Texas, B, 1883-1997, Undated

350 VII, AMERICAN STATE TRIALS.

and still reside there. Knew
where the remains of James P.
Golden were found; some time
in the fall of 1870, a short time
before the fair at McKinney,
saw parties camped near where
the remains were found; there
were two persons; did not no-
tice them close enough to iden-
tify either now; they had a new
thimble-skein wagon, with cover
on the bows; had three horses—
one a gray stallion; cannot de-
scribe the other horse; have seen
the gray stallion in the posses-
sion of John Childers; saw a
black dog; did not speak to the
men; saw they were young look-
ing men; have seen the wagon
since in the possession of Mr. A.
J. Lewis. The place where they
camped was some three-quarters
or a mile off the public road;
the place where the remains were
found is an immense thicket, en-
tirely secluded from public view.

Cross-examined. May be mis-
taken about the wagon being the
same that I saw in Mr. Lewis’
possession; think it is the same;
the gray stallion in the posses-
sion of Mr. Childers is not as
clear now as when I saw him at
their camp.

Henry Southwood. Live south
of McKinney, one-half mile of
Jonathan D. Ballew’s; have seen
prisoner before; some time in the
latter part of the winter of 1870
while he was visiting his uncle,
Jonathan Ballew; some in the
fall of 1870 saw prisoner driv-
ing a two-horse wagon, and go-
ing over “hog wallows” in a trot,
in the direction of Jonathan Bal-
lew’s. The wagon was new, thim-
ble skeined; the wagon cover was
up on the hind bows; he was
driving two horses in the wagon
and leading a gray stallion be-

hind the wagon; there were two
dogs following along—one black
and the other brindle or brown.
Have seen the gray stallion in
the possession of Mr. Childers
since his trial commenced; it
looks like the same horse, and
not in as good order; have seen
the wagon since in the posses-
sion of Mr. Lewis.

William Smittey. Live six
miles south of McKinney; pris-
oner passed my house on 21st of
October, 1870; he had a new
thimble-skein wagon; had two
horses in the wagon and was
leading a gray horse behind; he
was in his shirt sleeves; had
beard all over his face; have seen
the horse in possession of Mr.
Childers; think it is the same
one I saw him leading behind the
wagon; he was coming from the
place where the remains of James
P. Golden was found; was going
toward Jonathan Ballew’s; saw
the same wagon at Mr. Lewis’
house, and in his possession;
prisoner had a gun tied to the
wagon bows.

William Mattox. In fall of
1870, I lost a child; she was
buried on 21st day October. Saw
prisoner on that day passing my
horse; he was driving a thimble-
skein wagon, new, with the cover
hanging on the hind bows. Had
three horses, two in the team
driving, and a gray stallion lead-
ing; think the horse in the pos-
session of Mr. Childers is the one
I saw leading behind the wagon;
knew prisoner before that. Live
between Mr. Smittey and J. D.
Ballew. Have seen the wagon
in possession of Mr. Lewis.

Cross-eramined. Was within
fifty yards of prisoner the day
he passed my house. He had
whiskers all over his face; am

STEPHEN M. BALLEW. 351

not mistaken; he was driving in
a fast walk.

William 8S. Coffey. Live on
the road between where the re-
mains were found and Jonathan
Ballew; saw a man pass, the day
Mr. Mattox’s child was buried,
in a new wagon, with cover on
the hind bows; there was a gun
tied up to the bows; a gray horse
tied behind the wagon; have
seen the gray horse in Mr. Chil-
ders’ possession; it looks like the
same one.

Cross-examined. Think it was
a thimble-skein wagon. Cannot
say prisoner is the man I saw
driving it; he looks like the
same.

Milton W. Coffey. Lived
three-fourths of a mile from
Jonathan D. Ballew’s in the fall
of 1870. Think I have seen pris-
oner before; saw him on the
Rockwall road, going in the di-
rection of where J. D. Ballew
lived; he had a new wagon and
three horses; one a gray, which
he was leading. There was a
gun tied to the wagon bows. It
was on the day Mr. Mattox’s
child was buried—in October
some time. He wanted to know
of me if I knew of anybody who
wanted to buy a wagon; he was
going to Jonathan Ballew’s, who
was a relative of his. He told
me his name was Ballew; had
whiskers all over his face. There
was a gun tied to the wagon
bows.

Randolph Ballew. Am 19
years old; live with my father,
Jonathan Ballew. Stephen Bal-
lew is my cousin. He came to
my father’s house in the spring
of 1870; he said on his first trip
that he came from Missouri. He
brought a bay mare, a red roan
horse and a chestnut sorrel horse.

There was a negro man with him
on that trip. He left the bay
mare and the roan horse at my
father’s house and rode the other
off; we were to keep them until
he returned in the fall. Mr.
Lewis got the bay mare from
defendant when he returned in
the fall, in October, 1870. On
Friday, 21st day October, pris-
oner returned to my father’s
house; he had a two-horse wag-
on with a spring seat in it; it
was a new thimble-skein wagon;
there was a gun tied to the bows;
there were two horses hitched
in the wagon and a gray stallion
tied behind; have seen the gray
stallion since in the possession
of John W. Childers. (Gun
shown witness.) That is the gun
that he had tied to the wagon
bows. He said he had come from
Illinois. He had cooking uten-
sils with him; had an ax, hat-
chet and shovel. It was a rifle
gun that was tied to the bows;
he also had a single-barreled shot
gun in the wagon. (Gun identi-
fied in court.) He told me he
got the shot gun from Ezra
Dougherty. That is a bridle he
left on his second trip. Defend-
ant had with him a trunk, which
he sold to A. J. Lewis, and an
overcoat and a black dress suit.
(The trunk and clothing were
here handed to witness and iden-
tified.) The black dress suit
shown me is the one prisoner
gave me in the fall; he said he
had bought them expressly for
me, as he had promised them;
said he had come to stay all win-
ter, but that he had received a
letter at Sherman from his sister,
and that she was sick and that
he must hurry up to Kentucky
to see her. Said he wanted to
sell the wagon, or trade it for


344 VII, AMERICAN STATE TRIALS.

Golden to get ready to accompany him south on the next trip;
states that he has just returned from burying poor Dougherty
with Masonie honors; how Dougherty clung to life; about his
being appointed by Dougherty’s will, “administrator,” aad D.’s
leaving him, by will, $9,500; and closes by stating to Golden that
he must get ready to come south with him next fall.

John W. Golden. After Bal-
lew came back he seemed very
different from what he was when
he went away; whenever my ab-
sent son’s name was mentioned
he would always let on he had
taken a chill; seemed very ner-
vous and excited whenever my
son was mentioned; always want-
ed a light in his room at night;
said he could not rest without
a light in his room; would get
up in the night and walk the
floor and smoke. Before Ballew
left with my son, he could rest
as well as any of the family.
One day while at dinner pris-
oner seemed to be in a trading
mood, and was livelier than he
had been at any time since he re-
turned from the trip, when some
of my family mentioned my son’s
name and he at once quit eating
and said he had a chill; told me
that the milk must have given
him the chill; he never men-
tioned my son’s name unless some
of the family spoke about him;
always had his pistol under the
head of his bed; he said he had
got so used to having his pistol
that he could not do without it;
kept the pistol under the head of
his bed after he married my
daughter. Did not keep it there
before starting south with my
son. Ballew said at one time
when my son was mentioned that
my son was so well pleased with
the trade and Texas that he would
never farm any more in JIlinois.
After Ballew married my daugh-
ter he wanted me to give him a
farm; said he thought it would

be no more than right that I
should give him a farm as my
son had run off with all his mon-
ey. Told me that if I would
deed him the farm spoken of, he
could raise $2,000 on it and soon
make up his loss by trading down
south. The farm he wanted was
worth about $4,000. (Two pic-
tures shown witness.) Know the
pictures; one is my son James
and the other is Ballew’s; they
had them taken the day before
they left my house to go south;
they wore their beard as in the
pictures at the time of starting;
when prisoner returned he had
whiskers all over his face. Was
present when Ballew was ar-
rested on the charge of murder-
ing my son; was in Quincy, Ill;
he turned very white and trem-
bled so that he could hardly
speak; it was a very cold day,
but great drops of sweat ran
from off his face.
Cross-exramined. My son was
a single man; had never been
married; he was going on 28
years of age; had always lived
with me and worked on the
farm; my son executed his note
to Ballew for $2,000, which was
secured by a deed of trust on his
land in Adams County, Ill. Went
my son’s security on a $5,000
note, given by him to Ballew;
Ballew reported that he had
bought $22,000 worth of goods
in St. Louis; that he had paid
$14,000 down and got time on
the other $8,000 until he sold
the goods; the $2,000 and $5,000
notes were to make my son an

STEPHEN M. BALLEW. 345

equal partner in the goods; that
was half of what Ballew said he
had paid for them; the $1,500
note was given by Ballew to me
for the payment of the horses
he had taken south on his first
trip; sent that note, at the re-
quest of Ballew, with my son for
Ballew to pay off; Ballew
brought the $1,500 note back with
him and said he had paid the
money to my son in Texas; he
had his name torn off the note;
Ballew had what purported to be
a receipt from my son for the
$2,500 which he had promised to
loan me before starting south;
said he had paid the money the
receipt called for over to my son
in Texas; he then wanted me to
give him my note to secure the
2,500, which I did; at that time
I did not notice the date in the
receipt to be in Ballew’s hand-
writing; did not believe any-
thing ‘wrong in the matter; know
the fine boots in court, they be-
longed to my son; my son had
worn them to Kentucky and
back when on a visit there with
my daughter and Ballew a short
time before starting south; that
Was all he had worn them; my
son told me he loaned the boots
while in Kentucky to Ballew to
Wear one time and that Ballew
stretched them until they were a
little loose for him; know the
boots from the manner in which
they are made. Ballew married
my daughter in December, 1870;
never let Ballew know that I was
opposed to his marrying my
daughter; frequently talked about
the matter to my wife; we
thought it best to let our daugh-
ter do as she pleased. The last
time I saw my son alive was
In Quincy, Ill. My son was a
good hand on the farm; he was

a good, “old-fashioned” boy; not
“big-headed;” not very talka-
tive; could always rely upon
what he said; I do not think any
person could influence him to
tell a lie, knowingly; he was very
confiding and believed whatever
his friends told him; he had the
most entire confidence in Ballew
and would do anything he was
requested to do by him.

December 2.

Mrs. Elizabeth Golden. Am
the mother of James P. Golden.
I have known prisoner since the
year before the war closed; my
son and he started to Texas to-
gether on 13th September, 1870;
he came to our house in the fall
of 1869—November—and  re-
mained there until in the month
of February, 1870, when he start-
ed south; he took four head of
horses with him; they belonged
to my husband; he returned from
the trip south some time in May,
1870; heard him talking with my
son about his (my son) going
south with him that fall ; they
were to go south to trade in
stock; do not know much about
the agreement between them. He
returned from the trip on which
my son went with him on 18th
November, 1870; saw something
was the matter with him; he told
me he had been sick; he looked
very badly; one of my little
daughters asked him where Jim-
my was; he said he expected to
find him at home; he seemed
much affected, I shook my head
at my little girl not to disturb
him; his eonduct was altogether
different from what it was be-
fore he went away; he wanted
a light in his room at night and
had his pistol at the head of his
bed; asked him why he kept his
pistol there, and he said he had


346 VII. AMERICAN STATE TRIALS.

traveled so much that he did not
feel right without it. He would
always take a chill whenever we
commenced talking about Jim-
my, my son. I made all the un-
derclothing of my son; he took
away a black suit, a suit of yel-
low mixed, and a light suit; the
yellow-mixed suit he bought in
Quincy some ten or_ twelve
months before he started south;
my son had a coat which pris-
oner gave him; it was a jeans
coat—sack; put a new piece of
lining in the back of it, over the
old lining, and put new binding
on over the old binding; would
know the coat if I saw it; have
with me some of the same kind
of lining. That is the coat; here
is the lining I put on for my son,
and you see the binding. My
son took with him a pair of blue
drilling pants, three muslin
shirts, which I made myself.
These are the shirts I made for
my son, and which he took on
the trip south; have not seen
them until now since my son
left. These were shirts that had
not been obtained by Mr. Ewing
when in Texas. (One of the
shirts thus described by witness
was found on the remains and
had been taken to Illinois.) The
drawers and other clothing found
with the remains I identify as
that of my son; the socks I iden-
tify. (All the other clothing
that her son had taken along was
accurately described by witness
—piece by piece—and_ then
shown to her, which she recog-
nized at once, and testified posi-
tively as that of her deceased
son, which together with clothing
belonging to her husband which
she had brought along on pur-
pose, made at the same time and
in the same manner, were shown

to the jury, and found to corre-
spond precisely. The skull of
deceased was here shown to wit-
ness and she recognized it as
that of her son, having previous-
ly given a description of the
teeth, by which she identified it.
Mrs. Golden stated that she was
feeling very weak and the cross-
examination was postponed un-
til another time.)

Dr. Thomas W. Wiley. Am a
practicing physician and sur-
geon; have made anatomy and
the construction of the human
frame a study; examined the re-
mains that were said to be those
of James P. Golden, on 13th of
February, 1871; the bones were
lying where they were said to
have been found, some three or
four miles south of McKinney,
in Collin County, Texas. They
were scattered over some ten or
fifteen feet of ground; I found
a majority of the bones; all the
larger ones. At the time I made
the examination there was a lit-
tle flesh on one foot. The re-
mains are those of a male per-
son who was, in life, something
near five feet eight or ten inches
in height; placed the bones to-
gether and formed that opinion
of the height of the man when
living. (Skull shown witness.)
Am certain this is the skull that
I examined last February; was
summoned to make the examina-
tion at that time by the coroner
who held the inquest; my exami-
nation was for the purpose of
determining the manner in which
the person came to his death;
give it as my opinion that the
person was shot, the ball enter-
ing the right temple and com-
‘ing out a little lower down on
the opposite side of the head.
There must have been as many

STEPHEN M. BALLEW. 347

as three or four heavy blows
made on the skull to make
the fractures that are in it; they
could not have been inflicted by
the person himself; the blows
must have been with some heavy
instrument; either with the butt
of a gun or some other heavy
substance; such fractures would
produce almost instant death; I
give it as my opinion that the
fractures in this skull caused the
death of the person; from the
appearance of the remains the
person must have been dead some
three or four months; the vul-
tures or beasts had eaten nearly
all the flesh from his bones; the
bones of one of the legs were
still together at the knee-joint
when TI examined them; the
place where I examined the re-
mains was a very secluded one;
was in such a vast brush thick-
et that we had to cut a path
through before getting to them
without great difficulty.

Cross-examined. Do not think
any of the scalp was on the
skull; the breaks in the skull
could not have been made after
the scalp was off without show-
ing marks made by the instru-
ment; the skull did not show
such marks; there was blood on
the hair that was found with the
remains; think there was blood
on the clothing; though there
had been several rains and the

clothing was very dirty and
faded.

George W. Simpson. Live 16
miles north of McKinney, on the
road leading from McKinney to
Sherman; have seen prisoner be-
fore, in the fall of 1870, a few
days previous to the fair at Me-
Kinney, at my gate. My house
18 what is called “Buckhorn Tav-
ern;” there was a young man

with him; they were traveling
in a new wagon with a cover on;
they had two horses hitched in
the wagon and a gray stallion
tied behind the wagon; he had
whiskers all over his face; they
looked to be three or four weeks
old. He told me his name was
Ballew and asked for and got a
drink of water. Asked me where
they could find a good place to
camp; told him on the east fork
of Trinity River, which was two
and one-half or three miles
ahead. They were coming from
Sherman and going in the di-
rection of McKinney; they
started on and soon after they
left it commenced raining. Just
before they started from my
house, while prisoner was talk-
ing with me, the young man that

-was with the prisoner said:

“Ballew, let us go.” While talk-
ing with prisoner asked him
whether he knew John Ballew
of Kentucky, who was an old
friend of mine. He said he had
an uncle named Jonathan Bal-
lew, who lived about six miles
south of McKinney. The young
man that was with defendant
was a little taller, and not quite
so heavy as defendant. (Here
two photographs were handed to
witness—one prisoner, the other
Golden.) This is the picture of
the young man that was with
him (holding up the picture of
James P. Golden.) Golden would
have weighed some 145 or 150
pounds; think he had beard over
his face; they looked to be three
or four weeks old; were very
thin on the face. Next time I
saw the defendant was when
Sheriff Bush was bringing him
from Illinois, in the month of
June last; then recognized him
and told him about stopping at


348 VII. AMERICAN STATE TRIALS.

my house the fall before, when
he said I must be mistaken in
the man. Was within six or
eight feet of Golden and could
see him very well.

Cross-examined. Was thresh-
ing wheat when defendant was
at my house; I was after water
when I saw him and Golden;
might be mistaken as to the pris-
oner being the man; he wore
his whiskers differently then than
now.

Henry Haning. Live in the
north part of the county, about
three miles south of “Buckhorn
Tavern,” and near the Trinity
River. Cannot say positively
that I have seen prisoner before
J] saw him in court; he appears
to look natural to me; am cer-
tain I saw him on the east fork
of Trinity in the fall of 1870;
think it was in October; there
was a young man with him; they
had a new wagon with a sheet
over the bows; had three horses;
they were working two to the
wagon and had the gray tied to
the wagon. Had a conversation
with one of the young men who
called himself Golden. The de-
fendant is better dressed now
than he was then, and is whiter.
(Golden’s picture shown wit-
ness.) This is a picture of the
young man I talked with, and
who ealled himself Golden; he
would weigh about 150 pounds;
it was in the evening I saw them;
T was at work within fifty steps
of where they stopped. Golden
asked me if I would take a slut
and take care of her for him;
told me he would give me $10
to do so; told him I would take
her and not charge him any-
thing. In the evening after I
quit work I went to the wagon
and got it. He told me his full

name, James P. Golden, and re-
quested that I should take it
down, which I did. Said he lived
in Adams County, Ill. Told me
the man that was with him was
named Ballew. Gave him my
address on a slip of paper and
he wrote it down in a day book.
He told me the slut’s name was
“Prince,” and that she was fine
stock. He said they wanted to
go to the fair at McKinney; they
had two other dogs along. The
next morning when I went to
work they were gone; the wagon
tracks were in the direction of
McKinney. John W. Golden de-
scribed the slut to me before he
saw her at my house; he told
me her name, which was the same
as that given by young Golden.
Mr. and Mrs. Golden were at my
house about a week ago; they
were on their way from Illinois
to MeKinney. The slut that
young Golden left with me rec-
ognized them as soon as she saw
them, and ran and jumped up
against Mrs. Golden.

Harrison Massey. Live two
miles south of “Buekhorn Tav-
ern,” kept by Mr. Simpson. Saw
prisoner | camped on east fork of
Trinity, in the fall of 1870, some
14 miles north of this place.
Henry Haning and Joe Phillips
were with me. There was a
young man with prisoner; they
had a new wagon and cover on;
three horses, one of them was a
gray stallion; have had a horse
pointed out to me now in the
possession of Mr. Childers; looks
like the same gray horse. The
young man that was with pris-
oner went to Mr. Haning’s to
take a slut; while he was gone
Mr. Phillips and I remained at
the wagon with prisoner; Mr.
Phillips was talking with him; I

i
#
‘3

STEPHEN M. BALLEW. 349

sat and listened at them talk;
prisoner said he was on a trad-
ing expedition to this country;
said he wanted to get to McKin-
ney the next day to attend the
fair. That is the picture of
prisoner; he had whickers all
over his face when I saw him.
(Another picture shown.) That
is the picture of the young man
that was with the defendant, and
took the slut up to Mr. Han-
ing’s.

Cross-examined. I saw the pic-
tures shown me here, last Mon-
day; Col. Ewing and District-
Attorney Smith handed me these
pictures while in the room con-
versing with the witnesses, and
asked me if I recognized either
of them; told him I did, one as
that of prisoner, and the other
as that of the young man I saw
with him in the fall of 1870.

Joseph Phillips. Live near
Henry Haning’s, two and one-
half or three miles south of
“Buckhorn Tavern;” was living
there in fall, 1870. Have seen
prisoner before; just before the
fair at McKinney, in the fall of
1870; he was camped on the
east fork of Trinity. There was
a young man with him who went
up to Mr. Haning’s house to
take a slut. Talked with pris-
oner while the young man
that was with him was gone; he
told me he was going to the fair
at McKinney; had a new thim-
ble-skein wagon and three horses,
one of them a gray stallion. Pris-
oner had more beard on his face
then than now; the young man
with him was of light complex-
ion; had a little beard over his
face; prisoner told me his name
was ‘Ballew. Was present next
morning when they started off;
Rallew said, as they atarted,
“Take the gun, Jim; you might

see something to shoot.” The
gun was a small, single-barreled
shot gun, brass guards and brass
at the butt. (Gun shown wit-
ness.) That is the gun. They
had two other dogs with them
besides the one left at Haning’s;
they had the gray stallion tied
to the wagon, leading, when
starting off.

Joseph J. Chastian. Live
in McKinney; am _ postmaster;
have seen prisoner at two
different times; once during
October, 1870; he came there to
mail some letters; he also in-
quired for letters; he told me
he was on a trading expedition
to Texas; said he was camped
on the creek; said he left his
partner in camp and must hurry
back. The other time was the
winter before; he then said he
was on a visit to see his uncle,
Jonathan Ballew. (Several let-
ters shown witness.) They are
the postmarks of the McKinney
Postoffice—Oct. 20, 1870; think
that was about the time defend-
ant was at the office.

John E. Howell. Live in Me-
Kinney; was merchandising here
in the fall of 1870; saw prisoner
in October, 1870; he came into
my store and I thought he was a
drummer. He said he had been
in the goods business himself. It
was about time that the fair was
to be held that I saw him; do not
remember how he was wearing
his beard.

Cross-eramined. May be mis-
taken about prisoner’s being the
man; take him to be the same
one; he did not remain in the
store long; there was no person
with him.

December 4, 1871.

James Ware. Was living near
McKinney in the fall of 1870,

ooked for pubic in-
zan a parade of ex-
linked Banda to the
itific evidence.
rom Dallas testified
<elly Banda’s cloth-
‘ype as that of the
ness told of a pubic
hat was not the vic-
same in appearance
nples. The witness
pubic hair was un-
n whom the defense
2 murder.
npleted its case, the
man who attorneys
link to the murder.
hammered away at
en got into a shout-

ou went down there
in, and Kelly Banda
time,’’ the defense
t the witness. The
lied the accusation.
d burned his blood-
claimed by the de-

alled its own foren-
d the jury that hair
is a ‘‘pseudo sci-
dence is ineffective
ne in a crime.
yn argunfents, the
-d a verbal: attack
was the defense’s
ger on the witness
The district attor-
2 witness ‘‘was in-
to his armpits,’’ but
nce that tied Banda
disputable, includ-
defendant’s finger-
: victim’s type. The
a as a “‘cold-blood-
iller,’’ and argued
ing down a smoke
isations of the man
1 the victim might
‘om her rental prop-

tuck to its conten-
not Banda, was the
is a murderer loose
ight now, and con-
von’t change that,”’
Id the jury. But the
th the defense theo-

hree hours to return ©

ly Banda guilty of

2d was the punish-
sted killer, which
imprisonment or
‘ction. Both sides

called medical witnesses who were con-
sidered experts at criminal psychoanaly-
sis, and each took opposite views on
whether Banda would be ‘‘a continuing
threat to society.’’

In order to gain a death penalty, it was
necessary for the state to convince the
jury that the convicted killer would be a
continuing threat; otherwise, the jury
must assess a term of life in prison.

The state called a Dallas psychiatrist
who’d been nicknamed ‘‘Dr. Death’’ be-
cause of the numerous capital murder
trials in which he testified for the state.
The psychiatrist testified that Banda
“‘absolutely’’ would continue along the
violent path started with the vicious mur-
der of Merle Laird. He pointed out the
Banda’s imprisonment twice before on
separate felony charges, auto theft and
burglary, ‘‘apparently had no effect in
terms of rehabilitation.’’

The expert, who the state said had
interviewed 11,000 people charged with

various criminal offenses, said the fact -
‘that the victim had been strangled made

Banda different than other killers in

. terms of greater violence.

The defense attacked the medical wit-
ness’ credibility, pointing out that the
doctor had testified in 103 capital murder
cases as a state witness and was being
paid a high hourly fee.

The defense called its own expert,

who formerly had worked for a state pris-

on system at the job of classifying pris-
oners according to their potential for vio-
lence. In his opinion, said the witness, he
didn’t think Banda could be classified as
violent. He said that, typically, burglars
or thieves continue in those offenses in-
stead of violent crimes.

He also described what he called ‘‘the
aging out process,’’ in which prison in-
mates are less likely to commit crimes as
they get older and have been confined for
years behind walls.

But once again the jury found in the
favor of the state. The jury deliberated
only 35 minutes before deciding Kelly
Banda would be a continuing threat to
society and returned a verdict mandating
the death sentence.

The death sentence is on automatic
appeal to the Texas Court of Criminal
Appeals at this writing. Banda has been
transferred to the Texas Department of
Corrections, where he is confined on
Death Row.

Investigating officers and the districts
attorney’s office said there was insuffi-
cient evidence to bring a murder charge
against the witness who had told Kelly
Banda about Merle Laird as a prospect
for money. The man’s involvement in
the case was under continuing investiga-
tion, but no charges had been brought at
this writing. e

Laser Beam

(from page 26)

Officer Engel, the sheriff's department
had been notified and asked to detain the

person making the report. The man who —

made the report was cooperative and
agreed to wait for the city police.

The man had stopped by the home for
a visit and discovered the body. The man
who lived there was a very good friend of
his, he told investigators. f

The homeowner’s name was John Da-
vis. Everybody called him ‘‘John T.’’
for short, the witness told police.

Some of John’s friends and relatives
came over to the witness’ house at about
9:15 p.m. for a visit. They stayed for a
short time and then left for about a half-
hour. When they returned, they were vis-
ibly upset, said the man who'd found the
body and reported it.

**They were extremely upset,’’ he told
sleuths. ‘‘One was kind of crying or sob-
bing and another came in and didn’t say
hardly anything at all. Another woman
was sniffling but comforting the first.
And the first woman kept saying, ‘Oh

be %
¥

God,’ and mumbling to herself.

“I asked what was the matter. And
she just, you know, kind of teary and
mumbled again. And I asked again,
“What’s the matter?’ And she was kind
of bawling. And she says, ‘Go over to
the house.’ And I says, ‘What’s the mat-
ter?’ She says, ‘Oh, God, there is some-
thing in the house.’

“*And I asked, ‘What’s in the house?’
And she says, ‘Just please, just go over.’
And I said, ‘Well, what’s the matter?’
She started just going to pieces on me
then. She got to where I couldn’t make
heads or tails of what she was trying to
say and I looked at the other woman and
she started crying.

“I then went over to the young man
who’d come in with them. He was just
staring at the wall and he was kind of like
white as a ghost and staring at the wall.

* And I knelt down to him and I asked him,

I says, you know, ‘What’s going on?’ He
says, ‘Go over to the house.’ And I says,

‘What’s’ the matter?’ And he says,

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Front Page Detective 69

|


verely beaten around the head by the
assailant’s fists, the pathologist’s report
disclosed. ‘‘She put up quite a fight,’’
Sheriff Proctor said grimly.

After hearing evidence presented by
the sheriff’s department and Texas
Rangers, a Hamilton County grand jury
returned an indictment of capital murder
against Banda, setting the stage for the
first capital murder trial in the county’s
history. Capital murder in Texas is pun-
ishable by either life in prison or death by
lethal injection. Capital murder is mur-

_ der committed during the commission of

certain other felonies, such as burglary
or rape. The indictment against Banda
alleged the crimes of aggravated sexual
assault and burglary of a habitation.

. As the trial neared, defense attorneys .

appointed by the court sought a change
of venue, which was denied by the
judge. Selection of a jury began in the
220th State District Court in Hamilton in

early March 1987. It took two weeks to

choose a jury of seven women and five
men.

What lay ahead in the next few days of
the heated murder trial would remind
some courtroom observers of an old
‘*Perry Mason’”’ TV drama, in which the
blame for the murder is directed at anoth-
er person other than the one on trial in the
courtroom.

When the case came to trial, the state
would have to fight a solid effort by
defense attorneys who tried to show
Laird’s killer was another man other than
the one on trial for the crime.

The state’s case started with testimony
of the young woman whom Banda had

tried repeatedly to kiss during the Satur-

day night party at his home a few hours
before the violent death of Merle Laird.
Other witnesses included his relatives,
who told the jury of the terror-filled ride
to Commanche during which Banda had
bragged of two murders he claimed were
guided by the devil. —

The state next called the man who had
told investigators that he had mentioned
Mrs. Laird when Banda had told him he
needed money. The man also had told of
accompanying Banda to the Laird home
and being present when the defendant
attacked and killed the woman.

However, the witness now did a com-
plete reversal, denying his previous oral
statements made to officers and the
grand jury.

District Attorney Andy McMullen
bore down on the witness, reading to him
statements he had made to Texas Ranger
Cummings and Chief Sheriff’s Investi-
gator Jim Buster.

“*Did you tell Ranger Cummings that

68 Front Page Detective

a ceehetsinsiomminiehintpelionoe

the lady came to the door and Kelly hit
her?”’ ’

The witness answered flatly, ‘‘No.’

**Did you tell the Texas Ranger that
you went around the house looking for
valuables? Did you tell the ranger about
Kelly having sex with the woman?”’

Again came denials.

‘If you said you said those things,
he’d be lying?’’ pressed the prosecutor.

‘*Sure would,’’ the witness replied.

Shown a transcript of his testimony
before the grand jury, the man denied
having said what was attributed to him.
He said the court reporter present in the

. grand jury room made a mistake.

Another witness also had a lapse of
memory when called to the stand and
questioned about a.statement she had
previously given to authorities. It was
the relative who had given Banda the ride
to Commanche after he showed up at her
house. She denied telling officers that
Banda had said he killed a woman and
had been directed by Satan. The woman:
continued to deny all remarks she earlier
had attributed to the defendant, includ-
ing his claim that he had killed a second
person.

The prosecutor and the judge warned
both witnesses that they could be prose-
cuted for perjury. When the woman
seemed not to understand the explana-
tion, the D.A. gave her until the next day
to have her attorney explain the gravity
of a perjury charge.

During cross-examination, the de-
fense attorney ripped into the witness
who had claimed he was with Banda
when the slaying occurred, then denied
it. He accused the witness of killing
Merle Laird himself and of rummaging
through her house in search of valuables.

**You told Ranger Cummings that
Kelly needed money,”’ the defense attor-
ney declared. ‘‘But it was you who need-
ed money.’’ The witness denied the ac-
cusations leveled against him.

The courtroom buzzed when the judge
adjourned for the day, with the possibili-
ty raised by the defense that the key wit-
ness on the stand was the killer and not
the man on trial.

After conferring with her attorney, the
woman relative who had recanted her
original statement admitted from the
stand that her first statement was true,
and the defendant had made the remarks
she attributed to him. Her testimony
came after the. state had promised her
immunity from prosecution for perjury if
she told the truth.

Next, the state introduced the woman
jailer to whom Banda had made the state-
ment about having killed someone at the

time he was being booked for pubic in-
toxication. Then began a parade of ex-
pert witnesses who linked Banda to the
killing through scientific evidence.

Forensic experts from Dallas testified
that blood found-on Kelly Banda’s cloth-
ing was the same type as that of the
victim. Another witness told of a pubic
hair found on Laird that was not the vic-
tim’s, that it was the same in appearance
as Banda’s hair samples. The witness
also stressed that the pubic hair was un-
like that of the man on whom the defense
was trying to pin the murder. -

After the state completed its case, the
defense recalled the man who attorneys
had earjier tried to link to the murder.
The defense lawyers hammered away at
his testimony and then got into a shout-
ing match.

‘*The truth is that you went down there
and killed that woman, and Kelly Banda
came up about that time,’’ the defense
attorney bellowed at the witness. The
witness heatedly denied the accusation.
He also denied he had burned his blood-
stained clothing, as claimed by the de-
fense.

The defense also called its own foren-
sic witness, who told the jury that hair
sample comparison is a ‘‘pseudo sci-
ence,’’ and such evidence is ineffective
in implicating someone in a crime.

During summation arguments, the
prosecution launched a verbal attack
against what it said was the defense’s
effort to put the finger on the witness
instead of on Banda. The district attor-
ney admitted that the witness ‘‘was in-
volved in the case up to his armpits,’’ but

he stressed the evidence that tied Banda .

to the murder was indisputable, includ-
ing blood beneath the defendant’s finger-
nails that matched the victim’s type. The
state described Banda as a ‘‘cold-blood-
ed, blood-sucking killer,’’ and argued
the defense was ‘‘laying down a smoke
screen’’ with the accusations of the man
who had told Banda the victim might
have money around from her rental prop-
erty.

But the defense stuck to its conten-
tions that the witness, not Banda, was the
actual killer. ‘‘There is a murderer loose
in Hamilton County right now, and con-
victing Kelly Banda won’t change that,”’
the defense attorney told the jury. But the

_ jurors didn’t agree with the defense theo-

ry. It took them only three hours to return
a verdict finding Kelly Banda guilty of
capital murder.

Now what remained was the punish-
ment for the convicted killer, which
could be either life imprisonment or
death by lethal injection. Both sides

called medical wit
sidered experts at «
sis, and each too
whether Banda wc
threat to society.”
In order to gain i
necessary for the
jury that the convi
continuing threat;
must assess a tern
The state called
who’d been nickna
cause of the num
trials in which he
The psychiatrist
‘*absolutely’’ wou
violent path startec
der of Merle Lair
Banda’s imprison
separate felony cl
burglary, ‘‘appare
terms of rehabilit:
The expert, w!
interviewed 11,00
various criminal «

‘that the victim ha:

Banda different

. terms of greater \

The defense att:
ness’ credibility,
doctor had testifie:
cases as a State v
paid a high hour!

The defense c

Laser

Officer Engel, th
had been notified
person making th
made the report
agreed to wait fo
The man had st
a visit and discov
who lived there w
his, he told inves
The homeowne
vis. Everybody ¢
for short, the wit
Some of John’
came over to the \
9:15 p.m. for av
short time and th«
hour. When they 1
ibly upset, said th
body and reporte
‘*They were ex
sleuths. ‘‘One we
bing and another
hardly anything
was sniffling bu
And the first wc


ris y remael boy | rae ee

in \._¢imary purpose,
100,000 will be added [to
devt before the New

t he believes tn thee :

tem of libert, ~ Mr
the administration.
Om: has “imitated the
d vocal technique of
n revolution In the
gislntive stages they
forniulas of revolu-
ng ‘must emergency
power.’ “to ave the
c ctamp" legislatures,
opaganda, and sup-
press, free abeec hand
rivp
S not teached these
Mr Hoover decidred.

iL Column 6, Please)

udvers
t Selected

Chesen For Live-
ging Team And

Dairy Lontests;
@ Fert Werth

“ “griculture ani-

-s from Texas

nad were selected

“the tenth, announced

Were: Leldo Hud-
oh; Raymond King.
C. Mitchell. Lockney,;

on
‘ ed. neepceengy il
The car sheriff, Cook, @ Roy Line,
nell grocer, left immediately with the suspect for
an unannounced jail. [t was believed that they were
taking Banks'to Big Spring and that later he would
be lodged at Lubbock.
The foregoing account of the arrest was given by
G. Bert Davis, O’Donnell druggist, who was a mem-
ber of the posse. Other members of the searching
party were DeWitt Knox, O’Donnell druggist,

Andrew Jordan of Wells, and Mr. Cash, a Wells .

teacher, and Allen (Bud) Davis, also of O'Donnell. c
G. Bert Davis is the former tent showman.

Officers of the South Plains first learned of the ay

arrest through a report sent to Lubbock by W. M.

Lee, nightwatchman here.

The arrest, it was said, occurred. about a half
mile east of the Wells store.

It was believed Banks was not carried through
Tahoka to Lubbock immediately because of possible
mob violence hére.

Wells is a farming community. A gin, the store,
and | a school building a are picuated there.

« « x. «
‘HE Old West rode again esterday and last night—
grim. tight-lipped men with steel ey es—but. not after —
a horse thief.

Instead, armed to the teeth, 500 of them. they hunted =
through broad ranch lands for a negro murderer, Elmo.
Banks. who in a jailbreak at Tahoka Friday night fatally
wounded Deputy Sheriff F. E. Redwine, 58, with the .
officer's own gun, and fled. ‘

Redwine. former sheriff of Lynn county, ‘died at 3: 05
o'clock Saturday morning in Lubbock sanitarium, where .
surgeons found his body was pierced nine times by five
slugs. At 2:30 o'clock his pulse was stronger than When
the officer left surgery. which followed a transfusion” of
biooed supplied by a son.

Tracks Of Man Are Being: Followed set ar

Baffled for hours in their seaweh for a clue: to thie

»

negro'’s direction of flight. word passed around electric- ~~ ~3

all¥ early Saturday afternoon that tracks leading from a
culvert under a railroad near Tahoka had been’ found,

and authorities snapped their jaded oreanizahan into rer

_tnewed and energetic hunt.

At 1 o'clock the trailers were well under way. tracks |
led to a dry lake and then took a direct line toward the
Loop communit¥ and.toward Hobbs, N. M.."both of which -

as ee

-

places officers had reasons to believe would offer tempo- . ;

rary haven forthe negro. A friend’s house at Loop might
provide food, and a Hobbs negro friend has a new auto-.
mobile, it was explained here..

The posse, Which now was composed of men in auton
mobiles, men on horses. and men on foot, began dividing»
forces—guarding against possibility of being thrown off.
trail by possible other tracks and through subterfuge.

The sandhills were struck and great splotches of hardy ap

“shinnery”. Before the sparse th possemen scarcely.

halted their ia nat despite elpcnliey danwer. minim is


BANKS, Elmo, black,

elec,

Bs

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884 _ Tex.

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or not, based on what you've read
and maybe something you've heard
from discussions at Fort Hood with
people that you work with, whether
you’ve formed an opinion as to the
guilt or the innocence of this man?

An opinion. I don’t know whether
it would be an opinion—an assump-
tion I would say—assuming—I
don’t know.

Well, now, I don’t know that it real-
ly requires; I think, whether you call
it an opinion or assumption. Let
me ask you this. Would it require
some evidence for you to set aside
that assumption or feeling that you
have?

I’m not a lawyer but it seems to me
like if he was found with a weapon
that would be pretty conclusive in
my way of thinking. If it was
proved to be the weapon that shot
the policeman.

I understand what you’re saying.
I don’t know.

And the point I’m trying to make,
of course, is the State has gone over
when we say the State has the bur-
den of proof, what does that mean
to you?

It means they have to prove it be-
yond a doubt.

Alright, now, sometimes we have
individuals and everyone’s opinion,
of course, they’re entitled to their
opinion and sometimes a person’s
opinion agrees with the law and
sometimes it doesn’t. Sometimes
their feelings agree. We can’t help
but have feelings established about
something and the only thing that
I'm trying to get at is because of
what you read and because of this
feeling that you have, for example
about the gun, would you require
the defendant to produce evidence
of his innocence to you before you
could set aside these feelings?

596 SOUTH WESTERN REPORTER, 2d SERIES

“MR. EADS: I'll object to the
question, Your Honor. He's said
that he would make the State prove
the burden of proof, your Honor.

“THE COURT: Overruled. An-
swer the question.

I think the State would have to
prove it.

tay You still would agree
that you have formed some sort of
feelings about this case?

As to the guilt or innocence?
Yes, sir.

An opinion, yes. I have formed an
opinion but now whether it’s been
proven I don’t know whether I’m
correct or not.

* * * * *

Let me ask you this, sir. If you
were serving as a juror on a crimi-
nal case, not necessarily this case
and at the close of evidence you felt
like the defendant was probably
guilty but you weren’t sure beyond
a reasonable doubt, how would you
feel compelled to vote in the jury-
room? ,

You would have to prove to me that
he was guilty as a juror before I
would say guilty.”

BAREFOOT vy. STATE Tex. 885
Cite as, Tex.Cr.App., 596 S.W.2d 875

the juror can lay aside his impression or
opinion and render a verdict based on
the evidence presented in court.’ Id.,
at 723, 81 S.Ct. [1639] at 1642.
“At the same time, the juror’s assurance
that he is equal to this task cannot be
dispositive of the accused’s rights, and it

remains open to the defendant to demon-

strate ‘the actual existence of such an
opinion in the mind of the juror as will
raise the presumption of partiality.’
Ibid.”

421 U.S. at 799, 800, 95 S.Ct. at 2036.

[9] The voir dire of Smith fails to show
that he would be influenced as a juror by
any opinion or prejudice or by anything he
may have heard or read about the case.
The trial-court did not err in overruling
appellant’s challenge for cause based on
Smith’s alleged opinion as to appellant’s
guilt. Freeman y. State, supra.

Appellant’s contention that Smith was bi-
ased against the minimum punishment for
murder is based on the following voir dire
examination by defense counsel:

“Q. And murder being defined the same
way, the knowing and intentional
killing of another human being. Do
you feel like that in a murder case
that you could consider as little as
five years as a punishment?

changes that they just could not go
along with what the law says and
give somebody as low as five years
for the intentional and knowing kill-
ing of another human being.

I think my answer would have to
depend on the facts of the case in-
volved, would it not? That’s a hard
question for me to answer.

I understand, sir. I’m just—

I’m not trying to hedge, I just don’t
know the answer.

I understand what you're saying.
And as the judge said we're not
talking about a particular case, but
we do have the same definition re-
gardless of what the facts are and
so I’m just talking about where you
have the knowing and intentional
killing of another human being.

If it’s obvious murder I don’t think
five years is—I don’t see the five
years.

Where do you get this opinion from?
I just don’t believe in murder.
Alright. You understand, of course,
that as the judge has said, we don’t
know what the facts would be and I

would submit to you that there are
all kinds of facts—

In Murphy vy. Florida, 421 U.S. 794, 95

S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Su-
preme Court said:

“The constitutional standard of fair-
ness requires that a defendant have ‘a
panel of impartial, “indifferent” jurors.’
Irvin v. Dowd, 366 U.S. [717] at 722, 81
S.Ct. [1639] at 1642, 6 L.Ed.2d 751. Qual-
ified jurors need not, however, be totally
ignorant of the facts and issues involved.

“‘To hold that the mere existence of
any preconceived notion as to the guilt
or innocence of an accused, without
more, is sufficient to rebut the pre-
sumption of a prospective juror’s im-
partiality would be to establish an im-
possible standard. It is sufficient if

I don’t think So, sir.

“THE COURT: Counsel, you
need to explain to him that you’re
talking about not this case but a
proper case:

Right. We’re not talking about any
particular murder case. The defini-
tion of murder never changes.
Murder is always the intentional
and knowing killing of another hu-
man being. But the facts change.
Yes, sir.

And we have different facts and
different cases so we have a range
of punishment. that varies. But
even so some people themselves feel
that since the definition never

Yes, sir,

And that some facts there may be
Some ‘sort of mitigating circum-
stances and I don’t know what those
mitigating circumstances would be
but still you would think that re-
gardless of what was shown to you
that you would still be unable to
give five years in a case for the
knowing and intentional killing of
another human being?

“A. Yes, sir, I don’t think I could.”

Thereafter, the prosecutor sought to re-
habilitate the juror by demonstrating the
wide range of fact situations that may fall
within the murder statute. The prosecutor
then questioned Smith as follows:


hhh 8 ey eS

880 Tex.

am the one that they’re looking for but I
didn’t kill no policeman.”

Appellant subsequently made his way to
Belton, where he boarded a bus for Hous-
ton. Police acting on information from
Hernandez arrested appellant at the bus
station in Houston at approximately 11:30
p. m. August 8. A .25 caliber automatic
pistol that ballistics tests proved fired the
bullet that killed Levin was in appellant’s
pocket at the time of his arrest.

David Kingsley was acting Chief of Po-
lice for Harker Heights at the time of the
charged offense. He testified that Officer
Levin was the only peace officer killed in
Bell County on August 7, 1978.

[1-3] If the accused admits or confesses
killing the deceased, proof of the admission
or confession is direct evidence of the main
inculpatory fact and a charge on circum-
stantial evidence is not required. Sloan y.
State, 515 S.W.2d 913 (Tex.Cr.App.1974);
Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.
1974); Swift v. State, 509 S.W.2d 586 (Tex.
Cr.App.1974). However, if the admission or
confession is equivocal as to the killing of
the deceased, or if it is not clear that the
killing admitted or confessed is the killing
with which the defendant is accused, proof
of the admission or confession alone will not
relieve the trial court of the necessity of
giving a circumstantial evidence charge.
Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.
App.1977); Hielscher v. State, 511 S.W.2d
305 (Tex.Cr.App.1974); Martinez y. State,
151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948).
Even if the confession is equivocal, a cir-
cumstantial evidence charge is not neces-
sary if the other evidence, together with the
confession, conclusively establishes that the
killing confessed is the killing for which the
defendant is on trial. Ridyolph v. State,
supra; Hogan v. State, 496 S.W.2d 594
(Tex.Cr.App.1973); Steel v. State, 459
S.W.2d 649 (Tex.Cr.App.1970); Patterson vy.
State, 416 S.W.2d 816 (Tex.Cr.App.1967).

[4] Tiller testified that appellant’s ad-
mission to him that he “shot him in the

596 SOUTH WESTERN REPORTER, 2d SERIES

head” was in reference to the shooting of
the Harker Heights policeman on August 7.
Officer Levin, who was shot in the head,
was the only peace officer in Bell County
killed that day. Appellant told Roberson
that he “killed a cop” and described the
shooting in a manner consistent with the
murder of Levin. Appellant was seen in
the area a few minutes prior to the shooting
wearing a white T-shirt and blue jeans, the
witness to the shooting testified that the
assailant was dressed in that fashion, and
Roberson testified that appellant was so
dressed when he returned to the trailer
splattered with blood. These facts, togeth-
er with the other evidence discussed above,
leave no reasonable doubt that the killing
admitted by appellant was that of Officer
Levin. Therefore, the admissions are direct
evidence of the main inculpatory fact and
the trial court did not err in refusing to
charge on the law of circumstantial evi-
dence. See and compare Ridyolph v. State,
supra; Casey v. State, 523 S.W.2d 658 (Tex.
Cr.App.1975); Hielscher v. State, supra;
Hogan v. State, supra; Steel v. State, su-
pra; Patterson v. State, supra.

Appellant contends that the trial court
erred by refusing his motion for a change
of venue. Appellant argues that news
accounts of the shooting had created such a
prejudice against him that he could not
obtain a fair and impartial trial in Bell
County.

The trial of appellant commenced eighty-
three days after the commission of the of-
fense. The hearing on the change of venue
motion was held September 20, 1978, forty-
four days after the shooting. Six residents
of Bell County testified that in their opinion
appellant could not receive a fair trial in
the county at the time of the hearing of the
motion. However, four of these witnesses
stated during cross-examination that they
could ‘be fair and impartial if selected as
jurors. Appellant’s other witnesses were
employees of local newspapers and radio
and television stations. Each described the
coverage appellant’s case had received and

BAREFOOT y. STATE

Tex.

881

Cite as, Tex.Cr.App., 596 S.W.2d 875

identified copies of newspaper stories and
transcripts of broadcasts that were admit-
ted in evidence. On cross-examination,
these witnesses stated that the purpose of
their news coverage had been to inform, not
to inflame, the public, that they believed
appellant could receive a fair trial, and that
they could be impartial jurors.

The State called eleven witnesses to testi-
fy that there was not such a prejudice
against appellant in Bell County that he
could not receive a fair trial. The State
also introduced evidence showing that the
county’s population was between 125,000
and 158,000; that there were 45,000 regis-
tered voters in the county; and that the
four largest cities in the county were Kil-
leen, population 52,000, Temple, population
48,000, Harker Heights, population 10,500,
and Belton, population 10,000.

[5] The evidence raised fact issues
whether appellant could obtain a fair and
impartial trial in Bell County. These issues
were decided adversely to appellant when
the trial judge, as the trier of fact, over-
ruled the motion for change of venue. Von
Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.
1978); Freeman v. State, 556 S.W.2d 287
(Tex.Cr.App.1977).

Although appellant did not renew his mo-
tion for change of venue, it is instructive to
consider the voir dire examination of pro-
spective jurors which began October 31,
1978. Both appellant and the State agree
that of the 132 prospective jurors examined,
63 had heard something about the case
through news reports and 21 had formed an
opinion that appellant was guilty. They
also agree that 11 of the jurors selected had
heard about the case, but all testified that
they could be fair and impartial and would
base their verdict on the evidence presented
in court.

Finally, we have examined the newspaper
stories and broadcast transcripts in the rec-
ord and find that they are factual and not
inflammatory. They do not in themselves
establish prejudice or require a change of
596 S.W.2d—20

venue. Freeman v. State, supra; Knight v.
State, 588 S.W.2d 101 (Tex.Cr.App.1975).

We find no evidence that appellant did
not receive a fair trial by an impartial jury
free from outside influence. The trial court
did not abuse its discretion in overruling the
motion for change of venue.

[6] Appellant contends that the trial
court erred in overruling his challenges for
cause to three venire members and in fail-
ing to grant his request for additional per-
emptory challenges. Two of these venire
members, Johnnie Kopriva and Robert Lat-
sha, were peremptorily challenged by appel-
lant after his challenges for cause were
overruled. Appellant subsequently ex-
hausted his peremptory challenges and, af-
ter his challenge for cause to venire mem-
ber James Smith and his request for addi-
tional peremptory challenges were over-
ruled, was forced to accept Smith as a juror
despite his declaration that Smith was an
objectionable juror. Thus, appellant prop-
erly preserved the alleged errors. Hernan-
dez v. State, 563 S.W.2d 947 (Tex.Cr.App.
1978); Wolfe v. State, 147 Tex.Cr.R. 62, 178
S.W.2d 274 (1944).

Appellant contends that venire member
Kopriva was biased against a portion of the
law on which appellant was entitled to rely.
Specifically, he argues that Kopriva was
unable to accept appellant’s right to remain
silent and present no evidence in his de-
fense. This contention is based on the fol-
lowing voir dire examination by defense
counsel:

“Q. Do you feel—and many people do,
so you would. not necessarily be in
the minority—do you feel that a
person accused of a criminal offense
should be required to come in the
courthouse and defend himself,
stand up and defend himself?

“A. No, sir.
“Q. Do you feel that he should be re-

quired to put on any evidence of
any type in the defense of his case?

“A. Yes, sir.


AMY RAY B41 1? AWD

878 Tex.

19. Criminal Law e469

Expert witnesses may be permitted to
express opinion as to probability of future
violent behavior since terms “probability,”
“criminal acts of violence,” and “continuing
threats to society” are not terms defined by
statute or case law but are words of ordi-
nary meaning. Vernon’s Ann.C.C.P. art.
37.071.

20. Criminal Law @=1206(1)

Statute governing procedure during
punishment stage in capital case is not un-
constitutional, despite claim that its use of
term “probability” is vague. Vernon’s Ann.
C.C.P. art. 37.071.

_ 21. Homicide 354

In prosecution for capital murder, evi-
dence adduced at punishment stage of trial,
as to defendant’s bad reputation for being
peaceful and law-abiding citizen and his
prior convictions, along with evidence ad-
duced at guilt-innocence stage, was more
than adequate to support death sentence.
Vernon’s Ann.C.C.P. art. 37.071.

22. Homicide <=250

Evidence was sufficient to support con-
viction for capital murder.

23. Criminal Law ¢=854(2)

Whether to grant motion to sequester
jury during trial is within discretion of trial
court.

24. Criminal Law @=854(2)

In prosecution for capital murder, trial
judge did not abuse his discretion in over-
ruling defendant’s motion to sequester jury
during trial.

Stephen E. Blythe, Gerald M. Brown,
Temple, for appellant.

Arthur C. Eads, Dist. Atty., Ralph Petty,
Jr., James T. Russell and Steven C. Copen-
haver, Asst. Dist. Attys., Belton, Robert
Huttash, State’s Atty., Austin, for the
State.

596 SOUTH WESTERN REPORTER, 2d SERIES

Before the court en banc.

OPINION
DALLY, Judge.

This is an appeal from a conviction for
capital murder. The punishment is death.

Appellant contends that the trial court
erred by failing to instruct the jury at the
guilt-innocence stage of the trial on the law
of circumstantial evidence, denying his mo-
tion for change of venue, overruling his
challenges for cause of three prospective
jurors, refusing his request for additional

‘peremptory challenges, admitting evidence

of extraneous offenses, failing to define
“probability” in the charge at the punish-
ment stage, and overruling his objections to
the testimony of two witnesses as to the
probability he would commit acts of vio-
lence in the future. Appellant also con-
tends that Art. 37.071, V.A.C.C.P., is uncon-
stitutionally vague.

Appellant was convicted for the murder
of Harker Heights police officer Carl Levin.
The appellant fatally shot Levin after the
officer stopped him for questioning in an
arson investigation. Although appellant
does not contest the sufficiency of the evi-
dence, a detailed review of the testimony is
required in order to discuss his contention
that the circumstantial evidence charge
should have been submitted to the jury.

Appellant and four other persons were
living in a trailer in Killeen during the
summer of 1978. One of the appellant’s
roommates, Donnie Ray Tiller, testified
that appellant had asked him for a gun and
stated that he intended to kill a Harker
Heights policeman who had allegedly mis-
treated him during an arrest for public
intoxication. Appellant also told Tiller of
his plans to commit various robberies in
Harker Heights.

On August 6, 1978, appellant told Tiller
that he was going to commit a robbery the
next morning at the Oasis Club in Harker
Heights after creating a diversion by bomb-

BAREFOOT y. STATE Tex. 879
Cite as, Tex.Cr.App., 596 S.W.2d 875

ing or setting fire to a building. Appellant
stated to Tiller that he would kill anybody
who recognized him as the robber. Appel-
lant’ was wearing a white T-shirt and blue
jeans at the time of this conversation.

Another roommate, Robert Roberson, tes-
tified that appellant awakened him at ap-
proximately 4:30 a. m. on October 7 and
asked him for a ride to Harker Heights.
Appellant was wearing a white T-shirt and
blue jeans, and was armed with a .25 caliber
automatic pistol and a home-made bomb.
On the way to Harker Heights, appellant
told Roberson he was going to blow up the
Silver Spur, a night club. After first
stopping at a convenience store where ap-
pellant filled an empty plastic milk jug with
gasoline, Roberson dropped appellant off
near the Silver Spur at about 5:00 a. m. and
returned to the trailer.

John Edwards, a soldier at Fort Hood,
drove past the Silver Spur at 5:15 a.m. He
saw flames coming from the roof and a
man he identified as appellant standing in
the parking lot. As Edwards watched, ap-
pellant began to run along Highway 190.
Edwards drove to the police station, which
was nearby, to report the fire and then
returned to the Silver Spur. On his way
back to the fire, Edwards saw appellant
near the intersection of Highway 190 and
Amy Lane.

Back at the fire, Edwards saw a fireman
remove a melted plastic jug from the roof
of the building. He then told Officer Levin
what he had seen. Levin, who was in uni-
form and driving a marked patrol car, left
the scene of the fire and drove toward Amy
Lane.

Michael Thrash, another Fort Hood sol-
dier, lived on Amy Lane. He was walking
to work at 5:35 a. m. when he saw a patrol
car parked at the intersection of Amy Lane
and Valley Road with its emergency lights
on and its spotlight trained on some bushes.
Officer Levin was standing beside the pa-
trol car. A man wearing a white T-shirt
and blue jeans stepped out of the bushes
and walked toward the officer. The man

then shot Levin in the head at point-blank
range and fled down Valley Road.

Mary Richards, who lived on Valley Road,
heard the shot and looking through a win-
dow, she saw a man wearing a white T-shirt
running down Valley Road from Amy Lane.
Richards could not positively identify appel-
lant, but testified he resembled the man she
saw.

Appellant called Tiller at approximately
10:30 a. m. on the morning of the shooting.
Tiller described the conversation as follows:

“I answered the phone. He said, Don-
nie, I said, yes. He said this is Darren.
He says have you been listening to the
news? And I said, yes, Darren, did you
do that? He said, Yeah, I shot him. I
killed the mother fucker. I shot him in
the head.”

Tiller testified that this conversation was in
reference to the August 7 shooting of the
Harker Heights policeman. After appel-
lant hung up, Tiller contacted the police.

Appellant returned to the trailer after
the shooting and spoke to Roberson. Ro-
berson testified that appellant was still
dressed in a white T-shirt and blue jeans,
had red blotches which appeared to be blood
on his face and shirt, and appeared to be in
a state of panic. After Roberson told him
that the police had been to the trailer look-
ing for him, appellant said that “he had to
get out of town because he wasted a cop,
that he killed a cop.” Asked by Roberson
how he had done it, appellant reached for
his back pocket and then pointed his finger
at Roberson’s head at the place correspond-
ing to the bullet wound to the head of the
deceased. After washing up and changing
clothes, appellant left the trailer,

Francisco Hernandez testified that he
met appellant in downtown Killeen on the
morning of August 7. He invited appellant
to his home for lunch and subsequently
offered to let him spend the night. The
next morning, after hearing a radio news
report describing the suspect in the Levin
murder, appellant told Hernandez that “I


Tex. 596 SOUTH WESTERN REPORTER, 2d SERIES

You feel that he should, sir?

Yes, sir he should. His lawyer
should put a defense on if that’s
what you mean.

Yes, sir. That’s what I’m asking.
Yes, sir.

You feel that way, even though the
law allows for the defendant to sit
silently and not put on any eyvi-
dence?

I don’t think that I understand that
question, sir. _

* * * * *

A moment ago you kind of indicated
that you felt he should put on some
evidence.

I didn’t understand the question,
though.

All right. To make sure we under-
stand then, you're saying that he
does not have to put on any evi-
dence to satisfy you?

“MR. EADS: Objection, Your Hon-
or.

“THE COURT: Overruled.

If you will answer my question,
please sir. You are saying again
that a defendant, does not have to
put on any evidence to satisfy you
that he’s not guilty?

No, sir. I think the lawyers should
present their evidence of the case
because—

You can explain that answer if you
would like to, sir.

Well, even though the State proves
its case and—well, I would still like
to hear the other side of the story.”

After this exchange with defense counsel,
the prosecutor explained to the venireman
the State’s burden of proof and the defend-
ant’s Fifth Amendment privilege. Kopriva
indicated that he understood and that he
would not hold appellant’s silence against
him. Defense counsel then reexamined Ko-
priva as follows:

“Q. Mr. Kopriva, Mr. Eads has done an

excellent job of outlining for you
what the law says and what the
constitution says.

Yes, sir.

You are certainly a mature adult,
and you certainly have the option at
this point of stating to us that you
disagree with that law. All right,
sir?

(Headnod.)

So, that’s really what I’m asking
you. Do you, even though the law
may say that the defendant has a
right to remain silent, the law may
say that the defendant can sit here
and not open his mouth, the law
may say that the defense counsel
can sit here and not open their

mouths. Do you yourself still feel’

that the lawyers should at least put
on some evidence or that the de-
fendant should at least take the
stand?

No, sir. I understand the question

' now. If he proves his case beyond a

reasonable doubt that the defendant
is guilty, well then, I’m sure that
yall are not going to sit there and
just let—without saying a word—I
mean, that’s what the trial is about.
I'll admit we are kind of stretching
it a little bit.

Yes, sir.

And certainly we will be talking
just as we are talking here today.
Yes, sir. ‘

But let’s say we do all of our talking
out here at the counsel table and no
evidence of any kind is put forth in
behalf of the defendant.

Yes, sir.

Do you feel that a defendant should
put on some evidence of some kind
in order to refute or to contest his
guilt?

No, sir. I leave that up to the de-
fendant.”

BAREFOOT y. STATE Tex. 883
Cite as, Tex.Cr.App., 596 S.W.2d 875

[7] It is obvious that Kopriva was ini-
tially confused as to the relationship be-
tween appellant’s right to remain silent and
his right to effective assistance of counsel.
Subsequent questioning by both the prose-
cuting attorney and defense counsel makes
it clear that Kopriva did not expect appel-
lant to testify or present other evidence but
only that his attorneys would do their best
on his behalf. The trial court did not err by
overruling the challenge for cause. Scott v.
State, 490 S.W.2d 578 (Tex.Cr.App.1973).

Appellant contends that his challenge for
cause to venire member Robert Latsha
should have been granted because he be-
lieved that death is the only proper punish-
ment for capital murder. This contention is

~ based on the following exchange with de-

fense counsel:

“Q. Okay, let’s assume that the State
puts on—here again, a hypothetical
case, the State puts on—that you
were sitting in a capital murder
case and the State proved beyond a
reasonable doubt, satisfied you that
the individual, that the defendant in
that particular case caused the
death of a police officer by shooting
him with a gun and that the defend-
ant knew he was a police officer
and knew he was acting in the law-
ful discharge of his duties.

