S. 412, 421, 105

S.Ct. 844, 850, 83 L.Ed.2d 841 (1985). In so

doing, the Court reaffirmed the above quot-

ed standard from Adams as the proper

standard for determining when a prospec-

tive juror may be excluded for cause be-

cause of his or her views on capital punish-

= ment. The Court noted that the Adams

* standard not only dispensed with Wither-

| spoon ’s reference to “automatic” decision-

making but also did not require that a

jaror’s bias be proved with “unmistakable
clarity.” Jd. at 424, 105 S.Ct. at 852.

This is because determination of juror

bias cannot be reduced to question-and-

®sWer sessions which obtain results in

the manner of a catechism. What com-

Mon sense should have realized experi-

‘Were has proved: many veniremen simply

mot be asked enough questions to

eh the point where their bias has been

. “unmistakably clear’; these ve-

—.. .8y not know how they will

mt’ when faced with imposing the

E. Sentence, or may be unable to ar-

_» OF may wish to hide their true

me®- Despite this lack of clarity in

#Mited record, however, there will be

Ons where the trial judge is left

LYNAUGH 833
with the definite impression that a pro-
spective juror would be unable to faith-
fully and impartially apply the law....
[T]his is why deference must be paid to
the trial: judge who sees and hears the
juror. °*

Id. at 424-26, 105 S.Ct. 852-53 (footnote
omitted). Thus, in a proceeding under 28
US.C. § 2254, the trial court’s factual de-
termination that a potential juror is dis-
qualified is entitled to a presumption of
correctness, absent one of the specifically
enumerated exceptions contained in 28 U.S.
C. § 2254(d). Jd. at 429, 105 S.Ct. at 855.
With this in mind, we turn. to those claims
before us.

Cite as 873 F.2d 830 (5th Cir. 1989)

A. Prospective Juror Holstead

Ellis claims generally in his brief that
Holstead was excluded improperly but
points to nothing specific in the voir dire to
support his contention. We agree that Hol-
stead’s exclusion was proper for the rea-
sons given in the district court’s opinion.

B. Prospective Juror Bradshaw

{1] Ellis argues that, because Brad-
shaw’s answers to defense counsel’s ques-
tions showed that he was qualified to serve
on the jury under Witherspoon and
Adams, the trial court’s exclusion of him
for cause was erroneous. Ellis asserts that
the trial court set out to disqualify Brad-
shaw by taking over the voir dire and point-
ing out ways in which he could avoid jury
service and that this conduct deprived the
defendant of a full and fair hearing on the
matter of juror qualification and stripped
the trial court’s findings of the presump-
tion of correctness to which they normally
would be entitled.

The evaluation of this contention re-
quires study of the entire voir dire in which
Bradshaw was involved. That begins with
the introductory remarks the trial court
made to the group of venire members be-
fore individual voir dire began. The court
explained that those persons selected to
serve on the jury would have to take an
oath to render their verdict according to
the law and the evidence. He emphasized
that if any of the prospective jurors disa-

40 _ Tex. 726 SOUTH WESTERN REPORTER, 2d SERIES

Before the court en bance.
OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for
capital murder. V.T.C.A. Penal Code, Sec.
19.03(a)(2). After finding appellant guilty,
the jury returned affirmative findings to
the special issues under Art. 37.071(b), V.A.
C.C.P. Punishment was assessed at death.

Appellant challenges the sufficiency of
the evidence to prove one of the elements
of the aggravating offense of burglary;
specifically, that appellant’s entry of the
victim’s apartment was without her effec-
tive consent.! See V.T.C.A. Penal Code
Sec. 30.02(a).

[1] There were no eyewitnesses to the
offense. No one saw appellant enter or
leave the apartment. The evidence was
circumstantial. However, the standard for
reviewing the sufficiency of the evidence
on appeal is the same for direct and circum-
stantial evidence cases: to view the evi-
dence in the light most favorable to the
verdict to determine whether any rational
trier of fact could have found the essential
elements of the crime beyond a reasonable
doubt. Garrett v, State, 682 S.W.2d 301
(Tex.Cr.App.1984); McGoldrick v. State,
682 S.W.2d 573 (Tex.Cr.App.1985); Jackson
v. Virginia, 443 U.S. 307, $39 S.Ct. 2781,
2783, 61 L.Ed.2d 560 (1979). Lack of con-
sent to enter is an element of burglary that
may be proven by circumstantial evidence.
Prescott v. State, 610 S.W.2d 760, 763 (Tex.
Cr.App,1981). : ay

The deceased was a seventy-four year
old woman who lived alone in an apartment
complex in Houston. - Appellant had been
the maintenance man at the complex, and
as such had access to master keys to all the
apartments. Sometimes he went alone to
have copies of keys made for the manager.
Appellant was fired from his job a few
months before the offense. The day he
moved out of the apartments the office was
broken into and some keys stolen. Some of
the apartment locks in the complex were
rekeyed after this burglary, but the one on
the deceased’s front door was not among
them. Some time after appellant’s firing

1, A treatment of this ground of error prepared

the deceased’s apartment was painted, in-
cluding her front door. She also hired a
neighbor of hers to thoroughly clean her
apartment once a week, including scrub-
bing the inside of the front door. The
neighbor, Susan Canales, testified at trial
that she had last given the door such a
cleaning approximately a week and a half
before the offense. After the victim’s
death appellant’s fingerprints were found
on the inside of her apartment front door.

Jewelry was stolen in the burglary of the
deceased’s apartment and her car was tak-
en as well. A witness testified that a few
days after the offense appellant had been
trying to sell jewelry and a car matching
the description of those items taken in the
burglary.

Susan Canales, the neighbor who cleaned
the deceased’s apartment, was also a good
friend of the deceased’s who saw her or
talked to her nearly every day. Knowing
that appellant had had access to the master

keys and that he had been seen in the

neighborhood of the apartments at least
once since his firing, Canales had warned
the deceased and made her promise that
she would not open her door to appellant if
he appeared. Over the years of their
friendship, Canales testified, the deceased
had never broken a promise to her.

In addition the jury heard testimony
from Bill Scott, who had been incarcerated
with appellant in the Harris County Jail
while both were awaiting trial on unrelated
charges. (Before the instant trial Scott
was acquitted of the attempted murder
with which he had been charged; there was
no charge pending against him at the time
of trial and no deal had been made in
exchange for his testimony.) Scott testi-
fied that appellant had admitted to him that
he had committed the burglary and mur-
der, having gone to the deceased’s apart-
ment with the intention of stealing money
and jewelry. The jury could readily have
inferred that the deceased would not will-
ingly have admitted him for that purpose,
and that therefore his entry must have
been without her consent or that her con-

by Judge Clinton is adopted. '

syne epic as Sa

Re eee tee ee ee

Ss BoE Sic

eee Eh aE ee es

ELLIS v. STATE
Cite as 726 S.W.2d 39 (Tex.Cr.App. 1986)

sent was induced by fraud or force. V.T.
C.A. Penal Code, Sec. 1.07(a)(12)(A). The
evidence was sufficient for a reasonable
trier of fact to have found that appellant
entered the deceased’s apartment without

her effective consent. Ground of error one
is overruled.

[2] In his third ground of error, appel-
lant contends that the trial court excluded
prospective juror Bradshaw in violation of
Witherspoon v, Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968) and. Ad-
ams v. Texas, 448 U.S. 38, 100 S.Ct. 2521,
65 L.Ed.2d 581 (1980). We set out the
pertinent portions of the voir dire, as fol-
lows:

“Q. [Trial Court] ...

“Now, the question I must ask you
at this time is whether or not you have
any religious, moral, or conscientious
scruples or any scruples of any sort,
for that matter, against the infliction
of death as a punishment for a crime in
@ proper case?

“A. Icouldn’t say that a man should die
for something; no.

“Q. I understand what you are saying
and I can see your face and we can see
your reaction to the question but the
record we are taking down cannot.
The little lady is taking everything we
Say down and it doesn’t show the
things that we see so we have to have
@ yes or no answer.

“Would you like me to give you the
question again?

“A. No. I couldn’t Say sentence a man
to death or be part of it,

“Q. ‘Now, that gets us into—when you

. Say no, that gets us into another area.
Let me give you the question again
and you say yes or no to it.

“A, All right.
- “Q. Do you have any religious, moral,

or conscientious scruples or any scru-
. Ples of any sort, for that matter,
against the infliction of death as a
punishment for a crime in a proper
case?
“A. Yes.

“

Tex. 4]

“A. The way I feel about it—say, if he
did take someone’s life, taking his life
is not going to bring him back. So
that’s the eye for an eye thing and I
just—

“Q. [Prosecutor] You go for the two
wrongs don’t equal a right?

“A, That's right.

“Q. Now, I take it that’s a pretty
strong feeling you have; is that cor-
rect?

“A. Ever since, you know, I have been
old enough and all to really think
about it I have felt that way so I would
say yes.

“Q. [Prosecutor] ..,

“The question I want to ask you:
Keeping in mind your feelings about
the death sentence and the rightness
or the wrongness of the death sen-
tence, would you always in every case
answer one of these questions no in
order to prevent the Judge from as-
sessing the death penalty?

“A. I believe so.

“Q. Okay. Remember the Judge asked
you for a yes or no answer because of
the record and only you can tell us
what is in your mind.

“Let me put it in this light. Are you
SO against the death penalty that you
would always answer one of these
questions no in order to prevent the
death sentence from being assessed?

“A. Yes.

“Q. In every case?
“A. Yes,

“Q. And I take it, that’s a very strong
feeling, as you said, since you have
been old enough to think; is that cor-
rect?

“A. Yes,

“Q. Now, I’m not going to try to
change your mind but let’s say I did
try to change your mind. Could any-
body in this courtroom change your
mind about your feeling on the death
penalty?

“A. No.

“Q.

42 Tex.

“But if you are selected for a jury, if
you are qualified for a jury, you have
to take an oath ? to follow the law and
once you have taken an oath it’s not
like a job that you can quit and say,

' ‘Hey, this is not what I bargained for.

‘I will find me another job. Can’t do it.’
You are stuck until the end of trial.
You may end up doing something that
does violence to your insides or your
conscience or your soul or your morals
or ethics or whatever and we don’t
want that to happen but the law will
not require you to take that oath if you
cannot live up to the oath. Do you see
what I am saying—if it is going to do
violence to you.

“The question I want to ask you is:
Considering your feelings about the
death sentence and given the choice of
taking that oath or not taking the oath
in a capital murder, would you refuse
to take the oath?

“A, Yes.

“Q. [Defense Counsel] My question to
you, Mr. Bradshaw, is if you were se-
lected as a member of the jury could
you set your feelings aside and be able
to answer Special Issues 1 and 2 after
hearing the evidence?

“A. I guess you want a yes or no on
that? :

“Q. Yes.

“Q. If you were selected as a member
of the jury, could you along with the
other jurors after the State having
proved to the members of the jury at
the guilt or innocence phase of the trial
could you thereafter be‘able to answer

Special Issues 1 and 2 provided it is’

proven to you beyond a reasonable
doubt? 2
“A, Yes. I.could answer them.

a
2. The oath referred to at this point and there-
after in the voir dire is that of Art. 35.22, V.A.C.

C.P.: “You and each of you do solemnly swear
that in the case of the State of Texas against the

726 SOUTH WESTERN REPORTER, 2d SERIES

“If the State proved to you beyond a
reasonable doubt, you as a member of
the jury, beyond a reasonable doubt
that these special issues should be an-
swered yes, could you answer this yes?

‘A. Yes,
‘Q.

“Now, I’m not asking you about in

~ this particular case, in that case about

«
.

the kidnapper and murderer of the
campfire girls. If you can think of a
crime to be so heinous that you could
tell or you could answer the question
yes to the Special Issue?

‘A. Can I say yes? I could answer yes
to both of them but I don’t think, you
know, he should get—they should get
punished but, you know, death.

“THE COURT: ..

“What they are concerned about if
you were on Question 2 and you knew
if you answered Question Number 2
yes and you already answered Ques-
tion Number 1 and if the State proved
to you beyond a reasonable doubt that
the answer to Number 2 should be yes
and in your own mind you know that it
should be yes—they proved it to you
beyond a reasonable doubt that you
should answer Question Number 2 yes,
however heinous the crime is—would
you vote yes knowing that I am going
to assess the death penalty?
“THE VENIREMAN: Yes, I would. I
would tell the truth. Yeah. What I
thought was right. Yes.

“THE COURT: So then what you said
earlier about having some scruples
against the death penalty are not ex-
actly what you led us to believe they
are? :

“THE VENIREMAN: Well, I’m not
going to lie, you know. If both things
are yes and that’s the only choice I
have and it’s been proven I have to
answer yes and be honest with the
Court and what I know is right as far

defendant, you will a true verdict render ac-
cording to the law and the evidence, so help you
God.”

ELLIS v. STATE Tex. 43
Cite as 726 S.W.2d 39 (Tex.Cr.App. 1986)

as the facts in my head, I have to
answer yes.

“THE COURT: So then if you took the
oath, if you had a choice of taking that
oath to follow -the law knowing full
well what you have said to us about
your feelings about the death penalty,
are you telling me now that you would
or would not?

“THE VENIREMAN: ‘I would not
take the oath.

“THE COURT: You would and could
take the oath? :

“THE VENIREMAN;: I would not
take the oath. Either I don’t under-
stand or you don’t understand. What
I am saying if I had to take the oath
for some reason and I was in that
situation and I saw the facts and it
was true I would say yes. But—I
would try to avoid taking the oath
because I just can’t see sentencing
someone to death if the situation
arose.

“THE COURT: Okay. The situation
will arise if you are chosen as a juror
in this case. You will have to vote yes
or no. There is no two ways about it.
And you know if you take the oath
that you will a true verdict according
to the law and the evidence submitted
to you, that you are going to have to
answer those questions one way or
another. And the question they are
trying to determine is if it gets down
to answering those questions and you
have already taken the oath now, you
see what I am saying? And you have
got to answer those questions one way
or another and you have got some feel-
ings against the death penalty and at
one point in time you said you don’t
believe in the death penalty.

“THE VENIREMAN: I don’t but I
have to tell the truth, too.

“THE COURT: What you are saying—
“THE VENIREMAN: I’m going to fol-

’ low it.

“THE COURT: No matter whether it
does injury to your conscience and
your soul or not?

“THE VENIREMAN: If that’s what I
have to do because—

-“THE COURT: You don’t have to.

“THE VENIREMAN: I’m not going to
lie.

“THE COURT: You don’t have to. If
your feelings are so strong—we are
trying to find out how strong your
feelings really are and we are not ar-
guing about it.

“THE VENIREMAN: I understand
that.

“THE COURT: We need to find out
how strong your feelings really are,
If your feelings are strong enough
that if you take the oath and you are
going to follow your oath and it is not
going to do damage to your own con-
science and your own soul and if you
are convinced beyond a reasonable
doubt both of those questions should
be yes knowing full well if you answer
them yes that I am going to assess the
death penalty, then you could do that?
“THE VENIREMAN: If I took the
oath, yes, sir, 1 would have to answer
honestly.

“THE COURT: The next question:
would you take the oath?

“THE VENIREMAN: No, then I
would have to put myself in a situa-
tion,”

In Wainwright v. Witt, 469 U.S. 412, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court
wrote:

“The standard [for constitutionally per-
missible exclusion for cause] is wheth-
er the juror’s views would ‘prevent or
substantially impair the performance
of his duties as a juror in accordance
with his instructions and his oath.’
(quoting Adams v, Texas, supra]. We
note that in addition to dispensing with
Witherspoon’s reference to ‘automatic’
decisionmaking, this standard likewise
does not require that a juror’s bias be
proved with ‘unmistakable clarity.’
This is because determinations of juror
bias cannot be reduced to question-and-
answer sessions which obtain results
in the manner of a catechism. What
common sense should have realized ex-

strode Charlie Shader, all smiles, apparently

“Wouldn’t you like to know,” sneered Sha- Shortly afterwards, the Illinois. Supreme to take }
vastly amused by what had been going on. der. “Wouldn’t you just like to know!” Court reaffirmed Shader’s death sentence. belongin:
Storms took one look at him and felt a long, At Englewood Station, Shader seemed to Chief Justice Frederick C. De Young, in hand- and left

cold chill.

enjoy being in the limelight. He boastingly ad-
Shader was wearing a coat, even though the

ing down the decision, stated: “Shader is the At
mitted the eight murders police had attributed

boldest murderer in the United States. I want

i Archie
temperature was close to 100 degrees. And to him, including those of his father and to say that Sergeant Storms’ actions showed the dox
there could be only one reason for the coat— mother, his pair of boyhood friends and the great nerve and cool courage—the heroism that } An offi
the same reason detectives have for wearing two Arizona gasoline station attendants. protects life and home.” Archie
coats in hot weather. To hide guns! “No use denying them,” he remarked. “A While Shader was awaiting his end, the legal over his

“Please, please,” begged the cowering clerk, man can only hang once.” means of execution in Illinois was changed j pulling
sweat rolling down his pallid face, “won’t you He said he would have shot Storms down from hanging to electrocution. } eyes we
show me the wrench?” from the rear room of the shop if he had “How’re you going to bump me?” the con- “At f

“Yeah,” drawled Shader, “show it to him.” recognized him. “But you had me fooled with demned prisoner asked the local sheriff one broke

Storms roared: “You bet I will!”
Reaching into the newspaper-wrapped pack-
age, he grasped the cool butt of his revolver.

those overalls and that dirty face,” he said. “I
-thought you were just another harmless jerk.”
He revealed that he had seen Roa earlier

day. “Are you going to fry me or stretch my said
neck.” At he
“We have to do what the judge ordered,”

police ti
With a deft, lightning-like movement, he that week and that Roa had started for Mexi- replied the sheriff. died. “F
whipped out the weapon and rammed it co. Roa evidently found sanctuary across the So Shader was hanged in Joliet—the last planned
against Shader’s stomach. border, for to this day he is still at large, the man legally hanged in the State of Illinois. Charles
“Up with your mitts!” he called out. “Up only one of Deputy Warden Klein’s seven And as he plunged to his death through the | Merle
with them!” killers to escape the hangman. trap door, his clenched right hand opened and { in at
Shader’s eyes opened wide, shocked. “I got “Yd have gone with him,” said Shader, a small piece of paper fluttered down to the ters. Sn
you pegged now,” he growled. “You’re Storms, “but I had some important personal business ground. { toria w
the cop.” to take care of in Chicago.” It was a newspaper clipping, a nightclub ad- \ the plat
Storms swiftly frisked him and took a .45 “That business,” said Storms, “wouldn’t be vertisement with a picture of Margie. i Sixty-n
from a holster on his left hip, another .45 from a blonde named Margie, would it?” | The
behind his belt in front and a .32 from a side “Oh, you remember Margie, too.” Shader Epiror’s Note: The name Margie West- j left. an:
pocket of his coat. All three guns were loaded. gave his ragged mustache a twirl. “Poor kid, brook is not the actual name of the person | wife to:
Then he marched Shader ahead of him into the _ she'll feel bad about me getting grabbed. She’s who was in fact a participant in the incidents i “Nex
back room. It was empty. in love with me, she is.” described in this article. The name is used to i Paul W
“Where’s Roa?” Storms asked. “Sure,” Storms said, nodding. “Sure!” avoid embarrassment to this innocent person. E house

$130 ir
a

Get the Man Who Got Crosby

wrappers
continued from page 57

out we
Charles
tured w!
car and
ahead v
Small.

in the hood and radiator. Some of the bullets

had gone all the way through the officers’
car, coming out the rear window.

The abandoned Chevvy stood with its doors
wide open. A huge hole was torn through the
rear window showing that the killer had fired’
through it into the patrol car. The rear was
dotted with bullet holes from the shots the
motorcycle deputy had fired and the ones
Doolin had fired.

The Texas Highway Patrol was checking the
license number of the Chevvy to trace its
owner. A laundry ticket crumpled under a
front seat bore a scrawled word: “Wolf.”

Officers searching the field beyond the dirt
pile found a recently fired 12-gauge shotgun
and a deer rifle where they’d been flung in a
heavy growth of weeds. There were more than
25 police cars around the field by the time
Scarborough arrived. State Highway patrol-
men, Texas Rangers and deputy sheriffs beat
the bushes as they spread out across the field.
It was like a wild animal hunt in the dark,
when you don’t know if the quarry is in your
trap or not, but you know he’s a killer who’d
charge when he’s cornered. Scarborough had
told the hunters about the nickel-plated pistol
which had sent a bullet through his arm. They
hadn’t found that weapon. So the killer myst
still have it.

Homicide Lieutenant W. C. Doss sent | the
police department’s mobile investigation
truck tq serve as headquarters for the
search. Four walkie-talkie units kept the
hunters in contact with each other, and blood-
hounds were ordered from the city prison
farm.

Hundreds of citizens mobbed the area to
watch, as if it were a big game. One man
pointed to the old Chevvy and told his, com-

panions, “Why, that’s the car that sideswiped
me on the highway.” .

An officer tried to find the man, but he’d
disappeared into the crowd. The milling spec-
tators made the bloodhounds nervous, threw
them off the scent. It was more than an hour
before police could get the dogs working.
They picked up the scent in the field and led
officers along a trail away from the dirt pile.
They turned toward town, running between
railroad tracks and a paved street, heading in
the general direction of Ingelwood Railroad
Yards. Railroad detectives were notified to
stop anyone trying to hop a freight. Sheriff
Buster Kern ordered the Missouri Pacific yard-
master to halt all train traffic in the area.

The State Highway Patrol reported that
the black Chevvy belonged to Paul Wolf, a
42-year-old ship painter: Officers hurried to
Wolf’s home. Wolf shook his head. “We were
home all evening, my wife and I. Ask her. I
don’t know how my car got into a thing like
that.”

Hs wife was already being questioned sep-

arately by other officers. “We were home,”
she said. “My brothers came by about 8
o’clock and asked to borrow our car. Paul
gave them the keys,” ‘

Eva’s brothers were Archie Lee Ellisor, a
tall, lean, handsome 20-year-old father of
year-old twins, and Merle Ellisor, 32, a two-
time ex-convict.

Archie Lee, an unemployed butcher, had no
police record, but Houston police knew his
family.

Distantly related to the notorious Clyde
Barrow, the Ellisor family lived in the water-
front district of Houston, all within a few
blocks of each other. Merle, who'd been living

at a downtown hotel, was the only one with
a police record.

In March, 1948, Merle was shot in the
liver and lung by Homicide Detective R. D.
Langdon after Langdon had drrested him for
investigation. Merle tried to escape while they
waited for an elevator in the old Police Sta-
tion. Merle was sent to the Texas State Peni-

_tentiary in November, 1948, on a felony theft

conviction,

He escaped in 1950, was captured five
months later, and released on parole in Oc-
tober, 1954, only six weeks before Patrol-
man Crosby was killed.

Police converged on the Ellisor family neigh-
borhood. It was past midnight. The members
of the family that were home insisted they
hadn’t seen the Ellisor brothers. Officers took
Paul Wolf with them.

Police staked out across the street from
another relative’s empty house heard their
patrol car radio announce from the posse
headquarters at the shooting scene. “One of
them is hurt. We just found a tan suede

jacket in the field, and it’s got a bloody hole

in the back.”

Two o’clock slipped past. Crosby had been
dead five hours when one of Ellisor’s broth-
ers-in-law drove his 1949 Oldsmobile down
the street and pulled into the driveway.
Officers moved in on it fast. The driver got out
of the car, blinking at the flashlights and
drawn pistols. Archie Lee Ellisor’s wife was
with him and began to cry.

Under intense questioning, the relatives ad-
mitted seeing Archie Lee. He’d come to the
house in a taxi at about 11 p.m. He was
scared and he wanted to borrow the Oldsmo-
bile. He was gone with it for more than an
hour. When he came back he asked the family

Seer tp aes

| itd SN
hie |
|

toward the heart of the city. The patrolmen wheeled and
took after the older car. Crosby switched on the siren and
blinker and the two cars darted in and around traffic. Crosby
was right on the Chevvy’s bumper when the two cars came
to the intersection with Highway 13:
The light was red, but the officers’ siren warned Highway
73 traffic not to cross while the two vehicles raced through
the light. As Crosby started to pull around the Chevvy and
force it to the curb, the older car’s brakes screamed and it
lurched to the right, tearing at a right-angle off the road into
a driveway. The driver must have thought .he was turning
into a side road, but the driveway ended in a pile of fresh
dirt. The Chevvy jerked to a stop in the dirt.
Crosby had rammed his brakes on as soon as the other car
turned, and he pulled up behind it, stopping ten feet away.
Together, the partners grabbed their door handles and started
out when the air exploded around them.
Shotgun pellets and bullets hit the windshield like the
spatter of hail. Doolin felt the sharp sting on his left cheek
| as he dived behind his half-open door, drawing his service ti a rh, :
| revolver. He peeped around the door and fired at the Chevvy. Assistant Police Chief Buddy McGill and Ranger John-
Two or three shadowy figures jumped from the Chevvy and ny Klegenhaven confer on tactics on night of shooting.
| raced over the pile of dirt. They disappeared behind it. Doolin
dabbed at his bloody cheek and turned to Crosby.

"THE patrolman was crumpled over the steering wheel, his
blood running from his face and head, making streaks
down his freckled cheeks and dripping onto the steering wheel.
Doolin grabbed, the radio microphone and called headquarters

for help. q
Within minutes, 12 patrol cars were circling the area.
Officers on foot trudged in the darkness of the vacant lot
behind the pile of dirt. Doolin bent over his partner while
| Dr. L. Rohr, who’d heard the shots as he drove past, assured
the officer that his buddy was still alive. An ambulance whined
into the driveway, and Dr. Rohr helped the attendants load
a Crosby into it. He rode beside the officer as they sped to
Jefferson Davis Hospital in Houston. He gave first-aid treat-
ment, struggling against death, while Crosby’s pulse flickered

more and more faintly.

Emergency hospital workers scurried to get his stretcher
inside. Doctors hovered over him and nurses quickly obeyed
their calm instructions. But there wasn’t time to save Patrol-

“s man Crosby. He died before they could finish examining him. i
| Half an hour after the officer wheeled his patrol car into the
ae ? : “J shot the officer, but I can’t tell you why I did
driveway behind the killer, other patrolmen had to tell Cros- it. | was drunked up and crazy. Ill plead guilty.”
by’s wife of five years that she was a widow.
Crosby died at 10:17 P.M. At 11:25 his widow, Jo Evelyn, His brother thought this bullet wound in the should-

was admitted in the emergency room of the same hospital. She
was hysterical. They gave her a sedative and she went to sleep
in the same room where her husband had died.

Meanwhile, Deputy Scarborough left the suburban hospital
as soon as they'd finished treating his wounded right arm. The
arm was in a sling, and pain burned through his shoulder
whenever he moved it. But he was still a hunter. The killer
had tasted blood, and a cop gets paid to track him down before
he begins shooting at other citizens.

Scarborough picked up his motorcycle and reported in at
the sheriff’s office.

He followed other officers to the highway intersection where
Crosby had been shot. Patrolman Doolin was still there, help-
ing in the search for clues.

He’d stopped long enough to paste a bandaid over the
bloody smear on his cheek where a shotgun pellet had torn
through his skin. The windshield of the patrol car was pep-
pered with holes. They were made by shotgun charges and by
a high-powered rifle. More holes were (Continued on page 74)

er was going to cost the fugitive Merle his: life.

to take him to a hideout. They picked up his
belongings from a Beaumont Highway motel
and left him at another motel.

At 3 aM., Houston police closed in on
Archie Lee’s cabin. At a signal they charged
the door, kicking it down. Thére was silence.
An officer switched on a light, and they saw
Archie Lee sleeping with a blanket pulled
over his head. Quickly they handcuffed him,
pulling him from the bed, and he opened his
eyes wearily.

At first he denied the shooting. Later he
broke under questioning. “Merle did it,” he
said. ‘“You’ve got to find my brother.”

At headquarters he talked readily, urging
police to find his wounded brother before he
died. ‘“Friday—just day before yesterday—we
planned a hi-jacking. Merle and me and
Charles Smallwood, an ex-con friend of
Merle’s. Smallwood said there was some guns
in a tourist court and some money in quar-
ters. Smallwood was driving a ’53 or ’54 Vic-
toria with Louisiana plates. He had to change
the plates, so we all drove to a dump near
Sixty-ninth Street bridge to change them.
They were rusted on the car so Merle and I
left and went to my house. Merle told my
wife to make me stay there, and then he left.

“Next morning, yesterday, at daybreak,
Paul Wolf came and told me to come to his
house quick. Merle was there. He had about
$130 in silver, a shotgun, a rifle and a 44.40
pistol. Paul and I went and got some money
wrappers to roll the silver in. While we were
out we got a Houston Post and read that
Charles Smallwood had been shot and cap-
tured when cops stopped him with that stolen
car and he tried to get away. Merle had gone
ahead with the hi-jacking, and we was afraid
Smallwood would get mad and tell off on us.
So Merle got his things and I got mine and
Paul Wolf took us to a tourist court on the
Beaumont Highway. We wanted to be hard
to find.

“After we rented the cabin, Merle gave
Paul some money, and he and his wife went
and got us some ammunition for the guns.
Then we went out close to the Sheldon
Reservoir and shot the rifle one time apiece.
Except Paul’s wife. She didn’t shoot it.

“Later yesterday morning, Paul and his wife
and my wife and babies, and I came out to our
cabin. We got some sandwiches and beer and
decided to go on a picnic. We all went out the
Wallisville Road and Merle shot the rifle some
more until someone came up and told us to
get out. We went back to the cabin and ate
our lunch. Then everyone left except Merle
and me. We decided to go out on the high-
way and drink beer. At one place Merle de-
cided he wanted to make a date with the
barmaid. We went to Paul’s place and bor-
rowed his car.

“We went back to our cabin and picked
up all the guns because we couldn’t lock the
door and we didn’t want anyone to steal
them.

“Merle was driving. He started goosing our
car right behind that motorcycle officer. The
officer pulled off and let us go by. Then Merle
started driving pretty fast and the cop took
in behind us. We stopped on the shoulder
and the officer walked up by the car on the
driver’s side. Merle grabbed up the pistol and
shot one time and the officer staggered back
and started shooting.

“Merle took off fast.

“Next thing I heard a siren back of us.
This was towards town. Merle was driving

fast ahead of this car with the siren and

~ there was a red light. Merle ran the red light

and just beyond it he turned to the right and
ran into a pile of dirt as there was no street
as he thought. The car with the siren stopped
right behind us. I started getting out and had
the rifle in my hand and I heard Merle say
the rifle is jammed. When he said this, I just
automatically pulled the trigger. I saw Merle
reach and get the shotgun and there was a
lot of shooting and the next thing I remember
was I was picking myself up from the back of
the dirt pile.’

“Merle and I started running across the
prairie. Then I saw he was hurt. Merle said
that the motorcycle cop hit him with his first
shot and he thought he’ could feel the bullet
in his chest. He was bleeding and he was
weak. We ran across Lyons Avenue to the
Mayes Brothers pipey2rds. We climbed a
fence—ten feet high with three strands of
barbed wire on the top. Merle told me he’d
gone as far as he could go and lay down on
the ground. He said he’d get inside a pipe and
hide. He gave me some money and told me
to go take a cab and then get the Oldsmobile
and come back: for him. I called a cab from a
nearby motel and went for the car. When I
got back to the pipeyards I didn’t see Merle.
I cruised around, until I decided he must have
gone on home. I took the car back and they
wouldn’t let me go looking for Merle again.
They took me to Liberty.”

FTER Archie Lee’s statement, police re-
leased Paul Wolf. He was not a murder
suspect.

Archie Lee changed his story about firing
the rifle every time he told it. But he wouldn’t
admit deliberately firing at the patrol car.
At first he said Merle had the pistol tucked
in his belt when he last saw his brother.
Later, he said he saw Merle throw it away as
they ran. Still later, he insisted Merle had
handed him the pistol and he’d thrown it
away.

Police wanted to be sure whether the killer
was armed. At dawn, after the shooting, they
took Archie Lee to the field to help the posse
of 300 men searching for the gun. Archie
Lee couldn’t find the weapon. The posse
burned the thick weeds and brought in a mine
detector, but the gun wasn’t found.

Deputy Scarborough had worked all night
with his arm in a sling, helpifig direct the
manhunt. As Archie Lee walked shivering
through the brush, he came face to face with
the wounded deputy.

