Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Mauriceo Mashawn Brown, who is scheduled to be executed after 6 p.m. Wednesday, July 19, 2006. In 1997, Brown was sentenced to death for the capital murder of 25-year-old Michael LaHood in San Antonio.

FACTS OF THE CRIME

On the night of Aug. 14, 1996, Mauriceo Mashawn Brown and three other men piled into a car and began a string of armed robberies. The next day, Brown and his accomplices followed a car to Patrick LaHood’s residence, and Brown ran up to LaHood, who was standing near his vehicle. A woman who was with LaHood heard Brown demand LaHood’s wallet, money and keys; she saw Brown point a gun at LaHood's face for about two minutes before firing. The woman gave police a description of the assailants. Police arrested the men shortly thereafter. Brown’s three accomplices gave written statements to police identifying Brown as the person who fatally shot LaHood. Brown admitted in his statement to police and at trial that he fired the fatal shot.

PROCEDURAL HISTORY

In May 1997, Brown was convicted of capital murder and sentenced to death for the murder of Michael LaHood. The conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals on February 17, 1999. Brown’s conviction became final on May 18, 1999, when the time for filing a petition for writ of certiorari in the U.S. Supreme Court expired.

An evidentiary hearing was held by the trial court upon Brown's application for state habeas relief. The Texas Court of Criminal Appeals denied relief based upon the trial court's findings of fact and conclusions of law, on March 7, 2001.

Brown’s federal petition for writ of habeas corpus, as well as a certificate of appealability (COA), was denied on December 3, 2004. The 5th U.S. Circuit Court of Appeals denied Brown’s request for COA on July 29, 2005, and the U.S. Supreme Court denied his request for certiorari review on February 27, 2006.

PRIOR CRIMINAL HISTORY

At the punishment phase of trial, the prosecution presented evidence of Brown’s affiliation with a violent gang which had a reputation for violence and for dealing drugs and using weapons to commit crimes. Evidence showed that Brown sold a pipe-bomb to an undercover officer on a high school campus. Also, Brown participated in a burglary of a vehicle only days before the fatal shooting of LaHood, for which Brown was issued a citation for the damage, but was not arrested.

A few days before the LaHood murder, Brown, and his three accomplices robbed a man at a hotel, using the same rental car that was used in the robbery and murder of LaHood. Brown and Dillard got out of the car, approached the victim, pointed guns at him, and demanded his wallet. The two assailants covered their faces with their elbows. The victim gave them his wallet and keys and the two assailants drove off in his car, abandoning it a few blocks away. They stole money and a cellular phone, which was found in the trunk of in the rental car when he was arrested for the LaHood murder.

Houston Chronicle

"Inmate set to die for '96 killing; Mauriceo Brown denies that he shot law student in San Antonio," by Michael Graczyk. (Associated Press July 19, 2006, 7:25PM)

HUNTSVILLE - An apologetic San Antonio gang member was executed today for the shooting death of a man during a robbery attempt in the driveway of his victim's home. With two brothers of his victim watching nearby through a window, Mauriceo Brown told them he was ``sorry you lost a brother, a loved one and friend.'' Brown looked toward another window where his mother and two siblings were among the witnesses. He told them he loved them. ``Keep your heads up and know that I will be in a better place,'' he said. He then looked again toward his victim's relatives and friends and apologized a second time that you ``lost a loved one this way. God bless you all.''

As the drugs took effect, Brown's mother wailed and collapsed to the floor of the death house. She was escorted from the witness area a few minutes later. Brown was pronounced dead at 6:47 p.m., eight minutes after the lethal flow of drugs began. The execution was delayed briefly while the U.S. Supreme Court considered appeals.

Brown, 31, confessed to the 1996 slaying of Michael LaHood Jr., 25, when he and three companions, high on marijuana and alcohol, were arrested about an hour after the shooting. One companion, Kenneth Foster, also received the death penalty but doesn't have an execution date. The two others, including one who testified against Brown, received long prison terms.

The early morning attack capped a spree by the street gang members who called themselves the Hoover 94 Crips. At least four other people were robbed that night. ``They were out pretty much on a rampage, stoned to the bone, victimizing people,'' said Jack McGinnis, one of the prosecutors in the cases against Brown and Foster. The two were tried together.

Brown was the 15th Texas prisoner executed this year in the nation's busiest capital punishment state. His execution was the first of two scheduled for consecutive evenings this week in Huntsville.

Brown had been recanting his confession, saying his accomplices threatened his family if he didn't take the fall for the slaying. ``That claim is preposterous,'' said Mike Ramos, who was a Bexar County assistant district attorney in 1997 and also prosecuted Brown and Foster. ``He has absolutely no credibility. Any court could see he has zip.''

In court before and during his trial, Brown also changed the circumstances of his confession, describing LaHood's death as self-defense and also an accident. He also blamed one of the other men in the car with him for the shooting. Brown, in a recent interview on death row, called his trial ``a mockery based on a lie that I made a statement and everybody else made a statement that I was the shooter.''

``Even if his new story is true, that doesn't say he's not guilty of capital murder and deserving of the death penalty,'' McGinnis said. ``His new story doesn't get him out of the woods. It gets him to where Foster is right now. They're both equally dangerous.''

LaHood's two brothers planned to witness Brown's execution. ``It is painful for us,'' said Norma LaHood, their mother. ``Our wounds will never heal. You don't heal from the loss of a child.''

Foster, Brown, Dwayne Dillard and Julius Steen were cruising San Antonio and robbing people when they spotted LaHood and his girlfriend driving and began following them, winding up at LaHood's driveway about 2 a.m. According to testimony, Brown jumped out, walked up to LaHood, demanded his car keys, then opened fire when LaHood couldn't produce the keys. LaHood, shot through the eye, died instantly. Less than an hour later, Foster was pulled over for speeding and driving erratically. All of them were on probation for earlier felonies and were arrested for LaHood's death.

Brown blamed the shooting on Dillard, now serving life for killing a taxi driver across the street from the Alamo two weeks before LaHood was killed. Steen testified at Brown's trial and received a life sentence in a plea bargain. Brown testified the shooting was in self-defense, that he believed LaHood had a gun and that he heard it click. Authorities, however, never found another weapon near LaHood's body.

On Thursday, Robert Anderson, 40, faced execution for the 1993 slaying of a 5-year-old Amarillo girl who was abducted, sexually assaulted, beaten, choked and strangled before her body was stuffed into a cooler and thrown into a garbage container. Anderson has asked that no appeals be filed to stop his punishment.

San Antonio Express

"Mother's wailing fills air during her son's execution," by Todd Bensman. (Web Posted: 07/19/2006 11:29 PM)

HUNTSVILLE — Mauriceo Mashaw Brown, a gang member convicted of murdering a San Antonio man 11 years ago, died from a state-administered lethal injection Wednesday night as his mother wailed and then collapsed to the floor in tears, proclaiming he was innocent. "He was not guilty, God Jesus, no," screamed Cynthia Lucky after the drugs took effect and Brown lost consciousness. "They didn't care. They didn't care."

In his final statement moments earlier, Brown, 31, apologized to the family of Michael LaHood Jr., whom Brown was convicted of murdering in a 1995 robbery. But Brown, who during various appeals in recent years recanted confessions that led to his conviction, did not quite acknowledge responsibility in his last moments. "To the victim's family, I am sorry you lost a brother, loved one and friend," said Brown, strapped to the death chamber gurney. "I apologize that you lost a loved one this way. "To my family, I love you all. Keep your heads up and know I will be in a better place. God bless you all. OK, Warden."

The lethal cocktail of drugs began flowing at 6:32 p.m. as Brown's mother, accompanied by a brother, sister and several family friends, suddenly began clutching at the death chamber's glass window and wailing loudly. "God loves you! God loves you! God loves you!" Lucky cried as she collapsed to the floor, clutched in the arms of her other son and daughter. Brown died eight minutes later, the 15th person to be executed in Texas this year and the 370th since Texas reinstated the death penalty in 1982.

LaHood's mother and father did not attend the execution; their other two sons represented the family. Nora LaHood said in an interview Tuesday that she didn't need to see the execution to find satisfaction in it. She said she empathized with the mother of her son's killer. "There will be tears for justice for my son," she said, her voice cracking with emotion. "But there will be tears of sorrow for her (Brown's mother). This is not something I will be celebrating."

Brown confessed to police and the jury at his death penalty trial that he shot Michael LaHood in the face during the last robbery of an all-night crime spree Aug. 15, 1995. But after his death penalty was affirmed, Brown began recanting, and he maintained his innocence to the end. Bexar County District Attorney Susan Reed dismissed Brown's protestations of innocence and said the execution was warranted after the system upheld repeated challenges to the original conviction. "It was evident what they were doing that evening," Reed said. "The jury decided that, and there was no question. And so under all theories he's guilty of capital murder, any way you slice it."

The U.S. Supreme Court sent word on Brown's final appeal at 5:57 p.m. Brown spent his last days in his death row cell praying and receiving visitors. For his last meal, he ordered enchiladas heavy with cheese and onions, fried chicken and a boneless T-bone steak with A1 Steak Sauce.

A brother, Leslie Brown Jr., said earlier Wednesday that Brown seemed calm and almost upbeat, having found refuge in religion. A month ago, Brown had himself re-baptized a Catholic. He had been reading the Bible daily. "He feels like everything happens for a reason, and he was given this opportunity to get his life right with God," Leslie Brown said.

CourtTV News

"Texas inmate Mauriceo Brown executed for 1996 robbery murder," by Emanuella Grinberg. (Updated July 19, 2006, 8:54 p.m. ET)

A Texas inmate convicted of murdering the son of a prominent lawyer during a robbery was executed Wednesday night after losing an eleventh-hour appeal to the U.S. Supreme Court. Mauriceo Brown, 31, apologized to the victim's family and spoke reassuringly to his own family before being injected with a lethal dose of drugs. He was pronounced dead at 6:47 p.m.

Brown, who confessed to the killing but later tried to recant his confession, apologized to two brothers of the victim, Michael LaHood Jr. Brown told the men, who were watching through a window, that he was "sorry you lost a brother, a loved one and friend." To his mother and two siblings who also witnessed the execution, Brown said, "Keep your heads up and know that I will be in a better place."

Brown's mother wailed and collapsed to the floor as the drugs took effect, and she was led from the witness area. Brown was the 15th inmate executed in Texas this year.

A San Antonio jury convicted Brown, with co-defendant Kenneth Foster, of capital murder for the August 1996 shooting death of LaHood, a 25-year-old law student. Prosecutors said the pair, with two other men, had been drinking, doing drugs and carousing the city committing a series of burglaries. Following a sentencing hearing, where a jury heard about the pair's affiliations with street gangs, the two were sentenced to death in May 1997.

Another defendant, Julius Steen, who testified in exchange for a lighter sentence on a charge of aggravated robbery, told the jury that he saw Brown point a handgun at LaHood and demand his wallet during a confrontation in front of the home where LaHood and his parents lived. LaHood died instantly from a single gunshot wound to the head that was fired at close range.