“Now, do you have an opinion,
having found that man guilty, as to
what proper punishment would be
in that case?

Do I have an opinion as to what the
proper punishment would be?

Yes, sir.

I thought the way it was stated,

there is only one punishment for
. capital murder,

All right. What do you believe the
one punishment is for capital mur-
der?

The death penalty.

All right. And do you believe that
should be the proper punishment for
capital murder?

A

“A. Yes, sir.

“Q. And that’s an affirmative opinion of
yours?

“A. Yes, sir.

“Q. And is that an opinion that you
have arrived at as a result of your
past experience and your upbring-
ing and your thinking that you have
indicated that you have made about
the death penalty?

Yes, sir.

“Q. And it would be your position that
if a capital murder case, involving
the shooting of a police officer, that
if that—if the individual was prov-
en guilty beyond a reasonable doubt
that he shot a police officer who
was in the lawful exercise of his
duties and knew that man was a
police officer when he shot him,
that in your mind the only proper
punishment that could be given
would be the death penalty?

“A. Yes, sir.”

[8] Prior to this exchange, the prosecu-
tor, during his voir dire, had stated to the
venireman that the law provides that the
punishment for capital murder “shall be
death.” That this misled Latsha is indi-
cated by his statement to defense counsel
that, “I thought the way it was stated,
there is only one punishment for capital
murder.” After the punishment alterna-
tives and procedure were better explained,
Latsha clearly stated that he would affirm-
atively answer the punishment issues only
if the State met its burden of proof and
that he believed death to be the proper
punishment only if the answers to the is-
sues were yes. No error is shown.

Appellant contends juror James Smith
expressed an opinion as to his guilt and a
bias against the minimum punishment for
murder during his voir dire examination.
The.first contention is based on the follow-
ing exchange with defense counsel:

“So since we have publicity in this
case I have to ask you, sir, whether

: - a Ope Be" nite es
ne a AP Ren mectoranberetnndentan it 9 ett asthe 5 aheAAEERNA NRL i NN HRC nner kA me


362 VII, AMERICAN STATE TRIALS.

dering their son, and who, so very recently, became the
husband of their dear daughter, who is now driven to almost
madness by the conduct of this prisoner. What a terrible
picture! Where is the human being, gentlemen, that could not
shed a sympathete tear, I care not how hard his heart or how
debased his character, for those heartbroken parents and that
daughter—God save the mark! who loved and married the
man that had murdered her brother? But I must leave this
branch of the subject for I have not the heart to comment
upon it.

Mr. Golden, at an early day, left Kentucky and thought to
better his condition by moving to what was then the western
wilds. He settled where he now lives nearly thirty years ago,
as he told you in his testimony, and that after the prisoner
grew up he sought his old friends in Illinois, and there he
was always welcome, and found in his manhood the same acts
of kindness shown him by the Golden family that had been
shown in his infancy. Having visited the Golden family
quite frequently within the past few years, it was not surpris-
ing that in the fall of 1869, he again made his appearance
there and engaged board for himself and horse through the
fall and winter. Mr. Golden, from the goodness of his heart
and the old friendship that existed, told him certainly, and
again we find the defendant sharing the hospitality of the
family for months without ever being charged a cent. He then
pretended that he was getting up a drove of horses and mules
to ship south, and persuaded Mr. Golden to send four horses,
which he afterwards did. Early in February, 1870, the pris-
oner left old Mr. Golden’s house, with the four head of horses
belonging to Mr. Golden, and started on his trip south,
stating that he was to get the drove at St. Louis. Remember
that while Ballew was living at old Mr. Golden’s, young
James became a very intimate and warm friend of his, as did
all the family of children, including Miss Clara. So intimate
was the prisoner that he called Mr. Golden Uncle John and
Mrs. Golden Aunt Lizzie. Letters were received from Bal-
lew by different members of the Golden family while he was
absent with the stock, several of which letters were written

STEPHEN M. BALLEW. 363

to young James P. Golden, and have been read to you in
evidence for the purpose of showing that many long months
before the foul murder of young Golden was perpetrated, the
prisoner had deliberately planned the same, and was execut-
ing part of the plan by deceiving young Golden as to the
amount he was making by trading stock in the South, and
persuading him to accompany him on the next trip. Am I
mistaken in this matter? TI call your attention to the letter
written by Ballew to young Golden at Camden, Arkansas,
while on his first trip. You see the language used to young
Golden: ‘‘You must be sure and get ready to come South
with me this fall!’’ Allow me to ask, for what purpose did
this prisoner want young Golden to come South for in the
fall? The letter was written in the spring and the fall al-
luded to was the fall of 1870—the last one for young Golden.
Will you believe that it was for the purpose of trading in stock
as pretended in the letter? or would you sooner believe that
it was for the purpose of firing the mind of Golden with vast
speculations, and for the express and hell-born purpose of de-
coying the unfortunate and innocent young man away from
home, from his father and mother, brothers and sisters, with
a deliberate, fixed and premeditated design to take his life and
rob them of their property? Let the testimony in the case
answer, and I submit to you as just and rational men, whether
or not every fact and every circumstance connected with this
entire transaction, from beginning to end—from the time
the prisoner’s polluted form and corrupt heart first dark-
ened the quiet and peaceful household of the Golden family in
the fall of 1869, down to the time his bloody and malicious
hands struck the fatal blow or fired the fatal shot that sent the
spirit of young James P. Golden into that mysterious and
unknown world above the clouds; do they not go to clearly
establish beyond all eavil, beyond all controversy, and all
doubt, that he decoyed him to Texas with the fixed and de-
termined purpose of taking his life? Can you believe other-
wise? Would to heaven that I could believe differently;
that I could believe the prisoner, whose very murderous

° Ante, p. 343.

360 VII. AMERICAN STATE TRIALS.

M. Ballew, is upon trial for his life, that he stands charged in
this court with the heinous crime of murder, and that very
soon you will be called upon to perform the solemn duty
imposed upon you by the law, as jurors, of saying by your
verdict, under the solemn sanction of the oath you took at
the commencement of this trial, whether or not he is guilty as
charged in this bill of indictment, I am confident you will
give me your kind and patient attention, as you have given
to the testimony, while commenting upon the evidence as it
has been detailed to you by the witnesses, and the law as ap-
plicable to that testimony. And, if, in my humble way, I can
assist you in arriving at the truth of this painful investiga-
tion, then my purpose shall have been fully accomplished
and my labor amply rewarded.

Gentlemen, I would state to you frankly, at the outset, that
as the representative of the State, in the performance of my
official duty, I only ask at your hands a verdict according to
the evidence as it has been detailed to you, and the law as it
will be given to you by the Court. Outside of the law and
the evidence you should not—cannot go, and comply with
your obligation as jurors. In testing your qualifications to sit
upon the jury, each one of you answered that you had no bias
nor prejudice either in favor of, or against the prisoner, and
that from hearsay or otherwise there was established in your
minds no conclusion as to the guilt or innocence of the de-
fendant that would influence you in finding a verdict. .Then
we have a right to presume that you will not be governed by
prejudice, sympathy, or that more powerful controlling ele-
ment, public sentiment, but that you will decide this case as
every other—according to the law and the evidence.

Neither do I deem it necessary, gentlemen, to remind you
of the great responsibility resting upon you. You are all in-
telligent men and know and appreciate that probably better
than I do; yet, allow me to say, it is a responsibility that but
few men are called upon to assume, and you have a duty to
discharge in this case, the magnitude of which no human tri-
bunal, in my humble opinion, was ever called upon to dis-
charge a greater, or more solemn and painful one. It is true,

STEPHEN M. BALLEW. 361

in this case, you have been selected according to the laws
of our country, to assume the responsibility and dischar
the solemn duty of sitting in judgment upon the life of a rg
low being. This is surely a solemn thought yet I have that
unbounded and unlimited confidence in the integrity of the
human race—the humanity of our laws, and the disposition
on the part of the people to punish crime, prevent vice, con-
demn wrong, and uphold and vindicate right, that I ines no
fears but what you will discharge your duty fearlessly and
conscientiously, leaving that other Tribunal, higher aA ore
Just than that devised by man, to judge of the sincerity, wis
dom and correctness of your decision. ioe
Let us now examine and closely scrutinize the testimony in
this case as it has been detailed by the witnesses, and see
whether or not we ean arrive at a correct and just corielaaiton
as to the guilt or innocence of the prisoner now upon trial
Gentlemen, we are carried back by the testimony, to meg
a long year ago, and find that while the prisoner was almost
an infant, he was left an orphan, in the State of Kentucky
and that the aunt of James P. Golden, the murdered youn .
man, took him and treated him only as a kind tee i
treat her own child; she provided for him when he was not
able to provide for himself; she cared for him when he was
unable to care for himself; in short, providing him a hom
when he was homeless and being a mother to him when he
was motherless. That is the first account, from the testimon
we have of the prisoner’s association with any of the Golden
family, and would to God that it had been the last, for then
this bitter cup, the very dregs of which the Goldens are n
d rinking, would have been spared them, and that once ha se
family would today be living in their pleasant home Sea
State of Illinois, happy and contented. But, how different
their condition! Because the family had ier friends, tried
and true, to this prisoner when he was left an orphan fear
less and homeless, we find them today grieving ee their
murdered son and brother—a distracted and miserable famil
We see here in this court the old father, the aged and feeble
mother, witnesses against the man who is charged with ite

364 VII. AMERICAN STATE TRIALS.

countenance so strongly portrays his guilt, was in fact inno-
cent; and that these bones, and this skull, and clothing found
with them, and so thoroughly and unmistakably identified
as the skull and clothing of James P. Golden, were not his,
and that he was still alive and would soon return to glad-
den the hearts of this aged and feeble mother and his be-
reaved and broken-hearted father, and join again his brothers
and sisters, who are now clad in mourning for him in the far-
distant State of Illinois, there to renew the happy relations of
son and brother as in days past, and gladden the hearts of
those friends who are sad because he cometh not; and that
the circumstances—the unmistakable evidence of nature—
pointing so strongly and so consistently to this prisoner as
the guilty agent who took the life of Golden, could all be
explained away and held for naught. I wish such could be
the ease, that Golden was alive and this defendant innocent,
but from the evidence, I am compelled to believe otherwise,
and am confident that every man upon the jury believes that
the prisoner is guilty as charged. I am aware that the human
heart revolts at the very thought of such a crime as this, and
as much as we are inclined to believe that one human being
could not peretrate such a crime upon another, as this pris-
oner stands charged, yet, we are forced to the conclusion
even against our will that he is guilty of this most foul and
damnable murder.

In the month of August, 1870, we find young Golden, his
sister Clara, and this defendant, visiting together in Ken-
tucky. They returned to Illinois, from their visit, about the
first of September, and at that time, as the testimony shows,
the prisoner had got Golden fully persuaded to accompany
him to Texas on a trading expedition. The prisoner at once
started over to Missouri to attend to some business, and the
express agreement between him and young Golden was that
the latter was to purchase and fit up an ‘‘outfit,’’ consisting
of wagon, horses, harness, ete., and that while Ballew was
gone to Missouri, young Golden actually purchased a new
‘“‘outfit,’? and was ready to start on his return. Let us now
inquire what the prisoner was doing during that time. We

STEPHEN M. BALLEW. 365

find that he went to Missouri and from there he wrote to Joh

C. Bowman of Collin County, Texas, to be sure and meet him
at Jonathan Ballew’s on the 15th of October, 1870, to assist
him with stock to Shreveport. The letter as Hien read in
evidence,” and shows to my entire satisfaction, and I think to
yours, that although it was well known to the writer that Gol-
den was going to accompany him to Texas, yet, it was equall

well settled in his mind that he should be disposed of tore
getting to Jonathan Ballew’s house. If such were not the
case; if it were not well settled in the mind of the writer of
the letter that young Golden should be killed before reaching
the point where he wrote for Bowman to meet him, is it not
one of the most remarkable and extraordinary eeciiremnes of
which you have ever heard, that the prisoner happened to
write thus to Bowman and young Golden did in fact disap-
pear—was murdered—before reaching Jonathan Ballew’s and
that Bowman, in obedience to the letter, met him at the place
designated and assisted him with the stock as requested ?
Gentlemen, there is no more doubt in my mind, that this de:
fendant, at the time he wrote the Bowman letter, had not only
deliberately planned the murder, but had his mind on almost
the very spot where it was to be executed than that the sun
shines.

The testimony shows—and I shall not knowingly go out-
side of the record—that on the morning of September 13
1870, the prisoner and young Golden left the house of Jehu
W. Golden, in Adams County, Illinois, and started on their
trip to Texas. I imagine, gentlemen of the jury, that I ean
see them starting now, and hear the many kind parting words
—farewell (and a last farewell to young Golden) that greeted
them as they slowly drove away, one of them to meet a most
terrible death, and the other to be his bloody executioner.
After they had gone 200 or 300 yards from the house, the de-
fendant remarked that they would probably need a shovel
and went back and got the one shown and identified here si
court. Did you ever hear of such villainy? Not only had
he deliberately planned the murder of his victim, but pre-

7See ante, p. 338.


366 VII. AMERICAN STATE TRIALS.

pared himself with an implement, many hundreds of miles
from where the bloody scene occurred, with which to bury
his victim and thus cover up forever, as he thought, his fiend-
ish and hellish crime.

The parties wrote letters back frequently while on the way
to Texas. The letters have principally been admitted and
read in evidence, and I ask that you scrutinize them closely. I
shall briefly allude to them and then leave them with my able
associate, Mr. Ewing. One of the letters read in evidence
was written by the prisoner to his sister, who lives in Ken-
tucky® The parties were then in Southwest Missouri, as you
will see from the heading of the letter. After telling his
sister that he was well and that James P. Golden was with
him, he closes by saying to her, ‘‘I hope to be able to settle
you in a quiet home on my return.’’ In another letter writ-
ten to the same party and upon the same trip, while at Baxter
Springs, Kansas, he states, ‘‘I have things so bunched, that I
have no doubt of success this trip.’’ Let us pause for one
moment and see if we understand the meaning of those decla-
rations. Let us inquire into the manner in which the pris-
oner had things ‘‘bunched,’’ so that he had no doubt of
suecess, and how he hoped to be able to settle his sister, who
is poor and teaches school in Kentucky for a livelihood, in a
quiet home on his return. The prisoner had no means and
was so miserably poor that old Mr. Golden never thought of
charging him for several months’ board for himself and horse.
The only stock he took South on his first trip were the four
head of horses that old Mr. Golden let him have. We have
shown that the statements he was writing to young Golden,
while on his first trip, about making such a vast amount of
money on stock which he pretended to have down here, were
all false, and were only calculated to fire Golden’s mind and
gct him to accompany him on the next trip that he might
murder him, as he did. Then, again, I ask, how was
Ballew to settle his sister in a quict home? By what means
did he expect to do it? How had he things ‘‘bunched?’’
These are very important questions, gentlemen, and in order

8 Ante, p. 338.

STEPHEN M. BALLEW. 367

to see the force of them we must peruse the letter written
by the prisoner to his sister at New Orleans, on his return
from his trip to Texas with Golden, in which he states, you
remember ‘‘I have succeeded in business this trip beyond my
expectations,’”®

These documents (those notes, deeds, ete.) which have
been read in evidence and which were found in the pos-
session of the prisoner upon his return to Illinois, are the
unmistakable and uncorruptible evidence of how he was to
sueceed, and as sure as the sun shines and the earth moves,
these same documents he alluded to in his letter to his sister
at New Orleans, together with the fact that he had removed
the only living witness that could ever appear against his col-
lection of them. Was it necessary that he should kill Golden
in order that he could collect those documents, which had
been obtained by fraud and crime? I answer that it was.
Was it necessary that Golden should be got out of the way to
keep this villain from being exposed, arrested and punished?
I answer, most certainly so. Then let us inquire how he
came in possession of these evidences of debt, and for what
purpose, and the consideration he gave for the same. Mr.
Golden testified that when the prisoner came back from Mis-
sourl he represented to his son James that he had purchased
in St. Louis $22,000 worth of goods and shipped them to
Jefferson, Texas; that he stated to James that he had paid
$14,000 cash down on the goods and had got an easy loan on
the balance, and that in order for James to become an equal
partner, he must secure him to the amount of $7,000—half
the cash outlay. Accordingly, James Golden, upon the mere
declaration of the prisoner that he had bought the goods,
executed to Ballew his individual note for $2,000, secured by
a deed of trust on his land, worth $3,000 or $4,000. Then
young Golden executed another note to prisoner for $5,000,
and just as they were going away, the one or the other, Mr.
Golden does not remember which, asked him to go his son’s
security on the note, which he did not like to refuse to do,
and hence placed his name on the note along with that of his

®See post, p. 340.

Prisoner executed for 1986 robbery-rape-murder Page 2 2
Te. rp s

Rounsaville was to receive her diploma from Rice. Her name, however,
was called out ‘during commencement and her parents accepted her
bachelor’ S. degree i in architecture.

No one from the Rounsaville family attended the execution.

Barefield was the 109th person to be put to death in Texas since the
state resumed executions in 1982.


Subj: Gang Leader Executed for Murder
Date: 97-03-13 01:02:23 EST
From: AOLNewsProfiles@aol.net

.c The Associated Press

By MICHAEL GRACZYK

HUNTSVILLE, Texas (AP) - The leader of a gang that raped and
robbed in attacks at Houston apartment complexes was executed
Wednesday for the abduction, rape and murder of a college student
in 1986.

John Kennedy Barefield, 32, whose criminal record began at age
16 with a Louisiana burglary conviction, was put to death by lethal
injection for the shooting death of Cindy Rounsavile, 25, of
Tulsa, Okla.

“Tell Mama | love her," he said as five of his family members,
including three sisters and a brother, watched through a window.

Ms. Rounsaville was within weeks of her second Rice University
degree in architecture and was engaged to be married when Barefield
and two other men abducted her at gunpoint April 21, 1986, in the
parking lot of her Houston apartment complex.

They forced her to withdraw $70 from an automated bank machine
and raped her in a car. Evidence at Barefield’s trial showed he
shot her twice in the head as she was on her hands and knees in a
field after she ran from the car.

When he was arrested a few weeks later, Barefield had the gun
used in the murder and the woman's Rice University class ring.

“We don't get any joy whatsoever out of him dying,” said Ms.
Rounsawile's mother, Betty. “It's just that he had a fair trial
and got sentenced, and we firmly believe it should be carried out.

... It's a lot easier for him than what Cindy went through."

Other witnesses at the trial identified Barefield as the man who
robbed, beat or raped them in other attacks during a six-month
period in 1985-86.

Barefield's brother, Perry, received a 45-year prison term. A
third man is sening life.

AP-NY -03-13-97 0023EST

Copyright 1997 The Associated Press. The information
contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without

prior written authority of The Associated Press.

To edit your profile, go to keyword NewsProfiles.
For all of today's news, go to keyword News.

Headers
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Thursday March 13, 1997 America Online: Galba33 Page: 1


The Dallas Morning News: Texas and Southwest News

Page 2

her twice in the head as she was on her hands
and knees in a field after she ran from the car.

When he was arrested a few weeks later, Mr.
Barefield had the gun used in the Rounsaville
slaying and the woman's Rice University class
ring.

Other witnesses at the trial identified Mr.

| Barefield as the man armed with a knife or gun
who robbed, beat or raped them in other
attacks during a six-month period in 1985-86.

A jury took just 25 minutes to decide that Mr.
Barefield should get the death penalty. His
brother, Perry Barefield, received a 45-year
prison term. A third man is serving life.

"After 11 years, I've pretty much resolved the
issues within myself to where it doesn't scare
me," Mr. Barefield said in an interview last
week. "I don't want to die, but we all die. That's
part of life.

"They're doing to me what they say I did to
someone else. They're killing me. They're
committing murder."

Mr. Barefield, who grew up in Lake
Providence, La., one of 11 children in his
family, had exhausted his appeals in the courts,
his attorney Sandy Hall said.

The execution is the second this year in Texas
and the 109th since the state resumed carrying
out capital punishment 15 years ago. The total
is the highest in the nation. \

Mr. Barefield said he came to Houston to join
his brother after serving a four-year prison term
in Louisiana for burglary.

dying," said Ms. Rounsaville's mother, Betty.
"It's just that he had a fair trial and got
sentenced, and we firmly believe it should be
carried out. He's had more than ample appeals
and that sort of thing.

|
|
"We don't get any joy whatsoever out of him

"It's a lot easier for him than what a went

thaoegh."  — (AP) Ff13/97


Texas & Southwest

ADVERTISING

Special report:

pee»

HUNTSVILLE, Texas - The leader of a gang
that raped and robbed in attacks at Houston
apartment complexes was executed Wednesday
evening for the shooting death of a Rice
University student 11 years ago.

John Kennedy Barefield, 32, whose criminal
record began at age 16 with a Louisiana
burglary conviction, was put to death by lethal
injection at 6:18 p.m. Wednesday for the
abduction, rape and fatal shooting of Cindy
Rounsaville in 1986.

"T love you all," he said as five members of his
family, including three sisters and a brother,
watched him through a window from a few feet
away. "Tell Mama I love her."

He smiled and nodded to them, gasped once
and closed his eyes as his family members cried
out that they loved him, then began praying.

Death came seven minutes after the lethal drugs
began flowing into his veins.

Ms. Rounsaville, 25, from Tulsa, Okla., was
within weeks of earning her second degree in
architecture from the Houston school and
engaged to be married when Mr. Barefield and
two other men abducted her at gunpoint April
21, 1986, in the parking lot of her apagtment
-- "=" vompiex.

They forced her to withdraw $70 from an

Se E  e e

automated bank machine and raped her in a car.

Evidence at Mr. Barefield's trial showed he shot


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_. HUNTSVILLE — Harold Barnard-
- was executed early Wednesday for

the fatal shooting of a teen-age
convenience store clerk in Galveston
Ain 1980...

Barnard recited a prayer in which
~-he asked for forgiveness for himself
4 and protection for his family.

Barnard, 51, coughed, gasped and

a a

a ee

bai,

made gurgling sounds as the lethal
drugs began flowing into his arms at
12:16 a.m. He was pronounced: =
11 minutes later. -

Attorneys tried to block he pun-
ishment by claiming Barnard was

mentally incompetent, but last-day
~ appeals were rejected by the 5th US.

Circuit Court of Appeals and the U.S.
Supreme Court.

Killer executed for 1980 slaying of teen


Houston Chronicle

Tuesday, June 7, 1988

Execution stayed 90 days

HUNTSVILLE — A former Hous-
ton carpenter scheduled to die be-
fore dawn today for killing a Viet-
namese youth in a 1980 Galveston
robbery has won a 90-day reprieve.

Harold Amos Barnard Jr., 45, was
convicted of the June 6, 1980, shoot-
ing death of Tuan Nguyen, 16, a clerk
at a Galveston convenience store
managed by his family.

The Texas Court of Criminal Ap-
peals Friday gave Barnard’s new
attorney 90 days in which to file an
appeal on his behalf.

Barnard’s attorney, Alan Albright
of Austin, asked the court to stay the
execution so he could familiarize
himself with the criminal appeals
process and Barnard’s case. Al-

- bright, who took over Barnard’s case

about 10 days ago, is one of several
civil attorneys who have been re-

cruited recently to assist death row

inmates in their appeals.

Albright said he will be raising the
so-called Franklin issue in Barnard’s
case. The US. Supreme Court is
expected to rule in about a month on
the issue, which centers on instruc-
tions given to juries on how to weigh
mitigating circumstances.

_ It was the second execution stay
for the San Antonio native. In Sep-

Courts | Police

tember 1987, Barnard’s attorney at
the time, Michael Charlton of Hous-
ton, won a stay from the Supreme
Court to allow-him more time to
prepare for the case. Charlton had
been on the case only two weeks at
that time.

¢ Barnard had claimed at his trial
that he only intended to wound
Nguyen when he shot the youth with
a sawed-off .22 caliber rifle. The
youth was shot in the heart after he
ayid his father were forced to put
money from the cash register into a
bag.

Howard, 28, were arrested with two
other accomplices about 30 minutes
after the shooting just north of Galj
veston on Interstate 45.

Barnard and co-defendant Murray

+
ball


]
|

er 26CTEE OCR

Man executed for killing
clerk nearly 14 years ago

Associated Press

HUNTSVILLE, Texas — Death row
inmate Harold Barnard was executed
early Wednesday for killing a Galves-
ton convenience store clerk almost 14
years ago. 4

Mr. Barnard ' 4
was pronounced ; ge
dead at 1227 am., | Wier
11 minutes after @aXs
lethal drugs be-
gan flowing into
his arin. a,

In his final E: es
Statement, the 51- ‘*. . aE
year-old inmate Harold Barnard
Said a brief prayer in which he asked
for forgiveness and blessings on his
family.

“God, please forgive me of my sins.
Please look after my family ... and
protect all good people. Amen,” he
Said.

Then Mr. Barnard turned his head
to the warden and said, “That's all.”

He coughed and gasped several

12°D Che Ballas Forning eins ~ i Wednesday, February 2, 1994

times and then gurgled.

Late Tuesday, the US. Supreme
Court rejected arguments by a de
fense lawyer that the condemned kil]-
er was insane and should not be exe
cuted.

Mr. Barnard’s death sentence was
for killing Tuan Nguyen, 16, who was
fatally shot during a 1980 robbery at
his family’s store.

Mr. Barnard was the first Texes
inmate to be put to death this year,

In 1993, Texas led the nation with
17 executions, bringing the state's to-
tal to 71 — also tops in the country —
since the US. Supreme Court in 1976
allowed executions to resume.

In appeals, defense attorneys con-
tended. that Mr. Barnard suffered
from paranoid delusions and that he
didn't understand his punishment.

Prosecutors said Mr. Barnard, a
former carpenter from San Antonio,
gave no indication that he was men-
tally incapable of understanding the
charges and sentence.

itech i. a iti ote ~


9 + 4 wiy
wer: aig BS a At os ti! Ye Sey Pw

Sut oat m a 2 wwe. he oy tA i va * Oe ae ad
A UN IRR RR Le adn Se ale

Court asked

a

Rey met eeed Rete ue see

to put stop

sto execution

“Inmate fatally shot
Galveston clerk
during ’80 robbery

“(f . : ‘
40” HUNTSVILLE (AP) — Attorneys
for Texas death row inmate Harold
Barnard argued Tuesday the con-
tidemned killer was insane and should
isnot be executed for killing a Galves-
ton convenience store clerk nearly
14 years ago.
arnard, 51, faced lethal injection
after midnight today for killing Tuan
i : .-_. Nguyen, 16, who
was fatally shot
.during a 1980
‘robbery at his
family’s store.
: Defense attor-
;ney Robert
i McGlassen said
‘ he had three ac-
.| tions pending
a’ |. before the U.S.
NBR |, bupreme eh
ate Tuesday,
Barnard two dealing

he J

: = with Barnard’s mental competence

: 6

ul

and the third contending jurors were

‘ _ not allowed to consider that Barnard

-was drunk at the time of the slaying.
», Earlier Tuesday, the 5th U.S. Circuit
“-Court of Appeals in New Orleans

rejected the arguments.

41, Barnard would be the first Texas

- ,. inmate to be put to death this year.

“In 1993, Texas led the nation with 17

_ ,, executions, bringing the state’s total

|, t0 71 — also tops in country — since
_ 3,the U.S. Supreme Court in 1976 al-
- ,,Jowed executions to resume.

_ In appeals, defense attorneys con-

; 5 tended Barnard suffered from para-

noid delusions and that he didn’t
‘understand his punishment.

. Prosecutors, however, said the for-
mer carpenter from San Antonio

- g, gave no indication he was mentally

, incapable of understanding the char-
ges and sentence.

“I don’t think there’s any realistic

Ww

-, question about that,” Warren Good-
: ,,80n, a Galveston County district at-

torney, said...
a: “From the time of his arrest,

y through his conviction, and even in
, receipt of some communications af-

_ ~ ter the conviction, he never showed

,, any evidence of delusions or mental
instability,” said Jack Brock, who
.. prosecuted Barnard in 1980.

-. Barnard had a long criminal re- _

, cord going back to 1960 with arrests
for larceny, assault with intent to

rape, burglary and possession of a

~. deadly weapon. He had served at
least two previous prison terms.

,

TORS ES or cree
Le gee e+

: ry
sf .
re

Oo ene weet wae oes. g

o -
oe mete werent en Smee f. e ices

: Sep agalp ge ale

| Wednesday, Feb. 2, 1994

Houston Chroni

re
Oe oy

‘
tf SE RAG feet.

ae:
oe

The system works ve

Exception is taken to the letter,
“System is not working,” by Lee
Wells Flowers (Viewpoints, Jan. 25).

Flowers criticizes the verdict of 12
representative citizens of this com-
munity, who decided to assess, as
punishment, life imprisonment. to
Roger Leroy DeGarmo for a murder
committed Jan. 8, 1979.

Flowers says: “We all should know
that a life sentence here is tanta-
mount to approximately five years in
prison.”

This statement is absolutely false.

If a person is convicted of a capital
murder committed after Sept. 1, 1993,
then that person must serve 35 calen-
dar years within the prison system
before his file will be forwarded to
‘Austin for review.

Parole is possible only if, after 35
years, 12 of 18 members of the Parole
Board approve his release on su pervi-
sion for life. Beginning Sept. 1, the
mandatory minimum will be 40 cal-
endar years. Also, there is no release
on “mandatory supervision” if the

sentence is life imprisonment.

DeGarmo has already been in
prison over 15 years. — __

After he has been in prison for 20.
calendar years, then pursuant to a
Statute effective on the date of this

offense, pur:
be reviewed
will notify t
ested parties
his victim, w
nity to be h
about parole
Finally, F)
mo’s expres
Flowers com
ers are remo
Selves, are
their own liy
testify in his
remorse wer
decided by th
The system
trial was co
auditorium o
lege of Law.
folks who obs
desire for a p
agreed with t!
prisonment.
The sentenc:
Stood as the re
Sideration of :
intelligent and
istered voters.

Edward A.
for Roger Le:

Re a


378 VII. AMERICAN STATE TRIALS.

ent that the accused is so situated that he could offer evi-
dence of all the facts and circumstances, as they existed, and
show, if such were the truth, that the suspicious circumstances
ean be accounted for, consistently with his innocence, and
he fails to offer such; the natural conclusion is that the proof,
if produced, instead of rebutting, would tend to sustain the
charge.’’

Gentlemen, that is strong language and directly applicable
to this ease. The facts could all be explained by the defend-
ant, if innocent, consistently with that innocence. Show to
this court and jury, gentlemen for the defense, that notwith-
standing the circumstances and evidences of guilt against the
prisoner are almost overwhelmingly against the probability
of his being innocent; yet, in order to rebut those circum-
stances and explain to the entire satisfaction of this jury that
the blood of Golden is not upon his hands; come up and show
how he came in possession of Golden’s effects; how he came
to date the letter of Golden, and the receipt; in short, ex-
plain away all the circumstances of guilt against him and
let this jury know that he is not guilty, as charged in the in-
dictment, of murdering James P. Golden. Could he not ex-
plain them away? Yet, not a single witness does he intro-
duce, and not a single effort made to rebut the evidence intro-
duced on the part of the State, which established so strongly
his guilt; and that, too, when the life of the prisoner is at
issue.

Mr. Bowman went with the prisoner from his uncle’s in
this county, to the house of Mr. Childers, near Quitman.
They traveled hard all day and until after 12 o’clock at night
and then this sick man (turning to the prisoner) who could
not eat dinner the day before, who could not eat supper the
evening before, who could not rest well the night previous,
and who could not eat any breakfast that morning, other than
drink a cup of coffee cut in the yard, wanted to continue on
through midnight darkness and swim Sabine River, in order
to get further and further away from that aceursed spot
where he had murdere:! Golden; the very recollection of which

eles ER

STEPHEN M. BALLEW. 379

was haunting his black and guilty conscience still. His con-
duct was so strange that Childers and his family noticed and
talked about it. There he sold Childers that faithful gray
stallion, which we have here now, and which has been to us
like a beacon of light sent from Heaven to assist in ferreting
out this foul crime. Bowman and Childers both testified that
there was no such a man along with the prisoner as Golden.
That the prisoner never mentioned the name of Golden and
never stated a word about going to Jefferson or having goods
there, but was making directly for Shreveport. While at
Quitman the prisoner mailed to Miss Clara Golden this let-
ter.’ There it was that he started this message to the young
lady who afterwards became his loving wife—the sister of
James P. Golden—stating to her that ‘‘James is along and
seems to be enjoying the trip finely, especially the profits of
the trip.’’ The letter is written in red ink, and a more ap-
propriate color—however distasteful—could not have been se-
lected for the occasion. It resembles blood, and while the
innocent sister, to whom it was sent, was not cognizant of
the fact, yet, the same hand that guided the pen in making
those apparently bloody lines, had, but a few short hours
previously shed the innocent blood of her brother.

But I must press on, for already have I consumed too
much of your time. The prisoner started from Quitman with
Newt. Childers. They went directly to Shreveport, and there
the prisoner filled the dates in Golden’s letters, which he
had gotten him to write before murdering him, and mailed
them at that place, as the postmarks show. He wrote two
letters at the same time that he dated Golden’s, and he made
the same mistake as to date, in each of his, as he did in all
four of Golden’s, dating them November 1, and mailing Oc-
tober 31. The prisoner goes on to New Orleans, and from
there, November 6, 1870, he writes to his sister in Kentucky,
who was so very sick while he was in Texas, that caused him
to hurry away with criminal haste, as follows: ‘‘I am well
as usual, and have succeeded in business this trip beyond my

1 See ante, p. 340.

<« &

382 VII. AMERICAN STATE TRIALS.

the miserable subterfuge that had Golden been killed in Texas
it would have been published in all the newspapers through-
out the country. We find him acknowledging to Mr. Golden
that he had cireulated reports about having seen his son in
Missouri, but said he thought it was the understanding be-
tween them that he should do so in order to keep down
suspicion. We find him requesting the Golden family to say
nothing about the absence of James; that it should be all
kept in the family, and as he was the loser, he would say
nothing about it if they would do the same. He told Mrs.
Golden that if the matter would become known he would
take his wife and go off where he would never be heard of.
We find him telling Mr. Golden different statements as to
where he last saw his son. We find him charging young
Golden with having run off with his money, yet he has notes,
ete., to the amount of near $12,000 against the Goldens, for
which he never gave one single farthing. He wrote to John
W. Golden, from Shreveport, that James had all the papers
and receipts with him; yet we find on the person of the pris-
oner at the time of his arrest not only the notes, receipts
and deed of trust, but even the warranty deed to Golden’s
lands, which he had induced Golden to take along on the
trip. We find him in possession of all of Golden’s property
and disposing of it as his own. We have him telling his
cousin that James Golden intended to come down, but some-
thing happened and he did not come. We have read to you
in evidence the letter of the prisoner mailed at Quitman to
Miss Clara Golden,!? in which he states that James is along
and enjoying the trip finely; when we have proved that no
such person as Golden was with him while there. We have
shown that the dates in the Jefferson letters are in the pris-
oner’s handwriting, and that they were mailed at Shreveport
one day before they purport to have been written at Jefferson.
We have also established that the date in the receipt is the
writing of the prisoner. We have proved that the very boots
which the prisoner wore when he stood at the hymeneal altar

12 Ante, p. 339.

STEPHEN M. BALLEW. 383

and gave in marriage to Miss Clara Golden the hand that had
murdered her brother, were the boots that he had taken from
James P. Golden. We have proved the mysterious disap-
pearance of Golden from the prisoner and his conduct relative
thereto. We have proved that Golden’s remains were found
some four months afterwards within 150 yards of where he
was last seen with the prisoner and the last time ever seen
alive. We have identified his body, together with the fact
that he met death by voilence at the hands of another person.
In fact, we have brought together such a chain of circum-
stances so closely connected and interwoven together that they
establish so unmistakably the guilt of the prisoner that the
most doubtful can have no possible doubts in regard to his
being the person who took the life of James P. Golden, and
yet, you will be asked by the prisoner’s counsel, whether you
have not some lingering doubt as to the guilt of the prisoner,
and if so, that you must give him the benefit of it. Of course,
gentlemen, you could raise some imaginary doubt about every
transaction relating to human affairs, if you were so disposed
but that is not such a one as the law contemplates by ieee
able doubt. The doubt, in order to acquit, must be actual
and substantial, not mere possibility or speculation. You
must remember that you cannot disbelieve as jurors and be-
lieve as men, for the law says whatever amount of evidence
It takes to satisfy you as men, must satisfy you as jurors. Now
let me ask each of you as men, are you not satisfied to a vaaral
certainty that Stephen M. Ballew, as charged in the indict-
ment, took the life of James P. Golden? If you are, then
go to the jury room and with that moral courage which char-
acterizes the acts of honest men, return a verdict according
to your honest convictions, however hard it may be to do.
Do not falter, I beg you, when the hour for action comes,
Gentlemen of the jury, so far as I am concerned, I will
now leave this case with you, asking, as a last request, that
you give the able gentlemen who represent this unfortunate
prisoner, that patient and close attention which you have so
kindly given to me, and for which I now return to each one
of you my kindest thanks. And for my talented friend and

ty

376 VII. AMERICAN STATE TRIALS.

where he had buried the lifeless, yet, warm body of Golden.

The prisoner seemed very sick when he got to his uncle’s.
Mrs. Ballew testified that she prepared dinner expressly for
him, it being a little past dinner time when he came, and that
he went out to the table but refused to eat anything. That
his actions were different from what they were on his first
trip. That he was excited and restless. That he would not
eat any supper in the evening, and only drank a cup of coffee,
out in the yard, for breakfast next morning. That he was
in very great haste to start, and actually did leave early the
next morning after his arrival. How will you account for
all this conduct? Can you believe it was natural? No, gen-
tlemen, the answer suggests itself. The spirit of the mur-
dered Golden was hovering around and tormenting him. The
blood of the murdered victim, which was then yet warm on the
hands of this demon, seemed to cling to him, and brand his
every act as the act of a murderer.

Gentlemen of the jury, tell me not, that this prisoner could
eat and sleep after perpetrating such a terrible crime; after
having killed, in cold blood, the innocent son of Mr. and Mrs.
Golden, who had so kindly befriended him in days past; after
his murderous eyes had witnessed, and his bloody hands had
executed the promptings of his wicked and depraved heart,
in taking the life of Golden, without warning, without prep-
aration for death, and without time to even utter a short
prayer asking his Heavenly Father to forgive him, through
His infinite merey, for the unbounded and unlimited confi-
dence he had heretofore placed in the vile wretch who mur-
dered him; without giving him time to say farewell—mother
—father—brothers—sisters, he will never meet again on earth,
but God grant that they may meet on the other side of the
dark river—in the world above the sun, where murderers are
not permitted to enter. No, it is not strange to my mind that
he could not eat and sleep. You remember, the prisoner
refused to eat, refused to sleep, was restless and uneasy while
at his uncle’s, and alleged as a cause for all of it that his
sister was sick in Kentucky. He disposed of young Golden’s

STEPHEN M. BALLEW. 377

property, clothing, ete., at low figures, in different ways, and
to different parties, and in company with Mr. Savane: left
his uncle’s house early the next morning, taking with him
some of the horses belonging to old Mr. Golden, which he
had brought down on the first trip. I wish now to call your
attention to the law upon the recent possession of the fruits
of crime, as set out in Burrill on Circumstantial Evidence
Phillips on Evidence, and Wharton’s American Criminal Law

The law recognizes the fact that recent possession of the
fruits of crime, unexplained, is strong and almost conclusive
evidence that the party in whose possession it is found, came
by it wrongfully, and especially so, where the articles are of
such a nature that the person is bound to know that he has
them. In this ease we find the prisoner in the recent posses-
sion and claiming as his own, all the property of young Gol-
den, including the wagon, horses, guns, trunk, clothing, boots,
ete. We find him in very recent possession of Golden’s un-
derelothing, socks, handkerchiefs, necktie, and even his pocket
knife! The prisoner knows when and where he got them. He
knows how and from whom he got them; and while the law
does not require him to prove his innocence until his guilt is
once established, yet, the law says, with equal force, that when
facts have been proved by the State, which constitute an of-
fense, it then devolves upon the accused to establish the facts
or circumstances upon which he relies to excuse or justify
that offense. No person is required to contradict or explain
says the law, until enough has been proved to warrant a aa
and reasonable conclusion against him, in the absence of
explanation or contradiction; but where such proof has been
made, and the nature of the case is such as to admit of ex-
planation or contradiction on the part of the accused, and he
offers no evidence to explain or contradict, can human reason
do otherwise than adopt the conclusion to which the proof
tends. But the law is still stronger, as I have read to you
and as I now repeat in the very language of the law, “That
when pretty stringent proof of circumstances is produced (as
in this case) tending to support the charge, and it is appar-

380 Vil. AMERICAN STATE TRIALS.

expectations.’’ ‘‘I may be in Kentucky next month on busi-
ness.’ - Not a single word said about her sickness. He has
no idea of being in Kentucky before next month, and then
only on business. Gentlemen, his sister was not sick and he
never thought of going to see her after he had got a safe dis-
tance from the thicket where Golden’s remains were found.
Then tell me what hurried this prisoner away from Jonathan
Ballew’s and out of Texas? The sickness of his sister is the
only cause he assigned for it, and that was groundless or he
would have had the deposition of his sister, proving that she
was in fact sick at the time.

Would you not sooner believe that it was the sudden dis-
appearance of Golden that caused the want of appetite, un-
easiness and haste on the part of the prisoner? Will you not
believe it was getting Golden’s mouth forever sealed in death,
and these notes, this deed, and this receipt in his possession
calling for many thousands of dollars with no living witness
against their collection, that made him write to his sister
from New Orleans that he succeeded in business beyond his
expectations? There is no other hypothesis by which to
account for his conduct. But it does not close here. We
follow the prisoner on back to Illinois, and there that same
terrible torment seizes him and he cannot eat when young
Golden’s name is mentioned. You remember the testimony
of Mrs. Golden. She told you they were all seated at the
table eating dinner and James’ name was mentioned by some
of the children, when the prisoner left the table, pretending
to have a chill. You can never forget the statement she made
about the time when the children saw young Mr. Poage com-
ing, and took it to be Jimmy, as they ealled him. The pris-
oner had been merrier than common that day until the an-
nouncement that Jimmy was coming, and all the children
ran out to meet him, and this aged and feeble mother, as she
told you upon the witness stand, stood in the door watching
and waiting for her long-absent boy to come up. That she
herself thought it was Jimmy, and so declared in the presence

11 See ante, p. 340.

STEPHEN M. BALLEW. 381

of the children several times, while Mr. Poage was coming up
the lane, and that it was not until he got quite near the house
that she discovered her mistake, when with tears in her eyes
she turned and went into the house where she found the pris-
oner lying on the bed—winter time as it was—with great
drops of sweat flowing freely from his face and forehead and
seemingly in great agony, declaring he had a very severe
ehill.

The shock was too great for even one whose soul was for-
ever damned with crime, and upon whose brow the brand of
Cain was forever and indelibly impressed. It was unmis-
takably evidence of guilt oozing out through the very pores
of his skin, which God, in His wisdom, has created in every
being, and which he cannot disguise or prevent, I care not
however debased, or however much steeped in crime.

The more we investigate the conduct of the prisoner, the
more thoroughly we become satisfied of his guilt; the more
we follow him, the more crimsoned becomes his pathway;
the more he attempted to account for Golden’s absence, the
darker his terrible crime became; the more he attempted to
explain, the more intricately he became involved, until finally
to rid himself of the great and mighty burden that was rap-
idly crushing him down; to retard the wheels of justice that
were rapidly approaching him! to escape the avenging clutches
of the law that were then almost ready to grasp him, and in
order to check and blind public sentiment which was then
becoming so thoroughly aroused against him, we find him
driven to that last and dire resort of putting in circulation
reports that young Golden had been seen in Missouri; that
Miss Smith, who lived in Hancock County, had received a
letter from Golden and he was then away out in Colorado
Territory; that he himself had assisted Golden in loading
mules in Missouri for the Southern market. We find him
writing to Golden’s relatives in Kentucky, making inquiries
about him and cautioning them to secrecy. We find him
protesting with Mr. Golden against inquiries being made in
Texas, the very last place where Golden was ever seen alive,
and the last place from which he ever wrote a letter, under


384 VII. AMERICAN STATE TRIALS.

associate in this long and laborious case, Mr. Ewing, =
close on the part of the State, I would ask pipes ee
patient, indulgence which, to me, has SO remar a ef her
acterized your conduct throughout this entire ae g : i
im i f having ferreted out, an
To him is due all the honor 0 eo
being instrumental in bringing to the throne ve eae ae
that ever she
ice, one of the most foul murderers ni
his fellow man, or that ever made ee ae cn a
i hundreds of miles in the a .
soil. He has traveled many aged
i j k. and as to whether he
lishment of this herculean task,
nertorived his duty well or not, I leave 7 ~ oy
i in hi ill his voice be heard be
the first time, in life, will sci
j i of law and order, which in
jury, pleading the cause ; oe a, and I
d and so greatly outraged ;
have been so grossly violate 7
ask for him, again, your kind and em i ie tele -
in the fear of God and withou
algae " h the cause of justice to
- Do not sacrifice, I beseech you, i
hat of mercy. When mercy is asked on ae 1 ype aes
ber the innocent blood of James f.
oner, I ask you to remem : ea die
ber the terrible suifering
Golden. That you remem a ner
family. That your
brought upon the Golden ’ ; a
Res wai Paiehk upon that poor, emaciated and eT
ter, who is the shivering victim of this ese 4 ae s
M . . el ra
i tice first, an enr
ly and erime. Remember jus
ns and if, by so doing, you say by your sean ”
Lisi ever confident you will, that the prisoner, ae . i
i i in the first degree In taxin
is guilty of murder In
i uy nae P. Golden, and that he shall suffer the ge a
t an penalty of the law upon the gallows, no one un Bid
ound of my voice will acquiesce in your verdict more Tr ond
than JT. and no one in all this broad land will be pen re ore
prepared than myself, to exclaim with you, when that ve

is rendered, so be It.

JUDGE ANDREWS’ CHARGE.

I instruct you, gentlemen of the jury,

Ws.
ee eae divested of its formal words, charges

that this indictment,

STEPHEN M. BALLEW. 385

the defendant with the killing of one James P. Golden, with

a fixed, sedate and deliberate purpose to take his life.

Homicide is the destruction of the life of one human being
by the act, agency, procurement, or culpable omission of an-
other. By the ‘‘Penal Code’’ of this State, murder is defined

‘as follows: ‘‘Every person with a sound memory and dis-
eretion, who shall unlawfully kill any reasonable creature in
being, within this State, with malice aforethought, either ex-
press or implied, shall be deemed guilty of murder.’’ Murder
is distinguishable from every other species of homicide, by
the absence of the cireumstances which reduce the offense to
negligent homicide or manslaughter, or which excuse or jus-
tify the homicide.

All murder committed by poison, starving, torture, or with
express malice, or committed in the perpetration, or in the
attempt at the perpetration of arson, rape, robbery, or burg-
lary, is murder in the first degree, and all murder not of the
first degree is murder of the second degree.

Express malice is when one with a sedate, deliberate mind,
and formed design, kills another, which formed design is
shown by external circumstances, discovering that inward in-
tention, as lying in wait, antecedent menaces, former grudges,
or concerted schemes to do him some bodily harm.

The person killing must be of sedate, deliberate mind;
must be sufficiently self-possessed as to comprehend and con-
template the consequences of his acts; his acts must not be
the result of a sudden, rash, inconsiderate impulse or passion.

When the homicide is established, the law implies malice in
the killing, and declares the homicide to be murder of the
second degree, until the evidence establishes ‘‘express mal-
ice,’’ or that the life was taken in the perpetration, or in the
attempt at the perpetration of arson, rape, robbery, or burg-
lary, then it is murder of the first degree; or until the evi-
dence shows circumstances which reduce the offense to neg-
ligent homicide or manslaughter, or which excuse or justify
the homicide.

If you believe from the evidence adduced, that this de-
fendant, Stephen M. Ballew, as he is here charged, did mur-


f &.,

390 VII. AMERICAN STATE TRIALS.

“John W. Golden desires us to express the thanks of himself
and wife to G. W. Cameron, Deputy Clerk of the District Court at
McKinney, Texas; Judge Andrews, District Attorney Smith, Gov.
Throckmorton, Captain Brown, T. H. Murray, merchant at Mc-
Kinney, and the citizens generally of the town of McKinney, and
Collin County, Texas, for the many courtesies and kind treatment
extended to them during their recent visit to Texas to attend the
trial of Stephen M. Ballew, charged with the murder of their son,
James P. Golden. They were shown every attention, and citizens
vied with each other to make their visit as pleasant as was possible
under the sad circumstances, opened their hearts and homes, and
exerted themselves to make the father and mother prosecuting the
murderer of their son forget they were among strangers. Mr. and
Mrs. Golden will never forget the treatment they received, and
will always remember with pleasure the kind, warm hearts in the
town of McKinney, and Collin County.”

For some days previous to the execution, the condemned Ballew
had been removed from the dungeon to an upper room of the jail,
in the rear of the Sheriff’s office, where he was securely chained to
a ring fixed in the center of the floor, and to make his safekeeping
doubly secure, a guard of four men kept watch day and night. The
prisoner steadily refused to make any declarations as to his guilt
or innocence, but stated to Sheriff Bush on several occasions that
he would tell all, were it not for two things, but refused to state
what the two reasons were. On May 22, Rev. Mr. Hall, a minister
of the Christian Chureh, visited the prisoner for the purpose of
administering spiritual consolation; after conversing a short time
Ballew said that he had some secrets to disclose and exacted a
promise from Hall not to divulge them until after his demise. This
lead Hall to believe that the condemned man was going to make
a elean breast of his crimes, but instead of that he turned his con-
versation to some frivolous matter foreign to the subject, and in
an evasive manner said that he had something to impart but that
he would reflect upon the matter, That ended the interview.

THE EXECUTION.
May 24.

The multitude commenced to congregate by sunrise today, coming
to town by every avenue of approach and by every mode of con-
veyance, from the finest barouche down to an ox eart, horseback
and afoot, and by 12 o’clock fully 4,000 persons were on the
grounds. At this time the prisoner requested Sheriff Bush to
furnish him with a good square meal, who asked him what he pre-
ferred, to which he replied, “As it would be his last dinner, he
would take a regular old-fashioned Kentucky dish of bacon and
green beans with corn bread.” The Sheriff complied with his re-
quest. After partaking of this, his last earthly feast, a barber
was summoned to the cell and his services brought into requisition,
who shaved and dressed his hair. Donning the same boots and hat,

SE OM one ee aR eee

STEPHEN M. BALLEW. 391

on the trial, he re-
was a man of taste.
to requies more than
pants were originally
Quincy, Ill., and paid
oad wearing them at his
them through all the vari

trial, conviction, Sentence, execution ood

the same suit of black cloth that
marked to his guards while decetae ee z
The history of this black suit is so strange as
& passing notice. This suit, coat, vest and
bought of Mr. Jacobs, clothing merchant of
for with the proceeds of the murder
wedding he is then found wearing the
stages of his examination
burial. :
The execution had been an
ordinary interest. The cri
executed was of such a h

ticipated by the public with m
: ore th
me for which the condemned man sae

! orrible character that th i
the community generally was that he was meatitia’ att a dae ane

only adequate punishment. Th i
onl) nt. ere was an inte iosi
Bs val gains cin nag hear what the Siete ts
St one o'clock p. m. Sheriff Bush and hi ies
Disged eee In a wagon which contained his am oe
' =o a rong guard, marched to the place of execution south
rig ‘ reaching the gallows he proceeded to mount the seaf
ey w | sa vaicag — te the railing, smoking a cigar His
) etermined look, and after h
multitude of three or four th Without detemes ee
hre ousand persons with i
ria Pe a pitying eye, he defiantly set his plinngees ona hi
eee aoe of the Spectators and kept them steadily fixed :
ba ae pate 7 vou Pane, S. M. Ballew, who is now
KO . ou have met to see executed i
make any remarks upon this i ae eee
occasion. Fellow citi i
oe warning, not only to those within the sound ofa ai ie
ee oe 2 of the many painful duties of your teas
le s . hough when I accepted the offi f 1 <
County, I ‘accepted this d peat igent hag a
y; uty and there remains i
- el Saag Fen carry out the sentence of the ok Mee “a God
dhe e mercy upon this poor, unfortunate man, is my
The Sheriff then j
é proceeded to adjust th
i e ca
ced caer = pocphait — Ena Stephen M. Balled artes
ween and earth. The fall failed to break the neck and
convulsive struggles were visible f mate Pie: soe
ing twelve or fifteen minutes it Kas tenn Hat tha Bios Rae,
en mint ound that the n
bisa’ poles’ pare! air into lungs, whereupon obit oe
y1 ; le rope readjusted. He was all i
about thirty minutes when the b at Sod GET
ody was eut down and i
coffin, He had made no confession whatsoever as si pac a


388 VII. AMERICAN STATE TRIALS.

own selection, found guilty of murder in the first degree, and
your punishment assessed at death—for the highest crime
known to the law you were adjudged to suffer the severest
punishment known to human tribunals. From this lan
you prayed an appeal to our Supreme Court, which, remove ;
from all possibility of prejudice, upon full examination 0
your case, affirmed the judgment of this court.

Therefore, in obedience to the mandate of our said Supreme
Court, which is now upon the file in this court, it becomes
my solemn and painful duty to pronounce upon you the sen-
tence of the law, in pursuance of verdict of the said jury, by
which you are to pass from time into eternity. Before doing
so, I would recommend to you that you devote the short time
yet allowed you by the law, to a preparation for your appear-
ance before that Great and August Tribunal, whose Judge
is infallible.

Have you any lawful reason to offer why this awful sen-
tence should not be now pronounced ?

It appearing to the Court that you have no legal reason ks
offer, it is ordered by this Court that you be remanded oe
custody of the Sheriff of Collin County, to be by him sa ely
kept until Friday, the 24th day of May next, 1872, when, in
pursuance of the judgment of this Court, and in en
to the mandate of our said Supreme Court, you shall, by sal
Sheriff, within the hours prescribed by law, be hanged by the

i are dead.
apres enabled, in the meantime, to obtain pardon
from your sins, and salvation for your soul.

The prisoner received his sentence very coolly and smiled as
i as returning him to prison.

Ee eed last effort to save the prisoner from races: ms
‘ust punishment, was an application to the Governor * a ri
saan ie of the sentence to confinement he ei se x soa
ife. 71 ied to this appeal on April 2, as :
life. Governor Davis replie ra ay, ag ort

“In this ease I have examined as carefully poss :
mi: of facts shown on the ae of hacen ee ak, has

de in some way has taken the hte o oe
es Sa seihliealon nor oe acknowledgment on the he ue
he certataty must know something of the manner sa ae 4 one
He is last seen with Golden a short distance from where a body

« 2 ,

STEPHEN M. BALLEW. 389

been found, that seems strongly identified as Golden’s body. Just
after, he is seen (near where the body is found) in company with
Golden, he turns up at his (applicant’s) uncle’s house a few miles
from where he and Golden are seen together with the horses, team,
ete, and trunk and clothes of Golden. He then pretends that
Golden had given up the trip and remained at home in Illinois.
There can be no doubt that he had killed Golden.

The Judges of the Supreme Court who have recommended a
commutation of his sentence, inform me that their reason for doin
So was because it seemed to them possible that he had killed Golden
in some dispute or personal encounter. The Judges do not have
any doubt of the actual killing.

I, however, cannot imagine from all attendant circumstances that
this can have been the case. One sufficient objection to the hy-
pothesis is seen in the circumstances that applicant has not him-
self pretended it; accordingly, I must conclude that Stephen M.

Ballew is fully guilty of the crime of murder, and without any
palliation.

I therefore decline to interfere; and direct that the proper officer
proceed to carry out the sentence.”

After the conviction the citizens of McKinney held a meeting
for the purpose of offering a tribute of respect to Mr. Ewing and
Mr. and Mrs. Golden, on the oceasion of their departure for home.
After drafting a set of resolutions expressive of sympathy for the
bereaved parents, and thanks to W. G. Ewing, for his able services
in the important trial just closed, a number of prominent citizens,
accompanied by the McKinney Brass Band, proceeded to the hotel
and serenaded the parties, playing “Welcome, Lafayette,” and other
national airs, after which John Murray stepped forward and made
a few remarks appropriate to the oceasion, and in behalf of the
citizens, presented Mr. Ewing and Golden each with a cane of Me-
Kinney material and workmanship. These canes are made of Bois
d’Are wood of native growth. Mr. Ewing’s cane is a_ perfect
model of beauty and symmetry, mounted with an elaborately wrought
gold head, octagon in shape, with the following engraving on the
plain surfaces forming the angles: “Presented to W. G. Ewing, Esq.,
of Quiney, IIl., by the citizens of Collin County, Texas, in appre-
ciation of the able manner in which he prosecuted the Ballew mur-
der case,” and on top or crown is represented the emblemmatical
Lone Star, with five points, at each point one of the five letters,
T E X A §, and in the center, 1871, a beautiful design, well exe-
cuted. Mr. Golden’s cane is mounted with a massive silver head,
simply with his name, John W. Golden, May 24, 1872, the date
of the execution, the engraving having been deferred until after
that event took place. On the following morning, they took leave
of many warm friends, and started for their distant home in TIli-
nois, where they arrived in safety. On arriving at home Mr. Golden

caused the following card of acknowledgment to be inserted in the
Quiney Herald:

VII. AMERICAN STATE TRIALS.

386

der James P. Golden, in Collin County, Texas, or any day
prior to the 29th day of March, 1871, the day of the filing of
this indictment, you will find him guilty, and you will also
find the degree of the murder, and then assess the punishment.

The punishment for murder of the first degree is either
death, or confinement in the penitentiary for life. The pun-
ishment for murder of the second degree is confinement in
the penitentiary for such a term of years as the jury may as-
sess, not less than five.

The State having introduced the declarations of the defend-
ant, is bound by them, so far, unless they are shown to be
false, by either direct or circumstantial evidence.

The defendant is presumed to be innocent until his guilt is
established by legal evidence, which may be either direct or
circumstantial. If you have a reasonable doubt of the guilt
of the prisoner, it is your duty to him, to yourselves, your
country, and your God, to find him not guilty. The doubt
that will justify this verdict must be actual and substantial,
not mere possibility or speculation. Everything relating to
human affairs, and depending upon moral evidence, is open to
some possible or imaginary doubt. The certainty which will
justify a verdict of guilty, is that state of the case, which,
after the entire comparison and consideration of all the evi-
dence, leaves the minds of the jurors in that condition that
they can say that they feel an abiding conviction to a moral
certainty of the truth of the charge.

Gentlemen of the jury, after eleven days of patient labor,
we approach the end of this trial. To the Court is assigned
the duty of explaining to you the law, but you, and you alone,
under the law and the evidence as given you can, and must,
decide upon the guilt or innocence of the prisoner at the bar.
Impartial as I know you are, being guided alone by the law
and the evidence, your conclusion, whatever it may be, will
commend itself not only to your own sense of justice and
right, but also to the severer Judgment of that Being before
whose Bar we must all stand hereafter to be judged.

You will now proceed to the discharge of your solemn duty.

a fy ,

STEPHEN M. BALLEW. 387

THE VERDICT.

December 8
’ °
Phas ae clock the jury came into court and announced that
sf “¢ agreed upon a verdict. The Court ordered th
as hk Sa Kage called and they all answered The
en handed their verdict to th
eat I e clerk, who read j
Re eae the hah find the defendant, Stephen M oa:
W, murder in the first degree, as cha : ;
uty 4 rged
ae of ee and assess his punishment at heel ne
€ neck until he is dead. Martin W. Gentry, Foreman ” :

December 9,

Pe ein for the prisoner today made a motion for a
i al, and on the motion being denied by the Court, an
he ae liies na from the District Court upon a eat of
tia ee eden Court held at Austin, where the case
sHeiootedl ts at e 8th day of April, 1872. The convict again
mane toe his escape from the jail, which he came
- i. mplishing about the Ist of February. He had freed

mself of his fetters and was ready to escape a second time

had it not been for the ti i
tae e timely discovery by the keeper of the

THE SENTENCE.

April 13, 1872
The Supreme Court event '
ually confirmed the findi
the court below, and ordered the Judge of the Eleventhetice

cial District to pass sent i ;
ofthe sue Pp ence In accordance with the finding

. J ie ANDREWS. Sir: At the last term of this court, after
protracted, impartial trial, you were, by a jury of your

78 State v. Ballew, 36 T
closed in these words : “Tn Sia ot ihe fa yt
had upon circumstantial evidence alone perien
that those circumstances may have led to
this ease, we recommended for this appe

ecutive clemency, i i
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’8 written opinion
the conviction was
and the bare possibility
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“The point I’m trying to make, Mr.
Smith, is this. You can see why we
have a range of punishment for
murder.

