Executed August 22, 2007 06:20 p.m. CST by Lethal Injection in Texas
35th murderer executed in U.S. in 2007
1092nd murderer executed in U.S. since 1976
21st murderer executed in Texas in 2007
400th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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Johnny Ray Conner B / M / 23 - 32 |
Kathyanna Nguyen A / F / 49 |
Citations:
Conner v. Quarterman, 477 F.3d 287 (5th Cir. 2007) (Habeas).
Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001) (Direct Appeal).
Final/Special Meal:
None.
Final Words:
He had asked the warden for permission to speak longer than the usual alloted two to three minutes, specifically wanting to talk to his victim's daughter, and spoke slowly and with emotion."Shed no tears for me. When I get to the gates of heaven, I'm going to be waiting for you. I will open my arms for you. What's happening now, you are suffering. I didn't mean to hurt y'all.... This is destiny. This is life. This is something I have to do." He ended by saying what was happening to him was "unjust and the system is broken. To Allah I belong and to Allah I return."
Internet Sources:
Texas Department of Criminal Justice - Executed Offenders (Johnny Ray Conner)
Inmate: Conner, Johnny Ray
Wednesday, August 15, 2007
Media Advisory: Johnny Conner scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Johnny Ray Conner, who is scheduled to be executed after 6 p.m., Wednesday, August 22, 2007.
Conner was convicted and sentenced to die in Texas state court for the robbery and murder of Kathyanna Nguyen. The evidence presented at trial is as follows.
FACTS OF THE CRIME
On May 17, 1998, Johnny Conner entered a north Houston grocery store and brought a drink to the counter, as if to buy it. He then pointed a .32-caliber revolver at store owner Kathyanna Nguyen.
About that time, Julian Gutierrez walked into the store to pay for gasoline he had just pumped and heard someone say, “Give me all your money.” Gutierrez looked up from counting his own money to see a man pointing a gun at Nguyen’s chest.
When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez dropped the money he was holding and ran from the store. As Gutierrez ran, the robber fired, wounding the customer. Hearing several more gunshots, Gutierrez turned to see the robber shoot Nguyen.
Other individuals who were outside nearby businesses saw Conner as he fled the grocery store, and several noted that the man was holding his hand underneath his shirt as he ran. During the following police investigation, three of the individuals looked at photos and identified Conner as the perpetrator. Conner turned himself in to the Harris County Jail on June 17, 1998.
PROCEDURAL HISTORY
On September 22, 1998, Conner was indicted by a Harris County grand jury for capital murder in Nguyen’s death. On June 29, 1999, a jury found him guilty of capital murder. On June 30, 1999, after a separate punishment hearing, the court sentenced Connor to death. Conner appealed to the Texas Court of Criminal Appeals, which affirmed his conviction and sentence on September 12, 2001.
On September 28, 2000, Conner filed a state application for writ of habeas corpus in the trial court. The trial court subsequently entered findings of fact and conclusions of law recommending that Conner be denied relief. On November 21, 2001, the Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied relief.
On December 10, 2002, Conner filed a federal habeas petition in a Houston federal district court. On March 21, 2005, the district court granted Conner federal habeas relief and ordered that he be retried or released. The State appealed the court’s decision.
On January 29, 2007, the 5th U.S. Circuit Court of Appeals reversed the district court’s decision. On April 27, 2007, Conner petitioned the U.S. Supreme Court for certiorari review. The petition is pending before the Supreme Court. On July 17, 2007, Conner applied to the Supreme Court for a stay of execution
PREVIOUS CRIMINAL HISTORY AND EVIDENCE OF FUTURE DANGEROUSNESS
The State presented the following evidence of Conner’s criminal history and future dangerousness. When Conner was ten-years old, he broke into an elementary school and was charged with criminal trespass. When he was twelve, he was caught in possession of crack cocaine by a transit patrol officer. The security officer who apprehended Conner testified that Conner was very violent for a twelve-year old. Conner was also apparently involved in a robbery attempt in which he tried to take $6 from a woman, whom he knocked down in the process.
A probation officer, testified that Conner was referred to her for trespassing, runaway, and possession of cocaine. For the last offense, Conner was adjudicated a delinquent. When Conner was placed on probation, he was ordered to participate in drug counseling, tutoring, and a ROPES course to help him with personal development. Conner, however, attended only two of seven drug counseling sessions, and he did not attend tutoring or the ROPES program. Between September 12, 1991, and September 12, 1992, Conner missed nineteen probation appointments, although he completed his probation.
Conner was also involved in several incidents of domestic violence. Tamara Ekanem testified that she had a relationship and a child with Conner, although she was actually married to someone else while they lived together. On May 4, 1995, Ekanem got into an argument with Conner and told him that she would go back to her husband. Conner hit Ekanem, threw her on the bed, and choked her. In the process, they rolled over her child who was on the bed. Conner then grabbed a stick that was in the child’s hand and hit Ekanem on the leg with it. Ekanem was scratched and bruised in the altercation. Ekanem called the police and went down to the police station. Photos were taken of her injuries and revealed visible choke marks and abrasions on her leg and the back of her neck. Ekanem did not see Conner again until a year later. When she saw Conner, he told her that if she did not let him see his child, he was going to kill her. Ekanem filed another police report on Conner as a result.
Linda Gaspar also testified that she had a relationship with Conner. On August 6, 1996, she got in an argument with Conner. Conner put some covers over her head, hit her with his fists, and she fell and hit the floor. Gaspar sustained black eyes and bruises. She called the police and filed charges against Conner, but she did not follow up on the charges. In April 1997, Gaspar called the police again because Conner slapped her on the face while they were discussing a girl he was seeing. In all, there were three incidents where Conner slapped or hit Gaspar.
A Houston Police Department street gang unit officer testified that Conner has several tattoos indicating his involvement in street gangs, including a teardrop tattoo and a mouse holding a smoking gun. Conner also has a tattoo showing that he believes women are second-class citizens and that money comes first.
"Convenience store clerk killer becomes 400th executed in Texas," by Michael Graczyk. (Associated Press Aug. 23, 2007, 1:44AM)
HUNTSVILLE, Texas — Condemned killer Johnny Ray Conner asked for forgiveness and said he'd be waiting in heaven for loved ones, including his victim's relatives, as he became the 400th Texas inmate executed since the state resumed carrying out the death penalty a quarter-century ago.
"Shed no tears for me," Conner, 32, said as tears flowed from witnesses on both sides of the death chamber Wednesday evening. He received lethal injection for the slaying of Kathyanna Nguyen, 49, during a failed robbery at her Houston convenience store in 1998. Conner's two sisters were among people watching through a window as he died. Nguyen's daughter and a sister were among those watching through another window. "When I get to the gates of heaven, I'm going to be waiting for you," he told them. "I will open my arms for you."
He had asked the warden for permission to speak longer than the usual alloted two to three minutes, specifically wanting to talk to his victim's daughter, and spoke slowly and with emotion. "What's happening now, you are suffering," he told his family. "I didn't mean to hurt y'all.... This is destiny. This is life. This is something I have to do." He ended by saying what was happening to him was "unjust and the system is broken," then invoked Allah. "To Allah I belong and to Allah I return," he said.
Eight minutes after the lethal drugs began to flow, he was pronounced dead, making him the 21st condemned killer executed this year in the nation's busiest capital punishment state. Three more executions are scheduled for next week.