Brown also took the stand in his defense and testified that he shot LaHood because he thought he was going to shoot him first. Since his conviction, however, Brown had denied that he was the shooter, claiming that his friends threatened him into confessing.

In the weeks before Brown's scheduled execution, his appellate lawyer, David Sergi, asked to perform DNA testing on the clothing that the four men were wearing the night of the shooting. Sergi argued that blood spatter on friend Dwayne Dillard's clothes would prove that he was the shooter, but a criminal appeals court judge rejected the request.

Dillard, who is serving a life sentence for an unrelated murder, was never charged in the LaHood shooting. But in the weeks leading up to Brown's execution, he came forward to provide information to support his former friend. In an affidavit, Dillard claims that the group did not attempt to rob LaHood or his friend, a factor that determined whether the murder was a capital crime.

The third co-defendant in the case, Steen, also filed an affidavit stating that there was no intention to commit a robbery that night, contrary to what he said at trial. A prosecutor from the trial of Brown and Foster told the Associated Press that the new claims were "preposterous." "He has absolutely no credibility. Any court could see he has zip," said Mike Ramos, who was a Bexar County assistant district attorney in 1997.

In an interview with CourtTVnews.com, Brown said he regretted confessing to the crime. "I regret it for the fact that I didn't put more faith in the man upstairs to look over my family ... But, you know, when you're in the streets and you've been around these people for a while, you kind of know that it could happen," Brown said, one week before his scheduled execution. "I knew that I got into this for all the wrong reasons, and it just wasn't me. I should've stayed with basketball."

Court TV News

Facing Death: 'Caught Up in the Streets'
Lawyer David Sergi discusses his eleventh hour legal efforts to stop the execution of Mauriceo Brown

Court TV Host: Mauriceo Brown is scheduled to be executed this evening, just hours from now. Chat with Brown's lawyer, David Sergi. Brown was sentenced to death for gunning down a prominent lawyers son during a botched robbery in San Antonio, Texas in 1997. He still denies he was the gunman and claims he only confessed because his co-defendants threatened to hurt his family. Last week, before a judge rejected his penultimate appeal, he spoke to CourtTVnews.com.

Court TV Host: Read about the case - and watch our death row interview with Brown.

Court TV Host: David Sergi is here. Welcome, thanks for being our guest today. With two hours away, any news?

David Sergi: Quite unexpectedly the fifth circuit court of appeals had a divided opinion on our lethal injection challenge, and one of the judges voted to grant us a stay, and we are now in front of the U.S. Supreme Court asking for a stay, and usually, you have a better chance at a stay when one of the court of appeals judges has voted to give you a stay. We're quietly optimistic that we hope to get a stay. I had a phone call earlier today from a woman who heard about this case in the media, who claims that she talked to a bailiff who will confirm that the LaHood family was getting confidential information from one of the other district court judges. Whether that's true or not I don't know, but all the media attention has brought us new information which might reflect on Mauriceo's actual innocence.

Question from tara: David, have you spoken to Brown today, and what is his demeanor?

David Sergi: I spoke to him yesterday and it was positive and upbeat. Another lawyer on our team, Anne Burnham, visited with him today at three o'clock and just got out, and said that he's peaceful, calm and putting his trust in the Lord.

Question from tara: David, since Dillard is serving life for a different murder, why would Brown's claim of Dillard being the gunman not be considered or investigated further?

David Sergi: That is a good question that we have. Before you kill somebody you might just want to investigate whether someone else did it, especially when there's a rational reason to pursue that. I mean, here you have a man of acknowledged limited intellectual means, who confesses, but he would have confessed to almost anything. He's of limited intellectual means, and he's being interrogated by some very good police officers, he is in fear of his life from Dillard -- best I see it, he would have confessed to killing the man in the moon.

Question from Cindy: When Mauriceo Brown made the decision to willingly participate in the crime of robbery he also took on the equal responsibility for whatever happened, in this case the death of an innocent man. The innocent man is dead because of their greed - why does he believe he shouldn't be executed?

David Sergi: What's interesting is that Dillard, who we've accusing of killing LaHood, tells us that there was no robbery planned. So as far as we can see, three of the four participants agree there was no robbery, and now even Foster agrees there was no robbery. And there is nothing in it for any of the other three to lie about this or to change their stories. There's nothing in it for them.

Question from tara: David, is there a last minute appeal sitting on a judges desk right now?

David Sergi: Everything is sitting at the Supreme Court in Washington DC. We have three separate writs and appeals pending. One that says the Texas Court of Criminal Appeals was wrong in denying our pleading. One asking the U.S. Supreme Court to issue an original writ of habeas corpus to look at the case. And one arguing that the method of execution is torture and cruel and unusual punishment.

Question from dockette9: How long to you anticipate the stay will be...what are your plans?

David Sergi: If we get the stay, we would hope to get a new trial. And at a new trial, to exonerate Mauriceo.

Question from Wingit: How many times previously has a date been set for this execution??

David Sergi: This is the first time.

Court TV Host: Hold on a moment, everyone...The Supreme Court is calling Mr. Sergi.

David Sergi: The Supreme Court had a procedural question, which would indicate to me that someone is seriously looking at this. There's not much more I can say about that conversation - that would be inappropriate.

Question from JERRY: Mr. Sergi, I read the article on this case and it doesn't say if Mary Patrick testified at the trial. Did she name the shooter?

David Sergi: She did, and she identified Dwayne Dillard. What I am gathering out of all this, was that this was precipitated by Mary Patrick running down the driveway, screaming expletives and using the n-word, and screaming racial epithets, and we think Dillard just snapped. It's one of those things where, you know, some badly chosen words resulted in an innocent guy dying.

Question from rider: Did he ever think about taking his own life

David Sergi: No. Not as far as I know.

Question from tara: David, why did the state disallow DNA tests on the clothing, if it could possibly change the case and outcome for Brown?

David Sergi: That is a question only the judge can answer. The cost of a DNA test is so minimal and could have been done prior to today that it boggles my mind why it wasn't. And I can only think politics were involved, in my opinion.

Question from eag: When will you find out from the Supreme Court?

David Sergi: Good question. Hopefully soon, but I have been involved in cases where it was close to midnight.

Question from eag: But if he is supposed to be executed at 6?

David Sergi: After six - and they always wait until they get the final clearances from the Supreme Court.

Question from rider: Has he requested anything for his last meal?

David Sergi: I believe he requested, if memory serves me correctly, pizza, fried chicken, hamburgers, milk shake and, I think, a candy bar. I think they serve it at 4:30, if I'm not mistaken. In the death chamber itself, there are finger sandwiches available for all the guests - which is really bizarre.

Question from Sailor: If the appeals are denied, will you be a witness at the execution?

David Sergi: No, I will not, because I have been working in my office on the last minute filings. I have witnessed three executions, and I hope that's all I ever have to witness.

Question from rider: Will he see his little boy before the execution.

David Sergi: No, he visited with him about a week ago, and that was the last time.

Question from KatieInNO: Is he worried about people harming his family, now? Because he has spoken out?

David Sergi: No, and his family is not worried about the harm. Mauriceo is very slow and tends to believe everything you tell him. So even the family thinks there was no real danger to begin with.

Question from lisa: Where are the others that were in the car that night?

David Sergi: Foster is on death row, but a federal judge says he should get a new trial. Dillard and Steen are in prison on north Texas somewhere, for a different murder, that Mauriceo was not involved in.

Question from EAB1980: Why is Foster getting a new trial?

David Sergi: Because a federal judge thought that his sentence was disproportionate to his involvement, and of course the state is appealing that decision.

Question from gibby: Is he remorseful?

David Sergi: He's not remorseful because he didn't do it, but he is empathetic to the family and he is remorseful for the lifestyle that led him to where he is now. He addressed that in Courttv.com's interview.

Question from tara: David, if I read correctly, only two of the four were charged with murder, Were the others charged at all?

David Sergi: No. And I can give you a reason for it: Dillard in his affidavit tells us that he and Steen were not charged with the murder because they contradicted Foster's statement that it was a robbery - and without a robbery, at worst, it was simple murder rather than capital murder.

Court TV Host: The affidavit can be seen at http://www.courttv.com/facing_death/mauriceo_brown/docs/codefendantsaffidavit.html?page=2

Court TV Host: Thank you very much for your time at this crucial moment....any closing thoughts?

David Sergi: A lot of hard work went into our defense of Mauriceo. We were only asked to join his defense three weeks ago. I would like to publicly thank Tony Fusco, Viki Kewell, and Robert Up De Grove, who work with me, and an anonymous pro bono investigator who has spent countless hours beating the bushes, as well as Anne Burnham, one of his prior lawyers, who is in Huntsville right now. They took a monumental task and made it manageable, and we hope it will save Mauriceo's life.

ProDeathPenalty.com

On the evening of 14 August 1996, Kenneth Foster, Mauriceo Brown, DeWayne Dillard, and Julius Steen embarked on a series of armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: “I have the strap, do you all want to jack?”.

During the guilt/innocence phase of Foster’s trial, Steen testified that he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown both testified to robbing two different groups at gunpoint; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by a young woman named Mary. At trial, Mary testified that she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around at the end of the street and stop in front of Michael LaHood’s house; Mary approached Foster’s car to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet; Michael LaHood responded that Mary had the keys; and Mary heard a loud bang. Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from Michael LaHood’s head when he was shot; it was likely closer than that.

Brown had similarly stuck his gun in the faces of some of the nights’ earlier robbery victims. Later that day, all four men were arrested; each gave a written statement to police identifying Brown as the shooter. In admitting being the shooter, Brown denied intent to kill. At trial, he testified that he approached Michael LaHood to obtain Mary’s telephone number and only drew his weapon when he saw what appeared to be a gun on Michael LaHood and heard what sounded to him like the click of an automatic weapon. In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery and they both were sentenced to death.

Texas Execution Information Center by David Carson.

Mauriceo Mashawn Brown, 31, was executed by lethal injection on 19 July 2006 in Huntsville, Texas for the murder of a 25-year-old man during an attempted robbery.

On the night of 14 August 1996, Brown, then 21, Kenneth Foster, 19, Julius Steen, and DeWayne Dillard were riding around San Antonio in a car rented and driven by Foster. After visiting some music clubs, Brown brought out a gun and asked the other men if they wanted to "jack" some people. The men then committed two armed robberies. Around 2 a.m., they followed a pair of cars until they pulled into a driveway of a residence. Mary Patrick exited one of the cars and confronted the group of men about following her. Michael LaHood, who was Patrick's boyfriend, and who lived at the house with his parents, exited the other car. LaHood and Patrick began walking toward the house. Brown then got of out Foster's car and walked up the driveway. He approached LaHood, pointed the gun at his face, and demanded his money and car keys. When LaHood refused to comply, Brown shot him in the eye. He then got back in Foster's rental car, and the men drove away.

Patrick gave police a description of the assailants. Less than an hour later, Foster was pulled over for driving erratically. The four men, who were, according to a prosecutor, "stoned to the bone" and were also all on probation, were arrested. At the time of their arrest, Foster, Steen, and Dillard identified Brown as the shooter. Steen also testified against Brown and Foster at their joint trial. Brown admitted shooting LaHood, but testified that he only shot him because he thought he heard a click of a gun, and that LaHood was getting ready to pull a gun and shoot him. LaHood, however, was unarmed.