“Do you know who that is?” an officer
asked Archie Lee.

“No, sir,” the handcuffed man said.

At the pipeyards, police found a man’s
brown loafer shoe near the fence. On the other
side, among stacked pipes, they found the
mate to it.

Archie Lee identified them as Merle’s. But
there was no éther trace of the wounded,
barefoot, coatless killer, or his gun.

Merle’s description was broadcast through-
out the Houston area: Six feet one, 155
pounds, dark, regular features, good-looking
man, but a desperate killer. Wounded now.
Cold and hungry. Like a trapped animal, he
would rather kill and be killed than be put
behind bars.

By radio and newspaper, Archie begged his
brother to surrender. “Merle isn’t a cop hater.
The only reason he shot ‘is that he was afraid
he’d be found with a gun and sent back to

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THE BEGGAR IN THE GOLD
CADILLAC

NO ONE ELSE CAN HAVE HER

EXCLUSIVE! THE STORY BEHIND THE

TEXAS SEX RACKET
ME? I'M MAKING SAUSAGE
WHAT'S MY LINE?
BUT | THREW THE WITCH OUT
PANIC IN HIGH GEAR

THE CAT BOY: HE WAS MY ONLY

FRIEND

THE MAN WHO MURDERED A
MILLIONAIRE

SHE'S CRAZY FOR ME

oo ag 00000 ao

GET THE MAN WHO GOT CROSBY []

STEP RIGHT UP, SUCKER

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THIS 1S COLD TURKEY
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prison for breaking parole. If he doesn’t sur-
render he will die either from his wound or
cops will have to kill him.”

It seemed impossible that the hunted man
could have escaped the police net and posse
that surrounded the area. Yet, Archie Lee had
brazenly cruised his brother-in-law’s Oldsmo-
bile up and down the street near the pipe-
yard while 25 patrol cars and a posse of more
than a hundred officers were looking for him
in that area.

Deputy Scarborough examined the black
Chevrolet again to see if bloodstains or any
other clues would show how badly he’d
wounded Merle Ellisor. There was a nick in
the top edge of the front seat. The bullet had
slowed there before it hit Ellisor. Doctors be-

‘lieved that if the bullet lodged high enough

in Ellisor’s back, he was probably not seri-
ously wounded.

After 24 hours of constant searching, Deputy
Scarborough went home and slept Sunday
night, his first rest since he was shot.

A man, meanwhile, phoned police and said
that he’d seen a wounded man near his house.
' Four squads of police answered the call.
The address was a vacant lot.

Other false tips poured in,

When court opened Monday morning,
Archie Lee and Merle Ellisor were charged
jointly in Justice Dave Thompson’s court
with the murder of Patrolman Crosby.

A third brother was arrested and held on
the possibility that he might have helped
Merle escape. Officers were suspicious of the
family because of the help they’d given Archie
Lee.

Bare footprints were found in a ditch near
the pipeyards. A -bloody sheet was found: on
a roadside between the scene of the shooting
and the family neighborhood of Anahuac.

On Monday night, Patrolman D. A. Kelley
brought his 18-year-old son, David, into head-
quarters and told him to tell the officers what
he’d told his father.

The boy told police that he and a 19-year-
old friend, Jack Wallace, were driving along
the busy Beaumont Highway, near the shoot-
ing scene, at about 5:30 P.m., Sunday, after
the shooting Saturday night. A man had
climbed down from the Clinton Drive over-
pass and stopped them.

He was barefooted and his feet were black
as if he’d walked in mud or cinders. He wore
a western shirt and blue jeans. He told the
boys that he’d been rolled while he was drunk,
and offered them $5 to take him to the Ana-

hhuac. neighborhood.

Believing the man’s story, the boys drove
the man to the wooded Anahuac water-
front district. On the way, Wallace no-
ticed blood on the back of the man’s shirt
near his shoulder blade and about four inches
below his neck. The boy told him not to lean
back and.bloody up the seat. The man, didn’t
seem to be hurt very bad.

The car radio was on, and a routine news
broadcast calmly announced the latest develop-
ments in the search for Ellisor. Still the boys
were not suspicious. They let the man out
near. the. bayou waters of Anahuac, and he
paid them the $5 in quarters—20 quarters.
Loot from the tourist court robbery was
mostly in quarters.

Later, remembering it, the patrolman’s son

realized he must have transported the killer. ,

He told his father, and police heard his story
almost 24 hours after it happened. .
Monday night, the posse shifted to the

Os eas URS REST CIMT 8

Anahuac district. The hunt.became the largest
in Houston’s history. Twelve counties were
looking for the man, but officers clung to
their theory that they’d find their killer in
the Anahuac district.

Veteran Texas Ranger John J. Klevenhagen
sifted through all reports of crime Sunday and
Monday in the Anahuac waterfront area. He
studied two burglary reports from tugboats.
Merle Ellisor was once a tugboat hand.

Sunday night, a thief smashed a pilothouse
window of the tug Leda Bee at the Bludworth
Shipyard. He took two heavy brown blankets,
two sweat shirts and two pairs of shoes.

Monday night, a thief broke into the Splin-
ter, a tug moored just across the bayou from
the Leda Bee, and took canned food and a
tarpaulin that could be used for a tent. These
things would be necessities for Ellisor, hungry,
coatless, barefoot, hiding in the cold swamp.

Klevenhagen showed pictures of Ellisor along
the waterfront, and a crewman on the Leda
Bee identified it as the face of a man he’d
seen hanging around the dock.

ON Tuesday morning, the posse combed the

area. Every vacant house was searched.
The Ellisor relatives were questioned again.
While police talked with Paul Wolf, a corps ‘of
police searched under a house next door to his
and found some of the loot from the tourist
court burglary Merle Ellisor committed the
night before the shooting. There was a blanket,
two glass piggy banks, and a rifle shell to fit
the stolen rifle. used in the shooting.

When they showed it to Wolf, he admitted
hiding it there, but said he forgot to tell the
officers. Still, Wolf denied that he’d hidden the
hunted man. “If I knew where he was I’d
turn him in like that,” he snapped his fingers.
“He’s a cold-blooded killer, I wouldn’t help
him for anything. He’ll kill me if he ever sees
me again. You can give me a lie detector
test.”

Officers agreed. Tests given that afternoon
proved he didn’t know where Ellisor was. A
test given to Archie Lee Ellisor showed he was
lying about shooting the rifle and the where-
abouts of the pistol.

Wednesday morning, the third day after the
shooting, the newspapers announced that
Merle Ellisor was hiding in the Anahuac area.
Police telephones began to ring with tips at
daylight, and the posse prepared to follow
every lead. Detectives M. L. “Joe” Singleton
and E. E. Harrelson met in Detective Captain
Murray’s office at 7:30 A.M. Murray briefed
them. They were to stay in the Bray’s Bayou
area and follow leads from citizens. The two
detectives went home, changed into old khakis,
and met outside the city limits to test Joe’s
.28 Remington automatic sawed-off shotgun.

Joe wanted to be sure it would fire. He’d
need it, prowling through heavy woods
jooking for an armed killer who’d grown up
playing in there and knew every inch of it.
Merle Ellisor would be desperate, a wounded
trapped animal.

On the way to the neighborhood, the detec-
tives heard the radio dispatcher give several
patrol cars a call to meet Texas State officers
at Bray’s Bayou and Seventy-ninth Street.
A woman, whose home faces on the bayou,
had been drinking her morning coffee and
watching Texas Rangers beat the brush out-
side. As they worked away from her house,
she saw a man leap up from the bushes and
run into the ‘woods toward Seventy-fifth
Street.

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in shackles to a more secure facility.
High walls, guard towers and strict sur-
veillance left the incorrigible crook
little choice but to behave himself. After
five years under lock and key, he was
paroled on October 13, 1954.

Merle parked himself on his broth-
er-in-law’s front porch and opened
18

had to go at all.
e ‘or the hot seat.

the warm beer he carried in his coat
pocket for such an emergency. Archie
Lee knew better than anybody how
much he hated to wait, yet his baby
brother was running late from a pic-
nic with his wife, eighteen month-old
twin daughters, their sister and her hus-
band Jed Marlowe.

The sun had dropped below the
horizon, when the black sedan turned
into the gravel driveway. Merle tossed
the empty beer bottle on the lawn and
barked at his brother, “About time,
Archie Lee! That must have been some
damn picnic!”

“We got tied up,” mumbled the
youngest member of the Ellisor clan.
Though a grown man of twenty, Archie
Lee’s feelings for his older brother were
the same mixture of love and fear that
had haunted him all his life.

Merle ignored the apology and
snapped, “Put those kids in the house
and let’s get going.”

That was the first Archie Lee’s wife
had heard of his plans for the evening,
and the revelation sparked a short but
spirited spat. The young husband fol-
lowed the women and children in-
doors leaving Merle alone with Jed
Marlowe.

“We need your car tonight,” Merle
said. The tone of the statement turned
a request into an order. He cut short
his brother-in-law’s lame protest by
adding, “And lay the guns in the back
seat.”

Marlowe had hidden the three
firearms—a pistol, shotgun and deer
rifle—along with the rest of the
loot from a Thanksgiving Day bur-
glary pulled by the Ellisor brothers
underneath the house next door. As
usual, he did as he was told retriev-
ing the small arsenal and handing
Merle the keys to the late-model
Chevrolet.

“Thanks,” Merle said with a sarcas-
tic smirk. He despised Marlowe for
his spinelessness and delighted in
bullying him. “Tell Archie Lee to get
a move on.”

Merle cranked up the Chevy and
raced the big V-8 to advertise his im-
patience. When the roar of the power-
ful engine did not do the trick, he leaned
heavily on the horn.

“Cut it out, Merle, I’m coming!”
Archie Lee yelled from the porch. He
planted a perfunctory kiss on his wife’s
cheek, pried her fingers from his jack-
et sleeve and bounded across the yard
to the waiting car.

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guns in the back

{den the three
hotgun and deer
the rest of the
giving Day bur-
Ellisor brothers
se next door. As
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e. I’m coming!”

rom the porch. He

iss on his wife’s
s from his jack-

cu across the yard

The younger Ellisor had hardly set-
tled in the front seat, when his sibling
slammed the sedan in reverse spin-
ning the rear tires on the loose grav-
el. The Chevrolet rocketed out of the
driveway and across the street barely
missing a parked car on the opposite
curb. “

“What’s your all-fired hurry?” gasped
Archie Lee.

“Shut the hell up!” growled Merle
grinding the gears in a clumsy search
for first. He finished the shift and
floorboarded the Chevy leaving twin
streaks of tread halfway down the
block.

Archie Lee knew from painful ex-
perience not to antagonize Merle when
he was in one of his moods. But the
unexpected sight of the stolen weapons
on the back seat forced him to break
his silence.

“Why'd you bring the guns along?”
he asked anxiously.

Merle Ellisor, all cleaned up for his 1955 trial.

“Just in case,” answered Merle star-
ing straight ahead.

“That’s just plain crazy,” Archie
Lee argued. “If they catch you with
those, you’re going right back to the

”

pen.

Merle stopped at a traffic light and
turned toward his worried passenger.
“Get one thing straight, baby brother.
I’m never going back. No matter what
happens, they’re never taking me
back.”

Merle drove out the Beaumont High-
way to the eastern edge of Houston,
where blue-collar beer joints lined the
road. After a couple hours of serious
drinking, the bleary-eyed brothers stag-
gered back to the car.

Merle made a U-turn in the middle
of the busy highway and headed
back toward town. The dangerous ma-
neuver scared Archie Lee out of his
wits, but he bit his tongue rather
than criticize his drunken brother’s

driving. Instead of improving his at-
titude, the six or seven beers Merle
had guzzled had only brought out
his mean streak.

Coming upon a Harris County
deputy sheriff riding his motorcycle to
work, Merle suddenly giggled like a
schoolboy who had just thought up a
prank to play on the teacher. He
laughed out loud and said to his side-
kick, “Let’s have some fun with this
flatfoot.”

Merle eased forward until the chrome
bumper of the sedan was inches from
the rear wheel of the motorcycle.
Deputy Jimmy Scarborough glanced
over his shoulder at the tailgater and
gave the Harley more throttle. Merle
gradually closed the gap and this time
the metal bumper actually scraped the
tire.

Scarborough moved aside for the mo-
torist and studied him for telltale
signs of intoxication as the Chevy
roared past. Failing to get a good
look at the driver in the dark, the deputy
decided to follow the sedan from a safe
distance.

Oblivious to the motorcycle in his
rear-view mirror, Merle drove like a
maniac weaving in and out of traffic.
He crossed the center line and forced
two oncoming cars off the road.

Deputy Scarborough had seen
enough. Easing alongside the Chevro-
let, he signaled Merle to pull over as
he declared, “My friend, you’ ve driven
just about far enough in the condition
you’re in.”

Merle obediently hit the brakes but
reached for the handgun on the back
seat as the vehicle rolled to a stop. He
cocked the revolver and calmly wait-
ed for the cop.

The deputy sheriff parked his two-
wheeler behind the Chevy and walked
toward the driver’s door. A split sec-
ond before Merle pulled the trigger,
Scarborough spotted the barrel of the
gun and jumped back. His quick re-
flexes made a life-or-death difference
causing the slug to pass through his
right bicep instead of striking him
squarely in the chest.

Merle did not stick around for a
second shot. He stomped the acceler-
ator, and the Chevy responded with a
tire-smoking burst of speed.

But there was still plenty of fight
left in his wounded victim. Deputy
Scarborough drew his trusty forty-
five and fired once at the rear win-
dow. Fearing for the safety of inno-

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FIENDS
Wuo WEnt To

THe CHAIR

by BARTEE HAILE

erle Wayne Ellisor had

“ants in his pants” the

evening of November
27, 1954. He had been like
that, restless and fidgety,
since his release six weeks
earlier from the Texas De-
partment of Corrections.
Now that he was finally back
on the street, the ex-con
wanted to make up for lost
time—five years to be exact.

Merle had, in fact, spent seven of
his thirty-two years in stir. He did a
two-year stretch for manslaughter right
after World War II, and a series of
burglaries earned him a return ticket
to the joint in 1949.

The defiant hard-case had not meek-
ly accepted his second incarceration
like those institutionalized inmates,
who considered the penitentiary
“home.” As a cousin of the infamous
Clyde Barrow, Merle had a family
reputation to live up to. The Depres-
sion desperado was his childhood hero,
and he still trembled with rage when-
ever he remembered how Clyde had
been shot to pieces in that Louisiana
ambush.

It was only natural Merle would make
a break in March, 1948, when hauled
downtown for questioning on the bur-
glaries. He bolted in broad daylight out-
side Houston police headquarters but
was quickly brought down by a de-
tective’s bullet. a

Merle took the painful wound an
protracted recovery in stride. The sui-
cidal sprint had shown the cops he
was no passive punk while also win-
ning the respect of his fellow felons.

The idea of doing “easy time” by
obeying the rules and keeping his
nose clean made no sense to Merle.
To his way of thinking, the sole ob-
jective of the guards-versus-prisoners
game was to bust out. Less than a
year into his seven-year sentence, he

| ELlisek Webel See TP 4¢/4-Was9

did just that by fleeing a prison farm
in May, 1950.

Merle remained at-large until Octo-
ber, when he was captured and returned

Merle Ellisor being escorted into police headquarters shortly after his
capture. (All photos courtesy of Houston Metropolitan Research Center,

Houston Public Library)
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cent occupants, he lowered his sights
and aimed the remaining five rounds
at the gas tank.

I’m hit!” Merle cried out as he fought
to keep the getaway car on the road.
He had taken the deputy’s best shot in
the left shoulder.

“Tet me drive,” his brother suggest-
ed.

“No time,” Merle muttered through
clenched teeth. ““We’ve got to get out
of here.”

A mile from the shooting scene,
the speeder attracted the attention of
a pair of highway patrolmen. Robert
James Crosby and Doyce Doolin gave
chase at once unaware of the at-
tempt on the life of the deputy sher-
iff.

Merle had the advantage of a two-
block head start, and as soon as the
state cops flipped on their flashing
lights he gave them the slip by turn-
ing down a side street. But the disap-
pearing act only made the patrolmen
more determined to catch the Chevro-
let.

Crosby and Doolin cruised the area
for ten minutes without any luck.
Then all of a sudden the black sedan
appeared out of nowhere, and the chase
was on again.

Merle took a curve too fast, and the
Chevy skidded off the pavement and
into a field. Before he could regain con-
trol, the car crashed head-on into an
enormous pile of dirt.

Crosby pulled in behind the strand-
ed suspects, and his partner threw
open the passenger door. Doolin
was partially out of the patrol car,
when a shotgun blast shattered the
windshield. He instinctively ducked
as a second load of lethal shot ripped
through the interior of the patrol
car.

Incredibly Doyce Doolin survived the-

point-blank ambush with nothing worse
than a trickle of blood from a pellet
crease on the cheek. Robert Crosby was
not so fortunate. He had taken the brunt
of the initial blast right in the face
and was bleeding buckets on the front
seat.

Doolin attempted to avenge his mor-
tally wounded partner by firing wild-
ly into the pitch-black night. The gun-
men were undoubtedly long gone, but
he had to try. He owed Crosby that
much.

While Doolin radioed for an am-
bulance and reinforcements, the El-
lisor brothers were running for their

lives through the open field. They
traveled light carrying only the pis-
tol and leaving the shotgun and hunt-
ing rifle behind in the wrecked
Chevrolet.

At the finish line of their thousand-
yard dash stood a ten-foot tall wire
fence topped by barbed wire. On the
other side was a pipe yard, which of-
fered a hundred hiding places.

Exhausted by the exertion and hurt-
ing from the painful shoulder wound,
Merle announced, “This is as far as I
go.” He instructed Archie Lee to get
out while the getting was good and
to come back for him with another car.
He would be waiting in the pipe
yard.

After boosting his brother over the
fence and ditching the pistol, Archie
Lee walked to an all-night cafe and
called a cab. The taxi took him to the
Marlowe residence, where he broke the
bad news to his wife, sister and broth-
er-in-law.

Archie Lee’s demand for transporta-
tion provoked an angry outburst from
Jed Marlowe. “Nothing doing! Not
after you shoot it out with the cops
and wreck my new car!”

But Marlowe changed his tune after
Archie Lee reminded him that some-
day he might have to answer to Merle.
“He won’t take kindly to you turning
your back on him, Jed.”

‘Marlowe sweet-talked a gullible
neighbor into loaning him his jalopy
with a vague excuse about a family
emergency. Acting as if he were going
to the corner grocery for a quart of milk,
Archie Lee gave his weeping wife a re-
assuring hug and went to fetch his
brother.

Meanwhile, every available city,
county and state lawman, including the
Texas Rangers, answered the urgent
plea for help from Doyce Doolin. The
first wave to reach the chaotic scene
looked on in tight-lipped silence as
attendants gingerly loaded Robert Cros-
by into the ambulance.

Despite his gruesome wound, the
highway patrolman was still breath-
ing when he was wheeled into the
emergency room. But the top-notch
trauma team was no match for the mas-

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lieve that they should have a reason
and you couldn’t find him guilty
unless they had a reason, then you
are entitled to that belief. Now,
that’s the question. Are you going
to require the State to prove a rea-
son or a motive before you could

convict?
“A. I think so.
“Q. You will?
“A. Yes.”

In Chambers v. State, supra, the Court
considered a contention concerning the sus-
taining of a challenge for cause to a pro-
spective juror. In that case, the venireman
indicated that she would require evidence of
premeditation to support a conviction for
capital murder. In that case, we held:

“Although there was much vacillation on

Brightman’s (prospective juror) part, it

appears that she would probably require

some evidence of premeditation and thus
could not follow the law. Premeditation
is not an element of a murder case. The
court’s ruling that she was subject to
. challenge on this basis was sanctioned by

Article 35.16(b)(3), supra. No error is
* shown. Further, the State did not exer-

cise two of its peremptory challenges.

One could have been used on this prospec-

tive juror as well as with the prospective

juror Minicks.”
Also see Bodde v. State, supra, in which we
held that the trial court properly sustained
the State’s challenge for cause to a prospec-
tive juror who indicated that she would
hold the State to a higher standard of proof
than the statute required.

{19] Likewise, in the instant case, we
find no error in the trial court’s action in
sustaining the State’s challenge for cause to
Gil. Furthermore, the State did not exer-
cise four of its peremptory challenges. One
could have been used on this prospective
juror. Appellant’s fifteenth ground of er-
ror is overruled.

In his sixteenth ground of error, appel-
lant contends that the trial court erred in
sustaining the State’s challenge for cause to
prospective juror Anne Guidry. He main-

595 SOUTH WESTERN REPORTER, 2d SERIES

tains that she was excused in violation of
the standards set forth in Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968). Appellant did not ob-
ject when Guidry was excused following the
State’s challenge for cause.

The record reflects that during question-
ing by the court Guidry made the following
statements:

“Q. Would you automatically vote
against the imposition of capital
punishment no matter what the
facts might reveal? Would you just
automatically vote against it?

“A. I believe I would.

“Q. You don’t know for sure?

“A. I would say I would vote against
capital punishment.

“Q. Then regardless of the facts, you
could never assess death for punish-
ment for any crime?

“A. No, I don’t believe I would.
“Q. You’re strictly opposed to it?
“A. Yes.”

In response to questions from appellant’s
counsel, Guidry stated:
“Do you feel like you could hear all
the evidence and answer yes or no,
depending on what the evidence
called for, without letting the possi-
ble death sentence or life sentence
interfere with your deliberations or
affect your answer to the questions?

“A. I believe it would interfere with my
answering yes to those three ques-
tions, because the outcome, as
you're stating it, would be—if all
the jurors said yes to those, then the
death penalty would be given. My
saying yes to that, is somewhat say-
ing then that I would go along with
the death penalty. Where, in fact I
don’t.”

[20] Appellant contends that Guidry’s
testimony merely shows that she had con-
scientious scruples against the death penal-
ty. The record does not support the conten-
tion. Guidry’s testimony makes it clear

ESQUIVEL v. STATE Tex. 527

Cite as, Tex.Cr.App., 595 S.W.2d 516

that she was opposed to the death penalty
and regardless of the facts could not vote to
assess death as a punishment.

As this Court noted in White v. State, 543
S.W.2d 104:

: it was made abundantly clear
in Witherspoon that the decision reached

. therein had no bearing on the right of the
prosecution to challenge for cause any

. prospective juror who stated that he
would automatically vote against the im-
position of capital punishment without
regard to the evidence which might be
developed at the trial or that his attitude
toward the death penalty would prevent
him from making an impartial decision as
to the defendant’s guilt.”

Based upon Guidry’s statements, we find
that the trial court did not err in sustaining
the State’s challenge for cause. She was
properly excused under the standards set
forth in Witherspoon. Furthermore, appel-
lant’s failure to object at the time Guidry
was excused preserves nothing for review.
See, Earvin v. State, Tex.Cr.App., 582
S.W.2d 794; Hughes v. State, Tex.Cr.App.,
562 S.W.2d 857. Appellant’s sixteenth
ground of error is overruled.

[21] In his seventeenth ground of error,
appellant contends that the trial court
failed to properly apply the standards of
Witherspoon when the State’s challenge for
cause was sustained as to prospective juror
Max Nelson. Appellant’s failure to object
at the time Nelson was excused preserves
nothing for review. Earvin v. State, supra;
Hughes v. State, supra. Furthermore, any
error in excusing Nelson was harmless in
view of the fact that the State used only 11
of its 15 peremptory challenges. See,
Chambers v. State, supra at 321. Appel-
lant’s seventeenth ground of error is over-
ruled.

In his tenth ground of error, appellant
contends that the trial court erred in over-
ruling his objection to opinion testimony.
He maintains that the witness was not
properly qualified to express an opinion
that appellant would commit criminal acts
of violence and constitute a continuing
threat to society.

During the punishment phase of the trial,
the State called the Honorable Frank Bris-
coe as a witness. Briscoe stated that he
had been a licensed attorney for 28 years.
He related that from 1950 to 1954 and 1957
to 1959 he was an Assistant District Attor-
ney in Harris County. From 1960 to 1966,
he served as District Attorney for Harris
County.

Briscoe stated that he was in charge of
the prosecution when appellant was tried
and convicted of rape in 1953. He related
that based upon his knowledge of appel-
lant’s rape conviction and subsequent crimi-
nal history, he was of the opinion that ap-
pellant would commit future criminal of-
fenses and would continue to constitute a
threat to society.

{22} Under Art. 37.071(a), V.A.C.C.P.,
the trial court at the punishment phase has
wide discretion in admitting or excluding
evidence which it deems relevant. Ham-
mett v. State, Tex.Cr.App., 578 S.W.2d 699;
Hovila v. State, Tex.Cr.App., 562 S.W.2d
243. However, this discretion extends only
to the question of the relevance of the facts
sought to be proved and does not alter the
rules of evidence insofar as the manner of
proof is concerned. Porter v. State, Tex.Cr.
App., 578 S.W.2d 742. .

In Burns v. State, Tex.Cr.App., 556
S.W.2d 270 where no psychiatric testimony
was presented at the penalty stage (of the
capital murder trial) relative to future acts
of violence we stated:

“Nevertheless, we find the facts adduced
at the guilt stage of the trial in the
instant case to furnish greater probative
evidence to support the jury’s answer
than an opinion which may be gleaned by
a brief psychiatric examination.”

It could be urged with equal logic that a
lawyer who had been familiar with a de-
fendant’s criminal record for 25 years and
had prosecuted him for the crime of rape
would be in a better position to predict
future conduct than a psychiatrist who
based an opinion on a brief visit in a jail
cell.

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528. Tex.

On the other hand, assuming that the
witness was not qualified as an expert, in
Denham v. State, Tex.Cr.App., 574 S.W.2d
129, we noted that lay opinion is admissible
on many different subjects:

“In this State, the opinions of lay wit-

nesses, when competent, are admissible

concerning sanity, insanity, value, hand-
writing, intoxication, physical condition—
health and disease, estimates of age, size,
weight, quantity, time, distance, speed,
identity of persons and things. "

We note that unchallenged lay opinion on
the probability of future acts of violence
has been utilized in other capital cases.
McMahon v. State, Tex.Cr.App., 582 S.W.2d
786 (defendant’s reputation witnesses al-
lowed to give opinion as to probability fu-
ture violent behavior); Duffy v. State, Tex.
Cr.App., 567 S.W.2d 197 (defendant’s priest
testified that he thought the defendant was
the type of individual who would continue
on a course of violence); Burns v. State,
supra (District Attorney testified that in his
opinion the defendant would commit more
acts of criminal violence and constitute a
continued threat to society).

[23] We find no error in the trial court
allowing the witness to express his opinion
with regard to the probability of future
acts of violence by appellant. Appellant’s
objection to the witness’ qualifications to
predict future acts of violence go to the
weight rather than the admissibility of the
evidence. Appellant’s tenth ground of er-
ror is overruled.

In his eleventh ground of error, appellant
maintains that the trial court erred in fail-
ing to grant an instructed verdict as “to the
offense of capital murder insofar as the
indictment failed to allege same.” He
maintains that the indictment failed to al-
lege that the deceased was a peace officer
acting in the lawful discharge of his duties
at the time he was killed.

The indictment alleges in pertinent part
that appellant did:

“intentionally and knowingly cause the

death of TIMOTHY L. HEARN, by

shooting him with a gun, hereafter styled

the Complainant, a peace officer in the

595 SOUTH WESTERN REPORTER, 2d SERIES

lawful discharge of an official duty,
knowing at the time that the Complain-
ant was a peace officer.”

[24] Although the phrase “hereafter
styled the Complainant” is awkwardly posi-
tioned or improperly placed in the indict-
ment, the import of the indictment is clear:
that appellant was accused of shooting Tim-
othy L. Hearn, a peace officer in the lawful
discharge of an official duty, knowing at
the time that Hearn was a police officer.
We find that the indictment contained all
of the elements of capital murder as pro-
scribed by V.T.C.A. Penal Code, Sec. 19.-
03(a)(1). The trial court did not err in
failing to grant an instructed verdict as to
the offense of capital murder. Appellant’s
eleventh ground of error is overruled.

In his ninth ground of error, appellant
contends that the trial court erred in allow-
ing evidence concerning an out-of-court ex-
periment. He maintains that the evidence
was inadmissible due to the fact that the
experiment was not made under substan-
tially the same conditions as those which
existed when the act to which the experi-
ment related took place. He further argues
that the witness was not qualified to per-
form the test.

Officer W. K. Alsip, of the Houston Po-
lice Department, testified that he per-
formed a trace metal detection test on ap-
pellant’s hands following the offense. He
stated that the purpose of the test is to
determine whether a person recently held a
metal object.

At the time he performed the test, appel-
_lant’s hands were moist with blood. The
results of the test were negative. He stat-
ed that in his opinion, the test result was
negative due to the fact that appellant’s
hands were moist at the time the test was
performed.

Over objection, Alsip was allowed to tes-
tify that he performed a trace metal test on
himself after holding the gun which appel-
lant fired at the scene of the offense. Alsip
stated that his test results were also nega-
tive. He testified that this was due to the
fact that the pistol was coated and that the

ESQUIVEL v. STATE Tex.
Cite as, Tex.Cr.App., 595 S.W.2d 516

metal that it was made out of did not show
through.

On cross-examination, Alsip testified that
he had no knowledge of the chemical reac-
tion which would cause the results of the
test to be either positive or negative. He
further testified that he did not use the
same solution of chemical spray in his test
which was used in appellant’s test. He did
not know if the two cans of spray were
made of the same chemicals.

[25] Generally, the results of an out-of-
court experiment are admissible in the dis-
cretion of the trial court if the experiment
was made under similar conditions to the
event to which the results of the experi-
ment relate. The fact that the experiment
was not made under exactly the same con-
dition goes to the weight and not the admis-
sibility of the evidence. See, 23 Tex.Jur.2d,
Evidence, Sec. 400 (1961); McCormick and
Ray, Texas Evidence, Sec. 1461.5 (Supp.
1978).

[26] In the instant case, the experiment
was not performed under similar conditions
to the testing of appellant’s hands at the
hospital. The same chemical solution was
not shown to have been used in both tests.
Furthermore, the reasons for the results in
each test were different. We find that the
trial court should not have admitted Alsip’s
testimony concerning the out-of-court ex-
periment.

[27] A judgment will not be reversed
for the admission of evidence that did not
injure the defendant; the question is
whether there is a reasonable probability
that the evidence complained of might have
contributed to the conviction. Jordan v.
State, Tex.Cr.App., 576 S.W.2d 825; Myre
v. State, Tex.Cr.App., 545 S.W.2d 820. In

the instant case, appellant testified that he

1. In Jurek the Court pointed out that to impose
the death penalty the jury must respond affirm-
atively to the submitted questions which, the
Court thought, “direct and guide their delibera-
tions” and “channel the jury's consideration on
punishment and effectively insure against the
arbitrary and wanton imposition of the death
penalty.” Only generally did the Court observe
that taking all discretion from the jury would
risk losing that element which “permits individ-

529

held and fire the gun which killed the de-
ceased. Under the circumstances, we find
the error in admitting evidence of the out-
of-court experiment was harmless. Appel-
lant’s ninth ground of error is overruled.

The judgment is affirmed.

PHILLIPS, J., concurs in result.

CLINTON, Judge, dissenting.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct.
2950, 49 L.Ed.2d 929 (1976), with respect to
special issues 1 and 3 under Article 37.-
071(b), V.A.C.C.P., the Supreme Court of
the United States observed:

“The Texas Court of Criminal Appeals
has not yet construed the first and third
questions; thus it is as yet undetermined
whether or not the jury’s consideration of
those questions would properly include
consideration of mitigating circumstanc-
es. In at least some situations the ques-
tions could, however, comprehend such an
inquiry. * * * We cannot, however
construe the statute; that power is re-
served to the Texas courts.” Id., at 272,
96 S.Ct. at 2956, n. 7.

This Court still has not determined ex-
pressly and specifically whether in deliber-
ating on its response to the first question
the jury may properly include consideration
of mitigating circumstances, although there
are some general statements to that effect.
See Adams v. State, 577 S.W.2d 717, 730
(Tex.Cr.App.1979), citing Jurek v. State, 522
S.W.2d 934 (Tex.Cr.App.1975)! and Robin-
son v. State, 548 S.W.2d 63 (Tex.Cr.App.
1976).2 But until the precise holding is
made, I only venture the thought that a
reasonable concept of ‘“deliberateness” em-
braces a possibility of mitigating circum-
stances.

ualization based on consideration of all extenu-
ating circumstances ei

2. Robinson invokes the idiom, ‘‘A good rule of
evidence works both ways,” to hold that psy-
chological testimony is admissible on behalf of
an accused, but applies it in a context of the
second question of “future dangerousness,” not
the first of “deliberately.”