Yes, sir, I see.

And all I’m saying is, do you feel
like that as a juror in the State of
Texas, that you could sit and listen
to the evidence and consider the full
range of punishment in a criminal
case. If it’s a murder case you
could consider not less than five
years or life in the Texas Depart-
ment of Corrections in that proper
case where the facts justified it.
Where the law allowed it and the
circumstances warranted that par-
ticular punishment? That’s the
point I’m trying to make.”

[10] Smith stated that he could consider
the minimum punishment in a proper case.
The record does not support appellant’s con-
tention that Smith could not give the mini-
mum punishment of five years and that the
juror was subject. to challenge for cause
pursuant to Art. 35.16(c)(2), V.A.C.C.P.
Von Byrd v. State, supra.

[11] Since we have concluded that Ko-
priva, Latsha, and Smith were not excluda-
ble for cause, it follows that appellant was
not wrongfully deprived of a peremptory
challenge upon a venire member who was
subject to challenge for cause or forced to
accept such a venire member as a juror.
Thus, the trial court did not abuse its dis-
cretion in denying appellant’s request for
three additional peremptory challenges.
Von Byrd v. State, supra; Burns v. State,
556 S.W.2d 270 (Tex.Cr.App.1977).

In twelve grounds of error, appellant
complains of the admission of evidence of-
fered to show a motive for the commission
of the instant offense that also shows he
committed extraneous offenses in New
Mexico. Michael Roach, a deputy sheriff in
Valencia County, New Mexico, testified
that he arrested appellant on October 29,
1977, for criminal sexual penetration of a

596 SOUTH WESTERN REPORTER, 2d SERIES

minor and later took him before a magis-
trate for arraignment. John Horecek, a
magistrate in Valencia County, testified
that he arraigned appellant on November 1,
1977. At this time, Horecek informed ap-
pellant that he was charged with two
counts of sexual penetration of a minor
carrying a maximum punishment of impris-
onment for life and one count of kidnap-
ping carrying a maximum punishment of
imprisonment for fifty years, and set bail at
$100,000. Ronald Childress, a New Mexico
attorney, testified that he represented ap-
pellant in regard to these charges and that
a trial was set for January 30, 1978. Law-
rence Romero, sheriff of Valencia County,
Daniel Hawkes, a deputy sheriff, and Vel-
ma Hardesty, the jailer, testified that ap-
pellant escaped from the Valencia County
jail on January 9, 1978. These witnesses
identified and the trial court admitted in
evidence certified copies of the complaint,
indictment, and arraignment in the sexual
penetration and kidnapping case, and an
indictment and arrest warrant charging ap-
pellant with escape.

[12,13] In its charge to the jury, the
trial court limited the jurors’ consideration
of these extraneous offenses to the question
of appellant’s motive for killing the de-
ceased. One of the exceptions to the gener-
al rule that an accused is entitled to be tried
on the accusation made in the State’s plead-
ing and not for some collateral crime or for
being a criminal generally is that evidence
showing a motive is admissible even though
it also shows the commission of an extrane-
ous offense. Hughes v. State, 563 S.W.2d
581 (Tex.Cr.App.1978); Cherry v. State, 488
S.W.2d 744 (Tex.Cr.App.1972); Rodriguez v.
State, 486 S.W.2d 355 (Tex.Cr.App.1972);
Stephens v. State, 147 Tex.Cr.R. 510, 182
S.W.2d 707 (Tex.Cr.App.1944).

Although several cases in which extrane-
ous offenses were held admissible to show
motive were prosecutions for escape or for
offenses growing out of an escape, appel-
lant is mistaken when he argues that the
rule of admissibility is limited to this nar-

BAREFOOT vy. STATE Tex. 887
Cite as, Tex.Cr.App., 596 S.W.2d 875

row fact situation. In Hughes v. State,
supra, the defendant shot a police officer
who had stopped him for investigation of a
reported case of credit card abuse. This
Court held that the defendant’s extortion
conviction in an Alabama federal court sev-
en months prior to the shooting, which re-
sulted in a three-year. probated sentence,
was admissible to show motive. In Cherry
v. State, supra, the defendant’s escape from
a Georgia penitentiary, where he was serv-
ing a life sentence, was held to be admissi-
ble to show his motive for shooting a police
officer eight months later. To the same
effect are Washburn v. State, 167 Tex.Cr.R.
125, 318 S.W.2d 627 (1958) (evidence that
the defendant attempted to extort money
from his victim four years prior to the
murder) and Ellisor vy. State, 162 Tex.Cr.R.
117, 282 S.W.2d 393 (1955) (evidence that
the defendant committed a burglary two
days prior to shooting a police officer who
stopped him for speeding.)

[14] Appellant argues that it was un-
necessary to admit the New Mexico of-
fenses because there was other evidence of
motive, including the apparent arson at the
Silver Spur and statements appellant had
made to friends threatening to kill a Hark-
er Heights policeman. That appellant may
have had other motives for killing Levin,
however, does not mean that he was not
motivated by a desire to avoid his return to
New Mexico. See Hughes v. State, supra;
Ellisor-v. State, supra. The trial court did
not err in admitting the evidence of extra-
neous offenses for the limited purpose of
showing motive.

[15] Appellant contends that the trial
court erred by refusing to define “probabili-
ty” in its charge to the jury at the punish-
ment stage of the trial. This Court has
previously held that such a definition is not
required. King v. State, 553 S.W.2d 105
(Tex.Cr.App.1977). No error is presented.

Two psychiatrists, Drs. John Holbrook
and James Grigson, were called by the
State to testify at the punishment stage of

the trial. Both doctors were given a hypo-
thetical fact situation based on the evidence
in this case and asked if the individual
described in that question would probably
commit future acts of violence that would
constitute a continuing threat to society.
Both doctors testified that in their opinion
he would do so.

Appellant argued at the trial, as he does
now on appeal, that Holbrook and Grigson
were not qualified to give an opinion as to
his future conduct because they had not
personally examined him and based their
opinions solely on the State’s hypothetical
question. Appellant also argues that psy-
chiatrists, as a group, are not qualified by
education or training to predict future be-
havior. Appellant does not contest the indi-
vidual qualifications of either witness.

{16] This Court is well aware that the
ability of psychiatrists to predict future be-
havior is the subject of widespread debate.
However, we are not inclined to alter our
previously stated view that a trial court
may admit for whatever value it may have
to a jury psychiatric testimony concerning
the defendant’s future behavior at the pun-
ishment stage of a capital murder ‘trial.
Chambers v. State, 568 S.W.2d 313 (Tex.Cr.
App.1978); Moore v. State, 542 $.W.2d 664
(Tex.Cr.App.1976).

17] The trial court did not err by per;
mitting the doctors to testify on the basis of
the hypothetical question. The use of hypo-
thetical questions in the examination of ex-
pert witnesses is a well established practice.
2 C. McCormick and R. Ray, Texas Evi-
dence, Sec. 1402 (2d ed. 1956). That the
experts had not examined appellant went to
the weight of their testimony, not to its
admissibility.

[18] Appellant argues that the hypo-
thetical question was improper because it
was not based on all of the evidence in the
case. Although a_ hypothetical question
must be based on the facts of the case,
counsel may assume the facts in accordance

A OOO Mem animorer ine


<4 oe ae ee ee
Cid ne ee a ee ae |
Me vtec Si or ate oer. iin leas a 4

888 Tex. 596 SOUTH WESTERN REPORTER, 2d SERIES

with his theory of the case. If the oppo-
nent desires to secure the expert’s opinion
upon a different set of facts he may do so
on cross-examination. Atkinson y. State,
511 S.W.2d 293 (Tex.Cr.App.1974); Knoep-
pel v. State, 882 S.W.2d 493 (Tex.Cr.App.
1964); McMurrey v. State, 145 Tex.Cr.R.
439, 168 S.W.2d 858 (Tex.Cr.App.1943); Da-
vis v. State, 54 Tex.Cr.R. 236, 114 S.W. 366
(1908). These grounds of error are over-
ruled. :

[19] Appellant also contends that Hol-
brook and Grigson should not have been
permitted to express an opinion as to the
probability of future violent behavior on his
part because such testimony constitutes a
legal conclusion. Appellant cites the case
of Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup.
1965). In that case, the Court held that

“a witness may not be asked whether a
testator had the mental capacity to make
and publish a will because, under Brown
v. Mitchell [88 Tex. 350, 31 S.W. 621
(1895)] whether a person has mental ca-
pacity to execute a will involves a legal
definition and a legal test. A witness
may be asked, assuming he knows or is a
properly qualified expert, whether the
testator knew or had the capacity to
know the objects of his bounty, the na-
ture of the transaction in which he was
engaged, the nature and extent of his
estate, and similar questions.” 393
S.W.2d at 813.

Appellant argues that a witness should not
be permitted to testify that there is a prob-
ability that the defendant would commit
criminal acts of violence that would consti-
tute a continuing threat to society because
the question involves a legal definition and
a legal test.

Appellant’s contention is without merit
for the simple reason that “probability,”

“criminal acts of violence,” and “continuing

threat to society” are not terms defined by
statute or case law. On the contrary, they
are words of ordinary meaning. King v.
State, supra. Thus, the testimony in ques-

tion did not involve the application of a
legal definition or test. We also note that
if appellant were correct in arguing that a
witness may not express an opinion on a
matter involving a legal definition or test,
this would, among other things, prevent the
routine practice of asking a psychiatrist
whether, in his opinion, the defendant was
legally insane at the time of the offense.
V.T.C.A.Penal Code, See. 8.01.

[20] Finally, appellant contends that
Art. 37.071, V.A.C.C.P., is unconstitutional
because the term “probability” is so vague
that men of common intelligence must
guess as to its meaning and application.
This contention has been repeatedly over-
ruled by this Court. Granviel y. State, 552
S.W.2d 107 (Tex.Cr.App.1976); Collins v.
State, 548 S.W.2d 368 (Tex.Cr.App.1976);
Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.

1975), aff'd 428 U.S. 262, 96 S.Ct. 2950, 49 .

L.Ed.2d 929 (1976).

[21] At the punishment stage of the tri-
al, witnesses from various cities in New
Mexico, Kansas, Oklahoma, Louisiana, and
Texas testified that appellant’s reputation
in their communities for being a peaceful
and law-abiding citizen was bad. Evidence
was also admitted of appellant’s prior con-
viction in Louisiana for possession and dis-
tribution of marihuana, possession of am-
phetamine, and carrying a concealed weap-
on, and in a federal district court-in Oklaho-
ma for unlawful possession of a sawed-off
shotgun. This evidence, together with the
evidence adduced at the guilt-innocence
stage of the trial, is more than adequate to
support the jury’s affirmative answers to
the punishment issues.

[22-24] Although . appellant’s counsel
and the State have both filed briefs which
are of excellent quality and which greatly
aided the Court in its difficult decision, the
appellant has filed a pro se brief in which
he asserts additional grounds of error. In
addition to the grounds of error urged by
counsel appellant asserts that the trial court

CORDARY v. STATE Tex. 889 -

Cite as, Tex.Cr.App., 596 S.W.2d 889

erred in refusing to grant his motion for an
instructed verdict and in refusing to seques-
ter the jury during the trial. The evidence
that we have already summarized in this
opinion is amply sufficient to support the
jury’s verdict and the court did not err in
overruling appellant’s motion for an in-
structed verdict. The careful trial judge
considered the appellant’s motion concern-
ing the sequestering of the jury during the

trial and overruled that motion. Whether ~

to grant this motion is within the discretion
of the trial court, and we find nothing to
show an abuse of discretion by the trial
judge in overruling that motion. The
grounds of error presented by the pro se
brief are overruled.

The judgment is affirmed.

ROBERTS, J., concurs in result.

CLINTON, Judge, dissenting in part.

To the overruling of the twelve grounds
of error concerning admission of evidence
showing commission of extraneous offenses
in New Mexico, I respectfully dissent. The
Court appears to recognize other proof
made by the State and to acknowledge that
it showed appellant killed Levin from a
more immediate, localized motivation. Giv-
en the obvious prejudicial impact of the
extraneous New Mexico offenses, I cannot
agree that we may tolerate it on the double.
negative theory that existence of other mo-
tives for killing Levin “does not mean that
he was not motivated by a desire to avoid
his return to New. Mexico.” It seems clear
to me that this is the classic case where
slight probative value is far outweighed by
heavy prejudice.

PHILLIPS, J., joins.

© ¢ KEY NUMBER SYSTEM

AamMs

Robin CORDARY, Appellant,
v.
The STATE of Texas, Appellee.
No. 62376.

Court of Criminal Appeals of Texas,
Panel No. 3.

March 19, 1980.
Rehearing Denied April 80, 1980.

Defendant, who was convicted of sell-
ing LSD, appealed from an order of the
43rd Judicial District Court, Parker County,
Harry W. Hopkins, J., which revoked her
probation. The Court of Criminal Appeals,
Phillips, J., held that under statute in effect
at time of defendant’s conviction at which
time defendant was 16 years of age, district
court did not have jurisdiction over the
defendant, who was never made subject to
juvenile court proceedings prior to being
indicted and convicted as an adult, and
therefore her conviction was void; further-
more, inasmuch as defendant was not given
an examining trial prior to return of her
indictment, indictment was void.

Judgment reversed; prosecution under
indictment dismissed.

Dally, J., dissented.

Indictment and Information S=9
Infants ©=68.5

Under statute in effect at time of de-
fendant’s conviction at which time defend-
ant was 16 years of age district court did
not have jurisdiction over the defendant,
who was never made subject to juvenile
court proceedings prior to being indicted
and convicted as an adult, and therefore her
conviction for sale of LSD was void; fur-
thermore, inasmuch as defendant was not
given an examining trial prior to return of
indictment, indictment was void. V.T.C.A.,


BARNARD, Harold, white, ex. TX&P (Galveston) February 2, 1994

EXECUTION WITNESS LIST

¢

HAROLD BARNARD #683
February 2, 1994

OFFICIALS :

Ray Buvia, Assistant Attorney General, State of Texas
Dale Myers, Sheriff, Walker County

James Riley, Acting Executive Director, TDCJ

Wayne Scott, Deputy Director of Operations, TDCJ-ID
Sharon Keilin, Central Regional Director, TDCJ-ID

Kent Ramsey, Assistant Central Regional Director,TDCJ-ID
Dessie Cherry, Warden, Goree Unit, TDCJ-ID

David Jones, Captain, TDCJ Internal Affairs

Ron Edgington, Lieutenant, TDCJ Internal Affairs

Charles L. Brown, Assistant Director for Public Information, TDCJ~ID
David M. Nunnelee, Public Information Officer, TDCJ-ID

REPORTERS :

Janet Dial, The Huntsville Item

Wayne Sorge, United Press International

Mike Graczyk, Associated Press =
Jim Guidry, KGBC-Radio, Galveston
Chris Williams, Galveston Daily News {

PERSONAL WITNESSES:

Pamon Barnard, Son

H.A. Barnard, Father -—
J.W. Barnard, Uncle

Maude Barnard, Mother

Robert Barnard, Son

dh/4:00P
01/01/94

ea


~

NAME: Harold Amos Barnard D.R.# 683

DOB: 11/01/42 RECEIVED: 05/14/81 AGE: 38 (WHEN REC'D)
COUNTY: Galveston DATE OF OFFENSE: 06/06/80 _ :

AGE AT TIME OF OFFENSE: 37 RACE: White HEIGHT: 518"

WEIGHT: 155 | EYES: blue HAIR: brown

NATIVE COUNTY: Bexar - ' STATE: Texas |

PRIOR OCCUPATION: camp EDUCATION LEVEL: 12 years

7

PRIOR PRISON RECORD: #171758 03/22/63 3-years, Burglary (3), Disch: 11/10/64, Dallas
& Franklin Co.; #186497 10/28/65 3-years Burglary Coin Operated Machine, Ex—Con
Carrying Pistol, Dallas Co., Disch: 12/04/67

SUMMARY: Killed Tuan Nguyen, 16, a clerk at a Galveston 7-11 store managed by his

family. Nguyen was shot once in the heart with a sawed-off .22 caliber rifle fired

by Barnard during a robbery. Barnard and three codefendants fled in a stolen car

following the shooting and were arrested about 30 minutes later on I-45 North of

Galveston. The murder weapon was found inside the car, along with a Buck knife and a

loaded 12-gauge shotgun. Although Nguyen and his father were forced to put the money

from _the cash register into a bag, Barnard and his codefendants left the store

empty-handed after the shooting.
CO—DEFENDANTS : Murray Howard Jr. #319286, 15-years/Aggravated Robbery, Galveston
Co., DOB: 04/12/60, rec'd: 05/14/81 and paroled 10/22/86. Regina Faye Howard,

(Murray Howard's wife) #318150 12-years/Aggravated Robbery, Galveston Co., DOB:
y Bd

04/14/52, Rec'd: 04/15/81, released MS 03/05/85. James Charles O'Brien #318151,

7-yrs/Galveston Co., Rec'd: 04/15/81, rel'd MS 07/14/83. Ret'd MSV 08/19/85, rel'd MS

11/19/85, | — om
é x ;

RACE OF VICTIM(S): Vietnamése male


THE TAL O8 STEPHEN M. BALLEW For
E MURDER OF JAMES P. GOLDEN
McKINNEY, TEXAS, 1871.

THE NARRATIVE.

Stephen M. Ballew :
. ‘ew was a native of Kentuck
had become acquainted with John W. Golden, oe :
was in Quincy, Ill., when the ] , whose home
Kentucky. A
at the Golden
Golden that he

ay called
He told
nd mules

South to sell. A numb
sell. er of letters were received b
: family while he was in the South, in which he sbsigal os
ortunities for makin
g money, a
eee te Py ale to James P. Golden ie ie far
advised him to come down there w; 1 hi
with him
a hi But when Ballew got back he brought ee
So 4 . = ge his adventure; that one of the horses
nd tor the others he had been com
pelled to t
aie se: security, and he not only induced Mr i oe
ej € his note for the debt but to ] ms 3.
erable money for a new ady i Sen eae
enture in the South, in whi
he ee, James to go with him as a partner and to fe a
nati thousand dollars for the purchase of live stock All
ng settled, Ballew and James left the Golden house wilh a

horse and wagon and
a large trunk, on th me
was to bring fortune to the family: verge whith

Letters filled with glowing ace
from time to time to the expectan

324

ounts of their success came
t family, but several months

STEPHEN M. BALLEW. 325

later Ballew returned to the Golden house alone, telling the
family that he had lef}, James in Texas to close up the business
and that he would be jjome soon. He was allowed to make his
home with the Goldens and in a short time married one of
the daughters. But tp all inquiries as to what had become of
the son he gave evasive answers; sometimes pretending to
have heard from him and sometimes that he was searching
for him and had employed detectives to look him up. Finally
old Golden lost patience and brought suit for the money Bal-
lew owed him and when it was discovered that Ballew had
brought back with hjza most of the clothing that had belonged
to James, people began to suspect that he knew some-
thing of the disappearance, and eventually he was arrested
in Quincy, IIL, and charged with the murder of young Golden.
A long preliminary examination was held, but the body
had not been found and the chance of holding him was small,
when one day the news came that a corpse had been acci-
dentally discovered hidden in the ground near a place in
Texas where Ballew and Golden had camped one night. The
remains were identified as those of young Golden. The
Governor of Texas asked his extradition, which was granted,
and after a long tria} there Ballew was convicted and hanged.

THE TRIAL.’

In the District Coyrt of Collin County, McKinney, Texas,
November, 1871,

Hon. W. H. ANDREWS, Judge.
Quincy, Ill., February 14.

This morning, in tae City of Quincy, Illinois, the preliminary
examination before Justice Barker of Stephen M. Ballew, charged
with the murder of James P. Golden in the State of Texas, began.
The proceedings were to determine whether the prisoner should be
held in eustody to await a requisition from the Governor of Texas,

and lasted for severa] days.

1 Bibliography. “The Climax in Crime of the Nineteenth Cen-
tury, being an Authentic History of the Trial, Conviction and Ex-
ecution of Stephen Merris Ballew, for the Murder of James P.
Golden, in Collin Coynty, Texas, on the 21st day of October, 1870,

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LAST WORDS

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Lo Dehba ar: SP /fntrtt ges gsc leh of. YL Up Fe pase,

FRANK NEWTON OFFICE SUPPLY-DOTHAN


326 VII. AMERICAN STATE TRIALS.

February 16.

Mr. Ewing, State’s Attorney (Illinois), said that all the evidence
available on the part of the prosecution had been introduced, and
that the counsel for the People were unwilling to have the case de-
cided until they have an opportunity to produce witnesses to supply
the proof of the death of James P. Golden in Texas. He expected
in a short time to obtain news of the finding of the body, and that
he would be able to obtain testimony that Ballew was guilty of the
crime charged against him. He moved a continuation of the exam-
ination until Saturday, the 25th instant, which was granted by the
Court.

Quincy, Ill., February 25.

The preliminary examination of Stephen M. Ballew, charged
with the murder of James P. Golden, was continued today before
Justice BARKER. Mr. Ewing said that since the adjournment of the
examination on the 16th instant, the Cireuit Court had been in
session, and the Grand Jury had found seven indi¢tments against
Ballew, the defendant, charging him with larceny and swindling,
and that he was now in the hands of the law of this State, if this
examination was continued, whatever action might be taken by the
examining court or the Governor of Texas, would not affect the

with a Short Sketch of the Early Life of the Murderer. By J.
H. Dudley. Quiney, February 28, 1872.”

A second title page gives a picture of the murderer, who is de-
scribed as “The Inhuman Murderer; the Expert Confidence Opera-
tor and the Monster Liar of His Age.” The pamphlet, which con-
tains a full report of the trial, has a somewhat lengthy sketch of
the murderer. Stephen Merris Ballew, it says, was born in Pen-
dleton County, Ky., about 1843. His father, Madison Ballew, stood
well in the community where they lived. His mother died when
Stephen was about six years old; he and his sister Belle were placed
in charge of Mrs. Margaret Caldwell, a sister of John W. and S.
M. Golden; they were in a destitute situation. Mrs. Caldwell kept
them but a short time, but, short as it was, it no doubt gave rise
to the intimacy with John W. Golden and family that proved so
ruinous in the end. His father having married again, and not bear-
ing the restraint of a stepmother, he roamed about the neighbor-
hood, never staying long at any one place, and grew up under no
restraint. He was fond of reading exciting tales, such as the dar-
ing deeds of desperadoes, remarkable trials and confessions, and
everything of that character that fell into his hands he would peruse
with the utmost avidity to the exclusion of everything else. While
reading such narratives, he no doubt formed a resolution to imitate,
or excel, the characters therein represented. His mind was thus
occupied up to the age of seventeen, when the rebellion broke out,
that event giving him the first start in crime. He went into the
rebel service, under Humphrey Marshall, was transferred to Gen-
eral Morgan’s command, and at the end of the war returned to Ken-
tucky, :

3

STEPHEN M. BALLEW. 327

position of the defendant here if he should be committed upon the
charge of murder, the authorities of this State would not deliver
him up even upon % requisition, until the indictments pending in
this State were tried, It appeared to him unnecessary at present to
take up any more time in the investigation of the charge of murder,
and in consideration of the circumstances, would dismiss the case.

John Williams, foy the prisoner, denied the right of Mr. Ewing
to dismiss on the ground that he was not State’s Attorney of Texas,
and had no more aythority over the case than the counsel for the
defense; he demanded that the Court require the prosecution to file
a bond for costs in pursuance of the statute, and insisted that the
Court discharge the Eofendant on the evidence introduced. The right
to dismiss was argued at length by Mr. Ewing, for the People. The
Covrt required a bond to be filed to secure the payment of the costs
incurred and permitted the prosecution to dismiss.

Ballew was then gommitted to jail upon the seven indictments

pending against him in the Circuit Court.
February 26.

Stephen M. Ballew was arraigned for trial on the seven indict-
ments; three of the iadictments charge the practice of the confidence
game, one charge 07 forgery, and three of larceny. The Court
fixed the bail in each, case at $2,000. Failing to procure the requi-
site bail, his attornzys made application for a change of venue
and affidavits were ojfered, based upon the prejudices of the people.

The Court, after grgument, ordered the cases to Hancock County
for trial, on the 11th, of March. Ballew was conveyed to the Han-
cock County Jail and locked up to await the March term of the
Cireuit Court of tha} county.

In the early part of the March term of the Circuit Court of
Haneock County, which had convened on Monday, the 13th, a de-
mand was made by the defense for a trial on the indictments above
inentioned. Mr. Ewing asked for and obtained a continuance to
the June term. Megnwhile, news arrived in Quincy that the body
of Golden had beey, found and Mr. Ewing at once started for
Texas, arriving there on March 23, the Texas Grand Jury having
found an indictment against Ballew for murder in the first degree.

Mr. Ewing next Ye Austin, the capital of the State, and ob-
tained of Edward .j. Davis, Governor of the State of Texas, a
requisition upon the Governor of the State of Illinois, for the body
of S. M. Ballew. My. Ewing returned to Quincy in the latter part
of the month of April, bringing with him the remains of young
Golden, and such other articles and effects as could be stowed in
a large trunk, the same trunk that young Golden earried away
from home on his trjp to Texas. The Governor of Illinois granted
the requisition.
June 3, 1871.

_ Capt. W. N. Bush, Sheriff of Collin County, Texas, arrived today
in Quiney, specially commissioned with the duty of transferring
Ballew from Illinois to Texas.


hours of Sunday, August 3, 1986, when
the quiet town slumbered in all its inno-
cence.

But not all of the residents were inno-
cent or slumbering on the Saturday night
that ebbed into Sunday morning. Satur-
day night, to a certain element, is party
night, the wilder the better, the drunker
the more uninhibited.

One 24-year-old man in particular had
reached the stage of wildness and un-
inhibitedness, his blood fired by the
booze he had consumed in large quanti-
ties over the past few hours. The party
was in full swing at the young man’s
house. As the drinks flowed and the mu-
sic beat a primitive melody, loud and
brassy, the man grabbed one of his pretty
female guests and tried to kiss her. She
managed to squirm from his grasp. But

later, when other guests were departing, |

the man once again grabbed the young
woman, pressed her hard against the
kitchen wall and again tried to kiss her.
She fought furiously and got away again,
fleeing the house this time.

It left the hard-breathing party host in
a state of frustration and unfulfilled lust,
the alcohol and sexual desire burning
inside him....

Sometime later, in the still-hot hours
before dawn, the same man banged at the
door of the home of some relatives who
lived a short distance from the town
square. The woman who answered the
pounding at the door saw immediately
that the man was in a disheveled and
raging state. He had red scratches on his
neck, his hair was tangled wildly and his
dark eyes blazed with the effect of the
booze, which she could smell on his
breath.

The man demanded that he be driven
‘to a friend’s home in nearby Com-
manche, located about 30 miles west of
Hamilton in an adjoining county. But it
was the wild ravings and rantings of the
visitor that frightened the woman and
another relative who was present in the
house. .

The predawn caller raved on almost
incoherently about ‘‘killing an old la-
dy.’’ The scratches on his neck were
there ‘‘because she clawed me,’’ the

wild man claimed. His statements were -

to the effect that ‘‘the devil made me kill
her....I’ve sold my soul.to the devil, and
I must kill four more people. Satan told
me to kill six people.’’ He paused long
enough to explain that he already had
slain one other person, besides the old
lady.
His gestures growing ever more men-
acing, the night caller threatened to kill
the woman and the other relative if they

8 Front Page Detective

didn’t drive him to the friend’s house in
Commanche.

Trying to appease the demonic-acting
man, the woman and the other relative
complied with his demands, their terror
growing as they sped through the dark-
ness along the deserted highway. —

As they drove, the raving passenger
told of stabbing an elderly woman repeat-
edly. He raved that the cash he now car-
ried ‘‘belonged to Satan.’’ As for his
bragging of killing a second person, the
man said that it had been a man who tried
to defend the woman.

In Commanche, the relatives pulled up
at the address given by their rambling
dark-haired family member and let him

Esequel “Kelly” Banda, handcuffed, is escorted to his arraignment on charge

cell, the man suddenly blurted, ‘‘Don’t
put me ina cell with anyone. I’ve already
killed someone in Hamilton.’’ Because
of his drunken condition, officers at that
point didn’t know what to think of the
man’s claims. He easily could have re-
ceived the scratches in a drunken brawl,
they realized, the way lots of Saturday
nights end.

The sheriff’s office in Commanche
placed a phone call to the Hamilton
County Sheriff’s Department, passing
along the story told by the scratched and
bloodstained man jailed on a public in-
toxication charge. The Hamilton officers
were informed that the man who claimed

to have killed two persons, an elderly.

of capital murder by Deputies Johnny Slough (I.) and Tony Fields (r.).

out. They then drove to the town’s police
station, where they reported that the man
left at the Commanche residence was
highly intoxicated, bragging of having
killed two people and having threatened
their own lives. Police went to the resi-
dence and took the man into custody.
He was taken to the county jail, where
he would be detained on a public intoxi-
cation charge until the wild and unbeliev-
able tale he told could be checked out.
As a woman jailer booked the man into
jail—his name, officers learned, was Es-
equel ‘‘Kelly’’ Banda and he was 24
years old—she noticed that the prisoner’s
clothing was stained with what appeared
to be blood, and there were livid scratch-
es on his hands, face, neck and chest.
As she prepared to usher him into a

woman and a man, had come to the home
of relatives who lived near the Hamilton
downtown square, and it could be pre-
sumed that the killing had happened
somewhere in that vicinity.

So, while some Hamilton’s residents
were preparing to go to Sunday morning
church services, several Hamilton Coun-
ty deputies began a house-to-house can-
vass in the neighborhood and general
area where Kelly Banda had shown up,
demanding to be given a ride to Com-
manche and bragging of bloody murder
inspired by Satan.

It was Deputy Dudley Davis who dis-
covered the body of the slain woman.
After knocking on the door of a home in
the 600 block of South Bell and receiving

(Continued on page 66)

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One sampling read: ‘‘To the who’s love
is gone and now mine, A poem I write, a
message you’ ll find.... When you unlock
the door let your evil thoughts loose. For
it will be thy neck, not ours that will hang
from the noose.... You plague the meek
and torture the weak. So beware now sly
serpent, it’s your soul we seek....As
mother to daughter and father to son, so
you with Satan thy brother are one....’’

Ambrozy was scheduled to go on trial
for first-degree murder. On May 26,
1987, he pleaded guilty to voluntary
manslaughter. As part of the plea-bar-
gain agreement, he agreed not to contest

a sentence of 12 years in state prison,
which is the maximum for voluntary
manslaughter. :

He is currently serving his term in the
California prison system. e

EDITOR’S NOTE:

Charles West, Jeb Woolly, Speedo
and Garcia are not the real names of the
persons.so named in the foregoing story.
Fictitious names have been used because
there is no reason for public interest in
the identities of these persons.

Widow Killer (from page 8)

no response, the officer began checking
the windows. It was when he peered
through one bedroom window that he
saw the nude body of a woman sprawled
on the floor. Once inside the residence,
Dudley and other officers who joined
him saw that the elderly woman had been
the victim of a vicious attack. Her body
was covered with blood. It appeared up-
on cursory examination that she had been
stabbed several times in the stomach and
chest. She also had been beaten in the
face to such an extent that one tooth had
been knocked out.

There also were marks on the wom-
an’s neck that indicated she might have
been strangled. Since the body was
nude, the officers surmised she had been
sexually assaulted, though confirmation
of this would have to await an autopsy,
as would the cause of death. The bed-
room interior showed that the woman
apparently had struggled with her attack-
er. Checking around the. residence, the
investigators speculated that the. killer
might have entered through the rear alu-
minum door. :
. Hamilton County Sheriff Cecil Proc-
tor, who responded to the report of the
murdered woman, speculated. robbery
also might have been a motive in the
brutal slaying because the house had
been ransacked, drawers pulled out and
their contents tossed all over. Several
knives from the victim’s kitchen were
scattered about, and it was thought that
one or more of them might have been
used in the savage attack.

The condition of the woman’s body
pointed to a sadistic killer who had in-
flicted torture upon the helpless victim,
the investigators noted.

A search of the residence failed to turn
up any other victim, but the officers ngv-

66 Front Page Detective

ertheless continued a search of the area
for a second body. They already had
gone to about 25 homes in south Hamil-
ton when the deputy spotted the wom-
an’s body through a window, but there
still were dozens of homes to be checked
on the possibility the other killing
claimed by Banda hadn’t taken place at
Mrs. Laird’s home.

Texas Rangers stationed in the Hamil-
ton area also joined in the murder investi-
gation, at the request of Sheriff Proctor.
The Texas Department of Public Safety
crime scene van and crew at nearby Wa-
co also were summoned to conduct a
thorough search for evidence at the Laird
home. The crime scene technicians took
photographs, dusted the bedroom and
other parts of the home for possible fin-
gerprints and took blood samples.

A justice of the peace summoned to
the death scene and acting as coroner
ordered an autopsy. After the evidential
search -had been completed in the bed-
room, the body was removed to be taken
to a laboratory in Dallas for the autopsy.

As word of the widow’s murder
spread during the continuing search for
another murder victim in the little town,
fear enveloped the residents who re-
called a double murder three years earlier
that still remained unsolved. Those kill-
ings had occurred in the small German
community of Aleman, about six miles
southeast of Hamilton.

Sheriff Proctor, for one, would never
forget that fateful day of September 1,
1983—and for good reason. That partic-
ular day, it had seemed that murder vic-
tims were turning up all over the normal-
ly peaceful county.

It started out when a man had come
into the Hamilton County Sheriff's De-
partment at the courthouse to report that

he had been working in a field off State
Highway 36 not far out of Hamilton

when he discovered a human skeleton. .

The man led officers to the spot.

Sheriff Proctor, Chief Deputy Randy
Murphy and two Texas Rangers who
happened to be at the sheriff’s office at
that time, drove to the location west of
Hamilton. There, they examined the
skeletal remains of a body, including the
skull and other bones. The lawmen were
busy going over the field and collecting
the bones when another call came in
from the sheriff’s dispatcher.

The dispatcher radioed that a man had
come into the sheriff’s office to report
finding two bodies at a residence in Ale-

man. The man had gone back to the

scene afjér making his report to the sher-
iff’s office, said the dispatcher. Accord-
ing to the dispatcher’s call, the man had
found the bodies of a well-known former
rancher and his wife.

The sheriff, his chief deputy and one
of the Texas Rangers drove immediately
to the small rural community and pulled
up to a large brick ranch home. The man
who had discovered the victims was
waiting for the officers. Inside, the law-
men viewed the bodies of Winfred Stre-
ger, 63, and his wife, Nelda. The two
were in bed in a bedroom, still wearing
their nightclothes. Both had been shot to
death. The man appeared to have been
bludgeoned with a blunt instrument in
addition to the gunshot wounds.

From the preliminary examination, it
was estimated the couple had been dead
two or three days. The man who had
notified the sheriff's office identified
himself as a relative of the woman. He
said that he had come to visit but when no
one seemed to be at home, he had gone to
the nearby residence of another relative
and asked him to assist in checking on
the couple.

The discovery of the bodies had been
reported at 2:21 p.m. Investigators
checking over the house and premises
could find no evidence of forced entry.
Nor was there any sign of a struggle
having taken place. The couple appar-
ently had been slain by a gunman who
found them sleeping. As far as could be
determined by relatives who later looked
through the house, nothing had been tak-
en. The one-time rancher had a reputa-
tion for carrying large sums of money,
which officers thought might have
prompted a robbery attempt, but as far as
could be determined, no money was
missing.

No weapon had been found at the mur-
der scene, and clues were lacking. No
fingerprints, footprints or tire tracks had

aeons ome

been found that co
double-homicide p1
case with no appar

And, still, three
was unsolved, a fz
on the rising fear o
the body of Merle |
Would her murder

The sheriff's off
phone calls as the
known, with peo,
leads ranging from
town to prowlers.
were asking the sh
increased patrols i

Sheriff Proctor’s
both police and sh«
the community, th
been combined ea

Nor to be forgo
ple were the unide
the field west of |
day the Stregers’
ered. Though it co
at that point how °
had met death, it w
by officers that fc
and posed another
up.
Ironically, how
before Merle Lai
Proctor’s departm:
inite lead on the i:
in the field. Wee!
the skull and othe
rensic pathologis
Oklahoma City,
reconstructing ah
that an enhanced
As a result of thi:
tentatively had b«
of a 20-year-old
missing from A
1983. It also wa
woman had been :
three servicemen.
they were closer t

Meanwhile, ho
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fronted officers v
in custody even be
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vestigators, along
ized much work |
case and bringing

And, as the su
unraveled, they :
going to be as si
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The Hamilton
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Kelly Banda, the
of killing an ok
person. The inter
had failed to tur


BANDA, Esquel, His., LI TXSP - Hamilton Co. - December

by BILL G. COX

HAMILTON, TEXAS
MARCH 24, 1987

There are more little towns and more
steadfast people who are born and grow
up in them and never leave than today’s
urbane big-city world realizes. Hamil-
ton, Texas, in the wooded and hilly west
central part of the state, is such a place.

Its 3,185 citizens go quietly about their:

business, friendly and easygoing, with

most of the world’s hubbub beyond their”

range of life-style. Hamilton is built on a
square around the old courthouse. The

usual drugstore, hardware store, small

Officers in front of Merle Laird’s home where she was stabbed, strangled and raped.

department store and the like enclose the
town square. Then the town radiates out-
ward into blocks of tree-lined residential
areas, with pool-table smooth lawns,
white picket fences and vine-decked lat-
tice work.

On Sunday mornings, even the small
amount of traffic that moves slowly
around the town square during the week
dwindles to a vehicle or two. Mostly, the
streets have been rolled up, as the old
saying goes, and the sound of birds and
church chimes gives the little town a pas-
toral tone.

Merle Ferguson Laird, an aging wid-
ow, was one of those steadfast persons
who were born in Hamilton and chose
never to leave it, staying there to finish
school, miarry, raise children and grand-

children and go to church on Sunday.
The 74-year-old woman was one of
Hamilton’s beloved pioneers whom ev-
eryone knew. Her husband had died in
1985. Since then, she had picked up the
remaining threads of her tranquil life to
find what peace and contentment was left
in the waning years.

She owned several pieces of property,
and she was known as one of the most
patient and good-willed landladies ever.
She would wait days on end for un-
collected rent when she thought the ten-
ant really was on hard times.

Other than what she received from her
rental property, Merle had only her so-
cial security checks to stretch from
month to month. She lived in an
old-fashioned, modest-looking house
with a big front porch on South Bell,
three blocks off the courthouse square.

As a relative would later say of the
almost saintly woman’s benevolent atti-
tude toward delinquent renters, oe
course, she was on social security her-
self, but sometimes she would let them
go weeks or months in some instances
without making them leave.

‘Occasionally, she would have to ask
them to leave. She was always devastat-
ed when that happened,”’

But unlike many of those good-heart-

ed people who live out their lives in the
quiet hometown where they pass through

all of life’s cycles, Merle Laird died a’

brutal and outrageous death at the hands
of the type of person whose meanness
and perverse passions and evilness
struck down the innate goodness of the
aged widow, almost a symbolic example
of the demonic versus the angelic.

The violent horror struck in the early

The good-natured, spry widow died a brutal and

outrageous death by a killer whos
evilness struck down the innate good
a symbolic example of the demonic versus

6 Front Page Detective

e perverse passions and
ness of the victim, almost

the angelic...

Don Bolander, \
cago; B.S., No
Director of Car:
on adult educati

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ig in a field off State
ar out of Hamilton
1 a human skeleton.
rs to the spot.

Chief Deputy Randy
Texas Rangers who
he sheriff’s office at
the location west of
they examined the
4 body, including the
»s. The lawmen were
: field and collecting
nother call came in
lispatcher.

.dioed that a man had
iff’s office to report

at a residence in Ale-

d gone back to the
his report to the sher-
: dispatcher. Accord-
r’s call, the man had
a well-known former
fe.
chief deputy and one
rs drove immediately
ymmunity and pulled
anch home. The man
ed the victims was
cers. Inside, the law-
dies of Winfred Stre-
ife, Nelda. The two
‘droom, still wearing
Both had been shot to
peared to have been
blunt inetrument in
shot wounds.
inary examination, it
-ouple had been dead
The man who had
f's office identified
e of the woman. He
1 to visit but when no
home, he had gone to
ze of another relative
assist in checking on

f the bodies had been
p.m. Investigators
house and premises
ence of forced entry.
y sign of a struggle
2. The couple appar-
in by a gunman who
ig. As far as could be
tives who later looked
nothing had been tak-
cancher had a reputa-
arge sums of money,
hought might have
y attempt, but as far as
ned, no money was

deen found at the mur-
ies were lacking. No
rints or tire tracks had

been found that could be related to the
double-homicide probe. It was a baffling
case with no apparent motive.

And, still, three years later, the case
was unsolved, a fact that bore strongly
on the rising fear of local residents after
the body of Merle Laird was discovered.
Would her murder go unsolved, too?

The sheriff's office was deluged with
phone calls as the latest murder became
known, with people offering possible
leads ranging from strangers seen around
town to prowlers. Most of the callers
were asking the sheriff's department for
increased patrols in town.

Sheriff Proctor’s department served as
both police and sheriff’s departments for
the community, the two agencies having
been combined earlier.

Nor to be forgotten by the townspeo-
ple were the unidentified bones found in
the field west of Hamilton on the same
day the Stregers’ bodies were discov-
ered. Though it could not be determined
at that point how the person in the field
had met death, it was strongly speculated
by officers that foul play was involved
and posed another homicide to be cleared
up.

Ironically, however, about two.weeks
before Merle Laird was slain, Sheriff
Proctor’s department came up with a def-
inite lead on the identity of the skeleton
in the field. Weeks earlier, he had sent
the skull and other bones to a noted fo-
rensic pathologist and bone expert in
Oklahoma City, whose specialty was
reconstructing a human skull to the point
that an enhanced photo could be made.
As a result of this procedure, the bones
tentatively had been identified as those
of a 20-year-old woman who had been
missing from Abilene, Texas, since
1983. It also was learned the missing
woman had been seen in the company of
three servicemen. Officers now believed
they were closer to solving that mystery.

Meanwhile, however, the bizarre and
brutal death of the elderly widow con-
fronted officers with a possjble suspect
in custody even before the body had been
found. Yet, Sheriff Proctor and his in-
vestigators, along with the rangers, real-
ized much work lay ahead in proving a
case and bringing a defendant to trial.

And, as the subsequent investigation
unraveled, they soon learned it wasn’t
going to be as simple as they had first
believed.

The Hamilton officers went to Com-
manche on Sunday and took custody of
Kelly Banda, the suspect who bragged
of killing an old woman. and another
person. The intensive search of the town
had failed to turn up a second murder

victim, and officers were inclined at this
point to discount that part of Banda’s
story—though they were puzzled as to
why he would claim such a thing unless it
were to further frighten the relatives he
had forced to drive him to Commanche.

Following an intensive search of
drainage ditches and abandoned build-
ings in outlying areas, officers called off
their search for the second murder vic-
tim.

Banda was warned fully of his rights
and then grilled by officers. The warning
and questioning came after he had so-
bered up completely from the previous
night’s drinking.

During the investigation, a close asso-
ciate of Banda’s was picked up for ques-
tioning in the case. This man admitted to
officers that he had gone to Merle Laird’s
home with Banda and had been present
when Banda sexually attacked the wom-
an. But he emphatically denied having
anything to do with the murder, and later
backed off from his oral statement that he
had been at the crime scene. The man,
who once had been a ‘tenant in one of

Mrs. Laird’s apartments, told officers °

that he had mentioned the widow and her
rental property when Banda had told him
he needed money.

The investigation continued through
Sunday and the next morning. .

Banda, the investigation showed, was
a two-time loser, having served two sep-
arate prison stretches for auto theft and
for burglary. He had been out on parole
for only a few months when he.was ar-
rested in the slaying. ‘‘So much for non-
violent parolees,’’ one investigator said,
referring to the practice of the Texas pris-
on system—badly overcrowded and un-
der a federal order to cut down the prison
population—of placing on parole in-
mates who had been convicted of nonvi-
olent crimes. The theory was that such
offenders were less likely to do harm to
society, but numerous cases of murder
and rape were continuing to prove such
theories wrong.

The suspect was taken before Justice
of the Peace Walter S. Anglin and
charged with capital murder. Anglin de-
nied bond.

Meanwhile, results of the autopsy per-

- formed in Dallas revealed that the widow

had died of suffocation caused by manu-
al strangulation. It also showed that. she
had put up a fight during the sexual as-
sault and apparently had been tortured by
numerous superficial cuts on her stom-
ach. These cuts earlier had led investi-
gators to believe the victim had been
stabbed to death.

The elderly woman also had been se-

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Front Page Detective 67


f,
The Huntsville Item, Thursday, June 28, 1990 — Page SA

Court turns down appeals »
of three death row inmates

Court has rejected the
ncluding the killer of

WASHINGTON (AP) — The U.S. Supreme
appeals of three Texas death row inmates, 1
four Houston race center employees.

The justices left intact the murder co
tences of Kenneth Ransom, John Barefi

Monday.
Ransom was convicted of the June 30, 19838 murders in Houston of

Anil Varughese, Rod Harris, Joerene Pequeno and Arnold Pequeno,

employees of the Malibu Grand Prix Race Center.
Prosecutors said all four were fatally stabbed during a robbery.

Barefield was sentenced to death for the April 21, 1986 abduction.
and killing of Cindy. Renee Rounsaville. ;

nvictions and death sen-
eld and Bruce Callins on

shot her when she tried to escape |
Prosecutors said Callins Huckleberry during
the June 27, 1980, ause Huck-

Collins. -,

leberry did not surrender his
The cases are Ransom VS. Texas, 89-60

39-7007, and Callins vs. Texas, 89-7307.

z

by JACK G. HEISE

HOUSTON, TX.
SEPTEMBER 17, 1986

Cindy Rounsaville called a relative in
Tulsa, Oklahoma, at seven o’clock Mon-
day evening, April 20, 1986, from her
apartment in Houston, Texas.

The 25-year-old architect student at
Rice University told her relative that she
was leaving the apartment to‘return to
school and finish her final project before
graduation in two weeks.

A panel of experts were to judge the
graduating class projects in the morning.

But that wasn’t the reason Cindy had
called. Plans had been set for her wed-
ding. She had met her fiance at Rice.

They had been ‘‘going steady’’ for al--

most four years. He had graduated the
year before and had taken a job in Okla-
homa City.

The wedding was to take place in Tul-
sa, and they had set the date for July Sth,
which would give their friends in Hous-
ton time to drive up to Tulsa over the
holiday.

‘*] found the material for your dress,”’
Cindy told her relative. ‘‘I know you’re
going to love it. I am going to start cut-
ting it and we can fit it when you come
down for graduation.”’

‘*You’ve got so much to do, you don’t
need to make me a dress,”’ the relative
told her.

‘*T want to,’’ Cindy said. ‘*You are
coming down for the graduation?”’

Cindy Rounsaville, 25,.was myster ously
abducted one night and found dead later.
She had been shot execution-style.

Her' relative laughed. ‘‘Of course I’ll
be there,’’ she said..She added that she
planned to drive down with Cindy’s fian-
Ce.

“T’ll be seeing you soon,”’ Cindy said
as she finished her conversation:

But Cindy didn’t get to see her relative
or her fiance. Nor did she finish her proj-
ect at school or graduate. And there were
no wedding bells for her either:

At 11:30 that night, the Houston Fire
Department received a call that a car was
on fire in the Fairmont district: Firefight-

| Bhesriz0d, frhek, ay Te Cerrin) 3/03 [1977

»,. Ts responded a) quickly extinguished
the blaze.
One of the firefighters put in a call to

Deputy Chief Robert Mackey, who
headed the arson division.

He related that the fire had been con-
fined to the front seat of a brown 1980

_ Ford Mustang with Texas plates.

“It’s definitely arson,’’ the fireman
said. ‘There’ sa a” strong odor of gaso-
line.’

Mackey said he would be there short-

‘ly.

When he arrived, he questioned the
fireman, asking if any witnesses had
been located. Firefighters said that sev-
eral persons had seen the car after the fire
started, but they had not been able to
locate anyone who could recall seeing it
prior to the fire.

They said that a check was being made
on the license to locate the owner.

Mackey told them to have the car im-
pounded and that he and his senior arson
investigator, Buddy Cox, would go over
it in the morning for possible fingerprints
and other physical evidence.

In the morning, Mackey called Cap-
tain Bobby Adams, chief of the Houston
police homicide division and told him
about the arson fire.

He said the Department of Motor Ve-
hicles had given them the name of the
owner as Cindy R. Rounsaville with an
address for an apartment near Rice Uni-
versity. They had called the woman a
number of times without getting a re-
sponse.

‘*We found a'woman’s purse on the ~

Texas probers uncovered a damning clue in the

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The interior of Rounsaville’s car, set afire by the Barefleld brothers to destroy any evidence they might have left.

A torched car ignited the investigation into the

missing coed’s whereabouts, and when Cindy was finally
found, there would be no wedding bells for her...

front seat of the car, but it is so badly
burned it hasn’t given us anything,’’
Mackey said. ‘‘I’ve got a hunch that the
fire may have been set to destroy any
fingerprints.’’

Adams took Rounsaville’s address
and said that he would assign Detec-
tives Ronnie Doyle and Sharon Durham
to check it out.

‘“*Let me know if you come up with
anything in examining the car,’” Adams
said. ‘‘And I’ll contact you later if we
come up with anything.’ .

Doyle and Durham went to the apart-
ment. When there was no response to

their rapping on the door, they contacted’

the apartment manager. He let them into
the Rounsaville unit.

They checked over the rooms, and ev-
erything appeared to be in order. There
were no indications of any violence hay-
ing taken place.

The manager told them that the young
woman had occupied the apartment for

several years and was a student at Rice |

16 Front Page Detective

Universini® “He h had no idea who could

have set fire to.her:car.

The detectives went to the university
where they learned that faculty members
and students had already expressed con-
cern about Cindy Rounsaville. She had
failed to attend the judging of the graduat-
ing architect student’s project and had
failed to return to school.the previous
evening to complete her project...

A number of calls had been placed to

-her apartment, but there was no answer.

It simply wasn’t like Cindy to have
missed the judging, a faculty member
said.

_ He added tt that Cindy was popular and
well known, on the campus. Rice is a

small university with only 200 registered
students. Cindy had been on the welcom-
ing committee to aquaint new students
with the school. Almost everyone knew
her and were aware of her plans to marry
shortly after graduation. ~~

A fellow student told ‘sleuths she had

te) clock the previous _ ;

evening while they were working on
their projects. Cindy had left to go to her
apartment to eat and said she would be
back later to finish.

The detectives checked with campus
Police Chief Mary Voswinkel. There
was nothing she could tell them about the
unexplained disappearance of the stu-
dent. She said that nothing out of the
ordinary had been reported during the
night on the 345-acre campus.

Voswinkel said she provided an escort
service for women students who were
fearful of leaving the campus at night,
but thought it unlikely that Cindy would
have used it. She had a permit to park her
car next to the architect hall.

Doyle and Durham returned to head-
quarters. They related to Adams what
they had learned.

‘It doesn’t look good,’’ Doyle said.

-‘*Have the arson investigators come up

with anything?’’ he asked.
‘‘Nothing more than the fact that it

was an arson fire with gasoline poured

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John Barefield was driving around with
his brother, “looking to rob someone,”
when they spotted Cindy and abducted her.

over the front seat,’’ Adams replied.

‘‘We’ve got the telephone number of
her family who live in Tulsa,’’ Durham
said. ‘‘Do you think we should call
them?’

Adams shook his head. ‘*Let’s not get
them excited until we know more about
this thing. You didn’t see anything at the
apartment?’’ he asked.

‘*Everything seemed to be in order,”’
Doyle answered. ‘‘Whatever happened
must have taken place before she Bot
there or after she left.’

Scowling, Adams said, ‘‘Let’s Sil
this doesn’t turn out to be another Meg
Fossi case.”’

He referred to the murder of Margaret
‘*Meg”’ Fossi on January 10, 1982. Iron-
ically, Meg Fossi had been the same age
as Cindy Rounsaville and had also been a
fifth-year architect student at Rice Uni-
versity.

On the night she had been slain, Meg
had gone out with two college professors
and several students for a night on the
town. They returned to the campus at
two o’clock in the morning. She had
been safely escorted to her car for the
short drive to her home where she lived
with some relatives.

On Sunday morning, they learned that
Meg had not come home. It was highly
unusual that she would stay away for the
night without informing them.

Later,in the morning, they discovered
Meg’s car about 500 feet from the house.
It was parked at an angle against the

curb. It had a flat tire, and the wheel on

18 Front Page Detective

the front of the driver’s side had been
damaged.

The police were called. The damage
wasn’t sufficient to have caused an injury
to the driver, and Meg could have walked
the short distance to the house.

It appeared that someone might have
crowded her into the curb and possibly
had abducted her when she got out of the
car to inspect the damage.

Police were unable to locate any neigh-.

bors who could recall having seen or
heard anything during the night that
would explain the disappearance of the
college student.

The persons who had been with Meg
on Saturday night were also questioned.
They were positive that she had been
alone in her car with the windows rolled
up and the doors locked when she left the
campus.

An alert with the description of the
missing student was issued by the Hous-
ton police.

It wasn’t until late afternoon that law-
men found a partial answer to what had
taken place. The damaged car had been
impounded by technicians for possible
fingerprints and other physical evidence.

When they opened the trunk of the car,
they found Meg Fossi’s body in it. She
had been strangled.

It sparked an intensive investigation.
But the detectives were unable to come
up with any leads. The Fossi murder re-
mained unsolved for almost a year until
serial killer Coral Eugene Watts was tak-
en into custody.as a suspect for the mur-
der of another young woman.

Watts confessed that he had also killed
Fossi. He said he had spotted the attrac-
tive young woman alone in her car in the
early morning hours and had driven his
car alongside and forced her to stop at the
curb.

When she got out of the car to inspect
the damaged wheel, he had attempted to
abduct her. She fought with him and
when she started to scream, he had
choked her to death. He then put the body
in the trunk of the car and drove away.

Watts was not tried for the Fossi mur-
der, but sentenced to several terms of life
imprisonment for other murders. He al-
legedly confessed to killing 11 young
women before he was taken into custody.

With no leads to Cindy Rounsaville’s
whereabouts by late afternoon, the detec-
tives were forced to assume that she had
been abducted in her car, and whoever
had kidnapped her had set the fire in the
car to destroy evidence. The facts indi-

cated that it wasn’t likely that she might .

be found alive.

Adams decided that it was time to call
}

Cindy’s family and let them know that

she was missing under suspicious and
mysterious circumstances.

Cindy’s family related that they had
received a call from her at seven o’clock
the previous evening.

Cindy had told them that she was re-
turning to school to complete some
work, but would probably be gone for
only a few hours.

That narrowed the investigation to two
possibilities. Either Cindy had been ab-
ducted when she went to her car in the
parking area of the apartment, or when
she arrived at the campus.

A new, more thorough, check was
made at both places, but the lawmen
came up empty.

Doyle and Durham checked with the
arson investigators. There was little they
could tell them. The front seat of the car
had been sloshed with gasoline and had
burned fiercely. The keys had been left
in the ignition. The woman’s purse had
burned, but from their examination it
appeared that it had been emptied. There
were no charred remains of money or

(Continued on page 60)

Perry Barefield (above), according to his
brother, suggested that they “not waste”
the opportunity to rape young Cindy.

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car to destroy any evidence that they
had been in it.

A murder warrant was issued for Perry
Joshua Barefield. He voluntarily came to
police headquarters the following day
and surrendered.

Captain Adams announced to the news
media the arrest of the Barefield brothers
for the murder of Cindy Rounsaville and
praised the work Doyle and Durham had
put in on the case.

He said Doyle and Durham had put in
18 hours a day, without time off, during
their relentless investigation.

‘‘They did not use snitches or the re-
ward,’’ Adams said. ‘‘It was just long
hours of painstaking work.”’

John Kennedy Barefield was brought
to trial before Judge C.V. Millburn on
Monday, September 15, 1986.

It took Prosecutor Jim Peacock only
three days to present the overwhelming
evidence, including the 30-minute vid-
eotape of Barefield’s confession.

Barefield did not take the witness stand
in his own defense, and there was little

the defense could present to dispute the
evidence.

It took the jury only 30 minutes to
reach a verdict finding John Barefield
guilty of capital murder.

The panel remained sequestered and
heard arguments the following day upon
which to base a penalty. Peacock present-
ed witnesses who testified they had been
robbed and raped by the defendant.

In his closing argument, Pros. Peacock
said, ‘‘No woman is safe going to or from
her car, or even asleep in her bed, while
that man exists.”’

The jurors were out only 25 minutes
before unanimously agreeing that he
should be executed.

By law, death sentences must be re-
viewed by the State Supreme Court be-
fore an execution takes place.

The trial for Perry Joshua Barefield is
pending at the time of this writing.

He must be presumed innocent of all
the charges lodged against him unless
proven otherwise in a court of law
through due process. e

Bondage Freak (from page 28)

wards, he asked if she was interested in
another date. He said he lived in Marin
County. They would go there and do
some things and come back. It was a long
way but he was willing to pay $350.

‘‘l asked what he had in mind,”’ the
hooker said. ‘‘He told me, and I said no
thanks and got out.”’

One who got the same line but said
okay was a cute blonde in her mid-20s.
She had seen it all and done it all so when
the BMW guy suggested they go to his
house, she said okay.

She told detectives they drove over the
Golden Gate Bridge and up Interstate 5
to the Novato turn-off. A few minutes
later they were in front of a two-story
home with a wooden staircase going to
the front door.

They went upstairs to the master bed-
room. The closet contained dresses, and
there was a woman’s touch to the deco-
rating, but he said it was okay, that his
wife and kids were away.

The hooker asked for the money,
counted the bilis, then put them in her
pocket. She took off her clothes and sat
on the edge of the bed. Shucking his
own, he joined her.

‘*He had a big roll of adhesive tape,
like you buy in the drug store, only mhuch
thicker and wider,’’ she explained to
investigators. ‘‘He said football play-

64 Front Page Detective

ers used it to tape their ankles.’’

He taped her hands and legs in such a
way that she was helpless but still able to
have sex. The agreement was for bond-
age sex, but after the taping, he threw
something else at her. ;

‘*He wanted to go into the bathroom
and have sex in a full tub of water,’’ she
recalled. ‘‘I told him no thanks.”’

He said okay, they would do it on the
bed, maybe next time.

Bondage sex in the tub. The detectives
shook their heads. It took all kinds.

“*You know his name?’’ the hooker
was asked.

‘*No,’’ she replied. ‘‘But I know
where he lives.”’

She took them to a home on Andale
Drive, an exclusive address of upper
middle-class homes, and pointed out the
house. ‘‘That’s the place,’’ she said.

The home belonged to Leslie Arthur
Byrd, a 39-year-old senior bank execu-

‘tive. A Department of Motor /Vehicles

DMV check showed he was the regis-
tered owner of a late model dark blue
BMW.

The detectives pulled his DMV mug-
shot, put it in a photo lineup and showed
it to Trina. She identified Byrd as Cin-
dy’s date Monday evening. The hooker
also picked him out as the kinky guy who
bound her with tape.

Detectives put the photo away. They
had the right guy. (

On Monday June 25th, one week after
Cindy Engstrom went for the last date of
her young life, detectives went to the
home on Andale Drive, armed with a
search warrant.

Byrd met them at the door. ‘‘What is
this about?’’ he asked.

The detectives told him, and then said
that they were going to turn his house
upside down for evidence.

‘I can explain this, but not here,”’
Byrd said. ‘‘Let’s go to the station.”’

Byrd’s statement lasted seven hours
over three interrogation sessions. He ad-
mitted taking Cindy to the house, but
denied killing her. Lieutenant Besse
heard part of the confession and was
amazed. Byrd was treating the murder
like a management problem at the bank.
A few rough edges, but something that
could be worked out. ‘‘This guy doesn’t
know how much trouble he is in,’’ the
lieutenant thought.

Byrd said he had invited the prostitute
back for a night of sex at his Novato
home. He said he taped the naked girl and
had sex with her on the bed. Afterward,
he became distracted and went down-
stairs. When he returned upstairs, he
found Cindy floating face down in the
tub. He tried to revive her, but it was
futile. In a panic, he gathered up the
woman’s things and took them to the car.
Then he loaded the body in the car and
went looking for a place to dispose of it.

He dumped the body off the side of the
road he was on, threw her things from a
bridge and returned home.

It was aconvenient story, but it did not
make a lot of sense. According to Byrd,
he had. left Cindy taped up in the bed-
room. In his absence, she had somehow
wiggled out of the tape, went to the bath-
room, where she drowned in the tub.