Brown had no prior convictions, but he was on probation for auto theft and with a 10-year deferred sentence for selling a pipe bomb to an undercover officer at his high school. Also, testimony at his punishment hearing implicated the same group of men in an armed robbery that occurred a few days before LaHood was killed.

A jury convicted Brown and Foster of capital murder in May 1997 and sentenced them to death. The Texas Court of Criminal Appeals affirmed Brown's conviction and sentence in February 1999. All of his subsequent appeals in state and federal court were denied.

Foster's death sentence was overturned in March 2005 by a U.S. district judge. The state has appealed that decision, however, and Foster remains on death row at this writing. Julius Steen was given immunity from the death sentence in exchange for his testimony against Brown and Foster. He was convicted of aggravated robbery and sentenced to life in prison, where he remains at this writing. DeWayne Dillard was charged in the killing, but not tried. Instead, he was tried, convicted, and sentenced to life for a killing that occurred two weeks prior to the LaHood slaying. He is also in prison at this writing.

In an interview from death row prior to his execution, Brown retracted his confession. "I was in the car," he said. "When I looked up, everything happened so fast." In the interview, Brown said that Dillard shot LaHood, but that Dillard and the other two threatened him and his family if he did not take the fall for the LaHood murder. "I was naive, I didn't know any better," he said. He called his trial "a mockery based on a lie that I made a statement and everybody else made a statement that I was the shooter."

"That claim is preposterous," one prosecutor, Mike Ramos said. Jack McGinnis, another prosecutor, said, "Even if his new story is true, that doesn't say he's not guilty of capital murder and deserving of the death penalty. His new story doesn't get him out of the woods. It gets him to where Foster is right now." Under Texas law, a defendant can be found guilty of capital murder for participating in a killing, even if he or she doesn't personally perform the killing.

At his execution, Brown expressed sorrow to the victim's loved ones, and love to his family. He then apologized to the victim's loved ones one more time and said, "God bless you all." The lethal injection was then started. Brown's mother, Cynthia Luckey, fell to the floor sobbing as her son drew his final breath. "Why didn't they give him another chance," she wailed as two of her children comforted her. "He was not guilty." Brown was pronounced dead at 6:47 p.m.

National Coalition to Abolish the Death Penalty

Mauriceo Brown, TX - July 19, 2006
Do Not Execute Mauriceo Brown!

Mauriceo Mashawn Brown was convicted of capital murder in May of 1997; he was later sentenced to death for his alleged shooting of Michael LaHood in San Antonio Texas. The night of the murder Brown was cruising with three of his friends, Julius Steen, Dewayne Dillard and Kenneth Foster, looking for victims to rob. The group had succeeded in robbing two people throughout the course of the night. While still in the car the men noticed a driver, Michael LaHood, who had given the men the middle finger for following to close. When LaHood and his girlfriend stopped in front of LaHood’s residence, Brown got out of the car to confront LaHood. The other men in the car testified they did not know what Brown was planning to do, including Foster, who was driving. An argument ensued between Brown and LaHood during which Brown brandished his .44 caliber pistol. Brown states that he did not intentionally pull the trigger but that the gun went off by itself, shooting and killing LaHood.

LaHood’s girlfriend, Mary Patrick, was the only one to actually see the murder. Shortly after the shooting police pulled over and arrested the group, bringing Patrick to identify the shooter. Patrick initially identified Dillard as the shooter, but later reversed herself in court, saying it was Brown who was the shooter. The triggerman had been wearing a scarf over his face and Patrick also admitted to being intoxicated, making her identification somewhat dubious.

Julius Steen also testified against Brown, saying that he heard Brown demand LaHood’s wallet and a minute or so afterward heard the fatal gun shoot. Brown denies attempting to rob LaHood, saying he had no intention of shooting or harming LaHood. In return for testifying against Brown, Steen was given a lesser sentence on this murder and on another murder in which he was involved. Steen’s testimony was by far the most controversial of this trial. Steen was under immense pressure by prosecutors to testify against Brown; without his testimony there may have been no case at all.

Brown was tried as a co-defendant with Kenneth Foster. No evidence points to Foster as the shooter or as having any more involvement in the murder other than being the driver before and after LaHood was killed. Foster had no knowledge of any intentions of Brown to shoot LaHood, however the two men were still tried together. The defense put forth two requests of severance, asking the court to try the men in two separate trials. Both requests were denied. Because these requests were denied Foster did not testify for fear of self-incrimination. If there had been two trials Foster could have testified that Brown had no intention of killing LaHood. Thus, Brown could have been found guilty of second degree murder, which would have resulted in a sentence less than death. Maurecio Brown deserves the right to a fair trial and the right to life.

Please write to Gov. Rick Perry on behalf of Mauriceo Brown!

Death Row - USA

" FINAL STAND... " By: MAURICEO M. BROWN

This is my life, the life i live
caged like a savage animal
as i take my last stand to win ...
Foaming at the mouth, the beast within me is released
i know there's no going back
this is where i find my peace...
At the sound of my noan, the battle has begun
i'll fight to the death
and i death, i hope my song will be sung...
Surrounded by hatred, that has effected my soul
as pain and anguish has grown hooks
and taken its hold...
I do my best to shake the weariness out of my bones
and reach deep down within to find my reserve strength
so that i can continue on...
As the battle rages on, it seems that the gates of hell has broken loose
i give off a final mighty roan
a roan, that signifies a Kings salute...
As i fall to the ground blood seeping through my pores
i fought all i could fight
till i could fight no more...

*Note to my readers there is a meaning behind this poem, behind its words. And i hope that i will be able to share it with whom ever writes.

November 15, 2004

To whom it may concern...

My name is, Mauriceo Ma' Shawn Brown, and i'm a 29 year old Death Row inmate whom is in search of correspondence. Before i continue about "who" i am, please allow me to thank you for taking time out of your day to read about me, and i hope that there will be something of interest that would grab your attention, and would want you to get to know more about who i am. With that said, please allow me to continue. I am a person that regardless of my situation i still manage to keep my sense of humor in full effect. I enjoy making people laugh and smile. That in itself gives me strength to continue on in my struggle for freedom. It also makes me feel that i did something positive in a way, cause maybe that person needed someone to make them llaugh cause they was having bad day or something. I enjoy writing poetry. Something that i 've done for almost my entire life, that and write music. I do dable in some drawings, but nothing fancy, it's more like a pass time, something keep my mind off of the pressures that surrounds Death Row. I'm a very honest and upfront type of person. I believe that honest is the starting foundation of any relationship and without it, the whatever it is that you build will eventually fall and crumble to the ground. I would like to correspond with people who not only undetsands the importance of honesty, but also tries to live by it as well. Alot of people assume that because i am a Death Row prisoner that i automatically lose all type of feelings, in which is not the case. I'm still a human being. I've made mistakes like any other person has, but it doesn't stop me from being human. It doesn't stop me from hurting, or being lonely, or from crying, or anything that has to do with human nature.

I would also like to correspond with someone whom looking for a correspondence in the long term. Meaning someone who enjoys writing as much as i do. But basically, i'm looking for someone who wouldn't mind being a friend. Because that's all one truely needs and searches for, is a friend. Someone they can write to when things aren't going well, someone to just listen to the problems that we face here on Death Row. And that's what i would like to have, i'm no different from the rest. I would like to have someone i can just talk to, someone who wouldn't mind listening and also giving encouraging words to continue on and not give up. When it's all said and done, i would like to look up and know that i have a friend in my corner ant that i'm not alone. That's what i am looking for is a pen friend. But i also know that friendship is a two way street. And although i can't give you that shoulder to cry on, i can listen as well, and give encouragement too. I don't take take take, i give as well. That's what keeps a healthy friendship growing, that and honesty.

A few more things about myself, i will close this letter and hope that i have said something that will allow someone to take a chance and become interested in becoming a friend. I have a son whom is 8 years old. His name is Octavian. I have an older sister and younger brother. I have also included a poem that i wrote and would like to share with who all that stops and reads my letter. With that, i'll close and once again thank you for your time, have a nice day.

Mauriceo M. Brown

P.S. It doesn't matter of the gender who responds to my letter. Nor does the age matter, as long as you are mature enough to handle to current situation that i' m going through, and understand that i am fighting for my life, and if i lose that battle, what would happen. All is welcome to know me and befriend me. Well that is if, you think i'm befriendable (Smile)

For those that do, i can be reached at following address below:

Mauriceo M. Brown # 999234
Polunsky Unit D.R.
3872 FM 350 South
Livingston - Texas 77351 U.S.A.

Candian Coalition to Abolish the Death Penalty (Inmate Homepage)

MAURICEO BROWN Hello, and how are you doing. My name is Mauriceo Brown and I'm a prisoner on death row in Texas that is looking for a pen pal. Please allow me to fill you in on some things about myself. I'm a 22-year-old African American. I'm from San Antonio Texas, but originally from California. I enjoy playing sports which I played mainly for my school, basketball, football, tennis, soccer, golf, track & field, and last but not least, volleyball. My hobbies are reading mystery novels and writing music, as well as poetry. I spend most of my time writing my family, whom are all I have to write to at the time. That's why I'm writing you, hoping that I might be able to find someone else to write to.

Court TV News

"An interview with Mauriceo Brown."

"Dead man walking,
I might look woke up but I'm sleeping,
Dead man walking,
Dead man walking.
Lord please wake me from these miseries ..."

— Mauriceo Brown

CourtTVnews.com reporters Emanuella Grinberg and Harry Swartz-Turfle interviewed death row inmate Mauriceo Brown on July 11 at the Polunsky Prison Unit in Livingston, Texas. He was executed on Wednesday, July 19. The transcript below has been edited for length and clarity.

COURTTVNEWS.COM: Can you describe a typical day for you on death row?

MAURICEO BROWN: A typical day for me is probably waking up anywhere between 7, 8 o'clock, listening to the radio, doing a little old exercise, working out, going to rec, coming back in, and doing a lot of reading. That's about it.

CTV: What do you like to read?

BROWN: Well, my favorite author at the moment is Dean Koontz, but I read anything from fantasy to fiction to nonfiction to religious books. I guess my favorite series right now, of course, is Harry Potter, so I'm waiting for that book seven to come out. I might do some puzzles. I write poetry, I write music.

CTV: What kind of poetry?

BROWN: Love poems, or just poems concerning the situation around here. The same type with music, rap music, or love songs. Whatever type of mood I'm in, I'll decide to write it.

CTV: What's the high point of your day? What do you look forward to?

BROWN: To eating! [laughter] No, seriously. Probably the mail call. Just seeing who I get letters from, especially my mom. I love to hear from my mom and see how she's doing and holding up. That's my main concern. Keeping her spirits up and her spirits high due to the circumstances that are slowly starting to unfold. I know it's worrying her because she's not knowing what's going to happen. We all don't. ... I continue to pray and ask for strength. As long as she comes and sees me in a good mood, then she's going to be in a good mood. So that's my high point, just spending time with my mom.