FOG see ere tem -

VAVYEVIV 4O ALIS

522 Tex.

apart from the remainder of the entire pan-

el.”
Art. 35.17(2), V.A.C.C.P., provides:
“In a capital felony case, the court shall
propound to the entire panel of prospec-
tive jurors questions concerning the prin-
ciples, as applicable to the case on trial, of
reasonable doubt, burden of proof, return
of indictment by grand jury, presumption
of innocence, and opinion. Then, on de-
mand of the State or defendant, either is
entitled to examine each juror on voir
dire individually and apart from the en-
tire panel, and may further question the
juror on the principles propounded by the
court.”

[6,7] The record shows that the trial
judge questioned the panel of prospective
jurors concerning their knowledge of the
case prior to allowing voir dire of individu-
als apart from the group. One of the jurors
responded that he had read something in
the newspaper. Other jurors then indicated
they had heard or read something of the
case. The judge then asked the panel if
any of them had formed an opinion as to
appellant’s guilt or innocence. Several of
the jurors responded affirmatively. As the
judge questioned each juror regarding his
opinion, defense counsel said, “Your Honor,
I want to take this up with the people as we
get to them” to which the judge replied,
“No, you can’t.”* Appellant now asserts
that this exchange constituted an objection
and an adverse ruling. We disagree. De-
fense counsel’s interjection was in the form
of a general request that did not contain
the grounds upon which he relies on appeal.
Failure to object at trial waives error, if
any. Pizzalato vy. State, Tex.Cr.App., 513
S.W.2d 566; see also, Bodde v. State, Tex.
Cr.App., 568 S.W.2d 344; Moore v. State,
Tex.Cr.App., 542 S.W.2d 664.

[8] Even if appellant had properly pre-
served his contention we hold that the trial
court did not deny appellant his right to
voir dire the prospective jurors separately.
Art. 35.17(2), V.A.C.C.P. provides that the

3. Prospective jurors were later examined sepa-
rate and apart from other members of the pan-
el. Appellant’s complaint is directed to the

595 SOUTH WESTERN REPORTER, 2d SERIES

court propound questions to the prospective
jurors concerning legal principles applicable
to the case. One of such topics which the
statute enumerates is “opinion.” In the
instant case the court questioned each panel
as to their opinion before allowing prospec-
tive jurors to be questioned individually by
counsel separate from the panel. Some 60
prospective jurors were separately ques-
tioned before a jury was selected. We hold
that the trial court did not err in question-
ing the panel as a group concerning their
opinion of the ease. See, Art. 35.17(2), V.A.
C.C.P. No error is shown.

Appellant next contends that the trial
court erred in overruling his challenge to
the array of prospective jurors on the first
panel. The grounds of his challenge are
that the court failed to issue attachments
for prospective jurors upon request and
that prospective jurors were excused by
persons not authorized to do so.

The record reflects that the court began
questioning the panel of prospective jurors
concerning their knowledge of the case.
One juror responded that he read some-
thing in the newspaper whereupon the
court undertook to question him further.
Defense counsel raised his challenge to the
array at that time. The court told counsel
that the challenge would be heard later.
The record reflects the following exchange
then occurred:

“THE COURT: I'll consider it as being
filed.
“MR. ROGERS (defense counsel):
Would you show the Court’s indicated he
will not consider any challenge to the
array at this time or any request to at-
tach missing jurors at this time prior to
actual jury selection with this first panel
of prospective jurors.

“MR. MOSELEY (prosecutor): You're

going to allow him to file his motion?

“THE COURT: Yes.

“MR. MOSELEY: It’s to be considered

as if it were filed.

court’s action during its examination of the
panel. yA

ESQUIVEL v. STATE Tex. 523
Cite as, Tex.Cr.App., 595 S.W.2d 516

“MR. ROGERS: I’m requesting the op-
portunity prior to jury selection to
present the challenge, and the Court has
indicated it will not be heard at this time.
“THE COURT: I’m perfectly willing,
‘ counsel, to let you dictate into the record
i what it is that you want to prove. But
I’m not going to hear it. If you want to
dictate in the record what you want to
- prove, you may.”

After allowing defense counsel to dictate
his challenge into the record the court over-
ruled the motion because it was not timely
presented. We need not reach the merits of
the motion.

[9] Art. 35.06, V.A.C.C.P. provides:
“The court shall hear and determine a chal-
lenge to the array before interrogating
those summoned as to their qualifications.”
(Emphasis added.) Art. 35.10, V.A.C.C.P.
states that when no challenge to the array
has been made, or if made, has been over-
ruled, the court shall proceed to try the
qualifications of those present who have
been summoned to. serve as jurors. Art.
35.12, V.A.C.C.P. defines the mode of test-
ing the qualifications of prospective jurors:

“In testing the qualification of a prospec-

tive juror after he has been sworn, he

shall be asked by the court, or under its
direction:
“1. Except for payment of poll tax or
registration, are you a qualified voter
in this county and State under the Con-
stitution and Laws of this State?
“2. Have you ever been convicted of
theft or any felony?
“3. Are you under indictment or legal
accusation for theft or any felony?”

Looking to the record it is clear that
defense counsel did not raise his challenge
to the array before the court qualified the
panel. Art. 35.06, V.A.C.C.P. Rather, he
brought the matter to the attention of the
trial court after voir dire had begun. It is
apparent that the trial court allowed de-
fense counsel to dictate the substance of his
challenge into the record by way of bill of
exception. The court nevertheless declined
to consider the merits of the motion. We
conclude that the action of the trial court

was proper. Our Code of Criminal Proce-
dure unambiguously requires a challenge to
the array to be made before the panel is
qualified. Articles 35.06, 35.10, 35.12, V.A.
C.C.P. We hold that failure to raise the
challenge before the panel is qualified con-
stitutes a waiver of the opportunity to chal-
lenge the array.

[10-12] Even if appellant had timely
challenged the array no error is shown for
the additional reasons that the form of the
challenge was improper and appellant did
not demonstrate harm. A challenge to the
array must be in writing and it must be
supported by affidavit. Art. 35.07, V.A.C.
C.P. Appellant’s challenge is set forth in
writing in the record but it is not sworn to.
In order to constitute an “affidavit” an
instrument must be sworn to. See V.T.C.A.
Penal Code, Sec. 1.07(35); Dedmon v. State,
Tex.Cr.App., 478 S.W.2d 486; cf. Pena v.
Southern Pacific Transportation Company,
555 S.W.2d 184 (Tex.Civ.App.—El Paso
1977, writ ref’d n. r. e.). In his formal bill
of exception included in the record appel-
lant argues that his affidavit was not sworn
to because no clerk was present in the
courtroom to have appellant swear to the
challenge. An examination of the record
shows that no request was made of the
court to either provide a clerk to perform
such duty or for the court to do so personal-
ly. Nor does appellant’s formal bill of ex-
ception show that such request was made.
We cannot conclude that the requirements
of Art. 35.07, V.A.C.C.P. were complied
with. Stephenson v. State, Tex.Cr.App.,
494 S.W.2d 900, 905 (see also footnote 5 to
that opinion). In addition, appellant failed
to demonstrate harm by showing that he
was forced to accept an objectionable juror.
Walker v. State, Tex.Cr.App., 543 S.W.2d
634; Hurd v. State, Tex.Cr.App., 513
S.W.2d 936. No error is shown.

In his sixth ground of error appellant
incorporates the arguments and authorities
contained in ground of error number five
and contends that the trial court erred in
refusing to hear his challenge to the array.
The action of the trial court was not errone-

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WYWVEVIV 4O ALIS

524 Tex.

ous for the same reasons stated in our dis-
position of the foregoing ground of error.
This ground of error is overruled.

In grounds of error twelve through four-
teen, appellant contends that the trial court
erred in excusing three prospective jurors
on its own motion. Appellant did not ob-
ject at the time the prospective jurors were
excused by the court.

The record reflects that in making his
general remarks to the panel, the court
asked if any of the prospective jurors had
heard anything about the charge filed
against appellant. Three prospective jurors
answered that they had heard about the
case through media coverage. Each of
these veniremen then stated that as a result
of this information, they had formed an
opinion as to appellant’s guilt or innocence
which would influence their verdict. At
this point, the trial court sua sponte ex-
cused the three prospective jurors.

{3] A trial court should not on its own
motion excuse a prospective juror for cause
unless he is absolutely disqualified from
serving on the jury. See, Chambers v.
State, Tex.Cr.App., 568 S.W.2d 313; Valore
v. State, Tex.Cr.App., 545 S.W.2d 477. Un-
der Art. 35.19, V.A.C.C.P., the trial court

595 SOUTH WESTERN REPORTER, 2d SERIES

that as a result of information, they had a
conclusion as to the guilt or innocence of
appellant wnich would influence them in
finding a verdict. Appellant has not shown
how he was harmed by the exclusion of
these prospective jurors, nor, has he estab-
lished that he was tried by a jury to which
he had a legitimate objection. See, Bodde
v. State, supra; Valore v. State, supra.
Furthermore, appellant’s failure to object
to the court’s action in excusing the pro-
spective jurors preserves nothing for re-
view. See, Bodde v. State, supra; Moore v.
State, supra. Appellant’s twelfth through
fourteenth grounds of error are overruled.

In his seventh and eighth grounds of er-
ror, appellant contends that the trial court
abused its discretion when he was not al-
lowed to question prospective jurors with
regard to their understanding of the terms
“deliberately” and “probability” as con-
tained in Art. 37.071(b)(1)(2), V.A.C.C.P.
The trial court ruled that appellant would
not be allowed to question prospective jur-
ors with regard to these terms in that they
did not have a statutory definition or mean-
ing.

(16,17] The constitutional rights to
counsel and trial by jury carry with them
the right of counsel to interrogate members

. ESQUIVEL v. STATE Tex. 525
Cite as, Tex.Cr.App., 595 S.W.2d 516

the term “criminal acts of violence” as used
in Art. 37.071(b)(2), supra.

The terms “deliberately” and “probabili-
ty” do not have statutory definitions, thus,
they are to be taken and understood in
common language. See, Art. 3.01, V.A.C.
C.P. As the Court noted in Battie v. State,
supra at 405:

“It takes no stretch of the imagination to

recognize that voir dire examination

could be endless if counsel were allowed
. to ask each prospective juror questions
relative to his understanding of such
words and terms as ‘reasonable doubt,’

‘criminal acts of violence,’ and ‘sound

memory and discretion’ which have been

found to be ‘words simple in themselves’
that ‘jurors are supposed to know such
common meaning.’ ”

[18] We find no abuse of discretion in
refusing to allow counsel to interrogate pro-
spective jurors relative to their under-
standing of the terms “deliberately” and
“probability.” Appellant’s seventh and
eighth grounds of error are overruled.

In his fifteenth ground of error, appellant
contends that the trial court erred in sus-
taining the State’s challenge for cause to
prospective juror Esperanza Gil.

The record reflects that during the ques-

“A. That’s not very clear to me.

“Q. As I said, we have to prove those
five things. But we don’t have to
prove the motive. You would not
require that the State prove the mo-
tive of the defendant in killing the
deceased before you would find a
defendant guilty, if those other ele-
ments were proven to you? Would
you? i

“A. I don’t think so.

“Q. Well, you may be curious about his
motive, but if the motive was not
proven, could you convict someone
of murder?

“A. If it was not proven?

“Q. If there was no evidence at all of
any motive, could you convict some-
one of murder?

' “A. No, I don’t think so.”

In response to questions by appellant's
attorney, Gil stated:

“Q. So if the State proved to you—of

course, you might consider motive

or premeditation as far as what

penalty you wanted to inflict on the

defendant. Obviously a calculated,

planned murder is worse than a sim-

ple fight between somebody. But

a may on its own motion, excuse a prospec- : a
= A y f f the followi Prospe of the jury panel for the pUrpose of enab- tioning by the State of prospective juror do you feel like if you felt the evi-
= tive Juror for any of the following reasons —ji.5 counsel to exercise intelligently his per- : .
= : . : g Gil, she made the following statements. dence showed beyond a reasonable
listed in Art. 35.16, V.A.C.C.P.: to challenges and, as a general rule m ’
~ . oe ; = bes ’ ee és isl saa (prosecutor) doubt in your mind that a person
sole ; great latitude should be allowed by the “Ww intentionally or. tiiewinet
“2. That he has been convicted of theft court for such interrogation. Trevino v. Pia a = priate dae someone ess dua’ wake —
or any felony; oa State, Tex.Cr.App., 572 S.W.2d 336. When- We may, and we may not. If I cuse, that you could find him guilty
“3. That he is under indictment or other ever some type of limitation is imposed were to pull a gun right now and of murder?
—_ peemeces for theft or any felony; “pee the —_ dire examination, reversal shoot someone in this room, the “A. I think I would, yes.”
4. That he is insane or has such defect will result if such a limitation was an abuse State would present that type of . . ;
in the organs of feeling or hearing, or of discretion. Mathis v. State, Tex.Cr.App., evidetios. That tonkd ‘bu. ontficlent Finally, the court questioned Gil:
such bodily or mental defect or disease as 576 S.W.2d 835; Trevino v. State, supra. | evidenee ts thew that I was guilty “Q. Do you know what motive means?
to render him unfit for jury service, or In Chambers v. State, supra, we found no of marder. Dé you see stat I “, A veabeat?
that he is legally blind and either the abuse of discretion in the trial court’s refus- mean? And the State may not be “Q. That's exactly it. That’s exactly
court or the state in its discretion el the al to allow counsel to question a prospective able to prove what the motive was what it means. A reason. So, if
defendant or the prospective juror in his juror on her understanding of the term or that the person doing the killing the State can prove the man did it,
discretion is not satisfied that he is fit for “deliberately” as used in Art. 37.071(b)(1), had planned for several months. they don’t have to prove why he did
jury service in that particular case; supra. Likewise, in Battie v. State, Tex.Cr. : “You would not require the State to it. They don’t have to prove the
[14,15] In the instant case, the three App., 551 S.W.2d 401, no abuse of discretion : prove the motive of the defendant reason.
prospective jurors would have been subject was found in the trial court’s refusal to + in killing the deceased or the pre- “The law doesn’t require them to
3 i to a challenge for cause under Art. 35.- allow counsel to interrogate prospective jur- he meditation on the defendant's part, prove the reason. Some people
; it 16(a)(9), V.A.C.C.P., when they indicated ors with regard to their understanding of ed would you? might want a reason. If you be-
Ht a

"THE NEW YORK TIMES, ‘THURSDAY, AUGUST 16, 1984.4

Texas Execution Put Off
For Lack of Notice ae

HUNTSVILLE, Tex., Aug. 15 (AP) —
A convicted killer’s execution, sched-
uled for today, was postponed because
a clerk of the sentencing judge failed to
notify the Texas Department of Correc-
or of the execution date, offici
said. Serpe y
“Our clerk made a mistake,” said
Karen Trower, coordinator for Judge
Tom Thorp of State District Court in
Dallas. “We don’t do many death pen-

Judge Thorp had sentenced Michael
Wayne Evans to death for slaying a
man who had been abducted outside a
Dallas church. . ie ;
- Texas law requires the Corrections
Department to be given 30 days’ notice
of an execution. The department did
not learn of the scheduled execution
date until Friday, said Charles Brown,
a department spokesman. . a

On Monday the convict was returned
to Dallas, where the court set an execu-
tion date of Oct. 17. ai)

AOE
Pes

oe
we

exas executes killer of Baptist church pianist

»OCIATED PRESS

HUNTSVILLE, Texas — Michael
tyne Evans, who fatally shot and
shed a woman “to get her to quit
king” as she asked God to f orgive
n, was put to death by injection
ursday for the murder.

“I want to say I’m sorry for the
ngs I’ve done and I hope I’m for-
en,” Evans said, tears in his eyes,
ore the lethal injection was ad-
istered. “I don’t hold nothing
inst no one. Everyone has treat-
me well and I know it’s not easy
them. That’s all. I’m sorry.”
vans, 30, died at 12:21 a.m. CST,
e Attorney General Jim Mattox

le had confessed to the 1977
‘der of Elvira Guerrero, a
rch pianist who prayed to God
rgive him and accomplice Earl
ley Smith.

he execution, the ninth in Tex-
iis year and the 19th since the
> resumed the death penalty in

1982, came after federal courts re-
fused Wednesday to grant a Stay.
Evans had two previous Stays and
two trials.

Guerrero, 35, was abducted with
her fiance, Mario Garza, 28, after
leaving the Second Mexican Baptist
Church in Oak Cliff. She was
robbed of $40 in church offerings,
shot twice and slashed with a car-
pet knife.

Garza, who had been baptized at
the church earlier in the day, was
robbed of $12 and fatally shot with
the .22-caliber pistol Evans said he
had stolen. The bodies were found
in a field four days after they had
been reported missing.

Evans and Smith were not tried
for Garza’s killing after their con-
victions in the death of Guerrero.
Smith, now 32, received a life sen-
tence.

Evans’ appeals were rejected
Wednesday by a federal district
judge in Dallas, the U.S. 5th Circuit
Court of Appeals in New Orleans
and the U.S. Supreme Court.

Stn Fe Nertury 12 -9-£¢

. MURDERER EXECUTED: Dov-
ble killer Michael Wayne Evans,
30, was executed by injection early
today in Huntsville, Texas, for the

Slaying of a

was shot and's

church pianist who
lashed to death as

prayed to God to forgive her

attacker, Ey

the June 1977 murder of Elvira
Guerrero, 35, who was abducted

4 this is not easy. I'm sorry.”
ee ite AME Ee EE eas ns oe

fovernor while Gov. Mark White is
out of the state, also rejected a plea
for a 30-day reprieve.

ans was insane and attempted to
show he had been sentenced to bery,

death unfairly because he was
black.

Lt. Gov. William Hobby, acting

Defense lawyers contended Ev-

Texas Executes

Man Who Shot

Church Pianist
pore Se

Huntsville, Texas Chre.s icle

Michael Wayne Evans, who
Slashed and shot to death a
church pianist while she
prayed to God to forgive her
attacker, was executed by in-
jection last night.

Evans, 30, died at 10:21 p.m. PST
at the Texas Department of Correc-
tions’ Walls Unit.

The Supreme Court had voted 5
to 4 yesterday afternoon against
blocking the execution.

“I just want to say I'm sorry for
the things I've done and I pray that
I'm forgiven,” Evans said just be.
fore the execution. “I don't hold
nothing against no one. Everyone
treated me pretty well and I know

“I think he was sane,” said Mat-
tox, who witnessed the execution.

“He clearly understood his punish-
ment.”

Evans, whose arrest record in-
Cluded drug possession and rob-
asked for no final meal and
requested no personal witnesses to
his execution.

Evans, a former mechanic, was
convicted of capital murder for the
slaying of Elvira Guerrero, 36, a pia-
nist at the Second Mexican Baptist
Church in Dallas, on June 28, 1977.

He and a companion, Earl $tan-
ley Smith, stole $40 in church offer-
ings, drove Guerrero and her fian-
ce, Mario Garza, to south Dallas
County and killed them.

Evans told police that he shot
Guerrero twice and then slashed
her across the eyes and throat with
a carpet knife as she prayed to God
to forgive her attacker.

Smith, now 32, pleaded guilty
and was sentenced to life in prison.

Evans was the 67th convict exe-
cuted in the United States Since the
Supreme Court lifted its ban on cap-
ital punishment in 1976 and the 19th
in Texas since the State resumed
executions in 1982.

United Press International

|
|
'

PAGE 4A As

Convict
Executed |
For Slaying

HUNTSVILLE, Texas (AP) — Con-
victed killer Michael Wayne Evans,
tearfully asking for forgiveness, was
put to death by Texas corrections
officials early Thursday for the 1977
robbery-slaying of a woman.

“I want to say I’m sorry for the
things I’ve done and I hope I’m for-
given,” Evans said in his final
statement as tears welled in his eyes.
“I don’t hold nothing against no one.
Everyone has treated me well and I
know it’s not easy for — That's |
all. I’m sorry.”

Evans, 30, a former ws auto roshentie
was pronounced dead at 12:21 a.m.
after the lethal drugs flowed into ne
arm, . (?

He was Becuted for the June 197
killing of Elvira Guerrero, a pianist
and treasurer at the Second Mexican
Baptist Church in Oak Cliff.

The 35-year-old woman and her fi-
ance were abducted and killed after
leaving the church where she
worked. She was robbed of $40 in
church offerings, shot twice and then
slashed across the eyes and throat
with a carpet knife. Her fiance, Mario
Garza, was robbed of $12, then shot
several times with a .22-caliber pis- |
tol. Their bodies were found in a hay-
field four: days. after ‘they were re-
ported missing.

“I feel real bad,” Connie Rincon,
Guerrero’s sister, said Thursday.

“Last night it was so hard for me, the
last two or three minutes. I caught
myself praying for him, asking God to .

forgive him. I felt better that I said
that prayer.

“But this is something to ro
others they can’t get away with it. I :
hope it will serve as-an example for.
others. It is sad.”

Evans, whose record included drug

being kill te % ater
e mu

her face with. ‘ Be ironseiea Rpt n

knife to get her to stop talking. ..

Attorneys contended ’ Evans - wid” !
insane. They also attempted to show |

Evans, who is black, was unfairly

given the death, penalty because of |

his race. |

es think hes ‘was sare,” said Frit,

ney;,General Jim Mattox, who wit-.
nessed the ‘execution: “I don’t. think
iheeiany doubt about that. Hear-.

_ Tuesday, Irvin
' filed

1 Chronic Section 1, Page 25:

Killer seeks ;

reprieve as
stay denied

By FRANK KLIMKO
‘Houston Chronicle

HUNTSVILLE — Attorneys for
killer Michael Wayne Evans have
asked a federal judge for a reprieve
after the Texas Court of Criminal Ap-
peals refused to ere
block Evans’
Thursday morn-
ing execution.

The State @
court Tuesday §&
rejected the ap-
peal filed by Ev-
ans’ Dallas at-
torney Walter
Irvin. Later

another
stay request
with U.S. District J udge Barefoot Sand-
ers and was preparing to fly to New
Orleans Tuesday night to file a legal

Guerrero

brief with the 5th US. Circuit Court of .

| Appeals, if necessary, a spokesman for

his office said.

Evans, 30, a former automopie me-
chanic and plumber, was convicted of
capital murder for the June 28, 1977,
slaying of Elvira Guerrero, a Dallas
church pianist and computer operator.

Guerrero, 36, and her fiance Mario
Alvarado Garza, 28, were kidnapped
from their Dallas church, robbed of $40
in donations, shot and killed. In one of
his two statements to police, Evans ad-
mitted robbing Guerrero, shooting her
and then cutting her face with a carpet
knife as she prayed that God forgive
him for killing her.

“I cut the lady from the bottom of
her chin to her hairline above her fore-
head. Then the lady said ‘God forgive
him,’” Evans said in the police state-
ment dated July 14, 1977. “I was trying.
to get her to quit talking.”

Kevin Byrne, a Dallas attorney who
prosecuted the capital murder case.
against Evans, said that the former
plumber deserves to be executed.

“He was one of the sorriest human
beings ever,” Byrne said.

Evans and a friend, Earl Stanley:
Smith, were charged with capital mur-.
der. Smith, who pleaded guilty to the
murder, is serving a life sentence in the -
Texas Department of Corrections.

Irvin claims Evans should not be ex-
ecuted because he has gone insane dur-
ing the eight years he has lived on
death row. Testimony at both of Evans’
trials showed that he was sane at the
time of the killings and that he under-
stood the crimes with which he was
charged.

Guerrero and Garza were found shot
to death at the edge of a hay field in
Oak Clitf on June 30, 1977. The decom-
posing bodies were partly hidden be-
neath bushes and leaves in the South
Dallas field.

About two weeks after the killings.
on July 11, 1977, Dallas police arrested |
Evans at an apartment complex after |
finding Guerrero’s sedan at the loca-
tion.

Evans has twice been convicted of
capital murder and twice sentenced to
death for the crime. The state appeals
court in 1980 overturned Evans’ origi-
nal capital murder conviction and he
was convicted of capital murder a sec-
ond time on Oct. 8, 1981.

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van

iller apologizes, executed

Victim's sister says she’s finally able to forgive

By FRANK KLIMKO
Houston Chronicle

HUNTSVILLE — As he lay on the
executioner’s gurney, killer Michael
Wayne Evans tearfully apologized for
his crime, and his victim's sister said
she’s finally able to forgive him.

“I want to say I'm sorry for the
things I've done, and I hope I'm for-
given.” Evans said, as his executioners
prepared the lethal injection Thursday
morning.

Evans, 30, a former plumber and me-
chanic, received the death penalty for
the 1977 robbery-slaying of Elvira
Guerrero, a Dallas church pianist and
computer operator who prayed for for-
giveness for her attacker after he shot
her and her fiance, Mario Alvarado
Garza, a Mexican national who had
been baptized the night the two were
slain. Evans told officers at his arrest
that he slashed her face with a carpet
knife as she asked God to forgive him.

“Last night it was so hard for me —
the last two or three minutes just be-

fore he was executed,” said Connie Rin-
con, Guerrero’s younger sister. “I
caught myself praying for him, asking
God to forgive him.

“At first I felt guilty for that, think-
ing that maybe this was bad for my
sister. Then I felt better that I said that
prayer,” said Rincon.

Evans showed no visible reaction to
the drugs as they were injected in his
veins, and he seemed to drift off to
sleep before he was pronounced dead
at 12:21 a.m. Thursday.

Evans, who was on parole at the time
of the killing, was convicted of the June
26, 1977, slaying of Guerrero, 36, and
Garza, 28. They were kidnapped from a
Dallas park, robbed of $52, shot and
killed. Their bodies were found four
days later hidden underneath some
bushes.

Evans declined a final meal Wednes-
day as he slept most of the Jay in prep-
aration for the execution. He had no
visitors and requested that no family or
friends be present at the execution.

Evans’ appeals for a stay were re-
jected by a federal district judge in

‘eet

Dallas, the federal appeais court in
New Orleans and the Supreme Court.
The Texas governor's office, also re-
fused a last-minute stay on Wednesday.

Evans’ Dallas attorney Walter Irvin
appealed on the grounds that Evans
had gone insane while living on death
row and that the death sentence of Ev-
ans, who is black, was discriminatory
and partly based on his race. The '
courts rejected both arguments.

“I think he was sane,” said Attorney
General Jim Mattox, who witnessed
the execution. “I don’t think there’s any
doubt about that. Hearing his final |
statement, I have no doubt his sanity |
would meet the test of Texas law.”

Texas leads the nation in the number
of executions. with 19, since the Su-
preme Court allowed executions to be-
gin again in 1976. Florida, the next clos-
est state, has conducted 16 executions.

Evans execution was the ninth in
Texas this year. His body was taken to
the Harris County Medical Examiner's
Office for an autopsy and is to be re-
leased to his family today for burial in
Dallas. Funeral services are pending.

_ Wednesday, December 3, 1986

reprieve as oxi

stay denied (iz

’

5 ff
By FRANK KLIMKO : | if !
Houston Chronicle i (

wc
ait
i

HUNTSVILLE — Attorneys for, : :
killer Michael Wayne Evans have:, i
asked a federal judge for a reprieve’:
after the Texas Court of Criminal Ap->-..>.
peals refused to initia Tt.
block Evans’
Thursday morn-
ing execution.

The _ state }
court Tuesday
rejected the ap-
peal filed by Ev- |
ans’ Dallas at-
torney Walter @
Irvin. Later }
Tuesday, Irvin §
filed another ee
stay request Guerrero ‘
with U.S. District Judge Barefoot Sand-:": !
ers and was preparing to fly to New. 7:3:
Orleans Tuesday night to file a legal + --
brief with the 5th U.S. Circuit Court of... «+
Appeals, if necessary, a spokesman for .
his office said. eae

Evans, 30, a former automobile me-'.: «-:
chanic and plumber, was convicted of”
capital murder for the June 28, 1977,.:~
slaying of Elvira Guerrero, a Dallas... °..
church pianist and computer operator. -»-:-

Guerrero, 36, and her fiance Mario:”: «.
Alvarado Garza, 28, were kidnapped... ...
from their Dallas church, robbed of $40°: :
in donations, shot and killed. In one of»: .. »

_ his two statements to police, Evans ad- ,« +

mitted robbing Guerréro, shooting her-7 . «
and then cutting her face with a carpet..: ..
knife as she prayed that. God forgive...
him for killing her. et,
“I cut the lady from the bottom ef..."
her chin to her hairline above her fore- : «.-
head. Then the lady said ‘God forgive « -
him,’” Evans said in the police state-..”.

ment dated July 14, 1977. “I was trying «)-
to get her to quit talking.” wid

Kevin Byrne, a Dallas attorney who.s't..
prosecuted the capital murder case ~.’
against Evans, said that the former: :
plumber deserves to be executed.

Houston Chronicle

Killer seeks oe:

rae

Section 1, Page 25

“He was one of the sorriest human «s.i-v.
beings ever,” Byrne said. a
Evans and a friend, Earl Stanley...‘
Smith, were charged with capital mur- -:,.
der. Smith, who pleaded guilty to the...
murder, is serving a life sentence inthe...
Texas Department of Corrections. ~ +,»
Irvin claims Evans should not be ex-
ecuted because he has gone insane dur- ~
ing the eight years he has lived on. .
death row. Testimony at both of Evans’ ~~
trials showed that he was sane at the
time of the killings and that he under-*f « ;
stood the crimes with which he was —
charged. ee
Guerrero and Garza were found shot. : 3>-
to death at the edge of a hay field in __.
Oak Cliff on June 30, 1977. The decom-»- ;4

‘posing bodies were partly hidden be - -

neath bushes and leaves in the South ~ -
Dallas field. .
About two weeks after the killings,“ '
on July 11, 1977, Dallas police arrested-?"
Evans at an apartment complex after ~->.°
finding Guerrero’s sedan at the loca- a
tion. il
Evans has twice been convicted of”
capital murder and ‘twice sentenced to":
death for the crime. The state appeals’ ° -
court in 1980 overturned Evans’ origi- :\»''
nal capital murder conviction and he »"..
was convicted of capital murder a sec- °
ond time on Oct. 8, 1981. Os

EVANS v. McCOTTER |

1233

Cite as 790 F.2d 1232 (5th Cir. 1986)

The Court of Appeals, Randall, Circuit
Judge, held that: (1) police officers who
had given defendant two Miranda warn-
ings during three-hour period were not re-
quired to give him third warning prior to
reinitiating interrogation and (2) evidence
was insufficient to establish that grand
jury selection system operated to exclude
minorities and 18 to 21 year olds from
service.

Affirmed.

1. Criminal Law ¢412.2(3) .

Police officers who had given defend-
ant two Miranda warnings during three-
hour period were not required to give him
third warning prior to reinitiating interro-
gation, where defendant had not indicated
lack of willingness to talk and had not
requested an attorney. U.S.C.A. Const.
Amend. 5.

2. Grand Jury 17

Evidence was insufficient to establish
that grand jury selection system operated
to exclude minorities and 18 to 21 year olds
from service, absent evidence that repre-
sentation of such groups was a significant
_ underrepresentation in light of actual com-
position of county.

3. Habeas Corpus ¢°45.3(1.40)

~ Court-of Appeals was barred from con-
sidering petitioner’s claim that five venire-
men were wrongfully excluded for cause in
capital murder prosecution where petition-
er failed to object to jury composition at
trial.

4. Jury, 108

Five prospective jurors were properly
excluded for cause prior to state capital
murder. trial where each of the five stated
they would automatically answer “no” to
one. of three questions required by Texas
law to be answered affirmatively in. order
to sentence defendant to death. 28 USS.
C.A. § 2254(d); Vernon’s Ann.Texas C.C.P.
art. 37.071(b).

5. Habeas Corpus ¢45.2(6)
State trial court’s refusal to permit
defendant to impeach defense witness with

evidence of witnéss’ bad character was not
grounds for federal habeas corpus relief,
where witness’ testimony was not “crucial”
or “devastating,” but rather was essential-
ly cumulative.

