Media Advisory: Monday, November 14, 2011
Media advisory: Guadalupe Esparza scheduled for execution

AUSTIN – Pursuant to a court order by the 175th District Court of Bexar County, Guadalupe Esparza is scheduled for execution after 6 p.m. on Wednesday, November 16, 2011. On March 6, 2001, a Bexar County jury found Esparza guilty of the kidnapping, sexual assault and murder of seven-year-old Alyssa Vasquez.

FACTS OF THE CRIME

In its opinion on direct appeal, the Texas Court of Criminal Appeals described the murder of Alyssa Vasquez as follows: . . .[O]n June 6, 1999, appellant [Esparza] abducted Alyssa Vasquez from her home while her mother was out and the babysitter was next door. He raped and strangled her, and abandoned her body in a nearby field . . .

. . .[O]n the night of the offense, before Alyssa Vasquez was discovered missing, appellant [Esparza] telephoned her residence several times and came by looking for her mother and asking when she was going to return home. The babysitter discovered that Vasquez was missing at around 2:30 a.m. and later observed appellant [Esparza] running down the street away from the residence. Police found appellant [Esparza] at his residence, which was one and one-half to two miles from Vasquez’s apartment, at approximately 4:00 a.m., and found appellant’s [Esparza’s] blood-spotted shirt and boxer shorts in a trash can outside the residence. The evidence also showed that appellant [Esparza] admitted his involvement in the offense to a detention guard and to a fellow inmate at the Bexar County Jail, and implied his involvement to another inmate; the only contrary evidence was appellant’s [Esparza’s] own testimony, in which he denied making these statements. Scientific testing revealed that appellant’s [Esparza’s] DNA was consistent with the DNA extracted from spermatozoa on Vasquez’s oral swab.

PROCEDURAL HISTORY

On November 9, 1999, Esparza was indicted in the 175th District Court of Bexar County, Texas, for the capital murder of Alyssa Vasquez. Because Esparza was charged with committing the murder in the course of committing the offenses of sexual assault, kidnapping, and burglary, he was indicted for capital murder.

On March 6, 2001, Esparza was found guilty by a jury for the offense of capital murder as charged in the indictment. On March 15, 2001, following a separate punishment hearing, Esparza was sentenced to death.

On June 4, 2003, the Texas Court of Criminal Appeals rejected Esparza’s direct appeal and affirmed his conviction and sentence.

On November 10, 2003, the U.S. Supreme Court rejected Esparza’s direct appeal when it denied his petition for writ of certiorari.

On February 28, 2007, the Texas Court of Criminal Appeals ultimately adopted the trial court’s findings of fact and conclusions of law recommending that Esparza’s initial state application for habeas relief, filed in March 2003, be denied. The high court also found that Esparza’s subsequent application, filed in December 2003, did not meet any exception to the filing deadline, and dismissed the petition as an abuse of the writ.

On June 8, 2007, Esparza attempted to appeal his conviction and sentence by filing a pro se petition for federal habeas relief in the U.S. District Court for the Eastern District of Texas. The case was soon transferred to the Western District of Texas, San Antonio Division.

On September 21, 2007, Esparza, with the aid of counsel, filed an amended petition for federal habeas relief in the U.S. District Court for the Western District of Texas.

On March 24, 2010, the federal district court denied Esparza the relief requested in his federal habeas petition, and also denied a COA.

On November 9, 2010, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s denial of relief when it rejected Esparza’s request for a COA in an unpublished opinion.

On May 16, 2011, the U.S. Supreme Court again denied Esparza’s petition for certiorari.

On August 16, 2011, the trial court issued an order setting Esparza’s execution date for Wednesday, November 16, 2011.

On September 21, 2011, Esparza filed a third application for writ of habeas corpus with the state trial court.

On October 19, 2011, the Texas Court of Criminal Appeals again dismissed Esparza’s subsequent state habeas application as an abuse of the writ.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the punishment phase of Esparza’s trial, jurors learned about Esparza’s criminal behavior and misconduct that stretched over a period of nearly 20 years. Testimony and exhibits established that Esparza, born in November 1964, was arrested for attempted arson in 1978 and received “informal adjustment” through Bexar County’s juvenile probation department instead of jail time. The following year, Esparza was arrested for attempting to steal a bicycle at knife point from a younger child. Though he was also arrested for criminal mischief, that charge was dismissed.

Jurors learned that in 1980, Esparza was suspended from high school. One former classmate testified that Esparza was a bully, and described how Esparza broke out the window of his family’s car with a pipe and threatened to beat him up at school the next day. Another former schoolmate testified that Esparza strangled and tried to sexually assault her in the woods late one night when she was 13 years old, but that she was able to run away.

Jurors also heard that in 1984, Esparza was convicted of assault causing bodily injury when he struck a man with a metal pipe and a baseball bat. The next year, Esparza was convicted and sentenced to 12 years’ imprisonment for committing an aggravated sexual assault, wherein he beat the victim with a loaded gun and forced her at gunpoint to submit to intercourse with him. During his incarceration, Esparza “constantly” caused trouble, physically attacked other inmates, and was an active member in a prison gang. In May 1989, Esparza and three other inmates attacked another inmate, who the correctional officer believed would have been killed had he and other officers not intervened.

While on parole for his aggravated sexual assault conviction, Esparza stole a car in May 1992 and conspired to steal the wheels off another car. Later, in May 1993, Esparza pled guilty to possession of cocaine and received an eight-year prison sentence. Esparza was paroled again in 1996, and was later cited for possessing narcotic paraphernalia, a Class C misdemeanor crime, in February 1998.

Finally, jurors learned that in 1999, following his completion of a mandatory sex offender treatment program, Esparza attempted to engage in sexual relations with a seven-year-old child who was staying at the same apartment for the night. Approximately two weeks later, Esparza sexually assaulted and fatally strangled a different seven-year-old girl – Alyssa Vasquez.

Texas Execution Information Center by David Carson.

Guadalupe Esparza, 46, was executed by lethal injection on 16 November 2011 in Huntsville, Texas for the abduction, rape, and murder of a 7-year-old girl.

On 6 June 1999 at about 11 p.m., Diana Berlanga went out for the evening, leaving her daughter, Alyssa Vasquez, and two sons, Joel and Aaron Vasquez, in the care of Robin Wellbrock, who she had recently taken in as a roommate.

Moments after Berlanga left, Esparza, then 34, showed up. Berlanga and Esparza had seen each other socially for a few weeks, but Berlanga was friends with a woman whose sister, Connie Perez, knew Esparza as a teenager and warned her, "Stay away from him," so she had recently stopped taking his calls. Esparza came to Berlanga's west San Antonio apartment that Sunday night with three 32-ounce cans of beer to share with Berlanga and Wellbrock. Wellbrock took two of the beers and told Esparza to leave.

Later, Wellbrock went next door to visit with a neighbor. Upon her return at about 2:30 a.m., she found the front door open and noted that the television had been turned off while she was gone. She also found the green shorts Alyssa had been wearing on the floor. As she searched for Alyssa, she heard a trash bin lid close outside. She looked out and saw someone who appeared to be Esparza running down the street.

While Berlanga was still out, Alyssa's body was discovered in the tall grass behind a meat market near the apartments. She was naked from the waist down. Her legs were spread. Her face was swollen, scratched, and bruised. She had been raped and strangled.

At about 4:00 a.m., police arrested Esparza at his residence, which was a mile and a half to two miles from Berlanga's apartment. They also collected a blood-spotted shirt and boxer shorts that were in a trash can outside. Esparza's DNA was matched to sperm found in the victim's mouth. Her DNA was also found under his fingernails.

Esparza's criminal history extended back to his teens. At age 13, he and another boy were arrested for throwing a Molotov cocktail at a house. They were charged with attempted arson. The following year, Esparza was arrested for threatening a younger child with a knife while attempting to steal his bicycle.

Connie Perez, the woman who passed a warning along to Berlanga to stay away from Esparza, testified that he tried to rape and strangle her in the woods when she was 13, but she managed to run away. At age 19, Esparza was convicted of assault causing bodily injury after he struck a man with a metal pipe and a baseball bat.

In 1985, Esparza received a 12-year prison sentence for beating a woman with a gun and raping her. While in prison, he joined a gang. He and three other inmates attacked another inmate, who correctional officers testified would have been killed if not for their intervention. In July 1990, he was paroled as a result of Judge William Wayne Justice's orders to relieve overcrowding in Texas' prison system.

In May 1992, while on parole, Esparza stole a car. A year later, he pleaded guilty to cocaine possession and was returned to prison with an 8-year sentence. He was paroled again in January 1996.

At his trial, Esparza testified in his own behalf, against his attorneys' advice. He admitted that he was a registered sex offender at the time of the killing, but stated, "It was not with a child." When invited to elaborate by his attorney, he said, "I have nieces and nephews of my own and a 3-year daughter. I would never do that to a child, you know."

In response to Esparza's testimony, the state called Manuel and Teresa Longoria to testify. Manuel testified that in late May 1999, about one or two weeks prior to Alyssa's murder, he and his 7-year-old daughter Teresa were staying overnight at the home of Manuel's brother and sister-in-law. Esparza came to the house in the middle of the night, looking for a place to stay because his girlfriend had kicked him out. Manuel's brother and sister-in-law agreed to let him spend the night. Manuel and Teresa slept on couches in the living room, while Esparza slept on a chair in the same room.

Teresa testified that she woke up in the middle of the night to find Esparza touching her on her stomach underneath her shirt. She ran to her cousin's room. Esparza followed her into the room, offered her a dollar bill, and told her to go into the bathroom with him. Teresa then ran into the living room and woke her father to tell him what happened.