CTV: How has life in prison changed you?

BROWN: Well, see, when you're out there in the world, everything's moving at a fast pace. And prison life, what it does is, it slows it down for you. It lets you actually see things and what's more important to you in life, what's going on in the world. You see what I'm saying? You see the small things and you start to notice, you miss the small things, like the sunrise and the sunsets. Or even just being out in the country and walking in the grass with your shoes off or something. It's made me a more mature person, a better person, and it's also brought out, I guess, my sense of humor side. You have to have laughter, because if you don't, you'll walk around depressed, and then from there you got suicide thoughts and you're trying to kill yourself.

CTV: How do you keep a sense of humor?

BROWN: Well, I've pretty much been the class clown all my life, you know what I'm saying? So we tell jokes, bust jokes, just do silly things, you know. You don't worry about your pride or your ego when you do it, you just do it. Everybody on death watch, that's where I'm at, death watch. It's like camaraderie, it's like a family. We all know each other's pains, we know each other's struggles, and we do things to keep each other uplifted. Whether it be telling jokes, playing the dozens, cracking on one another ... you know, whatever it is to keep the flow going, to keep the happiness going.

CTV: Do you have a favorite joke you could tell us? That's appropriate?

BROWN: Let me see. OK. One day, a teacher was explaining to the class that it was physically impossible for a whale to swallow a human being, because of the size, it doesn't matter, because of the throat, it has a small throat. So the little girl in the class raised her hand and said, "That's not true, because Jonah was swallowed by a whale." Again, the teacher, she was like irritated by the child, and she said, "No. It's physically impossible for a whale to swallow a human being." So the little girl says, "I'm going to ask Jonah when I get to heaven." And the teacher was like, "What happens if Jonah ain't in heaven? What if Jonah went to hell?" Then the little girl was like, "Well, then you ask him."

CTV: What do you miss most about life on the outside?

BROWN: Being there for my son, like I want to. I have a son, you know, he's 10 years old, and I got locked up when he was 6 months. So that's one thing I missed the most. Not being there when he took his first steps, when he said his first words. Any of that. First birthday, first Christmas, bringing in the New Year's, and all that kind of stuff. That, and just being with family. Like I say, even when I was out there running around the streets I always made time for family.

CTV: Are you in touch with your son?

BROWN: I seen him a couple weeks ago. I'm not in touch with him like I want to be, but my family is in touch with him. My mom talks to him every other day. Hopefully I'll get to see him in these upcoming days.

CTV: Are you in touch with his mother?

BROWN: Unfortunately, she got married and kind of moved on with her life. And that's understandable. We parted on not the best of terms anyway. She talks to my mom and she asks about me, and she's pretty much worried with what transpires here.

CTV: Growing up, what was your relationship like with your parents?

BROWN: That's a pretty much hectic one. Growing up, it was heck. My parents were separated and when I was 2 years old, my father took me away from Mom, pretty much kidnapped me. My mom tried to get me back. She wanted to call the police and everything. But you know, he told her that if she ever got in touch with the police, she would never see me again. And during the time he had me, it was just pure heck. It was sleeping underneath bridges, abandoned houses, abandoned cars, being eaten by roaches and everything else, and it wasn't until four years later my mom got me back. They had to hospitalize me for a while because I was dehydrated and malnutritioned, scars from different types of bites, infections and everything. It was just kind of weird. But from the time I had a relationship with my mom, we had a good relationship. She raised me the best a mother could, but at the same time there was really no male role model.

CTV: What did you turn to to replace that role model?

BROWN: The streets, you know what I'm saying? Pretty much the streets. And smoking weed, drinking, hanging out with the wrong type of crowd. I tried to spend most of my time playing basketball. I was pretty good at sports, very athletic, played basketball, football, ran track, and everything. Like I said, basketball, that was my number one heart right there. ... Still, I got caught up in the streets more than anything.

CTV: So why did you do that instead of basketball?

BROWN: Well, you know what? To tell you the truth, if you look back over everything, like I said, I had no problem working. I had plenty of jobs. I constantly worked from the time that I was young. CTV: What is your happiest memory from childhood?

BROWN: I guess when I made the basketball team.

CTV: When was that?

BROWN: That was my freshman year. When you're in junior high, they take anybody on the basketball team. Because they got different types, you got A squad, B squad, and C squad. But when you get to high school, it's a different atmosphere, a different type of game. The competition level is up, so that was one of the happiest moments right there.

CTV: As a child, what did you want to grow up to be?

BROWN: NBA basketball player. I wanted to play in the NBA.

CTV: Was there any particular moment in your life that you consider a turning point?

BROWN: Yes. The day my son was born. That was a turning point. I seen then that a lot of things needed to change. It was a little bit before then, because I was still looking to change the atmosphere, especially when I found out that Tibby was pregnant. So it was then that I wanted to try to make the preparations to try to be there for my son. Like I say, my father wasn't there for me, so I wanted to be there for my son. And I tried to make the steps necessary, but when you get caught up in the streets you can't just expect to walk away. So it was kind of difficult for me to do so, so I just ended up getting caught up.

CTV: Can you talk a little bit more about that? Why couldn't you walk away?

BROWN: Well, it's like once you get in, you're in for life. There is no walking away. When this case took place, even before this case took place, I tried to walk away and was already threatened once. ... I don't care about threats made upon my life. That's cool. That's the game. But when you start talking about my son and my family, like I said, my son was 6 months old at the time and they're already threatening to kill him. So, that was an eye-opener.

CTV: What happened that evening?

BROWN: Well, you know, we was driving around, drinking, smoking, whatnot. I don't know how we got to this side of town anyway, to tell you the truth. Anyways, we end up behind two cars, two Mustangs I believe it was. And they turned into a residential area. Now, we was not following these cars, was not planning on doing anything to these people. As a matter of fact, I believe we was just lost. These cars turned off into this house, so we kept going. The driver made the U-turn and by the time we came back around, there was this chick, scantily dressed, you know what I'm saying? This is like two in the morning. She's flagging us down. It's like, is there a party going on or something? We're pulling over. She got to arguing with the driver because we had our bright lights on and the argument led to another thing. The person who I guess was in the first car was the victim. He came out and seen the argument happening. Another individual got out of [our] car and started arguing with him. He got shot and we drove off. ... They tried to make it seem like a robbery gone bad, but like I said, nothing was taken from them. He still had all his jewelry, keys to his car, and everything.

CTV: Why did you confess to the shooting?

BROWN: When we drove off, that's when we started arguing amongst ourselves. The driver of the car, he kept driving fast and swerving and I kept telling the person, "You need to get rid of the gun, you need to do something." I made the comment that I wasn't going to jail for no bullcrap that ya'll done did if you want to act stupid. And then they got quiet for a second, and the person who was in the backseat with me ... was like, "You're going to keep your mouth shut, that's what you're going to do." The police pulled us over at the gas station. ... They brought the witness, the female I was talking about. They did the lineup right there. And she picked the dude who was in the backseat with me as being the shooter. So they separated us and put us in different cars. ... And they came and asked me, "What happened?" So I told him what happened, and he was like, "That's not what your friends are saying, not what your homeboys are saying. They're saying you got out of the car and that you did the shooting." ... [Later at the police station, interviewed by several officers] ... And it's like they're all crowded in around me, and I can't go nowhere and so I was like, "Look. I want to make a phone call. I want to call my mom." He was like, "You can't call home unless it's an attorney." So, he was like "Now do you want to tell us what happened?" I was like "What did they say happened?" And he started telling me what happened, and I said, "OK, cool. That's what happened." I made my statement: "Yeah, that's what happened. I did this, I did that, that's what happened."

CTV: Do you regret giving that statement?

BROWN: Yes, I do. And I regret it for the fact that I didn't put more faith in the man upstairs to look over my family. But, you know, when you're in the streets and you've been around these people for a while, you kind of know that it could happen. You know that it could happen. You see things, and it gives you a perspective on where you're at. That's another reason I tried to walk away from it the first time and my life was threatened. Because I knew that it wasn't me. I knew that I was being somebody that I wasn't. Bottom line, you know what I'm saying? I knew that I got into this for all the wrong reasons, and it just wasn't me. I should've stayed with basketball.

CTV: What is your biggest regret in life?

BROWN: When Tibby was pregnant, I think she was like eight months pregnant, and I was at her house, and she was sitting on her bed, and I had got on my knees. I used to talk to my son through her belly, right? So I got on my knees and I kissed her belly and I was talking to my son and I promised him that I would always be there for him and that I would not do him the way my father did me, that I would be there for him and be the man that he needed me to be. Like I said, this was before he was even born. That's my biggest regret right there. Because now I might not be able to, well, I haven't fulfilled my promise, put it like that. With my date looming to be next Wednesday on the 19th, dealing with Texas, the odds ain't in my favor, put it like that.

CTV: So, are you prepared for the worst?

BROWN: Oh yeah, I'm prepared for the worst. I guess that's why I got the attitude I got now. A lot of people, even officers here and friends that write me, they be like, "Gosh, you do know you've got a date next week?" And I do, but I've come to peaceful terms. Like I tell everybody, my simple motto is we're born to live and we live to die. We may not like the way we die, we cannot pick and choose the way we die, it happens. That's the sins, due to Adam and Eve, that we pay for ... That's just the way life is. I've come to accept that, and more importantly, if I die here, at least I've had the time to get my life right with God. You know what I'm saying. That's the most important thing, regardless of what happens. It's getting your life straight with God. If you die here, that's cool, but do you know you're going to a better place? That's the main concern.

CTV: What do you think will happen to you after you die?

BROWN: You mean, like, in a spiritual sense?

CTV: Yeah.

BROWN: Well, I guess after I die I'll be there in heaven at the golden gates. I do believe that there's a heaven, and I believe there is a hell. A lot of people say this is hell that we're on. But I believe I would like to be in the Land of the Milk and Honey. I believe that I've prepared my soul and my spirit for that journey. But, like I said, I do believe that if I was to die right now, or die on the 19th, that's where I'll be.

CTV: Do you think life in prison would be worse than the death penalty?

BROWN: Well, no, I don't. See, everybody say, yeah, that's worse. But it depends on how you live your life. If I got life in prison, the way I would live my life wouldn't be worse because that's just more people that you might be able to touch, people's lives you might be able to touch. You might come across a young person who ain't got nothing but five years and is a hardhead, and you're able to share with that person stuff you've been through and maybe direct him down a different road. It's all how you look at it.

CTV: Is there anything you want people to know about you that they may not know already?

BROWN: The state of Texas, what they try to do is make us all out to be animals and hardcore killers and gang members who don't care about nobody else but ourselves. Like I said, they tried to do the same thing with me. And even though they tried to paint this picture, if you look at my life, you go back and look at the paperwork and my arrest record and my time here being locked up, you see contradicting views. You see they're very contradicting. I'm not no animal or the person who they say that I am. I'm me, I'm Mauriceo.

CTV: And who is that?