6. Criminal Law 662.7

Refusing to permit defendant to im-
peach defense witness with evidence that
he had entered into plea agreement did not
violate confrontation clause, where evi-
dence was offered to show witness’ bad
character rather than motive to falsify tes-
timony. U.S.C.A. Const.Amend. 6.

7. Criminal Law €1168(2)

Even if refusal to permit defendant to
impeach defense witness with evidence that
witness had entered into plea agreement
violated confrontation clause, error was
harmless in light of relative unimportance
of witness’ testimony to prosecutor’s case,
its cumulative nature, and weighty evi-
dence corroborating witness’ testimony.

8. Criminal Law ¢986.2(1)

Scope of evidence of mitigating factors
that may be presented at presentence hear-
ing is wide, because it is desirable to have
as much information before the jury as
possible when it makes sentencing decision.

9. Homicide 354

Evidence that defendant had earlier
pled guilty to unrelated murder and had
received a life sentence was irrelevant in
sentencing phase of capital murder trial.

10. Homicide 354

Evidence regarding defendant’s prior
homicide, heinous nature of the killing, de-
fendant’s extensive violent criminal record
and his apparent lack of remorse after the
killing supported imposition of death sen-
tence, despite evidence that defendant had
been converted to Christianity while in pris-
on.

11. Habeas Corpus ¢45.2(8)

Petitioner did not have federal consti-
tutional right to any type of proportionality
review of his state death sentence.

Race
1h
ey

Wieditliewe a 6

WV A Nt
4, VA NS 9

SMEKM, Michael Wayne, black, ex., Tex. (Dallas) a ad li, 1986

OY i on B/. Me

A fron Navrafive of

1232 FE 199 FEDERAL REPORTER, 2d SERIES yy ans! Ore
: <

the trial court’s orders.” Jd. As.an arm of
the court, the ombudsman has an obli-
gation to behave impartially and to report
objectively, for a court “must not assume
the role of prosecutor or defender.” Ruiz,
679 F.2d at 1129.

The role of an ombudsman, however,
stands in sharp contrast to that of an advo-
cate. An attorney must zealously repre-
sent the interest of the client and must
treat those interests as ones of paramount
importance. Often that role may not be
congruent with the ombudsman’s. obli-
gation to objectively monitor compliance
with the court. decree. In cases such as
this, the attorney’s obligation is to seek the
best possible conditions of confinement for
the client, even if those conditions exceed
the minimum standards required by the
Constitution. The Ombudsman, by con-
trast, is obligated only to ensure that the
defendants’ conduct comports with the con-
stitutional minima as laid down by the
Court. I do not mean to intimate that
either role is intrinsically more praise-
worthy than the other. I do believe, how-
ever, that each role is fundamentally, and
inevitably, in tension—if not outright con-
flict—with the other.

I recognize that we have previously en-
dorsed the appointment of an ombudsman
as the kind of procedural innovation neces-
sary to relieve overcrowded federal dock-
ets. Miller, 563 F.2d at 752-53. In Miller,
however, the District Court “had the good
judgment to appoint a magistrate as Om-

- budsman.” Jd. at 752. A magistrate is
clearly a judicial officer and has “no inter-
est in or relationship to the parties.” List-
er v. Commissioner’s Court, Navarro
County, 566 F.2d 490, 493 (5th Cir.1978).
The same disinterested objectivity cannot
be attributed to an ombudsman who occu-
pies that post and, nonetheless, continues
to serve as an attorney for a principal

party.
In my view, such inherently conflicting
roles should never be combined in the per-

3. My criticism is addressed to the Judge, not the
counsel, whose actions in accepting this role are

son of a single attorney: “The truth pro-

nounced by Justinian more than a thousand 7-

years ago that ‘impartiality is the life of hp
justice,’ is just as valid today as it was

then.” United States v. Brown, 539 F.2d

467, 469 (5th Cir.1976). I believe that the

appointment of a party’s attorney to a judi- A

cial office casts grave doubt upon the ap-

pearance of detached impartiality that is so UY -
essential to the functioning of our judicial

system. More than that, it subjects em- SL pe ea
ployees and agents of the governmental Ve Tne
defendants to great uncertainty as the at- &. aaa,
torney-ombudsman makes _ his __ post- a
judgment rounds in the jail: is he simply

the lawyer ferreting out evidence, or is he Or
the Judge’s representative, checking to see /2

if the orders are being carried out? Thus, J-
while it has resulted in no actual prejudice ao
in this case, I would strongly discourage

such an appointment in the future.’ CG £

¢ Se hot
; —Ykha 5
Fide = Yio ae

Michael Wayne EVANS, <_S~ ati
Petitioner-Appellant, Be HK
v.

O.L. McCOTTER, Director, Texas”,
Department of Corrections,

ie :
Respondent-Appellee. Lo le
No. 85-1665 Sey.
Summary Calendar. c

United States Court of Appeals,
Fifth Circuit.

June 4, 1986.

(e-porers AEN! Cd bu US

Defendant who had been sentenced to Sv
death in state capital murder prosecution 3
petitioned for writ of habeas corpus. The G e
United States District Court for the North- “Cy 7"
ern District of Texas, Barefoot Sanders, J., 4,
dismissed petition, and defendant appealed.

completely ethical. Wt

1234 790 FEDERAL REPORTER, 2d SERIES

12. Criminal Law €1206.1(2)
Texas. death penalty statute did not

impermissibly bar introduction of evidence
of mitigating factors.

13. Habeas Corpus 54

Petitioner was not entitled to habeas
corpus relief on grounds that Texas death
penalty statute had been applied unconsti-
tutionally in the past because death sen-
tences had been more frequently imposed
on blacks who killed whites, absent allega-
tion that state engaged in intentional dis-
crimination against petitioner in particular.

14. Criminal Law €1208.1(4)

Death penalty was not unjustified as
means of achieving any legitimate govern-
mental end. .

Walter L. Irvin, E. Brice Cunningham,
Dallas, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Paula Offenhau-
ser, Austin, Tex., for respondent-appellee.

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

Before GEE, RANDALL and DAVIS,
Circuit Judges.

RANDALL, Circuit J udge:

Michael Wayne Evans, a state prisoner
sentenced to death, appeals from the dis-
missal of his petition for a writ of habeas
corpus, 28 U.S.C. §§ 2241, 2254. The dis-
trict court granted a certificate of probable
cause. Upon consideration of the argu-
ments raised, in the context of the entire
record, we are convinced that Evans has
not proved that his trial suffered from fed-
eral constitutional infirmities. According-
ly, we affirm.

For the purposes of this proceeding, the
facts are as follows. 28 US.C. § 2254(d).
The decomposed bodies of a man and a
woman were found on June 30, 1977, cover-
ed with bushes and leaves in a field in
south Dallas. Both bodies had been shot

several times. Police found near the bod-
ies a cylinder pin or ejection rod from a .22
caliber pistol. The woman’s body subse-
quently was identified by her clothing as
Elvira Guerrero, who had last been seen
leaving evening church services in her car
on June 26, with $40 in church offering
money. A .22 caliber bullet was removed
from her body. The man’s body was deter-
mined to be Mario Alvarado Garza, who
accompanied Guerrero to the church servic-
es. On July 11, 1977, police noticed
Guerrero’s automobile parked in an apart-
ment complex area in Dallas. Police asked
residents of the complex questions concern-
ing its ownership, and were told that it may
have belonged to Belinda Key, whose
apartment was about 15 feet from where
the car was parked. Police entered the
apartment with Key’s consent, but Evans,
who was living in the apartment, fled unno-
ticed out a back window. They recovered,
from a dresser drawer in a bedroom, a .22
caliber revolver (of a type commonly called
a “Saturday Night Special’’) with its ejec-

tion rod missing, Key stated that the pis-

tol belonged to Evans. Questioning of Key

convinced officers that Evans was a sus-

pect in Guerrero’s Slaying. Officers took a

palm print from Guerrero’s car, which was

subsequently identified as belonging to Ev-

ans.

Evans returned to the apartment within
a few hours, and he was arrested at 4:30
p.m. on July 11. A Dallas police officer
gave Evans Miranda warnings immediate-
ly. Evans was removed to Dallas police
headquarters where, before questioning, he
Was again administered Miranda warn-
ings. Evans stated that he understood the
warnings, and that he wanted to talk. In
fact, he talked with the police officers for
about two hours. He implicated another
individual, Stanley Earl Smith, in the slay-
ings. Police went with Evans to the hous-
ing project where Smith lived, then intend-
ed to drive to the home of a justice of the
peace for arraignment. While driving to
the justice of the peace’s home, and in
response to further police questioning by
different officers than had questioned him
previously, Evans told police that he would

‘ans

‘get,
% 4

A ve

1236 790 FEDERAL REPORTER, 2d SERIES

"no point in the interrogation process, from
the time he was arrested, did Evans. re-
- quest an attorney. ae

_. At the trial of.Evans,. the State. intro-

duced evidence that at about midnight on
June 27, Evans returned to Key’s apart-
ment with blood on his hands and clothing.
On June 27, a companion of Key helped
Evans clean “blood and flesh” from: the
inside of Guerrero’s car, and brought it
back to Key’s apartment complex. Key
asked Evans where he got the car, and he
responded that he and Smith “had jacked 4
some people and hit them in the head ‘and
tied them up and. covered them with
bushes.” Evans’ girlfriend, Juanita In-

glasses from the apartment. Earl and I start-
ed walking toward a park near Ross Avenue.
When we got to the park, we saw a brown and
black Pontiac Firebird parked on the side
street by the park. A Mexican woman was
sitting in the driver's seat and a Mexican man
was sitting in the front seat next to her. They
were just talking. We walked by the car and
looked it over. Earl had my pistol and I had
a hook-blade knife. We walked back to the
car and Earl stuck the pistol in the lady's face
and I pulled the knife on the dude. Earl told
the lady that we wanted to get out of this part
of the town. The lady offered to take us and
_Earl told her that we'd take ourselves. Earl
told the lady to get into the back seat and I
got into the back seat with her. Earl started
driving the car and the dude was in the front
seat. The dude started jabbering in Spanish
and Eart told him to shut up. The lady asked
us if we wanted their money. Ear! told her
that all we wanted was a ride across town.
The lady handed me an envelope with about
$40.00 in it. I took the rhoney and put it in
my pocket. The dude handed Ear! his wallet
and Earl put the money out of the wallet into
his (Earl’s) pocket. I think it was about
$12.00. Earl drove across town to a big field.
Earl parked the car by a big tree. Earl gave
me the gun. As soon as the car stopped
moving, the Mexican lady said, “you don't
have to kill us, we won't tell anybody.” Earl
looked back at me and said, “you know what
it is.” I then shot the Mexican lady two or
_ three times. The woman fell over in the seat
and the dude jumped out of the car and start-
ed running. I handed Earl the pistol and Earl
started running after the dude. Earl shot one
time at the dude but I think he missed. A few
seconds passed and I heard two more shots. I
couldn't see Earl or the dude. About this
time, the lady took my hand in hers and I
realized she was still alive. She was holding
my hand and looking into my eyes. Then she
said, “God help him, God, help him.” I took

gram, was also at the apartment when
Evans returned in the early morning hours
of June 27. Evans told Ingram that he
killed some .\Mexicans, and gaveher a
watch from “the: Mexican lady that he had
killed.” Finally, Evans told: his cousin,
Stanley Robinson, in response to a question
concerning -how he obtained” the car in
which he was riding, that he took it from a
couple that he had killed.

The jury returned a verdict of capital
murder and sentenced Evans to death.
The Texas Court of Criminal Appeals re-
versed the judgment and remanded for a
new trial because certain prospective jurors

my hook-blade knife out of my pocket. ‘I cut
the lady from the bottom of her chin to her
hairline above her forehead. Then the lady
said, “God forgive-him.” I cut-the lady two
more times in the face. I think I cut her eyes.
I was trying to get her to quit talking. All of a
sudden the lady turned loose of my hand arid
quit breathing. I sat there in the car looking
at the woman until Earl opened the car door.
Earl told me to help him drag the lady out of
the car: We dragged the woman over in some
bushes. We covered the- lady up with some.
bushes. Then Earl went over to the dude who
was laying on the ground dead. EarT took the
dude’s shoes off. Earl had already covered
the man up. Earl got the knife from me and
went back to the man. I think Earl was
cutting the man. We tried to straighten the
grass up so it wouldn't look like a car had
been there. We started driving up to a church
and Ear! said the rod was missing out of the
pistol. We parked the car and started looking
for it but couldn't find it. Earl said it must
have fallen out of the pistol when he shot the
dude. We drove the car back to Belinda’s
house and went inside and got some rags to
clean the blood out of the car. Joseph, a
boyfriend of Belinda’s, helped Earl and I
clean the blood out of the car. The next day
Belinda gave me some pills. I took four of
the pills and got high. I told Belinda that
Earl and I had killed the Mexicans and that
we had their car. Earl was in the bedroom
laying across the bed. My girlfriend and I
went to the store and got some beer. When
we got back, Belinda and Earl were in bed
making love. Juanita and 1 sat on the sofa
and drank beer and smoked weed until about
midnight. Then Juanita went home and I
went to sleep. I drove the car everyday and I
took Earl. to work in the car. We kept the car
until the police came and got it.

4. Testimony indicated that “jacked” means
robbed, :

“owe were improperly scoiiimpel in: light of. Adams

Texas, 448 U.S. 88 100: $.Ct. 2521, 65

L.Ed.2d° 581° (1980). Evans v. State,.614
S.W.2d 414 (Tex.Crim:App.1980). (en banc).
The jury ‘again convicted Evans and, after
a hearing at which the state andthe de-
fense presented witnesses, sentenced him
to death. The conviction was affirmed on
direct appeal. Evans v. State, 656 S.W.2d
65 (Tex.Crim.App.1983) (en. banc), cert. de-
nied, 465 U.S. 1109, 104 S.Ct. 1616, 80
L.Ed.2d 145 (1984).

Evans filed a petition for writ of habeas
corpus in the state convicting court, which
was denied in August 1984. He filed a
second petition in state court immediately
thereafter, which also was denied. ©

The instant federal petition; prepared
with the assistance of counsel who repre-
sented Evans at trial, was filed on October
10, 1984. The magistrate in a written opin-
ion recommended that the petition be dis-
missed without a- hearing. The district
judge adopted that recommendation, but
granted Evans a certificate of probable
cause to appeal.

Il.

Evans raises numerous grounds for re-
lief in his petition, which may be divided
into six general categories: (A) Miranda
violations in connection with the statement
that allowed police to recover the keys to
Guerrero’s car; (B) flaws in the grand jury
and petit jury selection process; (C) various
evidentiary rulings at the guilt/innocence
and punishment phases of the trial; (D)
insufficiency of the evidence to support the
death. sentence; (E) disproportionality of
the death sentence to the offense; and (F)
a wholesale attack on ‘the Texas death pen-
alty statute.

A: Mivendn Claims:.
[1] Evans was arrested at 4:30 p.m. on
July 11, taken to police headquarters, then

5, Evans pH not challenge admission of the two
subsequent written statements in which he actu-
ally confessed to the killings,.supra notes 2-3.
If he had, our analysis would be controlled by
Oregon v. Elstad, —- U.S. ——, 105 S.Ct. 1285,

to jail. At; about.7:30.p.m., jiialbag! having

: been removed from the jail, andapparently -

in response to police questioning, he: told
police. where he -had: thrown: the keys to
Guerrero’s: car. Although within — this
three-hour period Evans. was..twiee given
Miranda warnings, before going to jail, he
was not so warned upon being picked. up
from the jail. The trial court admitted
evidence of this oral statement over Evans’
objection. Evans appears to contend that
when police . re-initiated interrogation at
about 8:00 p.m., they should: again have
warned him of his rights, although they
had twice done so in the preceeding. three
hours, and Evans had not indicated a lack
of willingness to talk and had not. request-
ed an attorney.5

As the Supreme Court a stated. re-

peatedly, “custodial interrogations, by their

very nature, generate ‘compelling pres-

sures which work to undermine the individ- —

ual’s will to. resist and to compel him to
speak where he would not otherwise do so
freely.’”” Moran v. Burbine, —- US.
——, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410
(1986). (quoting Miranda v. Arizona, 384
U.S... 436, 467, 86 §.Ct.. 1602, 1624, 16
L.Ed.2d 694 (1966)). The Supreme Court
recently summarized the rationale of Mi-
randa, as well as its limits:
To combat this inherent compulsion, and
thereby protect the Fifth Amendment
privilege against self incrimination, Mi-
randa imposed on the police: an. obli-
gation to follow certain procedures in
their dealing with the accused.’ In partic-
ular, prior to the initiation of question-
ing, they: must fully apprise the suspect
of the state’s intention to use his state-
ments. to secure a conviction, and must
inform him of his rights to remain silent
and to “have counsel present’... if[he]
so desires.” Jd. at 468-470, 86 S.Ct. at
1624-1626. Beyond this duty to inform,
Miranda requires that the police respect

the accused’s decision to exercise the .

1298, 84 L.Ed.2d 222 (1985) (“a suspect who has
once responded to unwarned” yet. uncoerced
questioning is not thereby disabled from waiv-
ing his rights and confessing after he has been
given the requisite Miranda warnings”).

‘ EVANS v. McCOTTER

1235

Cite as 790 F.2d 1232 (5th Cir. 1986)

show them where the keys to Guerrero’s
car had been thrown, in shrubs near a
school.! Police searched the area, but did
not find the keys. Police then took Evans
to the justice of the peace, who, for a third
time in less than six hours, administered
Miranda warnings. Evans was brought
back to the police station at 10:15 p.m.,
where police asked if he remembered the
warnings. After a little over one hour of
further questioning, Evans made a written
statement admitting having robbed Guerre-
ro and Garza, but assigning primary re-
sponsibility for the slayings to Smith.”

The next day, July 12, police again
searched for the car keys where Evans said
he had thrown them. Although they were
unsuccessful, a member of a maintenance
crew trimming the shrubs found a set of
keys, and turned them over to police. The
keys fit Guerrero’s car. Later on July 12,
police resumed questioning Evans, after
again giving him Miranda warnings. Ev-

1. Evans contended before the state court that
police coerced him into making this statement,
and he testified at a pre-trial suppression hear-
ing that he would not have made the statement,
except for coercion and threats by the police,
such as officers’ pulling Evans’ hair and _slap-
ping him in the head. The trial court, after
hearing testimony to the contrary from police,
found that police did not coerce Evans and that
his statement, was voluntary. While the latter
conclusion is a question of law subject to inde-
pendent federal determination, Miller v. Fenton,
— U.S. —, 106 S.Ct. 445, 450, 88 L.Ed.2d 405
(1985), the “subsidiary factual question” of
“whether in fact the police engaged in the intim-
idation tactics alleged by the defendant” is enti-
tled to a presumption of correctness. /d. at 451
(citing LaVallee v. Delle Rose, 410 U.S. 690,

693-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637’

(1973)). For the purposes of this proceeding, in
light of the record evidence at the suppression
hearing, we must presume to be correct the
state court's finding that “there was no coercion
or mistreatment or any physical force used
against the defendant to cause him to make said
statements.” Ruling of Trial Court on Defend-
ant’s Motion to Suppress, State Trial Record v.
VHT, at 686 (Oct. 1, 1981).

2. The July 11, 1977 statement said in its entire-
ty:

On 6/26/77, Earl Smith Picked’ me up on

N. Bennett. I was at school shooting a bas-
ketball. Earl said “Mickey I've got a hustle

for us.” There was a man and a woman in

the back seat. Earl was holding a pistol on
them. I got in the front seat and drove where

ans admitted to having participated in the
robbery and murder of an individual named
David Lee Potts about two weeks before
the killing of Guerrero, but’ stated that
Smith had actually killed Potts.”

On July 14, 1977, three days after his
arrest, police removed Evans from the jail
and transferred him to the police station.
While driving to the station, one officer
told Evans his July 11 statement was not
believable. Evans responded that officers
should “give him some time and he would
think about it.” Later that day, while at
the jail, Evans initiated a conversation with
police, and said that he wanted to make
another statement. Police twice more pro-
vided Miranda warnings, after which Ev-
ans confessed to having killed Potts in a
robbery on June 15, 1977. After another
Miranda warning—the seventh within
three days—Evans. confessed in a written
statement to having killed Guerrero.? At

Ear] told me to. I parked by a little Church
on the corner. Earl told them to get out. He
took them a short distance and shot them. I
heard about five shots. Earl got back in the
car and gave me two $10 bills. I drove off.
We went to Belinda Key’s apt on Bennett
Street. Earl told me not to say anything or he
would have something done to me. I drove
the car around until the brakes went out.
One day about a week ago I was driving the
car with Earl and my girl friend Juanita.
Earl had a friend with him. He noticed
somebody following us. He told me to let
him get out. They got out but the Mexican
kept following me. I drove S. on the highway
to Houston and lost him in South Dallas.
Then I drove back to N. Dallas and let Juanita
out at her house.

While I was driving where Earl told me to I
knew he was going to rob them.

3. The July 14 statement regarding the Guerrero
slaying read in its entirety:

On June 26, 1977 at about 6:00 p.m., I was
at Belinda’s house at 1612 N. Bennett St. Earl
Smith came over and wanted me to go with
him to get some money. I told him I would
go and I got my pistol out of the dresser
drawer. I checked the pistol and it was load-
ed with six .22 bullets. I've had this pistol
about two months. I stole the’ pistol out of

’ the Cole Apartments where I saw a couple of
people moving. I waited for them to drive off
with a load of furniture, then I went inside
the apartment and got the pistol off of a shelf

* in a bedroom. I also took some champagne

> rights outlined in the warnings. “If the
individual indicates in’ any manner, at
“any time prior to or during questioning,

- that he wishes:to remain silent, [or if he]
states’ that he wants an attorney, the
interrogation must cease.”

Burbine, 106 S.Ct. at 1140-41.

“ "The question we face is whether Evans

validly waived the rights conveyed by Mi-

randa warnings when the interrogation

was reinitiated by police without a repeated
warning. The Court in Burbine reviewed
the standard to determine whether a waiv-
er of fifth amendment rights was valid:
Echoing the standard first. articulated

in Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1028, 82 L.Ed. 1461 (1938),
Miranda holds that “{t]he defendants
may waive effectuation” of the rights
conveyed in the warnings “provided the
waiver is made voluntarily, knowingly
and intelligently.” 384 US., at 444, 475,
86 S.Ct., at 1612, 1628. The inquiry has
two distinct dimensions. Edwards v. Ar-
izona, supra, 451 U.S., at [477] 482, 101
S.Ct. at [1880] 1888; Brewer v. Wil-
liams, 480 U.S. 387, 404, 97 S.Ct. 1232,
1242, 51 L.Ed.2d 424 (1977). First, the
relinquishment of the right must- have
been: voluntary in the sense that-it was
the product of a free and deliberate
choice rather than intimidation, coercion
or deception. Second, the waiver must
have been made with a full awareness
both of the nature of the right being

6. Evans argues further that admission of the
oral statement violated Tex.Code Crim.P.Ann.
art. 38.22, § 3(a) (Vernon 1979), which states in
part that such a statement is admissible “for the
purpose of impeachment only,” and only if the
statement is recorded. The Texas Court of
Criminal Appeals rejected this claim, ‘holding
that currerit art. 38.22, § 3 was not in force at

. the time of Evans’ statement.in. 1977, and. that
its predecessor, which did not require recording

~ of oral statements, apparently was not offended.
656 S.W.2d at 66. Regardless of whether the
statement was admitted as a mattér of
the Texas law. of. evidence; the alleged error
must violate the federal constitution or federal
laws in order for the writ to be granted. 28

U.S.C. § 2254(a);,. Townsend y. Sain, 372 US. ~

293, 312, 83 S.Ct. 745, 736, 9 L.Ed.2d 770 (1963);
Johnson v. Blackburn, 778 F.2d. 1044, 1050 (Sth
Cir.1985),. “As a general rule,. admissibility of

14238. 790 FEDERAL REPORTER, 2d SERIES

abandoned and the consequences of the
decision to abandon it. Only if the “to-
tality, of the circumstances surrounding
the. interrogation”. reveal both an un-
coerced choice and the requisite level of
comprehension may a court properly con-
_ elude that the Miranda rights have been
waived, .. aes |
106 S.Ct, at 1141. eee TOE
The issue raised by Evans appears to
concern the second aspect of the test:set
forth in Burbine, namely the “awareness
of the right being abandoned and the. con-
sequences of the decision to abandon it.”
It is incomprehensible how, under the facts

‘of this case, Evans admittedly was aware

of his rights, voluntarily and expressly
waived them, and conversed with police
from. about 4:30 to 6:30 p.m:-on July 11,
then forgot his rights at about 7:30 or 8:00
p.m: when. police re-initiated questioning.
Upon an independent federal examination
of voluntariness, Miller v. Fenton; —— US.
—, 106 S.Ct. 445; 450, 88 L.Ed.2d 405

(1986), Evans’ statement to police concern: -
ing the location of the keys to Guerrero’s ~

car was, under the “totality of the circum-
stances,” an uncoerced choice made with
the requisite level of comprehension, made
following an express oral waiver of the
rights protected by Miranda warnings.
See Burbine, 106 S.Ct. at 1141.° ~

B. Jury Issues. . 7
[2] Evans’ second group of arguments
concerns the composition of the grand jury

evidence is a matter of state law, and only a
contention that the [improper] admission of the
evidence rendered the trial fundamentally un-
fair or violated a specific constitutional right
will be considered in a federal collateral ero
ceeding.” Jd> (citing Meyer v. Estelle, 621 F.2d
769, 771 (5th Cir.1980)). As noted above, the
admission of Evans’ oral statement did not vio-
late a specific federal constitutional right. As to
whether the admission of the testimony was
improper as a matter of ‘state law; the Texas
Court of Criminal Appeals ruled that it was not,
and “{wje will take the word of the highest
court on criminal matters of Texas as to the

interpretation of its law, and we do not sit to —

review that. state’s interpretation of its own

law.” Seaton v. Procunier, 750 F.2d. 366, 368

(Sth Cir.), cert. denied, — US. ——~ 106 S.Ct.
~ 140, 88 L.Ed.2d 90 (1985). 2

Lose
Pe

1240 790 FEDERAL REPORTER, 2d SERIES

claim, however, there would be little ques-

tion that the five prospective jurors who

were excused for cause were properly ex-
cluded: First, it should be noted that the
determination by the trial judge that a po-
tential juror’s views might substantially im-
pair his performance as a juror is a finding
of fact entitled to a presumption of correct-
ness. -28 U.S.C..§. 2254(d); Wainwright v.
Witt, —— USs——, 105 S.Ct. 844, 853-55,
83 L.Ed.2d 841 (1985). See also Wicker v.
McCotter, 788. F.2d 487, 493 (5th Cir.1986)
(Witt test is “to be applied primarily by the
trial court, for determinations of juror bias
depend. in great degree on the trial judge’s
assessment of the potential juror’s demean-
or and credibility, and on his impressions
about that venireman’s state of mind’).
Second, each of the five stated that they
would automatically answer “no” to one of
the three questions in Tex.Code Crim.P.
Ann. art. 37.071(b) that all must be answer-
ed affirmatively in order to sentence Evans
to death. Under these circumstances,
there is substantial record evidence to sup-
port the conclusion that the “juror’s views
would ‘prevent or substantially: impair. the
performance of his duties as a juror in
accordance with his instructions and his
oath.” Witt, 105 S.Ct. at 852 (quoting
Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct.
2521, 2526, 65 L.Ed.2d 581 (1980).

C. Evidentiary Rulings.
1. Impeachment of Evans’ Witness.

Evans called his confederate, Earl Stan-
ley Smith, as a witness during the de-

Lucas, 677 F.2d 1086, 1109 (Sth Cir.1982), cert.
denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d
815 (1983). See Catz, supra, 18 U. Cal.-Davis
L.Rev. at 1207 n. 175.

8, Tex.Code Crim.P-Ann. art. 37.071(b) states:

(b). On conclusion of the presentation of the
evidence, the court shall submit the following
issues to the jury:

(1) whether the conduct of the defendant
that caused the death of the deceased was
committed deliberately and with the reason-
able expectation that the death of the de-
ceased or another would result;

(2): whether there is a probability that the
defendant would commit criminal acts of vio-
lence that would constitute. a continuing
threat to society; and

fense’s case-in-chief at the guilt/innocence
phase of the trial, against the sound advice
of his counsel. The trial judge warned
Evans at length that Smith “may give testi-
mony injurious to the defendant’s case.”
On cross-examination, Smith testified that
Evans shot both Guerrero and Garza and
cut Guerrero’s throat, and that Evans had
tried to convince him to testify falsely.
Defense counsel attempted to impeach
Smith through evidence that he had al-
ready pled guilty to the Guerrero, Garza
and Potts murders and received.a life sen-
tence, and through. evidence of eight prior
unrelated convictions of Smith. Evans did
not allege that. Smith’s plea bargain gave
him a motive to falsify his testimony. The
trial court had already: granted the State’s
motion in limine to prevent such impeach-
ment, finding that under Tex.Code Crim.P.
Ann. art. 38.28, a party may not impeach
his own witness “merely by offering evi-
dence of the witness’ bad character.”

[5] Again, we do not review this eviden-
tiary ruling as if we were a state appeals
court. Only if the refusal to allow the
impeachment, if incorrect, rendered the tri-
al “fundamentally unfair” or violated a
specific constitutional right would federal
collateral relief be appropriate. Johnson,
778 F.2d at 1050. In order for a trial to be
rendered fundamentally unfair due to an
evidentiary error, the evidence admitted

must be “crucial” or “devastating.” Id. -:

(3) if raised by the evidence, whether the
conduct of the defendant in killing the de-
ceased was unreasonable in response to the
provocation, if any, by the deceased.

Prospective Juror No. 23 stated “I would have to
vote ‘no’ on one of them.” Prospective Juror
No. 7 said one answer “would have to be ‘no’”
because “I don't believe in death.” Prospective
Juror No. 74 answered “yes, sir” in response to
defense counsel's question that “one of those
questions you would answer ‘no’ automatical-
ly?” Prospective Juror No. 75, stated that “I am
firm” that he would automatically answer one
question “no” because. “I just couldn't do it my-
self.” Finally, Prospective Juror No. 81 stated
that he was “firm” that he would “answer ‘no’”
to at least one question because “J. don’t really
feel that.the State has the right to take a life.”

“he: gives no reasons” to explain its rele-
vance. Absent some indication of the rele-

vance of the evidence, Evans’ conclusory,
one-sentence allegation that “the Court
should take into consideration that the Ap-

pellant [has] already been Sentenced to

Life Imprisonment” must fail.!®

Further, Evans. contends, without cita-
tion to authority, that he should have been
allowed to introduce evidence at the punish-
ment. phase that Smith received a life sen-
tence for his role-in the killings. That
evidence, however, has no bearing on Ev-
ans’ culpability or likelihood of future dan-
gerousness. As the Texas Court of Crimi-
nal Appeals stated, “[elach. defendant
should be judged by his own conduct and
participation and by his own circumstanc-
es.” Evans, 656 S.W.2d at. 66-67.