Manuel testified that he confronted Esparza, who replied, "I didn't do nothing. I don't know what you are talking about." The two men then began arguing and fighting, and Manuel's brother made Esparza leave the house.

On rebuttal, Esparza claimed that Manuel and Teresa Longoria's allegations against him were false and were the result of "bad blood" between himself and Manuel. He stated that he was targeted as Alyssa's killer because he was a registered sex offender who lived nearby, who knew the victim's mother, and who just happened to have been at the victim's apartment on the night of her death. He claimed that the witnesses who testified against him were participants in a conspiracy organized by the district attorney's office, and he contested the accuracy and conclusiveness of the DNA evidence against him.

A jury convicted Esparza of capital murder in March 2001 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2003. All of his subsequent appeals in state and federal court were denied. Robin Wellbrock, the babysitter, died of a heart attack in 2004.

Esparza maintained his innocence in an interview from Death Row. He admitted that he went to the victim's apartment hoping to see her mother, but left when she wasn't there. "Diana wasn't there, and Robin told me she didn't want me there," he said, "So I went to a bar like, a mile away, Barton's Boozery." Esparza said while at the bar, he got into a fight and cut his hand on a bottle. He left at 2 a.m. and walked home. He threw away his clothes, which were bloodied from the cut, and crawled into bed with his girlfriend. "I wasn't there when she died, ma'am," he told the reporter. "I have a daughter. I always wanted to be a father. I'm not capable of doing anything like this."

Diana Berlanga, Joel Vasquez, and other members of Alyssa's family attended Esparza's execution. Esparza placed three of his siblings on his witness list, but they did not show up. Two of his friends were present. "To the family of Alyssa Vasquez, I hope you will find peace in your heart," Esparza said in his last statement. "My sympathy goes out to you. I hope you find it in your heart to forgive me. I don't know why all of this happened." The lethal injection was then started. He was pronounced dead at 6:21 p.m.

Reuters News

"Texas executes man who killed 7-year-old girl," by Corrie MacLaggan. (Wed Nov 16, 2011 8:08pm EST)

AUSTIN, Texas (Reuters) - A registered sex offender in Texas convicted of kidnapping, raping and murdering a 7-year-old girl was executed by lethal injection on Wednesday, state prison officials said. In 1999, Guadalupe Esparza abducted Alyssa Vasquez from her San Antonio home when her babysitter was at a neighbor's place, authorities said. Her strangled body was found in a nearby field.

On the night Alyssa died, Esparza had called and visited her home, looking for her mother, according to an account of the case by the Texas attorney general's office. DNA testing showed the sperm found on Alyssa's body belonged to Esparza. "To the family of Alyssa Vasquez, I hope you will find peace in your heart," Esparza, 46, said in his final statement, according to Jason Clark, a Texas Department of Criminal Justice spokesman. "My sympathy goes out to you. I hope you find it in your heart to forgive me. I don't know why all this happened."

Esparza had a long criminal record, including a 1985 aggravated sexual assault conviction for beating a woman with a loaded gun and forcing her to have sex with him. And in 1984, he was convicted of assault causing bodily injury for hitting a man with a metal pipe and a baseball bat.

Alyssa's mother, Diana Berlanga, attended the execution with a few other family members, Clark said. "The day he gets his death, I'll be smiling," Berlanga said earlier this year, according to the San Antonio Express-News. "I cannot forgive. I'll tell God, 'Forgive me for not forgiving him.'" Two of Esparza's friends attended the execution, and just before he died, he asked them to say goodbye to his family, Clark said. "Jesus, take me home; take me away from this place," Esparza said in his final statement, according to Clark.

Esparza was the 42nd person executed in the United States this year and the third this week. Executions were carried out in Ohio and Florida on Tuesday. A fourth is scheduled for Friday in Idaho. Esparza was the 13th person executed this year in Texas, which has executed more than four times as many people as any other state since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center.

There are no more executions scheduled in Texas this year.

Huntsville Item

"Convicted murderer asks forgiveness before execution," by Cody Stark. (Nov 16, 2011, 09:09 PM CST)

HUNTSVILLE — Convicted child killer Guadalupe Esparza offered his condolences to the family of Alyssa Vazquez, the 7-year-old San Antonio girl he raped and murdered more than a decade ago, before he was put to death Wednesday night. “To the family of Alyssa Vasquez, I hope you will find peace in your heart,” he said. “My sympathy goes out to you. I hope you find it in your heart to forgive me. I don’t know why all of this happened.” Before Texas Department of Criminal Justice officials injected the lethal dose, Vasquez’s mother, Diane Berlanga, let her feelings be known about what was about to happen.

“He is going to get what he deserved,” she said. At 6:21 p.m. on Wednesday, 11 minutes after the lethal dose began, Esparza was pronounced dead, becoming the 13th and last scheduled inmate to be executed in Texas this year. Appeals were exhausted and no late legal maneuvers were made leading up to the execution.

Esparza, 46, was a convicted sex offender when he kidnapped Vasquez from her apartment and sexually assaulted the young girl on June 6, 1999. The former cook and bricklayer then strangled the girl to death and left her body in a nearby field. According to a baby sitter who discovered Vasquez was missing, Esparza telephoned and came by the apartment looking for the girl’s mother on the night of the murder.

Law enforcement located Esparza at his residence, close to two miles away from Vasquez’s apartment, around 4 a.m. and found the suspect’s bloody shirt and boxer shorts in a trash can outside of his house. Semen found on the girl’s body was linked to Esparza through DNA testing and he was charged with capital murder. “He tried to blame it on somebody else,” Terry McDonald, one of his trial lawyers, said. “He was not a very repentant individual ... just a constant denial that it wasn’t him, the facts to the contrary.” From death row, Esparza continued to insist he was innocent leading up to his execution. Wednesday, even though he asked the family for forgiveness, he did not confess his innocence or his guilty.

“I don’t know why all of this happened,” Esparza said after saying good-bye to his family. “I don’t know why.” A judge who authorized a review of DNA in the case was told last week the findings were consistent with the evidence during Esparza’s 2001 trial, where his attorneys had challenged the validity of the results.

Earlier this year, the U.S. Supreme Court refused to review claims he was mentally impaired and ineligible for execution. Last month, the Texas Court of Criminal Appeals rejected an attempt to renew that claim and others questioning whether he had effective legal help at his trial. Esparza had a long criminal history before he was convicted of Vasquez’s murder. He was arrested as a teenager for attempted arson and received juvenile probation, was arrested again for trying to steal a bicycle from a child at knife point, had school suspensions and was remembered as a school bully. A woman testified he tried to rape and strangle her when she was 13.

In 1984, he was convicted of assault for beating a man with a metal pipe and baseball bat. Esparza was convicted of aggravated sexual assault in 1985, although he contended the sex was consensual. He was sentenced to 12 years in prison, was paroled in 1990, and was locked up again in 1993 with an eight-year sentence after pleading guilty to cocaine possession. He was released on mandatory supervision three years later.

Houston Chronicle

"Killer of 7-year-old San Antonio girl executed," by Michael Graczyk. (AP Thursday, November 17, 2011)

HUNTSVILLE, Texas (AP) — A convicted sex offender was put to death Wednesday evening for slipping into a San Antonio apartment in the middle of the night, snatching a 7-year-old girl and raping and strangling her.

Guadalupe Esparza, 46, asked for forgiveness before Texas Department of Criminal Justice officials administered lethal drugs into his arms. "I hope you will find peace in your heart," he said to relatives of his victim, Alyssa Maria Vasquez, as they watched through a window a few feet from him. "My sympathy goes out to you. I hope you find it in your heart to forgive me. I don't know why all of this happened."

Just minutes earlier, the child's mother, Diana Berlanga, had entered the death chamber, saw Esparza on the gurney with needles in his arms and said, "He's going to get what he deserves." As the drugs took effect, Esparza appeared to go to sleep, taking several breaths before all movement stopped. He was pronounced dead at 6:21 p.m. CST — 11 minutes after the drugs were administered.

Appeals were exhausted and no late legal maneuvers were made to keep Esparza from becoming the 13th Texas inmate to be put to death by the state this year. A clemency petition was rejected Monday by the Texas Board of Pardons and Paroles.

Alyssa's battered body was found in weeds behind a convenience store near her home hours after she was reported missing in June 1999. A baby sitter who discovered her gone identified Esparza as having visited the residence earlier that night. Berlanga, the girl's mother, told authorities at the time that she met Esparza at a bar and he'd been calling her even though she'd given him the brushoff.

Police went to Esparza's apartment about two miles away and found some blood-spotted clothing of his in a trash bin. Semen on the slain girl's body was linked to him through DNA testing, and Esparza was charged with capital murder. "He tried to blame it on somebody else," Terry McDonald, one of his trial lawyers, said. "He was not a very repentant individual ... just a constant denial that it wasn't him, the facts to the contrary."

A judge who authorized a review of DNA in the case was told last week the findings were consistent with the evidence during Esparza's 2001 trial, where his attorneys had challenged the validity of the results.

Earlier this year, the U.S. Supreme Court refused to review claims he was mentally impaired and ineligible for execution. Last month, the Texas Court of Criminal Appeals rejected an attempt to renew that claim and others questioning whether he had effective legal help at his trial.