BROWN: I'm the type of person who would give you my last. If I have something, and you ain't got nothing, it's yours. Even if it's my last. I'm the type of person that if I see that you're down or something, I try to uplift you. I try to bring joy to your life. I'm the clown. I'm the one who's bringing laughter to somebody's face. I can't stand to see somebody sitting around depressed. If I see you're depressed, I'm going to keep talking to you until you yell at me, come out of your depression, do something. That's just who I am. The way I am. I'm a Cancer, so we're sentimental people anyway. That's what I am.

CTV: What do you want to be remembered for?

BROWN: Hopefully for my kindness. Just the type of person that brings joy to people's life. Everybody who knows me, I want them to let the world know, "This is who Mauriceo really was," you know what I'm saying? He wasn't this person here or the person they tried to make him out to be, this is who Mauriceo was. He was a loving, caring person, who pretty much wore his heart on his sleeve, who would give you his last. Who would do anything, go out of his way to get things done for you. If you needed something, I would go out my way to do it, no questions asked. Nothing in return. That's just the way I was.

"His life: Kidnapped as a child," by Emanuella Grinberg.

After a week-long trial, 21-year-old Mauriceo Brown was sent to Texas' death row in 1997 for shooting Michael LaHood Jr., the son of a prominent defense attorney, in what prosecutors called a botched robbery.

At his capital murder trial with co-defendant Kenneth Foster, Brown took the stand and told jurors that he accidentally shot the 25-year-old law student in the head at point-blank range because he thought LaHood was going to shoot him first.

Less than an hour after the shooting, police arrested Brown and his friends, Dwayne Dillard, Kenneth Foster and Julius Steen, as they sped away from the crime scene. Officers found the .44-caliber handgun that was later identified as the murder weapon in the vehicle.

In exchange for a lighter sentence on a charge of aggravated robbery, Steen agreed to testify against his friends at their trial. He told jurors that on the evening of Aug. 15, 1996, they were cruising the streets of downtown San Antonio, smoking marijuana and drinking, when they decided to commit a string of armed robberies. He said they netted about $300 in their first two robberies. Then, as they were driving out of a residential cul-de-sac, they came upon LaHood and his friend, Mary Patrick, in the driveway of LaHood's home, and stopped the car.

Steen testified that he saw Brown emerge from the car with a gun and demand LaHood's wallet. A shouting match escalated into gunfire, according to Steen, although he testified that he did not actually see Brown fire the weapon. Once the men were back in the car, Steen said Brown insisted that they get rid of the gun.

But police arrested them before they had the chance to cover their tracks, and at the police station, Brown signed a confession stating that he shot LaHood. Both Brown and Foster were convicted and sentenced to death.

Since his conviction, Brown has attempted to recant his confession, claiming that the real gunman, Dwayne Dillard, threatened to kill his newborn son and mother unless he took responsibility for the shooting. As they drove away from the scene, Brown claims that Dillard made a comment that he interpreted as a threat to his family. Then, after their arrest, Brown says he learned that his friends had identified him as the gunman to police.

"I'm starting to see what's going on, along with the threat made against my son and my mom," Brown told CourtTVnews.com. "I regret that I didn't put more trust and faith in the man upstairs to look over my family, but when you're in the streets and you've been around these people for a while, you kind of know it can happen."

Brown says he told his court-appointed attorneys about the false confession and the threats to his family, but they shrugged it off, he says, and "forced" him to testify anyway. Brown unsuccessfully attempted to appeal his conviction based on their handling of the case.

With Brown's scheduled execution within days, his appellate lawyers have stepped up their efforts to stay the execution by proving that Brown was not the shooter. The bailiff who escorted Brown to and from his trial filed an affidavit Monday claiming that, during his trial, Brown told him that Dwayne Dillard had threatened to kill his son, who was 6 months old when his father was arrested for the murder. "On one particular occasion, I found Mr. Brown crying very hard in the holding cell," Bexar County Sheriff's deputy Lorenzo Contreras said in a signed affidavit. "Mr. Brown informed me that Mr. Dillard, a co-defendant, had threatened to kill his girlfriend and new baby if he did not take the blame for the murder of LaHood. Mr. Brown stated he was, in fact, at the murder scene, but did not kill LaHood."

To prove this claim, Brown's appellate lawyer asked a judge last week to let him perform DNA tests on the clothes the four suspects were wearing the night LaHood was shot. Brown's lawyer, David Sergi, told CourtTVnews.com that the tests would prove that blood spatter from the victim landed on one of Brown's co-defendants, proving that he was the gunman and not Brown.

A judge denied the request Friday, paving the way for Brown's execution on Wednesday, July 19, unless a final appeal succeeds. On Monday, Sergi filed a writ based upon statements from Brown's cohorts, including Julius Steen and Dwayne Dillard, who was never charged in the shooting. In a signed affidavit dated July 6, Dillard asserted that the shooting did not occur in the midst of a robbery, a factor that enhanced Brown's charges to capital murder. "I maintained throughout that we had not been intentionally following the vehicles of Mary Patrick and Michael LaHood, but rather, we were just driving behind them coincidentally prior to the altercation," said Dillard. "This was neither a planned robbery nor a robbery, as we had no intention of robbing Mary Patrick or Michael LaHood."

Dillard also claimed in the affidavit that he was never charged in the shooting because his statements "countered that state's theory" of a planned robbery. He is currently serving a life sentence for the murder of a shuttle bus driver just weeks before LaHood's death.

Steen has also come forward to contradict his own trial testimony and lend support to the claim that Brown should never have been accused of killing LaHood during a robbery. "There was no agreement, explicit or otherwise, to rob Michael LaHood or Mary Patrick," Steen claimed in an affidavit.

As Brown awaits the final outcome, the 31-year-old says he has always been prepared for the worst, and does not fear death. "My simple motto is: We're born to live, and we live to die ... We may not like the way we die, we can't pick and choose the way we die, but it happens," he said. "If I die here, at least I'll have time to get my life right with God ... That's the most important thing."

Brown v. Dretke, 419 F.3d 365 (5th Cir. 2005) (Habeas).

Background: State prisoner who was convicted of murder and sentenced to death petitioned for writ of habeas corpus. The United States District Court for the Western District of Texas, Xavier Rodriguez, J., 2004 WL 2793266, granted summary judgment for the state, and denied a certificate of appealability (COA). Petitioner sought a COA from the Court of Appeals.

Holdings: The Court of Appeals, Benavides, Circuit Judge, held that:
(1) petitioner's claim that the state trial court's refusal to sever his trial from that of his co-defendant resulted in a violation of his Sixth Amendment right to confront witnesses against him was not properly exhausted;
(2) COA was not warranted on petitioner's claim that state trial court's refusal to sever resulted in jury being unable to render individualized sentencing determination, in violation of Eighth Amendment;
(3) Strickland did not require district court to sua sponte aggregate the prejudicial effect of all alleged deficiencies of petitioner's trial counsel;
(4) COA was not warranted on petitioner's claim that trial counsel's pre-trial investigation was insufficient;
(5) COA was not warranted on petitioner's claim that state trial court's refusal to allow him to cross-examine witness about inconsistencies in her representations about her marital status violated his Sixth Amendment right to confront witnesses;
(6) COA was not warranted on petitioner's claim that state trial court's admission of unadjudicated criminal conduct during the punishment phase violated his constitutional rights; and
(7) COA was not warranted on petitioner's claim that his due process rights were violated by original state habeas judge's failure to recuse himself until after state habeas hearing, which resulted in findings of fact and conclusions of law being made by substituting judge who was not present for trial or the state habeas hearing. Certificate of appealability denied.

BENAVIDES, Circuit Judge:
Petitioner Mauriceo Mashawn Brown was convicted in Texas state court of capital murder and sentenced to death. Subsequently, Brown filed a petition for habeas corpus relief in a federal district court, which denied the petition and declined to issue a certificate of appealability (“COA”) on any issue. Brown now requests this court to grant a COA pursuant to 28 U.S.C. § 2253(c)(2). For the reasons that follow, Petitioner's Application for a Certificate of Appealability is denied.

I. BACKGROUND

On August 15, 1996, Brown, Kenneth Foster, DeWayne Dillard, and Julius Steen perpetrated a series of armed robberies which ultimately led to the fatal shooting of Michael LaHood, Jr. According to evidence presented at trial, the four men had been together, smoking marijuana, and driving around San Antonio in a vehicle driven by Foster. In the early morning hours of August 15, Brown suggested, and the others agreed, to look for individuals to rob. After they robbed four individuals in two separate incidents, Foster began following a pair of vehicles that ultimately stopped at the LaHood residence. Foster had begun to turn the car around to exit the unfamiliar neighborhood, when Mary Patrick exited one of the two vehicles Foster had been following and confronted the occupants of the vehicle that had been following her. After the brief confrontation, Patrick and Michael LaHood, who had been driving the second followed vehicle, began walking toward the entrance to the LaHood residence. Brown subsequently exited the car and walked up to LaHood with a gun in hand. According to Patrick, Brown demanded LaHood's keys, pointed the gun at LaHood's face, and shot. LaHood died as a result.

A jury subsequently found Brown and Foster guilty of capital murder and sentenced Brown to death. Brown appealed his conviction to the Texas Court of Criminal Appeals, which affirmed the judgment of the trial court. In December of 1998, Brown filed an application for state habeas corpus relief. After a lengthy evidentiary hearing, the state habeas court denied relief. Brown then filed a petition for habeas corpus relief in federal district court. The district court denied relief and declined to issue a COA.

Brown now asks this Court to grant a COA and raises several grounds for relief: (1) the trial court's failure to sever Brown's trial from that of his co-defendant (Grounds 1 and 6); (2) his trial counsel's ineffective assistance (Grounds 2 and 3); (3) the trial court's limitation of cross-examination of prosecution witness Mary Patrick (Ground 4); (4) the trial court's admission of unadjudicated criminal conduct during the punishment phase of trial (Ground 5); and (5) the adjudication of his state habeas application by a judge who did not preside over the trial or a portion of the state habeas hearing (Ground 7).

* * *

Petitioner has not shown that reasonable jurists could disagree with the district*379 court's denial of any of his claims, nor could jurists conclude that any of Petitioner's claims deserve encouragement to proceed further. Accordingly, we deny Petitioner's Application for a Certificate of Appealability.

Brown v. Dretke, Not Reported in F.Supp.2d, 2004 WL 2793266 (W.D.Tex. 2004) (Habeas).

RODRIGUEZ, J.
Petitioner Mauriceo Mashawn Brown seeks review of his May, 1997 conviction for capital murder and sentence of death through this habeas corpus action pursuant to 28 U.S.C. § 2254.