How did she get out of the tape? the
detectives asked.

Byrd shrugged; he didn’t know. He
must not have bound her very well.

The detectives produced a roll of the
athletic tape and had Byrd demonstrate
his bondage technique, using a deputy as
a model. The deputy then jerked, fought,
and tried every way he could to get free,
but couldn’t.

The tape held, which after all was what
it was made to do.

Byrd also had no explanation for the
bruises on Cindy’s wrists and ankles
where the tape had been and which the
county pathologist said were likely
caused from the victim fighting and
thrashing to escape her bonds.

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mises for physical evidence.

Detectives determined from a visual
examination of the corpse that the victim
had been shot execution-style, behind
each ear. Grass stains on her knees indi-
cated she most likely had been kneeling
when the shots were fired.

It was noted that a diamond engage-
ment ring and wristwatch she was known
to have been wearing were missing.

The crime scene experts could find no
evidence of a struggle having taken place
at the scene. They held the opinion that
she had been marched into the field,
forced to kneel and was then executed.

The fact that her lower clothing had
been removed indicated a sexual assault.
Since there was no physical evidence to
show it had taken place at the field, it
raised the question as to whether it had
taken place in the car or somewhere else.

Det. Doyle reasoned that since only
the front seat of the car had been doused
with gasoline and set on fire, it would
seem most likely that the assault had tak-
en place outside of the car.

Doyle and Durham recalled Captain
Adams’ comment that it was possible the
killer had been on foot and had aban-
doned the car within walking distance of
where he or they lived.

The detectives concentrated their ef-
forts in the area hoping to locate a witness
who might have some information.

A preliminary report came in from
Harris County Medical Examiner Dr.
Joseph Jachimezyk. He confirmed that
the victim had been shot with a .22-cali-
ber weapon. He stated that the victim
might have survived the wound behind
the left ear, but the shot behind the right
ear had been almost immediately fatal.

He found that the victim had been sex-
ually assaulted and had struggled briefly
with her killer and, as a result, one of her
fingernails had been broken off.

As the detectives worked around-the-
clock attempting to come up with some
kind of a lead, a memorial service was
held at Rice University for Cindy Roun-
saville. Burial services were scheduled to
be held in her hometown of Tulsa.

Doyle and Durham were present to
scan the mourners for any unusual behav-
ior to indicate the killer might also be
there.

At the conclusion of the service, an
announcement was made by ‘‘Friends of
Rice University’’ saying that the alumni
and supporters of the school were posting
a $10,000 reward for information leading
to the apprehension and conviction of the
person or persons who had killed Cindy.
The reward was being offered through
the Crime Stoppers Program, and in-

62 Front Page Detective

formants could remain anonymous if
they chose by calling 222 TIPS.

Lawmen received word from a local
bank that, on the night Cindy was abduct-
ed, she had withdrawn $70 from the auto-
matic teller machine. A camera with the
machine recorded her photo. The time
was 7:24 p.m. April 20, 1986.

The detectives studied the enlargement
from the film. Cindy did not appear to be
disturbed, and there was no one else in
the picture.

Sleuths felt it was possible that Cindy
might have stopped at the bank on her
return to the university. Someone had

John Barefield and his brother Perry
went on a rampage committing murder,
robbery and arson within a few hours.

probably seen her getting the money and
had forced his way into her car.

It did not provide much of a lead since
no witness could be located.

Almost three weeks into the investiga-
tion without any solid leads, Doyle and
Durham reviewed all of the information
they had received and checked with pos-
sible witnesses they had interviewed. It
was during this time that they discovered
something that had been overlooked in
the initial flow of information.

They learned that Cindy did not nor-
mally carry a purse. She kept her credit
cards and.money in a wallet.

The arson investigators had reported
finding a burned woman’s purse on the
seat of the car that had been torched. It
had been assumed that it belonged to
Cindy.

Doyle and Durham checked again
with arson investigators Mackey and
Cox. They had determined it had been a
rather large leather purse. It appeared to
have been emptied of its contents with
nothing to identify the owner.

If it wasn’t Cindy’s purse, whose was
it? And how did it come to be in her car at
the time it was set on fire?

They had no report of another abduc-
tion or missing person.

Reviewing the information again,
Doyle and Durham had been able to es-
tablish that Cindy was alive when she
made the withdrawal at 7:24 p.m. The
call reporting that her car was burning
had been received by the fire department
at 11:28 p.m.

Sometime between those times Cindy
had been robbed, raped and slain. It
would also be the time frame in which
the purse must have gotten into the car.

Doyle and Durham checked with the
robbery and burglary squads for reports
of any purse being snatched or stolen on
Monday night, April 20th.

The robbery detectives did have a re-
port that had not been connected to the
Rounsaville case. It had been made by a
woman manager of an apartment com-
plex. She reported that she had been
checking the laundry room at 9:30 p.m.
on Monday night, April 20th, when two
young black men came in.

One of them brandished a gun and told
her to hand over her purse or he would
kill her.

The report quoted the woman as say-
ing that the man with the gun had forced
her against a wall and she slid to the
floor. He ran his hand up under her dress.
She said the other man shouted at him,
“Knock it off and let’s get out of here.””

The man with the gun pulled the rings
off her fingers, took her purse and then
fled. Me;

The descriptions of the two men

matched suspects in another police re-.

port. In this other case, aman had been at
a grocery store when he was abducted by
two young men who forced him to drive
them to his home.

After robbing the man at his home,
they sexually assaulted his wife. When
he tried to stop them, they hit him on the
head, knocking him unconscious. They,
then, resumed their assault on his wife.

‘‘We haven’t been able to locate
them,’’ a detective said, ‘‘but the
chances are good they’ ve pulled similar
stuff around here.’

Doyle said they would have sketches
made from the descriptions given by the
witnesses and would try to locate them.

After the sketches were prepared,
Doyle and Durham went to the area
where Cindy’s car had been torched.
They located a witness who told them,
‘‘They sure look like the Barefield broth-
ers.”

The sleuths learned that 22-year-old

John Kennedy Barefi:
old brother, Perry
apartment in the dist
The detectives too!
the district attorney
quest for a search w:
After the warrant
and Durham went to
younger brother, J:
said he did not kn
brother was at the t
The detectives lo
pistol which they in
Durham, looking
box on a bureau in |
out to Doyle. ‘*Loo}
It was a Rice Un
had reportedly been
ring on her pinky fi
was abducted. Sor
scrape away an In
ring, but the dete
make out Cindy’s !
John Kennedy |
into custody on a c!
murder. After being
ters, Barefield was
rights to remain sile
by an attorney.
**You’ve bough
told him. ‘‘We for

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purse, whose was
1e to be in her car at
1 fire?
: of another abduc-
i.
formation again,
ad been able to es-
as alive when she
at 7:24 p.m. The
r car was burning
the fire department

those times Cindy
iped and slain. It
1e frame in which
zotten into the car.
1 checked with the
squads for reports
atched or stolen on
20th.

ives did have a re-
n connected to the
ad been made by a
‘n apartment com-
hat she had been
room at 9:30 p.m.
ril 20th, when two
ne in.

shed a gun and told
urse or he would

the woman as say-
the gun gad forced
nd she slid to the
up under her dress.
an shouted at him,
s get out of here.”’
un pulled the rings
ier purse and then
of the two men
another police re-
, aman had been at
1e was abducted by
forced him to drive

man at his home,
ed his wife. When
they hit him on the
inconscious. They,
issault on his wife.
en able to locate
» said, ‘‘but the
»'ve pulled similar

)uld have sketches
ptions given by the
try to locate them.
-S were prepared,
went to the area
had been torched.
*ss who told them,
the Barefield broth-

‘d that 22-year-old

John Kennedy Barefield and his 29-year-
old brother, Perry Joshua, shared an
apartment in the district.

The detectives took the information to
the district attorney’s office with a re-
quest for a search warrant.

After the warrant was issued, Doyle
and Durham went to the apartment. The
younger brother, John, was there. He
said he did not know where his older
brother was at the time.

The detectives located a .22-caliber
pistol which they impounded.

Durham, looking through a jewelry
box on a bureau in the bedroom, called
out to Doyle. ‘‘Look at this,’’ she said.

It was a Rice University ring. Cindy
had reportedly been wearing the school
ring on her pinky finger at the time she
was abducted. Someone had tried to
scrape away an inscription inside the
ring, but the detectives were able to
make out Cindy’s name.

John Kennedy Barefield was taken
into custody on a charge of suspicion of
murder. After being booked at headquar-
ters, Barefield was informed of his legal
rights to remain silent and be represented
by an attorney.

“*You’ve bought the farm,’’ Doyle
told him. ‘‘We found the girl’s ring in

your apartment, and you know ballistics
will show your gun was used to shoot
her. You can talk or not, as you like.”’

Barefield thought it over and said,
“‘What do you want to know?’’

Sgt. James Ladd, an expert in-
terrogator, was brought in, and video
equipment was set up. Barefield was
again advised of his legal rights and
agreed to waive them.

In a soft voice and showing little emo-
tion, John Barefield stated that he and his
brother had been passing by the apart-
ment where Cindy Rounsaville lived,
looking to rob someone or prowl a
parked car, when they spotted Cindy
walking to her car.

Barefield said he threatened the young
woman with the pistol and forced her
into the backseat. He said he told her that
all they were looking for was money and
they wouldn’t hurt her if she didn’t make
a fuss.

“‘She was real calm about it,’’ Bare-
field said. ‘‘We took her rings and
watch, but she didn’t have much money,
but she had a bank card.’’

He said Cindy told them that she had
less than $100 in her account, but she
would withdraw $70 and give it to them
it they promised not to hurt her.

*‘At first we were going to let her go,”’
Bdrefield said. ‘‘But my brother said no
because she done seen us.”’

He related that they had driven away
from the bank to a spot near the field
where Cindy’s body was later found.

Barefield said that they at first had
decided not to sexually assault the vic-
tim. .

‘But Perry done say, We might as
well. It’s no use wasting that stuff if
she’s going to be dead.’ ”’

He related how they had forced Cindy
to. remove her lower clothes. Then each
had sex with her in the car.

After raping her, Barefield continued.
they stood outside the car deciding what
to do with her when Cindy jumped out
and started running into the field.

John said he ran after her and, when
she fell down, he shot her. He said she
was still moving, ‘‘so I pulled the trigger
again.’’

‘Did she stop moving?’’ Ladd asked.

“Yes sir, she sure enough did stop
moving,’’ John Barefield replied.

He related that they then drove around
in Cindy’s car for awhile and then
stopped to rob the woman in the laun-
dry room at the apartment. Then they
got some gasoline and set fire to the

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Front Page Detective 63

because that victim shied away from the
case. He told the prosecutor he was afraid
the same thing might happen again. He
said he was afraid the victim might get
cold feet about testifying.

Oesterle told McLaughlin there was no
way she could spare this victim from tes-
tifying, but that she could prevent her
having to testify in front of a jury at a full
blown trial.

Guzman would be given a Justice
Court preliminary hearing and, since he
was in custody, he would have to be
given that trial within 15 days. At that
hearing, Oesterle would have to show the
presiding justice of the peace that she had
enough evidence to warrant a jury trial in
District Court.

The only way she could show she had
the evidence was to put the victim on the
witness stand. The victim would be sub-
jected to cross-examination by Guzman’s
court-appointed attorney.

But there would be no jury at this level
and there would be no courtroom packed
with spectators. Testifying about a night-
mare at a Justice Court preliminary hear-
ing is not as traumatic as testifying in
front of a District Court jury. If the victim
could just get through the Justice Court
proceeding, she would probably be home
free.

That was because Oesterle was going
to offer the defense a plea-bargaining
agreement once she got the case bound
over for trial. Guzman was sticking to his
consent story, so there was no point in
trying to strike a deal with him at this
time. .

He would probably be properly soft-
ened up for a deal, though, once he heard
the victim testify against him in Justice
Court. He was aware his other victim had
refused to testify and he was probably
hoping lightning would strike twice.

Once he saw the May 8th victim testi-
fying, though, it was a sure bet that he
would be more than happy to deal. After
all, each of the 15 sexual assault counts
carried life prison sentences, as did the
kidnapping count. He would be buried
under a ton of life prison sentences if a
jury convicted him of everything
charged.

And there was little doubt he would be
convicted. McLaughlin had seen to it that
the victim’s injuries were photographed
at the hospital emergency room. Oesterle
had those photos and would enter them
into evidence at a District Court jury trial.
The injury photos would negate Guz-
man’s consent defense.

The preliminary hearing was held as
scheduled. In the days leading up to the
hearing, Oesterle had been working with

60 Front Page Detective

the victim, assuring her she would do
just fine. She said all she had to do was
tell the truth and that she would protect
her with objections should cross-exami-
nation by the defense attorney get too
rough.

As a result of Oesterle’s reassurances,
the victim testified without a hitch.

Guzman was ordered to trial in Dis-
trict Court on all the charges as a result of
the victim’s testimony.

When Guzman was marched out of the
courtroom in chains, Oesterle asked his
defeated attorney if he was ready to do
some plea-bargaining.

The attorney said his client would
probably be agreeable to anything that
would prevent his having to plead his
case to a District Court jury.

D.A. Oesterle said she would drop the
battery count and 14 of the sexual assault
counts in exchange for Guzman’s plead-
ing guilty to the kidnapping count and
the other sexual assault count. The de-

_ fense attorney said he would get back to

her on the proposed deal.

It didn’t take long for him to get back
to her. Guzman was more than happy to
accept the deal.

His attorney notified Oesterle by tele-
phone that afternoon that the deal had
been accepted.

On August 30th, Guzman was brought
before District Judge John Mendoza,
who accepted the two guilty pleas.

And on October 3rd, the judge meted
out two consecutive life prison sentences
to George Guzman. e

Terror Ordeal (from page 18)

any plastic credit cards.

Investigator Cox said, ‘‘It has the ear-
marks of a pro job. It’s used most often
when they rob a motorist and take the
car. Setting it on fire destroys finger-
prints and other physical evidence.”’

‘*But usually they don’t kill the vic-
tim?’’ Durham asked.

Cox shrugged. ‘‘It has happened,’’ he
said. »

‘You find any blood?’’ Doyle asked

Cox shock his head. He said they had
examined the backseat and trunk of the
car without locating blood. If there had
been any in the front seat, it had been
consumed by the fire.

‘*We know she was alive at seven and
the car was set on fire at 11:30,’’ Doyle
said. ‘‘That’s four and a half hours for
something to take place. But what and
where?’’

The detectives thought it strange that
the car had been abandoned and set on
fire in a populated area. It would seem
more likely that they would have chosen
a spot where there wasn’t a chance they
might be observed.

When. Doyle commented on this to
Adams, he suggested it was possible the
person who had kidnapped Cindy had
been on foot and left the car within walk-
ing distance of where he lived.

The detectives contacted the Robbery
Squad, asking if they had any reports on
cases in which a car had been burned
following a robbery. They found a num-
ber of such cases, but none recently in
which the victim had been abducted or
slain.

Robbery detectives said they had been

onan ETI anne:

looking for two men who had robbed
motorists, took their cars and then
burned them. They had descriptions of
the pair, but no lead as to who they were.

Doyle and Durham checked with De-
tective J.W. Beck, head of the Sex
Crimes Division, asking if he had any
similar crimes in his files. He said he did
not. There were cases in which sex crim-
inals had abducted their victims and
killed them, but none in which the car
had been burned.

The detectives were almost certain
that Cindy would not be found alive.
Burning the car indicated that whoever
did it wanted to destroy the evidence, so
it wasn’t likely a victim would be left
alive as a witness.

‘*But if she has been killed, why
wouldn’t the killer leave the body in the
car and burn it?’’? Doyle questioned.

He didn’t expect an answer until Cin-
dy could be found.

Meanwhile, a city weed cutter, riding
a tractor in a field near Loma Vista,
two miles from where Cindy’s car had
been burned, spotted a corpse in the
field.

It was a young woman, sprawled face-

first in a muddy section, clad only in a ©

blouse and bra. Her hair was matted with
blood.

Homicide detectives called to the
scene found panties and slacks in a ditch
alongside the field. Found in the pockets
of the slacks was identification in the
name of Cindy Rounsaville.

The entire area was roped off while
crime scene experts made a videotape of
the scene and searched the entire pre-

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from other places and time


3:15 p.m. Standing at front of cell smoking a
cigarette.

4:05 p.m. Departed Ellis I enroute to Huntsville
Unit. eee


eich ar 4

ane ae

BaRNARD, Harold A., dre, white, ex EXS

om

stopped. *hisk;

By CHRIS WILLIAMS
The Daily News

HUNTSVILLE — Harold
Amos Barnard Jr. died Wednes- |
day morning as he prayed for
forgiveness.

Barnard, who had been on
death row 18 years, was exe-,
cuted for murdering a 16-year-.
old Galveston boy in 1980.

“God, please forgive 1 me ‘of my “
sins,” he said in a‘raribling
prayer | befor lethal smidals.:

heart. “I am sor- |
ry -for; My-sins; x
Lord, take; me
home with you.”

He lurched
twice. against
the thick leather | -
straps binding | gr Texa
metal table in Barnard. _
the Texas De- “
partment of Criminal Justice
Administration Building. He-
stopped. A low gurgling escaped
his throat.

A doctor pronounced Barnard,
51, dead at 12:27 a.m. Prison
officials took the body to a
Huntsville funeral home. .

Galyeston’ ‘County; Distelct
Attorney Michael J. ‘Guarino it

said Wednesday he thought i858 ne sar

tice had been served...
“I think the punishment ‘Bt.
the crime, but. it’s, certainly,.. a.
somber experience,” Guarino |
said by telephone. “Trievery |
somber about it. There’s»n6
rejoicing on my part. It’s. a very
tragic situation — the horrible
incident of Tuan’s death in 1980,
together. with the wastedilife, of

‘this. defendant a eae own,
death by injection.”” eee he

A Galveston County § jury shad’:
found Barnard guilty,of;the ©

June 6, 1980; JkillingiofTvian an :

Nguyen, jan honor “stiide

Ball High Schi ol, » dail ‘oof

deputies a a)
‘H

ce the shooting. 01 Interstate (45

swatche

venience store robbery...

Nguyen was helping his par-
ents operate the former 7-
- Bleven Store at 77th Street arid
Stewart: Road’at 10:30 p.m.,

.. when Barnard. and three com- |
asked fora *-
Ditrin Fy

panionss entered: and,
uring | the.

Y. .
Galveston, County, Sheriff’ 8
S aaginn Faye

eet

just inside, th I a, Marque city
is.

The U.S. Supreme Court and ©

the Fifth. Circuit,.Court of S

Appeals in Houston. denied last-
oF Tequests 5 a Barnard’s

JI 1
About 15 represel it
ae enforcement. and, the media

d. through | a) ‘glass wall .
gi executed. ‘None of his

“friends: attended..

The Texas Department of
Criminal Justice:does not allow
families: of, victims | to witness
éxecutions;and,Ng guyen’s fami-
sly could not, be reached for-coi
meni. ;

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/The Houston Post/ Wednesday, February 2, 1994

Stay of execution sou

ASSOCIATED PRESS

| HUNTSVILLE — Attorneys
*. \for Texas death row inmate Har-
“4 old Barnard argued Tuesday the

-44 condemned killer was insane and

should not be executed early to-
day for for killing a Galveston
convenience store clerk nearly 14
years ago. |

Barnard, 51, faced lethal injec-
tion for killing Tuan Nguyen, 16,
who was fatally shot during’ a
1980 robbery at his family’s
Store.

Defense attorney Robert

acs McGlassen had three actions

nen So rir er tee pot ene eaninen pemmene rmis
: a a a ae Be
50 hey
42 = Ae
2 1 Pe

ght for Barnard

pending before the U.S. Supreme
Court late Tuesday, two dealing
with Barnard’s mental compe-
tence and the third contending
jurors were not allowed to con-
sider Barnard was drunk at the
time of the slaying. Earlier Tues-
day, the 5th U.S. Circuit Court of
Appeals in New Orleans rejected
the arguments.

In appeals, defense attorneys
contended Barnard suffered
from paranoid delusions and that
he didn’t understand his punish-
ment. Prosecutors, however, said
Barnard, a former carpenter

from San Antonio, gave no indi- -

cation he was mentally incapable
of understanding the charges and
sentence. ‘

Barnard and three others en-
tered a 7-Eleven -convenience
store in Galveston the night of
June 6, 1980, and asked for a
pack of cigarettes. When store
manager Tuan Nguyen turned
around to get the item, Barnard
pulled a gun on the manager’s
son, also named Tuan. Testimony
at his trial showed Barnard shot
the youth once in the heart with a
sawed-off .22-caliber rifle.

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: Tan 4 is Siac aes a
HAROLD BARNARD #683
February 1 — 2, 1994
February i, 1994 s+ *
12 midnight - 12:15 a.m. Sitting on bunk writing a letter.
1:00 a.m. 7 Pacing in cell whispering to himself.
2:15 a.m. Sitting on bunk rolling a cigarette.
Asked for a cup of hot water for. coffee.
2:45 a.m. — 3:00 a.m. Standing at front of cell.
3215 aim. Served breakfast meal: french toast with

Syrup, oatmeal, coffee and milk.

3:30 a.m. Sitting on bunk rolling a cigarette.

3:45 a.m. - 6:45 a.m. Sleeping.

7:00 a.m. Refused recreation.

7:30 a.m. Sitting on bunk drinking coffee.

8:30 a.m. — 9:00 a.m. Standing at front of cell watching
television.

9:30 a.m. Served food tray of spaghetti, navy beans,

corn, garlic bread and cake. Ate only
corn, garlic bread and cake.

10:15 a.m. ~ Pacing in cell.
LOz250 a eths Talking with attorney Robert McClassen by
f telephone from Death Row Segregation
Office.
#11:07 a.m. --Returned to cell. Talking with Father
-_ Stephen Walsh.
11:45 a.m. - 12:15 p.m. Standing at cell door watching television.
; 1:00 p.m. } Pacing in cell, eating crackers.
1:45 p.m. — 2:45 p.m. Pacing in cell.

LAST MEAL REQUEST: Steak, french fries, wine (water will be substituted).

CLOTHING TO BE WORN: State issued shirt and pants, black in color, personal
A tennis shoes.


Py

370 Vil. AMERICAN STATE TRIALS.

necessary that something should keep Golden away, and
hence this slanderous attack upon his character by the man
who had killed him, and who held at the same time some
$12,000 worth of notes against the Golden family, which had
been obtained by fraud and rascality. The prisoner went so
far as to regret having married into a family where one of
the members had treated him as young Golden had. He
also wanted Mr. Golden to deed him a certain farm, worth
$3,000 or $4,000, on which he said he could get enough money
advanced to commence trading again and make up his loss.
The monster still cries more property! And for that, he mar-
ries Miss Golden.
As we have already seen, it was the motive of gain that
prompted him to take the life of James P. Golden. And
while upon the subject of motive, allow me to read to you in
the hearing of his Honor, the law upon the subject, from
Burrill on Circumstantial Evidence, title motives to crime.
You see the law recognizes other motives that prompt the
human heart and induce individuals to commit crime, besides
those of malice, hatred and ill will. You will doubtless be
told by the learned counsel for the prisoner, that there was
no motive which induced the prisoner to kill has warmest
friend and prospective brother-in-law. But, as I have read
from the law, the motive of gain is one of the most powerful
ones known to the law writers upon the subject, and the more
debased is the character of the person accused, the less the
motive which will tempt to the commission of crime. I have
already alluded to the manner in which the prisoner succeeded
in getting the notes and deeds. The unbounded and seem-
ingly unlimited confidence that young Golden and the entire
Golden family had in the prisoner, and the manner in which
the base villain took advantage of that confidence by laying a
deep and damnable scheme, not only to murder young Gol-
den but to rob his parents of their property. Hence it will
not be necessary for me to allude to that portion of the testi-
mony in this connection, but I will ask that you apply the
law which I have read to the facts, and then determine the
motive that induced Stephen M. Ballew to make the false and

STEPHEN M. BALLEW. 371

f raudulent representations about the goods to young Golden
The motive that prompted him to persuade young Golden
away from his good home and kind parents, by means of
falsehoods so base that the very slime from the lying tongue
of the miserable wretch who concocted and uttered them
could be seen in the very atmosphere that conveyed them ts
the ear of his innocent and unsuspecting victim.

Had young Golden lived to get a few short miles further
and arrived at the house of Jonathan Ballew, he would have
met with a sight and learned facts which would at once have
caused him to stop and wonder whether or not his companion
was a thief or murderer. There he would have seen his
father ’s horses that the prisoner brought down on his first
trip; there he would have learned that the prisoner had not
sold the horses as represented to his father; there he would
have learned that the prisoner left the horses on his former
trip, as his own, to be kept until he came back in the fall;
there he would have learned that the prisoner had no other
stock on his former trip, save those of his father; there he
would have learned that the statements written to hie by the
prisoner, on his former trip, were base falsehoods, as black as
midnight darkness; there he would have discovered the vil-
lainy of the man in whom he placed so much confidence, and
as an honest young man, as the testimony shows him to ‘hieve
been, he would at once have spurned the man who had so
grossly deceived him and practiced such a fraud upon his
father. The whole villainous scheme of his companion would
at once have been detected. But in order to prevent detec-
tion and further his unlawful designs, the prisoner killed him
and buried his body in that vast, dense thicket, where, in all
probability, no human footprints had ever hese seen batons
and where, but for a Providential occurrence, they make
never have been seen again.

Young Golden never knew that Ballew had any relatives in
the county, and hence was not surprised by camping around
four or five days in this vicinity. But the prisoner did know
it, and yet preferred camping out in disagreeable weather to
gong, like an honest man, to his relatives. Can you imagine,


ty

374 VII. AMERICAN STATE TRIALS.

and decays in some of them, which satisfies us eae a
the remains are those of James P. Golden. Then t . — 5
found with the remains, has oo Riis scr Coe 5 ;

1 r of the cut and make, as y Mrs.
Gots, eatin no doubt whatever as to the ae eee
Dr. Wiley, a most bosom ete we Fake an

ici mined the remains at the Uoro
setin belare you. He gave it as his opinion nee apa
might have been shot through the temples and t ¥ ae
fractured by means of some heavy blow with some ‘ 4
instrument, either of which would produce ee ~
That the person could not, in any possible way, ata as
tured his skull in the manner it is, by committing 7 a
gave as his opinion that the fra Te i ee _
ath of the person an
‘heed i: jeer about the size the testimony eet —
Golden to have been. The ee mace pon bs rai por
which you all reme , :
ade Tine to his death by the unlawful act of another
soe for the third and only remaining promaates. oY
the prisoner the guilty agent? Here, Beotey . eee
meet with apparent difficulty, because no 3S s epee
of God on high, saw the pao ae beipe: pak in i
Will you say that, be a
Te sont was seed within his own ao ee
rupt heart, and because he decoyed his victim = re
from friends and human habitations, and there secre . ae
dered him, that he shall not be punished? No, ae .
not so decide! The laws of man and of nature on it. hae
laws of civilization and of christianity both * aes a
against turning a murderer loose panne fi oe
he, as most criminals do, secretly did 11. g
dona in the indictment may be proved, as the court re en.
less charge you, by circumstantial evidence, and the he “
of the law in permitting it, is so plain, that the big ie
man, though a fool, may read it at a single glanee. by

STEPHEN M. BALLEW. 375

of circumstantial evidence we are enabled to arrive at con-
clusions as correct, and even more so, than by direct evidence ;
because facts and circumstances never lie. We are enabled
by this kind of evidence to detect and punish crime, and by
means of which the most secret and atrocious criminals that
have ever infested God’s earth, or darkened the book of crimes,
have been brought to speedy and just punishment. And while
we have not produced positive testimony as to the prisoner
being the guilty agent that took the life of Golden, yet, we
have brought facts and circumstances to bear against him
as strong as Holy Writ, and which establishes his guilt to
the satisfaction of all reasonable and rational men. We have
traced the parties by a description of the wagon, horses, dogs,
ete., from the time they started until the prisoner arrived at
Jonathan Ballew’s. Slowly, but unmistakably, have we traced
them, day by day, from place to place, from the time they
started, up to the memorable morning of October 21, 1870,
when they were seen together for the last time, within 150
yards of the place where the remains of Golden were after-
wards found. There, gentlemen, James P. Golden was seen
alone with the prisoner for the last time on earth alive. Some
half hour or hour after they had been there seen, we find
the prisoner with that same wagon and team, with that same
faithful gray stallion leading behind the wagon, with Gol-
den’s trunk, clothing, hat, and even pocket knife in his pos-
session, driving in a trot over a very rough road, by him-
self, and occasionally looking back to the place where he and
Golden had, but a few moments before, been seen together.
Ile goes to his uncle’s and disposes of Golden’s effects as his
own, and in conversation with young Randolph Ballew, when
talking as to how he came down and who came with him, he
said, ‘‘James Golden intended to come down with me, but
something happened and he did not come.’? How do you
account for such language? James Golden intended to come
down, but something happened and he did not come! When,
at the very moment he uttered those words, in almost plain
view of his uncle’s house, that dense thicket could be seen,

368 VII. AMERICAN STATE TRIALS.

son James. That made the necessary $7,000, all of which
was well secured. Then Ballew had given Mr. Golden his
note for $1,500 for the horses taken South on the first trip,
which Ballew pretended he had sold on time at Shreveport.
Ballew was very anxious that young Golden should take that
note along, so he could pay it off when they sold their goods
in Texas, and send the money back with James. You re-
member Mr. Golden went with them as far as Quincy, and
after getting there found he had left the note at home—
eighteen miles distant. Ballew still very anxious to have it
settled up, requested Mr. Golden to write another note and
send it along with James and tear the old one up when he
went home, which was accordingly done. When the prisoner
went back to Illinois, from his trip South with young Golden,
he had the $1,500 note with his name torn off, and reported
to Mr. Golden that he had paid the money to his son James,
in Texas. Again, the prisoner, through his extreme kindness
of heart and generous liberality towards the Golden family,
upon his own suggestion, agreed to loan Mr. Golden $2,500,
and stated he would send the money up by James, as soon as
they sold their goods in Texas. Mr. Golden told him to ex-
press the money to him, as he did care about his son trav-
eling with so much money about him, when the prisoner re-
plied—mark his language—‘‘No, I will send it by James, as it
would cost $200 or $300 to express it.” When the prisoner re-
turns from that fatal trip, he produces this receipt (holding
it up and showing it to the jury) and told Mr. Golden that he
had paid the $2,500 to his son James, as therein stated. Mr.
Golden not noticing at the time that the word ‘‘first’’ in the
date was in the prisoner’s handwriting, executed to him his
individual note for the $2,500, which the receipt called for,
thinking at the time, as he stated on the witness stand, that
his son James had been detained longer in Missouri than was
expected, and would be home with the money in a few days;
the cause of James’ absence being accounted for by the pris-
oner in the same way. Then at the request of the prisoner,
under the lying pretext that shipping the goods had cost more
than he expected and that he himself was short of money,

STEPHEN M. BALLEW. 369

young Golden took with him about $400 in money. The
wagon, horses, harness, ete., were worth some $600, making
the money and property that belonged to young Golden and
with which he started South with defendant amount to about
another $1,000. You remember the defendant had nothing
and took nothing along on the trip except a very shabby suit
of clothes; the toe of his boots even being worn through.
Gentlemen, so far, we find the prisoner upon his return to
Illinois from his trip South with Golden, in the quiet, peace-
able and apparent honest possession of notes, papers, ete.
against the Goldens to the amount of over $12,000. But the
greedy monster was not yet satisfied. Immediately upon his
return to the home of young Golden, and in order to cover
up his infamous crime, and enable him to filch more property
from. the Goldens, he consummated his villainy by fulfilling
the previous matrimonial engagement between himself and
Miss Clara Golden. We find that he stood at the hymeneal
altar in the boots of his murdered victim, and gave in mar-
riage to that sister the very hand that was then reeking with
the blood of her brother.

Gentlemen, I have not language strong enough to denounce
such a fiend, as he should be denounced, nor language at my
command to picture a place in the most bottomless pit of hell
hot enough to adequately punish the man who deliberately
murdered a brother, then married his sister, and attempted to
rob and ruin their father and mother! The world will never
fully know the deep damnation of this man’s infamy.

Soon after his marriage, we find the prisoner commences
complaining, and, for the first time, accuses young Golden
with having run off with his money. What money? Why
he says, the money they got for their goods. We find from
these letters that Ballew and Golden were writing home that
they had sold some of their goods in Sherman and had sey-
eral fine offers for the rest, and this prisoner of all persons in
this broad land knows where they sold them and to whom
and yet we find no witnesses here to establish that they ver
had any goods, that they ever received a single cent of money
from a man in this State. But, you see, gentlemen, it was


fy

372 VII. AMERICAN STATE TRIALS.

gentlemen, why he would camp so long in almost sight of his
uncle’s house, unless it was to get Golden to write these let-
ters and this receipt, and seeking an opportunity to kill him?
Mr. Craig testified that these letters with dates in Ballew’s
writing are written upon the same kind and texture of paper
that the other letters, written by the parties in this vicinity,
were, and at no other time and place did they use such paper,
as will be seen by the letters. You were told by Mr. Craig
that the receipt for $2,500 and a letter written by Ballew,
composed a half sheet of foolseap. The receipt is the top
part of the sheet and had been written and torn off before
the prisoner wrote his letter on the remainder, dated near
McKinney, October 16, 1870. The paper is such as they
used in the vicinity of McKinney, and they are all written in
that purple ink which has been used all the way down to this
place, but never after by prisoner. These are physical facts
that cannot lie, and which show as clearly as the noonday’s
sun where the receipt and letters, dated by Ballew, were
written.

Tere allow me to anticipate the remarks of the gentlemen
for the defense. They will tell you that from Golden’s letter
to his father, is he condemned, and that he acknowledges
that he got the money ; that he states in his letter to his
father that the prisoner had come up to all he had agreed to
do, ete. But when they attempt to cast a stigma over the
memory of the murdered Golden, by attempting to brand
him as a criminal, and holding him up to the eyes of the world
as a felon and a refugee from justice, in order to try to es-
tablish satisfactorily to your minds that the prisoner is inno-
cent and should be acquitted, I ask you in the name of bright-
eyed truth to call upon them to explain how that letter, along
with others, came to be dated by the prisoner and mailed at
Shreveport? Ask them to explain to this court and jury,
and to the world, how it became necessary, at all, for the
prisoner to date Colden’s letters, when in one of his, written
to old Mr. Golden at the same time and place, he writes,
‘James is along and will start home in a day or two.’ Ask

STEPHEN M. BALLEW. 373
wane au : came that the prisoner knew so well the contents
1at letter, when in his letter to Mr. Gold
to, he closes by stating, ‘‘ ows to bee a
g, “‘I have no news to writ
has og aia all about our business.’? The gale tae
seen the letter; he had written the date in j inqui
Mr. Golden about it on hi iad wile te.
s return, and wanted a
cause, as he told Mr. Golden, it aed
; , 1t was all he had, along with
ee he had also dated—to vindicate himself
ape pers we ee even suspected with having killed
; oreibly he appreciated the fact that h
e 7 . i !
ie! Menem To say the least of it, he oy eles
"kably early knowledge of the fact, and it illustrates to my

mind the truthfulness of th
“ . e old and often- .
a guilty conscience needs no accuser,”? repeated Saying,

“ate _ jury, having shown you, in my humble

¥ ne tive : iat Prompted this defendant to take the life

as the guilty party, I now oe mae ec ae ee

nes ni kon aoe a: aps and closely pate

: , I will read to you in ari
es — aa es : ee as defined end des
xas , as to murder of the first and
If there is a specific intention to take life ents are
a : .

ape sche ne ie it is murder in the first aly rake
ee grates to take life, and life is taken, then
ee cals : e second degree. In this case, the pris-
ae sh ite ty of murder in the first degree, or he is
fa ears ing, and I shall say nothing more about mur-
eras a: pei a isc Now, gentlemen, let us inquire
Yang Magaterer y to be proved on the part of the State in
eka Me na conviction. The State must prove, as
i e indictment—first, the death and identity of
the wee : second, that the deceased came to his death by
aot io ta of another person; third, that the prisoner
iin Aaa The first proposition, gentlemen, has
he she to the satisfaction of all. The teeth in the
ere identified by the parents, from the peculiarities


BANKS, Wyatt wangéd Franklin, TX on 4923-1883 and WAITE E
Hanged at Franklin on 3/23/1886 ‘ : tee lag

Bite |

FRANALI¥,

eee ae vrai '
oners Eacape—h Murder=Pureuit
eS oe and Capiure. i

: Lz. Wopectal Telograin to The News]
Ss, Prawxii, May 2,—At % o’ciock yesterds

Se

morning cor town was thrown into the wild -
extitement by so alarm that the prisct-
‘bad killed Jailer Ad. Wyeer and brute
Mr. Ad. Wyser weet in tho corde te
and Pred. Waite, wdc was mrrasiol ic |
recently foe: stzaling a drummwec’s ve .
Bea. had got his Geli apen, and Hisd
oa Mr. Wyser with aber cf iron, sirins*.-
i Ye thow aerural times 6 +.
dag hie ekull, Walte thea tock br -
‘Tevelrer, goid saxd Chait, Ff  *
the doors copes. Gal Cheprincwan Ce"
for tha wools Jee ofibers anc ci:
foat ep masse and soun rearferi
Fred. Waite and a pegro, Wrs’ ‘-
bloodhound wars poten the tra.
hauled Boaks secretyd in 6 nepts
miles distaut He wer bouy..
juwiled. The dog geve out

d. WwW, Herndon, Gt Calvert Wet toe
graphed fur with tb peck ef bose Soar!
Hearmvid with thamath po oti Atie et
siferabie treabie Oba deo fork the Ure :
Locies Waelder cane tt uv. basic afies tere t

i

oc etre stm

on the prauic, eb. Mins ewer be Lusty cae]
advance of toe dogr src pares oat f
empted ha pustal GoW wade: ecLas he |
bors:, wad esospedimedbe uarapes. bus be |
dogs comlug up. kept Ube bra ck. wie BGO, ra

oclock ta the might the fagit-we wer cape
tured. He had baried (he past. Woten a.

than, but all were Peceveret, apd tie tur
Serer feeafeiy halged an gm The ofr ee

wt ete we

eould bardiy crevent the pours foro dese sme
Waite. Ac. Worser iewed outs ter Nout
Land neva spukn dt wasn / Bab raves.
amd bess cficere in the oauiy, betes
opess could never hate eecap- dont:

dewl body, Shari Wl G.Vover ah he et
izens Never cle DOL Me, UEhh ba. de Tie tie
wae kdged is you dp tigeiiog fur Mote
bby hb.

eee

PLL 4 MEW EL
Zu, 7m

rai

/

es

=

ON Pe
ee niet sen
{THE

Gee sten t.

+

Ri
E tas
2 nas

Psd.

ony.

bed
broken.

J pounced

‘t to dativer ihe

ces? full

“el about

splendid
Jorisa

tng wentil the p

Eve: cnafusiog,
Waite aacenael

Jack Jones sri Depolier Fon dove: ant

fu the bebef
While dressing
damoad hard for ® mau to have to prepare for his
own funeral. ,

Hanks, the
thirty daye by the governor. hherst
ceived official ontice
eraor trejeot, that be hed investigated Tanks »
ani would not commute Bis pen teace on

"On Bunda

excitement b

oH. Waite ffeffers the Pennity of
tho Law et Franklin, Texas.
{Spoctal Telegram to The Kewe.}

“+ # March %3.—At p39 o'clock p. mm. t
| day Deputy Bhasit Beynhards cut the ror aud tos
| Groep fell that varried Frad. bE. Waite to etercity.
Ab immense crowd sasombled 6 br: jal, remein- f
risoner Wht brought ous. raged br:
: a) Rew Davy tue sift. hard -cuf ot, gigoking & CHE,
od fory muck comyraad. |
‘haek, gurrounted hye BION eek, ws
‘Tepkily wa spot wear tbe cemicwers & paif eile |
|
1

a lengthy speek. saving: i da
where 1 came trou, bor whrre bah. POI 8
woukido Une asme thing over again wee

welet the ean way. 2 c:G nut trend te ke
wer, but only Ges eacepe from: Jali 2 Whe BM |
e0ud Milles Prot
if J had had weomey J woud De & Eres pre bo Ces
Dut Lnever bad accent apd Lr prosecute: fH
He sepour in biter terms of bie gave vets

eat)

wae. He thea rvad his wil which Wie Lost Rereerin
puny bas body, auc be hat bere:
to

and eaten, dran

just

wre. Brit, Carrington and Hatiarson, of
Franklin, and Dr Weade, of Catver. pre

him

‘Banks wil
keot and law abiding citizens
ons just aod mghi

with bloud, and bin porewitrate fort Robie?

god
Rawott,

Under ssateace of fifteen yrars 1%

privchers were
en masse Jb

HAN@MAN'S HARVEST.

WeBoVTTOMS I VARIOUS FOR-
TioNs or TAS COUNTRY

body to Dr baker. but uslerred i.
Dr. Baker eft not have it disthlerrec “Lvecy Uae:
Veand people were present.
other pifnisters labaret with Waite. bul be pereniet
that death wee We epd of man

y morning. the 2th dar of has.
yo clock, thé quiet littie city of F rankiin
was thrown into the @ Hdest xtate of CONT and
y tee alarti thet Jason AS
was billet. end thal tire praones had beoaru ja.
and jnuade good Uieur eacape Tin
rived at th# jail were eiocked af Lhe gles
thal was Urrmastex! to their were At
jauihr, was lying bn ae UACGREC hour
corridor of the jail, tes mor yale Sit:

TERD AE

sajitdaaiainien :

He wes pieced ine
AQPivele

froin town, where thie gatlows had bers erected hy
iAayem Tiavis, of Calvert The crows Foliowed We:

pinashing fwo bugree. be per ve
thescatiuid with BLeril

Heynhardt,  Pepuemting tbat obo Minwaers be
permitted to amwend With therm fie iremde |
} Boi bor |

t

a ast
> Wire
‘

huine, WHE wo monhes BOT fears

ae
“a

mon, Bie of ex snes YY. Y! Wise

nw. Bakes, of Eremoné, for $2.
ip and amoked up tye. money. Fils
eighteen minutes Ris neck Wee

dead Sheriff? Jones refuse

this morning b¢ amd CO deoks

negro, bas been resins for
Jones re

tata this evenness frogs fauVv:

an the vd of April The ial:
think Ubass es ect:

THe CKINE.

TSE,

Wovace

we who §ret ar
ar wert!
Wyvedr, the
state ae tne

fedet COyKre 3
e. his

watch en! chain, Bie PURO.
a wiaiwart brandy eK whe Wee

br WoW. Morray apis

the peniten tary

Hfsr areou wax pourtcy rome © eee
ey peact cof Lanee RCL i oe 4 Weceart. bat aie
af the jail ali ates wodm pr. BE gc tue bbe’

gone The @urare |
b pursuit, ens Ue lose Lat Lie:

ark
ie hujeatt except Pres GF teat arn Weratt
Ranks bad been Peespture ar.

wen

Poets PEPROS

retiruel ter Gee |

Se the Renae | Na Cad Fake BLS. ID dee ems
Msg Fepucd Liat be Bae he Wa
en broaght tc Freakzhn and put in
Be pect ae ures te Sea bee eae
me AT was so Ured bo would bot anaes
vert for — wes sont to Cai.
blood-hounds—Soorif 1 Hersdon's pack of
of the muntered W. L. Wraer, a brocber
sons, tn the tann, with @ larce sumber of cit
Waite. Ateel canis kesping up the bust for
rived Seortomine « a es oi his =
my pa, trod rus ebout £
miles, but there lost it. It was thon after dark.

in the darkness and fi: i
fired, th
canine Wises aoe Deine te ore
| fused Se instantly: Wlider's ple a
wrtil his pi atte kept Aring Jn rapid successi
effeet, He then jumped into a eld anid

ran @way, and Wlicer was left }
n th
oes burse and & gun thal would aon Lively "the ré
hel bri rica broagt to the place where tha
pind —_ and took the trail and fatlowed
wets Walte ha init, Suv to ree ca ibe erese
4 = nr rp tanita: re pat dificuk y. Oi Wears :
were found steps
tray covgred up (av eraus en laren al ce
bra pre eing empty. The party ar.
| Pha writ Waite abot 2 o'clock tz the
pag La ee Tied Btw p. m. the grime day


Austin Hrown, both
negroea, who were ip the jail for minor ofeases
atthe time of tie fatai tragedy, textifiad to the
following facts: There were only ebout siz pris-

oners in a Phage were kere in celle ane : on
dered 1 a wm t wer part of tor jail. whict, : : *. afi
iy arranged with ms celia. ‘ithe eS nediaael over pearl knew hew to sead and write; bas « wife andy t
the olber three. The upper cells were ern ptr. and eck e 5 . Pe tiie fou
one of the jower calls’ Wak els: eaipiy 9% bet? cians & & Hivscurian; hze bewn te Texas fi
styled lower cei] No. 2. Lswer cel) Nu. f was nexi shout vende’. aa brown hair and eer: weight {%
to the outer yet} door; No. Y war in the raidie. beard, POUBSS, is & farmer; han o Little this |
mextto No. fand Na S was furthest awar from Prior to th - ; :
the jail door. There it ac iron cormdor on tic with the hip Raadeb at Mtl ier was in jal, charged f.
eouth wide Of tue celle. Bo Mal al) Lae cel. thon & it Of & druauner's Valine at the Jurice fs
doors opet oul ibic Uns cortigor. which is the and cony a} werne.. He was arrested in Daljas i
Berne wiith as Ube celix. am equelic lencu.te al f theft of sph the County Court there for pha].
three of the cells Tt was the cusior Of tae jwier 1 & gold ring, an! breurht from there to thea ft,
to Jet the prisoners po cut inte Wie eerrider and vals @ bo answer the charge for theft of the |}
exercise every erening aod go Beck ints toe ceils Ea . . oe BY
before might Ob Frisay pefore the kiling. wher - sare ihr in jail. charged with the thatt of a |!
Wreer onicred the prmtoners fo ee beck into une pn de ah @ise in oefauite! payment of fine for Pe
cng, Waite want into the enpiy cel Neo) The ieee my Be het been bires oct or the county ff
ctAber praaner went back ir i Pend tf: was! Alien C RATTN Bins Cece tien! fram toe cusse cad was fi
there custo. Al. Waser torewgon tne brakes} 0 pe Ve0Ol IG fie Shouhder. was re cepiered ang |}
which jucted cell Nos 7 aut oo bo. the door of | Hues ais Hie was Just mouut well woes the mur 7
eel No. 2, where Veaite hac pose soc conceae: we  opumten ee ;
hiraself, was open. and it wae noe docked, mot iek _ nto a. me bb, Chat rel KH inesst. He
Waite so be cuuki yet out inl the corricar on vee doe is Wife ‘ bsuhier, are tae Some bad Ri tees q,
Wreer thinking thst the prisoners were all an A OG. went te Wiles emi was aereviad He haw}
in eedis Noe land 2 went ouf and losiaiinaause: | | & Sr ES Clabtven. & inotwerr ant gistere iin
door, Waite Wes came inte the ecormiacr anid arey Pht Men tnihter tx gisaherc. He hay been |
talzed with Compton aon Banks toot. pis ie bo eke let. Ho cisianenu ere by Pin heed gums!
etautof jati Tne thres ther enters toute dhe d | Te bevtain’ te epoq!
ollowing conspiracy: Waite war ke conesal tae | ous rOrrastes Si. VWrser was a cative Tetan, |
selfia the open celi No 8. aod Compion acs Banas ! ee RAVES Years it and uninarried, :,
t Bont. = > i ve “3 “

were to sweep bl] the tragn ot of ther cele inta
the corridor, aciling the floor, thus giting them an
excuse to ask Wyser to set their vioiusis back cu
the washbstan:l, oppesite celi No. 8. whea he came
in to feed them on Ratunday morning. tratead af at
their osll deors. as was customary. Compton pro-
cured a piece of iran piping tee feet loag
and about one ineh in diameter froin tie
waterworks in the upper  cornmdor hie
gave this to Walle tors wespon. Woany one cane
in the Jair wiln Wyaer in the morning wher he
cane te feed the prisoner Coinpion was to aaF
yes. lf Wryser came aione tbriy Comper wes to
say no. This wasto be (he signal fur Waste w
makethe attack on Wyser if he anos came aiout
Watte could not. from where he was coucealiod in |
cell Nu: 3, see Wreer when he came bo tie jail, the
cells Noa Pand 2 being between him and “the jai!
door, andit was left for Compton and Hanks to
watch and gre the sisnal On Saturdar
mourning everythiog was arranged
Wate was crouched down ino open ocil
No. 8, with the inom mixwie that Compton
had murderuusly furoished him waiting for tie
signal. Fortunately three meo came int: the jas
with Wyser, Compion sai yas and Watie re
maine! concealal ince! No. Suntil ell the prisoe
ers were turned oul inte the cotmmdor. He the:
came out anil Wreer did got discover
but that he conte out of the same
cell as Ube other prisuners Tost ever.
ing the priaouers were pul back ip Cue cecis.
but Waite slippedin Ube emopty cell as he ides
the previous day. After Wyser ned gous eo: gd
locked the outer door Waite came out tute Rie
corridor and bat another conference with
Compton and Banks) Ther were to make the
atlteaipt the Bext mormog. which Wat
Runday. This time Banks and Comte. were 4.
sweep out the trash agen in fren! thes gel}
dour in the cormidor aud get Weser ue et tie 4
Victuals back on the wash-stand Tf yack cance
Blone all were fo remaiv silent and cies wpe t
be the signa! for Math tome ot :


/ epi ~ -0e

BAN Di,

From

From

+ ame

bu i rales, Texe ; 1898
Jim, hanged Gonzales, Texas, 10/7/1898.

JIM BARBER

Criminal Docket District Court "B" - July 8, 1897.

State of Texas vs. Jim Barber for murder, July 8, 1897. Verdict
of guilty of murder in the lst. degree and punishment assessed at death.
Death sentence passed on defendant to be executed on Oct. 7, 1898. Death
warrant executed -by hanging Jim Barber by the neck until he was dead Oct.
7, 1898 by Sheriff R. M. Glover of Gonzales Cov,’ Tx.

Gonzales Daily Inquirer - Oct. 7, 1898.
Barber was hung Oct. 7, 1898 when Jim Andrews alias Jim Barber, a

neinio; was hung at 2:30 P.M. for the murder of his wife, Patsy on Mar. 20,
1897, when she was shot in the back of the arm and leg, and-her head split
and crushed in several places with a hatchet ana her throat cut with a
butcher knife. Sheriff Glover sprung the trap at 2:23 P.M. The condemned
man was pronounced dead in 7 min. and was cut down in LY min. As Sheriff
Fly was adjusting the cap, the prisoner sang “Somebody's Going ae Miss Me
When I'm Gone."

Barber was jealous of his wife who went to live with another min. He
said he worried so’ he became temporarily insane. He came to Gonzales from
Va. in about 1886 with G. C. Barber. He was well liked by the lawmen.
Sheriff Glover said hanging Barber was a pitiful duty. Gov. Culberson re-
fused to commute sentence so Barber was hung on the scaffold built in the

. jail to hang Will Blackwell atia private hanging. With Barber on the plat-

form were five preachers and two doctors. He was a yellow negro of medium
size. He worked for Mr. .Scheske at the market.

642 958 FEDERAL REPORTER, 2d SERIES

dard enunciated in Strickland v. Washing-
ton, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). See, e.g., Wilkerson,
950 F.2d at 1063. Under Strickland, a
defendant must show

[f]irst ... that counsel’s performance
was deficient. This requires showing
that counsel made errors so serious that
counsel was not functioning as the
“counsel” guaranteed the defendant by
the Sixth Amendment. Second, the de-
fendant must show that the deficient per-
formance prejudiced the defense. This
requires showing that counsel’s errors
were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both
showings, it cannot be said that the con-
viction or death sentence resulted from a
breakdown in the adversarial process
that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at
2064. We determine the reasonableness of
the challenged conduct by viewing the cir-
cumstances at the time of that conduct.
Id. at 690, 104 S.Ct. at 2066. Further,
“[w]e must strongly presume that trial
counsel rendered adequate assistance and
that the challenged conduct was the prod-
uct of a reasoned trial strategy.” Wilker-
son, 950 F.2d at 1065 (citing Strickland).

[9] Barnard fails to demonstrate that
his counsel would have reason to believe
that Barnard suffered from a mental de-
fect at the time of the offense or trial.
Thus, he cannot sustain the argument that
his counsel was ineffective for failing to
employ experts to explore the psychologi-
cal, medical or physical origins of Bar-
nard’s mental condition. Likewise, he does
not show that counsel’s investigation into
Barnard’s family background was unrea-
sonably deficient. Counsel elicited testimo-
ny from Barnard’s mother, who favorably
described some of Barnard’s personal char-

11. Barnard makes other conclusory allegations
that his counsel rendered ineffective assistance.
In the absence of a specific showing of how
these alleged errors and omissions were consti-
tutionally deficient, and how they prejudiced his

acteristics to the jury. Barnard also fails
to provide factual support for the allega-
tions of childhood neglect that he urges
would have come to light had counsel con-
ducted a more thorough investigation. As
such, he fails to show that his counsel
performed in a constitutionally deficient
manner.

[10] Moreover, Barnard does not dem-
onstrate that his trial counsel’s decision to
waive Barnard’s Fifth Amendment right
not to testify constitutes ineffective assist-
ance of counsel. Barnard argues that this
waiver resulted in the extraction of incrimi-
nating testimony, some of which was elicit-
ed by defense counsel himself, concerning
Barnard’s participation in and. preparation
for the crime. However, as the district
court observed, he has not demonstrated
that trial counsel neglected to weigh the
possible harm from potentially incrimina-
ting testimony against the need for Bar-
nard to testify in favor of the defense
theory of his case. Nor does Barnard
show that but for this alleged error, the
result of the proceeding would have been
different. The jury already had considera-
ble evidence before it to find that Barnard
planned to participate and acted deliberate-
ly in committing the crime.

[11] Since Barnard’s allegations do not
satisfy the Strickland test, we find no
merit to this claim.” In addition, we reject
Barnard’s assertion that he is entitled to an
evidentiary hearing on the issue of ineffec-
tive assistance of counsel to make findings
of fact as to whether counsel’s decisions
were grounded in a deliberate trial strate-
gy. The reliance of the trial court and the
federal district court on this rationale in
denying relief derived from a legal pre-
sumption dictated by Strickland, see 466
US. at 690, 104 S.Ct. at 2065, not from any
unsubstantiated speculation on the record.
Because Barnard fails to present allega-
tions sufficient to overcome this presump-
tion, we conclude that he is not entitled to

right to a fair trial, we conclude that there is no
merit to these additional contentions. See
Knighton v. Maggio, 740 F.2d 1344, 1349 (Sth
Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83
L.Ed.2d 241 (1984).

644 958 FEDERAL REPORTER, 2d SERIES

ON PETITION FOR REHEARING

Before DAVIS, JONES and EMILIO M.
GARZA, Circuit Judges.

PER CURIAM:

Attorney Van McFarland’s petition for
rehearing and the amicus brief filed in this
case lead us to conclude that our original
opinion unnecessarily decided issues of
Texas law. A number of alternate grounds
are available on which this case may be
decided. We elect to withdraw our earlier
opinion and substitute the following:

Attorney Van McFarland filed this action
to enforce a contingent fee agreement with
his client, Engra, Inc. against Morris Ga-
bel, the party his client sued. The district
court rendered a take-nothing summary
judgment against McFarland. We affirm
and assess sanctions.

I.

In 1986, Van McFarland undertook the
representation of Engra, Inc. in its action
against Morris I. Gabel under the federal
securities laws. The fee agreement be-
tween McFarland and Engra included the
following provision:

Our agreement is that we will represent

you in the suit and pursue it to settle-

ment or judgment for 40% of all recov-
ery.... By execution below, each of
you hereby sell, transfer and assign unto
us 40% of your claims and causes of
action in the referenced cases to secure
performance of this agreement.
In June 1987, Engra filed a petition in
bankruptcy which automatically terminated
McFarland’s right to control the litigation
as Engra’s counsel. McFarland was listed
as a creditor in the petition. In March
1988, the bankruptcy judge approved a
compromise and settlement of the claims
arising out of the litigation between Engra
and Gabel for approximately $317,000 and
the suit was dismissed with prejudice.
McFarland had full notice of the proposed
settlement and in fact corresponded with
Gabel’s attorney as to whether the settle-
ment included all claims.

Eight months later in December 1988,
McFarland filed a “Notice of Party in In-

terest” in Engra’s original securities fraud
action in district court asserting a 40% in-
terest in Engra’s cause of action. The
district court scheduled a status conference
on the case in October 1990. McFarland
then filed a “Memorandum Concerning Va-
lidity of Assignment and Standing of Party
in Interest”. Gabel and McFarland filed
cross motions for summary judgment.
McFarland also filed a ‘Motion for leave to
file amended intervention and notice of real
party in interest.” The district court de-
nied all of McFarland’s motions, including
his motion to intervene, and granted Ga-
bel’s. motion for summary judgment.
McFarland appeals.

II.

[1] McFarland was not named as a par-
ty to the action between Engra and Gabel.
As a non-party, he has no rights in the
litigation between his client and the defen-
dant unless and until he is permitted to
intervene. Under Rule 24 of the Federal
Rules of Civil Procedure, intervention is
proper only upon “timely application”.
Fed.R.Civ.P. 24(a) and (b); United Air-
lines, Inc. v. McDonald, 432 U.S. 385, 386-
87, 97 S.Ct. 2464, 2465-66, 538 L.Ed.2d 423,
427 (1977); Stallworth v. Monsanto Co.,
558 F.2d 257, 263 (5th Cir.1977).

In determining whether McFarland’s mo-
tion to intervene was timely, we consider
four factors:

(1) The length of time during which the
would-be intervenor actually knew or
reasonably should have known of his in-
terest in the case before he petitioned for
leave to intervene.
(2) The extent of the prejudice that the
existing parties to the litigation may suf-
fer as a result of the would-be inter-
venor’s failure to apply for intervention
as soon as he actually knew or reason-
ably should have known of his interest in
the case.

(3) The extent of the prejudice that the

would-be intervenor may suffer if his

petition for leave to intervene is denied.

(4) The existence of unusual circum-

stances militating either for or against a

ENGRA, INC. v. GABEL

643

Cite as 958 F.2d 643 (Sth Cir. 1992)

an evidentiary hearing. See Ellis, 873 F.2d
at 840.!?

III. CONCLUSION

For the foregoing reasons, we AFFIRM
the decision of the district court and VA-
CATE the stay of execution.

O © KEY NUMBER SYSTEM

4yms

ENGRA, INC., Plaintiff-Appellant,

v. |
Morris I. GABEL, Defendant—Appellee.
No. 91-2073.

United States Court of Appeals,
Fifth Circuit.

April 6, 1992.

Attorney brought action to enforce
contingent fee agreement with his client

against defendant in client’s federal securi- |

ties action. The United States District
Court for the Southern District of Texas,
David Hittner, J., denied attorney’s motion
to intervene, granted defendant’s motion
for summary judgment, and attorney ap-
pealed. The Court of Appeals affirmed
and imposed sanctions. On petition for
rehearing, the Court of Appeals withdrew
its earlier opinion and held that district
court properly denied attorney’s motion to
intervene in action between plaintiff and
defendant.

Affirmed; sanctions imposed.

1. Federal Civil Procedure 331
Plaintiff's attorney, who was not

named as party to action, had no rights in

the litigation between his client and the

12. In his supplemental brief, Barnard argues for
the first time that the prosecution's closing argu-
ment violated his constitutional rights because it
erroneously permitted the jury to presume from

—— a.) COM ee oe ee ee

defendant unless and until he was permit-
ted to intervene, even if in fee agreement
client ‘sold’ 40% of its claims and causes
of action. Fed.Rules Ciy.Proc.Rules 24,
24(a, b), 28 U.S.C.A.

2. Federal Civil Procedure ¢=320

Finding that motion to intervene filed
by plaintiff’s attorney eight months after
compromise and settlement of claims, seek-

_ ing to enforce contingent fee agreement

against defendant, was not timely, was
supported by the evidence; attorney knew
of his interest“in the case from its incep-
tion, defendant suffered prejudice due to
attorney’s failure to assert his rights in
plaintiff’s bankruptcy proceeding in that
the defendant believed that his liability for
claims was discharged, attorney would suf-
fer little prejudice if intervention was de-
nied, and there were no unusual circum-
stances militating in favor of finding that
motion was timely. Fed.Rules Civ.Proc.
Rules 24, 24(a, b), 28 U.S.C.A.