Investigators determined that blood on Esparza's clothing retrieved from the trash was his and not the slain girl's. But a Bexar County Jail inmate testified Esparza told him he got rid of the clothing because he didn't want detectives to think the blood came from the child. The Court of Criminal Appeals, in a 2003 ruling upholding his conviction and death sentence, said the discarded clothing provided some evidence of his awareness of guilt and the timing of his action showed knowledge of the crime.

Esparza, against the advice of his lawyers, twice took the stand at his five-day murder trial, defiantly responding to prosecutors' questions and accusing them of coaching witnesses. "He had a very inflated opinion of his abilities to con people," McDonald said.

Esparza had been convicted in the past for assault, sexual assault and cocaine possession.

His execution is likely the last one this year in Texas, the nation's most active capital punishment state. The 13 executions this year are the lowest number the state has seen in 15 years. But the state already has at least five prisoners scheduled for lethal injection early next year.

MySanAntonio.Com

"Girl's killer pays the ultimate price; Little Alyssa Marie Vasquez was raped and murdered in June 1999," by Eva Ruth Morave. (Updated 07:47 a.m., Tuesday, November 22, 2011)

HUNTSVILLE — Guadalupe Esparza was executed Wednesday for raping and strangling a 7-year-old girl, then leaving her body in tall grass next to her mother's apartment on San Antonio's West Side, where he snatched her on a June night in 1999. Relatives of Alyssa Marie Vasquez, slain just after she finished the first-grade, filled the chamber viewing area to watch Esparza die.

Esparza, 46, addressed Vasquez's family, expressed love for his own relatives and thanked two friends who served as witnesses in the moments it took for the lethal injection to work. He was pronounced dead at 6:21 p.m. “To the family of Alyssa Vasquez, I hope you will find peace in your heart. My sympathy goes out to you,” he said with his eyes closed and head straight, strapped to the gurney. “I hope you find it in your heart to forgive me. I don't know why all of this happened.”

Diana Berlanga, Alyssa's mother, had rented vans from San Antonio to haul friends and family to Huntsville. Among the victim's relatives present was Joel Vasquez, Alyssa's brother, who was asleep in the apartment his mother rented in the 2400 block of Pinn Road when his sister was abducted early that June morning.

A babysitter returning from a neighbor's house found the door open and Alyssa's shorts on the floor. San Antonio police found the girl's half-naked body behind the Culebra Meat Market next door. As Esparza died, Joel Vasquez embraced his mother. “He's going to get what he deserves,” Berlanga said. Relatives declined to comment after the execution.

Three of Esparza's siblings who were on the list to witness the execution didn't show up, Texas Department of Criminal Justice spokesman Jason Clark said.

The Texas Board of Pardons and Paroles denied a clemency petition to stay Esparza's execution Monday. An attorney tried unsuccessfully through several appeals to show that Esparza, a documented member of the Mexican Mafia prison gang, was mentally retarded and therefore ineligible for execution.

In an interview three weeks ago, Esparza maintained his innocence and said he hoped that post-conviction DNA testing would prove it. The results of the new analysis last week confirmed DNA tests entered as evidence in his trial. Esparza's sperm was found in Alyssa's mouth, and her DNA was beneath his fingernails.

Berlanga, now 51, met Esparza at a bar two months before her daughter was killed. The two struck up a conversation and became friends, but acquaintances warned Berlanga about Esparza, who already had a lengthy criminal record.

As a juvenile, he was charged with attempting to set a house on fire and tried to steal a boy's bicycle at knifepoint, according to court transcripts. At age 19, he was accused of and later pleaded guilty to raping a 25-year-old woman at gunpoint.

Esparza kept calling Berlanga despite her refusal to talk to him. Hours before Alyssa was killed, Esparza called and visited the apartment in hopes of spending time with Berlanga, but she'd gone out with a friend. “He got mad because he didn't get what he wanted,” Berlanga said. “He took it out on my daughter.”

Esparza is the 13th and final Texas death row inmate to be executed this year.

MySanAntonio.Com

"12 years later, a murder trial still haunts a juror," by Eva Ruth Moravec. (11/17/11)

Alyssa Marie Vasquez, 7, was raped and strangled to death after being snatched from her mother's West Side apartment in 1999. Her killer, Guadalupe Esparza, was executed Wednesday night. During Guadalupe Esparza’s 2001 sentencing hearing,one of the convicted killer’s defense attorneys warned jurors that deciding on his sentencing may haunt them forever.

Terry McDonald’s words rang especially true for one male juror, who thinks of 7-year-old Alyssa Vasquez, the girl Esparza raped and killed, every year on his birthday. “She died on my birthday,” said the juror, who called me on my way to Esparza’s execution for the 1999 slaying in Huntsville on Wednesday. “I absolutely still think about it.”

The juror was looking for a way to reach Diana Berlanga, Alyssa’s mother, now 51. “I always wondered — did I make the right decision? But I think we did. He was an animal,” he said. “I hope we spoke well for that little girl.”

Although some on the jury weren’t sure they were ready to sentence Esparza to death, the male caller told me that once DNA evidence linked the convicted-sex-offender to Alyssa, the decision was simpler for him. Eventually, the jury decided unanimously to sentence Esparza to death. “To think, the person I sent to death, he’s going to meet his maker,” the juror said Wednesday, hours before Esparza was pronounced dead at 6:21 p.m. “I hope Mrs. Berlanga has closure.”

ProDeathPenalty.Com

On June 6, 1999, Guadalupe Esparza abducted Alyssa Vasquez from her home while her mother was out and the babysitter was next door. He raped and strangled her, and abandoned her body in a nearby field.On the night of the murder, before Alyssa Vasquez was discovered missing, Esparza telephoned her residence several times and came by looking for her mother and asking when she was going to return home. The babysitter discovered that Alyssa was missing at around 2:30 a.m. and later observed Esparza running down the street away from the residence. Police found Esparza at his residence, which was one and one-half to two miles from Alyssa Vasquez’s apartment, at approximately 4:00 a.m., and found Esparza’s blood-spotted shirt and boxer shorts in a trash can outside the residence. The evidence also showed that Esparza admitted his involvement in the offense to a detention guard and to a fellow inmate at the Bexar County Jail, and implied his involvement to another inmate; the only contrary evidence was Esparza’s own testimony, in which he denied making these statements. Scientific testing revealed that Esparza’s DNA was consistent with the DNA extracted from spermatozoa on Alyssa’s oral swab.

UPDATE: Esparza asked for forgiveness from the victim's family members shortly before he was executed: "To the family of Alyssa Vasquez, I hope you will find peace in your heart. My sympathy goes out to you. I hope you find it in your heart to forgive me. I don't know why all this happened."

DeatRowUSA

Hello,

My name is Guadalupe Esparza. I am an American-Hispanic born and raised in San Antonio, Texas - U.S.A. I have brown eyes and black hair, I'm 5'5 in heigth and I weight 160 pounds. I am catholic by religion, and I believe in "Christ" very much! I am looking for a pen pal friend, someone that I can share my daily thoughts with and they can shere the outside world with me, through letters: Female or male are all welcome to write me. I will be honest, sincere, and I will respect all your views.

When I was in the free world I was a bricklayer building houses in the day and at night I was a part-time "cook", during my off days I liked to go camping and swimming also enjoyed cooking food at bar-b-que's. Here my hobbies I like jogging and exercising, doing "art work " and listing to classic Rock and R&B music, country music, too.

I don't get much mail or visits and it's very lonely for a person on death row. So I hope that who ever reads letter ad will want to start a pen pal friendship ! I thank you for your time and may "God" Bless you !

Respectfully your friend,

Lupe Esparza #999385

Esparza v. State, Not Reported in S.W.3d, 2003 WL 21282765 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted in the District Court, Bexar County, of capital murder for rape and strangulation of seven-year-old victim. Defendant appealed. The Court of Criminal Appeals, Cochran, J., held that: (1) defendant's statement to sergeant that he killed a “Mexican Mafia family member” was not result of interrogation, for purposes of Miranda; (2) evidence of prior attempt to molest child was relevant to rebut defendant's testimony that he would never harm child; (3) exclusion of reports of DNA tests marked inconclusive was not abuse of discretion; (4) probative value of photographs of victim's body as it was found was not substantially outweighed by danger of unfair prejudice; (5) denial of challenge for cause of venire member who was allegedly biased against law allowing for range of punishment for capital murder to include life sentence did not prejudice defendant; (6) capital sentencing scheme was not unconstitutionally vague; (7) constitution did not require review of sufficiency of evidence of mitigating circumstances or comparative proportionality of special circumstances; (8) capital sentencing scheme was not unconstitutional; and (9) capital sentencing scheme did not violate prohibition against cruel and unusual punishment. Affirmed.

COCHRAN, J., delivered the opinion of the Court.

On March 27, 2001, appellant was convicted of capital murder for raping and strangling a seven-year old girl, Alyssa Vasquez. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises twenty-four points of error. We will affirm. FN1. Unless otherwise indicated, this and all future references to Articles refer to the Texas Code of Criminal Procedure. In points of error one through five, appellant argues that the trial court erroneously admitted the oral statement that he made to Sergeant Edward Gonzalez while he was incarcerated at the Bexar County Jail awaiting trial on this capital murder indictment. He contends that Gonzalez failed to read him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, section 2, thereby violating the Fifth Amendment to the United States Constitution, Article I, section 10 of the Texas Constitution, and Article 1.05. Appellant also contends that his oral statement was inadmissible because it was not electronically recorded as required by Article 38.22, section 3(a).