I. Factual and Procedural Background A. The Offense

Petitioner, Kenneth Foster, DeWayne Dillard, and Julius Steen embarked on a string of armed robberies that culminated in the fatal shooting of Michael LaHood, Jr. during the early morning hours of August 15, 1996.FN1 Shortly after the shooting, all four participants in the robberies were arrested and gave written statements to police identifying petitioner as the person who fatally shot LaHood.FN2LaHood died as a result of a single gunshot wound to the head.FN3 Police found the handgun from which the fatal shot was fired in the vehicle Foster was driving and in which petitioner, Dillard, and Steen were riding at the time of their arrests.FN4 While petitioner admitted in his statement to police that he was holding the gun when the fatal shot was fired, he denied that he had attempted to rob LaHood or that he had intentionally caused LaHood's death.FN5

FN1. Martha Donnelly testified at the guilt-innocence phase of petitioner's capital murder trial that she was robbed at gun point by two black males as she walked home from work late at night on August 14, 1996. Statement of Facts from petitioner's trial [hereinafter “S.F. Trial”, Volume XVI, testimony of Martha Donnelly, at pp. 25-40. Two other women testified that they and a third person were robbed at gun point by two black males later the same evening at a location near where Martha Donnelly had been robbed. S.F. Trial, Volume XVI, testimony of Heather McIntosh, at pp. 100-10, 113, & 118-19; and testimony of Sharon McCullough, at pp. 128-38. These women testified that their assailants matched the description of petitioner and his co-defendants.

Further, Julius Steen testified at the guilt-innocence phase of petitioner's trial that (1) Kenneth Foster picked up Steen, DeWayne Dillard, and petitioner on the evening of August 14, 1996, (2) the four men went cruising, smoking marijuana, and looking for persons to rob, (3) he rode shotgun and was primarily responsible for spotting potential victims, (4) he and petitioner robbed Martha Donnelly at gun point, (5) petitioner brandished the gun during the Donnelly robbery, (6) he struck Ms. Donnelly after she relinquished her purse, (7) shortly thereafter, he and petitioner robbed a group of three people while petitioner again brandished the gun, (8) all four men divided the proceeds from both robberies equally, and (9) petitioner wore a black “Wilson” tee shirt the night in question, which Martha Donnelly testified was worn by her assailant. S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 276-304, 384-86, 390-92, 395-97, 427, 429, & 433.

Petitioner testified at the guilt-innocence phase of his trial that he and Julius Steen committed both of the foregoing armed robberies but insisted that Steen had held the gun during both robberies. S.F. Trial, Volume XVIII, testimony of Mauriceo Brown, at pp. 724-29. Petitioner admitted that he had given the police a written statement in which he admitted that he had held the gun during the robberies but, now, insisted that was incorrect. Id. at pp. 730, 746-49, & 752-53. Petitioner's written statement to police regarding his participation in the two robberies immediately prior to the LaHood shooting was admitted into evidence and read in open court. S.F. Trial, Volume XVIII, testimony of Gabriel Trevino, at pp. 613-17; S.F. Trial, Volume XXI, at pp. 52-53.

FN2. Petitioner's written statement, in which he admitted that he was holding the gun that fired the fatal shot at LaHood, was admitted into evidence during the guilt-innocence phase of petitioner's trial, as State Exhibit No. 34 and read in open court. S.F. Trial, Volume XVIII, testimony of Ramiro Alvear, at pp. 589 & 592-97; S.F. Trial, Volume XXI, at pp. 49-51. Kenneth Foster's written statement concerning the LaHood shooting was admitted into evidence as State Exhibit No. 38 and read in open court. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 648-54; S.F. Trial, Volume XXI, at pp. 56-59.

FN3. S.F. Trial, Volume XVII, testimony of Russell D. Deidiker, at pp. 687-706.

FN4. The San Antonio Police Officer who stopped the vehicle testified that he observed a handgun on the floor under the front passenger seat. S.F. Trial, Volume XVII, testimony of James Phelan, at pp. 456-69. The San Antonio Police Detective who processed Foster's vehicle following the arrest testified that a .44 caliber pistol, containing two live rounds and one empty shell casing, was found inside the vehicle. S.F. Trial, Volume XVII, testimony of Salvatore Gomez, at pp. 235-36, 239-41, & 247-49. Additionally, a Bexar County Crime Lab firearms examiner testified that he compared the deformed bullet obtained during the autopsy of Michael LaHood with a bullet he test-fired in the revolver and determined that both bullets had been fired from the same weapon. S.F. Trial, Volume XVIII, testimony of Edward William Love, Jr., at pp. 631-35.

FN5. In his written statement concerning the LaHood shooting, petitioner stated that he got out of Foster's vehicle and approached LaHood for the purpose of telling him that “everything was cool,” LaHood made “some kind of move,” and he became scared and pulled out his gun, which simply went off as he pointed it. S.F. Trial, Volume XXI, at p. 50; S.F. Trial, Volume XVIII, testimony of Ramiro Alvear, at pp. 592-97. In his testimony at the guilt-innocence phase of his capital murder trial, petitioner testified that he got out of the vehicle to confront a woman who had argued with Foster and to get her phone number, but as he approached the car parked in the driveway, LaHood emerged from a vehicle and directed him to get off LaHood's property. Petitioner further testified that he thought he saw the handle of a handgun in LaHood's waistband and heard what he believed to be a .9 millimeter handgun being cocked, he pulled out his own gun and it just went off, and he never asked for LaHood's wallet and never intended to rob or shoot LaHood. S.F. Trial, Volume XVIII, testimony of Mauriceo Brown, at pp. 733-37.

On October 29, 1996, a Bexar County grand jury indicted petitioner in cause no. 96-CR-5255-A on a charge of capital murder.

B. The Guilt-Innocence Phase of Trial

At both phases of his trial, petitioner testified, in a manner consistent with his statement to police, that (1) he approached LaHood, not for the purpose of robbing him but, rather, to obtain the telephone number of the young woman who was with LaHood and (2) upon hearing what sounded to him like the click of an automatic weapon, he raised his gun and it discharged in LaHood's face. Foster's statement, which tended to corroborate petitioner's version of the events surrounding LaHood's shooting, was also admitted into evidence.FN6

FN6. Kenneth Foster's written statement concerning the LaHood shooting was admitted into evidence as State Exhibit No. 38 and read in open court. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 648-54. In his statement, Foster stated that after he had a verbal altercation with a pretty female, she ran off and petitioner jumped out of their car and began a conversation with LaHood that he could not hear. Foster stated that he and the others in the car unsuccessfully attempted to get petitioner back in their car, he heard a gun shot and saw someone fall, but until that instant, did not know petitioner had a gun or where the gun came from, and petitioner then returned to the vehicle and would not respond when asked what happened. He further stated that they drove away but were stopped by the police not long thereafter. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 651-53; Volume XXI, at pp. 56-58..

However, Julius Steen, who had entered into a plea bargain agreement that spared him from prosecution for both the murder of LaHood and his participation in another murder, testified at the guilt-innocence phase of petitioner's trial that Foster drove him, petitioner, and Dillard, around north San Antonio on the night in question for the purpose of committing robberies, and that he and petitioner committed two armed robberies before Foster began following a pair of vehicles to the LaHood residence. He stated that petitioner then got out of the vehicle after the young woman who was with LaHood and had flagged them down and cursed them out for following her vehicle, approached LaHood and demanded his wallet, and a moment later, he heard a shot and saw petitioner run back to the vehicle.FN7

FN7. S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 311-27. Steen admitted on cross-examination that he thought he saw LaHood “shoot them the finger” and, when he asked the others if they had seen the same thing, petitioner got out of the car, petitioner did not discuss robbery before he got out of the car, and he did not know whether petitioner intended to rob LaHood when petitioner first approached LaHood, but he did hear petitioner demand LaHood's wallet before he heard the shot. Id., at pp. 368, 375-76, 412-13, & 445-47.

Additionally, prosecution witness Mary Patrick testified at the guilt-innocence phase of trial. According to her testimony, she and LaHood were involved romantically, on the night in question, shortly after they dropped off a friend of LaHood's, a vehicle began following closely behind her as she followed LaHood to his residence and continued to do so for many miles. When they arrived at the LaHood residence, she walked down to the street and confronted the occupants of the vehicle that had been following her, had a brief, unpleasant, conversation with the occupants of that vehicle, turned, and began walking away, but as she and LaHood walked toward the house, the vehicle took off and then abruptly stopped and backed up. She heard a door slam and saw a man get out of the vehicle and run toward them, and as she and LaHood began to walk back toward LaHood's vehicle, which was parked in the driveway, a man approached them wearing a scarf across his face, holding a gun in his hand, and demanding LaHood's keys. When LaHood told her to get in the house, the gunman demanded LaHood's wallet and money. LaHood responded “she's coming back with the keys.” Patrick testified she looked back, tripped, and fell, and as she stood back up, she saw the gunman point the gun at LaHood's face and stand there for about two minutes. She then heard a loud shot and saw LaHood fall to the ground and she then ran to the door, banged on it, and screamed that LaHood had been shot. Not long after the shooting, police drove her to a gas station where the four occupants of the vehicle that had followed her were being held. She identified DeWayne Dillard as the person who shot LaHood but did so because she was very distraught at that time, and she testified that at trial she believed petitioner had been the shooter, based upon her recollection of his eyes.FN8 On cross-examination, Patrick admitted that she had quite a bit to drink that night, she had only seen the shooter's eyes and head above his scarf and below his baseball cap, and she had identified Dillard as the shooter on the night in question at the gas station.FN9

FN8. S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-515. FN9. Id., at pp. 526-27, 536-40, & 545.

On May 1, 1997, the jury returned its verdict at the guilt-innocence phase of trial, finding both petitioner and Foster guilty of capital murder.

C. The Punishment Phase of Trial

At the punishment phase of trial, the prosecution presented evidence showing petitioner's affiliation with a notoriously violent gang,FN10 his sale of a pipe-bomb to an undercover officer on a high school campus,FN11 and his violent burglary of a vehicle only days before the fatal shooting of LaHood. FN12 The prosecution also entered evidence of Foster's involvement in a near-fatal shooting of two individuals,FN13 involvement in a drug deal with an undercover officer,FN14 and arrest for possession of crack cocaine.FN15 Evidence of petitioner and Foster's mutual involvement in the armed car-jacking and robbery of a tourist in downtown San Antonio a day or two before the LaHood murder was also entered.FN16

FN10. A Bexar County Deputy Sheriff testified that, under a jail intake interview, petitioner claimed to be a member of the Hoover '74 Crips gang. S.F. Trial, Volume XIX, testimony of Mike Allen, at pp. 8-11. A Bexar County Juvenile Probation Officer testified that the Hoover-74 Crips had a reputation for dealing drugs and weapons and were a very violent gang. S.F. Trial, Volume XIX, testimony of Michael Martinez, at pp. 22-23.

FN11. An undercover East Central Independent School District Police Officer testified that on March 28, 1994, petitioner showed him a home-made pipe bomb that petitioner claimed to have made and sold it to him for five dollars. S.F. Trial, Volume XIX, testimony of Ezekiel Flatten, at pp. 57-59 & 64.

FN12. A River Center Mall security guard testified that on April 11, 1996, he personally observed petitioner smash the front passenger window of a vehicle parked in a mall parking lot, he observed petitioner throw an object into a red Buick Regal before getting into the vehicle and driving off and two or three minutes later, the police pulled petitioner's vehicle over and he identified petitioner as the auto burglar. S.F. Trial, Volume XIX, testimony of Charles R. Cagle, at pp. 76-80.