D. Sufficiency of the Evidence. ~
[10] Evans further challenges the suffi-
ciency of the evidence to support a death

sentence: in light of “numerous circum-
stances,” the death penalty is inappropri-

10. . It is crucial to note that the proffered evi-
dence concerned only the fact that Evans re-
ceived a life sentence for the murder of Potts.
See Transcript of State Trial, vol. X, at 1259-61.
He was not barred from introducing evidence
that he had been peaceful and well-adjusted
while in prison awaiting trial for either Potts’ or
Guerrero’s killings. In fact, he introduced evi-
dence of his conversion to Christianity while in
prison. See infra at D. Sufficiency of the Evi-
dence. Accordingly, the exclusion of evidence
of Evans’ life sentence for Potts’ slaying was not
improper in light of the Supreme Court's recent
decision in Skipper v. South Carolina, 39 Crim.
L.Rep. (BNA) 3041 (U.S. Apr. 29, 1986). In
Skipper, the Court determined that the defend-
ant should have been allowed to introduce evi-
dence~that, while he was in prison awaiting
trial,. he “had been: a well-behaved and well-ad-
justed prisoner,” because of the possible “favor-
able inferences from this testimony regarding

'petitioner’s-character and his: probable future
“conduct if sentenced to life in prison.” Jd. at

defendant would not pose a danger if spared
(but incarcerated) must be considered potential-
ly mitigating.” Id. The critical difference be-
tween the ruling of the trial court in Skipper
and the ruling of the trial court ih this’ case is
that the prisoner in Skipper was prevented from
‘introducing evidence on his peacefulness in
prison (in the form of the testimony of two
jailers and one “ ‘regular visitor’ to the jail to the

1242 790 FEDERAL REPORTER, 2d SERIES

ate; such as “extenuating circumstances”
that led to the crime, and his “remorse.”
Evans did not attempt to introduce to the
jury evidence on many of these points; but
he was not foreclosed by the- trial judge
from so doing. In fact, he did introduce
evidence of his conversion to Christianity.
Moreover, Evans’ counsel argued to the
jury that there was no evidence that Evans
had committed any criminal acts while in
prison, therefore he was not a continuing
threat to society. The state, on the other
hand, introduced evidence of aggravating
circumstances, namely Evans’ killing of
Potts less than two weeks before Guerre-
ro’s slaying, the heinous nature of the kill-
ings, an extensive violent criminal record,
and Evans’ apparent, lack of remorse after
the killings... That evidence was sufficient
to support the jury’s findings that Evans
acted deliberately, that he would be a con-
tinuing-threat to society, and that the kill-
ing was not reasonable in light of provoca-
tion, if any, under the standard set forth in
Jackson v. Virginia, 443 U.S. 307, 324, 99

effect that petitioner had ‘made a good adjust-
ment’ during his time spent in jail,” id.),-and
Evans was not. The evidence concerning Ev-
ans’ sentence for Potts’ murder simply did not
go to that, or any other, relevant issue. Skipper
is of no help to Evans.

The prosecution presented no direct evidence
concerning Evans’ adjustment to prison life.
Evans’ counsel argued’ to the jury that the lack
of evidence that Evans had committed violent
acts while incarcerated precluded a finding of a
probability of future dangerousness:

Now, whatever they are doing to him, I sub-

mit, says that is effective. It is accomplishing

its purpose. It is stopping him from being—
well, one, from committing criminal acts of
violence or any criminal acts, whether its
capital murder, as you found, or possession of

Valiums. And that he no longer is a continu-

ing threat to society.

The jury, however, had sufficient evidence to
conclude otherwise, as noted infra under D.
Sufficiency of the Evidence.

Further, the prosecution did not argue to the
jury that Evans “could not be trusted to behave
if he were simply returned to prison,” as had the
prosecution in Skipper. Id. n. 1. Accordingly,
the due process requirement of Gardner v. Flor-

ida, 430 U.S.-349, 362, 97 S.Ct. 1197, 1206, 5T

L-Ed.2d 393 (1977) (defendant may not ’be sen-
tenced to death “on the basis of information
which he had no opportunity to deny or ex-
plain”), was not violated by the trial court.

sia iatik Gee First, as to-the grand jury,
- Evans contends that. “the jury selection

system operated to exclude from service as
grand jurors an identifiable class of citi-
zens of eligible jurors in the community,
Negroes, Mexican-Americans, and Figh-
teen-to-Twenty One Year Olds,” assertedly
in violation of the due process and equal
protection clauses. The state trial court
held a hearing on this issue at which testi-
mony concerning the grand jury selection
process in general and in Evans’ case in
particular was taken. One of the five
grand jury commissioners who selected the
term grand jury which ultimately indicted
Evans was black. Of the twelve members
of the July 1977 term grand jury, two were
black. Accordingly, 20% of the commis-
sioners and 16% of the grand jury members
were members of Evans’ race. Review of
the facts adduced must be considered. in
light of the principles set. forth in Castane-
da v. Partida, 430 U.S. 482, 97 S.Ct. 1272,
51 L.Ed.2d 498 (1977), and Enriquez. v.
Procunier, 752 F.2d 111 (5th Cir.1984),
cert. denied, —- U.S. ——, 105.S.Ct. 2658,
86 L.Ed.2d 274 (1985):

In order to secure federal habeas relief

on this ground [petitioner] must: (1) es-

tablish that the group against whom dis-
crimination is asserted is a recognizable,
distinct class, singled out for different
treatment; (2).prove that the group has
been underrepresented over a significant
period of time; and (3) support the pre-
sumption thus created by showing that
the selection procedure is susceptible of
abuse or is not racially neutral.

Id. at 115.

At no point in the state proceedings did
Evans introduce evidence tending to show
that the representation of minorities on his
or any other grand jury was a “significant
underrepresentation,” Castaneda v. Parti-
da, 430 U.S. at 494,.97 S.Ct. at 1280, in
light: of the actual racial composition of
Dallas County. Evans did not prove, “by

7. In Catz, Federal Habeas Corpus and the Death
Penalty: Need for a Preclusion Doctrine Excep-
tion, 18 U. Cal.-Davis *L.Rev. 1177 (1985), the
author contends that the Sykes’preclusion doc-
trine should be inapplicable in death penalty

comparing the proportion of the group in
the total population to the proportion called
to serve as grand jurors,” id., that minori-
ties are in fact underrepresented, therefore
he did: not: prove’a prima facie case of
unconstitutional exclusion of blacks or. His-
panics. Even assuming that~a claim -of
“systematie exclusion” of individuals’ be-
tween 18 and 21 years old may state a
claim cognizable under Partida, which
would require us to accept the proposition
that such a class is a “recognizable, distinct
class; singled out-for different treatment
under the laws, as written or applied,” 430
US. at 494, 97 S.Ct. at 1280; the claim fails
for the same reasons. There is no record
evidence of the degree of underrepresenta-
tion of the “class.”. Accordingly, the chal-
lenge to the makeup of the grand jury
commissioners and the July 1977 term
grand jury must fail. See also Guice v.

Fortenberry, 661 F.2d 496, 499-500 (5th —

Cir.1981) (en. banc).

[3,4]: Second, Evans contends: that: the
composition of the jury: that convicted him
was flawed, in that the trial court wrong-
fully excluded five veniremen for cause, in
violation of the principles set forth in With-
erspoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968). The state
contends that review of the claim is barred
by the procedural default doctrine of
Wainwright v. Sykes, 433 U.S. 72, 97-S.Ct.
2497, 53 L.Ed.2d 594 (1977)... Trial counsel
did not object to the exclusions, and the
Texas Court of Criminal Appeals expressly
refused review of the claims for failure to
make a contemporaneous objection. Evans
v. State, 656 S.W.2d at 67. The federal
district court declined to review the claim
in light of Sykes. Nevertheless, Evans
makes no attempt to fit the claim into an
exception to Sykes, see generally Johnson,
778 F.2d at 1047. Accordingly, we must
conclude that we are barred from review-
ing the merits of the Witherspoon claim.’
Even if Sykes did not bar review of the

cases. Jd. at. 1196-1210. However, as the au-
thor notes; that proposal has not. been adopted
in this circuit. O'Bryan v. Estelle, .714 F.2d 365,
383 (5th Cir.1983), cert. denied, 465 U.S. 1013,
104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Gray v.

—

EVANS v.-McCOTTER 1241
Cite as 790 F.2d 1232 (Sth Cir. 1986)

‘We simply. cannot onclude that. Smith’s
testimony was “crucial” or “devastating.”
Evans’ graphic written statements to. po-
lice, his ora] statements. to witnesses who
testified against him at trial,.as well as
substantial physical~-evidence, identified
him as the killer of Guerrero. Indeed, the
Prosecution did not call Smith in its case-in-
chief. _Smith’s testimony. was essentially
cumulative; thus it was not “crucial.” Jd.

at 1051. As the district court concluded, in
“the context of the issue of guilt. or inno-

must be permitted into any incentive the
witness may have to falsify his testimony.
Davis v,. Alaska, 415 U.S. 308, 317, 94 S.Ct.
1105, 1111, 39 L.Ed.2d 347 (1974).2 How-
ever, Evans did not contend at trial and
does not contend now that Smith’s testimo-
ny was falsified as a result of his plea
arrangement. Rather, he contends simply
that the evidence would show Smith’s bad
character. The confrontation clause does
not require the admission of “all character
evidence of whatever relevance and proba-
tive value.” Cloud v. Thomas, 627 F.2d
742, 744 (5th Cir.1980), cert. denied, 450
U.S. 1041, 101 S.ct. 1760, 68: L.Ed.2d 239
(1981). Aside from the limited inference
that a convicted felon has a propensity to
lie, the evidence Evans sought to offer had
no relevance to the issue of Smith’s truth-
fulness. The refusal to admit evidence of
such limited Value did not violate the con-

ment offended the confrontation clause, in

' light of the relative unimportance. of

Smith’s testimony to the Prosecutor’s case,
its cumulative nature,. the weighty evidence
corroborating: Smith’s- testimony, and the

not depend upon whether the witness was put
on the stand by the accused or the prosecution.”

able doubt. Delaware v. Van Arsdall, —
US. —, 106 S.Ct, 1431, 1438, 89 L.Ed.2d
674 (1986). + eda

2. Evidence of Mitigating Circum-
'. stances.

[8] Evans next challenges the refusal
of the trial court to allow him to present
“mitigating evidence” ‘at the punishment
phase. The scope of evidence of mitigating
factors that may be Presented ata presen-
tence hearing is wide, because “St is desir-
able to have as much information before
[the jury] as possible when it’ makes the
Sentencing decision.” ‘Gregg v. Georgia,
428 U.S. 153, 203-04, 96 S.Ct: 2909, 2939-
40, 49 L.Ed.2d 859 (1976) (plurality opinion),
quoted with approval in Zant v, Stephens,
462 U.S. 862, 886-87, 108 S.Ct. 2733, 2747-
48, 77 L.Ed.2d 235 (1983). The jury “must
be allowed to consider on the basis of all

428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49
L.Ed.2d 929 (1976) (joint opinion). Insofar
as the likelihood or unlikelihood of a de-
fendant’s committing future crimes is a
constitutionally acceptable factor to be con-
Sidered before imposing the death penalty,
which it is, O'Bryan, 714 F.2d at 386, the
jury should be Presented with “all of the
relevant information” on the issue, Bare-
Soot v,. Estelle, 463 U.S. 880, 897, 108 S.Ct.
3383, 3396, 77 L.Ed.2d 1090 (1983).

[9] . Evans attempted to introduce evi-
dence that he had earlier pled guilty to the
killing of Potts, and received a life sen-
tence. The relevance of that evidence ‘is
not immediately apparent. There is no ex-
planation, in either the petition or Evans’
brief on appeal, of the relevance of that

_ evidence to the Sentencing decision. | In-

deed, the Court of Criminal Appeals reject-
; on that the evidence

United States vy, Morgan, 757 F.2d 1074, 1077
(10th Cir,1985) (citing Chambers v. Mississippi,
410 U.S, 284, 298 93 S.Ct. 1038, 1047, 35
L.Ed.2d 297 (1973)). ;

mstansiitionenen : PR RRR RGR me wir

1244
_ of habeas corpus if AFFIRMED. The stay
__ of execution previously entered in this case
is VACATED: FI 3

Doris GILMORE, et al.,
Plaintiffs-Appellants,
: v.
WATERMAN STEAMSHIP
CORPORATION, et al.,

Defendants-Appellees.
No. 85-3207.

United States Court of Appeals,
Fifth Circuit.

June 4, 1986.

Stevedore’s widow and stepchildren —

brought action against vessel owner, Soviet
seller of hardboard, Soviet freight forward-
ing agent, and hardboard purchaser, after
stevedore was killed by falling bundle of
hardboard. : The United States District
Court for the District of Louisiana, Robert
F. Collins, J., found that the accident was
caused by the joint negligence of the Soviet
stevedore which was not sued, and the
deceased stevedore’s employer, which en-
joyed immunity from tort liability. Widow
appealed. The Court of Appeals, W. Eu-
gene Davis,.J., held that: (1) record sup-
ported District Court’s: finding that acci-
dent was caused by joint negligence of
Soviet stevedore and deceased stevedore’s
employer, and that crating as designed and
manufactured was reasonably adequate
and safe, and (2) by combining admiralty
action against foreign entities with diversi-
ty jurisdiction suit against American com-
pany, plaintiffs waived their right to jury
trial on diversity action.
Affirmed.

790 FEDERAL REPORTER, 2d SERIES

‘1. Evidence €571(3)

District court did not abuse its discre-
tion in rejecting expert’s testimony which
Supported stevedore’s widow’s contention
that crating of masonite hardwood was not
reasonably adequate and safe, where at
least two other witnesses disagreed with

2. Federal Courts 868 ss

District. judge who heard. witnesses
was.in much better position than Court. of
Appeals to resolve conflicting testimony as
to whether load of masonite hardwood
struck coaming before it fell, in stevedore’s
widow’s negligence action against steve-
dore’s employer after stevedore was.killed
when rope swing slipped off bundle of ma:
sonite hardboard, and hardboard fell back
into hold.

3. Products Liability 83 _ =
Record supported district court’s find-
ing that accident, in which stevedore was

killed by falling bundle of hardboard, was ~~

caused by joint negligence of Soviet steve-
dore, which was not sued; and stevedore’s
employer, which. enjoyed immunity from
tort liability, and that crating as designed
and. manufactured was reasonably ade-
quate and safe. Fed.Rules Civ.Proc.Rule
52(a), 28 U.S.C.A.

4. Admiralty 80

By combining admiralty action against
Soviet seller of hardboard and Soviet
freight forwarding agent with diversity ac-
tion against American company, steve-
dore’s widow waived right to jury trial on
diversity action. Fed.Rules Civ.Proc.Rule
9(h), 28 U.S.C.A.

Dean A. Sutherland, Preston G. Suther-
land, New Orleans, La., for plaintiffs-appel-
lants.

Robert T. Lemon, II, New Orleans, La.,
for Allied Intern. |

Wood Brown, III, New Orleans, La., for
Masonite Corp.

George M. Strickler, Wolf, Popper, Ross,
New Orleans, La., Michael P. Fuchs, Martin

eo ss

’° EVANS vo McCOTTER 1243
Cite as 790 F.2d 1232 (5th Cir. 1986)

S.Ct. 2781, 2791, 61 L.Ed.2d-560.(1979), and
O'Bryan; 714. F.2d-at 386:-

E. Proportionality..

[11] Evans next asks this.court to con-
duct.a proportionality review, arguing that
“death. isa disproportionately severe and
therefore excessive punishment in appel-
lant’s case in view of the cireumstances of
the offense.” Evans does not have a feder-
al constitutional right to any. type of pro-

~ portionality review, so long as the state’s

capital punishment scheme protects against
arbitrary and capricious imposition of the
death penalty. Mattheson v. King, 751
F.2d 1432, 1446 (5th Cir.1985), cert. dts-
missed, —- U.S. ——, 106 S.Ct. 1798, —
L.Ed.2d —— (1986). The Supreme Court in
Jurek specifically upheld the Texas: system
against an eighth amendment challenge,
because Texas narrowed its definition. of
capital murder, required proof of at least
one statutory aggravating circumstance,
and allowed the defense to introduce evi-
dence of mitigating circumstances. .

F. Facial Validity of Statute.

[12] As general attacks on the Texas
death penalty statute, Evans contends that
the statute impermissibly bars introduction
of evidence of mitigating factors, such as
mental distrubances, a “history of depriva-
tion and misfortune,” and the possibility
that Evans “will not commit future acts of
criminal violence.” This argument. is
squarely foreclosed by Jurek.v. Texas, 428
U.S. 262, 273, 96 S.Ct. 2950, 2957, 49
L.Ed.2d 929 (1976) (joint opinion) (under
Texas death penalty statute “the jury may
be asked to consider whatever evidence of
mitigating circumstances the defense can
bring before it”); id. at 279, 96 S.Ct. at
2959 (White, J., concurring: in the judg-
ment),.and our recent decision in Esquivel
v. McCotter, 777 F.2d 956, 957 (5th Cir.
1985) (Texas statute provides jurors with
sufficient guidance in considering evidence
of mitigating factors). Cf Pulley v. Har-

11. Evans contended in the petition that death by
injection of a substance unapproved for such
use by the federal government violated federal
food and drug laws. But see Heckler v. Chaney,

ris, 465'U.S..37, 48, 104 S.Ct:.871, 878, 79
L.Ed.2d 29 (1984) (Texas statute authorizes,
defense “to bring before the jury at the
separate sentencing hearing whatever miti-
gating circumstances relating to the indi-
vidual defendant can be addneed,” quoting
Jurek ).

[13] Evans also states that the Texas
death penalty statute, even if facially con-
stitutional, has been applied unconstitution-
ally in the past, because death sentences
have been more frequently’ imposed on
blacks who kill whites. Further, he con-
tends that the penalty is applied more fre-
quently to ethnic minorities. These. conclu-
sory assertions, without an ‘allegation that
the state engaged in intentional discrimina-
tion against Evans in particular, provide no
pasis for collateral.relief. Prejean v. Mag-
gio, 765 F.2d 482, 484 (5th Cir. 1985); Moore
v. Maggio, 740 F.2d 308, 321-22 (5th Cir.
1984), cert. denied, US. , 105 S.Ct.
3514, 87 L.Ed.2d. 643 (1985); see also -
McCleskey v. Kemp, 753 F.2d 877, 890
(11th Cir.1985) (en banc).

{14} Finally, Evans contends that the
death penalty is ‘unjustified as a means
for achieving any legitimate governmental
end.” To the extent that this states a
constitutional claim, it is settled that. the
death penalty may, as a general rule, be
imposed on individuals for capital murder
who themselves killed, attempted to kill, or
intended that a killing take place. Cabana
v. Bullock, —- U.S. ——, 106 S.Ct. 689,
697, 88 L.Ed.2d 704 (1986); Enmund v.
Florida, 458 U.S. 782, 797, 102 S.Ct. 3368,
3376, 73 L.Ed.2d 1140 (1982). Evans’ claim
to the contrary is without.merit. Pulley v.
Harris, 465 U.S. at 48, 104 S.Ct. at 875
(“death penalty is not in all cases a dispro-
portionate penalty’’)."!

III.

For the foregoing reasons, the district
court’s dismissal of the petition for a writ

— US. —, 105 S.Ct. 1649, 1659, 84 L.Ed.2d
714 (1985). He has not briefed this issue on.
appeal, therefore we consider it waived.

¥ remy: St teense eager
¢

“Texas man,

| executed or
77 murder

\s HUNTSVILLE, Texas (AP) —

Michael Wayne Evans, who fatally shot

* ~and slashed a woman “‘to get her to quit

_ talking” as she asked God to forgive

_ him, was put to death by injection

«today for the murder.

-* “1 want to say I’m sorry for the

_ things T've done and I hope T'm for-.

_ given,” Evans said, tears in his eyes,

_ before the lethal injection. “I don’t hold

“nothing against no one, Everyone has

eae pate bali know it's not,
an or t's all, I'm

\-: Eivans, 30, died at 12-21 Pes a

‘Attorney General Jim Mattox, 74

He had confessed to the 1977 murder.

ji Phd BH

vat
LY’
“i

OR
is
r of Elvira Guerrero, a church pianist »
» . who prayed to God to forgive him and
“accomplice Earl Stanley Smith.
te **T cut the lady from the bottom of
ine -her chin to her hairline above her fore-
head,” Evans confessed. “I was fying |:
Ve to get her to quit talking,”
« ‘The execution, the ninth in Texas this’. A,
veer and the 19th since thé state’ ®
;) |. resumed the death penalty in 1982,
“eame after federal courts refused
- Wednesday to grant a stay. He had two
i - previous stays and two trials."
«Ms. Guerrero, 35, was abducted with
“her fiance, Mario Graza, after leaving
“the Second Mexican Baptist Church in
Oak Cliff. She was robbed of $40. in
ch
wi

urch hha sce ea naeae
th, a carpet knife.
. Garza, who had been baptized at the
. “church beer at yoda t? patty,
| of $12 and fatally shot with a .22-cali-
a ber pistol Evans said he had stolen. The
aoe aee
‘were reported missing.
Re and accomplice Earl Stanley”
* smith, were not tried for Garza’s kill-
ing after theit convictions in the death
is of Ms. Guerrero. Smith, now 32,
_ | Peceived a life sentence.
A “He was one of the sorriest human’
oe beings hing said Kevin Byme, who
’ TE Sewn ans,
f c Calvin Williams, a death row inmate
“who watched Evans being moved out
“| of his cell Wednesday said “he didn't,
e
ee

seem like he was too worried. He had
-kind of a warm smile.” Neste th
' Evans’ appeals were rejected
| Wednesday by a federal district judge »
4 >in Dallas, the 5th U.S. Circuit Court of ©
pa ea aa oat a
+ Supreme Court. -
ine Lt. Gov. William Hobby, acting gov-.-
Ch grb Mark White is out of
of the state, also.rejected a plea for a 30-
i day veprieve.
Rs ’Detcase lawyers ‘contended Evans _
» 2 was © and attempted to show. he »
_ | was unfairly given wa deathi penalty
"7? pecause he was black.’ f
/ eT think he was sane,” said Mattox,”
| who witnessed the execution. “He | J

|) drug possession and robbery, asked for
‘4 no final meal and requested no ee
» sonal witnesses to his execution. .,.,

ALL THE VICTIMS

‘WERE FOUND
IN BATHTUBS!

by BILL J. COX

OMICIDE detectives in

H sprawling Houston, Texas have

seen their share of bad days. A

bad day is any day when a new murder

case comes to their official attention—

especially is it a bad day if the case offers

few clues to work with, to track down the
killer.

Tuesday, March 1, 1983, started as a
bad day when day-shift homicide de-
tectives hadn’t been on duty very long. It
started with a dead woman reported in a
bathtub in her fashionable West Side
apartment shortly after 9 a.m. Just how
bad a day this was to be would be con-
firmed for the homicide men eight hours
later when a second dead woman in a
bathtub came to light in the same West
Side area.

That Tuesday couldn’t have become
much worse. But just two days later the
whole week went to hell for homicide
investigators when Bathtub Victim No. 3
was discovered in her West Side home.
And this time the pretty brunette woman

found nude, beaten and apparently stran- .

gled in the bloodstained water happened

.to be the estranged wife of the former

‘governor of Arkansas.

The first bathtub victim was dis-
covered by a maintenance worker in-
vestigating the sound of long-running
water in a unit of a fashionable apartment
complex in west Houston about 9 a.m.
The door was open and the maintenance
man entered to see about the water. The
sound led him to the bathroom. He was
shocked by the scene that greeted him.
The fully-clothed body of a woman lay in
the bathtub with the water turned on full
blast. The tub hadn’t been plugged, so
the cascading water jet was going down
the drain.

22 True Detective

The employe turned off the water. It
looked to him as if the woman were be-
yond help. He hurriedly notified the man-
ager, who phoned a relative of the woman
who was the ‘apartment tenant.

The dead woman in the tub was Mrs.
Ruth Kottler, 61, the manager of a loan
association branch office. Police, sum-
moned by the victim’s relative, arrived
within a few minutes. The first un-
iformed officers on the scene called for
homicide investigators.

The crime scene investigation was led
by Detectives Larry Ott and Steve
Arrington. They surveyed the apartment
as crime technicians went about their job
of taking pictures, blood samples, dust-
ing for possible fingerprints. The sleuths
decided that the woman must have been
struck down at the front door. There was

- a large pool of blood just inside the en-
trance.

Since Ruth Kottler was fully dressed,
the investigators surmised she probably
was accosted by the killer when she an-
swered a summons to the door. The
woman’s car was parked outside the
apartment, where it always was before
she left for work.

A large amount of blood also was evi-
dent in the bathtub, having flowed from
wounds on her head; undoubtedly, much
blood had washed down the tub drain
with the continuing stream of water. La-
ter, the autopsy would reveal that the
woman had been struck with a blunt ob-

Incredibly, the MOs were the same in every |

ject, but death had been caused by suf-
focation.

The officers theorized she had been
smothered with the killer’s hand; or
something else, held over her face. The
detectives found no object that. might
have been used to strike her, causing the
head wourids.

When relatives checked through the
apartment, they advised the investigators
that a jewelry bag and an undetermined
amount of jewelry were missing.

The detectives went door-to-door in
the apartment complex and other resi-
dences in the neighborhood hoping to
find someone who might have seen
something. :

The shoeleather work produced some
possible leads. From an assortment of
witnesses who had been going to work or
in the area of the victim’s apartment for
other reasons, the detectives came up
with descriptions of three possible sus-
pects. The descriptions were meager, but
the circumstances under which the sus-
pects had been seen left little doubt they
probably knew something about the
slaying—in fact, all three might have
been implicated in the killing.

One witness had noticed a young
black woman, a tire tool in her hand,
standing near Mrs. Kottler’s car. Still
another passerby had observed.a young:
white man peering from behind the cur-
tains of windows in the victim’s apart-
ment. Another witness had noticed a

case. So were the motives. Yet each

woman caught alone in her home had her

own killer—and one of the suspects is
still at large, waiting to strike again

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Copy-Cat Strangler Was A Woman

(continued from page 37)

tives tapped on the door. The girl
answered in a hurry. Helfond lay on
a bed. He was arrested without
incident.

A search of the motel turned up
jewelry that later was identified as once
belonging to the slain woman. Jewelry
confiscated at Helfond’s apartment
was also identified by the woman’s
relatives.

At the homicide division, detectives
began interrogating the man. From the
beginning, he refused to make a
statement. Detective Mosier was able
to poke enough holes in Helfond’s
story that he finally confessed to the
crime. He was read the Miranda
ruling, and a tape recorder was
brought in to record the statement.
Helfond stated that he met the woman
where he lived. ;

‘She was looking for an apartment

to rent when she spotted me standing
on my patio. I agreed to allow her to
look at my apartment. We became
friends,’’ he said. ‘‘Mrs. Faubus asked
me if I wanted to look at furniture she
had for sale. I agreed to follow her
home in'my car. While I was there, a
couple came by who was interested in
buying the furniture. When they left,
I hit her with a vase, and she fell on
the floor where I took off her clothes
and tried to have sex, but I couldn’t
get a full erection,’”’ he said. ‘‘I was
so angry with myself, I began beating
her.’’
- Continuing his statement, he said
that he strangled the woman with his
hands and threw her in the bathtub.
He expressed no remorse, but said that
ever since he was a kid he always had
problems with sex because he never
could receive a full erection. ‘‘When-
ever this happened, I would get very
upset.”’

Detectives interrogated the man

concerning the death of Ruth Kottler, ,

the first woman discovered slain in her
bathtub. Despite numerous interroga-
tions, Helfond denied any involvement
in that slaying. The confession
involving the Faubus killing was then
transcribed and signed by detectives.

Lt. Kertsen told reporters, ‘‘I’ve
never seen anything like this in 15 years
since I’ve been assigned to the
homicide division. The key word was
bathtub; all victims were found at
home in their bathtubs.”’

‘‘Isn’t it a surprise to learn that the
slayings are unrelated?”’ a reporter

asked Kertsen. :

“It sure is,” he replied. ‘‘We’re still
investigating: the murder of Ruth
Kottler, but in this case we suspect a
woman might be involved.”’

Both men appeared before a state
magistrate on the same day where they
were read the formal charges. Both
pleaded innocent. Former State
District Judge Henry Onchen and
former Prosecuting Attorney Mack
Arnold were appointed to represent
Helfond, while Juan Aldape was
appointed for Ellis’ counsel. No bail
was set.

On March 11, 1983, a Harris County
grand jury indicted Edward Anthony
Ellis for capital murder in the death
of Bertie Eakens, while a grand jury
indicted David Helfond for capital
murder stemming from the death of
Elizabeth Faubus. The actual trials
were delayed for several months due
to legal maneuvering and pre-trial
motions filed by defense attorneys.

During Mid-August, 1983, 65
potential jurors were summoned to the
Harris County Courthouse to hear the
case of Edward Ellis. The state was
seeking the death penalty, therefore
each selected juror was questioned
toward their feelings on capital
punishment.

After a jury was impaneled, the trial
got underway in early September with
Judge Charles Hearns presiding. The
jury sat in silence as Prosecutor Eric
Hagstette outlined the circumstances
of the brutal crime.

A neighbor of the defendant
testified that he saw Ellis driving a 1982
yellow Cadillac similar to the one
stolen from Eaken’s apartment shortly
after she was killed. A Harris County
medical examiner testified that an
autopsy performed on the woman’s
body revealed she struggled with her
killer so fiercely that blood flowed
from her wrists. Eakens had been
handcuffed behind her back and
thrown into the bathtub. O.A. Malaer,
a latent print expert, testified that a
print retrieved from the scene matched

Ellis’ fingerprint.

+ As the week-long trial continued,
grim photos of the deceased and state’s
exhibits were presented to the jury.
The dramatic issue of the trial occurred
when a former Harris County jail
inmate testified at length that Ellis had
admitted the killing to them. The
information the witness detailed could
only be shown by the killer.

On Wednesday, September 8, 1983,
after hearing testimony from both
sides, the jury retired to deliberate. It
took them only 27 minutes to reach a
guilty verdict. Now they were faced
with, the task to determine if Ellis
Should serve life in prison or be put to
death by lethal interjection.

During this phase of the trial,
Hagstette outlined a ‘‘road map’’ of
Ellis’ criminal activities beginning in
1971 when he was convicted of two
burglaries including the stabbing of a
relative, and when he shot and
wounded a friend for no apparent
reason. ‘‘You can see what road he’s
on and what his destination is,’’
Hagstette told the jury. ‘‘Ellis is a self-
perpetuating crime machine, using the
fruits of one crime to commit an-
other.’’ The prosecution was referring
to the handcuffs which were stolen in
an apartment burglary and used on
Mrs. Eakens. ‘‘His resume of commit-
ting crimes hasn’t ended until you end
it,’’ Hagstette concluded.

Assistant Prosecutor Dick Bax told
the jury they weren’t responsible for
what now must be done regarding the
brutal crime Ellis committed. ‘‘The
death penalty is society’s right to end
the career of people like Eddy Ellis,’’
Bax concluded.

Defense Attorney Frumencio Reyes
asked the jury to have mercy on Ellis.
‘‘The defendant still maintains his
innocence. Instead he has to live by
your verdict and may die by your
verdict,’’ Reyes said. ‘‘The only
punishment that would serve society’s
right would be put him away for life.”’

The jury huddled in seclusion for
30 minutes and returned to the
courtroom to announce that Ellis
|should die. by lethal injection. He
showed no emotion as State District
Judge Charles Hearns passed the
sentence.

On October 3, 1983, David Helfond
pleaded guilty to the death of Elizabeth
Faubus and was sentenced to life in
prison.

At this writing, Houston homicide
detectives have uncovered evidence in
the death of Ruth Kottler to suspect
two women are involved. But the case
still remains unsolved.

sed by suf-

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white man in a uniform coming down the

stairway of the victim’s.apartment a °

short time before the body was dis-
covered. The witness didn’t know what

kind of uniform the man had been wear- |

ing, but was certain it was some type of

‘uniform.

From the information supplied by the
witnesses, police artists prepared com-
posites of the two women and uniformed
man, which later were released through
the local papers and television stations.

But, as the initial investigation moved
along, investigators were no closer to
making an arrest. »

That was the status of the probe when
the day turned extremely bad about 5:30
p-m. when the second bathtub murder
victim that day was reported to police.

Friends checking on the welfare of
Bertie Elizabeth Eakens, 74, a well-to-
do retiree who lived in an apartment
complex about eight miles from the ad-
dress where Ruth Kottler had been found
dead that morning, discovered the elder-
ly woman’s fully-clothed body face
down in the bathtub of her apartment.

. Her hands were handcuffed behind her.

She also had been beaten about the
face and head, investigators noted. De-
tective J.G. Burmester and Steve Ward
were assigned to head the investigation
team that processed the apartment for
possible clues.

A pillow case, now stained with
blood, had been placed over the dead
woman’s head. It apparently had come
from her own apartment. No weapon that
might have been used to bludgeon the
victim was found, but an’ autopsy dis-
closed Mrs. Eakens had died from suf-
focation or strangulation.

The apartment had been ransacked by
the killer, or killers, apparently looking
for valuables. An inventory by relatives
of the slain woman revealed that purses,
keys, credit cards and jewelry were miss-
ing from the apartment.

Also missing was Bertie Eakens’
1982 off-white Cadillac. _

Crime technicians went over the apart-
ment thoroughly, taking their photo-
graphs of the scene and dusting surfaces
for possible fingerprints. The in-
vestigators hoped for a possible lead
from fingerprints because the apartment
had been painted just recently—which
meant that prints found would be limited
mostly to those of the victim.

If the killer had left any prints behind,
they probably would stand out, the de-
tectives hoped. A number of prints were
lifted at the scene.