3. Federal Civil Procedure <=2844

Sanctions in amount of $1,500 for ex-
cess costs, attorney’s fees and expenses
would be imposed against plaintiff's attor-
ney for appealing dismissal of the attor-
ney’s motion to intervene, seeking to en-
force contingent fee agreement against de-
fendant, which was filed eight months af-
ter settlement of suit; appeal unreasonably
and vexatiously multiplied the proceedings.

28 U.S.C.A. § 1927.

‘Van E. McFarland, McFarland & Tondre,
Houston, Tex., for plaintiff-appellant.

J. Christopher Reynolds, Gibbs & Ratliff,
Houston, Tex., for Morris I. Gabel.

Appeal from the United States District
Court for the Southern District of Texas.

that it is waived. See United States v. Miller,
952 F.2d 866, 874 (5th Cir.1992); United States
v. Mejia, 844 F.2d 209, 214 n. 1 (5th Cir.1988).
Moreover, because Barnard did not raise this

ay en mi Oe ee ee

638 958 FEDERAL REPORTER, 2d SERIES

factors were influential in the defen-
dant’s criminal conduct. The greater the
role such attributes of youth are found
to have played in the defendant’s crimi-
nal conduct, the stronger the inference
that, as his youth passes, he will no
longer be a danger to society.
Id. at 1081. The majority distinguished
evidence of transitory conditions, such as
youth, from evidence of “uniquely severe
permanent handicaps with which the defen-
dant was burdened through no fault of his
own,” such as mental retardation, organic
brain damage and an abused childhood.
Id. at 1029. We turn now to Barnard’s
contention that the mitigating evidence he
presented at trial differs materially from
the type of evidence found unproblematic
in Graham and that, as a consequence, the
lack of special jury instructions tendered
his proceeding unconstitutional.

[3] Barnard argues that because the ev-
idence presented during his trial raised an
issue with regard to his head injury and its
effects, the jury could not have expressed
the full mitigating force of this evidence
within the special issues. At trial, Barnard
testified that several months before he
committed the crime, his son-in-law beat
him in the head with a tire iron. Barnard’s
friend, Marie Farquhar,‘ and his mother,
Maude Barnard, testified to the apparent
severity of the wounds resulting from the
beating. Barnard’s mother also stated that
Barnard was unable to work for four or
five months and that he was less helpful
around the house after the beating. She
further stated that since the beating, she
thought he needed psychiatric help. On
cross-examination, she also told of an occa-
sion after the beating when she accompa-
nied Barnard to a hospital so that he would
get a psychiatric examination, recalling

4. Farquhar was also a licensed vocational nurse.

5. Barnard first filed a psychological evaluation,
prepared by a psychologist in October 1988,
with his petition for habeas corpus relief in the
district court. The report reveals that, in addi-
tion to the attack with the tire iron, Barnard
suffered a serious head injury from a car acci-
dent when he was seventeen years old. The
report also indicates that Barnard suffers from
extreme paranoia and delusional ideation and

that he left the hospital the same day,
apparently without receiving treatment.

Barnard did not introduce expert testimo-
ny relating to his psychological disorders
during his capital trial.5 Nor does the
record contain any affirmative evidence of
brain damage. The evidence of the beat-
ing, without more, is insufficient to support
a Penry claim. The evidence must be able
to raise an inference “that the crime is
attributable to the disability.” Graham,
950 F.2d at 1083. Here, there is no evi-
dence that the physical trauma from the
blows caused Barnard to suffer from men-
tal impairment, or that his criminal] actions
were attributable to mental impairment.
Barnard cannot rely on his mother’s inex-
pert speculation concerning Barnard’s men-
tal condition to demonstrate a Penry-type
disability. A juror would be compelled to
share this speculation to make such a find-
ing. See Wilkerson v. Collins, 950 F.2d
1054, 1061 (5th Cir.1992) (refusing to con-
sider claim based upon conjecture rather
than proof). Therefore, Barnard’s claim is
without merit.

[4] Barnard further contends that, in
the absence. of a special instruction, the
jury was: precluded from expressing the
full mitigating potential of his evidence of
a troubled childhood. Testimony during
Barnard’s trial revealed that his parents
divorced when he was four years old and
that he lived alone with his mother until he
was thirteen. His father was absent from
his life during this period. At age thirteen,
Barnard was sent to live with his father,
but had difficulties with him and eventually
lived with an uncle. Barnard’s mother tes-
tified that she had been in a mental hospi-
tal four times, but specified the approxi-
mate date of her institutionalization for
only one occasion, which apparently oc-

that, since his incarceration, he has consistently
been diagnosed as having a paranoid disorder
with possible schizophrenia. The psychologist
was unable to conclude that Barnard was afflict-
ed with paranoid delusions at the time he com-
mitted the capital offense. Because Barnard
did not present this evidence at trial, we cannot
consider it now. See May v. Collins, 904 F.2d
228, 232 (5th Cir.1990), cert. denied, — US.
——, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).

BARNARD v. COLLINS 639
Cite as 958 F.2d 634 (5th Cir. 1992)

curred after Barnard was eighteen years
old. Barnard did not offer any affirma-
tive evidence to show that his mother re-
ceived institutional care during his child-
hood. Nor did he attempt to show that his
alcohol and drug use or any mental impair-
ment or psychological problem was attrib-
utable to his childhood experiences.

We reject Barnard’s attempt to portray
this testimony as mitigation evidence of
permanent characteristics and disabilities
stemming from his troubled childhood. Al-
though the Graham majority observed that
a defendant who introduced evidence of the
adverse effects of a troubled childhood
might well raise a Penry issue, in this case,
as in Graham, there was no evidence that
these childhood experiences had any psy-
chological effect on Barnard. Graham,
950 F.2d at 1038. Accordingly, we find no
substantial evidence that Barnard’s “crimi-

nal conduct was ‘attributable to a disadvan- ©

taged background, or to emotional and
mental problems[.]” Jd. (quoting Penry,
109 S.Ct. at 2947).

[5] Nor are we convinced by Barnard’s
efforts to characterize the record as raising
the issue of an addictive disorder. The
scattered testimony recounting Barnard’s
evidently frequent episodes of heavy alco-
hol consumption, alcohol intoxication and
marijuana use does not demonstrate that
the episodes were attributable to a perma-
nent handicap. Although the evidence
showed that Barnard was intoxicated at the
time of the offense, “voluntary intoxication
is not the kind of ‘uniquely severe perma-
nent handicap[ ] with which the defendant

6. Maude Barnard noted that she retired from
her job when she had a nervous breakdown in
the 1960s. Barnard was eighteen years old in
1961.

7. During the punishment phase of Barnard’s
trial, the court gave the following instructions to
the jury:

You are instructed that under our law neither
intoxication nor temporary insanity of mind
caused by intoxication shall constitute any
defense to the commission of crime. Evi-
dence of temporary insanity caused by intoxi-
cation should be considered in mitigation of
the penalty attached to the offense.

By the term “intoxication” as used herein is
meant disturbance of mental or physical ca-

was burdened through no fault of his own’
that requires a special instruction to ensure
that the mitigating effect of such evidence
finds expression in the jury’s sentencing
decision.” Cordova v. Collins, 953 F.2d
167, 170 (5th Cir.1992) (quoting Graham,
950 F.2d at 1029). A juror who concluded
that Barnard suffered from alcoholism or
drug addiction would have necessarily re-
lied solely on speculation to reach that con-
clusion. Accordingly, Barnard cannot pre-
vail on this claim. See Wilkerson, 950 F.2d
at 1061.

[6] Barnard alternatively argues that
the jury instruction on his intoxication at
the time of the crime prevented the jury
from giving any mitigating consideration to
this evidence unless Barnard proved that
he was so intoxicated that he was insane at
the time of the offense.” This instruction,
he contends, did not allow a juror who
found that Barnard acted deliberately and
was not temporarily insane at the time of
the offense to give mitigating effect to
Barnard’s evidence of intoxication even
though the juror also found that the intoxi-
cation diminished Barnard’s capacity and
militated in favor of a life sentence. There-
fore, he maintains that the mitigating
thrust of this evidence of intoxication ex-
tended beyond the special issues.

In reviewing Barnard’s state habeas peti-
tion, the trial court determined that Bar-
nard’s failure to request a special instruc-
tion or to object to this instruction at trial
established a procedural bar to considera-
tion of this claim. The Court of Criminal

pacity resulting from the introduction of any
substance into the body.

By the term “insanity” as used herein, is
meant, that as a result of the intoxication the
defendant either did not know that his con-
duct was wrong or he was incapable of con-
forming his conduct to the requirements of
the law he allegedly violated.

Now if you find from the evidence that the
defendant, Harold Amos Barnard, Jr., at the
time of the commission of the offense for
which he is on trial, was laboring under tem-
porary insanity as above defined, produced by
voluntary intoxication, then you may take
such temporary insanity into consideration in
mitigation of the penalty which you attach to
the offense, if any.

640 958 FEDERAL REPORTER, 2d SERIES

Appeals denied Barnard state habeas relief
based on this determination. The district
court concluded that the state habeas
court’s reliance on the state procedural bar
was unambiguous and thus precluded it
from reaching the merits of this claim pur-
suant to Harris v. Reed, 489 U.S. 255, 109
S.Ct. 1088, 103 L.Ed.2d 308 (1989).

We agree with the district court that the
state procedural bar precludes our review
of this claim. In Selvage, the Texas Court
of Criminal Appeals held that Selvage’s
Penry claim was not procedurally barred
under Texas law because it was “an asser-
tion of a right not previously recognized.”
816 S.W.2d at 391. This rationale does not
pertain here. In contrast to Penry, Bar-
nard does not contend that the Texas spe-
cial issues prevented the jury from consid-
ering Barnard’s evidence of tyoluntary in-
toxication; he asserts that the court’s erro-
neous instruction prevented the jury from
giving full mitigating effect to his evidence
of voluntary intoxication. Since a jury can
express the mitigating force of evidence of
voluntary intoxication through the Texas
special issues, Barnard’s failure to object to
the additional instruction on temporary in-
sanity resulted in the state procedural de-
fault of this claim.®

[7] In his final Penry claim, Barnard
argues that evidence of his good character,
including evidence of his carpentry skills,
work history, and familial responsibility
and support? fell outside the scope of the
second special issue. However, this court
has concluded that evidence of good char-
acter does not require a special instruction
under Penry. Graham, 950 F.2d at 10382.
Since the principal mitigating thrust of
good character evidence is to show that the
defendant acted atypically in committing
the capital crime, this evidence can find

8. At the time of Barnard’s trial, it was already
well established that a capital sentencing statute
must allow the sentencer to consider “as a miti-
gating factor any aspect of a defendant’s charac-
ter or record and any of the circumstances of
the offense that the defendant proffers as a
basis for a sentence less than death.” Lockett v.
Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978) (emphasis omitted); see also
Jurek, 428 U.S. at 271, 96 S.Ct. at 2956 (opinion
of Stewart, Powell & Stevens, JJ.).

adequate expression under second special
issue. Jd. Specifically, the Graham ma-
jority observed that
[uJnlike Penry evidence, which can re-
duce culpability where it is inferred that
the crime is attributable to the disability
while other similar offenders have no

such “excuse,” good character evidence.

provides no variety of “excuse.” Fur-
ther, absent some unusual indication of
an essentially permanent adverse
change in character (e.g., brain damage),
to the extent that the testimony is con-
vincing that the defendant’s general
character is indeed good it will also, to
essentially the same extent, be convinc-
ing that he will not continue to be a
threat to society.

Id. at 1033 (emphasis in original). Bar-
nard, however, maintains that, unlike the
good character evidence offered in Gra-
ham, the mitigating potential of his good
character evidence is not to show that Bar-
nard does not have the capacity for future
violence. Rather, he contends, the evi-
dence shows that his life should be spared
despite his need to be placed in a controlled
environment.

To the extent that Barnard asserts that a
capital sentencer must be able to express
the mitigating potential of evidence un-
related to a defendant’s culpability or ca-
pacity for rehabilitation, ample authority
supports the contrary conclusion. See, ¢.g.,
Penry, 492 U.S. at 319, 109 S.Ct. at 2947
(“Underlying Lockett and Eddings is the
principle that punishment should be direct-
ly related to the personal culpability of the
defendant.’’); Tison v. Arizona, 481 US.
137, 149, 107 S.Ct. 1676, 1688, 95 L.Ed.2d
127 (1987) (“The heart of the retribution
rationale is that a criminal sentence must

9. Three former employers testified for Barnard
and stated that he was a competent worker and
that they felt no fear for themselves or their
families when he was present. Barnard also
introduced evidence that he had worked to re-
ceive a General Equivalency Diploma, and that
he spent time with his children and supported
his family. Barnard’s mother testified about
how he helped to support her financially and
around the house.

BARNARD y. COLLINS 641
Cite as 958 F.2d 634 (5th Cir. 1992)

be directly related to the personal culpabili-
ty of the criminal offender.”); Skipper v.
South Carolina, 476 U.S. 1, 5, 106 S.Ct.
1669, 1671, 90 L.Ed.2d 1 (1986) (‘““Considera-
tion of a defendant’s past conduct as indica-
tive of his probable future behavior is an
inevitable and not undesirable element of
criminal sentencing[.]’). Further, Barnard
portrays the qualitative effect of this miti-
gating evidence in a way that continues to
bear on the question of Barnard’s rehabili-
tative potential,!° which is adequately ad-
dressed within the second special issue.
Thus, we find no merit to this contention.

C. Unconstitutionally vague terms

[8] Barnard contends that the Texas
capital sentencing statute was unconstitu-
tionally applied to him because its operative
terms are so vague and indefinite that they
deprive the jury of meaningful guidance in
its sentencing deliberations. Without clari-
fying instructions on terms such as “proba-
bility” and ‘“deliberateness,” he argues, the
statute unduly restricts the scope of the
mitigating evidence which the jury can con-
sider. To support his contention, Barnard
points out that in Penry, the Supreme
Court expressed doubt about whether the
jury could give effect to Penry’s mitigating
evidence of mental retardation and child
abuse “{iJn the absence of jury instructions
defining the term ‘deliberately.’” 492 U:S.
at 323, 109 S.Ct. at 2949.

This claim is without merit. Both the
Texas Court of Criminal Appeals and this
court have held that the common meaning
of the term “deliberately” is sufficiently
clear to allow the jury to decide the punish-
ment phase issues. Ellis v. Lynaugh, 873
F.2d 830, 839 (5th Cir.), cert. denied, 493
U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384
(1989). In Penry, the Court was concerned
that the trial court did not direct the jury to
consider Penry’s mental retardation in a
way that bore fully on his moral culpabili-
ty. The Court observed that “Penry’s men-
tal retardation was relevant to the question
whether he was capable of acting ‘deliber-
ately,’ but it also ‘had relevance to [his]

10. Barnard urges that the evidence demon-
strates that he could be safely employed within

moral culpability beyond the scope of the
special verdict questio[n].’”” 492 U.S. at
322, 109 S.Ct. at 2948 (quoting Franklin v.
Lynaugh, 487 U.S. 164, 108 S.Ct. 2320,
2332, 101 L.Ed.2d 155) (1988) (alterations in
original). Barnard has not presented any
evidence that would require additional sen-
tencing instructions pursuant to Penry.
Thus, the doubt expressed in Penry does
not apply to Barnard’s case. See DeLuna,
890 F.2d at 722-23.

Moreover, Barnard fails to demonstrate
that the jurors were confused about the
meanings of the challenged terms “proba-
bility” and “society” as used in the second
special punishment issue. In Jurek, the
Supreme Court rejected the. petitioner’s
contention that the second special issue
was unconstitutionally vague. See 428
US. at 274-75, 96 S.Ct. at 2957-58 (opinion
of Stewart, Powell & Stevens, JJ.); id. at
279, 96 S.Ct. at 2959 (White & Rehnquist,
JJ. & Burger, C.J., concurring) (‘the issues
posed in the sentencing proceeding have a
commonsense core of meaning and ...
criminal juries should be capable of under-
standing them”). We conclude that these
terms “have a plain meaning of sufficient
content that the discretion left to the jury
was no more than that inherent in the jury
system itself.” Milton v. Procunier, 744
F.2d 1091, 1096 (5th Cir.1984), cert. denied,
471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d
323 (1985).

D. Ineffective ussistance of counsel

Finally, Barnard argues that he was de-
nied effective assistance of counsel in viola-
tion of the Sixth Amendment. Specifically,
he points out that his trial counsel (1) failed
to have a psychiatric expert evaluate Bar-
nard; (2) failed to conduct an adequate
examination into Barnard’s family history;
(8) failed to obtain a medical examination to
determine whether Barnard suffered from
brain damage; and (4) allowed Barnard to
testify in his own defense at trial. These
errors and omissions, Barnard contends,
prejudiced his right to a fair trial.

We review an ineffective assistance of
counsel claim under the two-prong stan-

a prison setting in a manner that benefitted
society.

336 VII. AMERICAN STATE TRIALS.

I did not oppose my son’s mar-
rying Miss Smith. Had no words
with him about it when he went
away; we talked the matter over
and I told him to do as he
pleased; there may have been
some trouble between my son and
some of the members of the fam-
ily; do not know what it was.
Ballew and my son took with
them from home only the one
trunk. My son had these same
boots shown here with him then.
I got the boots from a store on
Hampshire street. Ballew was
arrested because I wanted to get
the notes back, the $5,000 and
$2,000 notes; did not want to
be broken up in my old age. I
got back the $2,500, note and
Ballew ordered my name erased
from the $5,000 note. Did not
give the note freely; I thought it
would be the best thing I could
do, considering the fix I was in,
Did not believe that my son ever
got the money before they went
away. Ballew spoke of sending
the money to me; wanted him to
send it by express. He said it
would eost too much; that the
expressage from Shreveport
would cost $200; that the ex-
press was robbed so often that
it was more dangerous than to
carry it. He said he would send
the money by my son. My son
was young, and I did not want
it sent that way. Mr. McGraw
opened Ballew’s trunk. Saw him
take out some papers; when the
trunk was opened Mr. Ewing,
brother Stephen and myself
were present. Do not know
where the papers are; the boots
were not in the trunk.

Re-examined. Think when my
son and Ballew left, Ballew had
a pair of saddle bags; he brought
a pair back with him when he

returned from Texas. Ballew
had on a pair of fine boots bad-
ly run over at the sides, and his
toes sticking out; asked him if
he was going to get a new pair;
he said he would get a pair some-
where on the road; these boots
here my son carried away in his
trunk. Have not seen the trunk
my son took away with him; the
trunk in Ballew’s possession is
not the trunk my son took away.
The accused came back from
his trip south, on 18th No-
vember, 1870; my son _ has
never come back; last time I
saw him alive was in Quincy,
Ill, when he and accused were
starting south, about the 13th
of September, 1870; I and my
family received letters from him
regularly until he reached Me-
Kinney, in Collin County, Tex-
as. The last genuine letter ever
received from him was dated at
McKinney, Texas, October 18,
1870; this letter was mailed at
McKinney, October 20. Have
seen the remains of my son; the
first time I saw them was in
Quincy, while in the possession
of Mr. Ewing; my son had a de-
eayed tooth; it was a double
tooth; was on the left side and
in the upper jaw; he also had a
decay in one of his front teeth;
described the teeth to Mr. Ewing
when he was first starting to
Texas to hunt the remains of my
son; the skull of my son favored
the shape of his mother’s much
more than it did mine. (Here
the skull and bones were shown
to the witness and found to be
as he had described them.) I
know this is the skull of my son,
James P. Golden, who started
away with the prisoner, Stephen
M. Ballew. (The clothing found
on the remains was shown and

STEPHEN M. BALLEW. Bat

identified as that worn and taken
by his son.) My son had two
knives, one a pocket knife with
six or eight blades, the other was
a kind of dagger—two-edged
knife, which had a fracture in
the handle; my son got the han-
dle mended; I would know the
knives if I saw them. (Here two
knives were shown witness.) Ree-
ognize these knives; they be-
longed to my son; he took them
away with him when he started.
south. I have not seen the knives
since my son left, until now. My
son took away a trunk (trunk
shown witness); that looks like
the trunk my son took away with
him; the trunk my son took away
had several departments in it;
there was a place for a hat.
(Trunk opened and found to be
arranged as stated by witness. )
Ilave not seen the trunk since
my son left until T saw it in
Quiney in possession of Mr.
Ewing. When aceused came
back without my son he said
that James had taken the trunk
and all their papers with him.

November 29.

John W. Golden. After Bal-
lew had ceireulated the report
about seeing my son in Missouri,
ahout which I testified on yes-
terday, he seemed to get very
uneasy about my son. The boots
here in court I saw Ballew take
out of a trunk which he said
he bonght from Jacobs’ store in
Quiney; he told me he got the
hoots out of a ease of boots he
bought in St. Louis to ship
souths said he bought boots, dry
goods, ready-made clothing, whis-
ky, groceries, ete., to ship south.
Aceused brought back with him
from the trip that my son ac-
companied him, an oil cloth over-

coat that belonged to my son, and
which he took away (coat shown
witness); that looks very much
like the oil cloth coat that my son
took south with him; the accused
also brought home some socks,
handkerchiefs and shirts that
belonged to my son, and which
he took along on the trip; my
son took the deed to his farm
with him. The deed was found
in the prisoner’s trunk after he
came back. That is the deed my
son took away, and the one Bal-
lew had in his trunk when he
came back from off the trip. My
son had executed a note to Bal-
lew for $2,000, and gave him a
deed of trust on his land to se-
cure the note; do not know how
it eame that my son took the deed
to his land with him; he had the
most implicit confidence in Bal-
lew. Have seen one of the ani-
mals that the accused took south
for me on his trip before my son
went with him; she is one of the
animals that Ballew told me he
had sold in Shreveport, La., on
time, with good security, and
which he would collect when he
and my son went down. Ballew
brought back two pair of pants
on his return from the trip on
which my son accompanied him;
one pair was black doeskin; they
were torn considerably; they
looked as if they had been torn
by briers; noticed blood on
them; Ballew said it was lini-
ment, and got them washed at
my house; he said the way he
got them torn as they were was
that he shot a turkey down in
Texas and was running through
the briars and brush after it.
These are the boots my son wore
away from home. My son chewed
tobacco. His hair was dark. The
hair found on the remains re-


342 VII, AMERICAN STATE TRIALS.

be prompt in this and send them emeadatly write me at Shelbina in
care of E. a dougherty yours with due respect

John W. Golden. We received
many letters purporting to be
from my son, written in his
handwriting, with the exception
of the dates, and they were all
in Ballew’s handwriting. After
Ballew got back, he asked me if
I had received a letter from my

Stephen m Ballew

son James, written at Jefferson,
and upon being informed that I
had, Ballew remarked that he
wanted a copy of that letter as
it was all he had to vindicate
himself; this was before there
was any suspicion of Golden’s
being murdered.

STEPHEN M. BALLEW. 343

us, and I think we can. I believe I have written all the partic-
ulars, so no more at present, but remain as ever, your son,

To John W. and Elizabeth Golden.

Mr. Golden. Ballew told me
when he came back that my son
wrote the letters purporting to
have been written at Jefferson;
he said my son wrote them and
the receipt in the tent warehouse

James P. Golden.

to me how the dates in the let-
ters and receipt came to be in his
own handwriting, nor how they
came to be mailed at Shreve-
port; he would never talk to me
much about them.

Jefferson, Texas, Nov. the “1, 18,70”
Esteemed Father:

I embrace the present opportunity
of addressing you a few lines to let you know that we are well at
the present time. We have had very good health all the time
since we left home. Hope this may find you all enjoying good
health. We have had very good luck all the time; some of our
horses were sick for a time or two but are wel lagain. They
looked very well when we got through. The mare held her own
as well, if not better, than any of them. We left Baxter Springs,
Kansas, on the 2nd of October, and crossed Red River on the 12th.
There is some very find land in the Indian Nation—as fine as ever
lay out of doors, and plenty of it. I saw the tallest cornstalks
in the north part of the Creek Nation that I ever saw, and the corn
had not been more than half attended to. The people in Texas
were pretty well through gathering corn when we got here. The
cotton is good in this State, as a general thing, and people were
busy picking when we got here. I guess they will pick all winter
if it don’t frost enough to kill the cotton. The weather is warm
and nice. There is as good land here as I have seen anywhere.
The east part of the State is sandy, but from 80 miles east of Sher-
man, from that west the land is hard to beat. There is plenty of
limestone in all of it. Now, about our business. The land that
Steve bought here while in Kentucky, he admitted me as a partner
in it, and sold it at Sherman to a real estate company for a profit
of $2,580, of which I get one-half in specie, and our St. Louis stock
went off at a profit of $3,400, giving me a profit of $2,990 in specie,
clear of expenses on the trip. How is that compared with Illinois?
I have got the money for your horses, and the $2,500 that you
wanted, for which I have receipted to Stephen. Steve has come
right up on the square in everything that he agreed to, and I have
money enough to pay off all of Steves indebtedness and to furnish
him a house in Shelbina, and if you lose another one of your girls
soon after we get home, you need not be surprised. I expect to
start home in a day or two. Steve is going to stop along the river
to get contracts for mules. We expect to want all the mules we
can buy up there, when we get back, if we can get contracts to suit

at Jefferson; he never explained

Mendon, Ills. Dee the 9, 18,70

Dear Sister I received your letter yesterday evening
was sorry to hear of your truble. I am still quite sick. as regards
the money I sent you $150 in the last weak in Oct last while I was
at Jefferson texas. strange you Did not get it, Sister I will send
by express $40 more and I want you to come and see me and take
care of me tile I get well or Die Sister $40 is all the money I have
got by me it will pay your expences oute here, and then if you
need to send eny back you Can as soon as it is Collected Sister I
am in a little house and no one to take care of me plese come till
I get well eny way and come rite off if you wish to see your brother
alive. sister bring all you have with you for if I get well I will
rent a nice little house in town hear and I want you to stay with
me and not teach any more don’t spend the money I send you ondly
to Come and to see your sick Brother and come so you ean stay
Bring all your Stocks of everything and come Soon as my Desease
is likely to make a change at eny time rite by return mail and tell
me when you will be here and I will send some one to meat you sis-
ter dont disipoint me for I want to see you before I die. write
soon pleas come S m Ballew

Mr. Golden. At the time the all the attention from my family
above letter was written Ballew that a son could wish.
was at my house and receiving

_(The following letter was held not admissible, except the part
given below. It was written by Ballew to his sister Belle. After
stating to his sister about the trip south, from which he had just
returned, he states: “I expect to make another trip south this fall
and try my luck over I want you to be of good cheer I shall con-
{tinue to work for a time I think I have things so bunched that I
have no doute of success this trip, I was able to pay off all the
money I owed and they all think here that I made money.” The
rest of the letter was excluded.

The State introduced a letter from Ballew to James P. Golden,
written at Camden, Ark., Feb. 30, 1870. The letter was very
lengthy, and was evidently written for the purpose of inducing young


338 VII. AMERICAN STATE TRIALS.

sembled the color of my son’s
hair. My son oiled his hair
sometimes and when oiled it was
darker than when it was not.
(Shown a brown hat.) That
looks like the hat my son took
away with him; Ballew brought
home such a hat in texture and
color, but then I think the brim

is the hat Ballew wore back home
from his trip south with my son.
Am acquainted with the hand-
writing of prisoner. This letter
is in his handwriting and was
received by son James. (Many
other letters were handed to wit-
ness and identified as being in
the handwriting of Ballew and

STEPHEN M. BALLEW. 339

was a little wider than on this read in evidence. The letters
one. (Another hat shown.) That are given here just as written.)

Shelbina, Mo., Sept. the 1, 18.70.
John Bowman

Dear friend. I have just got home from
Ky—and when I got to cousin E A Dougharty I found the long
looked for letter thare. the first I have herd from the family since
I left thare. John I have come to the conclusion that you had tied
yourself to some one of the fare Daughters of Texas—and did not
eare to know or hear from eny one else—if you have I sopose the
spell has past off to some xtent. at least you have taken time to
think of me well I have no nuse to write you ondly that I am get-
ting ready to start to texas I shall start by the 15 of this month
will be at Uneles the 15 of Oct—John tell Cuts to put Babe in
fine fixe by that time and I will pay him for ite and I want you
to go to Sweveport with me when I come look round and see if
thare is eny mules that I ean by or good horses dont forget you
must go to Sweveport when I come I have a fine stallion that came
from Canidia he is a thoro bred Canidianian and is a horse of power
and stringht I think he will take well in your country . . . com-
pliments to your fathers family with due respect

S. M. Ballew

Mr. Ewing. Mr. Golden, state which was the last of August,
whether or not at the time the 1870, the agreement was made
above letter was written, your and my son was to purchase
son James had agreed to go with wagon, harness, horses, ete.,
Ballew to Texas? He had, and while Ballew went over to Mis-
was preparing for the trip; souri to settle up some business,
when my son and daughter and as he said.

Ballew got back from Kentucky,

South mo sept 25. 18.70

Dear Sister I am resting quite well hope you are well and bin
well—sister the trip south is promisin and I hope to be able to
settle you in a quiet home on my return be cheerful and i will do
my best at all times to make something to take care of you in a
short time I will rite you as often as I can on the trip dont be
oneasy about me for I have traveled on bisness for some time and
J dont think thare is eny-more danger on this trip than any other

. write me all the nuse at McKiny, Collan co texas and believe
me as ever, your brother,
to Belle Bellew

Lexington, Ky.

Sept the 30 18.70
Baxter springs cansus

Sister I start across the In-
dian Nation tomorrow I have good helth as comin I all so xpect to
make something this trip have had good luck with my stock this
year so far I dont expect to stay south longer than february so I
hope you will be cheerfull and dont dispare of your brother mak-
ing something this year I have had splendid wether since I started
James Golden is with me and I think will stay with me till I come
back I will write to you once in two weaks while I am gon and I
want you to write me at MeKiny Collon co texas so I ean get it
when I get thare I am so antious to make something so I can
take care of you and myself and quit this transit Bisness take good
care of your helth and beleave me your Devoted Brother
(To Belle Bellew, Lexington, Ky.)

(To Miss Clara Golden)
Sherman Tex Oct 15 18.70

Well Clara after thinking of what you wrote me and
the impression you was laborin under you will find me full up to
my promice to get reddy by the first of December to get maried.
I will be at home by that time I think my Bisness will be so I ean
leave I ean keep you from starving I think at least, I shall do the
best I ean perhaps we will go and see your sistey moly write her
that you expect to be there on your weding toor; and to spend a
few days with her. James will start up in some two weaks from
now I will be there as soon as I ean make arrangements with my
goods. be of good cheer I will take care of you the rest of your
days if something dont happen that I know nothing aboute we will
make near a thousand dollars on the trip down, if you dont Back
oute and we get married I think I will quit trading and_stay at
home after this trip will settle in Mo I think I will send money
anuf to pay all I ow by your Brother and to fit up over there every
thing to go to house keeping as soon as I come Home—you need
not give yourself eny oneasy ness about me for I will be there in
time much love to all the family and xcept the largest share for

yourself and beleave me as ever yours
S. m. Bellew

(To Miss Clara Golden, written before the murder, and mailed
after, at Quitman, Tex.)
Oct the 21 18.70
Kind Friend it has bin some time since I
saw you but if I keep able to travel and nothing happens more

340 VII. AMERICAN STATE TRIALS.

than I know of I will see you in the corse of six weeks that will
be about the first of december Clarra dont fail to be ready to have
the sorrymony said and dont disipoint me when I come James is
well and seames to be injoying the trip vary well espeshaly the
profits of the trip our trip is vary promicing for a nice proffite.
we will be at Jefferson by the first of November if I keep well anuff
to travel I have not bin traveling mutch since the 16 I have bin
quite un well ever since then I am well anuff to walk round, and
travel 8—or ten miles a day; I have had the As ma the worst kind
and yesterday its turned to Chills but I think I will get along
now. for I have bin my own doctor—I hope you have bin well.
ever since I left I shood like to see you vary mutch I think uncle
john mite have wrote me a few lines it wold not have tuck him
long. we had quite a frost hear nite be fore last. you will not
have time to rite me eny more as the an swer wil not get to Jeffer-
son before we leave thare I have not had but one and I think I
shood of had or wood like to of had 4—or 5 before now. after
we sell I expect to stop a few dais to get contracks for mules James
will come down with them I have give him money to furnish
the house at Shelbina for your benefit and mine mutch love to
all the family and friends and except the gratist part for your self,
as ever yours S m Bellew

(Letter to his sister, written in New Orleans, on his return from
Texas. )

Dear sister November the 6—18,70

I have succeeded in bisness this
trip beyond my expectations I have sold my intire stock at a prof-
fite. and I am in New orleans solisiting contracks for a nother
trip—I am in good helth as useal. hope you will be cheerful, till
I see you I may be in Ky in next month on bisness and if I do I
will come and see you. and if you need eny meens I will let you
have them then I dont concider it safe to send it from hear. I
like the people of this country vary mutch hope to live hear some
day mutch love to all the friends and relatives and beleave me as
your devoted Brother S m Bellew

(Letter to Robert Caldwell of Ky.)
Mendon Adams co ills. Dec. the 23, 18,70

Kind Friend I have at last fond time to write you a fiew
lines I have bin vary sick with feaver. but I am getting well. now
uncle John Goldens family is well.—that is all that is at home.
now Robert I am going to tell you that James Golden has not got
Home yet. and as he has a large amount of money with him I
want you to write me if he said enything to you or ant Peggy, of
going to eny other euntry in the letters he wrote you and ant
Peggy, I want you to give this your special attention as your uncle
is bond for a large amount of the money, get the letters he wrote

STEPHEN M. BALLEW. 341

you and her and read them over particular and if he has said eny
thing about a trip I want you to write me at this place or write
to uncle John as soon as you get this note now Robert I want you
to keep this all to your self, for he may have got sick but he has
not written home for some 9 weaks and he shood have bin home
3 weaks before I was he tuck a large amounts of money to pay
off my dets of Boroed money, and I have not heard from him since
he left ondly throw his sweat hart she got a letter from him aboute
a month after he started Home I staid south after he left some
two or three weeks to get contracks for mules. and when I come
Home he was not thare. we think he has gone to Canady from
the best I ean trace him, write soon and be shure and say nothing
to eny one about this matter for he may turn up all rite yet. but
we have lost all hope of it mutch love to all. the family and friends
and to all the Boys success in biseness long life and happiness is the
wish of your friend S, M, Bellew.

November 30.

The following letters were admitted and read:

Letter from Ballew to Newton Childers, of Kentucky, written
in Adams County, Ill., Nov. 29, 1870, in which he states that he
has at last got home—that he is very weak—that he is in a “vary
sorrow condition”’—that he is going to be treated by Dr. Young—
that he has a “nervus desease,” ete., ete.

(Letter to his uncle, J. D. Ballew, of Collin County, Texas, after
his return.)
Shelbina mo Noy. 29. 18.70

Dear uncle I have at last found time to rite you a fiew lines.
well to commence with I did well with my Horses had to go to
New orleans to take a boat tuck the yellow feaver liked to of died
just got to eusin E, a, dougherties just abel to set up. found the
family all well but cusin Beck mullins she died while I was gone.
with Hemerge of the lunges—I teligraph to sister she has got
quite well. unele I had a vary hard trip taken ever thing in to
consideration and come vary near handing in my account for final
settlement. well give my vary best love to ant Serelda . . . and
to cusin Cuts and tell him to make a man of himself. and aspire and
labor for public favor and poplarity. and to eusin Cate she has
my kindest regards and best wishes for her success in life happines
marige and life ever lasting is the wishes of her eusin now uncle
T have a request to make of you and that is to make a box and put
them too guns the rifle and shot gun in it and send them to Jeffer-
son by Lewis or some one else and have them expressed to FE, a,
dougherty at Shelbina mo. and we ean pay the express on them
hear. cusin Dougherty was quite angry at me for leaving it at
your house and refuses to take enything but the gun so please send
it as soone as you get this if luis is not coming to Jefferson take
them to some of the Merchants at McKinney and_ send
them on a waggon that is going to Jefferson for goods. please

REPRE 52 ER,

ak

“The stories of Ballou,” says our inspired and unfor-
tunately anonymous correspondent, “were to her like the
rhythm of the Homeric epic. ‘Desdemona did seriously
her ear incline,’ and the parent looked approvingly on the
growing attachment.”

The course of true love threatened to run dangerously
smooth, and the only boulder in the stream seemed to be
gloomy Jim Golden. He alone stood out against the
winning charm of his adopted cousin, stubborn and
sullen.

But it took more than a country bumpkin to outdo
Stephen Ballou. That dapper and polished man of the
world let loose all his personal magnetism. He was re-
solved to be a bosom friend, indeed, a brother, to Jim
Golden. He sought opportunities to be alone with him,
and finally, when all else failed, he let go his main broad-
side—played his ace from the sleeve, so to speak.

The ace in question happened to be a small derringer
pistol. While running the rivet boats in the company of
professional gamblers, Ballou had become acquainted
with this small and handy weapon. One rainy afternoon
he unbent so far as to draw the revolver from its hiding
place in the lace of his sleeve, unfasten the elastic which
held it there, and show it to Jim.

For those of my readers who have never seen a der-
ringer pistol, let me explain that it was a single-shot,
medium calibre weapon far superior to any other small

‘arm of the day. It was barely larger than a fountain

pen—small enough to be concealed in the palm of a
man’s hand—and at short range it was absolutely deadly.
in placing a 41/100ths calibre ball.

en roes
mss SOS oe we

LOUTISH JIM GOLDEN
The victim in this strange tale, he
met death on an expedition intended
0 bring great riches... . Right:
The derringer pistol which Ballou
prized so highly; and an old-lime
newspaper account of the case.

Ballou’s weapon—he called it “Emilie” after some
lovely and dissolute lady who, he said, had given it to
him for saving her life—was of delicately chased steel,
and its like had never been seen in Quincy. When Bal-
lou allowed young Golden to carry it about, and even to
fire it once or twice for the edification of the hired men,
his conquest of the stubborn cousin was complete. From
that time on they were inseparable. And yet it was a
mistake for Stephen Ballou to show his weapon to Jim
and the hired men, a very great mistake.

UT IT IS ALUCKY THING for many a one of us that no-
body glances into the future. Stephen Ballou swag-
gered his way into the home and into the hearts of the
Goldens. Lovely Clara slipped away evening after eve-
ning to stroll with him along the side of the brook which
flowed across her father’s farm. It was later suggested
by unfriendly neighbors that she was not the only lady
of the household who had done so. Whether that is true
or not, there are certainly worse crimes than that of be-
ing a Lothario. ;

From time to time, Ballou rode into Quincy for his
mail, which he guarded from every eye with the utmost
secrecy. His business affairs, he explained, were of
great importance,.involving considerable funds.

He hinted now and again at the success of a- venture
or two, and his possession of abundant funds was enough
to prove that he was not speaking without foundation.
Late in the fall of that year—1869—he journeyed down
the Mississippi to St. Louis and returned after a few
days, puffed up with importance. The biggest deal of his
life was under way.

To old Jonathan Golden this was both good and bad
news. He was pleased with the prospect of making this
prosperous and talented “nephew” into something closer,
a real member of his family, through the gradually ripen-
ing attachment between Clara and Ballou. Yet it showed
only too clearly the lacks of his own son Jim, who had
little brains for trading and seemed destined to remain
a farmer all his life.

Golden was a poor guesser as far as Destiny was to
be concerned, but he could not know that.

SRS RRTEREN IEE 29


Ballou saw the contrast between himself and his cousin
James and was swift to suggest an opportunity which
farmer Golden seized upon. Supposing, the young man
said, he could lend a helping hand to his cousin and aid
him in getting started on high finance?

Just at that moment he had a very important deal on.
It was a grand speculation—a bold risk of everything he
owned against a possible gain of thousands. “While in
St. Louis he had purchased, sight unseen, a share in a
lot of bankrupt property, land and livestock, in the south-
ern states. The price for the lot was fifteen thousand
dollars, and the actual value was three or four times that
at the present market. He had been able to raise only
seven thousand, due to having most of his capital tied
up in other purchases—ivory penknives and woolly
French poodles, no doubt.

If Uncle Jonathan would only purchase the remaining
share for James Golden, it would be of great advantage
to both parties, and the farmer boy would have his first
taste of business in the great outside world, with Stephen
Ballou’s hand to guide him all the way!

Fr SEEMED ALMOST TOO GOOD to be true. The whole
thing was arranged as soon as it was mentioned as a
possibility. Later events made it necessary to discover
just who had been responsible for the details of the plan,
but that point was never cleared up. Jonathan Golden

THIS COUNTRY LAWYER REFUSED TO BE FOOLED

“Judge” William G. Ewing, family attorney to Jonathan Golden

and district attorney at Quincy, Illinois, hated to be kept waiting

quite as much as a bustling lawyer of our own generation, Stephen

Ballou made him wait twice—and it started Ewing off on a train

of thought which had startling consequences. A smart detective,
despite his flowing beard.

50

admitted soberly that it might have been himself. Cer-
tainly it took little arguing to bring Stephen Ballou
around ; and if sullen Jim Golden had been praying for
this opportunity of getting out into the wide world of
adventure and struggle, if he had been waiting and hint-
ing and hoping, he was never to admit it in court.

An appointment was made with William G. Ewing—
“Judge” by local acclamation, and the legal light of
Quincy—to draw up proper plans and agreements. But
at the last minute Jim Golden vetoed the idea. He had
been talking it over with Ballou, he said, and they had
agreed that the less made public of their scheme, the
better. Someone else might leap in and purchase the re-
maining share of the bankrupt lands and cattle.

Judge Ewing waited in his tiny office above the Trad-
ers’ Bank for an extra hour that afternoon, then
shrugged his bony shoulders and went home. Jonathan
Golden was a good client of his, and the judge didn’t
mind so much. Only he did hate missing his dinner.

Stephen Ballou saddled his black mare, and Jim
Golden straddled a rackety roan. He was leading half
a dozen other horses, provided by his father so that the
two young men could do a little quiet “hoss tradin’” on
their journey.

In Ballou’s money belt was five thousand dollars in
cash, together with notes for the balance of the eight
thousand necessary, secured by a mortgage on the Golden
farm, plus other notes for additional trading ventures,
making a grand total of more than eleven thousand dol-
lars. That was a lot of money, one might think, to en-
trust to two young men.

But it was spring, optimism and promise were in the
air, and everything was going to turn out all right.
Jonathan Golden was sure of that, and so was his young
second wife Louise, so was lovely daughter Clara, so
was Lulu, the red-haired, lonely hired girl, so was every
one of the twelve hired men,

“The day of departure arrived,” says the record, “and
the travelers rode away with the blessings of the good
old man reverently invoked on their heads, and the shy,
fond caress of the beautiful sister and fiancee sweetly
lingering upon their lips. ”

Tee WAS A SLIGHT STIFFNESS on Ballou’s part as

they said farewell, due to the fact that as a parting of-
fering the women of the household had presented them
with fine hand-made shirts of blue silk. Louise, his
young step-mother, had made one for Jim, and the fair
Clara had made one for Stephen Ballou. Naturally,
Louise’s practiced fingers had done a neater job than had
Clara’s. And the best was what Stephen Ballou was
used to.

Yet he was too much of a gentleman to let his beloved
see his feelings in regard to the matter of the shirts. He
waved goodbye from the turning by the brook, then gal-
loped away. Clara watched from the porch. She did not
know that Louise Golden was leaning from an upper
window, and that red-haired Lulu watched anxiously
from her scullery.

It was here that Lulu saw—or thought she saw—a
Thing on a white horse ride swiftly after the departing
adventurers. She promptly fainted—which was natural
enough in her condition. No one in the household paid
any attention to Lulu’s mumbled fears or knew that she
had a condition. Lulu was half Irish and half Maygar,
the daughter of a scrubwoman and an itinerant peddler,
and she claimed to have the second sight. At, any rate,
she had had her last sight of one of the two who rode
gaily up the lane.

It was not long before letters came back to the Golden
household—letters from Ballou to the fair Clara, digni-

nm — A ea


fied and poetically romantic, letters from Jim Golden to
his father, describing their adventures in horse trading
and other business successes. There was a note of envy
in the letters written by the latter. “Steve is sharp asa
Yankee,” he indited once.
puts through a deal of some sort.”

The letters, later read in court as evidence, detailed
some of the amazingly successful deals which the swash-
buckling Southerner completed, and the gradually rising
total of profits gladdened the hearts of those who waited
at home for the return of the wanderers,

The months wore on, and at last the lon -hoped-for
announcement came. Jim Golden wrote from a little
town in northern Texas, saying that the last of the prop-
erty and the horses had been disposed of, the last long-
horn steer and razorback hog had found a home, and
that they would soon return.

“I’m coming on ahead with my share of the profits,”
wrote young Golden. “Steve has private business that
will keep him here a few weeks longer.” Stephen Ballou
wrote in greater detail. The entire profits of the trip
had amounted, he said, to more than fifteen thousand
dollars. In other words, almost one hundred and fifty
per cent on the original investment !

Jim Golden’s share would be seven thousand five hun-
dred, and about October first he would set out for home
laden with gold. Jonathan Golden, puffed with fatherly
pride, told all the neighbors, His son, now a successful
business man, would return during the first part of Oc-
tober, his pockets rattling with gold pieces.

Bz Jim GOLDEN DIDN’T RETURN home, gold-laden or

otherwise. His father kept a whale-oil lamp burn-
ing in the parlor window, and the days passed. Still no
return of the prodigal.

The anxiety of the family mounted until it became out-
right alarm. There were many dangers, in those days
as in these, attendant upon the journeying of a young
man supplied with too much money.

Their worries were hardly lessened by a letter from
Stephen Ballou, dated October 15, 1870, in which the
young man with painful difficulty explained the reason
for his comrade’s non-appearance. Jim Golden had been

trusted with all the money, both his share and Ballou’s, «

a few days before his scheduled departure—and he had
absconded with it. More than twenty thousand dollars,
capital and profits, had proved too great a temptation
for the restless bumpkin. In those days the dollar had a
buying power equal to that of three dollars today, and
the missing funds represented no small fortune,

The news struck Jonathan Golden, as the account
explains, “like a thunderbolt out of the blue, pressing
with a terrible weight upon his upright shoulders and
bringing down his gray head in sorrow, if not to the
grave, at least to the misery of realizing that he had begot
a thief and an embezzler.”

Yet Jonathan Golden knew, deep in his heart, that the
seeds of this overt act on the part of his son had been
sown years ago, It was just what they might have ex-
pected of Jim, poor sullen Jim. He should have known
better than to have trusted the young man, should never
had attempted to start him off in high finance.

- After all, the loss was a great one, but Jonathan Golden
could stand that. He had meant the money to be a start

in life for his only son, and if the boy had chosen to steal
it, that was only his own shame.
over it for days.

The real loser, he knew, was Stephen Ballou, who had
been Jim’s friend and benefactor. Ballou had succeeded
in his business venture only to lose everything he had in
the world through a misplaced trust in Jim Golden,

The father brooded

“In every town we touch he:

NE

ANOTHER WOMAN FASCINATED BY BALLOU

Louise, the youthful second wife of Jonathan Golden, secretly took
walks with the gay adventurer. These strolls ended when Ballou
married her step-daughter—but it was something to have him
around the house. A fine silk shirt made by Louise played a large

part in solving the crime committed by “the Quincy fiend.”

A few weeks later, when the edge of Jonathan
Golden’s suffering was a trifle blunted, Ballou rode sober-
ly up to the farm again. His black mare was gone—he
had been forced to sell her to pay for his own return.
He now straddled a gaunt bay gelding and had a saddle
of plain untooled leather. His appearance was a great
contrast to the figure he cut when, as a gay adventurer,
he had first appeared at the Golden homestead more than
a year before.

Ne ONE COULD HAVE BEEN more kind and understand-

ing than Ballou at this point. His sympathy and
tenderness for the bereaved family—for they thought of
their son and brother as one already dead to them—was
exquisitely tempered with a dignified repression of his
own sense of wrong. He barely allowed this feeling to
make itself noticed. Money was not everything, he
pointed out. The wrong that had been done him by Jim
should make no difference in his plans for a happy future
with the fair Clara, lovelier than ever with the ripening
of her twentieth year, Naturally, there would be no
merrymaking, no nuptial feasting, after what had hap-
pened. Ona drear morning in the middle of November,
Stephen Ballou dressed himself in his best and stood in
the farm parlor while he was united in the holy bonds of
wedlock to Clara Golden.

The bride was given away by her father, and the wit-
nesses were Louise Golden, step-mother of the bride, and
Lulu, the hired girl. Lulu had to sit down during the
ceremony, as she was feeling (Continued on page 82)

51

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gloved hand in both of his; the farmer’s wife took Bal-
lou to her bosom and called him nephew although he was
very little younger than herself, and even the fair Clara,
who had just returned from boarding school at Knox.
ville, suffered her handsome cousin to press his lips to
her hand. She had read of men like Ballou, but had
never seen one in the flesh.

Life was dull on a farm near Quincy in those days.

here was no radio to bring Amos and Andy and the
quavering crooners out of the ether. No motion pic-
tures lured the country folk to Main Street of an eve-
ning, and when the sun had set and the chores were done
there was little else to do but go to bed from sheer
boredom.

Therefore the welcome for Stephen Ballou. He had

48

ot ss

ie te AE LOVELY CLARA

The farmer's daughter,
just out of boarding
school, capitulated at
once to Ballou. She had
heard of men like hin,
} but had never before
Ais met one in the flesh. She
My is shown with the woolly
e) French poodle dog giwn
to her by the gentleman
from Kentucky,

been a soldier—one
of Morgan’s raiders
—and had fought
Indians in Okla-
homa and guerillas
along the border.
And he could spin
yarns.

Around his fect of
an evening’ sat
farmer Golden and
his wife Louise,
with the fair Clara.
A little farther back
was Lulu, the hired
girl, red-haired and
lonely; still farther
back were the hired
men, and somewhere
in the shadows, Jim
Golden.

According to the
Quincy correspond-
ent of the New
York World, u pon
whose eloquent de-
scriptions I cannot
improve, Ballou was
“aman who had
fought ‘successfully
the battle of life jn
that great world on
the edge of which
they lived. His nar-
ratives of personal
adventure were as
fascinating as the re-
citals of the old cru-
sader returned home
from Paynim wars.
The maxims of
shrewd worldly wis-
dom that dripped
from his lips were as
the golden words of Solomon. Every day lent new at-
tractions to the visitor, and he bid fair to become their
honored and permanent guest. -

Ss Se

is on he

Beer DID NOT EXTEND HIMSELF toward the hard

manual labor of the farm, but then he was a guest
and a gentleman, and not expected to join Jim Golden
and the hired men in the harvest fields. Instead, he re-
mained in the house during the long afternoons and
made progress with lovely Clara Golden.

She was his without resistance, capitulating at once be-
fore his worldly charms and his magnificent gifts, which
included “an ivory penknife, several bolts of fine silks,
and a woolly French poodle dog.” What girl could
withstand a penknife and a poodle dog!


Attachment: VICTIMS FAMILY: --did not attend -Dr & Mrs Rounsaville (live in
Naples Florida 1997] [retired from Tulsa OK]
-—-Her name was called out at graduation and her parents got her

diploma -Architecture
--mother "It’s a lot easier on him than what Cindy went through."


nnn

BAREFIELD, John Kennedy, black, injection SP (Harris Co.), 3/12/1997.

BAREFIELD, John Kennedy, black, dob 3/30/1964; Harris Co., received TDC
9/26/1986-"Huntsville-The leader of a gang that raped and robbed in Houston apartment
complexes was executed for the abduction, rape and fatal shooting in ‘86 of Cindy Rounsaville,
25, a Rice University student. John Barefield, 32, was killed by lethal injection.”-USA Today,
3/13/1997 (10A-6).

”Cindy Renee Roundsaville, 25, was an architecture student at Rice University in
Houston. On the evening of 4/21/1986, she was kidnapped from the parking lot of her apartment
complex and raped. When she tried to escape, John Kennedy Barefield shot her with a .22-caliber
pistol and then set fire to her car after stealing the rings that she wore. Bounsaville was 2 weeks
from graudation and about 2 months from her wedding. When Barefield was arrested for a series
of robberies and rapes, evidence revealed he had been involved in the Rounsaville case. The
police recovered Rounsaville’s rings and the weapon used to kill her.”-Death Row, 1996, V. 6,
page 114.

“Washington-The U. S. Supreme Court has rejected the appeal of... Texas death row
inmate...John Barefield...Barefield was sentenced to death for the 4/21/1986 abduction and killing
of Cindy Renee Rounsaville. Barefield was one of three men who forcibly took the woman from
the parking lot of her Houston apartment complex. Police said he shot her when she tried to
escape... The case is Barefield vs. Texas, 89-7007...”-/tem, Huntsville, TX, 6/28/1990.


Prisoner executed for 1986 robbery-rape-murder Page 1

|e
Houston Chronicle Interactive

Section: Local & State

Related forum

Recent related stories:

@ Wednesday: Killer nears
date with executioner

9:29 PM 3/12/1997

Prisoner executed for 1986
robbery-rape-murder

By ARMANDO VILLAFRANCA
Copyright 1997 Houston Chronicle

John Kennedy Barefield was executed Wednesday for the 1986 murder
of a 25-year-old Rice University student who he had robbed, raped and
shot twice in the head.

Smiling as he lay strapped to the death chamber gurney, Barefield
turned to a brother, three sisters and his niece and told them he loved
them.

"Tell momma I love her," said Barefield, 32, whom his mother named
after the late president.

Moments later, his eyes rolled back and he gasped deeply as the lethal
solution was injected into his arms.

As he lay dying, one sister said, "No more worrying. no more bars. Oh
rest. Oh, baby, just rest."

He was pronounced dead at 6:18 p.m.

Barefield had been on death row since Sept. 26, 1986, after being
convicted in the April 21, 1986, murder of Cindy Renee Rounsaville.

Rounsaville, the daughter of a Tulsa, Okla., orthopedic surgeon and his
wife, was killed three weeks before she was to graduate with a degree
in architecture from Rice. She and her fiance had planned to marry two
months later.

Her partially clothed body was found in a field near the Fort Bend
Couny Line on April 22.

Barefield told police that he, his older brother, Perry, and Ernest Lee
Sonnier were driving around southwest Houston looking for a victim
when they came across Rounsaville as she walked toward her car in her
apartment parking lot.

Investigators later learned that, in the seven months before the
Rounsaville murder, Barefield had kidnapped and robbed three other

women and a couple.

He was charged with capital murder May 9, 1986, the day before

NAME: BAREFIELD, JOHN KENNEDY DATE OF EXEC.: 1997/03/12 NUMBER: 368

S: YofE: 97 DR #: TX-000844 METHOD: INJECTION TIME: 1818
SOC. CLASS: ECO. CLASS: EXECUTION SET : 97/03/12-EXE NO.:
RACE: B SEX: M TO-DR: 10.5 T-C: 10.9 AGE AT EXEC.: 32 DOB: 64/03/30
STATE: TX CO: HARRIS CITY: HOUSTON
HOR: BOOK/MOVIE:

Hs Bed Ce3 Bs. 2 SPECIAL LIST:

DATE OF CRIME: 1986/04/21 AGE AT CRIME: 22 CATEGORY: LEO:
DATE OF SENT.: 1986/09/26 WEAPON: SHOT

CRIME: MURDER-KIDNAPPING-ROBBERY-RAPE NO. KILLED: 1 TOTAL KILLED:

VICT. CODE: WF25
CMTS#1: CINDY RENEE ROUNSAVILLE (25), kid. from the parking lot of her
apartment, raped, shot twice in head had tried to escape, burned car
--student Rice U. (Architect student)(2 wks from grad.)
--wedding in two months (rings taken-led to conviction)
-also forced to use ATM ($70)
KNOWN PREVIOUS CONVICTIONS: ADULT RECORD FROM AGE 16;

ACCOMPLICE: BAREFIELD, Perry (45y); SONNIER [L] FIRST ENTER:

CMTS#2: U.S.S.C. REJECTED: 1990/06/25

A SERIES OF ROBBERY-RAPE ATTACKS LED TO THEIR CAPTURE -6 MONTHS CRIME SPREE
--CRUSING FOR WHITE VICTIMS IN APARTMENT COMPLEXES

--FOUND RINGS, .22pist
--detailed confession

—- TRIAL: GUILTY 30min DEATH 25min
-ACCOMPLICE: ERNEST LEE SONNIER [ ]
PERRY BAREFIELD [ ]

LAST WORDS: I love y’all. Tell mother I love her. (spoken to his 3 sisters,

brother, niece -mother had left)

LAST MEAL: Double cheeseburger (all the way), french fries

HUMOR-STRANGE :

SOURCE: TX DOC; FP DET 8703p14; AP-UPI-REUTERS IQ LEVEL:

CMTS#3: --l of 11 children Lake Providence LA


' WEDNESDAY, FEBRUARY 2, 1994 + USA TODAY
ar aaa ieenienleeienciemesitiecaee


~

International’s knowledge, the Board met once
1992). Their reluctance to hold full clemenc
great concern to Amnesty International.

in 1987, and once in
y hearings is a matter of

RECOMMENDED ACTION: Please send telegrams/faxes/express and airmail
letters:

- expressing concern that Harold Barnard is scheduled to be executed on
16 March 1993 and Carlos Santana, who is originally from the Dominican
Republic, on 23 March 1993;

- urging the Board of Pardons and Paroles to convene clemency hearings
to consider their cases;

- asking the Board to recommend that Governor Richards grant clemency
to Harold Barnard and Carlos Santana.

APPEALS TO [Salutation]

Texas Board of Pardons and Paroles [Dear Board Members]

8610 Shoal Creek Boulevard, PO Box 13401 -

Capitol Station (Telephone: 1 1 512 406 5852)
Austin, TX 78711-3401 (Faxes: 1 1 512 406 5231)

(Telegrams: Texas Board Pardons/Paroles, Austin, TX 78711)

COPIES TO:
The Honorable Ann Richards %
Governor of Texas ~

Office of the Governor

PO Box 12428, Capitol Station

Austin, TX 78711 (Faxes: 1 512 463 1849)

the following newspapers:
The Letters Editor
Austin-American Statesman
Box 670

Austin, TX 78767 (Faxes: 1 512 445 3679)

The Letters Editor
Houston Chronicle
801 Texas Avenue

Houston, TX 77002 (Faxes: 1 713 220 7868)

and to bring Carlos Santana’s case to the attention of the Ambassador
of the Dominican Republic in the USA:

Jose del Carmen Ariza

Ambassador of the Dominican Republic to the USA

1715 22nd st, Nw

Washington DC 20008 (Faxes: 1 202 265 8057)

PLEASE SEND APPEALS IMMEDIATELY, TO ARRIVE BY 16 MARCH FOR HAROLD
BARNARD, AND 23 MARCH. FOR CARLOS SANTANA.

O Please take action as soon as you receive this Urgent Action appeal. General, Captain, etc. - for military officers; Your Excellency - for
Carefully read the recommended action and send a telegram or most minister-level officials and state presidents; in closing you
airmail letter immediately to one or more of the addresses given. can use "Yours sincerely” or "Respectfully" for any authority.
Other letters can be sent afterwards.

O Send your appeals in English unless you are fluent with the lan-

OD In Urgent Action cases, A.I. has to act rapidly to prevent the ill- guage.
treatment of prisoners. An appeal is issued when A.I. believes it has

_ teceived reliable and accurate information in such cases. It is not O Copies of any replies from government authorities should be sent
rest ¥ a i coat 1 ae Piece ict, immediately to the Colorado office. If appropriate, thank the of-
stances the situation o < : ; ;
participants are always notified of any significant new information. ficial who has replied and ask to be kept informed about the case.

O Information about the alleged connection of any person with an O Postage Costs: airmail letters cost 50 cents a page (1/2 oz.) to most
organization which is banned in their country is provided as infor- countries; aerogrammes are 45 cents each; airmail postcards cost
mation only and should not be included in appeals. 40 cents to most countries; full-rate telegrams cost approximately

31 cents a word including address, text and signature, depending

O Correct salutations include: Dear Sir - for local authorities, prison on the telegram company used. Mail with colorful stamps may not

commanders, police chiefs; Your Honor - for judges; Dear Admiral, reach its destination.


2 Texas death row inmates lose high court appeals

out.comment, left intact rulings. that both were sentenced property. Nei-

ther man challenged his undertying murder conviction. Mr. Crane was ;

._, convicted of killing Melvin Drum, a deputy.sheriff In Ochiltree County, on: --

_ Mr. Barnard was convicted of killing Galveston convenience store clerk |

Tuan Nguyen during a June 6, 1980, robbery. . “ a

Aas AM 12, FEB a.


ENA CIVONEA

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 » 303-440-0913 » FAX: 303-258-7881
EXTRA 26/93 Death Penalty 10 March 1993
USA (Texas): Harold BARNARD Carlos SANTANA

Amnesty International is deeply concerned that two men face imminent
execution by the state of Texas. Harold Barnard is scheduled to be
executed on 16 March 1993 and Carlos Santana on 23 March 1993.