The 400-execution milepost prompted an outcry from death penalty opponents. Only a handful of protesters, however, gathered down the street from the prison entrance Wednesday evening. The first in Texas was carried out in 1982, six years after the U.S. Supreme Court allowed executions to resume.
"I know it's just a number, but 400," said David Atwood, founder of the Texas Coalition to Abolish the Death Penalty. "Sometimes when I think about it I'm numbed, but still shocked. I'm very sad we're still doing this. "It's hard to tell what these have done," he said of the protests, which now typically draw just a few people. "But it's better to do something than nothing."
About 4 1/2 hours before he was executed, Conner's lawyers lost their final appeal to the Supreme Court. Conner contended his trial attorneys were deficient for not investigating an old leg injury that he insisted left him with a limp. According to the argument, the disability would have prevented Conner from running away quickly from the store where Nguyen was gunned down on a Sunday afternoon in May 1998.
Witnesses who identified Conner as the gunman said they saw a man running from the scene. No one mentioned a limp. A federal judge agreed with the argument and granted Conner a new trial, but a federal appeals court disagreed in January and overturned that ruling, clearing the way for Conner's execution date.
Conner's trial lawyers denied they were ineffective, saying the injury never was an issue because Conner never told them the old injury was a problem. But Kenneth Williams, a University of Miami law professor who represented Conner in his final appeals, argued that since trial attorneys failed to look into the leg injury, they weren't able to question witnesses properly about what they saw and raise reasonable doubt among jurors.
On Wednesday, as Conner was brought into the Huntsville Unit of the Texas Department of Criminal Justice, where executions are carried out, prison officials detected nothing unusual about his gait, department spokeswoman Michelle Lyons said.
Lyn McClellan, the Harris County district attorney who prosecuted the case, said Conner's complaint was a fabrication. "They had video of him in jail walking down the hallway just fine without any limp," he said. "That's the problem with some made-up defense. You've got to live it out all the time or you get caught."
Julian Gutierrez, a customer walking inside Nguyen's store to pay for gasoline, interrupted the holdup, tried to run back outside and was shot in the shoulder. Nguyen was fatally shot in the head. Gutierrez survived and was among at least three people to identify Conner, whose fingerprint also was found on a bottle at the shooting scene.
Conner, a Shreveport, La., native, had a history of assaults and drug offenses starting at age 12.
Scheduled to die next is DaRoyce Mosley, set for lethal injection Tuesday for his part in the slayings of four people in the robbery of a bar in Kilgore in East Texas in 1994.
"Texas executes 400th person since 1982," by Anna Driver. (Thu Aug 23, 2007 8:47AM EDT)
HUNTSVILLE, Texas (Reuters) - Texas, which leads the nation in carrying out the death penalty, on Wednesday executed the 400th person since the state resumed capital punishment in 1982.
Johnny Ray Conner, 32, who was convicted in the shooting death of a convenience store owner in Houston in 1998, was the 21st man put to death by lethal injection in Texas this year. He spent nearly eight years on death row. Texas resumed the practice after the Supreme Court lifted a moratorium on it in 1976. Since then, 1,092 people have been executed in the United States, including Conner, according to statistics from the Death Penalty Information Center.
Conner's execution in Huntsville, located north of Houston, has drawn sharp criticism from death penalty opponents who argue that the practice is inhumane and does not serve as a deterrent to crime. "It's a pretty sad day for the progression -- or lack thereof -- for human rights in this state," said Rick Halperin, president of the non-profit Texas Coalition To Abolish the Death Penalty. He called the state-ordered executions "barbaric and outdated."
On Tuesday, the European Union urged the governor of Texas to halt all executions before the state carried out Conner's death sentence. A spokesman for Texas Gov. Rick Perry responded in a statement: "Texans long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens."
According to prosecutors, Louisiana native Conner robbed the store at gunpoint. When a customer entered the store, Conner shot him twice before the witness fled. Conner then fatally shot the 49-year-old woman who owned the store twice in the head.
Conner had no request for a last meal. In his final statement, he asked for forgiveness and told his family he loved them. He also said his execution was wrong. "What is happening to me now is unjust and the system is broken," Conner said. "At the same time I bear witness there is no God but Allah and Prophet Mohammad. Unto Allah I belong unto Allah I return."
Conner's was the second of five executions scheduled for this month. The state has 10 more executions scheduled in 2007.
In the United States, 38 states have the death penalty, but the overall number of executions carried out by Texas is more than four times that of any other state, according to the Texas Coalition To Abolish The Death Penalty.
Texas Execution Information Center by David Carson.
Johnny Ray Conner, 32, was executed by lethal injection on 22 August 2007 in Huntsville, Texas for the murder of a convenience store owner in an attempted robbery.
On 17 May 1998, Conner, then 23, entered a north Houston convenience store at night and brought a drink to the counter, as if to buy it. The store owner, Kathyanna Nguyen, 49, was behind the counter, which was enclosed with bulletproof glass, but had a small opening used to pass items to and from customers. Conner then produced a .32-caliber revolver and, inserting his hand in the opening, pointed the gun at Nguyen. Just then, Julian Gutierrez walked into the store to pay for gasoline he had pumped. Gutierrez testified that he heard someone say, "Give me all your money," and that he looked up from counting his money and saw a man pointing a gun at Nguyen. Conner then turned and pointed the gun at him. Gutierrez then dropped the money he was holding and ran from the store. Conner fired one shot, striking Gutierrez in the chest and arm. He then fired two shots into Nguyen's head. He then fled from the scene, leaving behind the money Nguyen had left for him.
Police found a juice bottle on the floor near the counter. Two fingerprints were found on it. One belonged to Conner; the other was not identified. Several people who were outside the store saw a man running from the grocery store. Although their descriptions of the man's appearance and clothing varied, three eyewitnesses, including Gutierrez, identified Conner as the robber from a photo lineup. Conner turned himself in to the Harris County Jail on 17 June.
At Conner's trial, Gutierrez testified that after he was shot once, he heard several more gunshots. He turned to see the robber shooting at Nguyen. He testified that the robber wore white tennis shoes, brown shorts, a white t-shirt, and a red cap.
Tony Tostado, who lived with Nguyen and operated a restaurant next door to her store, testified that he ran over to the store after hearing gunshots. Upon entering the store, he saw a man with a gun. Tostado testified that he tried to grab the man, but he got away. He then saw Nguyen on the floor, bleeding profusely. He called 911 on the pay phone outside the grocery store. While he was on the phone, he saw the fleeing suspect, who was not wearing a hat.
Agnes Hernandez testified that she was in her vehicle, stopped at a nearby intersection, when she saw a black man wearing a white shirt and dark shorts and no hat running with his hand under his shirt. She said that he ran quickly for about a block, then got in a vehicle and drove away. She followed the suspect, who nearly ran over a man and child as he sped away, until he reached the freeway. She then drove back to the store.
Christine Flores testified that she was driving in the area, saw a man running in the street, and had to slow down to avoid hitting him. She testified that the man, who she identified as Conner in a photo lineup, looked directly at her. He was wearing blue jeans and no hat. She also stated that the man did not have a tattoo (Conner had a teardrop tattoo on his right cheek).
Michael Hamilton and Martha Meyers were driving near the scene when a man ran from the store and crossed in front of them. Meyers testified that the suspect was between 5' 10" and 6' 1" (Conner was 5' 7"), wore blue shorts and long pants, a light gray t-shirt, and a white Nike cap. She also stated that he had no tattoo on his face. Meyers testified that she and Hamilton followed Hernandez as Hernandez followed the suspect. Meyers identified Conner as the suspect in a photo lineup.