Investigative teams again went door-
to-door in the ‘quest for possible wit-

Bertie Eakens, 74, was one of ‘ivee

“bathtub murder” victims. in Houston.

Another (not shown) was Ruth Kottler

Elizabeth Faubus, 44, estranged
wife of former Arkansas Governor
Orval Faubus, was third victim

nesses who might have noticed some- |

thing unusual at the apartment complex,
screams or other noise that might pin-
point the time of the slaying, or perhaps a
Stranger to the apartment complex seen
leaving the area hurriedly. But. the can-
vass turned up nothing that was helpful
along these lines.

An all-points bulletin was issued for
the murder victim’s missing white Cadil-
lac, but the night passed without the car
being reported anywhere.

The second bathtub murder within
about eight hours resulted in the police
investigators being bombarded with
questions from the news media. The big
question posed by reporters was whether
police thought there was a link between
the two murders. Was it possible some
nut with a hangup for putting elderly dead
women in tubs was on a killing spree?

Although the manner in which the two
women had died—beating and suffoca-

tion or strangling—was similar, de-

True Detective

uspect
in Faubus murder. Not shown here is
Anthony Ellis, 29, accused in Eakens
slaying. No suspect has been named
so far in the killing of Ruth Kottler

‘David Helfond, 24, was chief s

tectives still were hesitant to connect the
two homicides, But there was another
common element in the two killings:
Apparently both women had admitted
their killers, or the killers had forced
their way inside after the women an-
swered the door. No signs of forced entry
were found at either apartment. Both vic-
tims had been financially well off. As far
as detectives could determine, they had

not been acquainted. In spite of some-
similarities in their deaths, the women’

were thought to have fallen victim to
separate killers—killers who probably
came to their homes with the origin-
al intent of burglary or robbery, police
speculated.

Homicide Lt. H.W. Kersten told
reporters there was nothing to positively
link the two slayings, but added, ‘‘If we

‘have another one like this, I would say,
yes.”’

Just hours jater, police detectives were
confronted with the third bathtub murder
on Houston’s fashionable West Side. It
was one that quickly made headlines
across the nation.

The completely nude body of Mrs.
Elizabeth Drake Faubus, 44, was found
submerged in a water-filled bathtub in
her large home at 3 p.m. on Thursday by
one of two men who had gone to the
residence to help Mrs. Faubus move a
piano. The moving men, 28 and 32 years
old, were employes of a remodeling

.' firm which had been doing work at the

house that was being vacated by Mrs.
Faubus—the estranged wife of ex-
Governor Orval Faubus of Arkansas.
When one of the men rang the door-
bell, he received no answer. Noticing the

Detéctive Mosier ponders question from -

reporter during press conference re-
garding the three “bathtub murders”

24 True Detective

door was open, he entered the house. He
was walking through the house, calling
her name, when he reached the master
bedroom and stopped in his tracks.

He was temporarily stunned by the
scene that. greeted him. He saw a
woman’s bloody body submerged in the
bathtub of the bathroom adjacent to the
master bedroom. He whirled and dashed
for a phone.

Uniformed patrol car officers, fol-
lowed by detectives and crime scene
technicians, arrived at the house within a
short time. The woman in the tub, quick-
ly identified as Mrs. Faubus, had been
dead for some time, it appeared. She had
been beaten about the face and head with
some unknown object. Her face was
bloody, and the water in the tub was
colored with blood. Exact cause of death
and whether the attractive brunette had
been sexually molested would not be
known until an autopsy was conducted,
investigators told the contingent of
reporters who arrived on the scene.

Describing his discovery of the body,

the furniture mover said, ‘‘I went in ard
hollered for her and looked around: and
didn’t find her. I walked through the
house and found her in the bathtub. All I

Saw was a dead body and a lot of blood.’’

He added, ‘‘It looked to me like she
was murdered. The front door was wide
open. It was really strange.”’

The moving firm employe told officers
he had talked to Mrs. Faubus about 8
o'clock the previous night about moving
the piano. Mrs. Faubus was in the process
of moving out of the house, as attested to
be packed boxes stacked around. The

‘ house previously had been occupied by
Mrs. Faubus and the former governor,
‘until he moved back to Arkansas in 1981
to become director of that state’s Depart-
ment of Veterans Affairs.

The news flash that the ex-governor’s
wife had been found nude, battered, and
immersed in a bathtub partially-filled
with bloodstained water spread quickly
after reporters relayed preliminary facts
to their city desks. Even while detectives
still were going over the murder house,

Probing ba:

Faubus phoned
heard the news
Later on in tl
ernor was interv
related that he ha
wife on Tuesday
seemed to be all
wife’s having fi]
said, ‘‘Everytt
according to he
through on things
requested, and
piano was som
with me.”’
Police and rep

' zabeth Faubus ha

divorce in Octob:
married to Orval
1969. When they
brunette had beer
59.

Faubus had be:
sas from 1954 ,
national headline:
ed out the state n
integration efforts
tral High School.
tually were sent
school.

Faubus obtaine:
first wife of 37 yea

832 873 FEDERAL REPORTER, 2d SERIES

REAVLEY, Circuit Judge:

Edward Anthony Ellis appeals from the
federal district court’s denial of habeas cor-
pus relief from the death sentence imposed
by a Texas court. We affirm.

I. Background

In March 1983, a grand jury in Harris
County returned an indictment charging
Edward Ellis with the murder by asphyxia-
tion of Bertie Elizabeth Eakins while he
was in the course of committing burglary.
A jury found Ellis guilty as charged and
returned affirmative answers to the special
punishment issues submitted pursuant to
Tex.Code Crim.Proc. art. 37.071 (Vernon
Supp.1989). The trial court, as required by
law, sentenced Ellis to death by lethal injec-
tion. The Texas Court of Criminal Appeals
affirmed. Ellis v. State, 726 S.W.2d 39
(Tex.Crim.App.1986), cert. denied, 480 US.
926, 107 S.Ct. 1888, 94 L.Ed.2d 702 (1987).
After the state courts denied his applica-
tion for writ of habeas corpus, Ellis sought
relief in federal court. In July 1988, the
district court denied Ellis’s petition for writ
of habeas corpus but granted a certificate
of probable cause.

On appeal Ellis alleges several grounds
of error: (1) that the trial court improperly
excluded two venire members in violation
of Witherspoon ». Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968) and
Adams v. Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980); (2) that the
evidence was insufficient to prove the alle-
gations in the indictment, (3) that the trial
court erred in failing to define the term
“deliberately” for the jury; (4) that Ellis
was denied a fair and impartial trial, due
course of law, due process and equal pro-
tection of law and his right to be free of
cruel and unusual punishment by the sys-
tematic exclusion of Hispanics from the
grand juries in Harris County, Texas and
from service as grand jury foremen; (5)
that he was denied the effective assistance
of counsel at trial and on appeal; and (6)
that the district court erred in failing to
conduct a hearing on the issues of ineffec-
tive assistance of counsel and systematic
exclusion of Hispanics from grand jury ser-

vice. Because we conclude that each of
these claims is either procedurally barred
or’ without merit, we affirm the district
court’s denial of the writ.

II. The Witherspoon Issue

Ellis contends that two prospective ju-
rors, Holstead and Bradshaw, were exclud-
ed improperly from serving on the jury on
the basis of their opposition to the death
penalty in violation of Witherspoon ». IIli-
nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.
2d 776 (1968) and Adams v. Texas, 448 U.S.
38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)
and that Bradshaw’s exclusion was not
harmless error as found by the district
court.

In Witherspoon, the Supreme Court held
that a state violates a capital defendant’s
rights under the Sixth and Fourteenth
Amendments when it excuses for cause all
venire members who express conscientious
objections to capital punishment. The
Court did recognize, however, that a state
has a legitimate interest in excluding those
potential jurors whose opposition to capital
punishment would preclude their impartiali-
ty and thereby frustrate administration of
a state’s death penalty scheme. In at-
tempting to strike an appropriate balance
between these two competing interests, the
Court wrote that venire members may be
excluded for cause if they make it

unmistakably clear (1) that they would

automatically vote against the impos
tion of capital punishment without re
gard to any evidence that might be devel-
oped at the trial of the case before them,
or (2) that their attitude toward the death
penalty would prevent them from mak-
ing an impartial decision as to the defen-
dant’s guilt.
391 U.S. at 522 n. 21, 88 S.Ct. at 1777 0. 21
(emphasis in original).
The Supreme Court reexam

suant to the Texas statute at issue, °

Court discussed its prior opinions, jncludi ,

Witherspoon, and concluded that

ined the |
Witherspoon standard in Adams v. Texas,
448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 582 |
(1980). In deciding whether certain poter @
tial jurors had been excluded properly por a

[t]his line of
al propositio
challenged f;
about capita
views would
impair the p
a juror in a
tions and hi
sist, howeve)
and decide th
scientiously a
the court.
448 U.S. at 45,
; added).
Recognizing
task of disting.
jurors whose o
ment would im;
those whose opp
effectively had |
“by the fact tha
Adams differfed
guage of [With
Court undertook
Wainwright v. W
S.Ct. 844, 850, 83
doing, the Court r:
ed standard from
standard for deter
tive juror may be
cause of his or her
ment. The Court
standard not only
*poon 's reference
ert also «
"8 bias be prox
clarity.” Id. at 42.
This is because
bias cannot be re
er sessions \
manner of a
~ = Sense shoulc
om has proved: n
Rot be asked
P, “anmistaka}

}
|

834

greed with some aspect of the law to the
extent that they could not take the oath to
follow the law, they would not be qualified
to serve. The court made it plain, though,
that mere disagreement with the law did
not automatically disqualify one from serv-
ing as a juror. Even if a person disagreed
with the law as it was explained, “if you
can set that aside and still be fair and
impartial then you may still be qualified to
be a juror.” After explaining that taking
the juror’s oath was a very serious matter
and that knowingly violating the oath
would subject a person to severe penalties,
the court made the following statements:
So we are not going to make anybody,
force anyone to take an oath that they
can’t follow. You see what I am saying?
So that’s why we are going back to this
thing if you disagree with the law, if you
disagree with the law of the indictment
to the extent and degree that it is going
to destroy your conscience or soul, we
are not going to make you take the oath.

The trial court began Bradshaw’s individ-
ual voir dire by asking if he had religious,
moral or conscientious scruples against the
infliction of death as a punishment for a
crime in a proper case. Bradshaw answer-
ed “yes.” The prosecutor then took over
the questioning; he first asked Bradshaw
if he would put in his own words his feel-
ings about the death penalty:

A. The way I feel about it—say, if he
did take someone’s life, taking his life
is not going to bring him back. So
that’s the eye for an eye thing and I
just—

Q. [Prosecutor] You go for the two
wrongs don’t equal a right?

A. That’s right.

Q. Now, I take it that’s a pretty strong
feeling you have; is that correct?

A. Ever since, you know, I have been
old enough and all to really think
about it I have felt that way so I would

say yes.

* * * * * s
Q. [Prosecutor] ... The question I want
to ask you: Keeping in mind your feel-
ings about the death sentence and the
rightness or the wrongness of the

873 FEDERAL REPORTER, 2d SERIES

death sentence, would you always in
every cage answer one of these ques-
tions no in order to prevent the Judge
from assessing the death penalty?

A. I believe so.

Q. Okay. Remember the Judge asked
you for a yes or no answer because of
the record and only you can tell us
what is in your mind.

Let me put it in this light. Are you
so against the death penalty that you
would always answer one of these
questions no in order to prevent the
death sentence from being assessed’?

A. Yes.

Q. In every case?

A. Yes.

Q. And I take it, that’s a very strong
feeling, as you said, since you have
been old enough to think; is that cor-
rect?

A.. Yes.

Q. Now, I’m not going to try to change
your mind but let’s say I did try to
change your mind. Could anybody in
this courtroom change your mind
about your feeling on the death penal-

ty?
A. No.
* * * * * *
Q. [Prosecutor] ... But if you are se

lected for a jury, if you are qualified
for a jury, you have to take an oath to
follow the law and once you have tak-
en an oath it’s not like a job that you
can quit and say, “Hey, this is not
what I bargained for. I will find me
another job. Can’t do it.” You are
stuck until the end of trial. You may
end up doing something that does vio-
lence to your insides or your com
science or your soul or your morals or
ethics or whatever and we don’t want
that to happen but the law will not
require you to take that oath if you
cannot live up to the oath. Do you se€
what I am saying—if it is going t°
violence to you. ;
The question I want to ask you i“

Considering your feelings about -

death sentence and given the choice

EL!
Cite as §
taking that oath or not taking th

in a capital murder, would you
to take the oath?
A. Yes.

On the basis of this exchange, the
challenged Bradshaw for cause. De!
counsel then was given the opportun
attempt to rehabilitate Bradshaw
asked Bradshaw to assume that he
been selected as a juror and had take
oath and then to elaborate on how he :
answer the two special punishment :

Q. [Defense Counsel] If you wer
lected as a member of the jury,
you along with the other jurors

the State having proved to the .

bers of the jury at the guilt or

cence phase of the trial could
thereafter be able to answer Sr

i Issues 1 and 2 provided it is prove

i you beyond a reasonable doubt?

A. Yes, I could answer them.

Q. [Defense Counsel] ... If the &
proved to you beyond a reason
doubt, you as a member of the ;
beyond a reasonable doubt that ti
special issues should be answered

could you answer this yes?
A. Yes.

Q. And by the same token on Spe
Issue Number 2 whether there i
Probability that the Defendant we
commit violent acts in the future
State would also have to prove this
you beyond a reasonable doubt. Co
the State ever prove to you beyon
reasonable doubt that in order to
Swer this Special Issue Number 2 ye

A. That’s where—

At mis Point defense counsel interrupt
: rere pnd asked him to consider
po Cal situation. He the inu:
questioning: ——
{Defense counsel] ... Now, I’m n
‘ pms you about in this particul:
oa » In that case about the kidnapp:

murderer of that campfire gir]

you can think of a crime to be :
=ous that you could tell or yc

4 answer the question yes to th
pecial Issue?

ELLIS v. LYNAUGH 835

Cite as 873 F.2d 830 (Sth Cir. 1989)

taking that oath or not taking the oath
in a capital murder, would you refuse
to take the oath? .

A. Yes.

On the basis of this exchange, the state
challenged Bradshaw for cause. Defense
counsel then was given the opportunity to
attempt to rehabilitate Bradshaw. He
asked Bradshaw to assume that he had
been selected as a juror and had taken the
oath and then to elaborate on how he might
answer the two special punishment issues.

Q. [Defense Counsel] If you were se-

lected as a member of the jury, could
you along with the other jurors after
the State having proved to the mem-
bers of the jury at the guilt or inno-
cence phase of the trial could you
thereafter be able to answer Special
Issues 1 and 2 provided it is proven to
you beyond a reasonable doubt?

A. Yes, I could answer them.

Q. [Defense Counsel] ... If the State
proved to you beyond a reasonable
doubt, you as a member of the jury,
beyond a reasonable doubt that these
Special issues should be answered yes,
could you answer this yes?

A. Yes.

Q. And by the same token on Special
Issue Number 2 whether there is a
probability that the Defendant would
commit violent acts in the future, the
State would also have to prove this to
you beyond a reasonable doubt. Could
the State ever prove to you beyond a
reasonable doubt that in order to an-
Swer this Special Issue Number 2 yes?

A. That’s where—

At this point defense counsel interrupted
haw and asked him to consider a
Ypothetical situation. He then continued
™ questioning:
(Defense counsel] ... Now, I’m not
asking you about in this particular
®, in that case about the kidnapper
murderer of that campfire girls.
you can think of a crime to be so
nous that you could tell or you
answer the question yes to the
al Issue?

A. Can I say yes? I could answer yes
to both of them but I don’t think, you
know, he should get—they should get
punished but, you know, death.

The trial court, having heard Bradshaw’s
conflicting responses, asked some ques-
tions of its own in an attempt to clarify
Bradshaw’s position. The court explored
the ambiguity in Bradshaw’s answers,
pointing out that he first said that his
scruples against capital punishment were
So strong that he would always answer the
Special issues in such a way that the death
penalty would not be imposed and then said
that he would answer the issues according
to the law and the evidence if he took the
juror’s oath.

THE COURT: So then what you said

earlier about having some scruples

against the death penalty are not exactly
what you led us to believe they are?

THE VENIREMAN: Well, I’m not going

to lie, you know. If both things are yes

and that’s the only choice I have and it’s
been proven I have to answer yes and be
honest with the Court and what I know
is right as far as the facts in my head, I
have to answer yes.

THE COURT: So then if you took the
oath, if you had a choice of taking that
oath to follow the law knowing full well
that you have said to us about your
feelings about the death penalty, are you
telling me now that you would or would
not?

THE VENIREMAN: I would not take
the oath.

THE COURT: You would and could take
the oath?

THE VENIREMAN: I would not take
the oath. Either I don’t understand or
you don’t understand. What I am saying
if I had to take the oath for some reason
and I was in that situation and I saw the
facts and it was true I would say yes.
But—I would try to avoid taking the
oath because I just can’t see sentencing
someone to death if the situation arose.
THE COURT: Okay. The situation will
arise if you are chosen as a juror in this
case. You will have to vote yes or no.
There is no two ways about it. And you

clude that each of
procedurally barred
affirm the district
rit.

Issue
two prospective ju-
dshaw, were exclud-
ving on the jury on
osition to the death
Witherspoon v. Illi-
‘Ct. 1770, 20 L.Ed.
sv. Texas, 448 US.
L.Ed.2d 581 (1980)
2xclusion was not
id by the district

supreme Court held
capital defendant’s
h and Fourteenth
-cuses for cause all
press conscientious
_ punishment. The
wever, that a state
t in excluding those
‘pp a to capital
ude ...._’ impartiali-
e administration of
-y scheme. In at-
appropriate balance
seting interests, the
e members may be
hey make it
1) that they would
against the imposi-
shment without re-
that might be devel-
e case before them,
de toward the death
nt them from mak-
sion as to the defen-

8 S.Ct. at 1777 n. 21

rt reexamined the
in Adams v. Texas,
2521, 65 L.Ed.2d 581
iether certain poten-
cluded properly pur
tatute at issue, the
r opinions, including
cluded that

[t]his line of cases establishes the gener-
gl proposition that a juror may not be
challenged for cause based on his views
about capital punishment unless those
views would prevent or substantially
impair the performance of his duties as

a juror in accordance with his instruc-

tions and his oath. The State may in-

sist, however, that jurors will consider
and decide the facts impartially and con-
scientiously apply the law as charged by
the court.
448 U.S. at 45, 100 S.Ct. at 2526 (emphasis
added).

Recognizing that the already difficult
task of distinguishing between prospective
jurors whose opposition to capital punish-
ment would impair their impartiality and
those whose opposition could be set aside
effectively had been made more difficult
“by the fact that the standard applied in
Adams differ{ed] markedly from the lan-
guage of [Witherspoon ],” the Supreme
Court undertook to clarify the issue in
Wainwright v. Witt, 469 U.S. 412, 421, 105
S.Ct. 844, 850, 83 L.Ed.2d 841 (1985). In so
doing, the Court reaffirmed the above quot-
ed standard from Adams as the proper
standard for determining when a prospec-
tive juror may be excluded for cause be-
cause of his or her views on capital punish-
ment. The Court noted that the Adams
standard not only dispensed with Wither-
spoon’s reference to “automatic” decision-
making but also did not require that a
juror’s bias be proved with “unmistakable
clarity.” Jd. at 424, 105 S.Ct. at 852.
This is because determination of juror
bias cannot be reduced to question-and-
answer sessions which obtain results in
the manner of a catechism. What com-
mon sense should have realized experi-
ence has proved: many veniremen simply
cannot be asked enough questions to
reach the point where their bias has been
made “unmistakably clear’; these ve-
niremen may not know how they will
react when faced with imposing the
death sentence, or may be unable to ar-
ticulate, or may wish to hide their true
feelings. Despite this lack of clarity in
the printed record, however, there will be
‘situations where the trial judge is left

ELLIS v. LYNAUGH 833
Cite as 873 F.2d 830 (Sth Cir. 1989)

with the definite impression that a pro-
spective juror would be unable to faith-
fully and impartially apply the law....
[T]his is why deference must be paid to
the trial judge who sees and hears the
juror.
Id. at 424-26, 105 S.Ct. 852-538 (footnote
omitted). Thus, in a proceeding under 28
U.S.C. § 2254, the trial court’s factual de-
termination that a potential juror is dis-
qualified is entitled to a presumption of
correctness, absent one of the specifically
enumerated exceptions contained in 28 U.S.
C. § 2254(d). Id. at 429, 105 S.Ct. at 855.
With this in mind, we turn to those claims
before us.

A. Prospective Juror Holstead

B. Prospective Juror Bradshaw

[1] Ellis argues that, because Brad-
shaw’s answers to defense counsel’s ques-
tions showed that he was qualified to serve
on the jury under Witherspoon and
Adams, the trial court’s exclusion of him
for cause was erroneous. Ellis asserts that
the trial court set out to disqualify Brad-
shaw by taking over the voir dire and point-
ing out ways in which he could avoid jury
service and that this conduct deprived the
defendant of a full and fair hearing on the
matter of juror qualification and stripped
the trial court’s findings of the presump-
tion of correctness to which they normally
would be entitled.

46 Tex.

SSL NE TS

‘for life. The court, the attorney for
the state, or the attorney for the de-
fendant may not inform a juror or a
prospective juror of the effect of fail-
“ure of the jury to agree on an issue
submitted under this article.”

The trial court charged the jury as fol-

lows:

“The burden of proof in this phase of the
trial still rests upon the State and never
shifts to the defendant. Each Special
Issue submitted must be proved by the
State beyond a reasonable doubt; there-
fore, before any issue may be answered
‘Yes,’ all jurors must be convinced by the
evidence beyond a reasonable doubt that
the answer to such issue should be ‘Yes.’
If the jury unanimously determines (and
only if such determination is unanimous)
that the State has proved an issue be-
yond a reasonable doubt, then the Fore-
man will so record the Jury’s answer to
such issue by signing his name to the
finding reflecting such answer on the
form provided for that purpose.

“You are further instructed that if any

juror, after considering the evidence and

these instructions, has a reasonable

doubt as to whether the answer to a

Special Issue should be answered ‘Yes,’

then such juror should vote ‘No’ to that

Special Issue in the jury’s deliberations.

“If ten (10) jurors or more vote ‘no’ to

any special issue, then the answer of the

jury shall be ‘No’ to that issue, and the
foreman will so record the jury’s answer
by signing his name to the finding re-
flecting such answer on the form provid-

ed for that purpose.” . .

We find that the trial court’s instruction
complied with the requirements of Article
37.071, supra. There was no error in deny-
ing the special requested charge. The
sixth ground of error is overruled.

[5] In his fifth ground of error, appel-
lant complains of the following ‘argument
by the prosecutor at the punishment phase:

“And he leaves San Antonio ‘and he

‘comes back to Houston. ' Within two

weeks'he isin Houston. - January’ 12,

- 1983, I wrote it up on the board. And
what is he doing—he:is pulling a gun

726 SOUTH WESTERN REPORTER, 2d SERIES

again. He is breaking into an apartment
or coming out of the apartment when
Ollie spots him and Ollie says what are
you doing. He pulls the gun, ‘Hey, what
are you doing m__ f__.’ And points a
gun at Ollie and he turns around and
goes. He doesn’t want to get shot and
it’s a good thing because he didn’t know
this man.

He didn’t know what this man was
capable, maybe this defendant didn’t
know what he was capable of and what
does he do the same day, January 12,
1938 [sic] at the same apartments com-
plex? Well, he is wiping out the Ashley
Battles’ family.

Ashley Battles and Maude Battles
coming down from Michigan and bring
everything with hopes of a new future,
qualified for security work, have all the
equipment having to get a job and go to
a job interview and find out they have
been wiped out and can’t work -at the
jobs they have chosen. They have been
wiped out.

“(Defense counsel]: Object to this line of
argument. There is no testimony at all
that Mr. Ellis was involved in the burgla-
ry of Mr. Battles, Ashley Battles’ apart-
ment.

“The Court: That’s argument. Over-
ruled. The jury has heard the testimo-

”

ny.

Appellant argues that the State had not
proven that he committed the burglary of
the Battles’ apartment, and that the State
was therefore precluded from inviting the
jury to consider the burglary as one of
appellant’s prior unadjudicated offenses.

At the punishment phase, a witness testi-
fied that he lived at the Fondren Place
Apartment on January 12, 1983. At one
point in the morning hours, the witness
heard loud knocks on the door of the Gat-
lins’ apartment below his. When he went
downstairs to investigate, he saw appellant
“going in the window [of the apartment].
He was already proceeding in the win-

dow.... The window was up and the guy

had one leg in the window and one leg out
of the window.” When the witness spoke
to appellant to ask what he was doing,

PAG Rite ore udeotet cn

IY
=

ELLIS v. STATE Tex. 47
Cite as 726 S.W.2d 39 (Tex.Cr.App. 1986) ;

appellant turned and looked at the witness.
The witness testified that he saw a screw-
driver in appellant’s right hand, and a black
revolver in his left. Appellant said to the
witness, ‘Hey, you hold it, m—— f——.”
The witness turned and left to summon a
security guard. When the guard and the
witness returned to the scene, appellant
had left. The owner of the apartment tes-
tified that when he returned to his apart-
ment that day, he discovered that the bed-
room window “was broken and looked like
it was raised up or something.” The owner
testified that his wedding band, some
watches, and two cameras were taken from
his apartment that day, and that he had not
given appellant permission to enter the
apartment or take the property.

Ashley Battles testified that on January
12, 1983, he and his wife lived at the Fon-
dren Place Apartments. They had come to
Houston from Michigan seeking work as
security guards and brought with them
“All my security equipment, handcuffs,
uniforms, night sticks and my gun belt,

_ whatever.” Battles testified that on that

morning he and his wife “had an appoint-
ment for a job” and were gone from the
apartment “a good couple of hours or
more.” When Battles returned to his
apartment, he noticed that ‘We had been
broke in to.” Battles was asked if he was
able to determine how the burglar had en-
— the apartment. He testified as fol-
Ows:

’ “A, Through the kitchen window.

“Q.. And how was that done?

“A. Well, some small implement. He
tried to force my patio doors but I
had a bolt in the bottom and that
was jimmied with some kind of a
tool. He couldn’t gain entry there
so he went to the kitchen window
and below a little lock there and
put something up and pop and—

“Q. Were you able to determine what
kind of property was stolen?

‘sf “A. Yes. TV’s, two sets of, night stick,

__ two sets of cuffs, my wife’s weap-
‘on, jewelry, some of my tools, suit-
cases and I had a policer [sic] cam-
era from Detroit which didn’t work

and she had a small 23 CB and that
was also taken.

“Q. Pretty much wiped out?

“A, Yes.”

Mrs. Eakin, the murder victim, had been
found with her hands handcuffed behind
her back. The handcuffs had been marked
as State’s Exhibit 60, and had been admit-
ted into evidence at guilt-innocence. Bat-
tles testified concerning the handcuffs as
follows:

“Q. Mr. Battles, I want to show you

what has been marked as State’s
Exhibit 60, been admitted into evi-
dence and ask if you can identify
these. Have you ever seen these
before?

“A. Yes. They are mine.

“Q. How can you tell those are your

handcuffs?

“A. My Social Security number is on

the back of them.

“Q. How long has that Social Security

number been on the handcuffs?

“A. Ever since up in Detroit about

maybe in '70, 65. Both pair were
marked.” ,
Appellant argues:
“This Court has held that the prosecutor
may not ask the jury to consider prior
offenses which have not been properly
proven. See, Brown v, State, 530
S.W.2d 118, 119-120 (Tex.Cr.App.1975).”
Brown is altogether inapposite here.
Brown was reversed because the prosecu-
tor specifically asked the jury to punish the
defendant for two additional crimes not
then being tried.

In the instant case, the prosecutor’s ar-
gument that appellant had burglarized the
Battles’ apartment was a reasonable deduc-
tion from the evidence. Ground of error
number five is overruled.

The judgment of the trial court is af-
firmed.

ONION, P.J., not participating.

CLINTON, Judge, dissenting.

Appellant argues, in two grounds of er-
ror, that two prospective jurors were im-

50 Tex.

capital murder trial. After the explanation
Bradshaw was asked,

“Q: If you were selected as a member of
the jury, could you along with the
other jurors after the State having
proved to the members of the jury
at the guilt or innocence phase of
the trial could you thereafter be able
to answer Special Issues 1 and 2
provided it is proven to you beyond a
reasonable doubt?

A: Yes. ‘I could answer them.

Q: And you understand that in order for
the person to be given the death pen-
alty the State does have the burden
of proving both of these two special
issues beyond a reasonable doubt...

If the State proved to you as a member
of the jury, beyond a reasonable doubt
that these special issues should be an-
swered yes, could you answer this yes?
A: Yes.” oath

A moment later, asked again if he could
answer both special issues affirmatively,
Bradshaw replied,

“Can I say yes? I could answer yes to
both of them but I don’t think, you know,
he should get—they should get punished
but, you know, death.” -

At this point it began to appear that
Bradshaw might be the type of juror Ad-
ams held cannot be properly excluded from
a jury: those who have scruples against
the death penalty but could nevertheless
follow the law in answering the punish-
ment issues. As Adams said, citing With-
erspoon, “{I]f prospective jurors are
barred from jury service because of their
views about capital punishment: on ‘any
broader basis’ than inability to follow the
law or abide by their oaths, the death sen-
tence cannot be carried out.” 448 U.S. at
48, 100 S.Ct. at 2528, 65 L.Ed.2d at 591.
Bradshaw had stated that he could follow
the law and abide by his oath. He re-
mained adamant in that assertion when the
trial court resumed questioning him:

“THE COURT: Well we talked to you

earlier about your qualifications and if

you have some feelings about something,
if you can set those feelings aside and be
fair and impartial, then you are qualified

726 SOUTH WESTERN REPORTER, 2d SERIES

as far as your qualifications as far as
setting your feelings aside.

What they are concerned about if you
were on Question 2 and you knew if you
answered Question Number 2 yes and
you already answered Question Number
1 and if the State proved to you beyond a
reasonable doubt that the answer to
Number 2 should be yes and in your own
mind you know that it should be yes—
they proved it to you beyond a reason-
able doubt that you should answer Ques-
tion Number 2 yes, however heinous the
crime is—would you vote yes knowing
that I am going to assess the death pen-
alty?

THE VENIREMAN: Fes, J would. I
would tell the truth. Yeah. What I
thought was right. Yes.

THE COURT: So then what you said
earlier about having some scruples
against the death penalty are not exactly
what you led us to believe they are?

THE VENIREMAN: Well, I’m not go-
ing to lie, you know. If both things are
yes and that’s the only choice I have and
it’s been proven I have to answer yes and
be honest with the Court and what I
know is right as far as the facts in my
head, I have to answer yes.

THE COURT: So then if you took the
oath, if you had a choice of taking that
oath to follow the law knowing full well
what you have said to us about your
feelings about the death penalty, are you
telling me now that you would or would
not? .
THE VENIREMAN: I would not take
the oath. '
-.THE COURT: You would and could
take the oath? *..

THE VENIREMAN: I would not take
‘the oath. Either I don’t understand or
you don’t understand. What I am saying
‘if I had to take the oath for some reason
and I was in that situation and I saw the
facts and it was true I would say yes.

But—I would try to avoid taking the

oath because I just can’t see sentencing

someone to death if the situation arose.
THE COURT: Okay. The situation
will arise if you are chosen as a juror in

ELLIS v. STATE T
Cite as 726 S.W.2d 39 (Tex.Cr.App, 1986) * ie

this case. You will have to vote yes or
no. There is no two ways about it. And
you know if you take the oath that you
will a true verdict [sic] according to the
law and the evidence submitted to you
that you are going to have to answer
those questions one way or another,
And the question they are trying to de-
termine is if it gets down to answering
those questions and you have already
taken the oath now, you see what I am
saying? And you have got to answer
those questions one way or another and
you have got some feelings against the
death penalty and at one point in time
you said you don’t believe in the death
penalty,

THE VENIREMAN: J don't but J
have to tell the truth, too.

THE COURT: What you are saying—

THE VENIREMAN: I’m going to fol-
low it.”