FN13. Three eyewitnesses testified about an incident on October 17, 1994 during which Kenneth Foster, without provocation, fired several shots into their vehicle, striking two of the occupants of their vehicle and seriously wounding one of them. S.F. Trial, Volume XIX, testimony of Arturo Santana, at pp. 29-39; testimony of Christina Santana, at pp. 42-48; and testimony of Juan Santana, at pp. 51-55. Christine Santana, the only one of the occupants of the victims' vehicle who was not wounded, identified Foster as the person who had shot at them from a moving vehicle. Id., testimony of Christine Santana, at p. 48.

FN14. An undercover officer working with the Alamo Area Narcotics Task Force testified that he purchased from Foster what was represented to be a pound of marijuana on May 4, 1995. S.F. Trial, Volume XIX, testimony of Nathaniel Simmons, at pp. 83-88.

FN15. A San Antonio Police Officer testified that he arrested Foster on May 8, 1994 for possession of crack cocaine and marijuana. S.F. Trial, Volume XIX, testimony of Gilbert Rocha, at pp. 96-102.

FN16. Julius Steen testified that, a day or two before the LaHood shooting, petitioner, Steen, Dillard, and Foster were all involved in an armed robbery and car-jacking in which petitioner and Dillard robbed the owner of a Mercedes of his vehicle and cell phone at gun point in the parking lot of a downtown San Antonio hotel. S.F. Trial, Volume XIX, testimony of Julius Charles Steen, at pp. 122-25. The victim of that armed robbery also testified and corroborated Steen's account, as well as adding that when police recovered his vehicle, the cell phone that had been in the glove compartment was missing. S.F. Trial, Volume XIX, testimony of Arsenio Reyes, Jr., at pp. 143-49. A San Antonio Police Officer testified that he conducted a search of the vehicle in which Foster, petitioner, Dillard, and Steen were riding at the time of their arrest the night of the LaHood shooting testified that he found two cell phones in the trunk of that vehicle. S.F. Trial, Volume XIX, testimony of Gary McMaster, at pp. 161-69.

Petitioner presented expert testimony from a psychiatrist who had examined petitioner and who testified that petitioner requires treatment for depression, petitioner's degree of narcissism is within the normal range, the best indicator of future violence is a person's past behavior, and the tendency toward aggressiveness tends to reduce as people age.FN17 Petitioner also presented testimony from his mother that he had been kidnaped, isolated, mal-nourished, and abused by his father from age two to six, displayed signs of hyperactivity throughout his years in school, began having trouble with the law at age fourteen but had never been a violent person, and had become more religious since his arrest for capital murder.FN18 Other witnesses, including petitioner's grandmother, uncle, neighbor, pastor, and the mother of petitioner's child, testified that petitioner had never been violent, had been active in his church youth group, and had newly dedicated his life to God. FN19

In addition, petitioner testified at the punishment phase of his trial that he was not a violent person and the shooting of LaHood had been accidental, he felt bad for the LaHood family, and had considered taking his own life but had found peace through reading the Bible and prayer. He further testified that he never demanded anything from LaHood, had never made or sold a pipe bomb, had no criminal responsibility for the firearm possession charge to which he had pleaded guilty, nor for the burglary of a vehicle charge against him, and, while he associated with members of the '74 Hoover Crips, he was never actually a member of that gang.FN20 FN20. S.F. Trial, Volume XIX, testimony of Mauriceo Brown, at pp. 242-66.

On May 6, 1997, the jury returned its verdict. The jury answered that (1) there was a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character, background, and personal moral culpability, there was insufficient mitigating circumstances to warrant a sentence of life imprisonment.FN21 The state trial court imposed the sentence of death. FN22

D. Post-Conviction Attacks

Petitioner appealed to the Texas Court of Criminal Appeals. As points of error, petitioner argued that there was insufficient evidence to support his conviction for capital murder and the Texas death penalty violates the Eighth Amendment. Petitioner also argued that his trial counsel rendered ineffective assistance by eliciting damaging testimony regarding petitioner's involvement in other crimes, opening the door to the admission of evidence of extraneous offenses at the guilt-innocence phase of trial during the cross-examination of Julius Steen, failing to request a severance, failing to request a limiting instruction regarding evidence of Foster's extraneous offenses, calling petitioner to testify, thereby subjecting petitioner to cross-examination, and presenting evidence of petitioner's deferred adjudication for possession of an explosive weapon. In an unpublished opinion issued February 17, 1999, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence. FN23

FN23. Brown v. State, Cause No. 72,852 (Tex.Crim.App. February 17, 1999). The Texas Court of Criminal Appeals concluded that (1) petitioner's attack on the sufficiency of the evidence supporting his conviction was little more than a facially inadequate attack on the credibility of various prosecution witnesses; (2) petitioner had failed to factually develop most of his ineffective assistance claims; (3) reasonable tactical reasons could have existed for the actions of petitioner's trial counsel which petitioner now challenged and petitioner had failed to overcome the presumption of reasonableness that accompanies most strategic decisions made by trial counsel; and (4) petitioner's constitutional challenges to the Texas death penalty had been rejected by both state and federal courts.

On December 18, 1998, petitioner filed an application for state habeas corpus relief.FN24 FN24. Petitioner put forward numerous claims for relief, including: (1) his trial counsel rendered ineffective assistance by eliciting damaging testimony regarding extraneous offenses during Steen's cross-examination; opening the door to damaging testimony of other extraneous offenses during Steen's cross-examination; failing to request a hearing regarding the admissibility of extraneous offenses; failing to request a severance; failing to request a limiting instruction regarding evidence of Foster's extraneous offenses; calling petitioner to testify, and thereby subjecting petitioner to cross-examination, at the guilt-innocence phase of trial; opening the door to cross-examination regarding petitioner's deferred adjudication for possession of an explosive device; being absent for significant portions of voir dire and the direct examination of prosecution witnesses; failing to interview prosecution witnesses prior to trial; failing to record bench conferences to preserve error for appellate review; and failing to exercise a peremptory challenge to excuse venire member Pedraza; (2) petitioner was constructively denied effective assistance by virtue of the foregoing errors by his trial counsel; (3) petitioner was denied effective assistance under the Texas Constitution; (4) the trial court erred when it denied petitioner's motion to sever; (5) the trial court erred when it limited the cross-examination of prosecution witness Mary Patrick; (6) the trial court's failure to sever petitioner at the punishment phase of trial violated the Eighth Amendment; (7) the trial court violated the Fourteenth and Eighth Amendments when it instructed the jury to disregard the impact of Texas parole law when it answered the punishment phase special issues; (8) the trial court violated various provisions of the Texas Constitution when it instructed the jury to disregard Texas parole law at the punishment phase of trial; (9) various terms employed in the punishment phase special issues are unconstitutionally vague; (10) Texas does not provide meaningful appellate review of the jury's answers to the capital sentencing special issues; (11) the Texas capital sentencing scheme does not assign the burden of proof regarding the mitigation issue; (12) the Texas capital sentencing scheme violates the Eighth Amendment because it misleads the jury regarding the effect of a hung jury at the punishment phase of trial; (13) the trial court erred in admitting evidence of unadjudicated extraneous offenses at the punishment phase of trial; (14) the Texas capital sentencing scheme violates the Eighth Amendment because it asks open-ended questions at the punishment phase of trial; (15) the Texas capital sentencing mitigation issue too narrowly defines the term “mitigating;” (16) capital punishment in Texas is cruel and unusual in violation of the Eighth Amendment; (17) capital punishment violates the Texas Constitution; and (18) petitioner is actually innocent of the murder of LaHood. State Habeas Transcript, at pp. 1-92.

The state trial court held an evidentiary hearing that extended over a period of several months and during which eighteen witnesses gave testimony. On November 10, 1999, after the state habeas court had heard a full day of testimony from petitioner's former lead trial counsel, attorney William T. Reece, the state district judge then presiding over petitioner's state habeas corpus hearing, former state district judge Sam Katz, advised all parties on the record that, many months before, he had taken out a loan to pay off campaign debts and that one of the attorneys who signed as a guarantor of the note was Michael LaHood, Sr., the father of petitioner's victim.FN25 Neither party voiced any objection to Judge Katz continuing to preside over petitioner's state habeas corpus hearing.FN26 Later that same day, however, after the parties took further testimony from Reece, petitioner filed a formal, written, motion to recuse Judge Katz, which was referred to Judge Peter Michael Curry for an evidentiary hearing.FN27 At that hearing, also held November 10, 1999, attorney Michael LaHood, Sr., testified that (1) he and another attorney had agreed to sign as guarantors of a note evidencing a five thousand dollar loan Sam Katz took out shortly after his election but prior to taking office, (2) he had done the same for other attorneys in the past, and (3) he had never discussed petitioner's case with Judge Katz and had no financial interest in the outcome of petitioner's state habeas corpus proceeding.FN28 At the conclusion of the hearing, Judge Curry denied petitioner's motion to recuse Judge Katz.FN29

FN25. S.F. State Habeas Hearing, Volume 4, at pp. 3-4. FN26. Id. FN27. Supplemental State Habeas Transcript, at pp. 59-63. FN28. S.F. State Habeas Hearing, Volume 6 (proceedings November 10, 1999), testimony of Michael LaHood, Sr., at pp. 3-11. FN29. Id. at p. 18.

For several months thereafter, the parties presented further testimony and documentary evidence. On May 12, 2000, Judge Katz held a hearing in open court to interrogate petitioner's state habeas co-counsel regarding negative comments about Judge Katz attributed to said counsel by the local media.FN30 At the beginning of that hearing, Judge Katz berated petitioner's state habeas co-counsel for allegedly accusing Judge Katz of bias and financial improprieties in connection with petitioner's state habeas proceeding. Petitioner's co-counsel explained that, contrary to accounts of her public comments that had appeared in the local media, all her statements about Judge Katz had been limited to a factually accurate recitation of LaHood, Sr.'s testimony at the recusal hearing held before Judge Curry months before, neither she nor her co-counsel had any objections to Judge Katz presiding over petitioner's state habeas corpus proceeding, and they had filed their initial motion to recuse Judge Katz because their client demanded they do so. At that point, counsel for the State presented Judge Katz with a copy of the verbatim transcription of the testimony at the hearing before Judge Curry.FN31 After further discussion, Judge Katz invited petitioner's counsel to file a recusal motion based on the discussions that had occurred during the hearing that date. FN32

On August 9, 2000, petitioner filed a motion to recuse Judge Katz for bias, based upon his conduct at the hearing held May 12, 2000.FN33 That same day, a hearing was held on the motion before Judge Pat Priest. During the course of that hearing, Judge Priest received a telephone call from Judge Katz in which Judge Katz advised all concerned that he had signed an Order recusing himself from further participation in petitioner's state habeas corpus proceeding.FN34 Thereafter, Judge James Barlow presided over petitioner's state habeas corpus proceeding.