Melecio Sanchez testified that he was sitting in a nearby bar when he heard two gunshots. He saw a black man wearing a white shirt, dark shorts, and blue cap running out of the store. Conner's lawyers argued that the fingerprint on the orange juice bottle did not mean he was at the store when the crime occurred. They pointed out that the bottle did not appear in photos of the crime scene taken by police.
Conner had a criminal history of trespassing, drug possession, assault, and robbery going back to the age of ten. He also had a history of domestic violence as an adult. Former girlfriend Tamara Ekanem testified that in May 1995, Conner choked her and hit her with a stick, and a year later, threatened to kill her. Linda Gaspar testified that Conner hit or slapped her on three occasions between August 1996 and April 1997.
A jury convicted Conner of capital murder in June 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2001.
In his habeas corpus appeals, Conner alleged that he received ineffective assistance of counsel at his trial because his lawyers failed to investigate a 1996 leg injury that left him with a condition called "foot drop," which caused him to limp. Conner alleged that he could not run easily because of this limp, and that he could not have committed the crime, as witnesses testified that the robber ran quickly, and none of them mentioned a limp. In affidavits, his trial lawyers, Ricardo Rodriguez and Jonathan Munier, stated that while Conner mentioned a leg injury, he told them that it had healed and he was fine. The lawyers stated that Conner never mentioned any continuing problems with his leg, and that they never saw him limp. Conner's state appeals were unsuccessful, but in March 2005, after an evidentiary hearing including testimony from medical experts and from Conner himself, who testified that he told his attorneys he could not run, but they refused to listen to him, a federal district court agreed with his claims and granted him the right to a new trial.
The state of Texas appealed this decision to the U.S. Fifth Circuit Court of Appeals, which vacated the district court's opinion and reinstated Conner's conviction and death sentence in January 2007. The Fifth Circuit court ruled that Conner's claim of having a limp was dubious, as several witnesses at his 2003 hearing testified to either not noticing any limp until Conner pointed it out, or not noticing it at all. The court further ruled that it was not pivotal whether Conner had a limp, because no medical expert ever testified that Conner could not run in 1998, and none of the witnesses at his trial were asked whether the suspect ran with a limp or whether there was anything unusual about his gait. Finally, the court ruled that there was sufficient incriminating evidence from the bottle fingerprint and Gutierrez's testimony to convict him even if all of the testimony from witnesses who saw him flee the scene was removed. Conner's subsequent appeals were denied.
Conner declined to speak with reporters the week preceding his execution. On an anti-death-penalty web site, he called his conviction an "atrocious act of barbarity against the law and mankind."
At his execution, Conner asked the warden for permission to speak longer than the customary two minutes allotted for condemned prisoners' last statements. Ngyuen's daughter, Marie Ngyuen; sister, Katherine Le; and their husbands watched from a viewing room. Conner asked them to point out the victim's daughter, so that he could look at her, and asked her to look at him. "I want you to understand something: hold no animosity towards me," Conner said to her. "I am not mad at you. Even though you don't know me, I love you. I ask y'all in your heart to forgive me." Marie Ngyuen nodded her head, but Le stared at the wall and did not look at Conner, even though he repeatedly asked her to.
"What is happening to me is unjust, and the system is broken," Conner continued. However, he asked his relatives to forgive him and accept his execution. "I didn't mean to hurt you. Continue to live your life and don't be angry at what is happening to me. This is destiny. This is life. This is something I have to do. Allah wants me home." After speaking for about three minutes, Conner appeared to have concluded his statement, and the lethal injection was started. He then said "I love you and ..." then lost consciousness. He was pronounced dead at 6:20 p.m.
Conner's execution was the 400th in the state of Texas since executions resumed in 1982 following a nationwide moratorium. The day before the execution, the European Union sent Governor Rick Perry a letter urging him to stop allowing executions in Texas. Perry replied through a spokesman that the European Union should mind its own business.
In May 1998, the victim, Kathyanna Nguyen, lived with Tony Tostado behind her grocery store in north Houston. Tostado owned a restaurant located next door to the grocery. On the afternoon of May 17, 1998, Tostado ate lunch with Kathyanna and then went over to his restaurant to clean up.
Shortly thereafter, Julian Gutierrez stopped by the grocery to get some gas. After pumping the gas, Gutierrez entered the store to pay and heard someone say, “Give me all your money.” Gutierrez looked up from counting his own money, to see a man pointing a gun at Kathyanna’s chest. When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez dropped the money he was holding and ran from the store. As Gutierrez ran, the robber fired the gun at him, hitting him in the shoulder. Hearing several more gunshots, Gutierrez turned to see the robber shooting at Kathyanna Nguyen. Gutierrez later identified Conner as the robber.
Hearing gunshots, Tostado locked the doors to his restaurant and hurried over to the grocery. Upon entering the store, Tostado saw a man with a gun. Although Tostado attempted to grab the assailant, the man was able to get out of the store and run away. Tostado then saw Kathyanna on the floor behind the counter bleeding profusely. He immediately called 911.
Other individuals who were outside nearby businesses saw the assailant as he fled the grocery, and several noted that the man was holding his hand underneath his shirt as he ran. Agnes Hernandez, who was stopped at a nearby intersection in her vehicle, decided to follow the robber to see where he went. Christine Flores was also driving in the area when she saw a man running down the street and had to slow down in order to avoid hitting him. The man looked directly at Flores as he ran. Flores later identified the man as Johnny Ray Conner. Finally, Michael Hamilton was driving with his wife, Martha Meyers, near the scene when they saw a man running from the grocery. As the man crossed the road in front of them, he turned to look back towards the grocery store at which time Meyers was able to see his face. Hamilton and Meyers followed Hernandez as she followed the fleeing suspect. The assailant ran for some distance before he reached a vehicle, got inside, and drove away. Hernandez continued to follow the assailant, seeing him almost run over a man and child as he sped away.
Eventually, the suspect made his way to a freeway feeder road where he drove over the grass median to enter the freeway. Hernandez did not follow the vehicle onto the freeway, but returned to the scene and told Tostado the direction in which the vehicle had fled. At the scene, Tostado and several others entered the grocery to help Kathyanna Nguyen. Several witnesses noted that there was money scattered and a great deal of blood on the floor around Kathyanna’s body. The cash register was open and there was blood inside the drawer. The police also discovered a juice bottle on the floor near the counter from which they recovered Conner’s fingerprint.
UPDATE: More than nine years after his crime, Johnny Ray Conner was executed for the murder of Kathyanna Nguyen. Conner asked for forgiveness repeatedly and expressed love to his family and his victim's family, who watched him through windows in the death chamber. "I want you to understand," he said. "I'm not mad at you. When I get to the gates of heaven I'm going to be waiting for you. Please forgive me."
National Coalition to Abolish the Death Penalty
Johnny Conner, August 22, TX
<>BR>Do Not Execute Johnny Conner!
On August 22, 2007, Texas is set to execute Johnny Conner for the May 1998 murder of Kathyanna Nguyen.
The state of Texas should not execute Conner for his role in this crime. Executing Conner would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Conner claims ineffective assistance of counsel, as his lawyers called no witnesses during the guilt/innocence phase of the trial. Conner alleges that the photo spread from which witnesses chose his picture was suggestive, and not all of the witnesses could identify Conner.
Please write to Gov. Rick Perry on behalf of Johnny Conner!
Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001) (Direct Appeal)
Defendant was convicted in 174th District Court, Harris County, George Godwin, J., of capital murder, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Meyers, J., held that: (1) evidence was sufficient to support finding that defendant shot victim in course of robbing or attempting to rob her; (2) evidence was factually sufficient to support conviction; (3) probability of defendant's future dangerousness was established beyond reasonable doubt; (4) photo spread from which witnesses identified defendant was not impermissibly suggestive; (5) punishment phase testimony of police officer concerning significance of defendant's tattoos was relevant to defendant's character and therefore admissible; and (6) court's post-trial instruction to jurors to effect that they were not required to discuss their service with defense counsel did not deprive defendant of any constitutional right.
Affirmed.
Womack, J., concurred in part and otherwise joined opinion.
MEYERS, J., delivered the opinion of the Court, joined by KELLER, P.J., PRICE, JOHNSON, KEASLER, HERVEY, and HOLCOMB.
In May 1998, the victim, Kathyanna Nguyen, lived with Tony Tostado behind her grocery store in north Houston. Tostado owned a restaurant located next door to the grocery. On the afternoon of May 17, 1998, Tostado ate lunch with Nguyen and then went over to his restaurant to clean up. Shortly thereafter, Julian Gutierrez stopped by the grocery to get some gas. After pumping the gas, Gutierrez entered the store to pay and heard someone say, “Give me all your money.” Gutierrez looked up from counting his own money, to see a man pointing a gun at Nguyen's chest. When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez dropped the money he was holding and ran from the store. As Gutierrez ran, the robber fired the gun at him, hitting him in the shoulder. Hearing several more gunshots, Gutierrez turned to see the robber shooting at Nguyen. Gutierrez later identified appellant as the robber.
Hearing gunshots, Tostado locked the doors to his restaurant and hurried over to the grocery. Upon entering the store, Tostado saw a man with a gun. Although Tostado attempted to grab the assailant, the man was able to get out of the store and run away. Tostado then saw Nguyen on the floor behind the counter bleeding profusely. He immediately called “911.” Other individuals who were outside nearby businesses saw the assailant as he fled the grocery, and several noted that the man was holding his hand underneath his shirt as he ran. Agnes Hernandez, who was stopped at a nearby intersection in her vehicle, decided to follow the robber to see where he went.
Christine Flores was also driving in the area when she saw a man running down the street and had to slow down in order to avoid hitting him. The man looked directly at Flores as he ran. Flores later identified the man as appellant. Finally, Michael Hamilton was driving with his wife, Martha Meyers, near the scene when they saw a man running from the grocery. As the man crossed the road in front of them, he turned to look back towards the grocery store at which time Meyers was able to see his face. Hamilton and Meyers followed Hernandez as she followed the fleeing suspect. The assailant ran for some distance before he reached a vehicle, got inside, and drove away. Hernandez continued to follow the assailant, seeing him almost run over a man and child as he sped away. Eventually, the suspect made his way to a freeway feeder road where he drove over the grass median to enter the freeway. Hernandez did not follow the vehicle onto the freeway, but returned to the scene and told Tostado the direction in which the vehicle had fled.
At the scene, Tostado and several others entered the grocery to help Nguyen. Several witnesses noted that there was money scattered and a great deal of blood on the floor around Nguyen's body. The cash register was open and there was blood inside the drawer. The police also discovered a juice bottle on the floor near the counter from which they recovered appellant's fingerprint.
When the investigation of the crime narrowed to focus on appellant, appellant's photograph was included in a photo spread of suspects for witnesses. Three separate witnesses identified appellant from the photo spread. Appellant turned himself in to the Harris County Jail on June 17, 1998.
At the punishment phase of trial, the State proved up appellant's commission of various prior offenses including possessing cocaine in January, 1991; breaking into a school in June, 1991; attempting to rob an individual in July, 1994; and committing several instances of domestic abuse involving two separate women in 1995 through 1997.
In his seventh point of error, appellant claims the evidence is insufficient as a matter of law to support his conviction for capital murder because the State failed to prove that the victim was killed during the course of a robbery or attempted robbery, as alleged in the indictment. Specifically, appellant argues that the State failed to prove he intended to take complainant's property before he killed her. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. We determine whether any trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). When conducting a sufficiency review, we consider all the evidence admitted, whether proper or improper. Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994); Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App.1991). Every fact need not point directly and independently to the defendant's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Id. at 716.
To prove appellant committed capital murder, the State was required to show that appellant intentionally caused Nguyen's death while in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp.1995). For murder to qualify as capital murder under section 19.03, the killer's intent to rob must be formed before or at the time of the murder. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995). Proof of robbery committed as an afterthought and unrelated to a murder is not sufficient evidence of capital murder. Id. at 207. If there is evidence, however, from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of the robbery. Id. at 207; Robertson v. Texas, 871 S.W.2d 701, 706 (Tex.Crim.App.1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). The jury may infer the requisite intent from the conduct of the defendant. Alvarado, 912 S.W.2d at 207; Robertson, 871 S.W.2d at 706.
When viewed in the light most favorable to the verdict, the evidence shows that as Gutierrez walked into the grocery, he heard a man say, “Give me all your money.” Gutierrez looked up from counting his own money to see appellant pointing a gun at Nguyen. Gutierrez then dropped his cash, and fled the store. As Gutierrez fled, he turned to see appellant shooting Nguyen. Because there was no evidence of any of the money taken from the cash register, and Mr. Gutierrez's cash was not present at the crime scene when the police arrived, appellant asserts that the State failed to prove he was robbing Nguyen and not Gutierrez. However, given the evidence that appellant was seen pointing a gun at Nguyen, that money was found scattered around Nguyen's body, and that blood was found in the cash register, a rational jury could have concluded that appellant shot Nguyen in the course of robbing or attempting to rob her. Point of error seven is overruled.
In his eighth point of error, appellant contends the evidence is factually insufficient to support his conviction. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). Appellant argues that because the State failed to prove that the complainant was killed during the course of the robbery or attempted robbery of the complainant, as alleged in the indictment. In a factual sufficiency review, this Court views all the evidence without the prism of “in the light most favorable to the prosecution” and sets aside the verdict only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).
In conducting such a review, we begin with the presumption that the evidence is legally sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Next, we consider all of the evidence in the record, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997); Jones, 944 S.W.2d at 647. We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but must avoid substituting our judgment for that of the fact-finder. Santellan, 939 S.W.2d at 164; Jones, supra. A clearly wrong and unjust verdict occurs where the jury's finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Santellan and Jones, both supra.
In the instant case, the facts that support legal sufficiency of the evidence also render it factually sufficient, and appellant has shown no evidence controverting this conclusion. No evidence exists in the record which tends to disprove the fact that appellant murdered Nguyen as he robbed or attempted to rob her. Mere speculation will not support appellant's argument. Because the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, we hold the evidence supporting the conviction to be factually sufficient. See Santellan, supra and Clewis, 922 S.W.2d at 129. Point of error eight is overruled.
In point of error nine, appellant claims the evidence was legally insufficient to support the jury's affirmative answer to the first punishment issue, concerning his future dangerousness. Under the first punishment issue, the jury was asked to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071, § 2(b)(1). The State had the burden of proving beyond a reasonable doubt that there is a probability that appellant, if allowed to live, would commit criminal acts of violence in the future, so as to constitute a continuing threat, whether in or out of prison. Narvaiz, 840 S.W.2d at 424. In its determination of the issue, the jury was entitled to consider all of the evidence presented at both the guilt and punishment stages of trial. Valdez v. State, 776 S.W.2d 162, 166-67 (Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990). As an appellate court reviewing the jury's finding, we view all of the evidence before the jury in the light most favorable to its finding, and then determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the first punishment issue was “yes.” Harris v. State, 738 S.W.2d 207, 225-26 (Tex.Crim.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).