Miranda and Article 38.22 apply only to custodial interrogation. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App.1996). Custodial interrogation occurs when a defendant is in custody and is subjected to “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Miranda does not stand for the proposition that all statements made to a police officer while a defendant is in custody should be considered the product of custodial interrogation. Innis, 446 U.S. at 299. Section 5 of Article 38.22 similarly exempts voluntary statements that are not the product of custodial interrogation. Tex.Code Crim. Proc. art. 38.22, § 5. If a defendant's freely and voluntarily given statements do not stem from custodial interrogation, then the protections afforded by Miranda and Article 38.22 do not apply. Innis, 446 U.S. at 300; Dowthitt, 931 S.W.2d at 263.

Sergeant Gonzalez of the Bexar County Sheriff's Department testified at a hearing outside the presence of the jury that he was in charge of the second floor of the detention center when he received an inmate request form from appellant in December 1999. Appellant indicated on the form that he wanted to be placed in isolation for his own safety. Gonzalez testified that it was standard procedure for him to interview an inmate who makes such a request in order to verify the reasons for the request. When Gonzalez asked appellant why he feared for his safety, appellant replied that it was because he had “killed a Mexican Mafia family member.” Although the trial judge limited inquiry into any alleged ties that the victim's family, various witnesses, and appellant himself had to the Mexican Mafia, the purported implication of appellant's statement was that he admitted to Sergeant Gonzales that he had killed the victim. The trial court denied appellant's motion to suppress Gonzalez's testimony at the conclusion of the hearing and Gonzalez testified before the jury regarding appellant's oral statement.

As a practical matter, appellant was clearly “in custody” while he was incarcerated in the detention center because he was not free to leave. It is open to debate, however, whether appellant was in custody for Miranda purposes.FN2 But even assuming, for the sake of argument, that appellant was in custody for Miranda purposes, we cannot say that appellant's statements arose from any “interrogation,” as that term has been defined. See Innis, 446 U.S. at 300–01 (“the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody but rather where a suspect in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself”). Gonzalez testified that he did not intend to conduct an investigation into appellant's guilt or innocence and he did not ask appellant any questions about his charged offense. His only purpose was to find out why appellant desired to be placed in isolation, and he did not expect appellant's response to be incriminating. Because appellant's spontaneous self-incriminating statement went beyond the scope of Sergeant Gonzales' innocuous inquiry, Sergeant Gonzalez was not required to comply with the procedural safeguards of Miranda and Article 38.22 because the appellant's statement was not the product of custodial interrogation. Innis, 446 U.S. at 301(police cannot be held accountable for the unforeseeable results of their words or actions; therefore, definition of interrogation extends only to “words or actions on the part of police officers that they should [know are] reasonably likely to elicit an incriminating response”); Pennsylvania v. Muniz, 496 U.S. 582, 601–02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (questions attendant to booking or “to the police's administrative concerns” fall outside Miranda's protections); McCambridge v. State, 712 S.W.2d 499, 505 (Tex.Crim.App.1986) ( “[q]uestioning ‘normally attendant to arrest and custody’ is not interrogation”). Thus, the trial court did not abuse its discretion in denying appellant's motion to suppress and admitting evidence of his oral statement. Points of error one through five are overruled.

FN2. As one commentator observes: [I]ncarceration is not necessarily equivalent to Miranda custody.... A prisoner is in Miranda custody only when some additional restraint, not normally encountered in prison life, is imposed upon him by investigators. Laurie Magid, Questioning the Question–Proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 Ohio St. L.J. 883, 883 (1997). On a superficial review, all incarceration might seem to constitute custody since inmates cannot, of course, leave the facility in which they are incarcerated. But custody in layperson's terms is not necessarily custody for Miranda purposes. Miranda's definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person's ability to select his activities and routine is greatly limited as an inmate. Id. at 933.

In his dissent from the denial of certiorari review in Bradley v. Ohio, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990), Justice Marshall recognized a split in the courts of appeals regarding what constitutes custody in the prison setting. See United States v. Menzer, 29 F.3d 1223, 1232 n. 7 (7th Cir.1994)(“[t]he U.S. Supreme Court has declined an opportunity to address the question of whether incarceration constitutes custody for purposes of Miranda”); see also United States v. Cooper, 800 F.2d 412, 414 (4th Cir.1986)(holding that prison inmate was not in custody for Miranda purposes because his freedom of movement was not restricted more than it would be normally in a prison environment); Flittie v. Solem, 751 F.2d 967, 974 (8th Cir.1985)(“[i]ncarceration does not ipso facto make a statement involuntary”); Cervantes v. Walker, 589 F.2d 424, 427–29 (9th Cir.1978)(refusing to apply Miranda to “on-the-scene” questioning of prison inmate and holding that inmate's freedom of movement was not diminished more than usual in the prison context); United States v. Scalf, 725 F.2d 1272, 1276 (10th Cir.1984)(general on-the-scene questioning permissible under Miranda ). The Fifth Circuit Court of Appeals' approach to the issue is not clear.

In his sixth point of error, appellant argues that the trial court violated Rule of Evidence 404(b) when it allowed the State to introduce evidence of an unadjudicated extraneous offense at the guilt or innocence phase of the trial.FN3 Tex.R. Evid. 404(b). Rule 404(b) provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Id. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. It may also be admissible to rebut a defensive theory. Wheeler v. State, 67 S.W.3d 879, 887 (Tex.Crim.App.2002). FN3. Appellant also argues in his brief that the evidence was erroneously admitted because “[i]ts probative value does not outweigh its prejudicial effect.” To the extent that appellant is arguing a violation of Texas Rule of Evidence 403, his argument is forfeited because he did not object on this basis at trial. Tex.R.App. P. 33.1

In its case-in-chief, the State introduced evidence that on June 6, 1999, appellant abducted Alyssa Vasquez from her home while her mother was out and the babysitter was next door. He raped and strangled her, and abandoned her body in a nearby field. Appellant testified on his own behalf at trial. On direct examination by defense counsel, appellant admitted that he was a registered sex offender due to a prior conviction for aggravated sexual assault, but stated: “It was not with a child.” When defense counsel asked appellant at the end of the direct examination, “Is there anything else you want to tell this jury now?” appellant responded:

Like I told my attorney, and the District Attorney has it in their file, too, I was not convicted for molesting a child or hurting a child. Never. I have nieces and nephews of my own and a 34–year daughter. I would never do that to a child, you know. The only thing that would look like that I'm guilty of is messing around behind my girlfriend's back, if you want to call it messing around. You know, that's it.

Following appellant's response, the State—outside the jury's presence—asked to introduce evidence of “other incidents of attempts to molest other little girls,” arguing that appellant had opened the door to this evidence when he testified that he would never molest or hurt a child. The trial court overruled appellant's objection and permitted the State to present the testimony of Manuel Longoria and Longoria's daughter, Teresa, during rebuttal.

Manuel Longoria testified that he and his daughter Teresa were staying overnight at the home of Manuel's brother and sister-in-law in late May, 1999, about a week or two prior to the instant offense. Appellant came to the house in the middle of the night, looking for a place to stay because his girlfriend had kicked him out. Manuel's brother and sister-in-law agreed to let him spend the night. Manuel and Teresa slept on couches in the living room and appellant slept in a chair in the same room. Teresa, who was about seven years old at the time, testified that she woke up in the middle of the night because appellant was touching her on her stomach underneath her shirt. She ran to her cousins' room and appellant followed her into the room, offered her a dollar bill, and told her to go into the bathroom with him. At that point, Teresa ran to the living room and woke Manuel to tell him what happened. Manuel testified that he went to the bedroom and found appellant lying on the floor. When Manuel asked appellant, “What are you trying to do with my daughter?,” appellant replied, “I didn't do nothing. I don't know what you are talking about.” Manuel and appellant then got into an altercation and Manuel's brother made appellant leave the house. Appellant denied the incident on rebuttal and testified that Manuel and Teresa made false allegations because of “bad blood” between Manuel and appellant.

Evidence of extraneous offenses committed by the accused may be admissible to refute a defensive theory raised by the accused. Wheeler, 67 S.W.3d at 886–7; Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1991)(on rehearing). We review claims of error in admitting evidence under an abuse of discretion standard. Montgomery, 810 S.W.2d at 379. Here, appellant testified, essentially, that although he had been convicted of aggravated sexual assault, he never had and never would molest or otherwise harm a child. In short, he asserted that he was not the sort of person who would sexually molest any child, including, by implication, the capital murder victim. Both Manuel's and Teresa's testimony was relevant to rebut this assertion. They testified to appellant's apparent attempt to molest Teresa, who was then only about seven years old, that occurred only two weeks before the abduction and murder of Alyssa Vasquez, another seven-year-old girl. Although Manuel and Teresa Longorias' testimony was not admissible as propensity evidence ( i.e., evidence of appellant's propensity to molest little girls), it was admissible for precisely the reason that the State gave: to rebut appellant's assertion that he “would never do that to a child.” Therefore, we hold that the trial judge did not abuse her discretion in admitting their testimony.

Even assuming arguendo that the trial court erred by allowing Manuel's and Teresa's testimony, appellant would not prevail on this point of error because he is unable to demonstrate harm. Tex.R.App. P. 44.2. Because errors in admitting evidence are generally not constitutional in nature, we review any purported error under Texas Rule of Appellate Procedure 44.2(b). Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). If the error does not affect a substantial right, it will be held harmless. Tex.R.App. P. 44.2(b). The appellate court should review the entire record, including testimony and physical evidence, the nature of the evidence supporting the verdict, the character of the error and its relationship to other evidence, the trial court's instructions to the jury, the State's and defendant's theories of the case, jury argument, and relevant voir dire. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). A substantial right has been violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). If the error had no influence or only slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Reversal is required if the reviewing court harbors a “grave doubt” that the error did not affect the outcome. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).