It was by this time quite clear that Brad-
shaw was precisely the type of venireman
who could not be excluded for cause under
Adams, He had stated firmly that in spite
of his opposition to the death penalty he
could answer both punishment issues in the
affirmative if the evidence so dictated, even
knowing death would be assessed as a
result. The trial court continued question-
ing, however, after this clear assertion that
Bradshaw would follow the law:

“THE COURT: No matter whether it
does injury to your conscience and your
soul or not?

THE VENIREMAN: If that’s what I
have to do because—

THE COURT: You don’t have to.

, THE VENIREMAN: I’m not going to
ie.

THE COURT: But you don’t have to.
If your feelings are so strong—we are
trying find out how strong your feel-
ings really ar ing’
ue y are and we are not arguing

THE VENIREMAN: I understand
that.

THE COURT: We need to find out
how strong your feelings really are, If
your feelings are strong enough that if
you take the oath and you are going to

follow your oath and it is not going to do
damage to your own conscience and your
own soul and if you are convinced be-
yond a reasonable doubt both of those
questions should be yes knowing full
well if you answer them yes that I am
going to assess the death penalty, then
you could do that?

THE VENIREMAN: If I took the
oath, yes, sir, I would have to answer

honestly.

THE COURT: The next question:
would you take the oath?

THE VENIREMAN: No, then I would
have to put myself in a situation,

THE COURT: Have you got any more
questions?

MR. ADALPE: No, Your Honor:

MR. HAGSTETTE: Reurge the chal-
lenge, Your Honor.

THE COURT: The challenge for cause
will be granted.”

Thus exited this troublesome potential
juror who stubbornly insisted that in spite
of his opposition to the death penalty he
could follow the law and the evidence and
answer both special issues affirmatively if
the State proved to him beyond a reason-
able doubt that they should be so answer-
ed. He was excluded on the same ground
Holstead had been, because he stated he
would not take the oath. The crucial dis-
tinction between Bradshaw and the earlier
venireman, however, is that he did not him-
self decide he would not take the oath; the
idea was thrust on him. Even after he had
been informed that “the law will not re-
quire you to take that oath if you cannot
live up to that oath,” he had said time and
again that he could live up to the oath. It
was only after suggestive remarks from
the trial court (“... if you had a choice of
taking that oath ...”; “You don’t have
ie that Bradshaw firmly stated he
would” not take the oath, because that
would mean “I would have to put myself in
a situation.” The situation he would be in
would be an uncomfortable one, no doubt—
serving in a case which might result in a
death penalty. That would certainly have
made this venireman uneasy.

48 Tex 726 SOUTH WESTERN REPORTER, 2d SERIES

roperly excluded from the jury in violation
of Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968) (hereafter
Witherspoon). The majority disposes of
these contentions with a series of concluso-
ry statements after setting out the Tespec-
tive voir dire examinations. It is instruc-
tive, however, to examine more closely the
precise procedure the majority today ap-
proves for excluding prospective jurors. In
appellant’s case one juror was properly ex-
cluded. The other was not.

The first of these veniremen, Kenneth
Holstead, told the trial court that he did not
believe in the death penalty. He told the
prosecutor on direct examination that he
could never answer both punishment issues
“yes” knowing the death penalty would be
assessed as a result, “I don’t think I could
take an oath that would put me in that
situation.” ! Ts

On crossexamination the venireman was

asked if he could put aside his feelings and
vote on the special issues according to the
instructions and the law he would be given
by the trial court, to which he replied, “You
[sic] asking about taking an oath as a juror,
I would have to.” On redirect examination,
however, he reverted to his earlier position,
with the qualification, “No, I couldn’t effec-
tively take the oath.”? When he was once
again questioned by defense counsel Hol-
stead was asked, “And whether or not you
feel you agree with that particular law, the
fact is you could follow the law of what the
Judge would give you in his Charge?” and
answered, “Yes.”

On the last round of questioning by the
State, this crucial exchange took place, af-
ter the venireman was asked once more if
he could take an oath to follow the law in
arriving at his verdict: —

“A; [By the venireman] First let me ask

you this. eee Toe

Q: [By the prosecutor] Okay. peg ie

A: Say I’m selected.

1. The oath referred to throughout this opinion
is found in Article 35.22, V.A.C.C.P.:

“When the jury has been selected, the fol-

lowing oath shall be administered to them by

the. court or under its direction: ‘You and

“each of you do solemnly swear that in the

case of the State of Texas against the defend-

Q: All right.

A: What happens if I refuse to take this
oath?

Q: Well, nobody can make you take the
oath, I’m not saying you would go to
jail or anything like that.

A: I don’t know; I’m not a lawyer.

Q: You’re talking about the conse-
quences of not taking the oath. The
only consequences are if you take an
oath and don’t follow your oath; you
see what I’m saying? Nobody can
force you to take an oath that you
cannot, in your mind, carry out ...

Would you take the oath, an oath to
render a true verdict, according to the
law and the evidence, or would you re-
fuse to take the oath because you
would be asked to participate in a sys-
tem that might result in the death pen-
alty being assessed?

A: I would refuse to take the oath.

Q: Mr. Reyes earlier asked you nearly
the same question. Are you with-
drawing the answer you had at that
point?

A: I’m getting confused. What I’m say-
ing is: If I were to take an oath,
then, under those conditions, I would
feel a moral duty to perform under
that oath.

Q: But given the choice—

A: But given the choice, I would not
want to.

Q: You would not want to or you would
not do it, given the choice?

A: I would not.”

granted without further questioning by ei-
ther side. ; 8 te

“A man who opposes the death penalty,
no less than one who favors it, can make
the discretionary judgment entrusted to
him by the State and can thus obey the
oath he takes as a juror.”: Witherspoon,

ant, you will a true verdict render according
to the law and the evidence, so help you God.

2. All emphasis is supplied throughout by the
writer of this opinion unless otherwise indi-

cated.

3 Bi aise 5 hie BPO

ELLIS v. STATE Tex. 49
Cite as 726 S.W.2d 39 (Tex.Cr.App. 1986)

891 U.S. 510, 88 S.Ct. at 1775, 20 L.Ed.2d
776. This potential juror, however, stated
more than once that he could never answer
both special issues affirmatively, knowing
death would be assessed, no matter what
the evidence showed. Because the jury’s
function in the punishment phase of a capi-
tal murder trial is to answer the special
issues based on the law and evidence, clear-
ly Holstead’s performance of this duty
would have been impaired by his scruples
against capital punishment. This belief
made him properly subject to a challenge
for cause under Adams v, Texas, 448 U.S.
38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581,
589 (1980) [hereafter Adams }
“... @ juror may not be challenged for
cause based on his views. about capital
punishment unless those views would
prevent or substantially impair the per-
formance of his duties as a juror in ac-
cordance with his instructions and his
oath.”

This standard was recently reaffirmed by
the Supreme Court in Wainwright v. Witt,
469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841, 849 (1985).

However, Holstead also stated that he
could follow the oath he would take as a
juror, to render a true verdict based on the
law and the evidence, not on the dictates of
his own conscience. This equivocation in
his answers seems to have arisen due to
Holstead’s apparent misapprehension that
he would be violating the law if he said he
could not take the oath. This belief left
him in a dilemma: If he took the oath he
would feel morally bound to follow it, but
in doing so he would be violating his own
belief that capital punishment is wrong. In
casting about for a way out of this moral -
maze, Holstead asked what would happen
if he did not take the oath, and discovered
there would be no legal reprisal if he did
not. He therefore managed to resolve his
crisis of conscience by saying he would
refuse to take the oath. In so doing he
was in effect reasserting that he could not

. “effectively” take the oath; that he could

not follow the law:-and the evidence in
answering the special issues. It was clear
Holstead would be “substantially impaired”
in the performance of his duties as a juror.

He was Properly excluded for cause, Ad-
ams, supra; Witt, supra; Kelly v, State,
669 S.W.2d 720, 728 (Tex.Cr.App.1984),

Now we come to the prospective juror
Kenneth Bradshaw. His voir dire examina-
tion came days after that of venireman
Holstead, but in some ways the earlier voir
dire provided a framework for Bradshaw’s
questioning, as shall be demonstrated.

Initially the venireman told the trial
court, “I couldn’t say that a man should die
for something; no.” The voir dire exami-
nation then began. The prosecutor ex-
plained what capital murder is in Texas,
distinguishing it from “ordinary” murder,
and also explained the two questions the
jury would be required to answer during
the punishment phase of the trial. When
asked if he would always answer one of
those questions no in order to prevent the
assessment of the death penalty, the ve-
nireman said, “I believe so,” The prosecu-
tor pressed him for a yes or no answer to
the question, “Are you so against the death
penalty that you would always answer one
of these questions no in order to prevent
the death sentence from being assessed?”
“Yes,” said the venireman. “In every
case?” “Yes,”

The prosecutor, showing a commendable
desire to be certain of the juror’s feelings,
went on to explain that, “[I]f you are quali-
fied for a jury, you have to take an oath to
follow the law...” However, “the law will
not require you to take that oath if you
cannot live up to the oath.”

“The question I want to ask you is:

Considering your feelings about the
‘death sentence and given the choice of

taking that oath or not taking the oath in

& capital murder, would you refuse to

take the oath? i

A: Yes,”

The State thereupon challenged for cause
and defense counsel was allowed to ques-
tion the venireman for the first time. As
80 often happens, the venireman began to
equivocate. :

Defense counsel again explained the pro-
cedure during the punishment phase of a

44 Tex.

perience has proved: many veniremen
simply cannot be asked enough ques-
tions to reach the ‘point where their
bias has been made ‘unmistakably
clear’; these veniremen may not know
how they will react when faced with
imposing the death sentence, or may
be unable to articulate, or may wish to
hide their true feelings. Despite this
lack of clarity in the printed record,
however, there will be situations where
the trial judge is left with the definite
impression that a prospective juror
would be unable to faithfully and im-
partially apply the law. For reasons
that will be developed more fully infra,
this is why deference must be paid to
the trial judge who sees and hears the
juror.” ; ee
See also, Lockhart v. McCree, — US.
—, 106 S.Ct. 1758, 90 L.Ed.2d 137, —
Cr.L. —— (May 5, 1986) (“It is important to
remember that not all who oppose the
death penalty are subject to removal for
cause in capital cases; those who firmly
believe that the death penalty is unjust
may nevertheless serve as jurors in capital
cases so long as they state clearly that
they are. willing to temporarily set aside
their own beliefs in deference to the rule
of law.” [our emphasis].) ©
We find that the record supports the
conclusion that the venireman’s views
“would prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his
oath.”:
“If the juror is to obey his oath and
follow the law of Texas, he must be
willing not only to accept that in certain
circumstances death is an acceptable pen-
alty but also to answer the statutory
questions without conscious distortion or
bias. The State does not violate the
| Witherspoon doctrine when it excludes
prospective jurors who are unable or un-
willing to address the penalty questions
with this degree of impartiality.” Ad-
ams v. Texas, supra. ~
The venireman in the instant case stated
unequivocally that he would not take the

3. The oath of Art. 35.22, supra.

726 SOUTH WESTERN REPORTER, 2d SERIES

oath of a juror. He was unwilling to ad-
dress the penalty questions at all. He was
unwilling even to undertake the duties of a
juror. His views would prevent the per-
formance of his duties as a juror in accord-
ance with his oath because he would not
take the oath. See Adams v. Texas, supra;
Wainwright v. Witt, supra; Lockett v.
Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978). The venireman was
unwilling to set aside his own beliefs in
deference to the rule of law. See Lockhart
v. McCree, supra. The trial court’s exclu-
sion of this venireman did not violate With-
erspoon or Adams. The third ground of
error is overruled.

In his second ground of error, appellant
contends that the trial court excluded pro-
spective juror Holstead in violation of
Witherspoon v. Illinois, supra, and Adams
v. Texas, supra. We set out the pertinent.
portions of the voir dire, as follows:

“A, First let me ask you this.

“Q. [Prosecutor] Okay.

“A, Say I’m selected.

“Q. All right.
’ “A, What happens if I refuse to take.
this oath? $

“Q. Well, nobody can make you take
the oath. I’m not saying you would go
to jail or anything like that.

“A, I don't know; I’m not a lawyer. —

“Q. You’re talking about the conse-

quences of not taking the oath. The
only consequences are if you take an
oath and don’t follow your oath; you
see what I’m saying? Nobody can
force you to take an oath that you
cannot, in your mind, carry out ...
Would you take the oath, an oath to
render a true verdict, according to the
law and the evidence, or would you
refuse to take the oath because you
would be asked to participate in a sys-
tem that might result in the death pen-
alty being assessed?

“A, I would refuse to take the oath.

“Q. [Defense counsel] earlier asked you
nearly the same question. Are you

ee ae ee

PBA Lea ie.

Fim RoE dees

ELLIS y. STATE Tex. 45
Cite as 726 S.W.2d 39 (Tex.Cr.App. 1986)

withdrawing the answer you had at
that point? . ,

“A. I’m getting confused. What I’m
saying is: If'Il were to take an oath,
then, under those conditions, I would
feel a moral duty to perform under
that oath.

“Q. But given the choice—

“A. But given the choice, I would not
want to.

* “Q. You would not want to or you
'- would not do it, given: the choice?
“A. I would not.”

For the reasons discussed in the previous
ground of error, the second ground of er-
ror is overruled.

[3] In his fourth ground of error, appel-
lant contends that the indictment is funda-
mentally defective because it fails to allege
properly all of the elements of capital mur-
der, Sec. 19.08(a)(2), supra. The indictment
charges that appellant

“intentionally, while in the course of

committing and attempting to commit

Burglary of a Habitation owned by Ber-

tie Elizabeth Eakins and located at 2210

18th Street, Apartment 19, Houston,

Harris County, Texas, caused the death

of Bertie Elizabeth Eakins by asphyxiat-

ing the Complainant in a manner and
means unknown to the Grand Jury.”

Appellant reads the indictment to allege
that appellant intentionally caused the
death of the victim while in the course of
committing or attempting to commit bur-
glary. Appellant goes on to point out that
one of the elements of capital murder as
defined in Sec. 19.03(a)(2) is that the actor
intentionally commit the murder (as de-
fined under Sec. 19.02(a)(1)) while in the
course of committing an aggravating of-
fense. Appellant contends that capital
murder requires an intentional commission
of murder, and murder in turn requires a
culpable mental state. Thus, appellant con-
cludes, the indictment is fundamentally de-
fective in that it fails to allege a culpable
mental state for the 19.02(a)(2) murder,

We find the contention to be without
merit. Appellant would have the indict-
ment read “intentionally knowingly and in-

tentionally caused the death.” Capital
murder under Sec, 19,03(a)(2) proscribes an
intentional killing in the course of an ag-
gravating offense. The indictment alleges
an intentional killing in the course of an
aggravating offense. Appellant’s fourth
ground of error is overruled.

[4] In his sixth ground of error appel-
lant contends that the trial court erred in
refusing to give appellant’s specially re-
quested charge in the trial court’s instruc-

tions to the jury at the punishment phase
of the trial.

The record reflects the following ex-
change:
“(Defense counsel]: Your Honor, we
would make a specific request of this
Court that the second paragraph which
reads as follows, ‘If there is any Special
Issue on which the vote of the jurors is
unanimously qoute [sic] yes or no at
least ten in favor of an answer of no,
then there shall be no answer for that
Special Issue and the foreman should not
sign his name to any answer form for
that Special Issue.’ We would request at
this time that paragraph be included in
the charge as the Court has proposed.
“The Court: Well, that request will be
denied.”

Art. 37.071(c), (d) and (e), V.A.C.C,P. pro-

vides as follows:

“(c) The State must prove each issue
submitted beyond a reasonable doubt,
and the jury shall return a special ver-
dict of ‘yes’ or ‘no’ on each issue sub-
mitted.

“(d). The court shall charge the jury that:
(1) it may not answer any issue ‘yes’
unless it agrees unanimously; and
(2) it may not answer any issue ‘no’
unless 10 or more jurors agree,

(e) If the jury returns an affirmative
finding on each issue submitted under
this article, the court shall sentence
the defendant to death. If the jury
returns a negative finding on or js
unable to answer any issue submitted
under this article, the court shall sen-
tence the defendant to confinement in
the Texas Department of Corrections

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The Cleanup Spot

FOR THE THIRD TIME in five years,
54-year-old Camilo Weston Leyra, Jr.,
stood before Brooklyn: Judge Samuel S.
Leibowitz to answer charges that he
bludgeoned his aged mother and father
to death to gain their estate of $30,000
(The Too-Perfect Crime, April FRONT
PAGE, 1950). At the first trial Leyra was
convicted and sentenced to die in the elec-
tric chair, but the New York Court of
Appeals reversed the verdict and ordered

a new trial. At the second trial, Leyra was
again convicted, but the Supreme Court
ruled that he had been deprived of his
rights because a psychiatrist had been
used to obtain an alleged confession. ‘The
state has contended all along that Leyra
committed the double murder because he
needed money to meet the demands of his
blonde cabaret-girl mistress. .-

WHILE I’M IN JAIL—In a surprise .
move, Roger. William (Billy) Cox, big
burly Nashville, Tenn., mixing bar oper-
ator, pleaded guilty to involuntary man-
slaughter in the beating-slaying of Vaiden
Lee, pretty 19-year-old barmaid (Please,
Baby, While I’m In Jail, February FRont
PAGE, 1955). District Attorney General
J. Carlton Loser asked the criminal court.
jury which accepted the plea to sentence
the 30-year-old defendant to ten years.
Jurymen deliberated 57 minutes, set the
sentence at seven years. Mrs. Lee died
October 20, 1954, after Cox admittedly

slapped her in her apartment during a “fit
of jealousy.” Her husband, blond, de-
spondent Harry Lee, an alleged Memphis
numbers racketeer who was serving a sen-
tence in the State Penitentiary at Nash-
ville for attempting to bribe a police offi-
cer, was whisked away to another prison
immediately after sentencing of Cox was
announced. Prison authorities said it was
a “security move” to. keep the two men
from coming face to face inside prison
walls, ,

BERNARD SCHREIBER, 18, has
been convicted of the rape-murder . of
Mary Jolene Friess, 17, and sentenced to
die in the electric chair' by a panel of three
judges in Toledo, O. (The Murder of
Mary Jolene Friess, December FRONT
PAGE, 1954), Mary Jolene was ambushed,
raped and stabbed to death as she rode
her bicycle to a rural mailbox. During the
trial, Schreiber insisted ‘that a 12-year-
old boy helped in the crime, but after the
boy testified for two hours, full responsi-
biljty was shifted to Schreiber. A motion
for a new trial because the state had not
proved Schreiber’s premeditation of the

murder was rejected by the court on
grounds that. proof of premeditation was
not necessary when the murder resulted
from commission of another felony. At-
torneys for Schreiber said the conviction
would be appealed. :

4 V, ~ :

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\

HOWARD BOWMAN, 41, who got his
kicks from small yellow capsules of nem-
butal and frequent bouts with the bottle

(Courage Comes In Capsules, May FRONT
PAGE, 1954), pleaded guilty to the second-
degree murder of his aged mother, Mrs.
Iona Bowman, of Chattanooga, Tenn.
Bowman. was ordered to stand trial after
a board of psychiatrists ruled that he was

’ sane and competent to advise counsel. At
the time of his arrest, Bowman signed a
statement saying he axed his mother to
death after she refused to give him money
to. buy liquor. He was sentenced to serve
20 years on his plea of guilty and, under
Tennessee law, will be eligible for parole
in 11 years and one month,

THE WAY IS CLEAR for carrying
out the death sentences imposed on two
soldiers convicted of killing two German
civilians in Nurenberg, Germany, nearly
three years ago (Johnny Got His Gun,
September FRONT PAGE, 1952). Privates

| John Vigneault, and Richard Hagelberger,
both 22, were convicted in separate courts-
martial of the robbery-slayings of Paul
Eckart, 56-year-old taxi driver, and Lo-.
that Schlosser, 26-year-old movie pro-
jectionist. The sentences of both Vig-
neault and Hagelberger, now confined to
the disciplinary barracks at Fort Leaven-
worth, Kan., have been given final ap-
proval by President Eisenhower. .

PLAIN LUCKY—When they arrested
Merle Wayne Ellisor for the slaying. of
‘Texas Highway Patrolman Robert James
Crosby, 28, he said he’d be lucky if he
got the electric chair (Get The Man
Who Got Crosby, March FRONT PAGE,
1955). It took a Houston jury just 20

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The detectives stopped at Seventy-ninth

Street, decided there were plenty of officers

there, and turned toward Seventy-fifth along
the bayou. They were joined by Officers Neal
Todd and A. C. Hopper, who only a few
days before had been wounded while trying
not to kill a crazed man who charged him
with a knife. Citizen Babe Peters, owner of a
Pontiac agency, volunteered to go along with
the four officers and show them some caves
deep in the woods.

The five men checked giant sewer pipes,
some big enough to drive a car into. They re-
turned to their car, radioed their check-in,
and started walking west toward Seventy-fifth
Street. Still no luck. They came out on Sev-
enty-fifth, crossed the street, and stopped at
a hydrant in back of a house for a drink.

A middle-aged woman peeked out her back
door at them, then came outside and walked
up to them. “I saw a man running,” she told
them. “He came from across the street out
of the brush. I was hanging my clothes on
the line when I saw him. He had a beard.
He ran out of a thicket across the street and
south toward the bayou. The traffic on Sev-
enty-fifth Street was heavy and he was run-
ning fast so I didn’t get a good look at him.
But he kept looking over his shoulder and
he had a beard. He crossed the railroad trestle
over the bayou. I thought at first the man was
running after a bus, but when I got back in
the house I remembered how strange he
acted and I thought he might be the one...
I spoke to my husband and then I ran out
here... .”

It had been 50 minutes since she’d seen the
man. The detectives radioed for other cars to
patrol the other bridges that span Bray’s
Bayou.

Harrelson, Singleton;:Hopper and three other
officers took up the chase. They entered the
woods south of the bayou. They found fresh
footprints in a muddy ditch. Joe Singleton
and Harrelson went into the woods alone
after they crossed the ditch. A hundred yards
and they:saw him lying face down on the
ground, dirty, wrinkled, unshaven, his hands
stretched above his head.

Joe leveled the sawed off shotgun. “Roll
over and put your hands behind your back,”
he called out.

Ellisor gave up readily. On the walk back to
the patrol car, he said, “I shot the officer, but
I can’t tell you why I did it. I was drunked
up and crazy.”

At headquarters, Joe Singleton wrote out a
routine report that marked the end of the
three-day manhunt. “We arrested Ellisor,
white male, 32, wanted in connection with
this case. Also has been charged with burglary
and felony theft. At time of arrest subject had
$27.32 that came out of burglary case. Brought
subject to homicide and pick-up cancelled.”
Ellisor told about the cold, the hunger, the
fear as he hid in the woods. He hadn’t eaten
for three days. He hadn’t been warm. He
couldn’t sleep. But prison was worse. Prison
was worse than dying or killing. He was like
a caged animal. He would try to beat a long
sentence behind bars. “I’ll plead guilty,” he
said. “I’d rather go to the chair than get a
life sentence.” x
A doctor, treating his healing back wound,

patted a bandage in place. “Warm food, rest,.

a bandage. How do you feel now?”

Ellisor hung his head, ‘his eyes flashing like
a caged lion’s. He puffed deeply on a ciga-
ret and whispered, “Rotten. Just rotten.”

The Story Behind the Texas Girl Racket

continued from page 25

with a code of conduct and even a vocabulary
all their own. They fight and die in a jungle
where money buys a little more than it does
anywhere else.

Last November, a girl who called her-
self Anne Marie Breaux was scared and
nervous because she thought her life was
half gone. Actually, she had only a few hours
to live.

Anne was a little girl with brown hair dyed
brunette, and cupid bow lips. She left a farm
in Illinois and went to Chicago when she was
still in her early teens. Last year she drifted
to Fort Worth with a carnival operating at
Cowtown’s annual Fat Stock Show and Rodeo
in the stockyards.

On November 2, she chatted with a woman
who operated a downtown hotel.

“T’m cutting a wisdom tooth,” Anne com-

plained.
The woman, remembering an old legend,
teased, “That means half your life is gone.”

Anne bit her lip and fumbled for the comb
in her purse. “I’m 22 now. So I guess I'll
only live until I’m 44.’

The woman saw that the girl was - upset.
“Don’t worry, honey.” she said. “There’s
really nothing to it. It’s just a superstition .. .
Let me buy-you a cup of coffee.”

They drank coffee at a nearby cafe. Then
the woman prepared to return to the hotel.

“Ym going to stop at the Tavern,” Anne
said. The Tavern was a few doors down the
street from the hotel. “I’ll be back at the hotel
in 20 minutes.”

Anne never got back.

Nineteen days later small boys found the
body in weeds along the river. It was badly
decomposed, clad only in brassiere and blouse.
It was believed to be the —— of a 30-year-
old woman.

Through a set id false teeth and _finger-
prints, the dead “woman” was _ identified
as Anne Marie Breaux, who was actually only

18 years old. The prints and her photo had

been taken once when she’d been arrested for
vagrancy. Vagrancy is usually defined as “no
visible means of support.” In the Southwest,
it usually meahs prostitution.

On November 28, Anne’s. mother arrived
from Chicago to visit her daughter’s unmarked
grave and try to find out what had happened
to her. “I mailed her clothes to her here from
Chicago after the poor little thing was dead
and I didn’t know it.” She mailed the cloth-
ing to the home of an ex-convict. During a
brief visit last September with her family in
Chicago, the girl had told them she planned
to marry the ex-con. Her mother said her
daughter’s real name was Carol Nigg, that
she’d been baptized in the. Roman Catholic
faith, that she’d attended mass regularly.

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‘, 41, who got his

apsules of nem-
s with the bottle

des, May FRONT
v to the second-
i mother, Mrs,
anooga, Tenn.
tand trial after
ed that he was
ise counsel. At
vman signed a
s mother to

e him money
‘nced to serve
ity and, under
ble for parole

for carrying
iposed on two
g two German
rmany, nearly
Got His Gun,
152). Privates
| Hagelberger,
‘parate courts-
yings of Paul
river, and Lo-
d movie pro-
of both Vig-
‘w confined to
Fort Leaven-
iven final ap-
lower

they arrested
he slaying of
Robert James
° lucky if he

The Man

NT PAGE,
jury just 20

minutes to make his wished-for piece of VIRGINIA STYLE—For the brutal Edwards and _ his alleged
luck a reality, decide that Ellisor must beach slaying of Howard Englander, 29- Richard P. Connors, also 24, \

die in the electric chair, Crosby was shot year-old aircraft mechanic, Ernest Lee up, Connors told police that
and killed and a second patrolman wound-

ed when they stopped Ellisor’s speeding
car. Ellisor, captured three days later by
a posse, couldn’t tell why he killed Crosby
and at the trial based his defense on a
plea of insanity.

wards struck him over the head with ;
lead pipe in a demonstration of “how \

ROLLIE M. LASTER, 21, first of six
convicts to be tried for the murder of
Walter Lee Donnell during the prison riot
at the Missouri State Penitentiary at Jef-
ferson City, has been found guilty and
sentenced to die in the state gas chamber.
(Death Of a Stoolie, January FRONT PAGE,
1955) The chief piece of evidence in the
four day trial was the confession Laster
allegedly made shortly after. the riot, and
later claimed was made under duress:
The state charged that Laster confessed
“because he was proud of himself and
wanted his act known.” When the verdict’
was read, Laster jumped to his feet. “I’m
not guilty,” he said. “I’m getting a bum
rap right into the gas chamber. I didn’t
do it and I don’t know who did.” Said
Laster’s father, “I know he did not do it.
They just want to make an example of
him to the other prisoners,”

automobile which was parked nearby. Con

later date, was chief witness against Ed
wards. Instructed by Judge Samuel S
Leibowitz to return an acquittal verdict
for Edwards if they disbelieved any es
sential part of Connors’ story, the jury
returned the verdict of guilty with
recommendation for mercy, making
death sentence mandatory.

trial for the murder of his English mis-
found guilty by a court in Versailles
in prison. (Too Much Lovin’, June FRON?

death, Jackie’s body was unearthed

workman on a large French estate, on
the rendezvous of Madame DuBarry:
Calm after three years’ imprisonment
Liger told of a quarrel in which Jackie had
fallen on the ground. “What was so hor
rible,” he told the court, “was the sound

A SECOND DEGREE murder indict-
ment has been returned against 17-year-
old Fred Spears for the slaying of his
sister, Patricia, (Boiling Point, April
FRONT PAGE, 1955) Fred made a full coh-
fession after viewing his sister’s body in a
funeral home. A second degree murder in-
dictment signifies that the Bucyrus, O., Edwards, 24, has been found guilty of day. I was seized by anger, I could not
grand jury was convinced the killing was first degree murder by an all male jury control myself, I never knew that I was
not premeditated, carries with it a pos- in Brooklyn. (Don’t Put Me In With — strangling her.” Liger said he then buried
sible life term. Him, October Front PAGE, 1954) When her and hid her personal belongings

remember that all my life. If only she

accomplice,
vere picked
they came
upon Englander while he was fishing off a
lonely Brooklyn beach, claimed that Ed-

kill Virginia style,” then trussed up his
body, dumped it in the ocean. The profits
were $1 from Englander’s wallet and his

nors, who will have to stand trial at a

IF ONLY SHE HADN’T SCREAMED
—Jean Liger, 28-year-old Frenchman on

tress, blonde Jackie Richardson, 25, was
France, and sentenced to serve seven years

PAGE, 1952) Seven months after her

of her skull as she struck a stone. I’]]

hadn’t screamed she would be alive to-

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“I’m ready for the chair,”

said the resigned gunman, far left, after he was arrested by Detectives Singleton and Harrel-

son shown (left to right) questioning him. His scowling brother, Archie, had hoped to rescue Merle from the police.

Deputy Sc
handcuffed

The still warm body of Texas State Trooper Robert
Crosby lay on a cold slab in the hospital morgue. A shot-
gun blast had torn away half of his face. Across town in
a white cottage a pretty widow sobbed: Her world had
ended.

“It can’t be true,”
true.”

A senior trooper, assigned the task of delivering the
death message to Mrs. Crosby, said in a whisper: “I’m

she cried out. “Please say it’s not

sorry, Your husband died in the line of duty. Two other
officers were wounded.”

He realized she wasn’t listening to him. So the old
trooper left. Gently he shut the door behind him, leaving
a woman alone with her sorrow.