Viewed in the necessary light, the evidence at the punishment stage established that appellant committed several offenses over the preceding years including robbery, assault, and aggravated assault. The State also showed that appellant had committed various offenses as a juvenile including breaking into an elementary school and possessing illegal drugs. Despite his prior offenses, Appellant turned himself in to the authorities on the advice of his stepfather a couple of days after the murder. During the punishment phase, appellant's family testified that he was not a violent person, they were surprised to hear about the murder and did not believe appellant was capable of doing such an act. The family members believed appellant could be rehabilitated. Appellant cried during his mother's testimony, and apologized to the victim's family before his sentencing. Appellant was an above average student, and received his college diploma at Houston Community College. Based on the totality of the evidence presented at trial, a rational jury could have found beyond a reasonable doubt that appellant is dangerous and that the answer to the first punishment issue is “yes.” Jackson and Allridge, both supra. Point of error nine is overruled.
In his tenth point of error, appellant argues the evidence is factually insufficient to sustain the jury's affirmative answer to the future dangerousness punishment question. See Art. 37.0711 § 3(b)(2). In McGinn v. State, we determined such a review is not constitutionally required and refused to extend Clewis to the punishment issues in capital cases. 961 S.W.2d 161 (Tex.Crim.App.), cert. denied, 525 U.S. 967, 119 S.Ct. 414 (1998). Appellant has made no argument to sway us from this holding. Point of error ten is overruled.
Appellant's eleventh point of error is an extension of his sufficiency claim set out in his ninth point of error, supra. Specifically, appellant submits that imposition of the death penalty where the evidence is legally insufficient to prove him to be a continuing danger to society violates his federal due process rights. Appellant is correct that imposition of the death penalty would violate his constitutional rights absent sufficient evidence. However, because we have found that legally sufficient evidence exists, appellant's claim has no merit. See point of error nine, and Jackson and Allridge, supra. Point of error eleven is overruled.
In points of error one through six, appellant asserts that the trial court violated his due process rights in admitting evidence of three different witnesses' out-of-court identification of him in that the photo spread used was “unduly suggestive.” Specifically, appellant asserts that the photo spread was unduly suggestive because appellant's photograph was the only photograph that reflected police booking numbers. Hence, witnesses would necessarily infer that the person depicted in this photograph had previously been arrested and had a criminal history.
In considering the scope of due process rights afforded a defendant with regard to the admission of identification evidence, the United States Supreme Court has held that a pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996). Hence, the Supreme Court formulated a two-step analysis to determine the admissibility of an in-court identification: 1) whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive, 2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Barley, 906 S.W.2d at 33. An analysis under these steps requires an examination of the “totality of the circumstances” surrounding the particular case and a determination of the reliability of the identification. Id.
While appellant is correct in noting that his photograph is the only one in the photo spread which shows the booking numbers, he is not correct in asserting that the booking numbers would necessarily taint a witness' identification. Indeed, four of the other photographs showed other parts of the Houston Police Department booking card, and in the sixth photograph, the person was depicted standing against a height indicator.FN2 Hence, a witness could make the same assumptions about all six of the persons depicted. Furthermore, all of the pictures in the photo spread depict men with similar features and characteristics. Finally, although some of the witnesses claimed to have observed appellant at the scene for only several seconds, all of the witnesses testified at the suppression hearing that the suspect they identified in the photo spread was undoubtedly the person they had seen running from the scene of the crime.
FN2. Appellant is not standing against a height indicator in his photograph.
Under the totality of the circumstances in the instant case, the trial court did not abuse its discretion in holding that the out-of-court identification procedures were not impermissibly suggestive and did not cause the witnesses to misidentify appellant. Points of error one through six are overruled.
Appellant complains in his twelfth point of error that the trial court erred in allowing the testimony, at punishment, of Officer R. Perkins, “that appellant's tattoos were gang-related and indicia of his membership in a gang where there was no evidence that appellant was a member of any gang, aspired to further the activities of a gang, or that the underlying offense was motivated by or related to any gang membership or activity.” Appellant contends the testimony was irrelevant and prejudicial.
At the punishment phase of appellant's trial, the State called R. Perkins, an officer with the Houston Police Department, Criminal Intelligence Division, Street Gang Unit. Perkins testified that he had experience, training, and education in the area of street gangs and gang intelligence. He stated that known gang members are “documented” by officers in the police department gang unit. He testified that they also document tattoos worn by gang members. He further testified that in the course of this work, he had therefore learned to interpret the significance of various types of tattoos. Perkins then interpreted the meaning of appellant's three tattoos which were shown on photographs presented by the State and admitted as exhibits. With respect to a teardrop tattoo on appellant's face:
[Prosector] Q. [L]et's start with the teardrop tatoo [sic]. What is the significance or meaning of that tatoo [sic] as has been your experience as a gang intelligence officer?
[Perkins] A.... There are several meanings to the teardrop.... One is for loss of a homeboy or friend. One particular reason is for how many times you've been to the jail. And one time it is noted as this is the last time I'll ever cry.
He further testified as to the Mickey Mouse tattoo:
Q. [C]an you tell me what the significance of-based on your training and experience, of that tatoo [sic]?
A.... That tatoo [sic] is a Mickey Mouse character, crazed out. The eyes are crossed, it's holding a gun and a knife, and the gun is smoking, which a lot of times is memory a high-jacker [sic], meaning I'll take your gun with a knife or with a gun, whatever it takes.
Finally, Perkins explained the MOB tattoo:
Q. And with regard to ... Money Over Bitches, what is the significance of that tatoo [sic] as you interpret it, based on your experience as a gang intelligence officer?
A. Money Over Bitches on the tatoo [sic] is typical of the black street gang. It means that women are second class citizens. It means money comes first.
Appellant argues that Perkins' testimony is irrelevant because it gave the jury “the distinct impression that Appellant was a violent member of a ‘black street gang,’ ” when there was no evidence connecting appellant to membership in a gang or to gang activity.
At the punishment phase of a criminal trial, evidence may be presented as to any matter that the court deems relevant to sentencing, including evidence of the defendant's background or character. Art. 37.071 § 2(a). A defendant's choice of tattoos, like his personal drawings, can reflect his character and/or demonstrate a motive for his crime. See King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000)(appellant's tattoos and drawings were evidence of appellant's hatred for African-Americans and his motive in committing the murder); Banda v. State, 890 S.W.2d 42, 61 (Tex.Crim.App.1994)(tattoo of word “Satan” was evidence that defendant believed that Satan was telling him to kill people), cert. denied, 515 U.S. 1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Corwin v. State, 870 S.W.2d 23, 35 (Tex.Crim.App.1993)(recognizing that defendant's drawing had “an inferential bearing on his character for violence, which relates in turn to the question of future dangerousness”). We hold Perkins' testimony concerning the meaning behind appellant's tattoos was relevant to appellant's character and hence to punishment.