The evidence showed that on the night of the offense, before Alyssa Vasquez was discovered missing, appellant telephoned her residence several times and came by looking for her mother and asking when she was going to return home. The babysitter discovered that Vasquez was missing at around 2:30 a.m. and later observed appellant running down the street away from the residence. Police found appellant at his residence, which was one and one-half to two miles from Vasquez's apartment, at approximately 4:00 a.m., and found appellant's blood-spotted shirt and boxer shorts FN4 in a trash can outside the residence. The evidence also showed that appellant admitted his involvement in the offense to a detention guard and to a fellow inmate at the Bexar County Jail, and implied his involvement to another inmate; the only contrary evidence was appellant's own testimony, in which he denied making these statements. Scientific testing revealed that appellant's DNA was consistent with the DNA extracted from spermatozoa on Vasquez's oral swab. We find that the evidence of appellant's guilt was overwhelming. However, the strength of the evidence supporting appellant's guilty verdict is but one factor in determining whether appellant was harmed by the trial judge's purported error in admitting the Longorias' testimony. Morales v. State, 32 S.W.3d at 867; Johnson v. State, 967 S.W.2d at 417.

FN4. The blood on appellant's shirt and boxer shorts was tested and determined not to belong to the victim. Ernest Rodriguez, with whom appellant was housed in the Bexar County Jail, testified that appellant told him that he had cut himself in a bar fight, and even though the blood was his own, he discarded the stained clothing because he did not want investigators to think that the blood on his clothing was the same as the blood that had come from Alyssa Vasquez' mouth and private parts. The discarded clothing was thus some evidence of appellant's consciousness of guilt. Moreover, his statements demonstrated his detailed knowledge of the crime at the time that he discarded the clothing shortly after Alyssa disappeared.

As part and parcel of appellant's initial testimony, he discussed his prior conviction for aggravated sexual assault. His testimony regarding that assault and his resulting conviction, alone, almost certainly damaged his credibility in the jury's eyes. Moreover, appellant's testimony demonstrated his distorted perception of his prior crime, his refusal to take responsibility for it, and his capacity for violence. Appellant was evasive, stating on direct examination that he had been “young [nineteen]and had made a mistake.” On cross-examination, appellant refused to acknowledge his guilt, asserting that, although he had been convicted of the crime, he was actually not guilty and that the “mistake” he referred to on direct examination was the mistake that he made by not testifying in his own defense in that case. When pressed by the prosecutor, appellant conceded that he had consensual sexual relations with the complainant twice, but that the third time was without consent. He asserted, however, that the complainant's claims that he had put a gun to her head and that he had forced her to suck the barrel of a gun were complete fabrications.

After Manuel Longoria and his daughter testified, appellant again testified and vigorously, if not persuasively, reasserted his innocence, claiming that bad blood existed between himself and Longoria, which gave Longoria a motive to lie and to coach his daughter into doing the same. Appellant's explanation for the evidence against him was essentially that he was a convenient target of the investigation into Alyssa's death because he was a registered sex offender, living nearby, who had just happened to have known the victim's mother and to have been in the victim's apartment on the night of her death. According to appellant, the witnesses who testified against him were participants in an elaborate conspiracy organized by the District Attorney's office. As for the physical evidence against him, he argued that the 99%-plus accuracy rate of DNA tests testified to by the State's forensic serologist was still not enough to show that his DNA matched the DNA samples taken from Alyssa Vasquez's body.

In the State's closing argument, the prosecutors focused on appellant's lack of credibility, the improbability of his explanations—especially given the physical evidence in the case—and his anger, as demonstrated through his testimony. They mentioned the Longorias' testimony as one example of how appellant's credibility had been impeached but did not unduly emphasize it. Defense counsel likewise emphasized credibility, highlighting possible motives that witnesses against appellant had to lie. Counsel similarly attempted to cast doubt on the reliability of DNA evidence and asserted that appellant was a victim of circumstance—his prior sexual assault conviction and mere presence in the child's home on the night of the murder made appellant an easy, but mistaken, target of law enforcement.

Reviewing the trial court's charge to the jury, we note that the application paragraph properly limited the jury's consideration of the Longorias' testimony to impeachment purposes. The charge explicitly instructed the jury that it could consider evidence of appellant's extraneous bad acts, if any, only in evaluating appellant's credibility as a witness in his own behalf. The charge also explicitly instructed the jury that it could not consider such evidence for any other purpose ( i.e., as evidence of his guilt in this case). We presume that jurors follow the trial court's instructions. Smith v. State, 898 S.W.2d 838, 880 (Tex.Crim.App.1995); Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1988). While this presumption is rebuttable, we find no evidence in the record before us to suggest that the jurors in this case did not follow the trial court's instruction. See id.

Given the overwhelming evidence of appellant's guilt, his damaged credibility even before he opened the door to evidence of extraneous offenses, the propriety of the State's closing argument, and the jury charge, we are convinced that, in light of the record as a whole, there is no reasonable likelihood that Manuel's and Teresa's testimony had a substantial and injurious influence in determining the jury's verdict. See Johnson, 967 S.W.2d at 417. Point of error six is overruled.

In points of error seven and eight, appellant contends that the trial court's exclusion of Defense Exhibits 10 and 11 violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution and sections 13 and 19 of the Texas Constitution. The exclusion of appellant's evidence is constitutional error only if the evidence formed such a vital portion of the case that exclusion effectively precluded him from presenting a defense. Potier v. State, 68 S.W.3d 657, 665 (Tex.Crim.App.2002).

The State called Gustavo De Leon, a forensic serologist with the Bexar County Forensic Science Center, to testify regarding the results of the DNA testing that he performed in the instant case. On direct examination by the State, De Leon testified that appellant's DNA matched FN5 the DNA extracted from spermatozoa on the victim's oral swabs. During cross-examination, De Leon testified that he conducted this DNA analysis with the assistance of “GenoTyper” computer software. The trial court admitted Defense Exhibits 5, 6, 7, 8, and 9, which were copies of De Leon's five GenoTyper reports. Defense counsel questioned De Leon about why he wrote the words, “Inconclusive” and “See GeneScan FN6,” on Defense Exhibit 8. De Leon explained that the notation referred only to his testing of “Item 2A,” which consisted of cuttings from the boxer shorts that police retrieved from a trash can outside appellant's residence. He further testified that he did not print GeneScan data when testing the victim's oral swabs. Defense counsel attempted to introduce Defense Exhibits 10 and 11, copies of the two GeneScan reports that referred to Item 2A, but the State objected that they were “not relevant to anything that was produced on direct.” The trial court sustained the State's relevancy objection and excluded Defense Exhibits 10 and 11.

FN5. De Leon explained during his testimony that it is the policy of the Bexar County Forensic Science Center, upon finding a genetic match, to report that the test subject “cannot be excluded” as the source of genetic material collected during a criminal investigation. De Leon stated that Bexar County's terminology differs from that of the Federal Bureau of Investigation, which would simply call this type of test result a “match.” FN6. “Genescan” refers to another software program employed by the Bexar County Forensic Science Center.

Appellant asserts: The GeneScan reports showed inconclusive results which could be interpreted as a non-match of Appellant's DNA. There were no other validation reports showing such inconclusiveness admitted for the jury. The denial of the relevant Exhibits 10 and 11 denied Appellant his due process rights by denying the admission of evidence showing reasonable doubt.

De Leon, however, testified regarding his “inconclusive” notation on Defense Exhibit 8, which was admitted into evidence before the jury. Thus, contrary to appellant's assertion, Defense Exhibits 10 and 11 were not the only reports indicating inconclusive results. Furthermore, Defense Exhibits 8, 10, and 11 each pertained to the testing De Leon performed on appellant's boxer short cuttings. It was never alleged that the blood on the boxer shorts belonged to the victim. De Leon's testimony concerned only the results of his comparison of three items: 1) genetic material (semen) obtained from an oral swab of the victim's mouth; 2) a known blood sample from the victim; and 3) a known blood sample drawn from appellant. De Leon testified that, based on the his comparison of the three samples, appellant was the source of the semen left in the victim's mouth. The result of a DNA test conducted on a sample from the boxer shorts was thus not relevant to any material issue in the case because no one ever suggested that the blood on the boxer shorts came from the victim. Moreover, the “inconclusive” notations on Defense Exhibits 10 and 11 are not, as appellant argues, evidence of a “non-match.” De Leon's testimony on cross-examination and re-direct examination explains that his office uses the term “inconclusive” to denote situations in which there is simply not enough genetic material in a particular sample to conduct a meaningful analysis. Thus, the “inconclusive” notation established nothing, either for or against appellant. Therefore, we find that the trial court did not abuse its discretion in excluding Defense Exhibits 10 and 11. Appellant has failed to show that these exhibits were relevant to a fact in issue or that they formed such a vital portion of the case that their exclusion effectively precluded him from presenting a defense. Potier, 68 S.W.3d at 665. Points of error seven and eight are overruled.

In his ninth and tenth points of error, appellant contends that he was denied his right to confront the witnesses against him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 10 of the Texas Constitution. Appellant specifically argues that he was prevented from effectively cross-examining Ernest Rodriguez when the trial court refused to allow him to question Rodriguez about his juvenile record.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Confrontation means more than being allowed to confront the witness physically; it also encompasses the right of cross-examination. Id. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Id. at 316. The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Id.