On the fringe of Houston, Tex., that Saturday night of
November 27, 1954, two men gasped for breath as they
ran blindly into the darkness. One was wounded; shot in
the back with a .45 slug. As they [Continued on page 73]

Once you kill a Lone Star cop, you can't find cover deep enough to hide yourself

Trooper Rc
car. His par

BY 2

vil nthe

1S n the :t his life,

fe oat

‘oan ssbociatlone ‘routine!
much of the money in eac
the institution is robbed, the we
and the FBI a clear trail to a
oends it. rie pT RS Payee be
‘y bank this month, pictures :$

eras mounted in the bank ~¥@|'s. . Hearn-was shot int a. parole ‘violator; in: 1969... Last: -year,ch
‘st a suspect within. a few. 37 in a southeast Houston pa dine rhe as back on thesbtreets again, and, acc;
yas he.and: bis partner,: Mure ser ording:to- hissown -adm sion ybega

sed of robbing the “Houston 4: tried to arrest Esquivel for heroi} posses- ‘dealing in heroinssau3 ca
7 on Aug. 10 canes of the. ¢ sion. Jordan was wounded fn the pile. was arrested twle

At se. The -week-long trial: was: ame
" oe cowboy books ak he : third : ‘for,-@ -capital“offense,*
> he ran, cash fell out of the, seg ble:death sentence sins, ss fore ais

ie Pe penalty’ for: his’ br. fhe. cea penalty: pros

ash,. police. found: the: aman
ar the institution offi

seg

rivate

endantiin.that: =case, 'could.notibe;tried

because’

“Niller eluded death’

sat e Convicted capital fasileree ea :
<<, |= Quivel escaped the death penalty. twice in’:

& jury assessed it for killing a oxy winger
The eight-man,: fourewoman. jury
State District.Judge -Fred -Hooey's
took just an hour to decide that Esquivel
«42, should die by lethal injection for shoot«*

ing “undercover: narcotics: officer:,Tim
: 2 Hearn to death. hs ae oe ae

‘127 rape;-then:punis yr: ; 3
“ape hn ple Gihers Man in Tp te Be wher a
. sepa tnd istered ira iste ae

s¥-be-in a state:mental: hopptalowas eMo=s killing, ‘Nothing will be achieved by kill-:

S QU uel

é ~ but his Mien our

but Friday his luck.ran out w hens ro wns Seer arron a — 3

be ed T
tie
wet: : paroled in 1964; he was'‘a
cru s in California and given a two-yea
to life ‘prison term for: assaulting a police’
‘officer with a deadly weapon. }n,:cei3ty sare 2
¥< He. spent 30-months in the: pen tentiary

oF.

eae

SOLID

hat‘if this

tlocked: ‘11-to‘one‘on favor of thes ;
ntence for the assaults ath’ pe tty; ie ira ‘they. ae pace
attorney, recalled :thatva’ reodesn Deena nejetsDon Rog Pegs

y “arguing: that: guch‘a’ / ; bs & g 1 as, Sere
the rape victim; now:belleved to's fells fo deler rime Gut sanctfies NS ma:

»;tionally Incapable. of:relivin me ponte Rudy,” he said p"sviescnarnsi§ f
room the attack en her for a. ee of} é “Ch ae eee oe ee ni
Bs Sg Marked : Friday,-B ‘took: taeekeae ime. ys; Sury: foreman? ‘Edward: Chevers,:a ’ i
asure that there would be no retri-: otal the’jury.what he told two others id: everything ;we: whey 5
gainst the strikers..° <4 =ithat Esquivel deserved to die.#:x:#!> case from Esquivel’s side’ but that jurors’ =z

whole thing that’ created’ thi
in “hondler’s acceptance. of. the
8) y was ; the — amnes-
:@] MP Bet Stet fant
alked anit a ‘one-year co
a one-year wage re-opener -in a
- contract. You wanted adviso:
on, they want to call it fact-fi
we'll call it _— I

I's first

pe called out a week
r police walked off, remained on »:
ne of them patrolling around city,;: 4+he plead

celebrated news of the apparent Hearn opened fire on him when he. resise :

nt by throwing each other into as:
- pool on the Mid-America Mall. re ® pocket 2 emit peti aaa

| everyone was jubilant: -+- vg ASAD

nell.”

trolman K.Y. ‘Riba <7 99-year. sentence was not the ‘only ;
Pi 4 ‘ai, 1 ee term ee has received in his z stayed,*pending appeal;: the execution racy

! ume aces chcaes t wen eis Lyi

rErfaune did fou-reveat tetells of Esquive#

go. But: testimony. in:. the; rape: ease’ y. He added, however,: tha foe “A Te
showed that Esquivel; then 17, was one of. investigation of the case wa ony He Hess =e Be
our. teenagers:.who; “attacked sas %
é woman on her way to church.:#-2:
‘+= Esquivel denied: taking ;part “in:
<erime.and added that he o y surrendered
'z, himself to. police because, ‘I knew: thé
| would shoot me like a dog” Af he didn’t. « yf. turned down: another: officer's: offer ‘of a3:
#1’"This; week: Esquivel ‘returned: to’ that :s cigar. He left the courtroom quickly, say="t "=:
same’ theme of blaming the police "tat Justice has ben slved'g was; “propers"s

| 4053;he was Onruffled when the
_k this could have all-been’ avoid-; +3 tury ‘rejected’ story.and returned: at 9”
_' Ken Rooker, 35, who has a desk: jury isejec In iran case and the police:

2 warrant section at police head-'«: ¢
“I think Ct Chandler’ 8 put the clty'.. fhe anounced. are Seles te

jive eaiaes me & sieges ‘Texas for.the 1978: murder-of an 81-yeares

lud ! bout: what: hap-\=
encounter: with the law:25 years =: ons ~ Bee rte ob Sort . j omeatts
pe ice <4
young if did: “Not. specify; his , complaints; sa
#2. tas only that “it was not done the way
it on television.’*# penne
an emo-

tional- Moseley. shook: Jordan’s ‘hand bu

Sn rf Oe ww AS:
a

S nay
eS. eS:

ed self-defense, He claimed that:4;/J Mt

bee Ee ek a eettohadl Adteg Hey Ab eh aa,

RNITURE-SOLID WOOD FURNITURE-SOLID WOOD

i gles: att
ue ASHINGTO
y Court<Justice ; Teeu: Powell: spree

3: Gerald Lee Bodde, condemned to death abe

3 old widow in Houston during a robberysi3i4;
3 Bodde had rented:a room:in the a
u#ment-of the. victim;- Bernice:.Harts ive: *
4 He was. arrested. while trying to collect a
3. ransom from ‘a former-woman: friend, ;
i Mrs. Jean ‘Dodd,’ whose 6-year-old dau
ter. he :had: kidnapped and taken’ to’
pi :4Antonio: pe ae ON fats: whe. baer Tie States
:: be, Bodde’s conviction: in’ Harrls:: ‘County’
$'Court was affirmed. this summer. by, the 2
Texas Court of Criminal Appeals... i!
@ -,_ = He said he would raise sh pone in: uae
j This. U;S,. Supreme Court ‘appeal

i tamer! of selecting the trial jury.:-aaifter

tHe claimed. the .Texas law: is. wanting

“3 because in imposing the death sentence,a:
BY Jury. may consider.a defendant's mete
'b ter only:in relation to his. future

jjousness “and there fs no

i) EXECUTION ALERTS **

TEXAS MONDAY JUNE 2 12:01 CDT LETHAL INJECTION

JAMES PASTER, a white 41 vear old man, is scheduled to be executed in Texas on June 2. He
was sentenced in 1983, but his case has moved quickly through the courts. He is currently
without an attorney.

% TEXAS MONDAY JUNE 9 12:01 CDT LETHAL INJECTION

RUDY ESQUIVEL, a Mexican American, is scheduled to be executed in Texas on June 9. He
was convicted of killing a police officer in Houston (ca. 1978).

%& TEXAS THURSDAY JUNE 19 12301 CDT LETHAL INJECTION

LARRY SMITH, a 29 year eld black man, received a stay from hig May 21 execution date,
but had a new date set. for June 19. He was convicted for the murder of a white man
which occurred during :a hold-up. He had a co-defendant who was tried separately and
received a life sentence. Smith's case was once overturned on a WITHERSPOON issue (jury
selection) but he was reconvicted and resentenced to death in 1978. He had an execution
date for August, 1985, but received a stay pending the LOCKHART decision.

% TEXAS THURSDAY JUNE 19 12:01 CDT LETHAL INJECTION
KENNETH BROCK, a 37 year old white man, is also scheduled to be executed in Texas on
June 19 along with Larry Smith. Brock was convicted in 1975 of the murder of a store

manager during a 1974 hold-up in Houston.

Suggested Action for all the Texas Cases

Contact the Governor and the State Board of Pardons and Paroles.

Gov. Mark White John Byrd
State Capitol Board of Pardon and Paroles
Austin, TX 78711 Box 13401

Capitol Station

512-463-2000 Austin, TX 78711

512-459-2700 512-459-2716
FOR MORE INFORMATION: Dallas Coalition Against the Death Penalty 214-426-5333
%e MISSOURI SOMETIME THIS SUMMER GAS CHAMBER *%* SUICIDE-EXECUTION**

GERALD SMITH, a white man in his mid-twenties, is trying to give up his appeals. He
was convicted in 1981 for the 1980 bludgeoning death of a woman who he claimed had given
him VD. He is currently under indictment for the murder of another death row inmate.

Gerald Smith has vacillated back and forth for several years about giving up his appeals.
(See Alert from October 1984). Earlier this spring, a court found him competent to
give up his appeals and he was given a May 29 execution date. His attorney filed an
appeal and Smith received a temporary stay. There will probably be a new execution

date set in June. and unless Smith can be persuaded to continue his appeals, this would
be the first execution under Missouri's 1978 death penalty statute--in fact, the first
execution in Missouri since 1965.

The number of suicide-executions seems once again to be on the increase, but a number of
inmates have changed their minds--most notably Roger Degarmo in Texas. Letters and
encouragement do make a difference. CAUTION: Please distribute this Alert with discretion.
Lots of media attention can make it much harder for an inmate to change his/her mind.

Suggested Action

CP. 11
Box 900
Jefferson City, MO 65102

FOR MORE INFORMATION: MO CADP (Stephana Landwehr or Martha AuBuchon): 314-635-7239
314-635-9127

UPDATES:

Stays Granted: Texas: John Penry, Alvin Streetman, Harvey Earvin.

Still Pending But it_Stays Hoped For: Texas: May 23, Jose Guzman; May 28, Stcphen Ray Nethery;
May 29, Billy H Hughes; May 30: Jerry Joe Bird; June 3, Wayne East.

Executions:

Texas May 15 Jey Kelly Pinkerton (Pinkerton was 17 at time of the crime.)

Florida May 20 Ronald Straight

|
|
Write: Gerald Smith

bddwitsiGidivvid

he same day of the robbery =
the getaway car,. “*
peer * ™ y ra Convicted capital murderer ‘Rudy Es-
lavit filed in the case, a small ~~
yas found in the apartment of =.

QD ian routinely ~~
»f much of the money in each ».*
f the institution is robbed, the
e and the FBI a clear trail to”
spends it.

‘ity bank this month, pictures
meras mounted in the bank
rest a suspect within a few =

‘his life, but Friday his luck ran out when =
a jury assessed it for killing a policeman. “

>: . State District Judge Fred Hooey’s court ~

‘3, Hearn to death. .
Py

“in a southeast Houston parking pt June 8 :
3 as he and his partner, Murray Jordan, .
{tried to arrest Esquivel for heroi pesnee
’ sion. Jordan was wounded in the back. --
The week-long trial was Esquivel’s

yes
ia

in his cowboy boots : as ‘he sok v 3.1
is he ran, cash fell out of the. ay

ceguf
‘ash, police found the man".
par the institution office and ele

“Juries narrowly voted down assessing th
“penalty for his- participation ina gan
.| rape, then punishable’ by either-a-} ‘Prisons:
agile ‘qterm or electrocution...2+..:2xanges:
imeieeel vie The first trial ended in. a mistrial” with 2
4; jury deadlocked 11 to one on favor of the:
‘2 eae. death penalty. A second jury assessed a
: “ett Sema sentence for the assault. 4:24;
<<’: Theneprosecutor Frank: Briscoe,: ‘now a
es private attorney, recalled. that:a code- :
“7 fendant: in that: case could not:be: tried “<
#7 because the rape victim, now. belleved to
be in a state mental: hospital, -was emo--;
tionally incapable of reliving ira court. ©

5) ‘settle -
nd time a “s}; room the attack on her for a third time.
‘<:..Friday, Briscoe.took the witness stan d’

ensure that there would be no retri “to tell the jury what he told two others in’
against the strikers. =. 1953 — that Esquivel deserved to die. .:

>» whole thing that ‘created this ‘Briscoe did not reveal details of Esquiv-"?
in Chandler’s acceptance of the -- “el’s first encounter with the law 25 years ~:
ts) rg was the word amnes- 80. But. testimony in the rape case-:
ker sai ; - showed that Esquivel, then 17, was one of ..,
tal! gut a one-year contract: four teenagers who attacked -a. young
a om@year wage re-opener in a ‘womanon her way tochurch. -

ar contract. You wanted adviso Esquivel denied taking part. in the’
tion, they want to call it fact-find- ..crime and added that he only surrendered *
we'll call it fact-finding. It’s the ., himself to police because, ‘I knew they
ning.” ‘:, would shoot me like a dog’’ if he didn’t. .

nal Guardsmen, called out a week - ‘This. week, Esquivel returned to that :
er police walked off, remained On : same theme of blaming the police when
ome of them patrolling around city .’ he pleaded self-defense. He claimed that :
d celebrated news of the apparent — Hearn opened fire on him when he resist- .
ent by throwing each other into @-~ ed Jordan's attempt to plant heroin in his °
n pool on the Mid-America Mall. ; “pocket. =»

ot everyone was jubilant: - 7 zi "As in 1953, he was unruffled when the -
ink this could have all been avoid- - ; ‘jury rejected his story and returned a

id Ken Rooker, 35, who has a desk. the polic
he. warrant section at police head- : - conviction. In the rape case and the police

‘s. “I think Chandler’ $ put the city
taal. "
e patrolman K.Y. Riba said, “I
2e] like working. I could drive a

t it»
re : f

.
i

alt

_ tence was announced.

The 99-year sentence was not the only
fie term pepo has received in his
ife

‘

‘L

can

ESQUEVIEL, Rudy, his., lethal injection Texas (Harris) 6-9-1966.
_twice, buf his luck ran out ix @
--quivel escaped the death penalty. twice in ~

The eight-man, four-woman jury in: of

~ took just an hour to decide that Esquivel, .
e officer with a deadly weapon.

Hearn-was shot in the stomach cod face 2 z

was back on the-Streets again, and, ac-
‘Stording to- his own admission, began

third for..a capital: offense. carrying a %
“possible death sentence. -In.1953, two ~:

such a penalty would be proper.’ “=
% ‘Prosecutor. Ed Dodd added that. when

death penalty in-1973,. “they had people: aang

killing,’ he did not flinch when his sen *:

“old widow in Houston during a robbery.

Texas Court of Criminal Appeals. -___ pe.

nak :- jury may consider a defendant’s charac-: =

‘ i neal ee wad ;

See “Man, 21, sentenced to die in
~-¢lerk’s killing in holdup,” Section 1, Page

ph Abe sTOn

‘After being paroled in 1964, he was ar-
irested in California and given a two-year ~
‘to life prison term for assaulting a police

He spent 30-months in the penitentiary —_
there before he was returned to Texas as:
“a parole violator in 1969. Last year, he

“dealing | in heroin. =
He was arrested. twice — for burglary
“and drug possession — and released both .
‘times. on bond. Then he gunned down 4
¢ Hearn. . oe
In asking for the ‘death penalty, prose-. 3
‘cutor Jim Moseley told jurors that “‘if this
“dope-dealing, “two-time ex-convict -does
= not deserve it, then there is no case where

«the. Texas -Legislature reinstated the

ke Rudy Esquivel in mind.”
e/Defense lawyer :Don: Rogers countered

“yby arguing that. such’a punishment. not . 32
# only fails to deter crime but “‘sanctifies’’

killing. “Nothing will be achieved by kill-
ing Rudy,” he said. > * > :--

ya Jury foreman: Edward Chevers: an
aerospace engineer, said afterward: ‘‘We
=did everything we could to look at the «:
‘case from Esquivel’s side’’ but that jurors
“concluded he was lying about what hap-
=tpened the night Hearn died.

“s+ He added, however, that the police

int

= only that “it was not ‘done the way you see
ut on television.” es

-. After. the verdict | was returned, anemo-” si
< tional Moseley shook Jordan’s hand but > ty
" turned down another officer’s offer of a =.
. cigar. He left the courtroom quickly, say= : Nees
jing only that the verdict was < PeOpers:
“Justice has beens =e: " ;

eer = ee wees sg Oe

E-SOLID

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‘High court iti
stays execution :

WASHINGTON (UPI) _ cigas ee
-Court Justice Lewis Powell Friday +.
“stayed, pending appeal, the execution of |. -”
+ Gerald Lee Bodde, condemned to death in =: =
“Texas for the 1973 murder of an 8l-yeare «20

Bodde had rented a room in the apart- ~~
.oment of the victim, Bernice Hartsfleld,
” He was arrested while trying to collect a =.
= ransom from a former woman. friend, \:::°"
Mrs. Jean Dodd, whose 6-year-old daugh- teste
«ter he had kidnapped and taken to San” -
“Antonio.

Bodde’s conviction ‘in Harris County
: Court was affirmed this summer by the

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je: - een.

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He said he would raise several issuesin |...
his U.S. Supreme Court appeal, including : aS ;
-. the manner of selecting the trial jury. ee

‘He claimed the Texas law is wanting? a
‘Shecause i in Imposing the death sentence,.a -

RNITURE-SOLI

ter only in relation to his future danger-. -*

* the state present any evidence to the Jury ao
on this | issue. a Aa Eha

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Pe Piety soi Sctetk 3 is aye ee Bo
4? % “ta 5 KS ‘S ca, on
yt ee oe Sor ls eee Flags ing’
Pt Ee. be te Tee

ie ; Bb , SC Fb

‘Calm; peaceful’ Texas inmate
ting lawman

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_ executed for shoo

HUNTSVILLE, (AP) Rudy Ramos Esquivel, vel’s case were excluded because of race.
‘telling his friends to "be ool” A toy none veh Steg Meld rin Y section wat
ey ade sper-be at carly today for shooting.“ squivel, 50, whose record dated to 1953 when
|_| 1 death a narcotics officer eight years ago. ed _, , he Feceived a 99-year term for participating in a gang ra
| 4... The execution was the first of an inmate who had raised iiruad tines sertieé lena ten ting In a gang rape,
p | fhe Issue of the exclusion of jurors because of. their race He was on parole from the rape conviction on June 8,
| Since the US. Supreme, Court declared. such exclusions _ 1978, when he shot and killed Timothy Hearn, 28, a Houston
i ay cretion no te Me ol Yenc dread whet Police narcotics officer: Seal hed been pasvied trov
nwa.) “Give everybody, friends j ornia after serving time for assa a
@ _ wits the eet the 1h Teas singe the ste and forgery, er ae ry ahi

“7 think it’s a travesty of justice to prolong an execution

ft
&
E

“be for being my friends". ko i

Be Tiles “We love you,* Ester one of the witnesses, said: © this long,” said Jim Moseley, who helped prosecute Esqui-
ee bee*“T love: you,” he lied; as another witness, ~ vel. “Tt has been a long time.” ‘

ancid Longoria, read from a Bible sn yi _/** Robert Hearn, the slain officer’s father, said. Esquivel’s
i -~"Thave fi ~~ execution was justice being done.

| death row cell atthe Texas Departrent of Coos
I Unit to the Walls Unit, 15 miles away, He was calm
’ throughout the ;

inhi ral eal was fred breast of chicken, cor on the

‘ @ob, french salad, jalapeno and pecan pie.
shah uivel, in interview last week, he was framed
“ype arte hong f

“a Esquivel said Heam and another officer were trying to
plant heroin on him when the occurred.
~~ Officers said uivel pulled a gun and started shooting

after he realized Were going to arrest him for pos-

IN RE CAJUN ELEC. POWER CO-OP., INC.

353

Cite as 791 F.2d 353 (Sth Cir. 1986)

Batson, — U.S. at ——, 106 S.Ct. at 1725
n. 25.

The disruptive effect on the administra-
tion. of justice requires scant comment.
Nearly 100 of the prisoners on death row in
Texas belong to recognized minorities.

Four justices expressly stated that Bat-
son v. Kentucky should not be given retro-
active effect. The other five justices did
not address the issue. Applying well-set-
tled precedent, we are persuaded that Bat-
son v. Kentucky should be given prospec-
tive application only in federal habeas pro-
ceedings.

Esquivel’s application for habeas relief is
without merit. No relief may be granted.
Accordingly, no stay pending consideration
of habeas relief is appropriate. The order
of the district court staying the execution
of Rudy Ramos Esquivel is VACATED.

aums

In re CAJUN ELECTRIC POWER
COOPERATIVE, INC., Petitioner.

CAJUN ELECTRIC POWER
COOPERATIVE, INC.,
Plaintiff-Appellant,

Vv.

RILEY STOKER CORPORATION, et
al., Defendants-Appellees.

Nos. 85-3314, 85-3366.

United States Court of Appeals,
Fifth Circuit.

June 9, 1986.

Electric cooperative brought action
against generator manufacturer alleging
delays and deficiencies in construction of
two coal-fired steam generators and seek-
ing damages in excess of $200 million.
Generator manufacturer filed petition to
compel arbitration. The United States Dis-

- trict Court for the Middle District of Louisi-

ana, Frank J. Polozola, J., entered order of
stay of proceedings pending arbitration,
and appeal was taken. The Court of Ap-
peals, Irving L. Goldberg, Circuit Judge,
held that notwithstanding electric coopera-
tive’s contention it did not realize arbitra-
tion clause was contained in contract, arbi-
tration clause was enforceable.

Affirmed.

1. Contracts €93(2)

Except where there is evidence of
traud, misrepresentation, or deceit, one
who signs written contract is bound by its
terms.

2. Evidence €461(1)

Evidence as to intentions of parties
making contract is relevant only if contract
is ambiguous or internally inconsistent on
its face; otherwise, interpretation of con-
tract remains within four corners of writ-
ten document.

3. Arbitration <6

Notwithstanding electric cooperative’s
contention that it did not realize that arbi-
tration clause was contained in contract for
construction of two coal-fired steam gener-
ators, arbitration clause was enforceable,
where arbitration clause appeared under
heading “ARBITRATION” on signature
page of contract’s proposal, directly above
required signatures of electric cooperative
and generator company, and arbitration
clause was not ambiguous.

4. Arbitration <6

Failure of generator manufacturer to
include arbitration on list of clarifications
of, and exceptions to, specifications of elec-
tric cooperative’s contract for construction
of two coal-fired steam generators did not
render arbitration clause invalid, where
there were no requirements or specifica-
tions in contract document from which arbi-
tration clause could be deviation or to
which it could be exception, contractor’s
listing of page containing arbitration clause
separately, both in general index to con-

ESQUIVEL v. McCOTTER 351
Cite as 791 F.2d 350 (5th Cir. 1986)

exercised its peremptory challenges in such
a manner as to systematically exclude his-
panics from the jury in violation of Batson
v. Kentucky, — U.S. ——, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), rendered by the
Supreme Court on April 30, 1986. On June
6, 1986, the Texas Court of Criminal Ap-
peals denied the stay of execution and all
relief requested in the writ application de-
claring:

The Court is of the opinion that no
prima facie showing has been made by
applicant of any violation of Batson v.
Kentucky, supra. Additionally, an ex-
amination of the transcript in the case
reveals that no Spanish-surnamed indi-
viduals were peremptorily challenged by
the State at applicant’s trial.

The sole allegation of constitutional infir-
mity asserted by Esquivel in his present
application for federal habeas relief, his
second such application, is that: prospective
jurors of Mexican-American descent and
those with Spanish surnames were exclud-
-ed from the petit jury by the state’s selec-
tive use of its peremptory challenges, in
violation of the teachings of Batson v.
Kentucky. ,Petitioner’s counsel informs
the court that this allegation is “[b]ased on
information received by counsel from Jim
Keegan, attorney employed by the Staff
Counsel for Inmates at the Texas Depart-
ment of Corrections,” and on an affidavit
of Esquivel filed under separate cover and
not seen by counsel prior to filing the state
and federal habeas applications. Esquiv-
el’s affidavit contains the general state-
ment that the state struck prospective ju-
rors with Spanish surnames. No details
were given.! |

The allegations in the petition and the
general attestation in Esquivel’s affidavit
are not supported by the record of the
state trial, as found by the Texas Court of
Criminal Appeals, confirmed in an examina-

1. The entirety of the text of the affidavit de-
clares:

My name is Rudy Ramos Esquivel, and in
1978 I was convicted in Harris County, Texas
under Cause No. 280748, of Capital Murder.
There were Hispanics and/or. Mexican Ameri-
cans on the jury panel from which the jury
which tried and convicted me was selected, but

tion of the state trial transcript by a mem-
ber of this panel. The state exercised 11 of
its 15 peremptory challenges. None was of
a person with a Spanish surname. The
record reflects that all but two listed a
religious preference of Protestant.? The
defendant exercised all 15 of his chal-
lenges, none of a person with a Spanish
surname. Just over a score of the venire
members were excused for cause, either at
the request of the state or of the defend-
ant, or by the court swa sponte. Three
bore Spanish surnames.

The factual finding by the Court of Crim-
inal Appeals that no Spanish-surnamed in-
dividual was peremptorily challenged by

' the state is presumed to be correct. 28

U.S.C. § 2254(d); Sumner v. Mata, 449
U.S. 589, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981).

[1] Were we to conclude that the rule
of Batson v. Kentucky is to be retroac-
tively applied to collateral federal proceed-
ings, we would agree with the Texas Court
of Criminal Appeals that Esquivel has
failed to make a prima facie showing of a
violation that would warrant an evidentiary

hearing or any other relief. The applica-.

tion contains mere conclusionary allega-
tions, supported only by compounded hear-
say and by an inadequate, generalized affi-
davit. - The application, read in the most
liberal light, would be inadequate to trig-
ger the Batson v. Kentucky rubric, if it
were applicable. -

Council’s explanation that the lack of
specificity in the application, and the specu-
lation and surmise apparent therein, was
caused by non-access to the trial transcript
prior to filing the state and federal applica-
tions. That explanation is inadequate :for
two reasons. The record was available.
The claimed non-access was actually a mat-

all the Hispanics and/or Mexican Americans
were stricken by the State. There were no His-
panics and/or Mexican Americans on the jury
which tried and convicted me.

2. The record before us contains no information
on one of the two, Emma T. Huddleston.

“<

LIAT

350 791 FEDERAL REPORTER, 2d SERIES

Rudy Ramos ESQUIVEL, \

Petitioner-Appellee,

O.L. McCOTTER, Director, Texas
Department of Corrections,
Respondent-Appellant.

No. 86-2411.

United States Court of Appeals,
Fifth Circuit.

June 7, 1986.

Petitioner who had been sentenced to
death for murder of a police officer filed
application for habeas relief. The United
States District Court for the Southern Dis-
trict of Texas, Carl O. Bue, Jr., J., entered
order staying petitioner’s execution, and
appeal was taken. The Court of Appeals,
Politz, Circuit Judge, held that rule of Bat-
son v. Kentucky regarding exclusion of
minorities from jury should be given pro-
spective application only in federal habeas
proceedings. © .

Order vacated.

1, Habeas Corpus €85.5(12)

Even if rule of Batson v. Kentucky
regarding exclusion of minorities from jury
applied retroactively to petitioner’s federal
habeas proceeding, petitioner failed to
make prima facie showing of violation that
would warrant evidentiary hearing or any
other relief, absent showing that Hispanics
were systematically excluded from jury by
state.

2. Courts 100(1)

Rule of Batson v. Kentucky regarding
exclusion of minorities from jury should be

given prospective application only in feder- -

al habeas proceedings. 28 U.S.C.A. § 2254.

J. Thomas Sullivan, Southern Methodist
University Appellate Clinic, School of Law,
Dallas, Tex., for respondent-appellant.

‘Mes 4

Jim Mattox, Atty. Gen., Paula Offenhau-
ser, Asst. Atty. Gen., Austin, Tex., for peti-

tioner-appellee.

Appeal from the United States District
Court for the Southern District of Texas.

Before REAVLEY, POLITZ and
HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

This matter is before the court on the
motion of O.L. McCotter, Director, Texas
Department of Corrections, asking that we
vacate the order entered by the district
court for the Southern District of Texas on
June 6, 1986, staying the execution of Rudy
Ramos Esquivel scheduled for June 9,
1986. After considering the filings by the
parties, the pertinent parts of the state
trial record, the prior opinions. of the
courts, the latest order of the Texas Court
of Criminal Appeals, and the oral argu-
ments of counsel in a conference call with
the court, we conclude that the trial court
erred and abused its discretion in entering
the stay order. Accordingly, for the rea-
sons assigned, we vacate and annul that
order.

Esquivel was sentenced to death by a
jury for the murder of a police officer. His
conviction was affirmed on appeal by the
Texas Court of Criminal Appeals, 595
S.W.2d 516 (1980), and the Supreme Court
denied certiorari, 449 U.S. 986, 101 S.Ct.
408, 66 L.Ed.2d 251 (1980). State habeas
relief was denied after an evidentiary hear-
ing. Esquivel then sought federal habeas
relief, 28 U.S.C. § 2254. Following an evi-
dentiary hearing before a magistrate, the
district court denied the writ. We affirmed
Esquivel v. McCotter, 777 F.2d 956 (5th
Cir.1985), cert. denied, —- U.S. ——, 106
S.Ct. 1662, 90 L.Ed.2d 204 (1986). -

On June 5, 1986 Esquivel filed an applica-
tion for stay of execution and an original
application for writ of habeas corpus with
the Texas Court of Criminal Appeals. He
therein alleged that the State of Texas

352

ter of inconvenience caused or exacerbated
by geographic Separation and the eleventh-
hour undertaking of representation by Es-
quivel’s present counsel. Secondly, the
record belies the allegation of systematic
exclusion of hispanics by the state. No
Spanish-surnamed veniremen were peremp-
torily challenged. The three who were ex-
cused were excused for cause.

[2] We conclude, however, that Batson
v. Kentucky is not to be given retroactive
application in federal habeas proceedings.
Although the test for retroactive applica-
tion of decisions to cases pending on direct
appeal has been subject to recent modifica-
tion, see Shea v. Louisiana, — U.S. —.,,
105 S.Ct. 1065, 84 L.Ed.2d 38 (1985); Unit-
ed States v, Johnson, 457 U.S. 537, 102
S.Ct. 2579, 73 L.Ed.2d 202 (1982), the stan-
dard for retroactive application to cases in
collateral review has remained as elucidat-
ed in Linkletter v, Walker, 381 U.S. 618,
85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and
Stovall v, Denno, 388 U.S. 293, 87 S.Ct.
1967, 18 L.Ed.2d 1199 (1967). Solem »,
Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79
L.Ed.2d 579 (1984).3

“The criteria guiding resolution of the
[retroactivity] question [in collateral] pro-
ceedings] implicate (a) the purpose to be
served by the new standards, (b) the extent
of the reliance by law enforcement authori-
ties on the old Standards, and (c) the effect
on the administration of justice of a retro-
active application of the new standards.”
Stovall v, Denno, 388 U.S. at 297, 87 S.Ct.
at 1970.

In light of these factors, “[c]omplete ret-
roactive effect is most appropriate where a
new constitutional principle is designed to
enhance the accuracy of criminal trials.”
Solem, 465 U.S. at 643, 104 S.Ct. at 1342,
79 L.Ed.2d at 587 (citing Williams v, Unit-
ed States, 401 U.S. 646, 653 & n. 6, 91 S.Ct.
1148, 1152 & n. 6, 28 L.Ed.2d 388 (1971)
(plurality opinion)). The core premises of
Batson are not involved with enhancing the
truth-finding functions of the jury system.

3. These tests are not applicable to cases an-
nouncing a new rule concerning fundamental
guarantees, like double jeopardy or the eighth

791 FEDERAL REPORTER, 2d SERIES

Batson primarily is concerned with the role
of discrete minorities in the polity of the
United States and with “safeguarding a
person accused of crime against the arbi-
trary exercise of power by prosecutor or
judge.” Batson, —.U.S. —, —, 106
S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986).

In support of this latter principle, the
Court cites Duncan v, Louisiana, 391 U.S.
145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),
which it discusses in detail in footnote 8.
The concerns noted are with the allocation
of power and function between judge and
jury. Duncan was held not to apply retro-
actively in DeStefano », Woods, 392 U.S.
631, 88 S.Ct. 2098, 20 L.Ed.2d 1308 (1968).
Likewise, Taylor -v, Louisiana, 419 U.S.
522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975),
forbidding systematic exclusion of women
from jury panels, was held not to apply
retroactively in Daniel v, Louisiana, 420
US. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). -
See Batson, — US. at ——, 106 S.Ct. at
1725 (White, J., concurring). A telling indi-
cation that Batson does not implicate the
enhancement of the accuracy of criminal
trials is reflected by the fact that it was
decided under the equal protection clause.
The Court expressly pretermitted consider-
ation of Batson’s sixth amendment claims.
Id. at —— n. 2, 106 S.Ct. at 1715 n. 2.

In considering the Stovall reliance
factor, the Court has “looked primarily to
whether law enforcement authorities and
State courts have justifiably relied on a
prior rule of law said to be different from
that announced by the decision whose re-
troactivity is at issue.” Solem, 465 U.S. at
645-46, 104 S.Ct. at 1343, 79 L.Ed.2d at
589. This test is frequently shortened to
an inquiry whether the new rule is “a clear
break with the past.” /d. at 646, 104 S.Ct.
at 1343, 79 L.Ed.2d at 589. Batson ex-
pressly overrules Swain [v. State, 380 U.S.
202, 85 S.Ct. 824° 13 L.Ed.2d 759 (1965) ].
It qualifies as “a clear break with the past”
which should not be applied retroactively.

amendment's prohibitions, and limitations on
capital punishment. See Jones v. Thigpen, 741
F.2d 805, 810 (5th Cir.1984),

Metadata

Containers:: Box 37 (2-Documentation of Executions), Folder 12
Resource Type:: Document
Description:: Edward Ellis executed on 1992-03-03 in Texas (TX)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: July 4, 2019

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