Appellant characterizes Perkins' testimony as “regarding the significance of Appellant's tattoos as indicia of gang membership and gang-related conduct.” (Emphasis added). But this is a misrepresentation of the nature of most of Perkins' testimony. In just one instance did Perkins suggest that one of appellant's tattoos might have some connection with gang membership. When describing the Money over Bitches tattoo, Perkins stated such tattoo was “typical of the black street gang.” He went on to explain its meaning: “It means that women are second class citizens. It means money comes first.” Perkins did not state that appellant's wearing of such tattoo meant that he was a member of a “black street gang” or state that only gang members wear such tattoos. Perkins did not otherwise suggest that appellant's other tattoos had any connection with gang membership or gang activities.
Appellant also complains that even if relevant, Perkins' testimony was more prejudicial than probative. Rule of Evidence 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
This rule favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones, 944 S.W.2d at 652-53. Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Id. Given that Perkins' testimony was brief and general in nature, we cannot say that the judge abused his discretion in holding that any prejudicial effect of the testimony offered did not substantially outweigh its probative value. Id. Point of error twelve is overruled.
In points of error thirteen through seventeen, appellant claims the trial court committed reversible error by overruling his motion for new trial without a hearing. More specifically, appellant contends that the trial court and the State denied him the effective assistance of counsel and due process of law by instructing jurors after trial that they were not obligated to discuss their service with defense counsel. Because jurors thereafter refused to speak with appellant's counsel, appellant now contends that his counsel was unable to investigate statutory grounds for a new trial. See Tex.R.App. P. 21.3 (grounds for a new trial in criminal cases).
In Jackson v. State, 992 S.W.2d 469, 475-76 (Tex.Crim.App.1999), we noted that our case law clearly holds that “[t]he refusal of any or all of the jurors, after their discharge, to talk to appellant's counsel or to sign affidavits relating to conduct in the jury room violates no statute and does not authorize reversal.” We also noted that no error occurs when jurors are informed that they are under no obligation to talk to defense counsel. Id. Counsel had the right to pursue an investigation on appellant's behalf and nothing prevented him from contacting the jurors and attempting to elicit information from them. However, nothing in the law obligated the jurors to cooperate with the defense investigation either. See id. Appellant was not deprived of the effective assistance of counsel or due process of law because he was not prevented from doing something he had the legal right to do. Jackson, 992 S.W.2d at 475-76; see also Tong v. State, 25 S.W.3d 707, 714 (Tex.Crim.App.2000). Points of error thirteen through seventeen are overruled.
In his eighteenth point of error, appellant claims the capital punishment sentencing scheme is unconstitutional and amounts to cruel and unusual punishment because the jury's decision regarding each of the punishment issues is not subject to meaningful appellate review. Appellant complains in his nineteenth point of error that the “10-12” rule of the capital sentencing scheme is likewise unconstitutional.
The United States Supreme Court and this Court have held that the Texas death penalty scheme passes constitutional muster. See generally Jurek v. Texas, 428 U.S. 262, 269, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). In addition, this Court has previously addressed and rejected these particular complaints. See McFarland v. State, 928 S.W.2d 482, 498, 519 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Lawton v. State, 913 S.W.2d 542, 557 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). Appellant's eighteenth and nineteenth points of error are overruled.
The judgment of the trial court is affirmed.
WOMACK, J., concurs in point of error ten and otherwise joins the opinion.
Conner v. Quarterman, 477 F.3d 287 (5th Cir. 2007) (Habeas)
Background: Following affirmance, 67 S.W.3d 192, of his conviction and death sentence for capital murder in course of a robbery, petitioner sought habeas relief, asserting ineffective assistance of counsel. The United States District Court for the Southern District of Texas, Vanessa D. Gilmore, J., granted petition. Appeal was taken.
Holdings: The Court of Appeals, Carl E. Stewart, Circuit Judge, held that:
CARL E. STEWART, Circuit Judge:
I. FACTUAL AND PROCEDURAL HISTORY
In May 1998, Kathyanna Nguyen, the victim, lived with Tony Tostado behind her grocery store in north Houston. Tostado owned a restaurant next door to the grocery store. On the afternoon of May 17, 1998, Tostado ate lunch with Nguyen and then went to his restaurant to clean up. Shortly thereafter, Julian Gutierrez stopped by the grocery store to get some gas. After pumping the gas, Gutierrez entered the store to pay and heard someone say, “Give me all your money.” Gutierrez looked up from counting his own money to see a man pointing a gun at Nguyen's chest. When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez dropped the money he was holding and ran from the store. As Gutierrez ran, the robber fired the gun at him, hitting him in the shoulder. Hearing several more gunshots, Gutierrez turned to see the robber shooting at Nguyen. He testified that the robber was wearing white tennis shoes, brown shorts, a white T-shirt, and a red cap. Gutierrez ran back to his car, where he began to feel faint, and he noted that the robber was running away from the store. Gutierrez later identified Conner as the robber.
Hearing gunshots, Tostado locked the doors to his restaurant and hurried over to the store. Upon entering the store, Tostado saw a man with a gun. Although Tostado attempted to grab the assailant, the man was able to get out of the store and run away. Tostado then saw Nguyen on the floor behind the counter bleeding profusely. He immediately called 911 on the pay phone outside the grocery store. While he was on the phone, Tostado saw the fleeing suspect and said that he was not wearing a hat. Tostado was unable to identify later the man he saw running.
Other individuals who were outside nearby businesses saw the assailant as he fled the grocery store, and several noted that the man was running with his hand underneath his shirt. Agnes Hernandez, who was stopped at a nearby intersection in her vehicle, decided to follow the robber to see where he went. She described the assailant as a black male wearing a white shirt and dark shorts. He was running with his hands under his shirt and was not wearing a hat. Hernandez never saw the suspect's face but stated that the suspect ran fast for more than a block.
Christine Flores was also driving in the area when she saw a man running down the street and had to slow down in order to avoid hitting him. The man looked directly at Flores as he ran. Flores later identified the man as Conner. She testified that the suspect was wearing blue jeans and no hat. She also stated that the man did not have a tattoo.FN1
FN1. Conner has a tattoo of a teardrop on his cheek.
Michael Hamilton was driving with his wife, Martha Meyers, near the scene when they saw a man running from the grocery store. As the man crossed the road in front of them, he turned to look back at the grocery store, at which time Meyers was able to see his face. Meyers testified that the suspect was between five feet, ten inches, and six feet, one inch, tall, and wore blue shorts, a light gray T-shirt, a white Nike cap, and long pants. She also stated that the suspect had no tattoo on his face. Hamilton and Meyers followed Hernandez as she followed the fleeing suspect. The assailant ran for some distance before he reached a vehicle, got inside, and drove away. Meyers identified Conner as the man she saw, but Hamilton was never able to identify the suspect.
Hernandez continued to follow the assailant, seeing him almost run over a man and child as he sped away. Eventually, the suspect made his way to a freeway feeder road where he drove over the grass median to enter the freeway. Hernandez did not follow the vehicle onto the freeway but returned to the scene and told Tostado the direction in which the vehicle fled.
Melecio Sanchez was sitting in a nearby bar. He heard two shots and saw a black man come running out of the store. Sanchez testified that the suspect was wearing a blue cap, white shirt, and dark shorts.
At the scene, Tostado and several others entered the store to help Nguyen. Several witnesses noted that there was money scattered and a great deal of blood on the floor around Nguyen's body. The cash register was open, and there was blood inside the drawer. The police also discovered a juice bottle on the floor near the counter from which they recovered Conner's fingerprint. Another fingerprint was also on the container, but the second fingerprint was never identified.