At a hearing held August 18, 2000, Judge Barlow and counsel of record for both parties discussed the need to re-present all the testimony that had previously been presented to Judge Katz.FN35 On November 20, 2000, petitioner presented testimony from an additional witness.FN36 At the conclusion of that hearing, Judge Barlow advised the parties that he would review the record from petitioner's trial and the transcripts of previous testimony given before Judge Katz but that he did not believe it was necessary for him to have personally witnessed the testimony presented during petitioner's state habeas hearing before he prepared his findings of fact and conclusions of law addressing petitioner's state habeas corpus claims.FN37

On January 5, 2001, Judge Barlow issued an Order containing his findings of fact, conclusions of law, and recommendation that petitioner's state habeas corpus application be, in all respects, denied.FN38 In an unpublished Order issued March 7, 2001, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied petitioner's state habeas corpus application.FN39

E. Federal Procedural History

On February 5, 2002, petitioner filed his federal habeas corpus petition. On June 25, 2002, respondent filed his answer and motion for summary judgment in which he argued that (1) petitioner had failed to present many of his claims for relief herein to the state courts, failed to exhaust available state remedies with regard to those claims, and, thereby, procedurally defaulted on same, (2) petitioner failed to present evidence to the state habeas court sufficient to overcome the presumption of reasonableness that must be accorded petitioner's trial counsel's strategic decisions, (3) many of petitioner's claims herein asserted nothing more than harmless error, and (4) the remainder of petitioner's claims herein were foreclosed by well-settled Supreme court case law. On August 16, 2002, petitioner filed his response to the motion for summary judgment and argued therein that he was denied a full and fair state habeas corpus hearing and his evidence of actual innocence excused any procedural defaults.

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J. Actual Innocence Claim

Petitioner argues that he had presented new evidence showing that he was actually innocent of the capital murder of LaHood.FN93 Specifically, petitioner claims that his testimony at his capital murder trial was false and that DeWayne Dillard was actually the person who shot Michael LaHood.FN94 Respondent correctly points out that, insofar as petitioner presents his “actual innocence” claim as an independent ground for federal habeas relief, that effort is foreclosed by the Supreme Court's holding in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), which bars consideration of such claims as independent bases for federal habeas relief. In Herrera, the Supreme Court unequivocally declared that claims of actual innocence based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Id. at 40001. Furthermore, the Supreme Court reaffirmed in Herrera the deferential standard recognized in Jackson v. Virginia as the appropriate test for evaluating the sufficiency of evidence supporting a criminal conviction. Id. at 401 (quoting Jackson, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). However, in Herrera the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with “a colorable showing of actual innocence” can thereby circumvent procedural barriers to obtaining federal habeas review on the merits for his otherwise procedurally defaulted constitutional claims. Id . at 404.

FN93. Petition, at pp. 95-102. Petitioner “fairly presented” an “actual innocence” claim to the Texas Court of Criminal Appeals as his final claim for state habeas corpus relief. State Habeas Transcript, at pp. 80-81. However, as explained hereinafter, the factual allegations, legal theories, and evidence petitioner presented to the state habeas court in support of his “actual innocence” claim differs substantially from the factual allegations, legal arguments, and evidence petitioner has presented to this Court in support of his eighth claim herein. More specifically, petitioner presents this Court with completely new, unexhausted, factual allegations regarding the credibility of Mary Patrick and Julius Steen, as well as new evidence, never presented to any state court, in support of his “actual innocence” claim. This Court cannot base a finding of “actual innocence” on factual allegations, legal theories, and evidence that petitioner has never presented to any state court. 28 U.S.C. § 2254(b)(1)(A).

However, petitioner did present at least some of the evidence he relies on in support of his “actual innocence” claim in this Court to the state habeas court. Thus, some aspects of petitioner's “actual innocence” claim have been properly exhausted and were rejected on the merits by the state habeas court. The state habeas trial court determined that petitioner (1) had twice testified that he fired the fatal shot, (2) told police that he fired the fatal shot, and (3) told his trial counsel that he fired the fatal shot. State Habeas Transcript, at p. 244. Furthermore, the state habeas trial court concluded that petitioner's recantation of his previous testimony did not constitute the type of “newly discovered” evidence that can support a claim of actual innocence. Id. at pp. 244-45.

FN94. In his testimony during his state habeas corpus hearing, petitioner stated that he did not shoot LaHood and Dillard was the real shooter, but he never told the detectives who questioned him following the shooting that Dillard was the shooter, and he testified that he had been the shooter because his trial counsel told him he needed to be consistent with his statement to police and Foster threatened to harm his family if he strayed from the version of the shooting all four occupants of Foster's vehicle agreed upon in the minutes immediately after the shooting. S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 4-13.

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a. Petitioner's Recantation

The fundamental problems with petitioner's claim of “newly discovered evidence” showing his actual innocence are two-fold: first, the state habeas trial court expressly rejected petitioner's recantation of his trial testimony and petitioner's thirteenth-hour assertion that Dillard was actually the person who shot LaHood; FN97 and second, petitioner admitted during his testimony at his state habeas corpus hearing that he had participated in multiple robberies with Foster, Dillard, and Steen on the night of the shooting, later gave a false statement to police about the shooting, and gave testimony at his trial to the effect that he, and not Dillard, had been the shooter.FN98 Having independently reviewed the record from petitioner's trial and state habeas corpus hearing, the Court concludes that the state habeas trial court's factual finding regarding the lack of credibility in petitioner's belated identification of Dillard as the shooter was fully supported by the record before it. Petitioner's testimony at his state habeas corpus hearing was a mix of internal contradictions and inconsistencies. FN99 In addition, the state habeas trial court had before it not only petitioner's testimony during the evidentiary hearing held in petitioner's state habeas corpus proceeding but also all of the evidence from petitioner's trial. Moreover, the state habeas court also had before it the testimony of petitioner's two trial counsel and court-appointed investigator, which, together with petitioner's own testimony at the same hearing, established that the petitioner never told any of them that Dillard was actually the person who fatally shot LaHood.FN100 Under such circumstances, the state habeas trial court's factual determination that petitioner's recantation lacked credibility was fully supported by the record then before the state habeas court, regardless of whether the state judge who made that credibility finding personally witnessed petitioner's testimonial demeanor during the state habeas corpus proceeding.FN101

FN97. “In this matter, the defendant having previously testified and given statements about the occurrence, relating at least three separate versions of what happened lack credibility, to say the least.” State Habeas Transcript, at p. 241. FN98. S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 18-19, 23-25, 33-35, 39-41, & 43-46.

FN99. During cross-examination at his state habeas corpus hearing, petitioner testified that (1) he witnessed Dillard shoot LaHood but believed the shooting was accidental; (2) as they drove away from the shooting, both Foster and Dillard told petitioner to keep his mouth shut yet, despite that directive, he gave police a statement and testified about the shooting because he was afraid of Foster; (3) the only part of his statement about the LaHood shooting that was false was the part in which he admitted he was holding the gun when it fired the fatal shot; (4) despite the threats Dillard and Foster made against him and his family, he gave police statements that implicated both Foster and Dillard in the robberies earlier that night, as well as the fatal shooting of LaHood; (5) his trial testimony was consistent with Foster's account of the fatal shooting yet, despite that, Foster threatened to kill petitioner after petitioner testified at trial; (6) he testified at the guilt-innocence phase of his trial in the same manner as he had described the shooting to his trial counsel; (7) he again testified falsely at the punishment phase of his trial when he admitted he had shot LaHood; and (8) some of his conversations with the other co-defendants about petitioner “taking the fall” occurred after all four had given the police their statements about the shooting. S .F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 18-19, 22-27, 33-36, 39-46, 52-53, 56, 63, & 70.

FN100. See S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 79-80; Volume 7, testimony of William T. Reece, at pp. 25 & 33-35; S.F. State Habeas Hearing, Volume 8, testimony of Jose Guerrero, at pp. 33-39, 42, 44, 60-63, 70-71, & 73; S.F. State Habeas hearing, Volume 8, testimony of Manuel Alfaro, at pp. 87-90, 94, & 99; S.F. State Habeas hearing, Volume 13, testimony of Mauriceo Brown, at pp. 10-13 & 52-53.

FN101. It is well-settled that recanting testimony and affidavits are viewed with extreme skepticism. Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir.2003). Given the numerous inconsistencies and logical conflicts contained in petitioner's written statement to police, his trial testimony, and his testimony during his state habeas corpus proceeding, there was nothing unreasonable about the state habeas court's determination, after what amounted to a “paper hearing,” see Baldree v. Johnson, 99 F.3d 659, 663-64 (5th Cir.1996), that petitioner's state habeas testimony recanting his trial testimony was incredible.

Even if it were viewed as credible, instead of exonerating petitioner, petitioner's testimony at his state habeas proceeding established petitioner's participation in a conspiracy to commit multiple armed robberies that resulted in the murder of LaHood and conceal the identity of the true murderer of LaHood. Simply put, petitioner admitted that he played an active role in, and shared the proceeds from, at least one of the robberies prior to the LaHood shooting, gave police a false statement regarding the LaHood shooting, and twice gave perjured testimony designed to protect Dillard from prosecution for capital murder. Petitioner's jury found Kenneth Foster guilty of capital murder based on evidence of Foster's participation in the LaHood shooting that was far less extensive than the conduct to which petitioner admitted during his state habeas corpus proceeding. Thus, rather than establishing petitioner's “actual innocence,” petitioner's testimony at his state habeas corpus hearing merely furnished an alternative theory under which petitioner could have been held criminally responsible: the Texas law of parties.

* * *

Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to the Court's disposition of any of petitioner's claims. Petitioner failed to exhaust state remedies on four claims for relief and, thereby, procedurally defaulted. Petitioner has failed to satisfy either exception to the procedural default doctrine. Furthermore, petitioner attempted to supplement several of his ineffective assistance claims herein with unexhausted evidence. Even considering this unexhausted evidence, the Court independently determined that none of petitioner's ineffective assistance claims satisfy either prong of Strickland. Petitioner's constructive denial of counsel claim additionally is foreclosed by the Supreme Court's holding in Bell. All of petitioner's constitutional challenges to the Texas capital sentencing scheme are foreclosed by the Supreme Court's holdings in Tuilaepa and its progeny. Petitioner's complaints regarding the handling of state parole law in his punishment-phase jury instructions are foreclosed by Teague, as well as the Supreme Court's re-affirmation in Ramdass of the limited scope of the Simmons rule. Finally, Petitioner's complaints about the state trial court's limitations on the cross-examination of Mary Patrick fail to surmount the harmless error rule. There is no legitimate basis for disagreement among rational jurists over any of the foregoing issues. The Texas Court of Criminal Appeals's rejections on the merits of those of petitioner's federal claims which petitioner did properly exhaust were reasonable and fully consistent with clearly established federal law. Under such circumstances, petitioner is not entitled to a CoA.

V. Conclusion

1. Respondent's motion for summary judgment (docket no. 27) is GRANTED. All relief requested in petitioner's federal habeas corpus petition (docket no. 20), filed February 5, 2002, as supplemented by petitioner's reply to respondent's motion for summary judgment (docket no. 30), is DENIED. 2. Petitioner is DENIED a Certificate of Appealability. 3. All other pending motions are DISMISSED as moot. 4. Judgment is entered in favor of respondent.