State's witness Ernest Rodriguez testified on direct examination that he was housed at the Bexar County Jail at the same time as appellant. Rodriguez was in jail on a pending charge for possession of cocaine and a parole violation. Rodriguez testified that appellant confessed to him that he committed the instant crime while they were both in jail. After appellant admitted his involvement, Rodriguez told his wife to contact the District Attorney's Office with this information. Rodriguez gave two statements detailing what appellant had told him. He gave one statement to a police detective on July 23, 1999, and a second statement to an investigator from the District Attorney's Office on November 1, 1999.

Rodriguez further testified that he had a deal with the State whereby his possession charge would be dropped in exchange for his testimony. He testified that he did not have a deal with regard to his parole situation, but stated: “After the possession charge was dropped, parole reinstated my parole, and I was released.” He stated that he would have testified even if his pending charges had not been dropped.

Prior to cross-examination, defense counsel, outside the jury's presence, requested that the trial court allow him to question Rodriguez about his juvenile record. Defense counsel “agree[d] with the State that normally juvenile records are not admissible for purposes of impeachment,” but argued: The purpose is to show the experience, the involvement of this individual, to show his motive; not his credibility, but his motive and his intent in talking with the District Attorney's office and talking with law enforcement; and that he has been so involved in the criminal justice system since he was a small child, that he is fully aware of the benefit.

The trial court denied defense counsel's request. See Tex.R. Evid. 609(d). Defense counsel made a bill of exception and questioned Rodriguez about his juvenile record. Rodriguez stated that he never provided information to law enforcement regarding other people's criminal offenses as a juvenile. The first time he provided such information to law enforcement was in 1990 when he was twenty-one or twenty-two years old. In that instance, he was in jail for auto theft and his case was dismissed as a result of providing information.

Defense counsel questioned Rodriguez before the jury regarding his extensive criminal record as an adult and his history of making deals in exchange for providing information to law enforcement. Rodriguez testified that he had two burglary charges, one of which resulted in a conviction, three theft charges, one auto theft charge, three drug arrests, and one arrest for obstructing the police. He was convicted of shoplifting in 1988 and was placed on probation and required to pay a fine. He was convicted of delivery of a controlled substance in 1989 and received a ten-year sentence. He violated his parole and was jailed on the auto theft charge in 1990, but the charge was dropped after he provided information to police regarding another crime. His parole was revoked at that time, but he served only ninety days instead of seven years.

Rodriguez further testified that, while out on parole in 1991, he was convicted of burglary of a habitation and received a sixteen-year sentence. He was released on parole in 1993, was returned to TDCJ on a parole violation, was released on parole again in 1998, and was charged with possession of cocaine and placed in Bexar County Jail in 1999, at which point he was incarcerated on the same floor as appellant. Rodriguez testified that he knew he could get a life sentence if he was convicted on his pending possession of cocaine charge because he had two previous felony convictions. He knew that he had a prior case dismissed in exchange for providing information to the police in the past. He was also aware that appellant was charged with capital murder and was incarcerated on the same floor in the county jail.

Appellant essentially argues that he could have been even more successful in exposing Rodriguez's motivation in testifying if he had been able to question him about his juvenile record; however, “the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Thomas v. State, 837 S.W.2d 106, 112 (Tex.Crim.App.1992)(citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)(emphasis in original)). It is evident from the record that appellant was able to impeach Rodriguez despite being unable to question him about his juvenile record. Appellant has not shown that he was denied his right to confront witnesses against him under the federal or state constitutions. Points of error nine and ten are overruled.

In points of error twelve and thirteen, appellant complains that the trial court improperly reminded him in front of the jury that he was not required to testify. Appellant argues in point of error twelve that the trial court's statement destroyed his constitutional presumption of innocence. Appellant contends in point of error thirteen that the trial court's statement amounted to a comment on the weight of the evidence in violation of Article 38.05.

After the close of the guilt or innocence phase of the trial, defense counsel, outside the jury's presence, requested permission to reopen because appellant desired to testify. Defense counsel informed the trial court that appellant wished to testify against the advice of counsel. The trial court explained to appellant that he was not required to testify and told him that he should carefully consider his choice to do so. The jury was returned to the courtroom and the following exchange occurred:

THE COURT: Thank you. Please be seated. Ladies and gentlemen, the Defense has requested to reopen their case. That request has been granted. Mr. McDonald? [DEFENSE COUNSEL]: At this time, the Defendant calls Guadalupe Esparza to the stand. THE COURT: Mr. Esparza? Mr. Esparza, I need to remind you, again, that you are not required to testify. [ESPARZA]: Yes, ma‘am.

Appellant failed to object to the trial court's statement. Thus, he has failed to preserve this complaint for appeal. Tex.R.App. P. 33.1; cf. Blue v. State, 41 S.W.3d 129, 131–32 (Tex.Crim.App.2000)(plurality op.). FN7 Points of error twelve and thirteen are overruled.

FN7. Appellant also argues that the prosecutor “highlighted” the trial court's improper comment during closing argument when he stated: You will put his credibility up against everybody else's, and the result will be the same. He does not get to get up there and get points because he testified. It's his right. He didn't have to. And as you saw, nobody could stop him from it. Twice.

Appellant has also failed to preserve this complaint for appeal by failing to object to the prosecutor's argument at trial. Tex.R.App. P. 33.1. [8] In his fourteenth point of error, appellant contends that the trial court violated Texas Rule of Evidence 403 when it admitted certain photographs into evidence at the guilt or innocence phase of the trial. The photographs at issue, State's Exhibits 24, 25, and 26, were introduced into evidence during the testimony of Officer Carlos Ortiz of the San Antonio Police Department, who participated in the search for Vasquez in the early morning hours of June 6, 1999. Ortiz testified that he found Vasquez's body in a grassy area behind a meat market which was located about seventy-five to eighty feet from the apartment complex where she had lived. The three photographs depict Vasquez's partially clothed body as it was found at the crime scene. Appellant objected to the photographs at trial under Rule 403 and his objection was overruled. Appellant argues on appeal that the danger of unfair prejudice substantially outweighed the probative value of these photographs. Tex.R. Evid. 403.

Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996). The admission into evidence of photographs is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.1993).

Appellant argues that the photographs were prejudicial because they depict Vasquez nude from the waist down. However, whether the body depicted is clothed or naked is only one of the factors that a court may consider in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. Other factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, and whether they are close-up. Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991).

The three photographs at issue depict Vasquez's body as it was found at the scene from varying angles. We cannot determine from the record whether the photos shown to the jury were in color or black-and-white. The 8? x 10? photographs are neither close-up nor especially detailed. The photographs portray no more than the gruesomeness of the injuries inflicted. See Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App.1992). The trial court did not abuse its discretion in admitting State's Exhibits 24, 25, and 26. Point of error fourteen is overruled.

Appellant argues in his fifteenth point of error that the trial court improperly overruled his challenge for cause against veniremember Michael Trujillo. Appellant claims that his challenge for cause should have been granted because Trujillo “was biased against the law allowing for a range of punishment to include life in prison and would therefore answer the special issues untruthfully.” See Art. 35.16(c)(2).

To preserve error for a trial court's erroneous denial of a challenge for cause, appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of veniremember; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and, (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996). Appellant has properly preserved error.

Appellant, however, is unable to demonstrate harm. When the trial judge errs in overruling a challenge for cause against a veniremember, the defendant is harmed if he uses a peremptory strike to remove the veniremember and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986). Because appellant received one additional peremptory challenge, appellant demonstrates harm by showing that the trial court erroneously denied two challenges for cause. Penry v. State, 903 S.W.2d 715, 732 (Tex.Crim.App.1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex.Crim.App.1988). Appellant's brief on appeal alleges only that the trial court improperly denied a challenge for cause against one veniremember, Michael Trujillo. Point of error fifteen is overruled.

In point of error sixteen, appellant argues that Article 37.071, section 2(b)(1) is unconstitutional because it fails to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society.” Appellant contends that these aggravating factors are vague and do not properly channel the sentencing jury's discretion. We have previously rejected this argument and have consistently held that these terms need not be defined in the charge. Ladd v. State, 3 S.W.3d 547, 572–73 (Tex.Crim.App.1999); Camacho v. State, 864 S.W.2d 524, 536 (Tex.Crim.App.1993). Point of error sixteen is overruled.

Appellant again challenges the constitutionality of the Texas death penalty scheme in point of error seventeen, arguing that “it does not provide for meaningful appellate review” because: (1) it does not provide for any appellate review of the mitigation special issue; (2) there is no meaningful review of the future dangerousness special issue; (3) it does not provide for a comparative proportionality review; and, (4) the mitigation special issue is open-ended and unstructured.

We do not review the sufficiency of the evidence to support a jury's negative answer to the mitigating evidence special issue, and we have rejected the claim that this deprives a defendant of meaningful appellate review. Salazar v. State, 38 S.W.3d 141, 146 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). We review the sufficiency of the evidence to support the future dangerousness special issue using the standard announced in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See McGinn v. State, 961 S.W.2d 161, 166–169 (Tex.Crim.App.1998). We have held that the Due Process Clause does not require a comparative proportionality review. King v. State, 953 S.W.2d 266, 273 (Tex.Crim.App.1997). We have also rejected the contention that the mitigation special issue is unconstitutional due to open-ended discretion. Lawton v. State, 913 S.W.2d 542, 560 (Tex.Crim.App.1995). Point of error seventeen is overruled.

Appellant argues in his eighteenth point of error that Article 37.071, section 2(e) is unconstitutional because it fails to assign a burden of proof. The absence of an explicit assignment of the burden of proof does not render Article 37.071, section 2(e) unconstitutional. Raby v. State, 970 S.W.2d 1, 9 (Tex.Crim.App.1998). All that is required is a vehicle by which the jury can consider and give effect to the mitigating evidence. Id. at 8. Point of error eighteen is overruled.