When the investigation of the crime narrowed to focus on Conner, Conner's photograph was included in a photo spread of suspects shown to witnesses. Three separate witnesses, Gutierrez, Flores, and Meyers, identified Conner from the photo spread. Conner turned himself in to the Harris County Jail on June 17, 1998. Prosecution witnesses presented all of the above evidence at trial; the defense called no witnesses in the guilt/innocence phase of the trial.
Conner was convicted of capital murder for intentionally killing Nguyen by shooting her with a deadly weapon during the commission or attempted commission of a robbery. At the punishment phase of the trial, the State offered evidence of Conner's prior offenses, while the defense offered evidence from family members about Conner's troubled upbringing. The jury returned a death sentence, and the trial court sentenced Conner to death. The Texas Court of Criminal Appeals affirmed Conner's conviction and sentence on September 21, 2001. Conner v. State, 67 S.W.3d 192 (Tex.Crim.App.2001).
Conner filed a state habeas petition, alleging, among other things, ineffective assistance of counsel. Conner argued that, while several witnesses noted that the suspect ran very quickly for some distance from the scene of the crime, he could not run easily because of a leg injury in 1996 that caused him to limp on his right side. He also urged that he could not have committed the crime because none of the witnesses noted that the assailant limped. He contended in state habeas proceedings that his trial counsel were ineffective for failing to discover this exculpatory information. His trial lawyers, Ricardo Rodriguez and Jonathan Munier, submitted affidavits to the court, explaining that while they knew Conner had injured his leg, he never mentioned any continuing problems with it and neither of them noticed that Conner limped. The state court found, without conducting any evidentiary hearings, that Conner's attorneys were credible, that they fulfilled their duty as his counsel, and that trial counsel had a reasonable trial strategy. The Texas Court of Criminal Appeals affirmed the lower court.
On December 10, 2002, Conner filed a timely petition for writ of habeas corpus with the federal district court in the Southern District of Texas under the Antiterrorism and Effective Death Penalty Act (AEDPA). Conner again alleged ineffective assistance of counsel for his lawyers' failure to discover his condition, known as “foot drop.” Conner's federal habeas petition included several exhibits that were not attached to his petition for state habeas relief, including general information about foot drop and medical records. The medical records included notes from a physician's assistant (PA) who conducted Conner's initial physical after he was convicted. The PA noted that Conner was still afflicted by foot drop at the time of his incarceration, although Conner had to bring the condition to the PA's attention for him to notice it. In addition to the medical records, Conner attached an affidavit, which was introduced during state habeas proceedings as well, from a registered nurse named Fran St. Peter who testified that she did not believe that Conner could have run three blocks at the time of his injury without limping. The affidavits of his trial attorneys that were introduced at the state habeas proceedings were also attached. The Director moved for summary judgment. The district court ordered an evidentiary hearing on Conner's ineffective assistance of counsel claim based on his leg injury and his lawyers' alleged failure to investigate. The Director objected that the standard of 28 U.S.C. § 2254(e) had not been met, but the district court overruled this objection.
At the evidentiary hearing, Dr. Jeffery Gaitz, a board-certified neurologist, testified that Conner's medical records indicated that he had on-going nerve damage that still affected his movements in September of 1999. In a video taken specifically for the evidentiary hearing, apparently without Conner's knowledge, Conner appears, in Dr. Gaitz's opinion, to limp on his right leg when he walks. Dr. Gaitz, based on the video, opined that Conner's limp would be more apparent if Conner were walking fast or running and that a layperson would notice the limp while Conner was running even if he or she didn't notice it while he was walking. However, two guards in the prison where Conner is incarcerated stated that they didn't notice a limp in the video, nor have they noticed Conner limping at any time during their acquaintance, although neither guard has ever seen him run.
Next, the district court heard testimony from Conner's trial counsel, starting with Rodriguez. Rodriguez stated that Conner told him about his leg injury, saying “I broke my leg, but I'm fine now. I went for therapy.” Rodriguez noted that Conner never raised the issue of a limp, nor did he limp in Rodriguez's presence. Rodriguez did look briefly at Conner's medical records but did not delve into them after he saw that Conner had been released from therapy more than two years before the facts giving rise to this conviction. Rodriguez admitted to not knowing whether Conner was healed at the end of his time in therapy. Rodriguez also testified that Conner maintained his innocence throughout the proceedings.
Rodriguez's co-counsel, Jonathan Munier, was appointed just before jury selection began. Munier also noted that Conner did not mention his leg injury. Munier also testified that Conner walked in front of the jury everyday, and he contended that Conner's gait was different at the evidentiary hearing than it had been during his trial in 1998.
Conner testified that he could not run in May 1998. He stated that he told his trial attorneys this on several occasions, but they refused to discuss the issue. He said that Rodriguez told him that the limp had no relevancy to the case.
Based on this evidence, the district court found that the state courts' application of Strickland and ineffective assistance of counsel doctrine was objectively unreasonable because the behavior of counsel in not investigating Conner's medical condition was deficient and prejudicial. The district court granted him habeas relief. The Director appealed to this court.
II. DISCUSSION A. Exhaustion
As a threshold matter, this court must decide if Conner has exhausted his state court remedies as required by 28 U.S.C. § 2254(b)(1)(A), which states that “an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” Exhaustion is a question of law that is reviewed de novo. Moore v. Quarterman, 454 F.3d 484, 491 (5th Cir.2006). “The exhaustion requirement is satisfied if petitioner has fairly ‘presented the substance of his claim to the state courts.’ ” Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 258, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). If a petitioner “presents material additional evidentiary support to the federal court that was not presented to the state court,” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003), a claim is unexhausted and procedurally barred unless the petitioner can show cause for the non-exhaustion and prejudice. Moore, 454 F.3d at 491. The Director argues that because Conner did not present his medical records to the state courts, his claim is unexhausted under AEDPA. We disagree. The substance of Conner's claim was fairly presented to the state courts despite the fact that his medical records were not attached.
In Kunkle v. Dretke, 352 F.3d 980 (5th Cir.2003), the court relied on Brown v. Estelle, 701 F.2d 494 (5th Cir.1983), for the general test that a claim is not exhausted if the additional evidence in federal court puts the claim in a “significantly different and stronger” position than in state court. Kunkle, 352 F.3d at 988. Here, however, it is not clear that the medical records put Conner's claim in any stronger position than it was in state court because much of the information contained in the records is in the affidavit of Fran St. Peter. St. Peter, a Registered Nurse, provides the dates of Conner's pre-arrest treatment, noting that the injury was not healed as of February 5, 1997. Her medical opinion is that such an injury was unlikely to heal spontaneously. Even if the medical records put Conner's claim in a “stronger evidentiary posture,” Anderson, 338 F.3d at 388 (citing Joyner v. King, 786 F.2d 1317, 1320 (5th Cir.1986)), the claim is exhausted because “the supplemental evidence ... [does] not fundamentally alter the legal claim already considered by the state courts, and, therefore, [does] not require that [Conner] be remitted to state court for consideration of that evidence.” Vasquez, 474 U.S. at 260, 106 S.Ct. 617.