Harold Barnard, white, was sentenced to death in July 1981 for the
murder of an Asian male.

Carlos Santana, originally from the Dominican Republic, was sentenced
to death in October 1981 for his role in the shocting death of a
Hispanic security guard during the robbery of an armoured security van.
The evidence did not show the identity of the actual trigger-person in
the crime. However, the Texas Court of Criminal Appeals in 1986, in
confirming Santana’s conviction and death sentence, ruled that "the
evidence "suggests" that appellant fired the fatal shot, and even if he
was not the shooter, his actions indicated a "reasonable expectation
that the death of the deceased or another would result" from his
deliberate acts."

International, Carlos Santana was born and grew up in rural poverty in
the Dominican Republic, where he was the illegitimate son of a local
farmer. As a young adult, he emigrated to Puerto Rico, and then to the
USA in 1974, where he worked and sent money home to his disabled
mother. Since being on death row, he has obtained educational diplomas
and become a self-taught paralegal, helping other prisoners with their
cases.

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 or degrading punishment, as proclaimed in the Universal

According to an account of his life given by a source to Amnesty
Declaration of Human Rights.

BACKGROUND INFORMATION

Within the USA, Texas is the state which passes the most death
sentences and carries out the most executions. Fifty-four of the 194
prisoners executed in the USA since states reintroduced the death
penalty in the mid 1970s have been executed in Texas. As of 15 January
1993, there were 367 prisoners under sentence of death in the state.
The most recent prisoner to be executed in Texas was Kevin Lincecun,
black, on 9 December 1992. The method of execution is lethal injection.

Clemency has not been granted to any prisoner under sentence of death
in Texas since the death penalty was reintroduced there in the mid
1970s. Under Texas’ clemency rules, the governor may commute a death
sentence only if she receives a favourable recommendation from a
majority of the 18-member Board of Pardons and Paroles. The Board has
convened only rarely to consider petitions for clemency (to Amnesty
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 havenot
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.


#9 THB PENALTY oF “WANTON
mompe Witt #8 “LIRES

! 408 “he

dS ko
| hegroes and all of whom ‘Feenvereds|

Stratige.: and Jimimte~ Hotter alt

On November cate 1900, Ballard ee eae
stopped at the beer. " dalooucet Faso’

- Schramek, a Bohemian,” “ah See |: tea

io aNUGTED- Pa

enim sscihh ea,

eer Held Up Well to the Last
ii Piet From Siena lo.
2 Pairtewn: Minutes.

a
ss Ne Senda

Saturday's | Morning Eagle:
The fret. legal exeoutian for
y yeard in Brazos county. took |
place yeaterdsy, when Bob- Ballard
‘paid. the death, penalty | forthe}
ywpurdet of Joe. Blazek.

ation wae,conducted privately in
pycordahce with She law, being |
tneazed by physicians, officers,
es limited nymbel of citizens and
slored preachers:* ‘A scaffold was
erected i in the enclogire in the rear
gf the jail and clorely walled in.
Tha, prisoner was conducted iyi

‘Te short-distance, tWi-bundred and | — :

: overtook

The-ex:} Ball

tant; west Of Bry ath OF got into}

Cccahemacansencare

ce squabble: -with’ Schramek, shot |—_ ;
hin and left him for dead. Mount. ‘hod Pian for Future ‘ipo’ cy be
ing bis. horee he rode: away to- Determined —Important Com
wards the Brozos:bottem- Within] . ee munications Mecervea =e

ee

"Aa pbusetary ‘of the Brazos, Coun:
ty Truck: Growers’
wish to urge’ {he atlendaiice of 6¥-|
Lery.jmember at the’ ‘Hext. nicetifig,
Saturday,
o'clock a.m.) f°:

. Pureuant- to jntrclions pre:

fifty ar, three chundred yards, he
Joe: -Blazek, another
Bohemian, who was returning frota
Bryania-&—wagon. “Bullard. rode!
aroundin front of Blazek, stopped
him and deitianded money. Blazek
replied that he had no money and |

“Blaze fell. tack in the
“waste ie Rate Lottie replies.
where he didd the hext déy. <
,, MeanwhileBatlard was airesigd replies quoti

and brought to Bryan. On the
night following Blazch’s death with eecreturies uf associations in

number.os his countrymen “deter- neighboring: ‘towns and counties;
‘mined te avenge rere aT d have letters that suggest_mat-

aways

PwRes" Pyne ce

Asaciation,: at

December Th, at 10}

prices on seeds.and have: "received 4|
I- have-written—for

prices also ay fertilizers, and: have :

1 have been? in - correspondenos)

thisugh the kitchen and back en- |
‘trance of the jail, thus being » ‘ob-
jecared from the big crowd, four
five. hundred persone,._most of
Whom.were fegroes, asst inbled: in
the streets and in the court bquse’

yar ood order. urea

came to. Bryan, but Sheriff T. C. sof iw portance. ‘The secretary
Nunn had forestalled ny attempt of tha Rockdale association, @ nan

at violence by quietly sending’ the|of experience. in growing and ship- |

prisoner. ty: Houston. for sdfe. keep: ping truck, writes’ abut their plan]

to be given away. at: t-the Central Toxas fe
coo For the Heaviest Hog: :

ing, r) Ballard remained in- jail atlof selling, they” having already
Hioaaton until the March term of made contraube—
the diatrict court _when. fe waa! ‘The,secretary of the Minican 8

y throtghoat the trying: ‘ordeal.

Half an ‘hour or ea before. theres:
*@ ution Rallard was in consultation
“with the preachers and with friends.
He ‘emoked o cigar, holding a bible
fo hie hand, and’ Jater read from
the. Poalme... When queatigned re-

felt. welt ‘but persorie who-were
ent said at this time he gave
ences of fear principally. if hie

ae Gee

 Grabght here for trial, He enter- | eociation; Mr. F W.-
ed a plea. of guilly and. coun:
sel were appointed by the Courl to | crs co-operation of his association
defend him, 7 he-rtate introduced. with ours. He will also talk about
witnesses to prove the crime,. ang the different crops he has’ oe

the jury returned a verdict o 1 at a profit.
ty7 ~astesting” ‘hid ch tahtani alt ‘The-wecretat gine
lenth: asegcii ‘Te? oy ah

ot
A motion for a new" ‘trial’ -wae] writes that “ie aiid other” “mer bere
overruled. ‘The cave was appealed ef.their aseociation ill be with us

EMRE, Se Ssueurpnenr ete

Yeuger—beet
promised to be with us cand dis-}

i ae ‘For the beavi iest Girl Baby. under) 3 years vid; ‘one :
Best pair Socks knit by lady over 50, yeats of age, |
3 ii PCa Foon ©
gest man coming. across the Navasota river... ~
One pair American Girl lady’s shoes valu. -
©, One pair Douglas $3.50 Shoes 4af the | finest: looking
ty —inust, be. i | actual attendaiice, college, ‘academy: ¢ or “publ
: “One suit Carbart clothilg, fot laboring a man: lables k

sae “ie “pair Hamilton Brown 1H

and-the--verdict. affirmed by thelon-that dute td. digiusa4lans-of vost
o— a" ¢ Be 1 a yas Gey Ge s in say a


epcrar se Shag
Me ar

a

rach:
i Sn

aioe sa

Ry des


et my ‘color, are “PU WOUVER,
PR that what fear he had experienced.
had been dj-pelled and that God
- had aived his soul and Tidoe'd
a atid willing, td go. -"o oso

He was taken from the jal with.
wh one belig handcuffed, carrying bis
Bible, and walked up. the aleps
Jeading | to the scaffpld-- ‘actin a
teady step at 1:48 p.m, ~When
ae d-wtat be had toeay he eaid
wanted: the. preachers to pray
him. At this. juncture, ° Klder

Balu,

id exceedingly appropriate and |.

ner hing: “on ‘the trap Goat. The
ers
y beynd and the rope. and bh! ack capt
gaat, ‘Bullard moving to. facil.

cay vate the work ws fequested and

itimeto times Sse PAP na We epicentre

H. Shivers” delivered | i brief].

fervent prayer, the condemned man |,

dag ror o ‘of i verve that wor if fre shew

court of © TIMI AT Appraise ee etre
September term of: “the | dictrict
‘court he wait duly sentenced tt
hang on Friday, Notember 22,

“$904; by Judge. J. 65 Keath: are
eral weeks-agu the ‘condenjned man
leought spiritual advice and_ pro:
fessed religion, He'was: frequent-
ly heard praying and reading the.
bible, and several. ‘colored minis-
ters held rervices at He jail from

ely Aap

THE CENTRAL TEXAS: BAIR.
yt Stock: Farmer ‘representative

spent an ‘afternoon at the Central |.

ee and save expense,

Texas fair at “Bryan,,. the. firsh meet be
eens. Bot Lie wi Were | eld. onthe newgrounds of.the tei,

ee ay WELtS Leh FEE OF BE AN TIAL
may-ve found practicesle;& also to
€X ‘hange views.

Tomato eeed tuust he ordered “at
thie meetings tacte-in- “time for :

planting iti hot beds. Arrange-

iments tiust be made about. seed}
The eos
relary wants to get all orders. for}
tomato sted in at one time, to eave ;

potatoes and other séeda..

{rouble of ordering in- aural
This meeting, Saturd: AN

tant one. of. Ahe year... Let éver\4q
ody egine.

9 ‘dues will? be die’ at. that

axeocjation, which are fine, the half
mile track being:. perh: pe as mee
‘as there is in: the state. He :

@ abs Hol
Y Sosisluel tothe
ALT AL Sheriff Nunn eprung the
Xrap by aautting & rape ae tHe.

est ie a4 M
Tica, contincHne Ieeaipionhiaor

Aeagon. pret, Was a> Fevel: ation to:

the Stock: Farmer. than, beingex-! ¢

at -t

aa paycugt

. Decem: : a
is her wth, will be ‘the thost- $mpor-} a

The first payment of

mets ber who have never yet paid I.
their membership: fees, of tene cente 4

J dervttaerhermweet-t
Vircugh the opening | with. an “eight
t tid a half foot drop. Ballard wak

“les. ation ihe drop. Tis neck” wal |

ed dent by the attending | 5
at eat, Thirteen aii)

Tra good-as to quality and

consids |
erable a¥ 30. quantity. The show).
of Nne stock was also 8 surprise'to ‘

ition: paid testhenn cslicatod Liked

A sane)

Groowe rs’

interest. in tine stock among the

JT fnot broken. and he” died © from
A. atrangulation with. very few strug.
@ yler. Hiv remaitie "were turned |
“aver to James «&. Castles, under-
takers, placed: tn a coflin and tak.
J. Gn to ‘the: boston for” ele, Dy
ie Pelutives. ’

-

farmers of that sectis. -—Claridge’s]
Btock- Farmer, San Antonio. ,

1 ‘The Stock: Farmer. jprocpeds’ to!
‘hame goure ‘of, the diferent exhib.
ita of fine ‘ atock, mentioning: the
dis splays. of. ‘Howell Bros, Frank’)
Clarke, 8. M. ‘Perdeh, i, A. Capps;

_ MEMPHIS,

BIRMINGHAM -

‘AND MAYY OTHER-IMPORTANT |i —

POINTS IN THE SOUTHEAST.
GOOD CONNECTIONS AT
BIRMINGHAM FOR:

--MONTGOMERY, 1]

MOBILE. a

Nicks,

vb
Hurtison,
pe awed Motnirick. The colored prénohas. usin,

Oa Fountaia, P ugh

» Blaughter my Hill, i ese
-nistony OF THE chiME.

Beb Bullard was small in abate
fe, weighing only about 114
nds, with savall hunddand feet,
fe.wae a son a. Dennis “Ballasd,
cay mmpitd omprisstoner, wag born it}
— Brntos pouty apd about, 32 years
abt py te

‘pra were Widers Shivers; W elle,

? Methodist Episcupal chureh, South,
will hoid its next annual session

5. W. Higgs, Sam TWunter of Wraz

The Texas Son fennee eat

Huntaville, . beginning Wednesday,
Decétrber 11, Th f

nd includes a
cele of the state lyaing between |

id”. 'rinity and ine, Oblarado riv
bers Wi hig ayitih a ae Vy tire al al

Ler county, and David basa of]

is is the oldest!’
wh all tha. five conferences in! Texas, |
a approxitately A Va ae

WITH iTS OWN RAILS,

* ADLANTA, |.
SAVAN N: eye
“AND or IN THE

FLORIDA.

Haiennokti ARRANGING |

“—_ cane crak vA THE |

paxeree

nent maa, 2

Witt rg ve pe OreoRruNirt E

FORTS OF

TO ENIO*, THR COM
wry TV ATT

yr ry

“| 25 yds Cotton. Stripes:

30 yds Ginna. eeu z

25 yds of yd. wide Qui

| 26 pairs: Misses Hose.” 4 Tals

20 Aalhe Jadies Hose... .'. a

“T° a0 pair retin SOCKE 2; fos walk cence
_a0 yds of 32-inch Percale, falls
yds silk Madras tos. etsy

Me

oe Rea Le
Art Squares 8x6 feet. bee ee basis era adn
. Braddéed-Jeans Pants per pair... are 4
bs 20 yds heavy Cotton Flannel. ; as Noy ea


4

Appeals court affirms
6 murder convictions

1 inmate to die for role in triple slaying

Associated Press

AUSTIN — The Texas Court of
Criminal Appeals affirmed six capi-
tal murder convictions Wednesday,
including one against a man for his
involvement in a 1991 triple ax mur-
der.

Miguel Angel Martinez was sen-
tenced to death for his involvement
in the murders of James Smiley, 33,
Ruben Martinez Jr., 22, and Daniel
Duenez, 14, in Laredo.

All three victims were axed and
stabbed to death in Mr. Smiley’s
home.

Mr. Martinez, who was 17 at the
time of the murders, said his co-
hort, Miguel Angel Venegas, had
forced him to participate in the kill-
ings. Mr. Venegas had wanted to
“trash” someone’s house, Mr. Marti-
nez said.

The court rejected Mr. Marti-
nez’s arguments, saying that the ev-
idence showed that he borrowed
the weapons, picked Mr. Smiley’s
house, personally stabbed Ruben
Martinez and handed the ax to Mr.
Venegas to kill Mr. Smiley.

He then assisted in the theft of
Mr. Smiley’s car and a telephone
and television from the house, the
court said.

Mr. Venegas, who was 16 when
the crime occurred, escaped in De-
cember 1993 in an armed breakout
from a juvenile center.

The court also affirmed the con-
victions of:

@ Javier Cruz, who was found
guilty of strangling two elderly
men to get money to buy heroin.
Louis Neal, 71, was slain June 7 in
his apartment. James Ryan, 69, was
killed in his home July 14, 1991.

m Glen Charles McGinnis, who
was sentenced in connection with
the Aug. 1, 1990, murder of Leta
Wilkerson. Ms. Wilkerson, a count-
er attendant at a dry cleaners in
Montgomery County, was shot three
times during a robbery of the busi-
ness.

@ Esequel Banda, who was sen-
tenced in Hamilton County for the
August 1986 sexual assault and mur-
der of a 74-year-old widow, Merle
Laird.

m Theodore Goynes of Houston,
who was convicted in connection
with the Oct. 6, 1990 kidnapping and
fatal shooting of Lisa Marie Tucker.

m@ Claude Howard Jones, who
was convicted in San Jacinto Coun-
ty in the Nov. 14, 1989 fatal shooting
of Allen Hilzendager during a rob-
bery of a liquor store.

DALLAS Moen INS

MEWS

MuRS. [2 15-94

Inmate Executed For Slaying
AP 11 Dec 95 21:33 EST. V0125
Copyright 1995 The Associated Press. All rights reserved,

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Inmate Executed For Slaying

HUNTSVILLE, Texas (AP) -- A convicted killer who fired his attorney
and refused appeals that could have spared him was executed Monday for
a murder he said was ordered by the devil.

Esequel Banda, who would have turned 32 next week, had no final
statement and died quietly after a single gasp.

"Dizzy," was the only word he said, staring at his wife who stood a
few feet away along with his former attorney,’

Seven minutes later, at 6:21 p.m. CST, he was pronounced dead.

Banda was condemned for the Aug. 3, 1986, rape, stabbing and
strangulation of Merle Laird, a 74-year-old widow, at her home in
Hamilton about 50 miles west of Waco.

According to prison records, Banda told friends he stabbed the woman
and then sucked the blood that was coming from her mouth because he had
sold his soul to the devil and that the devil had told him to kill six
people. |

“The details are satanic in nature and I just prefer not to comment
about it," Hamilton County District Attorney Andy McMullen, who
prosecuted the case, said Monday.. 3

Banda’s court-appointed attorney, Randy Johnston of Dallas, wrote
the Texas Court of Criminal Appeals Nov. 21 saying Banda no longer
wanted a lawyer, then met with the inmate Monday in the hours before
the execution.

"I don’t know I tried to persuade him otherwise," Johnston said. "I
tried to make it absolutely certain to let him know I was opposed to
the idea of him giving up any of his appellate rights.

"Z had to satisfy myself he was making a rational kind of decision.
He understood very much what was happening."

Rick Wetzel, a spokesman for the Texas Court of Criminal Appeals,
said an appeal to the federal courts likely would have resulted in a
reprieve. ,

"Chances would be very good," he said.

Banda was the third inmate executed in Texas in six days and the
sixth in the nation in the past week. At least eight of the 103 men put
to death in Texas since capital punisnment resumed in 1982 volunteered
to die. :

Another condemned killer, James Briddle, was set to die in
Huntsville Thesday evening.

Banda, born in Pima County, Ariz., was a ninth-grade dropout with at
least two previous convictions.

In 1983 he was given a four-year sentence for burglary and five.
years for auto theft. He was paroled less than a year later but
returned to prison as a parole violator after only three months.

In May 1986, he was freed under mandatory supervision, meaning his
prison time and so-called "good time" earned while locked up equaled
his sentence and his release was required by law. Mrs. Laird’s murder
occurred 10 weeks later. | .

“It’s a sad day when anyone dies," Clay Laird, the slain woman’s

son, said, blaming. U.S. District Judge William Wayne Justice for both
his mother’s death and the death of Banda.

Justice had control of the Texas prison system for years because of
a lawsuit that accused the state of overcrowding the prisons and
improper treatment of inmates. Under his prison population |
restrictions, the state was forced to allow release of thousands of
inmates during the 1980s. Banda was one of them. |

"The real person that murdered is still sitting over in Tyler,
Texas," Laird said, his voice breaking. “Quite frankly, I regard Willie
Wayne Justice as a traitor to the state, a traitor to his neighbors.

"If I could have seen Mr. Justice strapped on that gurney, I would |
have shaken Mr. Banda’s hand and opened the door for him. The real
killer wasn’t here tonight. I will never forgive Mr. Justice. I could
forgive Mr. Banda." eae

Banda told relatives he had committed a murder and they became
concerned and notified police. Police found him hiding on a back porch
and arrested him for public intoxication and put him in a drunk tank.

"Don’t put me in a cell with anybody. I'l] kill them," he told a
jailer. "It won’t bother me to kill them. I Have already killed |
somebody. " es .

Authorities conducted a house-to-house search in the community of
3,200 and discovered Mrs. Laird's body. Her home was within walking
distance of where Banda lived.

While on death tow, Banda and two other convicted killers made an
unsuccessful escape attempt when they sawed through a recreation yard
fence. Banda began climbing a second fence but a guard in a tower
spotted the inmates and fired a shot at Banda. All three surrendered.

Banda’s execution was the 18th this year in Texas, topping the
previous high of 17 in 1993 to set a record for lethal injections. It
equals the 18 electrocutions carried out by the state in 1938. Twenty
men were sent to the electric chair in 1935. 3

eee aye

|

lel

Thursday, December 3, 1992

3 ‘on death row face discipline after failed escape attempt.

* HUNTSVILLE, Texas — Three
convicted killers face disciplinary
‘action: after they sawed their way

- 1 through.a fence in the death row
| | recreation yard and tried to escape.

{ ~One, inmate began climbing a
perimeter fence, prompting a guard
to fire a shot that immediately

| halted the escape attempt, prison of-

fictals: said.

‘ The' = incident occurred
; Thanksgiving evening while 10 to
‘12 inmates were in a recreation
yard atthe Ellis I Unit, northeast of
Huntsville. The episode was dis-
Llosed Wednesday by other prison-
jersyand confirmed by prison au-

ofities.

- After the attempted escape from
death row, the first in several years,
all inmates were confined to their

~ ¥hé three inmates were identi-

fed as Kenneth Gentry and Kevin

Lée Zimmerman, both 31, and Ese-
Banda, 28.

' 3Someone cut a hole through the

ricteation yard fence, a triangular

sticp,” said David Nunnelee, spokes-

man for the Texas Department of
Criminal Justice. “Officers suspect
a hacksaw blade was =. but they
didn't find it.”

The trio climbed over a gate and
headed for the first of two 12-foot-
high chain-link fences that sur-
round the prison, he said. Mr.
Banda began scaling the first fence
and was spotted by a guard in a
tower at the corner of the unit, offi-
cials said.

The officer ordered the inmate
to halt and fired a single warning
shot from an AR-15 rifle.

“Banda fell off the fence,” Mr.
Nunnelee said. “The other two
hadn’t reached it. Then they all Jaid
down.”

“He dropped like a rock,” said
one inmate familiar with the inci-
dent. “They thought he had been
shot.”

None of the prisoners was.
wounded. Mr. Nunnelee said stan-
dard procedure fs for officers to fire
asingle warning shot. °

The three inmates face extended
cell confinement and loss of visita-
tion and commissary privileges.

Mr. Banda, a native ‘of Pima
County, Ariz, was sentenced to
death for the Aug. 3, 1986, rape-slay-
ing of Merle Laird at her home in
Hamilton, about 50 miles west of
Waco. Prison records indicate Mr.
Banda told friends he stabbed the
woman and then sucked the blood
that was coming from her mouth.

Mr. Zimmerman, from Lafayette
Parish, La., is awaiting execution
for the Oct. 23, 1987, stabbing death
of a California man, Leslie Hooks
Jr., at a Beaumont motel.

Mr. Gentry, from Bartow County,
Ga., was sent to death row for the
September 1983 slaying of Jimmy
Don Ham, 23, whose body was found
in a park on the shore of Lewisville
Lake. Mr. Gentry had escaped from
a Georgia prison, and prosecutors
contended that he killed Mr. Ham
in a scheme to assume his victim's
identity.

All three have previous prison
records,

In October 1983, while awaiting
trial, Mr. Gentry tried to flee the
Denton County Jail by having his
mother smuggle a pistol to him. The

following year, on death row, he
and another inmate jumped a secur-
ity fence and reached the front gate
‘of the prison before a shotgun-tot-
ing guard confronted them.

In 1980, while serving a 10-year
term in Georgia for burglary and
aggravated assault, he fled from the
Georgia Industrial Institute in Alto

‘+ driving a car through a fence. He
was a fugitive from that prison

‘when he was arrested for the Texas:

slaying.

The death row escape attempt is
believed to be the first in Texas
since two inmates tried fleeing
through a 1-foot-square air vent in
1989. In that incident, James Paster

and Noble Mays squeezed through
the narrow hole but were caught
above some pipes as they tried to
saw through bars that blocked a
large exhaust fan to the roof of the
prison.

Mr, Paster was executed five
months later. Mr. Mays remains on
death row.

he ie F close
of the truck.

manp, were
d you out of
he man that

nor, I think
k it is diffi-
hat kind of
e word close

objection is
you can re-

~ he remem-

remember
t puiled you
i,

ecora reflect
n of no, too.

Counsel. Go
che man was

inn, was the
ruck a short

he man was

ann, was the
ia fat man?

All mght.
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f
mann could

v him again?
-

ynor, that is
estion asked
ild reeeqnize
he was.

question, be-
» whether he

BAREFOOT, Thomas Ae, white, lethal injection Texas ("Bell County) on October 30, 198),

BAREFOOT v. STATE Tex. 875
Cite as, Tex.Cr.App., 596 S.W.2d 875

-APPENDIX—Continued

can identify him or not, doesn’t make any
difference if he is fat, thin, tall, skinny or
otherwise, if he can’t identify him he can’t
and if he can, he can. That is the whole
thing.

MR. DE LEON: Ask Mr. Keilmann if he
was pointing at someone.

INTERPRETER: Were you pointing at
someone, Mr. Keilmann?

MR. DE LEON: Just now.

INTERPRETER: Did you point to some-
one just now? He says, no.

MR. DE LEON: Ask him if the the [sic]
man that he is pointing at is the man who
pulled him out of the truck.

INTERPRETER: The man that you
were pointing at, is that the man that
pulled you out of the truck? The man that
you just pointed at, is that the man that
pulled you out of the truck? The man that
you pointed at, is that the man that pulled
you out of the truck? Yes.

MR. DE LEON: Ask him if it is the same
man that you saw at the Finney Ranch?

INTERPRETER: Is that the same man
you saw at the Finney’s Ranch? He indi-
cated, yes.

(WITNESS POINTING.)

MR. DE LEON: The man that he is
pointing at, is that the one that he saw at
the Finney Ranch?

INTERPRETER: The man that you
were pointing at, is that the man you saw
at the Finney’s Ranch? He indicated, yes.

MR. DE LEON: Ask him if he is sure
about it.

INTERPRETER: Are you sure Mr. Keil-
mann? He indicated, yes.

MR. DE LEON: Pass the witness, Your
Honor.

CROSS EXAMINATION

MR. SCHARMEN: Mr. Keilmann is this
the man you saw at the Finney Ranch?

INTERPRETER: He indicated, no.

MR. SCHARMEN: What was the an-
swer?

INTERPRETER: No.

MR. SCHARMEN: Would you point to
the man who you saw at the Finney Ranch?

INTERPRETER: You want me to tell
him?

THE COURT: Tell him.

INTERPRETER: Point to the man you
saw at the Finney Ranch. Point to the man
you saw at the Finney Ranch. Point. Mr.
Keilmann, can you point to the man that

you saw at the Finney’s Ranch? Which
man?

MR. SCHARMEN: Let the record reflect
that the witness pointed at this man stand-
ing to my right in the red jacket.

Let the record reflect the man pointed
again to my left at the defendant.

THE COURT: I can’t tell from my angle
which way he is pointing, Counsel.

MR. DE LEON: Your Honor, the last
time he pointed he pointed at the defend-
ant.

MR. SCHARMEN: The first time he
pointed at the man in the red jacket, Your
Honor.

THE COURT: I am going to overrule
both your objections. Let’s proceed. Do
you have any other questions you want to
ask him? [sic]

W
° 3 KEY NUMBER SYSTEM
T

Thomas A. BAREFOOT aka Darren
Callier, Appellant,

v.
The STATE of Texas, Appellee.
No. 63715.

Court of Criminal Appeals of Texas,
En Banc.

March 12, 1980.
Rehearing Denied April 30, 1980.

Defendant was convicted: in the 27th
Judicial District Court, Bell County, Wil-

|
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|


(
|
|

HUNTSVILLE ITEM
October 30, 1984 lit

ee q a ats = Be a j re

es te
State’s thirc execution t this year
. ig:

By TERRY SCOTT BERTLING ~ “} want oectecny to know I The injection was begun at
»2 and GARRY CHANDLER . hold nothing ‘against them for 12:20 a.m. Barefoot was: .mo-
“# anything that.they’re doing to ss . tionless on the gurney for several
* A lethal injection took only = me. I forgive fk em all.”’ minutes before he was prohounes.

about 10 seconds to render con- — “Tm sorry» for anything I’ve Sed dead. oe

.yicted killer Thomas Andy _ ever done {¢ lybody, ’’ Barefoot a =-Barefoot, a tomer, “olifiek
“Barefoot motionless “Tuesday _ said. ae ~ roughneck from New Iberia, tac
-Morning, as his execution at the After. aes Jack Pursley ~ ot * was the third man to be: executed:
Huntsville ‘*Walls’”. Unit brought NE: “in Texas this year, following:
to an end six years of. appeals to James David Autry and Ronald:
his capital murder conviction. 'y _Clark O’Bryan. Both Autry and.
a In a statement before the ex- . _. Associated ress reporter to tell | O’Bryan were executed in March:
ution began, B Barefoot said he." « wall his f i § hello. - jn the Walls death chamber in_a
had been praying all day for the As refoot began listing process that took several minutes
“widow of Harker Heights police “ several zi fates, he coughed, — longer than.this morning's ¢xecu-.

‘officer Carl LeVin, the man he - choked afl arched his back. ~~ - tion. Barefoot was: the fourth
ee convicted of killing six years.» Abo Oe seconds after the’ Texas inmate to be executed. an
20. ° net “Jethal tijection started, Barefoot lethal injection. a. whe
“1? ve beer praying all day for ° was niatfonless on the gurney, -*° Charlie Brooks Sr. of: ‘Kor!

arl LeVin’s wife to drive that: staring ‘with glazed eyes at the -Worth was the first to die: by the.
Piiecness from her heart because _ ceiling . in the baby blue eam “new execution method. Exect-
Fina bitterness in her heart will chamber. -- = tions in the electric chair . “were
kgend her to hell just as fastasany Barefoot was pronounced dede --halted in 1972 by a U.S. Sppreme
“other sin,’? Barefoot said as he — at 12:24. He died from a lethal © ‘Court ruling that capital punish-
‘lay strapped to a gurney in | the dose of sodium thiopental, mixed “Sment was cruel and unisual. The

Walls death house. ©. with Pavulon, a muscle relaxant, * dast electric chair execution was in

“*T hope that one day we can ‘and potassium chloride, which. “¥1964. Texas executions: resumed
look back on the evil that we are stops the heart beat. pate with the lethal injection execution
doing right now like we do the :* Just how much of the drug was. _ of Brooks on Deé°7, 1982. |
witches when they were burned at. cused to cause the rapid death. ways: Barefoot, 39-Was sentenced. to,
the stake,” he said..-i: « ead 7 "oi uinknown Tuesday morning. 232%: , See INMATE, page’ ee ates

Priel A : ae Se

Sy ele i ae . peels
; a Lyte er Rta | LN, GB oe P

wok pe oe 4e8 Pug: Ca th DOD ta an * a ee, € “ie

ia foot JEXG ES ad 0/30 f/9,5¢2


6 TaN eh ad oh ae

' Continued from page ‘one
death: for the August 1978 |
shooting death of LeVin. ~

‘LeVin, .31, was shot once
above the left eye on the morning
of Aug. 7, 1978 after stopping a
Suspect in connection with a fire
' at'a Harker Heights nightclub.
Barefoot was arrested two days

“a -fater at a Houston bus station.

ae | iSOgAL: the .time..of. the. shooting, |
"Barefoot. -was. a .fugitive,from :

shew , exico, where he escaped |

i “from ‘ail after being charged with

‘the rape of a 3-year-old girl. A
" IS. caliber pistol found in his -
: possession at the time of the ar-

: rest: was later identified by a
--firearths expert as the» murder

: weapon.
~ Barefoot’s latest execution
date was his fifth. His third .
scheduled date, Jan. 25, 1983,
was stayed just 11 hours before
the execution was to take place ,
when U.S. Supreme ‘Court .
_Justicé Byron White decided to
‘hear the convicted killer’s case in
‘order to set standards for last- |
minute death row appeals. ,. ,:
‘“*The court later ruled that .
federal courts have the right to
: ‘itefuse to grant inmates a stay of
He execution while they appeal to a
Phigher court. Barefoot’s fourth '
ae har 1993 date was set for Dec. |
1933. In November, U.S.
pis Judge Lucius Bunton —
ostpdned the execution until the
ie ieee Court had time to rule

oes ee eee stee”

‘ On the issue of proportionality, %.

is twhich raised the question of

sgWhether the condemned are en-
ited to have their sentences com-
ared to sentences handed down
‘similar cases.

v Fhe Supreme Court later ruled
ae “the proportionality issue is
“pot applicable on the state level.
“On ‘Monday, the Supreme
Court voted 7-2 against staying
Barefoot’s execution. The court”

“ep

ejected « :Barefoot’s lawyers’

"arguments that the inmate should
be. spared because prosecutors ~

suppressed: a psychiatric evalua-

tion: of him that’ could have -

showh that life in‘ prison- would
be.an Sperone sentence for

| him iE oe
: Re Bes DORI

'
!

“would be back and that the

98 At 8:50 a.m., Barefoot arrived
“at the Walls Unit where he waited
stor his execution in a holding cell '

Ate only chili.

His lawyers also argued that he |
should not be executed by lethal
injection until the court decides
whether that form of execution
must be approved by the federal :
Food and Drug Administration, !

HUNTSVILLE ITEM
October 30, 1984
~ =a Af

For ° ‘his’ executidn, Barefoot
wore dark green pants, a lime
green shirt, white sotks and black
shoes..- > oh ;
*z. His éxecution was protested by ©
“ahandful outside the Walls Tues-

according “td the Nevicintec day - -morning. Others: said they

«Press. Justices William J. Bren- |
‘nan’ and Thurgood Marshall,
“who are against the death penal-
» sty, voted to spare Barefoot.
t.. Gov. Mark White also refused
‘to grant a stay of execution Mon-
“day, clearing the way for the ex-
-ecution afters:reviewing
Barefoot’ $ Case. TER cf

“The Texas Board of Pardons
‘and. Paroles voted 3-2 Thursday
“against recommending a 60-day
Teprieve for Barefoot after his at-

_torney, ’. ‘Carolyn . Garcia, re-|

quested a postpone: ment to allow ,

3 ; Vom 8 adaT ee"

Barefoot’s’ ‘tedbe: “time ~ to. go

through the courts." *:
‘Arthur ‘‘Cappy’’ Eads, Bell j
County district attorney who |

served as prosecutor in
Barefoot’s 1978 murder trial,
said Barefoot’s guilt was never
contested in his appeals. Capital

punishment had been the issue of

the appeals from the outset, he

said. ;
TDC eke man “Phil Guthrie

“said Barefoot refused to eat .
breakfast at 7 a.m. but shook

hands with other death row in-
‘mates before being transported
from the Ellis Unit to the Walls |
Unit Monday saying that he

*séheduled . execution would not,
“take place.

. Just outside the death chamber.

if. For lunch Monday, Barefoot
amade no special requests and ate
athe regular Walls Unit ‘lunch of |
“baked ham, soup, potatoes and }j.
avegetables. He also made no!

"special requests for dinner and

‘Prison officials said that
Barefoot - also began Smoking

cigarettes again several days prior |

“to the execution. He had said
‘God ‘had lifted” smoking from |
him. = * 0 @ Fy

?avere relieved. "
et ‘Anna Aaron, the widow of the
‘¥slain central Texas police officer,
ysaid the execution of, Barefoot
“would end six years of ‘anger,
‘frustration and rage,”! according
:to’ ‘a story ceeriee by ‘;.the
Associated Press. ~ aege:
‘*‘We want to see “Vuatice: done.
We want him tobe executed. We
want him to pay for what he has
done,” ‘said Aaron, -who has:
remarried and now lives in Old|
Hickory, Tenn. with her husband
and two children. ix
Barefoot, who. consistently.

maintained. his;innocence ;in.the
‘LeVin: killing, declined to submit

a personal witness list to prison
officials saying he expected God ..
to halt the execution. .:-.-:%

wt The condemned man did re-
‘quest. ‘that the Rev: Cornelius
Ryan, a Catholic prison chaplain, —
and Ellis Unit assistant warden
Sandy Estes stay with him and his |
tamily while ‘‘I wait for God_to |
‘stay my execution,’ according to
‘the prison system’s public rela-
lions office. Although | neither
Estes nor Ryan spent time with

Barefoot during the day Monday, -

Oe. | He

execution. ts eee

- During the day =e
Barefoot had phone ‘¢bnyersa-
tions with his father sf W.. T,


876 Tex.

liam C. Black, Special Judge, for capital
murder, and sentenced to death, and he
appealed. The Court of Criminal Appeals,
Dally, J., held that: (1) trial court did not
err in refusing to charge on law of circum-
stantial evidence; (2) trial court did not
abuse its discretion in overruling motion for
change of venue; (3) trial court did not err
by overruling challenges for cause to three
venire members; (4) trial court did not
abuse its discretion in denying defendant’s
request for three additional peremptory
challenges; (5) trial court did not err in
admitting evidence of extraneous offenses
for limited purpose of showing motive; (6)
trial court was not required to define “prob-
ability” in its charge to jury at punishment
stage; (7) trial court did not err by permit-
ting psychiatrists to testify, on basis of hy-
pothetical question, as to probability de-
fendant would commit acts of violence in
the future; (8) statute governing procedure
at punishment stage in capital cases is not
unconstitutional; (9) evidence was more
than adequate to support death sentence;
(10) evidence was sufficient to support con-
viction; (11) trial court did not abuse its
discretion in overruling defendant’s motion
to sequester jury during trial.

Affirmed.
Roberts, J., concurred in result.

Clinton, J., dissented in part and _ filed
statement in which Phillips, J., joined.

1. Criminal Law <814(17)

If accused admits or confesses killing of
deceased, proof of admission or confession is
direct evidence of main inculpatory fact and
charge on circumstantial evidence is not
required.

2. Criminal Law ¢=814(17)

If admission or confession is equivocal
as to killing of deceased, or if it is not clear
that killing admitted or confessed is killing
with which defendant is accused, proof of
admission or confession alone will not re-

596 SOUTH WESTERN REPORTER, 2d SERIES

lieve trial court of necessity of giving cir-
cumstantial evidence charge.

3. Criminal Law ¢=814(17)

Even if admission or confession is
equivocal, circumstantial evidence charge is
not necessary if other evidence, together
with confession, conclusively establishes
that killing confessed is killing for which
defendant is on trial.

4. Criminal Law ¢814(17)

In prosecution for capital murder, trial
court did not err in refusing to charge on
law of circumstantial evidence where de-
fendant admitted to killing a police officer,
victim was only peace officer killed that
day, defendant described shooting in man-
ner consistent with murder and other evi-
dence conclusively established that killing
confessed was killing for which defendant
was on trial.

5. Criminal Law 121

In prosecution for capital murder of
police officer, even though evidence raised
fact issues of whether defendant could ob-
tain fair and impartial trial in county, there
was no evidence that defendant did not
receive fair trial by impartial jury free
from outside influence and trial court did

not abuse its discretion in overruling motion —

for change of venue.

6. Criminal Law ¢=1035(5)

Defendant properly preserved alleged
errors in overruling challenges for cause to
three venire members and in failing to
grant his request for additional peremptory
challenges by his being forced to accept
objectionable juror after his challenge for
cause to venire member and his request for
additional peremptory challenges were
overruled.

7. Jury @105(2)

Trial court did not err in overruling
defendant’s challenge for cause against ve-
nire member who was initially confused as
to relationship between defendant’s right to

BAREFOOT y. STATE Tex. 877
Cite as, Tex.Cr.App., 596 S.W.2d 875

remain silent and his right to effective as-
sistance of counsel, where subsequent ques-
tioning by prosecuting attorney and defense
counsel made it clear that venire member
did not expect defendant to testify or
present other evidence but only that his
attorneys would do their best on his behalf.

8. Jury 108

Trial court did not err by overruling
challenge for cause against venire member
who initially believed that death was only
proper punishment for capital murder
where, after punishment alternatives and
procedures were better explained, venire
member clearly stated he would affirma-
tively answer punishment issues only if
State met its burden of proof and that he
believed death to be proper punishment
only if answers to issues were yes.

9. Jury ¢103(1)

In prosecution for capital murder, trial
court did not err by overruling challenge
for cause based on venire member’s alleged
opinion as to defendant’s guilt, where voir
dire failed to show that venire member
would be influenced as juror by any opinion
or prejudice or by anything he may have
heard or read about case.

10. Jury e108

In prosecution for capital murder, trial
court did not err in overruling defendant’s
challenge for cause based on venire mem-
ber’s alleged bias against minimum punish-
ment for murder where venire member
stated that he could consider minimum pun-
ishment in a proper case. Vernon’s Ann.C.
C.P. art. 35.16(c), par. 2.

11. Jury +=136(4)

In prosecution for capital murder, trial
court did not abuse its discretion in denying
defendant’s request for three additional
peremptory challenges where each of those
three venire members whom defendant pro-
posed to challenge were not excludable for
cause.

12. Criminal Law 369.1

Generally, accused is entitled to be
tried on accusation made in state’s pleading

and not for some collateral crime or for
being criminal generally.

13. Criminal Law @=371(12).

Evidence showing motive is admissible
even though it shows commission of extra-
neous offense.

14, Criminal Law ¢=371(12)

In prosecution for capital murder of
police officer who stopped defendant for
questioning in arson investigation, trial
court did not err in admitting evidence of
extraneous offense involving criminal sexu-
al penetration of a minor for limited pur-
pose of showing murder was motivated by
desire to avoid facing those charges.

15. Criminal Law @800(2)

At punishment stage of prosecution for
capital murder, trial court is not required to
define “probability” in its charge to jury
concerning probability that defendant
would commit acts of violence in future.
Vernon’s Ann.C.C.P. art. 37.071.

16. Homicide 354

Trial court may admit for whatever
value it may have to jury psychiatric testi-
mony concerning defendant’s future behav-
ior at punishment stage of capital murder
trial. Vernon’s Ann.C.C.P. art. 37.071.

17. Homicide 354

At punishment stage of prosecution for
capital murder, trial court did not err by
permitting two psychiatrists to testify, on
basis of hypothetical question, as to proba-
bility that defendant would commit acts of
violence in future. Vernon’s Ann.C.C.P.
art. 37.071.

18. Criminal Law <485(1)

Although hypothetical question to ex-
pert must be based on facts of case, counsel
may assume facts in accordance with his
theory of case; if opponent desires to se-
cure expert’s opinion upon different set of
facts he may do so on cross-examination.
Vernon’s Ann.C.C.P.-art. 37.071.


BE es
gee
7

sanity was extant at time of his first federal
habeas petition, where issue of prisoner's
sanity was not urged at his murder trial or
on direct appeal of his conviction in state
court, abuse of writ was not raised at state
level with respect to prisoner’s claim of in-
competency to be executed in his second
state habeas petition, and district court’s
finding that prisoner could not show cause
for failure to raise claim in earlier petition
seemed premature in absence of evidentiary
hearing to determine when prisoner’s counsel
could have discovered that prisoner was in-
competent to be executed. Comprehensive
Drug Abuse Prevention and Control Act of
1970, § 408(q)(4)(B), 21 U.S.C.A.
§ 848(q)(4)(B); 28 U.S.C.A. § 2254.

11. Federal Civil Procedure ¢2771(2)

In prisoner’s second federal habeas cor-
pus proceeding to vacate his state death sen-
tence, district court would have to determine
whether prisoner’s counsel, as officer of
court, had good cause for delay in filing

prisoner’s second federal petition and, if not, -

whether amount of fees to which counsel was
entitled should be reduced as sanction, where
counsel waited more than ten weeks, until
only a few days before prisoner’s scheduled
execution, after state court denied prisoner
relief on his second state habeas petition to
file second federal petition and motion to be
appointed counsel. Comprehensive Drug
Abuse Prevention and Control Act of 1970,
§ 408(q)(4)(B), 21 U.S.C.A. § 848(q)(4)(B);

' 28: U.S.C.A. § 2254.

Robert L. McGlasson, Decatur, GA, for
petitioner-appellant.

Dan Morales, Atty. Gen. and John Jacks,
Asst. Atty. Gen., Austin, TX, for respondent-
appellee.

Appeal from the United States District
Court for the Southern District of Texas.

Before KING, JOLLY, and SMITH,
Circuit Judges.

1. A more detailed recitation of the facts can be
found in Barnard v. State, 730 S.W.2d 703 (Tex.

BARNARD v. COLLINS
Cite as 13 F.3d 871 (Sth Cir. 1994)

873

ON APPLICATION FOR CERTIFICATE
OF PROBABLE CAUSE AND MOTION
FOR STAY OF EXECUTION

KING, Circuit Judge:

Harold Amos Barnard, Jr., a death-row
inmate in the Texas Department of Criminal
Justice (TDCJ), Institutional Division, filed
his second petition for federal habeas corpus
relief, pursuant to 28 U.S.C. § 2254, in the
United States District Court for the South-
ern District of Texas on January 27, 1994.
Barnard is scheduled to be executed after
midnight on February 2, 1994. Barnard re-
quested that the district court stay his execu-
tion, hold an evidentiary hearing on the issue
of his competency, and issue a writ of habeas
corpus vacating his death sentence. Barnard
also requested that the district court appoint
counsel for him pursuant to 21 U.S.C.
§ 848(q)(4)(B). On January 28, 1994, the
district court denied Barnard all relief and a
certificate of probable cause (CPC). Bar-
nard then filed a notice of appeal to this
court, along with an application for a CPC, a
motion to stay his execution, and a renewed
motion for appointment of counsel. Al-
though the district court denied relief on the
ground that Barnard had abused the writ, we
do not reach this question in our consider-
ation of his entitlement to a CPC and a stay
of execution, but instead hold that Barnard
has not made a substantial showing of the
denial of a federal right. Thus, we deny his
application for a CPC and his motion to stay
his execution. We reverse the district
court’s denial of counsel, and in the light of
Barnard’s exigent circumstances, we grant
his motion to appoint counsel.

I. BACKGROUND

A jury convicted Barnard of capital mur-
der on April 1, 1981, for the killing of six-
teen-year-old Tuan Nguyen during a robbery
of a convenience store in Galveston, Texas,
on June 6, 1980.1 After a punishment hear-
ing, the jury affirmatively answered the
three special issues submitted pursuant to
Texas law, thereby requiring that Barnard
be sentenced to death.

Crim.App.1987), cert. denied, 485 U.S. 929, 108
S.Ct. 1098, 99 L.Ed.2d 261 (1988).


m the
sent a

7
in’my
1 have
cocaine

nce of

no this
| Smith
ase of
_ ander-
» those
nviet-
iea of
reduc-
See
{n her
Smith
to the
Yr ¢
ove
quan-
tfense.
counsel

vledged
the 2-
ve the
ss that
moth-
1 three
» medi-
une def-
ente
ivin
‘ny the
ity was
us (in

_ ieee dee Sa eee pee tos Bigg ets

icicle tS ns eimai <n ASC BERR ER nO A EOS

RARNA
.e, ARN: %

RD, Harold Ae, wh, LI TX (Gal) February 2, 1994

BARNARD v. COLLINS 871
Cite as 13 F.3d 871 (Sth Cir. 1994)

my view) finding of joint activity. The deni-
al, therefore, should in my view be reconsid-
ered as part of the reconsideration of the
quantity issue.

In conclusion, I feel compelled to make
some comments about the anomalous position
in which this case is left as a result of the
majority opinion. First of all, Smith, who
had absolutely no criminal history points,
gets her sentence affirmed based an offense
level using more than 5 grams of cocaine as
the principal ingredient. On the other hand,
Phillips, who had a criminal history category
of Part V, gets his sentence reversed, and
under the holdings of Part II(c), with which I
concur, his offense level will be determined
by the quantity, 2 grams, actually involved in
his conspiracy with Smith. We are faced
first_ with the anomaly, then, of two defen-
dants convicted under the same counts of the
indictment whose offense levels will be deter-
mined by two different quantities. The sec-
ond anomaly arises from the fact that on
resentencing Phillips will be susceptible to
the enhanced penalties under 21 U.S.C.
§ 860(a), as he clearly should be, but the
clear error of the trial judge in refusing to
apply § 860(a) in the determination of
Smith’s sentence will be left to stand. I have
always understood that one of the primary
purposes of the Sentencing Guidelines was to
ensure that individuals who engage in the
same or similar criminal conduct ‘will have
their sentences determined on the same or
similar theories. I am disappointed that I
was unable to persuade my colleagues that
the way to avoid these anomalies was to
reverse the sentence of Smith as well and
place both defendants back before the trial
judge for a resentencing using the same
quantity and the application of § 860.

—
FeZ. /779¥

ffrcrt Vik Le

(Harold Amos BARNARD, we UE

Petitioner—Appellant,
v.

James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent—Appellee.

No. 94-60067.

United States Court of Appeals,
Fifth Circuit.

Jan. 31, 1994.

After his second state petition for habe-
as relief was denied by the Texas Court of
Criminal Appeals, state death-row prisoner
filed his second petition for federal habeas
corpus relief, requesting stay of execution,
evidentiary hearing to determine whether he
was competent to be executed, and vacation
of his death sentence. The United States
District Court for the Southern District of
Texas, Samuel B. Kent, J., denied prisoner
all relief, denied certificate of probable cause
(CPC), and denied prisoner’s attorney's mo-
tion for appointment of counsel.. Prisoner
filed notice of appeal, application for CPC,
motion for stay of execution, and renewed
motion for appointment of counsel. The
Court of Appeals, King, Circuit Judge, held
that: (1) prisoner failed to make substantial
showing of denial of federal right based on
his contention that he was incompetent to be

- executed, and so he was not entitled to CPC

or stay of execution; (2) the district court
erred in denying motion for appointment on
abuse of writ grounds; and (3) motion for
appointment would be granted in view of
shortness of time remaining before prisoner’s
execution.

Application denied, District Court’s or-
der reversed in part, and motion for appoint-
ment granted.

1. Habeas Corpus ¢898(1)

Second or successive petition for federal
habeas corpus relief, in which new grounds
for relief are alleged, may be dismissed for
abuse of writ if petitioner’s reasonable and
diligent investigation would have resulted in

“ Compe He Cor a yA Le

CX CCUpfek,


874 13 FEDERAL REPORTER, 3d SERIES

On April 8, 1987, the Texas Court of Crim-
inal Appeals affirmed Barnard’s conviction,
and on July 17, 1987, the state trial court
pronounced Barnard’s death sentence and
set his execution for September 23, 1987. On
February 29, 1988, the Supreme Court de-
nied Barnard’s petition for writ of certiorari.
See Barnard v. State, 7830 S.W.2d 708 (Tex.
Crim.App.1987), cert. denied, 485 U.S. 929,
108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).

The Texas Court of Criminal Appeals de-
nied Barnard’s first petition for state habeas
corpus relief on January 6, 1989, and Bar-
nard’s execution was rescheduled for March
14, 1989. On February 21, 1989, Barnard
filed a petition for federal habeas corpus
relief and an application for stay of execution
in the United States District Court for the
Southern District of Texas. The district
court stayed the execution pending its con-
sideration of Barnard’s petition.

On December 12, 1989, the district court
entered a final judgment dismissing the peti-
tion for a writ of habeas corpus and lifting
the stay of execution. After Barnard filed a
notice of appeal, the district court granted a
CPC and entered a stay of execution on
February 7, 1990,

On appeal, Barnard contended that the
district court erred in rejecting his claims
that (1) the Texas death sentencing statute
prevented the jury in his case from consider-
ing and giving effect to his mitigating evi-
dence in violation of the Sixth and Eighth
Amendments to the United States Constitu-
tion under Penry v. Lynaugh, 492 U.S. 302,
109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); (2)
the state trial court’s instruction on tempo-
rary insanity caused by intoxication prevent-
ed the jury from giving any mitigating con-
sideration to this evidence unless Barnard
proved that he was so intoxicated that he was
insane at the time of the offense; (3) evi-
dence of his good character—including evi-
dence of his carpentry skills, work history,
and familial responsibility and support—was
not adequately treated within the special is-
sues; and (4) Barnard had received ineffec-
tive assistance of counsel. Finding no error,
a panel of this court affirmed the district
court’s denial of habeas relief and vacated
the stay of execution. Barnard v. Collins,

958 F.2d 684, 643 (5th Cir.1992), cert. de-
nied, —~ US. ——, 113 S.Ct. 990, 122
L.Ed.2d 142 (1993). Rehearing was denied
on May 22, 1992. Barnard v. Collins, 964
F.2d 1145 (5th Cir.1992). The state trial
court rescheduled Barnard’s execution for
March 16, 1993.

The Supreme Court denied certiorari re-
view of Barnard’s petition for federal habeas
relief on January 11, 19938. Barnard v. Col-
lins, —— US. ——, 118 S.Ct. 990, 122
L.Ed.2d 142 (1993). On March 8, 1993, the
Supreme Court also denied Barnard’s appli-
cation for a stay of execution and petition for
rehearing, in which he reargued his Penry
claim in light of the Court’s decision in Gra-
ham v. Collins, US. , 118 S.Ct. 892,
122 L.Ed.2d 260 (1998).

On March 10, 1998—six days before his
then current execution date and nearly five
years after the execution date which was set
after Barnard’s conviction became final—
Barnard filed his second petition for state

. habeas relief, in which he asserted that he

was incompetent to be executed under Ford
v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595,

91 L.Ed.2d 385 (1986), and that the Texas

special issues did not allow the jury to reflect
adequately the mitigation value of his prof-
fered evidence. He also argued that Article
8.04(b) of the Texas Penal Code, which the
judge read to the jury as an instruction at
the sentencing phase of the trial, was uncon-
stitutional both on its face and as applied.
On March 15, 1993, the state court issued its.
findings and conclusions, recommending that
habeas relief be denied. Later that same
day, the Texas Court of Criminal Appeals
granted Barnard a stay of execution.

On May 11, 1993, the Texas Court of Crim-
inal Appeals ordered the state trial court to
hold an evidentiary hearing on Barnard’s
claim that he was incompetent to be execut-
ed. That hearing was held on July 22, 1993.
The trial court then issued its findings and
conclusions and recommended that Barnard’s
petition for habeas relief be denied on Sep-
tember 29, 1998. On November 8, 1993, the
Texas Court of Criminal Appeals adopted the
trial court’s findings and conclusions and de-
nied Barnard’s petition for habeas relief.

:

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II.

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the State r
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499 U.S. 4°
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BARNARD v. COLLINS 875
Cite as 13 F.3d 871 (Sth Cir. 1994)

Barnard’s execution date was then resched-
uled for February 2, 1994.

On January 27, 1994, Barnard filed his
second habeas petition in federal district
court. He requested that the district court
stay his execution, hold an evidentiary hear-
ing to determine whether Barnard was com-
petent to be executed, and issue a writ of
habeas corpus vacating his death sentence.
The attorney who had filed Barnard’s second
federal habeas petition also requested that
the district court appoint him to represent
Barnard pursuant to 21 U.S.C.
§ 848(q)(4)(B). On January 28, 1994, the
district court denied Barnard all relief, de-
nied Barnard a CPC, and denied his attor-
neys motion for appointment of counsel.
Barnard then filed a notice of appeal with
this court, along with an application for a
CPC, a motion to stay his execution, and a
renewed motion for appointment of counsel.

II. COMPETENCY ISSUE

[1,2] In response to Barnard’s petition,
the State moved to dismiss the petition as an
abuse of the writ, pursuant to Rule 9b),
Rules Governing Section 2254 Cases. Under
Rule 9(b), a second or successive petition in
which new grounds for relief are alleged may
be dismissed if the petitioner’s “reasonable
and diligent investigation” would have result-
ed in his presenting these grounds in a previ-
ous habeas petition. See McCleskey v. Zant,
499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113
L.Ed.2d 517 (1991). Once abuse of the writ
has been pleaded by the State, raised by the
district court swa sponte or raised as re-
quired in Hawkins v. Lynaugh, 862 F.2d 487,
489 (5th Cir.), stay granted, 488 U.S. 989, 109
S.Ct. 569, 102 L.Ed.2d 598 (1988), vacated
and remanded on other grounds, 494 U.S.
1013, 110 S.Ct. 1318, 108 L.Ed.2d 489 (1990),
the petitioner must show by a preponderance
of the evidence that he has not abused the
writ or otherwise violated Rule 9(b). Andre
v. Guste, 850 F.2d 259 (5th Cir.1988); John-
son v. McCotter, 803 F.2d 830, 832 (5th Cir.
1986).

According to the district court, it was clear
from the evidence put forth by Barnard that
he could not meet this burden. The district
court found that although there was some

evidence that Barnard’s condition had persis-
tently worsened over the years, it was abun-
dantly clear that the question of his compe-
tency to be executed was extant at the time
of his first habeas petition because “Bar-
nard’s habeas counsel have known and as-
serted for years that Barnard’s sanity is
questionable.” Thus, because the district
court determined that Barnard failed to dem-
onstrate good cause for his failure to raise
the issue of his competency in his earlier
writ, the court dismissed Barnard’s petition
on grounds that he had abused the writ.

We need not reach the question of whether
Barnard abused the writ for purposes of his
entitlement to habeas relief on the merits.
Even if we assume arguendo that Barnard
did not abuse the writ, we find that Barnard
has not made a substantial showing of a
denial of a federal right, and thus we deny
his application for a CPC and his motion to
stay his execution.

Standard of Review

[3] This court reviews an application for
a CPC using the same standard as that used
by the district court in the first instance.
That is, we will grant a CPC to appeal only if
the applicant can make a substantial showing
of a denial of a federal right. Barefoot v.
Estelle, 463 U.S. 880, 898, 103 S.Ct. 3383,
3394, 77 L.Ed.2d 1090 (1983); Drew v. Col-
lins, 5 F.3d 98, 95 (5th Cir.1993), petition for
cert. filed (Jan. 5, 1994). This standard does
not require the applicant to show that he
would prevail on the merits, but it does re-
quire him to show that the issues he presents
are debatable among jurists of reason.
Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at
3395 n. 4; Drew, 5 F.3d at 95. The same
standard essentially applies to an application
for a stay of execution. Drew, 5 F.3d at 95
(citing Delo v. Stokes, 495 U.S. 320, 321, 110
S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (“A
stay of execution pending disposition of a
second or successive federal habeas petition
should be granted only when there are ‘sub-
stantial grounds upon which relief might be
granted.’” (quoting Barefoot, 463 USS. at 895,
103 S.Ct. at 3395))).


352 VII. AMERICAN STATE TRIALS.

horses, as he could travel faster
on horseback. He took the trunk
out of the wagon the same eve-
ning he came to our house; the
trunk in court is the same one;
said it was his; claimed every-
thing he had along as his prop-
erty. He would not eat but very
little; said he was sick. He was
very restless during the night;
his actions were all different
from what they were when he
was at our house before. Kept
his pistol on; said he did not
feel right without it. He was
up next morning before any of
the family. Said nothing about
goods; said he had come down
as far as Sherman with a wagon
train, and from there he came
alone. He said James Golden
intended to come down with him,
but something happened and he
did not. Mr. Lewis came to my
father’s house in the evening of
the day prisoner got there and
commenced talking to him about
trading for the wagon; he gave
prisoner a gray mule and a
brown horse for the wagon. John
Bowman started with defendant
to Shreveport. Prisoner took
with him the horses he left at
my father’s house on his first
trip; he also took off the gray
stallion. He seemed to be in a
great hurry; he did not eat any
breakfast; took a eup of coffee
and went out in the yard to drink
it; would not sit down to the
table with the family. I saw him
take out of the trunk a brown
plush hat; it was a new hat.
(Hat shown witness.) That looks
like the hat; it is more worn
now. He had beard all over his
face. He sold trunk to A. J.
Lewis for $5. Saw him have the
things shown me in court when
he came to my father’s house
on 21st October, 1870.

Cross-exramined. It was on his
last trip that he said James
Golden intended to come, but
something happened and he did
not. Am certain the gray horse
was tied behind the wagon when
prisoner came to our house; the
gray horse in the possession of
Mr. Childers is the same one
prisoner brought with him. Ree-
ognize the trunk and clothing
shown me in court as the same
defendant had with him when he
came to father’s house, on 21st
October, 1870.

Jonathan D. Ballew. Live
about eight or nine miles south-
east of McKinney; am father
of Randolph Ballew and uncle
of prisoner. The most direct
route to my _ house’ from
McKinney is by the Rockwall
road; the place where the re-
mains were found is a mile or
more out of the way in going
from McKinney to my house.
The road by where the remains
were found is a neighborhood
road, and not as good as the pub-
lic road. Last March a year ago
—1870—prisoner came to my
house and introduced himself as
Stephen Ballew, my _brother’s
son; had not seen him before
since he was a little boy; he re-
mained with me about one
month. There was a colored man
with him when he came the first
time to my house, who went away
with him. He left with me on
that trip a bay mare, roan horse
and a chestnut sorrel horse; said
they were his, and left them
with me to keep until he re-
turned in the fall. He returned
to my house again on the 21st of
October, 1870, in the afternoon;
he came alone; had with him
three horses, a new thimble-skein
wagon with spring seat and with
bows; a red roan mare, dark roan

STEPHEN M. BALLEW. 353

gelding and a gray stallion; the
stallion was tied behind the
wagon. He had a gun tied to
the wagon bows. (Gun shown
witness.) That is the gun; he
had another gun—two in all—
one a rifle and the other a single-
barreled shot gun; he told me
to sell the guns and send him the
money. He came in the after-
noon and left quite early next
morning; he said he had come
down to stay, but had received a
letter from his sister and she was
very sick, and that he wanted to
hurry back to see her. He told
Lewis that he was giving him a
good trade on the wagon, as he
was anxious to get to his sister,
and could travel faster on horse-
back. He sold the bay mare to
A. J. Lewis, and took all the
rest on with him the next morn-
ing, October 22, 1870. He told
me he was very unwell, and that
was the reason he could not eat.
Ilis actions were different from
what they were when he was
down before; my family noticed
it and talked about it after he
left. John Bowman started from
my house with him; they start-
ed to go to Shreveport; he said
nothing about going to Jefferson,
Texas; said nothing about goods;
said other wagons came with him
as far as Sherman, and from
there he came down alone; said
nothing in my hearing about
James Golden; did not hear him
eall his name; said nothing about
having any goods or having sold
any; said he would sell the horses
nt Shreveport, and then go home
hy water. He claimed the horses
and all the property he brought
as his own; he would say, my
horses, my wagon, my trunk, ete.,
when alluding to them. Do not
remember how prisoner was

dressed and how he wore his
whiskers. (Clothing shown wit-
ness.) That is the clothing de-
fendant brought to my house in
October, 1870.