In point of error nineteen, appellant complains the “12–10 rule” in Article 37.071, which requires at least ten “no” votes for a jury to reach a negative answer to the first and second special issues and at least ten “yes” votes for the jury to return an affirmative answer to the mitigation special issue, violates the Eighth and Fourteenth Amendments to the United States Constitution. We have previously decided this issue adversely to appellant. Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996); Draughon v. State, 831 S.W.2d 331, 337–38 (Tex.Crim.App.1992). Point of error nineteen is overruled.

In his twentieth point of error, appellant contends that Article 37.071 is unconstitutional because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously rejected this contention. Shannon v. State, 942 S.W.2d 591, 600–601 (Tex.Crim.App.1996); Brooks v. State, 990 S.W.2d 278, 288 (Tex.Crim.App.1999). Point of error twenty is overruled.

Appellant argues in point of error twenty-one that the present Texas capital sentencing scheme is unconstitutional because it allows the open-ended discretion that is prohibited by the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We have repeatedly rejected this claim and appellant raises nothing new to persuade us to revisit this issue. Lawton, 913 S.W.2d at 560; Pondexter v. State, 942 S.W.2d 577, 586–87 (Tex.Crim.App.1996). Point of error twenty-one is overruled.

In point of error eleven, appellant contends that the trial court erroneously denied his request to have the jury instructed on mitigating evidence as follows: A mitigating circumstance may include, but is not limited to, any aspect of the Defendant's character, background record, emotional stability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case.

The trial court instead defined mitigating evidence “to be evidence that a juror might regard as reducing the defendant's moral blameworthiness,” as required by Article 37.071, section 2(f)(4). In his twenty-second point of error, appellant contends that this definition of “mitigating evidence” is unconstitutional because it limits the concept of mitigation to factors that render a capital defendant less morally “blameworthy” for the commission of the capital murder. See Art. 37.071, § 2(f)(4). We rejected this contention in Raby, 970 S.W.2d at 8. Points of error eleven and twenty-two are overruled.

Appellant asserts in points of error twenty-three and twenty-four that the Texas death penalty scheme amounts to cruel and unusual punishment under both the federal and state constitutions. We have previously rejected this contention as well. Anderson v. State, 932 S.W.2d 502, 509–510 (Tex.Crim.App.1996); Cantu v. State, 939 S.W.2d 627, 639 (Tex.Crim.App.1997). Points of error twenty-three and twenty-four are overruled. We affirm the judgment of the trial court.

KELLER, P.J. and KEASLER, J. concurred in the judgment. HERVEY, J. did not participate.

Esparza v. Thaler, 408 Fed.Appx. 787 (5th Cir. 2010). (Habeas)

Background: Following affirmance of defendant's conviction and sentence for capital murder, and affirmance of denial of state habeas relief, petitioner sought federal habeas relief. The United States District Court for the Western District of Texas denied relief. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) petitioner was not entitled to COA with respect to claim that he was mentally retarded and ineligible for death penalty, and (2) petitioner was not entitled to COA with respect to ineffective assistance claim. Certificate denied.

PER CURIAM: FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Petitioner Guadalupe Esparza (“Esparza”), convicted of capital murder in Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Esparza contends that the evidence demonstrated that he is mentally retarded, rendering him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Relying on the Sixth Amendment, Esparza asserts that he is entitled to a jury finding with respect to the issue of mental retardation. He also contends that his counsel rendered ineffective assistance by failing to investigate his mental retardation and present evidence of his mental retardation at sentencing. Finding that Esparza has not made a substantial showing of the denial of a constitutional right, we DENY a COA.

I. PROCEDURAL HISTORY

A Bexar County, Texas grand jury returned an indictment charging Esparza with the capital murder of 7–year old Alyssa Vasquez while in the course of committing aggravated sexual assault, kidnapping, and burglary. Tex. Penal Code § 19.03(a)(2). A jury convicted Esparza as charged, and the sentence imposed was the death penalty. The Texas Court of Criminal Appeals affirmed Esparza's conviction in an unpublished opinion. Esparza v. State, No. 74,096, 2003 WL 21282765 (Tex.Crim.App. June 4, 2003), cert. denied, 540 U.S. 1006, 124 S.Ct. 537, 157 L.Ed.2d 413 (2003). Represented by counsel, Esparza applied for state habeas relief, and the trial court recommended denying relief. Additionally, Esparza filed a separate application for writ of habeas corpus pro se. With respect to the first application, the Court of Criminal Appeals adopted the findings and conclusions of the trial court and denied the application. Ex parte Esparza, Nos. WR–66111–01, WR–66111–02, 2007 WL 602812 (Tex.Crim.App. Feb. 28, 2007). The Court of Criminal Appeals also dismissed the pro se application as an abuse of the writ. Esparza then filed a federal petition for writ of habeas corpus, which the district court denied in a memorandum opinion and order. Esparza v. Quarterman, No. 07–265 (W.D.Tex. Mar. 24, 2010). The district court also denied a COA. Esparza now requests a COA from this Court.

II. STANDARD OF REVIEW

Esparza filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to § 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

Additionally, under AEDPA, a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller–El, 537 U.S. at 336, 123 S.Ct. 1029.

A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted).

III. ANALYSIS
A. ATKINS CLAIM

In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment prohibited the execution of mentally retarded persons. Esparza contends that he is mentally retarded, and thus is ineligible for the death penalty. Subsequent to Atkins, Texas courts have followed the definition of “mental retardation” adopted by the American Association on Mental Retardation and the nearly identical definition set forth in § 591.003(13) of the Texas Health & Safety Code. In re Salazar, 443 F.3d 430, 432 (5th Cir.2006). Pursuant to this test, a petitioner claiming mental retardation must demonstrate that “he suffers from a disability characterized by ‘(1) significantly subaverage general intellectual functioning,’ usually defined as an I.Q. of about 70 or below; ‘(2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.’ ” Id. (quoting Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004)) (internal quotation marks omitted). Esparza bore the burden of proving by a preponderance of the evidence that he is mentally retarded. Briseno, 135 S.W.3d at 12. A determination of whether a person is mentally retarded is a factual finding. Moore v. Quarterman, 533 F.3d 338, 342 (5th Cir.2008) (en banc); Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006).

Esparza raised his claim of mental retardation during his state habeas proceedings, and the state court held an evidentiary hearing. During this hearing, several expert witnesses testified regarding Esparza's I.Q. scores and adaptive functioning. Also, his sister testified about his childhood, and Esparza's prison and school records were admitted.

1. Lynda Tussay

Esparza called Lynda Tussay to testify. Tussay is a licensed professional counselor and has a master's degree in Human Development and Counseling. Tussay interviewed Esparza and administered intelligence tests. She testified that the range of mental retardation was a 70 I.Q. or lower. Esparza scored a 71 (standard error of plus or minus 5 points) on the Raven's Standard Progressive Matrices Test. With respect to the Revised Minnesota Paper Formboard Test, Esparza scored a 73 (standard error of plus or minus 4 points). Tussay explained that the above two scores were within the range of borderline intellectual functioning. On the achievement tests, Esparza was at the level of first grade math and below the level of first grade on this spelling test. On another spelling test, he scored at the level of grade 6.3. Esparza's vocabulary was at a grade level of 6.2, and his reading comprehension was at a 4.7 grade level. Tussay also administered the Comprehensive Trail–Making Test, and Esparza scored better than 58 percent of the population. On that test, a score of under 40 percent would indicate mental retardation. With respect to the Controlled Oral Word Association Test, Esparza scored 25.82, which is nearly four full standard deviations below the mean, which is 48.43. Tussay testified that the score indicates “a person who does not do well with any kind of form of written language.”

The Vineland Adaptive Behavior Scale Test is a questionnaire for the caregiver of the person being tested regarding the subject's developmental history. Tussay explained that this test is the “essential measure, the one that most psychologists use when using the adaptive behavior scales.” She administered the test to Esparza's older sister, Esther Moncado, who was Esparza's primary caregiver when he was a child. The mean score is 100, and Esparza's score was below 20, which is the “lowest score” possible.

Tussay further testified that she “can usually tell when someone is trying to not do a good job. That wasn't what he was trying to do.” In her opinion, “there was no deliberate sabotage on his part. He just did not understand. He just didn't understand what I was trying to tell him.” In Tussay's opinion, Esparza “meets all of the criteria for mental retardation.”

During the cross examination of Tussay, the prosecutor produced two of Esparza's penitentiary packets, which included the Texas Department of Corrections Social and Criminal History page. The first packet provided that in 1985 Esparza had an I.Q. score of 86. The second packet provided that in 1993 Esparza had an I.Q. score of 88. After reviewing the packets, Tussay testified that she could not “formulate an opinion based on” them because she did “not know what they based their tests on.” The packets did not provide what specific tests were administered to Esparza. She also admitted that Esparza heard from his lawyer that if he was mentally retarded, then the Supreme Court's decision in Atkins would bar his execution.

Additionally, Tussay testified that during her interview of Esparza she noticed that Esparza was “able to speak very well.” She discovered that his family had done migrant farm work and thus “he was not really ever very rooted in any one school.” Esparza had been in special education classes and failed the ninth grade three times before dropping out of high school. Tussay also stated that Esparza told her that he failed the test for a GED but that the instructor issued a GED so that the instructor would be compensated.