In Moore, the petitioner sought for the first time in a successive state habeas application to show that he was ineligible for the death penalty because of mental retardation after the Supreme Court announced a new rule of law in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Moore, 454 F.3d at 486. To substantiate his claims that he was retarded, he cited to testimony in the trial record about his IQ of 74 and his placement in special education classes in school. He did not provide any additional evidence in state court. He requested an opportunity to be evaluated, but this request was denied by the state court, which dismissed his petition as an abuse of the writ. Moore was granted permission to file a second habeas petition in federal court. For the first time in his federal petition, Moore specifically discussed the standards used by the American Association on Mental Retardation (AAMR) to diagnose his condition and specifically stated that he met each piece of the criteria. The district court held an evidentiary hearing after reviewing the petition and then granted Moore habeas relief. The state appealed, and this court overturned the grant of habeas relief, holding that the district court improperly considered evidence on an unexhausted claim.
The court noted the importance of the detail of the petitioner's claim in his state habeas petition. Moore, 454 F.3d at 491. The court found that Moore, while stating that he was in special education classes, failed to provide anything more than a bare assertion to support that statement. What was needed, the court said, was identification of specific special education classes or documentation of those classes. Id. at 492. Here, Conner was fairly specific in his application. While St. Peter's affidavit is not as specific as medical records would be, it satisfies Moore's requirement that Conner make more than a bare assertion of his claim in his state habeas petition. Additionally, Conner did not “attempt[ ] to expedite federal review by deliberately withholding essential facts from the state courts.” Vasquez, 474 U.S. at 260, 106 S.Ct. 617; see also Anderson, 338 F.3d at 389. The state court had before it enough evidence to adequately consider Conner's claim for ineffective assistance of counsel based on his attorneys' alleged failure to review his medical history. This exhausted claim is eligible for federal habeas consideration under AEDPA.
B. Evidentiary Hearing
After finding that Conner exhausted his state court remedies, the district court held an evidentiary hearing on Conner's ineffective assistance of counsel claim. The Director objected that such a hearing wasn't warranted under AEDPA, but the district court overruled this objection. Evidentiary hearings in federal habeas proceedings are governed by 28 U.S.C. § 2254(e)(2), which states that if an applicant has failed to develop the factual basis of his claim in state court proceedings, a federal court should not hold an evidentiary hearing on the claim. The district court's ruling about the effect of 28 U.S.C. § 2254(e)(2) is reviewed de novo, but the district court's decision to grant an evidentiary hearing after considering 28 U.S.C. § 2254(e)(2) is reviewed for abuse of discretion. Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir.2004); see also Guidry v. Dretke, 397 F.3d 306, 320 (5th Cir.2005).
The real question in this case is if Conner failed to diligently present his case to the state courts because he did not present his medical records during his state habeas proceedings. Conner argues that he would have presented more evidence to the state court if he had been granted an evidentiary hearing, but a request for an evidentiary hearing is not enough to show diligence. Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000). Instead, Conner must have developed the factual basis of his claim in his state court petition. Id.
In Roberts v. Dretke, 356 F.3d 632 (5th Cir.2004), the court considered the grant of an evidentiary hearing where the petitioner claimed that his counsel was ineffective for failing to investigate medical records that would show that the petitioner had a mental illness. Included in his federal habeas petition were medical records that had not been included in his state habeas petition. The court held that “seeking and presenting medical records ... available at the time of the state habeas hearing is within the exercise of due diligence.” Id. at 641 (interpreting § 2254(e)(2)). Therefore, the court refused to consider this evidence in deciding whether to grant Roberts a COA on his ineffective assistance of counsel claim. Id. (granting the COA on other grounds). Because Conner did not diligently develop the factual basis for his claim in state court, the federal habeas court improperly granted an evidentiary hearing under 28 U.S.C. § 2254(e)(2).
C. Ineffective Assistance of Counsel
This court reviews the state court's decision that Conner has not adequately alleged a Strickland violation for whether the decision was contrary to, or an unreasonable application of, clearly established federal law. Busby v. Dretke, 359 F.3d 708, 717 (5th Cir.), cert. denied, 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that when a defendant proves that counsel's performance fell below an objective standard of reasonableness in light of the surrounding circumstances and that this deficiency caused prejudice to the defendant by denying him a fair trial, the defendant's Sixth Amendment right to counsel has been violated. Id. at 687-88, 690, 104 S.Ct. 2052.
The deficiency alleged here is that counsel did not conduct an adequate investigation in preparing for the guilt/innocence phase of the trial because they did not investigate Conner's medical records to determine that he had a limp. The judgment is whether counsel's investigation was reasonable, not whether counsel's trial strategy was reasonable. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The prejudice inquiry requires Conner to show a reasonable probability that the outcome of the proceeding would have been different if counsel's performance had been sufficient. Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Generally, either prong of the Strickland inquiry may be evaluated first as both are necessary to make out a showing of ineffective assistance. Id. at 697, 104 S.Ct. 2052.
It is clear in this case that the state court's decision was not objectively unreasonable because Conner cannot show prejudice resulting from his counsel's alleged deficiency in not reviewing his medical history. Conner contends that if his attorneys had argued that he had a limp in front of the jury, the outcome of the trial would likely have been different. We do not agree. Conner has done nothing to lessen the impact of the other evidence against him, including his fingerprints on a bottle near the register of the grocery store and his identification by three witnesses, including one whom he had just shot. Despite any doubt about the eyewitness identification that the new evidence creates, the evidence presented by the prosecution prevents Conner from being able to establish prejudice, assuming arguendo that his counsel's performance was deficient. If nothing else, Gutierrez's identification and Conner's fingerprints remain strong evidence that Conner was the man in the store that day.FN2
FN2. Conner cannot establish prejudice even if the evidence presented at the evidentiary hearing in district court were to be considered.
Additionally, this court held in Jordan v. Dretke, 416 F.3d 363 (5th Cir.2005), that even if a petitioner demonstrates prejudice before the federal habeas court, it is unlikely that it will be prejudice that would justify holding that the state court's decision was objectively unreasonable without “direct evidence” of prejudice. Id. at 370-71. There is no testimony about Conner's gait around the time of the incident, and Conner's attorneys stated that they never noticed him limping. While Fran St. Peter stated that she believed Conner would have had a limp around the time of the accident, she appears to have based this assessment entirely on his medical records, and she does not mention conducting a physical exam on Conner. Additionally, the prison PA who examined Conner on his admission to the facility did not even notice that Conner had foot drop until it was pointed out to him. Neither the videotape of Conner walking nor the testimony of Dr. Gaitz provides any direct evidence of Conner's affliction at the time of the crime. There was never any testimony that Conner was unable to run. The witnesses were never asked if they noticed that the man they saw running had an unusual gait. Thus, Conner has not directly contradicted any witness's testimony because none of them said the assailant was not limping.
This lack of directly contradictory evidence showing prejudice, combined with the fact that the state presented additional evidence against Conner at trial, demonstrate that the state court's application of Strickland was not unreasonable. Therefore, the district court erred in granting Conner habeas relief.
III. CONCLUSION
For the above reasons, we reverse the district court's grant of habeas relief and render judgment denying habeas corpus.
(1) ineffective assistance claim was exhausted;
(2) district court improperly granted petitioner an evidentiary hearing; and
(3) petitioner was not denied effective assistance of counsel.
Reversed and rendered.
The district court granted Johnny Ray Conner's petition for habeas relief from the imposition of the death penalty for his conviction for capital murder in the course of a robbery. Nathaniel Quarterman, the Director of the Correctional Institutions Division of the Texas Department of Criminal Justice (“the Director”), appeals the grant of habeas corpus. The district court granted relief on Conner's ineffective assistance of counsel claim, premised on the argument that Conner's trial counsel failed to adequately investigate a leg injury that caused Conner to limp. We reverse the district court's grant of habeas corpus.