December 5.

Mrs. Surilda Ballew. Am wife
of Jonathan D. Ballew; have
known prisoner two years next
March; had not seen him since
he was a little boy, until he
came to our house in this coun-
ty, in March, 1870. He told my
son Randolph that he would
bring him a fine suit of clothes
in the fall, if he would take care
of the horses. On Friday, 21st
October, 1870, prisoner came to
our house again; it was in the
afternoon; he looked pale and
sickly; seemed to be very much
different in his actions from
what he was when he was with
us in the spring; he did not eat
any dinner the day he arrived;
said he had come from Missouri;
expected to stay and team, but
had received a letter from his
sister, and that she was sick and
he wanted to hurry home to see
her. Defendant traded the wag-
on he had to Andy Lewis. (Here
the gun, trunk, clothing, cooking
utensils, ete., were shown wit-
ness and identified as those
brought to her house by defend-
ant in October, 1870.) He did
not eat any supper, and only
drank a eup of coffee for break-
fast; he drank that out in the
yard, and would not sit down
at the table with the family;
gave as an excuse for his not
eating and haste to get away the
sickness of his sister. His whole
manner was different from what
it was when he was with us be-
fore; my family noticed it and
talked about it after he had left.
Recognize all the articles of

354 VII. AMERICAN STATE TRIALS.

clothing, ete., shown me here in
court as the ones he brought to
our house in October, 1870. Pris-
oner was very anxious to trade
off the wagon; said he could
travel faster on horseback. Did
not say anything about having
goods; said nothing about going
to Jefferson; said nothing in my
presence about James Golden ;
he never mentioned his name in
my hearing; told me he came
down to team.

Andrew J. Lewis. Live near
Jonathan D. Ballew’s. I first
saw prisoner in latter part of
February or first of March,
1870; he was then visiting his
uncle, J. D. Ballew. Next time
T saw him was in October, 1870;
he was at Jonathan D. Ballew’s
house; he then had a new thim-
ble-skein wagon, and three head
of horses with him on this trip.
Have seen the gray stallion in
the possession of John Childers.
Prisoner asked me to trade for
the wagon; said he was going
to Shreveport, and stock would
sell better than the wagon; he
traded me the wagon, harness
and a mare for a mule and
horse; also purchased a trunk
from defendant; he also gave me
a frying pan, coffee pot and wa-
ter keg; the trunk and utensils
here in court are the same I got
from him in October, 1870; gave
him $5 for the trunk. He came
to my house about daylight on
the morning of October 22, and
stated that if we traded it must
be done soon, as he was in a
great hurry to leave. Saw de-
fendant and John Bowman start
for Shreveport; defendant said
nothing about goods; did not
speak of going to Jefferson; did
not mention James Golden’s
name; said he was going to

Shreveport and on to Kentucky
to see his sick sister; he did not
act like he did when I saw him
in the spring; he was un-
easy and troubled about some-
thing.
John C. Bowman. Live near
Jonathan D. Ballew, in Collin
County; saw prisoner at his un-
ele’s in March, 1870; he said he
had come from Missouri; on his
first trip he told me that he was
coming down in the fall and
wanted me to meet him at Jona-
than D. Ballew’s and go with
him to Shreveport to assist in
taking stock; received the lettet
from defendant shown me here;
the letter was postmarked at
Shelbina, Mo., September 1,
1870. Met him in compliance
with said letter at his uncle’s in
this county, October 15; was
there at that time and waited
for him; he arrived on the 21st;
came alone; had a new wagon
and three horses; one was a blue
roan horse, the other a red roan
mare, and the one that was lead-
ing behind the wagon a gray
stallion; have seen one of the
horses in the possession of Mr.
Lewis; have seen the gray stal-
lion in the possession of Mr.
Childers since this trial com-
menced. He had a gun tied to
the wagon bows when he came;
had a trunk and clothing, also
an ax, shovel and hatchet. He
gave me some clothing; said he
had more elothing than he want-
ed to carry with him; he sold
me a bridle and halter; also gave
me two knives, one a dirk and
the other an eight-bladed knife;
said he killed a Yankee Colonel
during the war and got the dirk.
(Here each article was shown
witness and identified as the
same he got from prisoner on

STEPHEN M. BALLEW. 355

the last trip and which the pros-
ecution proved was the proper-
ty of young Golden.) See let-
ter to John Bowman, ante, p. 338.
He and I left Jonathan D. Bal-
ew's to go to Shreveport, La.
Oct. 22,1870; slept with apheedant
the night before we started ; he was
very restless and got up several
times during the night; com-
plained of being sick; was in a
great hurry to get started in the
morning; said his sister was
about to die and he wanted to
see her; the sickness of his sis-
ter was the only reason he as-
signed why he was in such a
great hurry. (Here a letter was
read in evidence, written by Ball-
lew, at New Orleans, in Novem-
her, to his sister, in which he
tells her that he is well, as usual
and was glad to hear in her last
letter, received while in Texas
that she was vwell, ete. and
that he might be in Ken-
tueky late in the fall, on busi-
ness and would eall and see her.
(See ante.) We traveled some
forty or fifty miles the first day;
went some twenty-five or twenty-
seven miles after night; we trav-
eled in the night until we came
to the Sabine River and it was
up so it could not be forded;
defendant wanted to swim the
river and go on, but I refused
to do so and we camped. He
told me to keep my pistols close
and dry so that they would be
ready for use in ease I needed
them; said he would let me watch
the horses a while and he would
try and sleep; he turned over
frequently and was restless. He
told me to keep my dragoon dry;
he ealled a pistol a dragoon. The
next day we got to John W.
Childers’ near Quitman, Wood
County, Texas; he wanted to

start on the next morning fr
Childers’, but Mr. Childers ir
him to wait a day or so for his
(Childers’) cousin, who was go-
ing to Kentucky. There was no
person with defendant and my-
self while going from Collin
County to Quitman. Did not
hear defendant mention Gold-
en’s name; did not hear him say
anything about goods; did not
hear him speak of going to Jef-
ferson. (Picture of James P.
Golden handed witness.) There
was no such a man with defend-
ant at Quitman or on the road
to that place. (Here a letter
was offered in evidence and read
written by Ballew to Miss Clara
Golden, and mailed at Quitman
Texas, October 25, 1870, in which
he states that James Golden is
along and seems to be enjoying
the trip finely, especially the
profits of the trip. See ante.)
Saw defendant trade the gray
Stallion to Mr. Childers; it is
the same stallion that Mr. Chil-
ders has here, and the same one
that was pointed out to the wit-
ness on last Monday; it is the
same one that prisoner brought
to his uncle’s on the 21st day of
October, 1870. Before we start-
ed from Collin County, defend-
ant told me that if I had any
specie he would take it and re-
place it when we got to Shreve-
port; he said greenbacks were at
a discount of 22 per cent in
Texas and only 18 per cent at
Shreveport, and that he could
make money by buying specie;
did not hear him say he had any
kind of money; I told him I had
no specie and but very little
ee ¢ any kind, as I was
oor and made my livi
day’s work. Mei Fi

John W. Childers. Live in


356 VII, AMERICAN STATE TRIALS.

Wood County, Texas, some three
miles from Quitman; about
eighty or ninety miles from
where Jonathan Ballew lives. Am
acquainted with prisoner; we
were boys together in Kentucky ;
he is a cousin of mine. He came
to my house in October, 1870;
John Bowman came with him, a
little after dark; they brought
four horses and a mule; prisoner
said he eame from Missouri to
sell horses. There was something
the matter with him; at least,
his actions made me think so;
his conduct was so strange that
my wife called my attention to
it and we all talked about it af-
ter he left. He went to Quit-
man with me on Monday; he
sold a roan horse and a red roan
mare at Quitman; he traded me
the gray stallion that I have
here with me; it is the same one
that the witnesses in this ease
looked at on Monday last; he
stayed at my house two nights.
Sunday and Monday nights; on
Tuesday, 25th October, he went
with me to Quitman and started
from there to Shreveport; when
we went to start to Quitman
Tuesday morning, I stated that
I would ride the gray stallion
that I had bought of defendant
the day before, when he re-
marked that I had better not ride
him to town, as he was tired and
would soon get in good order if
I did not use him. Did not ride
the stallion after the request of
defendant not to do so. He was
in Quitman that day; did not
see him write any letters; he
could have done so and I not
have seen him, as I was on the
Grand Jury and was away from
him at times; there was no man
with the defendant named James
P. Golden; no one with him that

looked like the picture of James
P. Golden; John Bowman was
the only man with him at my
house; he did not return to my
house after the time he came
there with Bowman; did not hear
him mention the name of James
P. Golden; did not hear him say
anything about goods; did not
hear him say that he was going
to Jefferson; he said he was go-
ing to Shreveport and on to
Kentucky, to see his sister, whom
he said was sick, as a reason why
he was in such a hurry; he did
not eat very much because he had
the chills. He brought to my
house a hat, a new plush hat;
am now wearing it; he took my
hat, which was the same kind
and color and left his with me;
he did this without my consent;
the hat he took of mine had a
broader brim than the one he
left; that was the only differ-
ence. (Both hats shown witness
and identified. The hat which
defendant had left with Mr.
Childers having been previously
identified as the one young Gold-
en took away from home.) It
was 100 miles to go by Jeffer-
son from my house to Shreve-
port. Newton Childers was at
my house when defendant and
Bowman came there; he is a
cousin of mine and lives in Ken
tucky; he was on 2 visit to my
house at the time and was about
ready to start back to Kentucky ;
defendant told him he would fur-
nish him a horse to ride to
Shreveport if he would go with
him, which he did. Prisoner had
been at my house the winter or
spring before that time; his con-
duct the last time was altogether
different from what it was his
first trip; if he had asthma or
chills while at Quitman I did not

STEPHEN M. BALLEW. 357

know it; think I would have
known it if such had been the
ease; he had whiskers all over
his face; they looked to be five
or six weeks old.

Joseph T. Scott. Live five
miles south of McKinney; found
the remains that are said to be
those of James P. Golden on
llth February, 1871, one-half
mile from my house, in Collin
County, Texas; they were in a
dense thicket on a branch; found
them lying beside a very large
log in one of the most dense
thickets I ever saw; you could
not see twenty feet from where
the remains were found; never
knew that the log was there be-
fore. Had a sow that had pigs
hid out in the bottom; she came
up on Sunday morning to get
fed, and I followed her on her
return to the bottom to find the
pigs; she passed by the log where
the remains were lying. I looked
over to see if I could not find the
pigs, when to my great astonish-
ment and horror I saw a human
skeleton, partly covered with
clothing, lying by the side of the
log; found under a large limb
that put out from the log a hole
where the remains had been bur-
ied, but not deep enough to keep
the beast from pulling them out;
saw one boot with a foot in it
that looked natural; it had a blue
sock on it with white heel and
toe. (The same sock, together
with every stitch of clothing
found on the remains, had been
previously identified as belonging
to James P. Golden.) The rats
had built a nest under the log
out of the hair and had carried
away many of the small bones
of the skeleton to the nest; the
other bones were scattered
around over a space of some ten

or fifteen feet. A person is en-
tirely hid from view when in the
thicket; do not know whether
anybody living around in the
neighborhood knew of the log be-
ing there. The skull shown me
in court is the same one I found;
also recognize the boots and
clothing found on the skeleton.
The flesh was about all off the
bones when I found them.

W. N. Bush. Am Sheriff of
Collin County; was present at
the Coroner’s inquest held over
the remains of James P. Golden,
on 13th February, 1871, where
the remains were found, some
five miles south of this place;
brought the remains and cloth-
ing to McKinney ; had the re-
mains interred; had the clothing
washed and kept them until
March, 1871, when I turned them
over to W. G. Ewing; can iden-
tify the clothing here in court
as the same; I cut out a piece
from each garment and kept it;
there was something on the cloth-
ing that looked like blood; also
found some hair with the re-
mains; it seemed to be matted
together with blood. I examined
the hole where the body had been
buried; it was about twelve or
eighteen inches deep; one of the
hip bones was in the hole; the
hole was dug with some kind of
an implement; it could be dug
with the shovel shown me in
court as well as any other kind
of an implement; the skull shown
me here in court is the same one.

Mrs. Elizabeth Golden. (Re-
called and cross-examined.) Am
51 years old; my memory is not
good; has been impaired by the
trouble about my son; do not re-
member that I was opposed to
my son’s going to Texas with
prisoner; did not want any of


358 VII. AMERICAN STATE TRIALS.

my children to go off so far; he
was very anxious to have my son
go, and I frequently heard him
telling my son that they could
make much more trading than
farming. Prisoner is not related
to our family except by mar-
riage; he called me Aunt, and
my husband Uncle John, but
that grew out of the fact that he
had been partly raised by Mr.
Golden’s sister. My son chewed
tobacco, and was a very obedient
and confiding young man.

To Mr. Smith. Prisoner did
not seem able to eat when my
son’s name was mentioned. One
day he left the table just as one
of the children spoke James’
name; he said he had a chill. An-
other day we were all sitting at
dinner when one of the children
ealled out, “Here’s Jimmy.” I
ran to the door and saw a young
man coming up the path. I
thought it was my son and ealled
to the children, “It’s Jimmy.” I
was sure it was and shouted to
him several times, but when he
came nearer I saw it was an-
other person, young Mr. Poage.
Then I almost collapsed and
broke with tears. But Ballew
was not at the table and going
into the bedroom I found him on
the bed all in a sweat rolling
about; he said he had just had
a chill. When he got back and
James’ disappearance was spoken
of in the family he said if it was
made known by us he would go

off with his wife and we would
not hear of them again.

J. M. Wilcox. Am Justice of
the Peace in this county; was
the officer that held the Coroner’s
inquest over the remains of
James P. Golden; there was
blood on the clothing and in the
hair; the hole where the remains
had been buried seemed to have
been dug with some instrument.

John W. Golden (recalled). The
wagon I saw in the possession
of Mr. Lewis is the same one my
son started with; the horses I
found in Mr. Lewis’ possession
were some of those defendant
told me he had sold at Shreve-
port on his first trip; they were
my property and I have never
received a cent for them; I rec-
ognize the clothing, knives, ete.,
shown me in court as the prop-
erty my son took away with him
and which he owned.

K. R. Craig. Am _ deputy
clerk of the District Court of
Collin County; am in the habit
of using and handling paper.
Letters Nos. 714, 6, 14, 9, 7, 15
and 25 are of the same size and
texture of paper. Letters Nos.
12, 11, 10, 16 and 13 are of the
same manufacture, size, texture
and quality. Nos. 11 and 13 are
parts of the same sheet; Nos.
15 and 25 are parts of the same
sheet; Nos. 6 and 14 are parts
of the same sheet of paper; Nos.
9 and 7 same sheet.*

4 This testimony was for the purpose of showing to the jury that
the letters written by Golden and Ballew, while going from Sher-
man, Texas, to McKinney, were on the same kind of paper, ink,
ete., as the letters that were written by Golden and dated by Bal-
lew, purporting to have been written by Golden at Jefferson, show-
ing that defendant got Golden to write the letters in which the dates
were left blank, at McKinney, or in that vicinity.

Bia gn

STEPHEN M. BALLEW. 359

W. G. Ewing. I received this
skull, boots, pieces of gloves,
lock of hair, four buttons and
all the clothing found on the
body from Sheriff Bush. I got
the trunk, here in court, from

A. J. Lewis, and the clothing,
except that identified by Bow-
man, at the house of Jonathan
D. Ballew, in this county. The
bones are the same I got from
Sheriff Bush in March last.

THE EVIDENCE FOR THE PRISONER.

December 6.

Thomas T. Bradley. Was on
the Coroner’s jury that held the
inquest over the remains of
Golden; saw and examined the
hole where they had been buried;
think it was dug with a hoe; it
could have been dug with the
shovel here in court; the hole
was under the log where a big
limb came out.

Dr. Smith. Am a practicing
physician; have been for thirty
years engaged in the practice;
there is no general rule by which
one can tell the height of the
person by measuring the re-

mains; can tell about the height;
would take the man whose re-
mains these are to have been
about five feet eight or ten inches
in height.

John Howell. Sold a pair of

suspenders to a man named Wil-
son, which resemble those found
with the remains. Wilson lived
in Southern Texas, and when
the remains were first found they
were thought to be his, but Wil-
son has been heard from.
_ The verdict of the Coroner’s
jury was offered in evidence by
defendant. Objected to by the
State and objection sustained.

December 7,

The order of argument was agreed upon as follows: Dis-
trict Attorney L. F. Smith to open on the part of the State;
then Thomas J. Brown and J. W. Throckmorton on behalf
of prisoner, and W. G. Ewing of Illinois to close on the part

of the State.5

DISTRICT ATTORNEY SMITH, FOR THE STATE.

Mr. Smith. Gentlemen of the jury: For ten long days
you have patiently listened to the investigation of this most

remarkable case, and were it not for the fact that I know you
are desirous of doing your whole duty both to the State and
and her unfortunate prisoner, I would not ask your atten-
tion further, nor trespass upon your time a single moment
longer. But when we remember that the defendant, Stephen

* The speeches of counsel, except that of we
were not reported. ’ Pp of the District-Attorney,

“es

Sth CRD atone

FAMOUS CRIMES OF

rather badly—very badly, as a matter of
fact.

There was no talk of a honeymoon trip.
The “honeymoon” was spent in the fine bed
of black walnut which graced the -best
bedroom of the house. Those were the
days when a somewhat broader view of
newlyweds was taken than today; for hours
that night the neighbors held a “chivaree”
around the house, pounding upon drums
and tin pans, blowing horns, and otherwise
perpetuating a social custom which dates
back into the beginnings of civilization.

Lulu made up the bed with the best linen,
and her lips must have been pressed tightly
shut while she did it. The charavari died
away, and the household slept. We do not
know how Louise Golden slept beside her
elderly husband, but the record shows that,
on the next morning when she carried
coffee to the newlyweds with her own fair
hands, she noticed Stephen Ballou’s shirt
flung across a chair.

Strangely enough, she recognized it. This
shirt was of pale blue silk—and it showed
at every seam traces of her own fine rieedle-
work!

Stephen was wearing the shirt which she
had given Jim for a farewell present! Yet
Jim had decamped with thousands of dol-
lars of Ballou’s. A shirt was little enough
to get in exchange.

The happiness of the bridal couple was
a new breath of life in that unhappy home-
stead. Jonathan Golden fairly leaped at
the chance to keep his daughter and her
new husband near him by giving Ballou a
farm, part of his own sadly diminished
holdings, This seemed certainly no more
than he owed to his new son-in-law, for it
was due to the waywardness of his own
flesh and blood that Ballou’s stake in life
was gone.

S° IT WAS ARRANGED. On a Friday after

noon farmer Golden hitched up his
buggy and drove into Quincy, where he
expected to meet Ballou in the lawyer’s
office and sign over to him, by deed of
gift, half of his wide and fertile acres.
Ballou had refused to share the buggy, be-
cause, as he said, he was “more used to
horseback than horsetail.”

Judge Ewing welcomed his old friend,
and the two men waited for the younger.
While they waited, Jonathan confided the
whole story of his son’s defalcation, in ex-
planation of his somewhat unusual gener-
Osity.

The small town lawyer listened and
pondered. He drew up the deed of. gift
and the other papers and got everything
in readiness. But still Ballou did not arrive,

Golden left the office and went on a tour

of the town, looking into every saloon and
grocery, every hotel and billiard parlor.
Perhaps Ballou had mistaken the hour.
‘ But there was no sign of him anywhere.
Judge Ewing teetered in his arm chair
overlooking the court house square, and
spat at a magnificent brass cuspidor which
decorated the center of his office. As he
teetered, he thought. This was not the first
time he had been kept waiting.

He had little else to do but think, this
homespun lawyer. Even though he had
been elected district attorney, and had taken
office since Jim Golden and Ballou went
away on their long journey, he still had
plenty of time on his hands.

Make no mistake from a hasty glance
at his photograph. William G. Ewing was
nobody’s fool. And in spite of his leisure-
ly air and his bushy whiskers, he hated to
be kept waiting quite as much as a bus-
tling attorney of our own generation.

Farmer Golden at last had to drive home,

82

YESTERDAY

puzzled by the non-appearance of his son-
in-law. Few men failed to show up at
an appointment where they were to receive
a gift. As he drove up the lane, he found
Ballou bending beside his roan, unsaddled
and tied to a tree.

The gelding had picked up a sharp bit of
flint in his hoof, and Ballou had been
forced to turn around and lead him home.
The two men treated the cut in the hoof
and agreed to make the trip into town early
the next morning.

S IT WAS THAT BRIGHT and early the next

day Ballou kissed his bride and climbed
into the buggy with his father-in-law. They
rode into town behind a pair of fast trot-
ters, along the river road, across the valley,
and up Lee’s Hill toward the city.

Judge Ewing awaited them. An apology
was made for the failure of Ballou to ar-
rive for the appointment the previous day.
“A bad bit of flint it was, too,” said Jona-
than Golden. “The nag still limps.”

Ewing started. He was something of an
amateur geologist, and he knew that the
only flint outcrop in the country was at the
top of Lee’s Hill, a mile out of town. Then
Stephen Ballou had ridden his horse tén
miles toward town, found the nag limping,
and had led him ten miles back rather than
coming on into Quincy. For nowhere else
than at Lee’s Hill could the sliver of flint
have been lying in the road.

The attorney also happened to remember
that one of the largest of his election
posters still fluttered on a billboard at the
head of Lee’s Hill—a poster announcing
his candidacy for district attorney on the
Republican ticket. That was tantamount
to election in a Republican county. In
other words, suppose Ballou had changed
his mind about dropping 1n on the man he
discovered to be the local enforcement of-
ficer pete he had had time to think things
over

It all began to fit in with Ewing’s pon-
derings of the previous afternoon. He took
a fresh chew of tobacco, hitched forward
in his chair, and—much to honest Jona-
than Golden’s amazement—began to cate-
chize Ballou upon the journey from which

-he had just returned,

Ballou was an extraordinary man, and he
had had the night in which to prepare him-
self for this ordeal. But all the same, he
fared very badly indeed. No Southern
gentleman was able to cope with a hard-
headed Yankee lawyer. And besides, Bal-
lou had made a mistake in the business of
the flint in his horse’s hoof.

Farmer Golden incredulously protested
at the trend the interview was taking, but
it did him no good. This was Judge
Ewing’s private office, and here he was
king. Before half an hour had passed,
Ballou had been trapped into admitting that
three-fourths of his grandiose story of the
financial ventures was false. He had bought
some bankrupt property and a few hogs and
cattle, but not for any such amounts as he
had secured from Golden. And no funds
of his own had been invested.

Ts WAS ENOUGH for Judge Ewing. He

permitted Ballou to imagine the worst
possibility was a charge of securing money
under false pretenses, Jim Golden, upon
discovering that he was a party to a shady
deal involving his own father, had run
away rather than come home to face the
music, Ewing hinted.

And he arrested Stephen Ballou for
fraudulently obtaining money from Gol-
den! The farmer still insisted that this
must all be quite impossible. But Ewing
stepped out of his character as a family

Continued from page 51

lawyer and became the district attorney
bent upon his first important case.

One night away from his luscious bride,
one night in a jail bed shared only by what
tramps humorously call “crumbs,” was
enough to make Stephen Ballou, the hand-
some and dandyish gentleman, change his
tune.

He offered, if he were released on the
charge, to return the notes which Jona-
than Golden had given him at the outset
of the journey—the notes which he was
supposed to have exchanged for cash and
credits on the trip, but which were con-
cealed in his saddle bags.

He was set free. The district attorney
kept his bargain. But Ballou’s possession
of the notes proved that Jim Golden had
not decamped with any money. Therefore;
where was he?

Only Stephen Ballou knew, and he was
not doing any talking. Half an hour after
he had been released and had turned over
the notes, he was rearrested upon further
and more serious charges of embezzlement,
fraud and the like.

Ballou still had cash—Golden’s cash
He discovered that his bail ‘had been set
for five thousand dollars, and raised: it!
The bail was increased to seven thousand,
and when he reached that amount, to ten, It
may have been a little illegal of the “judge,”
but he had dark suspicions and did not in-
tend to let the handsome and soft-spoken
young bridegroom go riding out of his jur-
isdiction.

For six months this sort of juggling kept
Ballou behind the bars of the local jail.
For a short time Clara Golden Ballou vis-
ited him daily. Then suddenly she stopped
coming, ;

Her step-mother, the fair Louise, had
stepped forward after considerable urging
from Ewing and admitted that she had
noticed Ballou wearing the silk shirt she
had made for Jim Golden—the shirt he had
coveted. She had held her tongue because
she loved him. His walks with her had
ended when he married Clara, but it was
something to have him around the house.
She had not dared to think of the implica-
tions inyolved.

On the heels of this came a darker devel-
opment. The red-haired, lonesome Lulu,
hired girl at the Golden farm, made an
abortive attempt at suicide by leaping from
a bridge into a stream which happened to
be less than two feet deep. The medical at-
tention resulting showed that her time was
come, and she gave birth to a dead child.
She kept her lips sealed—such was the fas-
cination of Stephen Ballou—but she did
not need to speak.

Bau REMAINED IN JAIL, restless but

not particularly worried. The worst
he could get would be a few years in
prison. Indeed, what with the temper of
the people of Quincy, he was safer inside
than out,

All this while detectives were frantically
searching for traces of the missing Jim
Golden. Alive, he would be the best witness
against the confidence man. If not alive,
a better witness still. Somehow, Ewing
felt sure that Jim would never turn up
alive.

He bade fair never to turn up at all. The
movements of the two were traced through
letters written by young Golden and Bal-
lou. They had journeyed through the
South, from Virginia to Texas. Some-
where in the latter state Jim Golden had
disappeared—whether with the money, as
Ballou had said, or otherwise.

_ The search assumed tremendous propor-
tions for those days, with every local con-
stable furiously scrambling to ‘find a clue.

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Twice Ewing himself went to Texas, de-
termined. upon running this case to earth.
But he himself found no trace.

It remained for a humbler figure than
his to play Sherlock Holmes in this case.
In the village of McKinney, Texas, a
rancher named Fred Airs had purchased a
drove of pigs some months before—pur-
chased them from a dealer who had picked
them up cheap from two itinerant traders.
Those traders were, of course, Ballou and
Golden.

Late in May in the year 1871, almost a
year after the soft spring day on which
Ballou had led Jim Golden from his father’s
farm, this Texas rancher found it neces-
sary to pursue a brood sow, one of the
pigs he had purchased from the Ballou lot,
across his own fields, through a road, and
into a wilderness of thicket and thorn.

Cursing the renegade, fighting his way
after her beneath the hot Texas sun,
rancher Airs cornered the sow at last in
the very heart of the thicket. There she
stood, gaunt, razor-backed, squealing—

She was rooting at a dead log which lay
in the tangle of brush and briar. As the
rancher approached, she rolled the log over
and ran squealing away, her duty done.

The log had rotted away so that it re-
sembled an upside-down trough or coffin.
Beneath it were human bones, stripped
clean of flesh by ants and other scavengers.
There was nothing to prove the identity of
the man who had Jain there these long
months, except for a few shreds of blue silk
which clung to the bony shoulders.

There were stitches in the silk, painful
stitches made by a loving though unprac-
ticed hand. Clara Golden Ballou was to
identify her handiwork—but that comes
later,

Grimmest of all, police came upon a tiny
blob of lead lying with the bones. It had
flattened itself against the man’s backbone,
but it was still identifiable as a 41/100ths
calibre bullet, a bullet which could be fired
only from one of the new-fangled derrin-

ger pistols.

Stephen Ballou had showed the hired
man, as well as Jim Golden, his treasured
toy. When arrested, it had swung in his
left sleeve, suspended in the gambler’s
fashion by a strong elastic string. It could
thus be drawn with the right hand, fired
with either hand, and would spring back
out of sight before onlookers could know
what was happening.

| ‘HE GovERNoR oF TEXAS was quite for-.

mal in his request that Governor Palmer
(no relation to the author—Ed.) of Illinois
give up the prisoner, Stephen Ballou, into
custody of the Lone Star officers, so that
he might be brought back to the scene of
the crime for trial. Governor Palmer ac-
ceded with alacrity.

Much to Ballou’s disgust, “Judge” Wil-
liam Ewing rode along with him to Texas
and watched the proceedings with a hearty
good will. Ballou’s lawyers, Brown and
Throckmorton, did all they could for him.
His plea was that Jim Golden had been
caught in the act of thieving their joint
funds and had killed himself.

But he failed to explain Ewing’s queries
as to how the bumpkin had secured his pet
derringer,, or how he had been discovered
in the act of theft in such an out of the
‘way place—and most of all, how he had
succeeded in shooting himself in the small
of the back.

Clara, the fair young bride, was barely
able to point to the shreds of silk which
had been her own handiwork, the remains
of the silk shirt she had made for her
lover. With his hands red with murder, he
had paused to exchange shirts with his
victim because he liked the better one!

Then she went noisily insane—a not un-
usual escape from reality for a deceived
girl in those days—and, says the record,
“She is now a gibbering maniac, a total
wreck in mind and body. She has only an
occasional gleam of sense, when the awful
rush of thought instantly drives her into
convulsions.” That was written in 1872,
and she died a year and a few months later,
shortly followed by her faithful poodle
which had been the only good gift Ballou
ever gave her.

Handsome Stephen Ballou, the flower of
old Kentucky, and honored by public ac-
claim as “The Quincy Fiend,” was executed
by the Lone Star State without red tape,
respite, or appeal. Judge Ewing of Quincy
made the trip all the way to Texas to be
a witness at the affair, and it must have
pleased the old gentleman considerably. If
ever a man was born to be hung, it was
Ballou.

Yet even at this last appointment with
Stephen Ballou the lawyer who couldn't
be fooled was kept waiting. The drop was
not long enough to break the whining pris-
oner’s neck, and he swung for nearly half
an hour before he was thoroughly dead.

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Cont. from page 62

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bseuel, His, LI TX3P (Hamilton) December ll,

1995

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16 A The Dallas Morning News Tuesday, December 12, 1995 H

TEXAS: & SOUTHWEST

Ney ay of,

Inmate put to death
for woman’s murder

_ By Michael Creer,
Associated Press

HUNTSVILLE, Texas — A convict-

ed killer who fired his attorney and

refused to file appeals was executed
Monday for a murder he said was
ordered by the devil.

Esequel Banda, who would have
turned 32 next week, had no final
Statement and died quietly from the
lethal injection after a single gasp.

“Dizzy,” was the only word he said, —

Staring at his wife, who stood in the

witness room a few feet away along

with his former attorney.
Seven minutes later, at 6:21 P. m., he

’ ‘was pronounced dead.

~ Mr. Banda was condemned for the
Aug. 3, 1986, rape, stabbing and stran-
gulation of Merle Laird, a 74-year-old
widow, at her home in Hamilton about
50 miles west of Waco. °
According to prison records, he

‘told friends he stabbed the woman

because he had sold his soul to the
devil and that the devil had told him

to kill six people. ©

Mr. Banda’s court-appointed attor-
ney, Randy Johnston of Dallas, wrote
the: Texas Court of Criminal Appeals

on Nov. 21 saying Mr. Banda no longer .

wanted a lawyer, then met with the
inmate Monday. ~

“T had to satisfy myself he was mak-
ing a rational kind of decision,” Mr.
Johnston said. “He understood very

~ much what was happening.”

Mr. Banda "was the third inmate
executed in Texas in six days and the
sixth in the nation in the past week.

At least eight of the 103 men put to

death in Texas since capital punish-

ment resumed in 1982 volunteered to :

die.
Another condethiad killer, James
Briddle, was set to die in Huntsville on
Tuesday evening.

Mr. Banda, born in Pima Gouity,
Ariz., was a ninth-grade dropout with
at least two previous convictions.

In 1983 he got a four-year sentence
‘for burglary and five years for auto

Esequel Banda

theft. He was paroled less than a year
later and returned to prison as a pa
role violator after three months.

In May 1986, he was freed under
mandatory supervision, meaning his
prison time and so-called “good time”
earned while locked up equaled his
sentence and his release was required
by law. Mrs. Laird’s murder occurred

- 10 weeks later.

Mr. Banda’s execution was the 18th
this year in Texas, topping the previ-
ous high of 17 by lethal injection in
1993. The record of executions in the
state was set in 1935, when 20 men
died in the electric chair.

HUNTSVILLE, Tex., Dec. 11 (Reu-
ters) — A man who said he killed a
74-year-old woman and then drank
some of her blood was executed in
Texas today.

The man, Esequel Banda, 31, died
seven minutes after being injected
with lethal chemicals.

Strapped to a gurney in the death
chamber, Mr. Banda gazed at his
wife while the chemicals were inject-
ed, a prison spokesman, David Nua-
nelee, said.

The lawyer who represented Mr.
Banda in his appeals against the
death sentence, Randy Johnston of

Dallas, also witnessed the execution ‘
after spending the day with his cli- :

ent.
- “TI think it’s absurd,’ Mr. Johnston
said of the death penalty. ‘‘I think it
is at best extremely arbitrary, at
worst extremely discriminatory
against the poor.”’

Mr. Johnston said he was unable to
convince Mr. Banda to pursue addi-

Ney.

tional appeals after the Texas Court
of Criminal Appeals rejected his fi-
nal plea for a new trial earlier this
month.

“I think that disheartened hith a
great deal,’ Mr. Johnston said. ‘I
respect the dignity that is encapsu-
lated in his decision as having some

responsibility for his own life.”

During Mr. Banda’s trial, his sister
testified that on the night of the kill-
ing he confessed to stabbing Merle
Laird 20 or 30 times and then drink-
ing some of the blood that came from
her mouth,

“Banda said that he had sold his
soul to the devil, that the devil Nad
told him to kill six people,” said
prosecutors, who testified that Ms.
Laird, a housewife in Hamilton, Tex.,
had been sexually assaulted and
strangled. —

TIMES

Iw@~(S-9S
TUES.


ae ae --ALBy The Associated Press.
=». 3; Barnest Knighton’ Jr. said he

Seti yhiae “was ‘going home to heaven” to-””

-day when‘he was put to death in
-Louisiana’s electric chair for. the

~ murder of a service station ow
er; just minutes before convicted”
- -cop-killer Thomas Barefoot died”
Sy sensiieees by what he called “this evil’? of.
clethal injection in Texas. 203.33
Knighton,., 38, who had studied

‘pictures of * ‘the ‘chair to. Blve i

oss. = himself “a little bravery,’ ‘died at ;

,12:
{ 1? a.m}, eae

said -Prison’ Of
ficials in Ango i

aby
scp

Barefoot, 0, Wiio: had laimed :

that God would ' intervene, died
y seven minutes later, said Texas
Attorney General Jim Mattox at
the state prison at Huntsville.

‘ Death-penalty opponents and
supporters marched outside the
sites of both executions. Pro-ex-
ecution demonstrators. in Hunts- |
ville carried a cardboard model

AUP CARs oie

a -.: Of ‘a hypodermic~needle and
‘yh Chanted, “Hit. me with your Varei
SRS shot? co ain ens

“The” U. Ss. = Supreme: Court on.
- Monday. voted 7-2 in both. cases .
‘not to stay the ‘sentences, the 11th ~

eg irelection } more than five ears,
Pse CALS

ae

execution. The issue was left in
the hands of tt the North Carolina -

LTS: Co ee JB, é Zed

restore the death penalty.’

This .week also could see the

first.U:S. execution of a woman in

22 years. Velma Barfield, 52, is” .
scheduled to die in North Carolina af
on Friday. by lethal injection for} i

poisoning her fiance in 1978... —
Attorneys «for Mrs. Barfield

* went to Robeson County Superior

Court today to argue that her ap-

peal should be given a. full hear-
ing, but the request was denied hy

and a judge refused to stay her

rB pet.
person put to death in the United fe
States since the nation’s highest °
“court in21976 allowed states to

sn reviewed Fe times’ “
e than. five years. of sean
chad won four stays, | =.
ours besare he. was to 5 ON

als. He
ae Wy

_ Barefoot,
ting

robbery asthe man’
ed, was tHe fifth m
J ouisian ty


if said she now spends most of her

his Week |

if wants no ye oh did ies ‘“‘turn-

ed all this trouble over to. the *
hands of the Lord.’ Her lawyer

\ time Selecting clothes: and music

." She would be the first. woman:

“executed in the United States sin- :
ce Elizabeth Ann Duncan, 58, died
in California’s gas chamber in
1962 for arranging the death of

her daughter-in-law. : ¥ eh ee

Twenty-five people have been &

executed in the United States sin-.
ce the Supreme Court in 1976 al-
lowed states se restore ae death

ee
it bese

Z

ne

anek ug

Shs RAMA Ne Sate is
pega
fi
als
wT sit eg me KE
ved : ie ing & 3 a) ae oe
3 ; te ‘By aS ited Pres | i + ‘prantel Katehione a ranbellae stay oe
yea ue . Three convicted Murderers « last month so he could pursue his
sicaseakrst niet ERE PER Seer ae eT 5 Louisiana, Texas and North Caro-__ unsuccessful appeal to the Pardon
EE ane See lina face execution this week, in- © Board, but has said another stay.’
py, cluding Velma Barfield, who. was “not very likely.’
. would become the first woman ex-;,, _. Barefoot today was awaiting a for her funeral.
“ecuted in the United States in 2 - decision from the Supreme Court
) years... Sh eRe be on'his‘request for a stay, which
*. Earnest Knighton, 38, convicted ~ contended the state’s use of lethal
P igre. eae Fe ips) ‘in the 1971 shooting death of a*' ‘injection: was unconstitutional.
boy Ag Sven, oo service station attendant during a’ “Also, Goy: Mark White said he:
j I eames oe oe _., Fobbery, was scheduled to be would announce whether to grant
Pe We ee ; : electrocuted shortly ° ‘after mid-. .a 30-day reprieve requested by a ©
A night in Angola, La...) > ‘3% “prisoners” lobbying group. a
sae : . Thomas. A. Barefoot, 39, con- . .; During more than five years of *
: Be Seseaesae ‘ fs ; victed in the 1978 shooting death - appeals, Barefoot’s case was re-
‘ Brome weep tieg ui 8; of a Texas policeman, was to die. . Viewed at least 11 times and he _ psomie
ee [PERE Sot by lethal injection before dawn won at least four stays... .-.
: aie. -Tuesday in Huntsville, Texas, 4" . Mrs. Barfield nae said. she
SRoraa Mrs. Barfield, .52, scheduled to. AGL 3 wits
aoe f die Friday by lethal injection, Dar ik ce
5 wa i
a i Miao ee sans 42 “2 Monday, October 2, 1984 THE TUSCALOOSA NEWS |
vy . There. apparently was little Tee
saad ‘,. “© “ hope that Knighton, his latest ap-»
4 '. peals turned down by the U.S.
Se alibety : Supreme Court and the state Par-
. d don Board, would. be spared ex-
| Rey cape “-ecution -unless .Gov. Edwin.
ae ~ oa Edwards intervened. Edwards
me ! | : “
teers xia Mae ,
RE ee eee’ |2 Killers in Louisiana sy Texas
Oe eee ea Are Executed Only Minutes Apt i
ater Ss aay ah ae SOF ate es
oy ha Bo tt EA, AMS eS By The Associated Press ;
Earnest Knighton Jr. said he was fis fven a Ml Nearing, bur the recheet!
Ae SRR _|going home to heaven’ yesterday | was denied and a judge refused to stay
; wickets -..°.. |when he was executed in Louisiana for | her execution.
| ie s Biss murdering a filling station owner, | Before his death, Mr. Knighton
a RON i bt minutes before Thomas Andy Barefoot | handed the warden a statement ex-
F = eatin em tec tng spaiomite. | ometateter nanan ease
: u rE : hk ton, 38 rs old, who had ce S' ’ =
DESL E oa tN OSS Er ap Seem Sf te Gieciric chair killed in a robbery March 17, 1981, as
me OES ; give himself “a little bravery,” died in | Mr. Shell’s wife rere aad te
; : the chair at 12:17 A.M., Central stand- | | The statement said drugshad caused °} _
‘ - ard time: according to ’prison officials Mr. Knighton, an addict and alcoholic, eo ee

in Angola, La.

“Mr. Barefoot, 39, who had said God
would intervene, died of lethal injec-
tion seven minutes later, the Texas At-
torney General, Jim Mattox, said at
the state prison at Huntsville. . - -

: Opponents of the death penalty and
supporters marched outside the sites of
both executions. Demonstrators favor-
ing exeuction in Huntsville carried a

cardboard model of a hypodermic nee-
dle, chanting, “Hit me with your best
sh
-. The sapeues Court voted ‘Monday, 7
to 2 in both cases, not to stay the sen-
tences, the 11th rejection in more than
five years for Mr. Barefoot, who be-
: A ws f came the 28th person put to death in the
- apes eee er reson) United States since the Supreme Court
, his BORE re Baw Seis go. ; oe ie in 1976 allowed pores to restore the
| death penalty, ef Ge 5

This week ie. could 4 bring the first
= United States execution of a woman in
=S<2<|92 years. Margie Velma Barfield, 52, is

~ “| scheduled to die in North Carolina on
Friday by lethal leant for poisoning
her fiancé in 1978. .

The North Carolina ‘Su

refused yesterday to halt

== Barfield had argued in

.| Shell’s family and frien

-worker from New Iberia, La., main-

yite Sc Roo
reme Court.
thar ts the dagia:
upholding a ruling earlier day in *
Robeson County Superior Court. Law- ’

steric academe

to commit the crime. ;

“T am sorry, more sorry than I can 9
say, that Mr. Shell is dead, and that I’m”
responsible,” the statement said. “I. { . ..4
feel sorry for Mrs. Shell, and allof Mr. . =} >”

Mr. Knighton began reciting the 23d ~~ 4
Psalm as he approached the electric -
chair. As he was strapped in he re-
peated over and over, “I’m going
home, I’m gring home, Bria. ype dprcemc
to heaven.” ;

Mr. Barefoot, a ‘former oilfield —

tained his innocence but also expressed . f itn rage
regret over the Aug. 7, 1978, death of 3 Fe ea Ne ts,
the police officer, Carl LeVin, in .
Harker Heights, Tex. »- + ee $y ee sae

“T hope one day we can look back on : i eee ae \
this evil like we do the witches as oe ;
burned at the stake,”’ he said. ‘“‘I want
pt dng eg 8s emo
against them.” Pa

As the poison entered his veins, he —
choked and . Doctors declared y
him dead four minutes later. =.

Mr. Knighton, who admitted the kill-
ing but said it had been an accident, at-
tracted national attention when the.
Congressional Black Caucus com- ‘
plained that his death sentence was ra- ~
cially motivated. Mr. Knighton is -
black, his victim was white and the-.-....
Py coat poutnnces Mes sae Se Yaa 3 aes


EXECUTION ALERT = *

TEXAS Tuesday, Oct. 30 12:01 am LETHAL INJECTION

THOMAS ANDY BAREFOOT, a 39 year old white man, is scheduled to be executed by lethal
injection. He was convicted in 1978 of the August 7, 1978, killing of a police officer.
His current attorney is Will Gray 713-759-0585.

Texas executions have been the occasion for a Roman circus atmosphere of cheering pro-
death penalty supporters chanting "Kill him kill him" outside the prison.

SUGGESTED ACTIONS:
1). Support a request for commutation to a life sentence:

Board of Pardons and Parole

PO Box 23401

711 Stephen F. Austin Building
Austin, TX 78711

512-459-2700

2) Ask health professionals to speak out against the use of medical personnel and
techniques in executions; letters to the editor of the local paper or to their
professional journal raising this issue would be helpful.

3) -Write a letter to the editor of your local paper and/or to your state legislator
pointing out the way in which executions are cheapening the value of life.

For more information:

National Execution Alert Network: 402-474-6575/402-435-3100

NEW FEATURES OF EXECUTION ALERTS:
Note that the top of the front page has a number 84-A. From now on each alert will be
numbered (84-B, 84-C, etc) so that you will know if you are missing one. Another new
- feature will be an update on past alerts and a list of pending executions.

UPDATE:

Charles Kenneth Foster, scheduled to be executed jn Florida on Oct. 16, received an
unexpected indefinite stay from the Federal District Court. A date for a hearing on
various issues is still to be scheduled.

STILL PENDING:

Oct. 30: Louisiana Ernest Knighton

Nov. 2: North Carolina Velma Barfield
Nov. 9S: Missouri Gerald Smith

Nov. 21: Virginia Morris Mason

GOOD NEWS:

On Thursday, Oct. 18, the Massachusetts Supreme Judicial Court overturned the state's
death penalty statute on the grounds that it violated the state constitution. One
unconstitutional provision was that a plea of guilty in a capital case would automatically
exempt a person from a death sentence,while a person who pled not guilty, went to trial,
and was convicted, faced the risk of the death penalty for exercising the right to trial.

MORE ON OTHER Sibe D

pci
A 3l-year-olg Patrolman With the Harker Heights, Te

Police Department WaS sH®8t and Killeg

Suspect in

fe)
Of his Patrol]
Suspect when the 33-

‘ © victim
was Westioning the
Year-old male allegedly Produced a3 -25-caliber
andgun, and without Ring, shot the Patrolman. The officer ——
who had 3 Se OR aa ©xperience, died at the
Scene from 2 gunshot wound to the head. The Subject €SCaped,
but was S bsequently arrested, ried, convicted, and awe
to death for the Patrolman's murder,
Virginia

Wyers cite
evidence to
Stay ©xeCution
ff LUNTS LE

0 e in the death ¢ :
ber Where, on Dec. 7, Charli oe


c
f
A
8
3
a
@

ld

nation of Barnard’s competency to be execut-
ed is a fact-intensive inquiry, the point at
which Barnard’s counsel should have initi-
ated that inquiry is equally fact-intensive.
Although after a hearing, the district court
might be in a position to conclude that Bar-
nard’s competency claim should have been
raised in his first round of state and federal
habeas petitions (initiated in October 1988),
we cannot say, absent a more complete factu-
al development, that this is true.

[10] With the foregoing discussion in
mind, we believe that the district court was
incorrect in denying counsel’s motion for ap-
pointment under 21 U.S.C. § 848(q)(4)(B).
On its face, § 848(q)(4)(B) does not condition
the appointment of counsel on the substan-
tiality or nonfrivolousness of petitioner’s ha-
beas claims.® Compare 21 US.C.
§ 848(q)(4)(B) with 28 U.S.C. § 1915(d)
(“The court may request an attorney to rep-
resent any such person unable to employ
counsel and may dismiss the case if the
allegation of poverty is untrue, or if satisfied

that the action is frivolous or malicious.”).

Even if judicial interpretation of
§ 848(q)(4)(B) may later condition the ap-
pointment of counsel on some level of sub-
stantiality or nonfrivolousness in a petition-
er’s habeas claims, we cannot say that in the
instant case, without the benefit of a hearing
on the subject of whether counsel should
have raised earlier the matter of his compe-
tency to be executed, Barnard’s competency
claim was such that the district court should
have denied counsel’s motion for appointment
under § 848(q)(4)(B). The district court
therefore erred in denying counsel’s motion
on abuse of the writ grounds. Counsel has a
similar motion pending in this court, and in
view of the shortness of time remaining be-
fore his execution, we grant the motion.

[11] The district court will be required to
hold a hearing at some future date to deter-
mine whether and in what amount fees are to

show that a fundamental miscarriage of justice
would result from a failure to entertain the
claim.” [d.

8. Section 848(q)(4)(B) provides in pertinent part
that

[iJn any post conviction proceeding under sec-

tion 2254 or 2255 of Title 28, seeking to vacate

BARNARD v. COLLINS 879
Cite as 13 F.3d 871 (5th Cir. 1994)

be awarded Barnard’s appointed counsel. As
the district court is already aware, counsel
waited more than ten weeks from the time
the Court of Criminal Appeals denied Bar-
nard relief on his second state habeas peti-
tion to file a second federal habeas petition
and a motion to be appointed with the dis-
trict court—only a few days before Barnard’s
scheduled execution. At the hearing, the
district court should determine whether
counsel, as an officer of the court, had good
cause for delay in filing Barnard’s second
habeas petition and if not, whether the
amount of fees to which counsel would other-
wise be entitled should be reduced as a sanc-
tion. See Thomas v. Capital Security Servs.,
Inc., 836 F.2d 866, 878 (5th Cir.1988) (en
banc) (“(TJhe basic principle governing the
choice of sanctions is that the least severe
sanction adequate to serve the purpose
should be imposed.”).

IV. CONCLUSION

For the foregoing reasons, we DENY Bar-
nard’s application for a CPC and his motion
for stay of execution. We REVERSE that
portion of the district court’s order denying
appointment of counsel under § 848(q)(4)(B).
We grant the motion for appointment of
counsel under § 848(q)(4)(B) and Barnard’s
application for in forma pauperis status.

Ww
fey E Key NUMBER SYSTEM
tT

or set aside a death sentence, any defendant
who is or becomes financially unable to obtain
adequate representation or investigative, ex-
pert, or other reasonably necessary services
shall be entitled to the appointment of one or
more attorneys and the furnishing of such oth-
er services....


876 13 FEDERAL REPORTER, 3d SERIES

Discussion

Barnard argues that his application for
CPC should be granted because he is pres-
ently incompetent to be executed under Ford
v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595,
91 L.Ed.2d 335 (1986). He asserts that the
state trial court’s finding that Barnard was
competent to be executed, issued after an
evidentiary hearing held on July 22, 1993, is
not entitled to be given a “presumption of
correctness” in federal eourt because the
state court’s treatment of the competency
issue was not “full and fair.”

[4] Section 2254(d) directs federal habeas
courts to presume the correctness of a state
court

determination after a hearing on the mer-

its of a factual issue ... unless the appli-

cant shall otherwise establish or it shall
otherwise appear, or the respondent shall
admit

(2) that the factfinding procedure em-
ployed by the State court was not ade-
quate to afford a full and fair hearing; ...

(8) or unless ... the Federal court on a
consideration of such part of the record as
a whole [on which the factfinding was
based] concluded that such factual deter-
mination is not fairly supported by the
record.

28 U.S.C. § 2254(d); see Sumner v. Mata,
449 U.S. 589, 546-47, 101 S.Ct. 764, 768-69,
66 L.Ed.2d 722 (1981). A state court’s con-
clusion regarding a petitioner's competency
to be executed is entitled to such a presump-
tion. Garrett v. Collins, 951 F.2d 57, 59 (6th
Cir.1992); see Ford, 477 U.S. at 410-411, 106
S.Ct. at 2602-2603.

[5] The state habeas court found, after a
full evidentiary hearing in which the court
was able to review both live and affidavit

2. This court has determined that the plurality
opinion in Ford was made a majority opinion by
the concurring opinion of Justice Powell, whose
enunciated standard for competency to be exe-
cuted was that a person know the fact of his
impending execution and the reason for it. Low-
enfield v. Butler, 843 F.2d 183, 187 (5th Cir.
1988). Accordingly, this court has adopted the
standard as enunciated by Justice Powell as the
Ford standard. See, e.g., Garrett v. Collins, 951

testimony, that Barnard was competent to be
executed under the Ford standard, i.e., that a
prisoner must understand the fact of his
impending execution and the reason for it.
During the hearing, at which Barnard was
present but did not testify, Barnard present-
ed, in addition the testimony of his former
attorney, the live medical testimony of Dr.
Philip Murphy, a psychologist, and Dr. Allen
Childs, a psychiatrist, both of whom had
recently interviewed Barnard.’ They agreed
that Barnard suffers from delusions that he
is being persecuted by various minority
groups. In rebuttal, the State presented the
live testimony of Dr. Edward B. Gripon, who
had been ordered by the court to examine
Barnard and who testified that although Bar-
nard suffered serious delusions, Barnard un-
derstood the fact of his impending execution
and the reason for it. In one of its factual
findings, the state court stated that
[b]ased on the reports and evaluations and
testimony of Applicant’s and the Court's
mental health experts, Texas Department

of Criminal Justice medical records, and .

the sworn statements of TDCJ personnel,
the Court finds that Applicant compre-
hends the nature, pendency, and purpose
of his execution. Applicant knows that he
was found guilty of killing a young boy in a
robbery in Galveston County and that his
pending execution was because he had
been found guilty of that crime. He knew
of the date of his scheduled execution and
that it would be lethal injection by use of
an intravenous injection. Applicants’ ex-
perts do not establish that he is unaware of
the fact of or the reason for his impending

execution, but rather that his perception of .

the reason for his conviction and pending
execution is at times distorted by a delu-
sional system in which he attributes any-
thing negative that happens to him to a
conspiracy of Asians, Jews, Blacks, homo-
sexuals, and the Mafia (emphasis added).

F.2d 57 (Sth Cir.1992); Lowenfield, 843 F.2d at
187.

3, Although Barnard had also submitted other
medical reports and affidavits to the state trial
court, the court found that only the reports of
Drs. Murphy and Childs related to a current
diagnosis of Barnard.

ti, See

The state court th
knew that he was 9:
why he was going t:
the finding required
competency.‘

{6] Barnard cor
should not be given :
ness under § 225:
court’s hearing cou!:
“full and fair” if th:
testimony of seven
favor of one court-a
ever, we agree with
unexpected outcom¢
render the state pro
when Barnard was
dentiary hearing.
Barnard’s contentic
ford him a “full ar

Barnard also arg
finding of competer
presumption of cor
determination is ne
record.” This argu
it. Although the
various affidavits
Barnard’s compete
filed, the court four
Drs. Murphy and (
timony for Barnar:
to Barnard’s curre”
who testified for
recently reviewed
and interviewed B
mony related to B:
This court has ma‘
to a state court’s
portant ‘where a °
terminations base:
that was consider
court.’” Self v. C
(5th Cir.1992) (qu:
547, 101 S.Ct. at
—, 113 S.Ct. 16

4. We note that 5
preme Court’s dec
U.S. —-, 113 §
(1993), for the pro
prisoner’s compet:
clude an “‘assista’
Godinez, the Supr«
tency standard in
in the context of
or pleading guilty


The state court thus found that Barnard
knew that he was going to be executed and
why he was going to be executed—precisely
the finding required by the Ford standard of
competency.‘

[6] Barnard contends that this finding
should not be given a presumption of correct-
ness under § 2254(d) because the trial
court’s hearing could not possibly have been
“full and fair” if the trial court ignored the
testimony of seven impartial witnesses in
favor of one court-appointed witness. How-
ever, we agree with the district court that an
unexpected outcome does not automatically
render the state procedure unfair—especially
when Barnard was afforded a full-blown evi-
dentiary hearing. We thus find meritless
Barnard’s contention that Texas did not af-
ford him a “full and fair” proceeding.

Barnard also argues that the state court’s
finding of competence should not be given a
presumption of correctness because such a
determination is not “fairly supported by the
record.” This argument, too, is without mer-
it. Although the state court had before it
various affidavits and doctors’ reports on
Barnard’s competency which Barnard had
filed, the court found that only the reports of
Drs. Murphy and Childs—who gave live tes-
timony for Barnard at the hearing—related
to Barnard’s current diagnosis. Dr. Gripon,
who testified for the State and who had
recently reviewed Barnard’s medical records
and interviewed Barnard, also gave live testi-
mony related to Barnard’s current diagnosis.
This court has made it clear that “deference
to a state court’s findings is particularly im-
portant ‘where a federal court makes its de-

terminations based on the identical record

that was considered by the state appellate
court.’” Self v. Collins, 973 F.2d 1198, 1213
(5th Cir.1992) (quoting Sumner, 449 U.S. at
547, 101 S.Ct. at 769), cert. denied, — US.
——, 113 S.Ct. 1618, 123 L.Ed.2d 173 (1993).

4. We note that Barnard’s reliance on the Su-
preme Court's decision in Godinez v. Moran, —
U.S. ——, 113 S.Ct. 2680, 125 L.Ed.2d 321
(1993), for the proposition that the standard for a

prisoner’s competency to be executed should in-

clude an ‘‘assistance prong” is misplaced. In
Godinez, the Supreme Court held that the compe-
tency standard in the context of standing trial or
in the context of waiving one’s right to counsel
or pleading guilty were the same; that a defen-

BARNARD v. COLLINS 877
Cite as 13 F.3d 871 (Sth Cir. 1994)

Section 2254(d) “ ‘gives federal habeas courts
no license to redetermine credibility of wit-
nesses whose demeanor has been observed
by the state trial court’” or to disagree with
the weight the state court gave to the testi-
mony of those witnesses whose demeanor the
federal habeas court did not observe.: Jd. at
1214 (quoting Marshall v. Lonberger, 459
U.S. 422, 434, 103 S.Ct. 848, 850, 74 L.Ed.2d
646 (1983)).

{7] Barnard also argues that. the state
court’s finding of competency should not be
given § 2254(d) deference because such a
finding is a mixed question of law and fact
and thus not subject to a presumption of
correctness under § 2254(d). The cases to
which Barnard cites for support of this argu- |
ment, however, concern the issue of compe-
tency to stand trial and not the issue of
competency to be executed. This court has
previously determined that a state court’s
finding of competency to be executed is enti-
tled to a presumption of correctness under
§ 2254(d). See Garrett, 951 F.2d at 59; see
also Ford, 477 U.S. at.410-11, 106 S.Ct. at.
2602 (explaining that a federal habeas court.
is required to hold an evidentiary. hearing on
the issue of the petitioner’s competency to be
executed if the petitioner shows that one of
the statutory exceptions to § 2254(d) is appli-.
cable in his specific case). Even if we were
to conclude, however, that competency to be
executed is a mixed question of law and fact,
the pure factfindings that underlie the state
court’s determination that Barnard is compe-
tent to be executed are entitled to a pre-
sumption of correctness, and based on those
factfindings, we would reach the same legal
conclusion.

[8] For the foregoing reasons, we cannot
determine that Barnard has made a substan-
tial showing of a denial of a federal right.

dant have a sufficient present ability to consult
with his lawyer with a reasonable degree of
rational understanding and a rational as well as
factual understanding of the proceedings against
him. Jd. at ——, 113 S.Ct. at 2686. The Godinez
Court did not, however, mandate the addition of
an “‘assistance prong” to the standard for deter-
mining whether a person was competent to be
executed.


SR

Re en Oe a Ee a

878 13 FEDERAL REPORTER, 3d SERIES

Accordingly, we deny his application for a
CPC and his motion to stay his execution.®

III. APPOINTMENT OF COUNSEL
UNDER § 848(q)

[9] Barnard also argues that the district
court erred in denying his motion to have
counsel appointed for him, pursuant to 21
U.S.C. § 848(q)(4)(B).6 Although we did not
address the question whether Barnard
abused the writ for purposes of his entitle-
ment to habeas relief on the merits, we ad-
dress the question of abuse of the writ here
in relation to the district court’s denial of
counsel’s motion to be appointed under
§ 848(q)(4)(B).

The district court dismissed Barnard’s pe-
tition for abuse of the writ because the court
determined that it was “abundantly clear”
that the question of Barnard’s sanity was
extant at the time of the filing of his first
habeas petition. Nonetheless, we note that
the issue of Barnard’s sanity was not urged
at trial (Barnard himself testified at trial) or
on direct appeal to the Texas Court of Crimi-
nal Appeals, except as it was incident to his
claims relating to voluntary intoxication. We
also note that more than five years has tran-
spired since Barnard’s first scheduled execu-
tion\date after his conviction became final
and that by the district court's own admis-
sion, there is evidence in the record that
Barnard’s condition has persistently wors-
ened over the years. ,

Further, Texas employs its own abuse of
the writ doctrine, which requires in certain
instances that a petitioner show “good cause”
why claims urged in a second or successive

5. We note that the district court ordered that the
parties file no further pleadings in the district
court on the issues raised by Barnard’s second
habeas petition and associated filings, “including
motions to reconsider and the like.” The Feder-
al Rules of Civil Procedure give litigants the right
to file certain post-judgment motions, and we
think it ill-advised to issue such a directive as a
routine matter.

6. Although a CPC is required in order to appeal
the denial of habeas corpus relief, there is no
such requirement in order to appeal the denial of
the appointment of counsel under § 848(q)(4)(B).
See Moreno v. Collins, No. 94-50026, slip op. at 3
n. 1 (Sth Cir.1994).

petition were not urged earlier or face dis-
missal of those claims. See TEx.CODE
CrimP. art. 11.07 (Vernon 1977 & Supp.
1993); Ex parte Emmons, 660 S.W.2d 106,
110 (Tex.Crim.App.1983); Ex parte Cary, 511
S.W.2d 523, 525-26 (Tex.Crim.App.1974).
Although the showing of “good cause” which
Texas requires may well not be the same as
the showing of “cause and prejudice” re-
quired in federal cases, we find it relevant
that abuse of the writ was not raised at the
state level with respect to Barnard’s claim of
incompetency to be executed in his second
state habeas petition and that the Texas
Court of Criminal Appeals stayed Barnard’s
execution on the eve of the set execution date
and mandated an evidentiary hearing on the
issue of competency.

Moreover, our research indicates no re-
ported decision in which a federal circuit
court or the Supreme Court has denied relief
of a petitioner’s competency-to-be-executed
claim on grounds of abuse of the writ. As-
suming without deciding that the abuse of
the writ doctrine is nonetheless applicable to
a petition for federal habeas relief premised
on a Ford claim, the district court’s determi-
nation that Barnard’s claim constituted an
abuse of the writ because he could not show.
“eause and prejudice” for his failure to raise
this claim in his earlier petition seems pre~,
mature in the absence of an evidentiary hear-
ing or other appropriate proceeding to deter-
mine exactly when Barnard’s counsel could
have discovered through reasonable diligence
and investigation that Barnard was incompe-
tent to be executed.” Because the determi-

7. In McCleskey v. Zant, the Supreme Court ap-
plied the “cause and prejudice” analysis it had
adopted for cases of procedural default to an
abuse of the writ inquiry. 111 S.Ct. at 1470.
Thus, the Court determined that to excuse his
failure to raise a claim in a previous habeas
petition, the petitioner had to show cause for not
raising his claim earlier or face dismissal of his
petition for abuse of the writ. Jd. “The require-
ment of cause in the abuse of the writ context is
based on the principle that petitioner must con-
duct a reasonable and diligent investigation
aimed at including all relevant claims and
grounds for relief in the first federal habeas
petition.” Jd. (emphasis added). The Court also
stated that “if petitioner cannot show cause, the
failure to raise the claim in an earlier petition

may nonetheless be excused if he or she can

2, UREN Seg ae aie

peaee

= ae 138i

nation of Barr
ed is a fact-i
which Barnar
ated that inc
Although afte
might be in 2
nard’s compe:
raised in his |
habeas petitic
we cannot sav
al developme’

{10] With
mind, we beli
incorrect in «
pointment ur
On its face, §
the appointm
tiality or nor
beas claim:
§ 848(q)(4)(B
(“The court r
resent any
counsel and
allegation of
that the act
Even if
§ 848(q)(4)(
pointment ©
stantiality o
er’s habeas «
instant case
on the sub
have raised
tency to be
claim was s'

have denied

under § &
therefore &
on abuse of ©
similar mot
view of the
fore his ex:

{11] Th
hold a hear
mine wheth

show that
would res
claim.” /

8. Section
that

[ijn any

tion 225


334 VII. AMERICAN STATE TRIALS.

he had not told any such thing.
Told him that he ought to have
come to me instead of going to
others. He said he did not go
to them. Told him I thought I
ought to have been the first man
that he should tell if he had seen
my son. Ballew made no reply.
The last letter I got from my
son was dated October 31, at
Shreveport; the last letters be-
fore that was about the 15th, 16th
or 17th of October, mailed at
McKinney, Texas; there were
three of them. There was a
young lady—Miss Smith—whom
my son waited upon before he
went away; she lived in Hancock
County in this State. Ballew,
some time after his return, ap-
peared uneasy about my son, and
said he would go up and .see
Miss Smith to find out when she
had heard from him. When he
came back he told me that Miss
Smith had a letter from my son,
dated November 12, as near as
he could make out, mailed in
Colorado; said he saw the en-
velope, did not see the letter. He
brought back an oilcloth over-
coat and a pair of socks that my
son took away with him. My
son took the deed to his farm
with him; the deed was found in
Ballews’ trunk. My son executed
a note to Ballew for $2,000; I
and my son a note for $5,000, as
before stated. After he came
back I gave my note for $2,500,
and gave him up his note for
$1,500, which he had given me
for the horses. After he came
home he told me he had given
my son $2,500 to bring home as
a loan to me, and $1,500 to pay
off the note the gave me for the
horses. He afterwards asked me
and I gave him my note for
$2,500, which he said he gave

my son for me. When arrested
for obtaining the notes under
false pretense, he gave me back
the $2,500 and $5,000 notes. He
said after he came back that he
took $5,000, deposited in the
First National Bank of this city
and then borrowed $2,000 of a
friend in Missouri, the time he
went to attend a meeting of the
fraternity, and paid off the
$7,000 note for the borrowed
money of Dougherty. He told
me, after he returned from the
South, that he had deposited
$5,000 and $2,000 notes with
Dougherty as collateral security
for the loan of the $7,000; that
Dougherty needed the money,
and had disposed of the notes at
the bank, and that he (Ballew)
had taken his $5,000 and bor-
rowed $2,000 and settled for
both notes; that he had saved
$1,500 by the operation.

On the trip south Ballew said
he and my son started to Texas
by the overland route; they ex-
pected to go by the way of Bax-
ter Springs, Kansas, through the
Indian territory into northern
Texas, then to Quitman and Jef-
ferson; Ballew told me after his
return, when they got to Ezra
A. Dougherty’s he let them take
a shot gun with them on the trip.
He first said he did not know
what beeame of it, but told me
afterward that my son took the
barrel out of the stock and put
them in his trunk. The deed to
my son’s 60 acres of land upon
which the trust deed was exe-
cuted, was found in Ballew’s
trunk after he was arrested. Do
not know how my son came to
take it with him, and soon after
Ballew eame back he told me
that my son had all his own and
Ballew’s papers in his trunk.

STEPHEN M. BALLEW. 335

After Ballew came back, told
him that I would like to have my
son hunted up; he said that he
had employed a detective of St.
Louis to hunt him up, and that
he, the detective, would employ
all the chief detectives in the
country, and that he expected to
hear from him soon; told him
McGraw was very successful, I
would like to have him em-
ployed; he said he did not get
MeGraw because he was such a
rascal. The black cloth pants
shown me have seen before; do
not know whether they were my
son’s or not; Ballew had them
when he came back, and said they
were his; there were several
rents in them; he told me he
tore them on the briers while
shooting turkeys in Texas; the
rents have been sewed up since.

Cross-examined. Cannot tell
whether there are other letters
or not that have come into my
hands within the year past, from
either Ballew or my son, besides
these introduced here. There
were more letters that came into
the family; I do not know where
they are now; some of the let-
ters read here were in the pos-
session of my daughter, Ballew’s
wife; some of the letters intro-
dueed were found in his trunk
after the arrest. First time I
saw the trunk was at Mr. Jacobs’
clothing store, in this city, after
Ballew came back. When they
started south my son had a large
trunk which was bought at
Jacobs’; he and Ballew had but
the one trunk when they left;
think they put their clothes in
that trunk together; think they
both used it; Ballew did not
bring back that trunk with him.
When they left, my son expect-
ed to be gone until the middle

of November; Ballew said he
might be gone a year. The first
talk about the co-partnership be-
tween them that I know of, was
at my house. A short time be-
fore they left there was an ar-
ticle of agreement between them.
My son furnished an outfit, wag-
on harness, and team. Ballew
came back on the 18th of Novem-
ber and was married about the
1st of December. After he came
back he showed me an order, or
receipt, from my son; the re-
ceipt is in my son’s handwriting,
all except the “1,” 1870, in the
date of it, that is not my son’s.
There was an understanding
when they went away that Bal-
lew was to send me some money
after he got down there. I gave
my note for the $2,500 the re-
ceipt called for. Ballew took
the note that has been taken up.
There was a note of $2,000 exe-
cuted by my son to Ballew and
secured by a deed of trust. Do
not know where the note and
deed of trust are now; saw the
deed some time since at the po-
lice station, I think; don’t be-
lieve I have had possession of
the note or deed since they were
executed. The note and _ trust
deed were taken away by Bal-
lew when they started for Tex-
as. Is my recollection that both
my son and Ballew asked me to
sign the notes. My son stated
that the consideration for the
notes was that Ballew was fur-
nishing all the capital, and the
notes were to secure the $7,000
borrowed from Dougherty. Bal-
lew said he had bought in St.
Louis $22,000 worth of goods,
which were to be shipped south.
Got a letter from my son, in
which he spoke of the profits
they were making out of the trip.

330 VII, AMERICAN STATE TRIALS.

John W. Golden. Resided in
Adams County, Ill, 30 years;
James P, Golden was my son,
and lived with me up to last
September. He would have been
28 last November; he always
lived with me and worked on
the farm. Am acquainted with
prisoner, Ballew; saw him first
11 years ago in Kentucky; next
about six years ago. He came
to my house and stayed about
one week; said he was going to
Missouri. Next after that about
three years ago he and a man
named Moore came to my house
from Missouri; he said he was
trading in stock. Did not see
him again until February two
years now; met him there in
Quincey. Next saw him some
time last fall one year ago. He
came to my house from Ken-

bought hogs in Missouri, and
sold them again, and said he
made large profits. Wanted to
know what I would charge to
keep him and two horses through
the winter; told him I did not
know, as I never done that kind
of business. He went away, and
came back afterwards. He told
me he had some contracts for
horses in the South, and that I
had two horses he thought would
fill the contract, except color.
Said he had contracted with a
man named Williams. Agreed
to let him take four horses of
mine south. Talked about me
or my son going on that trip. He
left with the horses in Febru-
ary, one year ago. I accom-
panied him to Quiney; he said
he would be back in June and
bring the money back, or express

STEPHEN M. BALLEW. 331

lions, a yellow and a roan, and
mare and gelding, one a sorrel,
the other a bay; the best stal-
lion was worth $350 or $400, the
other $250 or $300; the other
two were worth $225 and $175.
[le was to take the horses to
Shreveport, La.; he said it ought
to be worth 10 per cent commis-
sion. I heard from him first af-
ter he left, by letter, from St.
Louis; have the letter here.
When he came back he told me
he sold three of the horses for
£1,080; the other died at Cape
(Girardeau, Mo., on their way
down; he said the horses were
insured in a St. Louis company
for $800; he said he sold the
horses on eredit, with good se-
curity; that when he got there
stock was low and dull; he
thought he could make better

when he came back that he could
get the insurance on the dead
horse, he supposed; said after-
wards that owing to some infor-
mality in the policy he did not
get the money; said he had some
kind of a suit and got beat; said
he had a lot of mules, 27 of
them died on the trip; that they
were insured, and he got the
money on them. He got back
some time in May, 1870; did not
bring any money with him; said
he would do what was right
about it; said he and his part-
ner, Nathaniel J. Dougherty, took
227 mules and 17 horses south.
He afterwards had a settlement
with me; he allowed me $1,500
for the four horses and shot gun
I let him have. He said it was
his fault that the insurance was

‘lost. Told him I did not make

tucky; he talked about having it. The horses were two stal-

late of said county and State, on the 21st day of October, in the
year of our Lord, one thousand eight hundred and seventy, with
force and arms, in the County of Collin, and State aforesaid, did,
in and upon the person of one James P. Golden, unlawfully, fe-
loniously, willfully, and of his malice aforethought, make an assault;
and that the said Stephen M. Ballew, a certain gun, the same being
then and there a deadly weapon, charged with gunpowder and
leaden ball, which said gun he, the said Stephen M. Ballew, in his
hands then and there had and held, then and there unlawfully fe-
loniously, willfully and of his malice aforethought did discharge
and shoot off, at, to, against and upon the said James P. Golden,
and the said Stephen M. Ballew, with the leaden ball aforesaid,
out of the gun aforesaid, then and there, by force of the gun-
powder aforesaid, by the said Stephen M. Ballew discharged and
shot off as aforesaid, then and there unlawfully, feloniously, will-
fully and of his malice aforethought, did strike, penetrate and
wound him, the said James P. Golden in and upon the head of him,
the said James P. Golden, giving to him, the said James P. Golden,
then and there, with the leaden ball aforesaid, discharged and shot
out of the gun aforesaid, by the said Stephen M. Ballew, in and
upon the head of him, the said James P. Golden, one mortal wound
of the depth of five inches, and of the breadth of one-half an inch,
of which said mortal wound the said James P. Golden did then and
there die. And so the Grand Jurors aforesaid, upon their oath
aforesaid, do say that the said Stephen M. Ballew, him, the
said James P, Golden, in the manner and by the means aforesaid,

profit on eredit; said at first any charge for the dead horse;

unlawfully, feloniously, willfully and of his malice aforethought,
did kill and murder, against the peace and dignity of the State.
And the Grand Jurors aforesaid, upon their oath aforesaid, do
further present in the District Court for said county and State,
that the said Stephen M. Ballew, on the 21st day of October, 1870,
in the county and State aforesaid, in and upon the person of the
said James P. Golden, did unlawfully, feloniously, willfully, and
of his malice aforethought, make an assault, and that the said
Stephen M. Ballew, with a certain heavy instrument, to the Grand
Jurors aforesaid unknown, the same being then and there a deadly
weapon, which said heavy instrument he, the said Stephen M. Bal-
lew, in his hands then and there had and held, then and there un-
lawfully, feloniously, willfully and of hhis malice aforethought, did
strike, beat, wound and bruise him, the said James P. Golden in
and upon the head and forehead of him, the said James P. Golden,
giving to him, the said James P. Golden, then and there, with the
heavy instrument aforesaid, one mortal wound which fractured the
skull of him, the said James P. Golden, of which said mortal wound
the said James P. Golden did then and there die. And so the
Grand Jury aforesaid, upon their oath aforesaid, do say that the
said Stephen M. Ballew did kill and murder James P. Golden in
the manner and by the means aforesaid, unlawfully, feloniously,
willfully and of his malice aforethought, against the peace and
dignity of the State. Jostan NICHOLS,
Foreman of the Grand Jury.


332 VII, AMERICAN STATE TRIALS.

he gave me his note for $1,500
just before he started south the
last time. My son, James P.
Golden, went with him on the
last trip, on the 13th Septem-
ber last. He told me my son
could make as much on the trip
as he could farming three or
four years; he said he had made
a great deal of money himself
on previous trips. After he came
back from his first trip south he
told me a man named N. J.
Dougherty took sick at St. Louis,
and kept sick until they got to
Camden, Arkansas, where he
died; that he (Ballew) was left
by Dougherty about $9,500, by
will, the amount left after the
debts were paid; read me what
purported to be Dougherty’s
will. Just before he started
away, last September, he told
me he had the $9,500; this was
before any notes were executed
between us. He said he had 211
Texas steers over at Poindex-
ter’s, in Missouri, and herded
there; that he sold them for $4.40
per hundred pounds; that the
steers averaged 1,112 pounds
each. He told me he owned a
lot of land near Baxter’s
Springs, Kansas, and twenty
acres near Shelbina, Mo., and
had some ponies and yearling
steers over in Missouri. Said
he had money in the bank at La-
Grange, Mo.; that he let Ezra
A. Dougherty have some money
from the LaGrange bank to pay
on a note held against Dough-
erty by the First National Bank
of Quincey; the amount was
$1,500; they exchanged checks
in some way. He told my son
James that he would furnish the
means if my son would go with
him; that he should be a full
partner in all that was made;

there was an article of agree-
ment between them. I have not
seen it since, and do not know
where it is. The agreement was
that my son was to pay him in-
terest, if they had luck, on one-
half of the money invested; Bal-
lew to furnish the means. He
said he had a lot of money ow-
ing to him, besides the proceeds
of his cattle; that he had bor-
rowed $7,000 of Ezra A. Dough-
erty, near Shelbina, Mo., and
had the $9,500 from the deceased
Dougherty’s estate. He said he
had purchased $22,000 worth of
goods in St. Louis, and had
shipped them south. He wanted
my son to go with him as a part-
ner and help to attend to the
business, and get one-half of the
profits, in return my son to pay
him interest on one-half invest-
ed. My son went with him; I
came as far as this city, on the
way; when we got here my son
asked me to go to Wheat’s of-
fice to have some notes and deed
of trust executed; the deed of
trust was for $2,000, upon 60
acres of land belonging to my
son, to secure $2,000 of the bor-
rowed money from Dougherty.
Then I was to sign a note for
$5,000, with my son, to secure
the remaining $5,000 of the
$7,000 borrowed; we went to
Wheat’s office, where they were
drawn up; Ballew was with my
son when he asked me to go to
Wheat’s office. Ballew told me,
after they were executed, that he
did not know that James was go-
ing to give him the notes and
deed. Told him that if I had
the notes to pay it would ruin
me. I do not recollect who first
asked me to sign the note. My
son had an outfit of two horses
and a wagon, set of new harness,

STEPHEN M. BALLEW. 333

about $400 in money; he took
a horse and mare, both peculiar;
the horse is what some would
eall a “double-jointed” horse;
the wagon was a new one, made
by Rogers of this city. He took
some clothing with him, and a
pair of extra boots. (The wit-
ness was here shown a pair of
boots.) I have seen these boots
several times before. Believe
they belonged to my son; got
them myself, out of a shop on
Hampshire street in Quincy,
upstairs; my son wore them to
Kentueky last fall and took
them with him on the trip south.
T saw the boots after Ballew came
back, at Mr. Jacobs’ clothing
store; he took them out of his
trunk and showed them to me,
and asked me if they were not
good enough to get married in?
Told him I thought so. He then
sent them to get half-soled. Bal-
lew came back November 18; my
son did not come back with him.
He never has come back. Bal-
lew said, at first, that he left my
son at Jefferson, Texas; after-
wards told me he left him at
Shreveport, La. He said he
parted with him the last night
in October, and that he (Ballew)
went from there about 150 miles
in the country to attend a horse
sale. Expected my son home
about the middle of November.
Rallew said when he went away
he did not know when he would
be back; it might be one year.
Said when he came home he ex-
pected to find James at home;
that my son had $18,500 in his
hands; he said he had $900 of his
money to furnish Ballew’s house
and a large sum to pay off his
indebtedness in Missouri; said
he had $1,500 to pay off the note
I held against Ballew, and $2,500

as a loan to me. Said he (Bal-
lew) brought $11,000 home with
him, and that he sold $350 in
gold to the First National Bank
here, and deposited $5,000. Said
he paid a man in Baxter Springs
several thousand dollars of bor-
rowed money. He said my son
would certainly be at home in a
few days; he afterwards said it
might be a year; and then again
he said it might be a year and a
half; he said there was dissen-
sion between James and his sis-
ters about a young lady, and that
was the cause of his absence. He
said Jim had his money, and did
not think that he would have
done it. He did not want any
notoriety made of the affair, and
said it had better be kept in the
family. He was engaged to be
married to my daughter before
he went away, and was married
shortly after he came back; Ist
day of December. Said he did
not want any publicity made of
it. He said that he and I could
buy stock and trade out of the
trouble. Said he had paid a po-
liceman $300 to hunt him up,
and all the police in the principal
cities knew all about it. He
expected to hear of him through
them. He stayed at my house,
but went to Missouri one time,
he said, to the State meeting of
the fraternity, which led me to
believe it was a meeting of Free-
masons. After he had been to
Missouri I asked about a report
that he had said that he had
seen my son in Missouri. Told
him that a man named McGuire
and another by the name of
Scribner had told me that he
(Ballew) said that he had seen
my son on the Missouri River,
and helped him roach and brand
some mules, Ballew said that

~


328 VII. AMERICAN STATE TRIALS.

June 6.

The Circuit Court of Hancock County met today, and under the
indictments found by the Grand Jury of Adams County, against
S. M, Ballew, Mr. Ewing appeared as Prosecuting Attorney for
the People, and formally dismissed the indictments in that court.
The prisoner was then handed over to Capt. Bush, who on the
7th of June, started with his prisoner for Texas.

McKinney, Texas, July 23.

Teday, Sunday, the prisoners effected their escape from the
county jail, there being four, including Ballew, confined. The
jail was unguarded at the time, making the building easy of
approach by designing persons, Taking advantage of
that circumstance, and the quiet of the town, the inmates of
the jail were furnished with a handspike formed in the shape
of a crowbar at the end, and made of Bois d’Are wood, a tim-
ber indigenous to that climate, and almost as hard as
iron. With that the prisoners wrenched the door from its
hinges and made their escape. The ery of a jail delivery
soon spread through the town, and immediately the citizens
were in pursuit, and in the course of two hours three of the
escaped prisoners were secured. Ballew was forced to submit
to the humiliation of being recaptured in a large corn field by
a mere boy of fifteen or sixteen years old, and marched back
to prison before the muzzle of a double-barreled shotgun,

July 24.

Today the case of Stephen M. Ballew was called.
Luchs F. Smith, District Attorney, and W. G. Ewing,’ for

the State.
J. W, Throckmorton, Thomas J. Brown and Russell De

Armond, for the prisoner.
A continuance was asked for on the plea of important wit-

2Ewinc, Wittiam G. Born MeLean County, Il Educated
Illinois Wesleyan University, Bloomington. Taught school in Ken-
tucky and studied law. Admitted to bar 1860 and practiced about
one year in Kentucky, then removed to Woodford County, Ill., and
practiced there for 18 months. Removed to Quincy 1863, City
Attorney 1865, State’s Attorney for Adams and Hancock Coun-
ties 1868-1872. Later removed to Chicago. United States District
Attorney, Chicago, 1890. Judge Superior Court, Cook County,
1892-98,

&

STEPHEN M. BALLEW. 329

nesses being absent, and upon the requisite affidavit being
filed, the Court granted the continuance to the November
term of the District Court.

November 27.

The Court stated that this was the day set for the trial of
the case of The State of Texas v. Stephen M. Ballew, charged
with the murder of James P. Golden, and asked if the coun-
sel for the State were ready for trial. The District Attorney
announced that the State was ready. Mr. Brown stated that
the prisoner was ready.

The prisoner was brought into the court room and took a
seat beside his counsel, The Court ordered that the counsel
proceed to select a jury. The venire was called and each one
questioned by District Attorney Smith touching his qualifi-
cation to serve as a juror. The day was consumed in getting
the jury, and out of one hundred and thirty men called in
and examined, the following were selected as a jury: Aaron
Bryant, Noah H. Hubbard, Martin W. Gentry, John T. Mour-
land, James B. Franklin, J. L. Kerr, M. R. Clark, James P.
Dunean, Wm. C. Mayfield, Benjamin 8. King, Henry S. Tay-
lor, Grafton Williams. After being sworn and cautioned by
the Court to refrain from any conversation with regard to
the case, they were taken in charge by the Sheriff and the court
adjourned.

JupGcE ANDREWS notified the attorneys and officers of the
court to open the cour} in the Christian Church, as that was
the largest room in the town, the court room being too small.

November 28.

The court met in the Christian Church at 9 o’clock. The
room, 40 by 80 feet, was crowded. The jury were called and
answered to their names. The indictment was then read. It
was the common form of an indictment for murder, contain-
ing two counts.?

3In the name, and by the authority of the State of Texas, the
Grand Jurors for the State of Texas, duly impanelled, charged and
sworn to inquire into, and a true presentment make, of all offenses
committed in the County of Collin, upon their oath, present in the

* District Court for said county and State, that Stephen M. Ballew,


Texas County Sheriffs
COLLIN COUNTY

nney, signer of the
he county seat until
as sheriff with one

and was named for Collin McKi
13, 1846 with Buckner aS t

ated April 3, 1846 from Fannin County
even men who have served

endence. The county was organized on July

Collin County was cre
me the county seat. There have been thirty-s

Texas Declaration of Indep
1848 when McKinney beca
of them serving twice.

sheriff on July 13, 4846 and served until August 7, 1848.
5, 1850, August 2, 4952 and served until August

on August 7, 4848; re-elected August

KING S. CUSTER was elected the first

ROBERT FITZHUGH was elected

7, 1854.
JAMES H. LOVEJOY was elected on August 7, 1954; re-elected Au
JOSIAH H. DOAK was elected on August 7, 1858 and served until August 6, 1860.
JAMES L. READ was elected on August 6, 4960; re-elected August 4, 1862 and se

JOSIAH NICHOLS was elected on August 1, 1864; was appointed August 8, 1865 b
until March 1866 when he resigned.
WILLIAM C. HALL was appointed on March 27, 1866 by
SIMON P. BURNS was elected on June 95, 1866 and served until November 19, 1
J, J. Reynolds’ Special Order # 207.
GEORGE A. WILSON was appointed on November 1
until December 3, 1869.

WILLIAM NEL

hanged in McKinney on May 24, 1872
great grand-dau
WILLIAM W. MERRITT was elected on De
1878.
WILLIAM WORDEN was elected on Novembe
November 4, 1884.

GABE S. BECK was elected
was a deputy in 1873 and i

gust 4, 1856 and served until August 2, 1858.

ved until August 1, 1864.
y Governor A. J. Hamilton and served
erved until June 25, 1866.

Governor A. J. Hamilton and s
he was removed by G

867 when

enera

s’ Special Order # 207 and served

9, 1867 by General J. J. Reynold

3. He was born in Kentuch)

uted in Collin County. was
Kinney, Texas 8%

until December 2, 187

man ever legally exec

lected on December 3, 4869 and served
Elizabeth Bush Roberts of Mc

ff when Stephen M. Ballew, only white

This information was courtesy of

bruary 15, 1876 and served until November 5.

cember 2, 1873; re-elected Fe

r5, 1878; re-elected November 2, 4880, November 7, 4882 and served uti
ved until November 6, 1885 '*
Avy

ber 2, 1886 and se
y. Sheriff Beck was

84, re-elected Novem
President McKinle

on November 4,18
eda. S. Marshall by

n 1889 was appoint
served until Novembe &

-elected November 4, 4890 and

31, 1855.
w. SCOTT PHILLIPS was elected on November 6, 1888; re
1892.
ed November 6, 1894 and served until November 3, 18%
min Ket

n November 8, 4892, re-elect
| November 8, 1898. Sheriff Coffey was bo

hry & MOULDEN was elected 0
November 3, 4896 and served unti

Ww. S. COFFEY was elected on
on July 9, 1842.
J. W. PAFFORD was elected on November 8, 1898; re-elected November 6, 1900 and served until November *. = |
TOM M. BEVERLY, SR. was elected on November 4, 1902; re-elected November 8, 4904 and served until Nowe”
1906.
GEORGE M. EUBANKS was elected on November 6, 4906; re-elected November 3, 4908 and served until NC** aa
1910.
, ¢
A. T. ROBERTSON was elected on November 8, 1910; re-elected November 5, 1912 and served until Novem ~
ALBERT McCAULEY was elected on November 3, 1914, re-elected November 7, 1916 and served until Nove
1918.
; yn
ed November 2, 1920 and served until January 1.

n November 5, 1918; re-elect

ber 7, 1922 and served until January 1, 4925.

ED BLAKEMAN was elected o
W. F. BISHOP was elect

ed on Novem


STEPHEN BALLEW , hanged Collin Co., Tex. 5-24-1872

TEXAS CO UNTY SHERIFFs.

Copyright © 1989 by Sammy Tise

Published for Sammy Tise by Oakwood Printing
10012 Cochiti S.E. #C, Albuquerque, N.M. 87123

Additional copies availalble from:
Sammy Tise

Tise Genealogical Research

Rt. 1, Box 110AA

Hallettsville, Texas 77964

i / a ste
9500 numbered copies of Texas OCurity

itt’ me ert srt Ping
Sherift’s Were pramiea Or wri ya >

number i et sess


ADVENTURER

Stephen Ballou, with
his personal charm
and fascinating
stories, swaggered his
way into the home
and into the hearts
of the Goldens. He
made love to three
beautiful women in
the household.

fair-haired Clara, she of the peaches and cream
complexion, and, if local reports be trusted, “the
eyes of a fawn;” and finally, the son of the house-
hold, the tall and loutish James.

Fawn-like eyes did not run in the family, we
discover, for whatever Clara’s may have been in
the first flush of nineteen, her brother Jim, eight
years older, surveyed the newcomer with vague
dislike. Stephen Ballou wore lace at his wrist,
had a shirt of silk, and rode on a silver-mounted
saddle. Jim Golden was envious of lace and silk
and silver. :

But if the son of the family held back, the
others more than made up for his lack of graci-
ousness. Golden seized
the newcomer’s delicate

Illustration by
Delos

Palmer

—

=

SS Se


BALLEW, Stephen Merris, white, hanged Collin County, Texas, on

May 24 3

nnn men
\
2

f umber Five — im F

With more than $11,000 in their
Saddlebags, Stephen Ballou and
Jim Golden set out from the
Golden homestead to win a for-
tune in the great outside world.

His destination was a fine
farmhouse of red brick—the J
finest farmhouse in the ‘
county; indeed, few houses /

a
s

in the growing city of
Quincy, a few miles away,
could compare with the home

| ie of Jonathan Golden. °
bite : The elderly farmer, who mi

You can fool some of the people all of the time, and all had waxed portly since he relinquished the hard work of be
ae of the people some of the time, but you cannot fool all of the fields to his son James and to the twelve hired men

‘he people all of the time—A. Lincoln, he employed, was an important figure in his community—

Me TEPHEN BALLOU RODE INTO the sovereign state of a genial, lovable soul, according to all contemporary ac-
ipa Hlinois upon a prancing black mare, with a gusty counts. Too often such men find that the bread they

hot wind bearing horse and rider along. There is noth- have cast upon the waters of life comes back bitter, and be
ing to show that a grim figure upon a white horse rode So it was to be with Jonathan Golden. ie
close behind, with a scythe at his saddle-bow. But On that August afternoon, however, he thought only

Death was there, all the same. of welcome for Ballou. The handsome, devil-may-care e

That was late in August, 1869, shortly after the bloody young man was a dear relative—dearer, perhaps, because t]
years when men did not ride peacefully from Kentucky’s there were no ties of blood, Thirty-five years before, a4
blue-grass into old Illinois. But peace was smiling again Golden’s sister Ann, a matron in Lexington, Kentucky, oe
| on the states, smiling upon the pleasant rolling hills, the had learned from a doctor that she must remain childless Bey
wooded stream courses and the rich fields. Into this and had inmediately proceeded to adopt a male infant. i.
land of tranquility rode Stephen Ballou, the wind whip- That baby grew to be Stephen Ballou—a bar sinister ‘c

ping the fine lace at his cuffs, and his handsome face across his record of birth, but a gallant soldier for the ;
dark beneath the silk hat pulled down over his eyes. Confederacy in spite of it all. »
(aa Stephen Ballou! That was a fitting name, a poetically And now, restless as all young men were restless in on
| perfect name, for the handsome stranger who rode north- that post-war era, Stephen Ballou had come to visit his t |
| a ward past the quiet farms. He might have been a Mis- relatives in Ilinois, had ridden two hundred miles to tell
it sissippi gambler or a soldier of fortune out of Richard Jonathan of the last days and death of his adopted

k Harding Davis. Certainly he looked the part. It seems mother, Ann Golden’ Ballou, fi
r Strange that of the little group who rushed to welcome D.

him at the end of his journey, not one saw the shadow rat THE SOLITARY RIDER came up the lane toward the
across his face or heard the rushing of invisible wings Golden home, the farmer hurried down to welcome
around his proud head. For Stephen Ballou was due to him. Behind the old man stood his young second wife,
meet a strange and terrible fate. Louise, plump and red-cheeked ; then his daughter, the

46 ~


Executions set to pick up
in Texas in wake of ruling

6 scheduled for April after rejection of challenge to law

Associated Press

HUNTSVILLE, Texas — The Tex-
as death chamber is about to be-
come a busy place again.

Executions in the nation’s most
active capital punishment state vir-
tually were stalled in 1996 by an
appeal from inmate James Davis,
who challenged a new Texas law
intended to speed up the appeals
process for condemned Killers.

Three Texas death row inmates
were executed last year, the lowest

number since 1988. A record-setting ©

19 lethal injections were carried out
in 1995S.

But only one execution last year
was carried out after February, and
that prisoner voluntarily gave up
his appeals. Forty execution dates
were scheduled, the smallest num-
ber of dates since 1986 as prosecu-
tors awaited the outcome of the Da-
vis challenge.

The Texas Court of Criminal Ap- '

peals in late December rejected the
Davis appeal, then two weeks ago
refused a request by Mr. Davis’ at-
torneys to reconsider the case.

The December ruling opened the
door for resumption of regular eXe-
cutions.

One condemned killer was \

Strapped to the gurney in March,
and six are set for April executions...
Five of those are likely to Prgeped
State Officials say.

They are:

m@ David Lee Herman, set to die
Wednesday for a 1989 fatal shooting _

as

’

‘I think the people
running the system are
doing so out of selfish

motives and are
changing things,
interpreting things, to
suit their own greed and
their own desires, be it
political ambition or
some other motivation.”

—- David Lee Herman,
convicted killer facing
death penalty this week

park in 1983 in a scheme to assume
the victim’s identify. Mr. Gentry

was a Georgia prison escapee at the
time.

Since Texas resumed carrying
out capital punishment in 1982, 109
men have been executed. It took an
average of nine years to get them to
the death chamber.

"it's terribly frustrating,’ Betty

. Rounsaville said of the time it takes

@ Benjamin Boyle, set ee
tion April 24 for the 1985 abduction-

- Tape-Slaying of a 20-year-old hitch-

hiker near Amarillo.

~ “All have gone through the fed--

: eral and state habeas [corpus] pro-
cess,” Texas attorney general’s
spokesman Ron Dusek said of the
five inmates, “We expect the execu-.

.,tlons: to be carried out.” © :

- Prosecutors in Harris County,
: tie have 134 convicted killers on
death row — four times more than

during the robbery of an Arlington any other county — said at least 10

topless club.

cases held.up by the Davis appeal

m David Spence, facing death © * now should* Sonctude with execu-
Thursday for the 1982 stabbings of "tions.

three teenagers in a botched mur- .”

es going’ ‘to get very bien said

der-for-hire scheme that became Roe Wilson,‘who heads the Harris

known as the Lake Waco killings.
@ Billy Joe Woods, with an April

14 execution date for the 1975 rape-

killing of a 62-year-old disabled
Houston woman during a robbery
of her home. Mr. Woods, on death
row for almost 21 years, ranks sixth
in seniority among the state’s 456
condemned inmates.

mB Kenneth Gentry, scheduled
for April 16 for shooting to death a
23-year-old man at a Lake Lewisville

County district attorney’s appellate
section dealing with capital murder
cases,

for the punishment to be carried
ot

A jury took 30 minutes to convict
John Barefield of killing Mrs. Roun-
saville’s daughter and less time
than that to condemn him. In
March, almost 11 years after arriv-
ing on death row, Mr. Barefield was
put to death.

“It’s the system, I guess,” Mrs.
Rounsaville said.

Convicted killer Herman, facing

the prospect of only days to live,”

disputes the notion that the judicial
system is out of whack.

“I don’t think the system is
wrong at all,” he said. “I think the
people running the system are
flawed. I think the people running
the system are doing so out of self-
ish motives and are changing
things, interpreting things, to suit
their own greed and their own de-
Sires, be it political ambition or
some other motivation. And I think
that is very wrong.”

Nevertheless, the April execu-
tions will do little to decrease the
average time on death row. Of the
five likely candidates, only Mr. Her-
man, who arrived in June 1991, has
spent less than nine years on the
row,

And whatever the pace, it would
have to acdelerate tremendously to
keep up with the number of people
arriving annually. The three in-
mates executed in 1996 compared
with 39 newly condemned prison,
ers,

a)


Kuller nears date with executioner

Page 1

Houston Chronicle Interactive

Section: Local & State

|| Sam Houston |}

FiRACE PARK 1S

Related forum

Recent related stories:

e Today: Prisoner executed for
1986 robbery-rape-murder

9:47 PM 3/11/1997

Killer nears date with executioner

Barefield set to die for '86 rape-murder

By ARMANDO VILLAFRANCA
Copyright 1997 Houston Chronicle

With little hope of a reprieve, John Kennedy Barefield faces
execution by lethal injection today for the 1986 murder of a Rice
University architecture student.

Barefield, 32, was tried, convicted and sentenced in 2% days for
shooting Cindy Renee Rounsaville after he and two accomplices
had robbed and raped her April 21, 1986.

Barefield admitted abducting Rounsaville, 25, at gunpoint as she
walked toward her car in an apartment parking lot.

She was forced to withdraw $70, all the money she could, from an
automatic teller machine. Barefield, his brother Perry and Lee
Sonnier then raped Rounsaville in her car in a remote area near the
Fort Bend County Line.

Jim Peacock, who prosecuted the case in 1986, remembers the
killing's particularly brutal nature. Rounsaville was walked into a

field, ordered on her hands and knees and then shot twice in the
back of the head.

"T recall it was basically like an animal hunting for his prey,"
Peacock said Tuesday. "He was specifically looking for someone
like her for the purpose that he did."

Barefield, who had robbed three other women and a couple in the
seven previous months, told investigators he drove around
apartment parking lots looking for white victims to rob.

%
Rounsaville, the only daughter of a Tulsa, Okla., orthopedic
surgeon and his wife, was three weeks from her graduation. She
had planned to marry her hometown boyfriend that summer.

"It seemed so tragic that she had worked so hard to build a future
for herself and it was taken away by these people," Peacock said.
"There was absolutely no reason for what they did.

"She was everybody's dream daughter. I think it was devastating to
the family."

Killer nears date with executioner

Page 2

Rounsaville's parents, who moved to Naples, Fla., in 1992, told
The Associated Press they did not plan to attend the execution.

"IT never did want to myself," Betty Rounsaville, said. "My husband
considered it. We talked it over, but I don't think it would be a
good idea."

The last execution of a Houston man -- Leo Jenkins on Feb. 9,
1996 -- was witnessed by the parents of his two murder victims.

The families were the first to witness an execution in the state
under a new policy instituted by the Texas Board of Criminal
Justice in January 1996.

The jury needed only 25 minutes on Sept. 17, 1996, to convict
Barefield of capital murder.

His brother was later sentenced to 45 years in prison. Sonnier got a
life sentence.

E.G. Hall, Barefield's attorney, said he does not plan to ask for a
stay. He said he had last been with Barefield when the inmate was
given his execution date.

"He has not indicated to me he felt he's been a victim of any
circumstances," Hall said. "He hadn't said he was railroaded or
anything of that sort."

The Texas Attorney General's Office has not been notified of any
planned last-minute appeals and expects the execution to be carried
out at 6 p.m.

Peacock, who left the Harris County district attorney's office less
than a year later and now in private practice, said the news of
Barefield's pending execution gave him no pain or comfort.

"I get no pleasure in this man's death," he said. "I will not lose any
sleep over the fact I did my job right. I hope for the family that they
find some peace at the end of this. :

"T hope this gives closure to both families with the least amount of

pain involved."
hh

MARCH 12:

JOHN KENNEDY BAREFIELD

ATTORNEYS:

HOURS:
COST:

erhaps no lawyer could have
Pp saved John Kennedy Bare-

field’s life: The jury in his 1986
trial saw a videotaped confession in
which the ex-con matter-of-factly
described how he raped and mur-
dered a Rice University student He
and two companions decided to kill
her after the rape becalse she could
idenufy them, he calmly told detec-
aves.

The jury took less than a half-hour
to send Barefield to Death Row. He
was executed March 12, the first con-
victed killer to die when executions
resumed after the habeas appeal was
rejected,

Barefield’s trial counsel and first
appellate counsel were court-appoint-
ed. About five years ago, Edmon G.
“Sandy” Hall, the venerable name
parmer in McAllen's Atlas & Hall,
took over the case.

“Our firm volunteered when the
time came that the Texas Resource
Center couldn't fill the demand,” he
says. Hall took the lead because he
was one of the few lawyers at the civil-
litigation firm with criminal exper-
ence, even though that criminal expe
mence was a brief stint as a prosecu-
tor back in 1951.

Hall made the usual motions and
appellate arguments, including one
state wnit of habeas corpus, but was
hampered by the lack of evidence
developed at trial. “This guy, the actu-
al tnal and punishment phase, not

Trial — Jack Penman and

Vic Pecorino

Appellate — Edmon G. “Sandy” Hall
Unknown

Unknown

including picking a jury, was about
five hours,” Hall says. “To me, that
was incredibly short.”

The chilling facts of the case prob-
ably made any other outcome unlike
ly — the prosecution’s punishment-
phase evidence included testimony
from five victims of other rapes and
robberies by Barefield, and in his
videotaped confession he said he
viewed his nightly cruising of apart-
ment complexes searching for vic-
tims as his way of “making money.”

Convincing a jury that Barefield
didn’t constitute a continuing threat
to society might have been an impos-
sible task, but Hall still wonders.

“He had two co-defendants who
participated in it,” he says, referring
to the rape and murder for which
Barefield was executed. “One of
them was never tried for it and the
other got 40 years. Both retained
very competent counsel on their
own. You have to wonder if there
would have been different results if
{Barefield] had his own lawyer.”

Hall took the case pro bono, and
says he doesn’t know how many hours
he put into it, He admits he’s a death-
penalty supporter, and that at times he
was ambivalent about the case.

“My job was to see that the system
worked properly,” he says. “But |
think, personally, the best attorney for
these cases will be one who's 120 per-
cent opposed to the death penalty.”

— RICHARD CONNELLY

—


636 958 FEDERAL REPORTER, 2d SERIES

Barnard filed a petition for a writ of habe-
as corpus in the state trial court on October
31, 1988. On November 22, 1988, the trial
court entered its findings of fact and con-
clusions of law and recommended denial of
the writ. The Court of Criminal Appeals
found the trial court’s findings and conclu-
sions to be supported by the record and
denied the writ on January 6, 1989.

The trial court rescheduled Barnard’s ex-
ecution for March 14, 1989. On February
21, 1989, Barnard filed a petition for habe-
as corpus relief and an application for stay
of execution in United States district court.
The district. court stayed the execution
pending its consideration of Barnard’s peti-
tion.

On December 12, 1989, the district court
entered a final judgment distnissing the
petition for a writ of habeas corpus and
lifting the stay of execution. Barnard
timely filed a motion to alter or amend the
judgment pursuant to Federal Rule of Civil
Procedure 59(e), which the district court
denied. After Barnard filed a ‘notice of
appeal, the district court granted:a certifi-
cate of probable cause and entered a stay
of execution on February 7, 1990. This
appeal followed.

On appeal, Barnard contends that the
district court erred in rejecting his claims
that (1) the Texas death sentencing statute
prevented the jury in his case from consid-
ering and giving effect to his mitigating
evidence in violation of the Sixth and
Eighth Amendments to the United States
Constitution; (2) the court’s instruction on
temporary insanity caused by intoxication
prevented the jury from giving any mitigat-
ing consideration to this evidence unless
Barnard proved that he was so intoxicated
that he was insane at the time of the of-
fense; (8) evidence of his good character,
including evidence of his carpentry skills,

2. Pursuant to the version of Texas Code of
Criminal Procedure Article 37.071 in effect at
the time of Barnard’s sentencing, the trial court
instructed the jury to consider the following
special issues:

1. Was the conduct of the Defendant that
caused the death of the deceased committed
deliberately and with the reasonable expecta-
tion that the death of the deceased would
result?

work history, and familial responsibility
and support, was not adequately treated
within the special issues; and (4) Barnard
received ineffective assistance of counsel.
We consider each of these claims below.

II. ANALYSIS

A. Standard of review

[1] In considering a federal habeas cor-
pus petition presented by a petitioner in
state custody, federal courts must accord a
presumption of correctness to any state
court factual findings. See 28 U.S.C.
§ 2254(d). We review the district court’s
findings of fact for clear error, but decide
any issues of law de novo. Humphrey v.
Lynaugh, 861 F.2d 875, 876 (5th Cir.1988),
cert. denied, 490 U.S. 1024, 109 S.Ct. 1755,
104 L.Ed.2d 191 (1989).

B. Penry claim

Barnard first contends that:.the Texas
capital sentencing statute, as applied in ‘his
case, violated the Sixth, Eighth, and Four-
teenth Amendments to the United States
Constitution by failing to provide a vehicle
by which Barnard’s jury could properly
consider and give effect to the substantial
mitigating evidence he presented at trial.
Barnard argues that the Texas capital sen-
tencing statute? unconstitutionally limited
the jury’s consideration of two types of
mitigating evidence that he presented at
trial: (1) his head injury, evidence of per-
manent characteristics and _ disabilities
stemming from his troubled childhood, and
his drug and alcohol abuse; and (2) evi-
dence of his good character, including evi-
dence of his carpentry skills, work history,
and familial responsibility and support.
Barnard maintains that, under the narrow
focus of the special issues, no means exist-

2. Is there a probability that the Defendant
would commit criminal acts of violence that
would constitute a continuing threat to socie-
ty?

3. Was the conduct of the Defendant in
killing the deceased unreasonable in response
to the provocation, if any, by the deceased?

7 ™

BARNARD v. COLLINS 637
Cite as 958 F.2d 634 (Sth Cir. 1992)

ed by which the jury could give meaningful
expression to this evidence and vote for life
as mandated by the Supreme Court in Pen-
ry v. Lynaugh, 492 U.S. 302, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989).

The district court refused to review the
merits of Barnard’s contention that the
Texas death sentencing statute was uncon-
stitutional as applied* in his case, conclud-
ing that Barnard had procedurally default-
ed this claim. In making this ruling, the
district court observed that both the trial
court and the Court of Criminal Appeals
found on state habeas review that Barnard
was barred under state law from complain-
ing of the trial court’s failure to give addi-
tional jury instructions on mitigating evi-
dence because he failed to request such a
special instruction. The district court de-
termined that the state habeas court unam-
biguously relied on the state procedural
default doctrine in its dismissal, and that
Barnard demonstrated neither good cause
for his failure to comply with state court
procedures nor actual prejudice resulting
from the alleged constitutional violation.

[2] Over two years have elapsed since
the district court rested its decision on the
procedural default doctrine. Since then,
the Texas Court of Criminal Appeals has
clarified the state’s position on whether a
habeas petitioner has defaulted on a Penry
claim. Selvage v. Collins, 816 S.W.2d 390
(Tex.Crim.App.1991), explained that a Pen-
ry claim is preserved even if the petitioner
failed to request an instruction on mitigat-
ing evidence or object to the instructions
given at trial. Jd. at 392. However, a
petitioner cannot base a Penry claim on
mitigating evidence that could have been,
but was not, proffered at trial. May v.
Collins, 904 F.2d 228, 232 (5th Cir.1990),
cert. denied, —- U.S. ——, 111 S.Ct. 770,
112 L.Ed.2d 789 (1991); DeLuna v. Ly-
naugh, 890 F.2d 720, 722 (5th Cir.1989);
see also Ex parte Goodman, 816 S.W.2d
388, 386 n. 6 (Tex.Crim.App.1991) (in dicta,
refusing to consider arguments based on
tactically withheld Penry evidence, unless

3. Barnard has abandoned his facial challenge to
the Texas death penalty statute brought before

the appellant makes a contemporaneous of-
fer of proof or bill of exception detailing
what mitigating evidence is being with-
held). With these constraints in mind, we
examine whether Barnard’s challenge to
the application of the Texas sentencing
statute in his case warrants relief.

Although the Supreme Court has upheld
the constitutionality of the Texas capital
sentencing scheme, see Jurek v. Texas, 428
US. 262, 272, 96 S.Ct. 2950, 2956, 49
L.Ed.2d- 929 (1976) (opinion of Stewart,
Powell & Stevens, JJ.), it has found that
under certain circumstances, the statutory
special issues must be augmented by jury
instructions to preserve the constitutionali-
ty of the statute’s application. In Penry,
the Supreme Court held that a Texas jury
could not give effect to mitigating evidence
of mental retardation and an abused child-
hood through the special issues absent in-
structions informing the jury that it could
consider and give effect to this evidence by
refusing to impose the death penalty. 492
US. at 328, 109 S.Ct. at 2951. The Court
ordered resentencing in Penry’s case be-
cause without such an instruction, “the
jury was not provided with a vehicle for
expressing its ‘reasoned moral response’ ”
to his mitigating evidence in its sentencing
decision. Id.

In Graham v. Collins, 950 F.2d 1009 (5th
Cir.1992) (en banc), petition for cert. filed
Mar. 9, 1992 (No. 91-7580), this court re-
cently construed Penry to indicate that
special jury instructions are required only
when the “major mitigating thrust of the
evidence is beyond the scope of all the
special issues.” Jd. at 1027. We deter-
mined that Graham’s evidence of his youth
as a mitigating factor found adequate ex-
pression through the second special issue.
Graham reasoned that because youth is a
transitory condition,

whatever is mitigating about youth tends

to lend support to a “‘no” answer to the

second special issue, and its tendency to
do so is essentially proportional to the
degree to which the jury concludes such

the district court.


“~ Barnard facin

AP and staff reports

HUNTSVILLE — Harold Amos Barnard
Jr., 51, who has been on death row for more
than a decade, was facing execution early
this morning.

GALVESTON

Barnard, who shot and killed a Galve-
ston teen-ager during a 1980 robbery, was
scheduled to die by lethal injection shortly

‘after midnight. The death row inmate had
received four stays of execution since he
was sentenced to die April 6, 1981.

Barnard was convicted April 1, 1981, of
killing 16-year-old Tuan Nguyen, a Ball
High School honor student who was shot
during a robbery.

Barnard was scheduled to be the first
Texas inmate to be put to death this year.

Last-minute appeals were
pending in federal court
Tuesday. His latest appeal
) was denied Nov. 22 after a
| hearing determined he
was mentally competent
and could be executed.

In 1993, Texas led the
nation in the number of
executions. The state had
17 executions last year
and has had 71 executions
since the death penalty
was reinstated by the U.S. Supreme Court
in 1976.

Galveston County District Attorney
Michael Guarino, a prosecutor in the case,
said the length of time Barnard has spent
on death row is typical of capital cases.

“It’s not fair to anybody,” Guarino said.

Barnard

is execution early today

“It’s not fair to anybody involved at all,
whether it’s the victim, the defendant or
the community. It’s just not fair.”

Jack Brock, who is now in private prac-
tice, also helped to prosecute the case. Brock
could not be reached for comment.

On June 6, 1980, Barnard and three oth-
ers entered the former 7-Eleven store at
77th Street and Stewart Road and asked for
a pack of cigarettes.

Nguyen’s father, who has the same name
as his son, turned around to get the ciga-
rettes. Barnard pointed a gun at the teen,
who had been helping his parents in the
store.

Barnard shot the teen once through the
heart with a sawed-off .22-caliber rifle. The
boy died in his father’s arms. Although the
father had filled a bag with money, Barnard

See EXECUTION, 14-A

Execution ... * iti

Continued from 1-A

and the others left empty-hand-
ed.

The hardest part of the trial
was the father’s testimony,
Guarino said.

The elder Nguyen told how
his family had escaped from
Vietnam five years earlier and
had to leave behind some fami-
ly members. He talked about
the his son, who was described

as an honer roll student at Ball
High School.

“It was so difficult to ask him
questions,” Guarino said. “There
was not a dry eye in the court-
room. One of the hardest things
I've done was to question him
without choking up myself. It
was difficult to keep my compo-
sure.” .

Guarino also remembers the
testimony that described
Barnard as having a smile on

his face when he shot the teen-
ager.

“He had a smirk, a smile on
his face wheri he shot the boy,”
Guarino said.

Barnard and his three accom-
plices — Murray Howard, Regi-
na Faye Howard and James
Charles O’Brien — were arrest-
ed near the La Marque city lim-
its on Interstate 45 about 30
minutes after the shooting.
Galveston County Sheriff’s

Department Deputy Bill Fore-
man spotted the car the four
were riding in on the Galveston
Causeway and stopped it.

The .22-caliber rifle, a large
hunting knife and a loaded 12-
gauge shotgun were found
inside the car.

The three accomplices were
convicted of aggravated robbery
charges. They have since been
paroled.


Texas Inmate Executed, ae }

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HUNGSVLES Tex, Feb. 2 dpi! peas

Mr,;Barnard! was convicted of:mur-!
A 51-year-old inmate was executed by!q
injection early today for killing a con- hestea maces esol hon:

venience store clerk'in“a 1980 ‘holdup
' from’ which “he ‘came’ away” ‘emp

handed,’ enyeh i age ee Oe SAE, : Theart w 1 a’'se ed ;
‘The inmate, Harold. Barnard, -went'to and“his father: 1ad ‘fi
his death atthe state:prison here after money,’but ‘WV :
the Supreme:Court rejected: late-hour accomplic es ‘fled’ emr
appeals: in Washington. The appeals! were arrested in’a!stolen‘car’30' min

‘contended that he was mentally incom-
petent and that he was drunk at the|

time of the is Aa ry,

op

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P| Te
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pis | Money in:
a“ 3 | who ;prosecuted Mr. Barnard. “This

GBT S }
ticle ‘the sree ene had

been® complete. and Barnard had the
his-hand,’’:said Jack Brock,

jwas.a ‘Case appropriate for

i th the . death. -penalty, and 12 jurors

oer. Barnard said at his trial that he
fT \had intended only to wound the teen-
ager. His accomplices were convicted

jof lesser charges and have been pa-

roled after serving prison terms.
lawyers: argued. that. Mr.

apes
hard ‘suffered from paranoid delu-

a res and that he did not understand his

rey punishment.

Other death row inmates said: Mr.

|Barnard, .a . former ; carpenter,. once
hurled’

a typewriter through . his. cell
berg and occasionally went on scream-

more,” ie

ee that, Jdasted: two days or

Sy


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,

634 958 FEDERAL REPORTER, 2d SERIES

SSS -
arold Amos BARNARD, Jr.,
Petitioner-Appellant,

v.

James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent-Appellee.

No. 90-2124.

United States Court of Appeals,
Fifth Circuit.

April 3, 1992.

Convicted capital murderer petitioned
for writ of habeas corpus. The United
States District Court for the Southern Dis-
trict of Texas, Hugh Gibson, J., dismissed
petition. Petitioner appealed.” The Court
of Appeals, King, Circuit Judge, held that:
(1) Texas capital sentencing statute, as ap-
plied in petitioner’s case, did not unconsti-
tutionally prevent jury from fully consider-
ing and giving effect to all the mitigating
evidence presented during conviction and
sentencing phases of trial; (2) operative
terms of that statute were not so vague
and indefinite as to deprive jury of mean-
ingful guidance in its sentencing delibera-
tions; and (8) petitioner was not entitled to
evidentiary hearing on issue of ineffective
assistance of counsel.

Decision affirmed and stay of execu-
tion vacated.

1. Habeas Corpus 768, 842, 846

In considering federal habeas corpus
petition presented by petitioner-in state
custody, federal courts must accord pre-
sumption of correctness to any state court
factual findings and Court of Appeals re-
views district court’s findings of fact for
clear error, but decides any issues of law
de novo. 28 U.S.C.A. § 2254(d).

2. Habeas Corpus ¢=340, 342

Under Texas law, Penry claim is pre-
served even if habeas petitioner failed to
request instruction on mitigating evidence
or object to instructions given at trial;
however, petitioner cannot base Penry
claim on mitigating evidence that could

a a- SS

have been, but was not, proffered at trial.
U.S.C.A. Const.Amends. 6, 8, 14.

3. Homicide €294(1), 311

Evidence that Texas capital murder de-
fendant was beaten in the head with a tire
iron several months before he committed
robbery during which convenience store
clerk was killed, without more, was insuffi-
cient to require special instruction under
Penry; there was no evidence that physical
trauma from blows caused defendant to
suffer from mental impairment or that his
criminal actions were attributable to men-
tal impairment. U.S.C.A. Const.Amends. 6,
8, 14.

4. Homicide €357(4)

For purposes of Texas capital murder
defendant’s Penry claim, testimony regard-
ing defendant’s childhood experiences was
not mitigation evidence of permanent char-
acteristics and disabilities stemming from
defendant’s troubled childhood, absent evi-
dence that childhood experiences had any
psychological effect on defendant.
US.C.A. Const.Amends. 6, 8, 14.

5. Homicide @357(4)

For purposes of Texas capital murder
defendant’s Penry claim, scattered testimo-
ny recounting defendant’s. frequent epi-
sodes of heavy alcohol consumption, alco-
hol intoxication, and marijuana use did not
demonstrate that episodes were attributa-
ble to permanent handicap. U.S.C.A.
Const.Amends. 6, 8, 14.

6. Habeas Corpus <=340

Habeas petitioner’s failure to object to
additional instruction on temporary insani-
ty resulted in state procedural default on
Penry claim, that erroneous instruction
prevented jury from giving full mitigating
effect to his evidence of voluntary intoxi-
cation. U.S.C.A. Const.Amends. 6, 8, 14.

7. Homicide 311

Evidence of good character does not
require special instruction under Penry de-
cision of United States Supreme Court, that
jury must be given vehicle by which to
properly consider and give effect to miti-

TC Khe

BARNARD y. COLLINS 635
Cite as 958 F.2d 634 (5th Cir. 1992)

gating evidence in capital trial. U.S.C.A.
Const.Amends. 6, 8, 14.

8. Homicide 351

For purposes of claim that operative
terms of Texas capital sentencing statute
were so vague and indefinite that they
deprived jury of meaningful guidance in its
sentencing deliberations and that clarifying
instructions were required, common mean-
ing of term “deliberately” was sufficiently
clear to allow jury to decide punishment
phase issues, and defendant failed to dem-
onstrate that jurors were confused about
meanings of challenged terms “probabili-
ty” and “society” as used in second special
punishment issue. Vernon’s Ann.Texas
C.C.P. art. 37.071.

9. Criminal Law ¢641.13(6)

Trial counsel in capital murder prose-
cution was not ineffective for failing to
employ experts to explore psychological,
medical, or physical origins of defendant’s
mental . condition, absent . showing that
counsel would have reason to believe defen-
dant: suffered. from mental defect at time
of offense or trial, and: counsel’s investiga-
tion’ into defendant’s family background
was not unreasonably deficient. _U.S.C.A.
Const.Amend. 6.

10. Criminal Law ¢641.13(6)

Trial counsel in capital murder prose-
cution was not ineffective in deciding to
waive defendant’s Fifth Amendment right
to testify, absent showing that counsel ne-
glected to waive possible harm from poten-
tially incriminating testimony against need
for defendant to testify in favor of defense
theory of case or that, but for alleged
error, result of proceeding would have been
different. U.S.C.A. Const.Amends. 5, 6.

11. Habeas Corpus €746

Habeas petitioner was not entitled to
evidentiary hearing on issue of ineffective
assistance of counsel! to make findings of
fact as to whether counsel’s decisions were
grounded in deliberate trial strategy,
where he failed to present allegations suffi-
cient to overcome strong Strickland pre-

1. For a more detailed recitation of the facts, see
Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.

sumption that trial court rendered ade-
quate assistance and that challenged con-
duct was product of reasoned trial strate-
gy. U.S.C.A. Const.Amend. 6.

Alan D. Albright, Akin, Gump, Strauss,
Hauer & Feld, Austin, Tex., for petitioner-
appellant.

Margaret Portman Griffey, Asst. Atty.
Gen., Robert S. Walt, Asst. Atty. Gen.,
Enforcement Div. and Jim Mattox, Atty.
Gen., Houston, Tex., for respondent-appel-
lee.

Appeal from the. United States District
Court for the Southern District of Texas.

Before KING, JOLLY and SMITH,
Circuit Judges.

KING, Circuit Judge:

Harold Amos Barnard, Jr. appeals the
district court’s dismissal of his petition for
a writ of habeas corpus. He argues that
the district court erred in rejecting his con-
tention that the Texas capital sentencing
statute as applied in his case unconstitu-
tionally prevented the jury from fully con-
sidering and giving effect to all of the
mitigating evidence he presented during
the conviction and sentencing phases of his
trial. Finding no error, we affirm the dis-
trict court’s denial of habeas relief and
vacate the stay of execution.

I. BACKGROUND

On June 6, 1980, Barnard killed sixteen-
year-old Tuan Nguyen during the robbery
of a convenience store in Galveston, Tex-
as. A jury convicted Barnard of capital
murder on April 1, 1981. After a punish-
ment hearing, the jury affirmatively an-
swered the three special issues submitted
pursuant to Texas law, and on April 6,
1981, the court imposed a death sentence.

The Texas Court of Criminal Appeals
affirmed Barnard’s conviction on April 8,
1987. Barnard v. State, 730 S.W.2d 703
(Tex.Crim.App.1987), cert. denied, 485 U.S.
929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).

1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098,
99 L.Ed.2d 261 (1988).