Tussay also spoke with Esparza's older sister who indicated that Esparza had a “history of adaptive problems.” His sister had “difficulty in teaching him how to tie his shoes, how to dress himself. It took longer and he was older before he was able to attain those skills.” Esparza did not “play like the other children.” For example, he did not develop “imaginary games.”

2. Recording of Jail Phone Calls

Esparza was moved from death row to Bexar County Jail during the time of the state writ evidentiary hearing. Sergeant Mark Gibson of the Bexar County Sheriff's office submitted a recording of three phone calls made by Esparza during his stay at county jail. The recording was played at the writ hearing. Esparza identified himself at the beginning of each phone call. He helped arrange a three-way conference call. He spoke to his attorney about the impending court proceedings. He referred to the Supreme Court's opinion in Atkins as the “2002 case.” Esparza boasted that his attorney was very good and had gotten other inmates off death row. Esparza recounted to another person what his attorney had told him about the need to postpone the hearing. In one phone call, Esparza was advising another inmate's family regarding that inmate's civil suit against jail officials. Esparza also informed one person that he could only have visitors on Mondays and Wednesdays. He complained that the phone cards were unfairly charging too much money for the minutes provided.

3. Dr. Kern

The State called Dr. Paul Kern, Ph.D., a psychologist at the University Health System, Detention Health Care Services. Dr. Kern testified that Joanna W. Guerrero, a psychometrist with a master's degree, administered two different intelligence tests and an achievement test to Esparza. Esparza scored in the mildly mentally retarded range on the intelligence tests, and his achievement test score suggested very poor basic academic skills. Dr. Kern interviewed Esparza and interpreted the test scores.

Together Dr. Kern and Guerrero compiled a Summary of Intellectual Testing that was submitted to the state court. This report provided that, based on Guerrero's clinical impression, she estimated Esparza's intelligence was within the low average range.FN1 The report provided that Esparza “displayed an extremely low level of motivation while responding to knowledge-based questions, providing a large number of ‘I don't know’ responses and displaying a strong hesitance to venture guesses.” His responses to knowledge-based questions “were almost always incorrect.” Esparza responded that the current President of the United States was “Ford.” He reported that the United States flag colors are red, white, and green. Based on his responses, it was “strongly suspected that he was intentionally performing below the level of his capabilities.” For example, “it was subsequently learned that although he provided a blatantly incorrect definition of a thermometer during the mental status examination, he had previously provided a correct definition for the same term during the psychological testing.” Esparza performed very poorly on a simple memory task. The examiner noted that “it is rare ... to see performance as poor as Mr. Esparza's on the task even among young children with low intelligence and relatively severe Attention/Deficit Hyperactivity Disorder.” Also, during the time Esparza was not being asked knowledge-based questions, his presentation “was suggestive of a much higher level of functioning, and a clinical estimate of his intelligence based on both his general presentation and the available historical information would place it somewhere within the Low Average range.” FN1. Guerrero did not testify at the hearing.

Dr. Kern testified that Esparza was able to read and understand his rights. Indeed, during one meeting, Esparza stopped the interview and asked for counsel in order to obtain advice regarding whether to cooperate. Esparza retrieved his attorney's business card from his cell and successfully contacted his attorney. After consulting with counsel, Esparza decided to complete the interview. Dr. Kern testified that Esparza's presentation during the interview did not appear to be that of a mentally retarded person. Dr. Kern concluded that Esparza's motivation to do well on the I.Q. tests “was very low” and that the test results were invalid or inaccurate. Esparza's test score on the Vineland adaptive behavior scale, which had been previously administered by Tussay, indicated that he was profoundly retarded. Dr. Kern explained that a person of that level of intelligence or adaptive behavior “would be capable of doing almost nothing. A profoundly mentally retarded person, for example, would have no hope at all of ever learning language at all. They would have no hope at all of ... ever having a job, probably. They would not be able to communicate at all.” Such a person “would probably spend their whole life in an institution for the mentally retarded sitting in a corner oblivious to anything.” Dr. Kern explained that a person can test below their intelligence level but not above it. He further testified that I.Q. scores generally do not change over a person's life. Dr. Kern opined that Esparza's scores of 88 and 86 in the penitentiary packets were consistent with his clinical assessments regarding Esparza's functioning. Further, Esparza's taped phone conversations suggest a higher level of functioning than the current test scores indicate. In Dr. Kern's opinion, the current test results provide “dramatic underestimates of Mr. Esparza's knowledge and ability and are best viewed as invalid.”

Dr. Kern also noted that during Esparza's 2001 trial Dr. Arambula, a forensic psychiatrist, had testified that he did not have Esparza tested for mental retardation because he thought Esparza's intelligence was “normal.” FN2 Dr. Kern is familiar with Dr. Arambula and relied in part upon his opinion in assessing Esparza. Finally, Dr. Kern testified that, based on the test results and his clinical assessments, he did not think that Esparza was mentally retarded. Instead, as set forth in his report, Esparza's “intellectual capabilities most likely fall somewhere within the Low Average range.”

FN2. Dr. Arambula's testimony will be more fully discussed infra in the context of Esparza's claim of ineffective assistance.

4. Dr. Sparks

The State also called Dr. John Sparks, a psychiatrist and medical director of the Bexar County Detention Center. Previously, in his capacity as the medical director, Dr. Sparks had seen Esparza because of a treatment issue. Dr. Sparks testified that Esparza “conveyed to me what he needed in a very clear and concise way.” At the request of the state court, Dr. Sparks interviewed Esparza and also reviewed the report issued by Dr. Kern. Dr. Sparks' evaluation of Esparza provides that he “is aware that it may lead to the death sentence if he is not retarded or may lead to life in prison if he is retarded.” Dr. Sparks concluded that Esparza was not mentally retarded. Although Dr. Sparks acknowledged that the current test scores were in the mildly mentally retarded range, his evaluation provided as follows:

[E]vidence from multiple sources suggest that the present test results provide marked underestimates of his intellectual capabilities. He displayed “pervasive evidence of poor test taking attitude characterized by low motivation, poor attention and concentration, and low task involvement and persistence.”[ FN3] He made minimal effort in the testing although his abilities to communicate and his ability to handle general living situations seem well above the mentally retarded range. He had long term gainful employment and knew how to drive and passed the drivers test. FN3. Dr. Sparks' evaluation was quoting from Dr. Kern's report.

Dr. Sparks' evaluation also found that Esparza's functioning “was well above the retardation level.” Dr. Sparks found that Esparza communicated very well. Although Esparza does not write well, he “understands language better than a retarded person can.” Esparza did not receive a good education and thus “has difficulty in writing communications.” However, his “adaptive ablity is excellent.” Dr. Sparks found that the I.Q. scores of 86 and 88 contained in the prison records were consistent with his opinion that Esparza is not mentally retarded. Although Dr. Sparks initially estimated that Esparza had borderline intellectual functioning, after hearing Esparza's taped phone conversations, he estimated that Esparza's I.Q. would be “77 or 78, closer to 80, which would be then low average.”

5. Esther Moncada

Esparza's older sister, Esther Moncada, testified at the hearing that Esparza was a “slow learner” and had trouble tying his shoe laces. Their mother was hospitalized after a mental breakdown when Esparza was about five or six years old. Their father moved out of state, and the children were placed in an orphanage until an uncle brought them back to San Antonio. Their father died when Esparza was ten or eleven years old. Moncada further testified that Esparza ate with his hands and had difficulty dressing himself. He dropped out of school after failing ninth grade three times and worked as a laborer. Esparza could read and write “a little.”

6. State Court Finding of No Mental Retardation

The state trial court denied relief on this claim, concluding that Esparza had failed to establish that he is mentally retarded. The Court of Criminal Appeals expressly adopted this finding. Esparza challenges the state court's finding, contending that there was sufficient evidence to find that he was mentally retarded. As previously set forth, Esparza has the burden of proving by a preponderance of the evidence that he is mentally retarded. Salazar, 443 F.3d at 432. The first prong of the test is whether he has significant subaverage intellectual function, usually defined as an I.Q. score of 70 or below. Briseno, 135 S.W.3d at 7.

We first note that Judge Mary Roman of the 175th Judicial District Court of Bexar County presided over both Esparza's trial and the state evidentiary hearing. As such, Judge Roman was able to observe Esparza testify in his own defense during his capital trial. During trial Esparza was asked to read a request that he had handwritten at the jail. From the witness stand, Esparza read aloud as follows: “I would like to ask you if I can be in segregation by myself because I no longer trust nobody because there is a lot of people that don't like me because of a charge that I have, Capital case. I would like to be housed by myself for my own safety.” Moreover, we agree with the federal district court that “[t]hroughout his trial testimony, [Esparza] furnished coherent, even combative testimony fully responsive to both his own trial counsel's and the prosecutor's questions and demonstrated a detailed understanding of the testimony and other evidence introduced during his capital murder trial.”

Additionally, Esparza's penitentiary packets provided that he had an I.Q. of 86 in 1985 and an I.Q. of 88 in 1993. The experts' testimony provided that these scores are well above what a mentally retarded person would score. Dr. Kern testified that a person's intelligence score generally is stable and does not change over a lifetime. There was expert testimony that although a person can score below their actual level of intelligence, a person cannot score above their actual level of intelligence.

In stark contrast to his previous I.Q. scores in the low average range in his penitentiary packets, Esparza scores fell within the range of mental retardation when he knew that he was being tested to determine whether he was eligible for the death penalty. Indeed, one test score placed him in the range of profoundly retarded. Dr. Sparks, Dr. Kern, and Guerrero, who administered the tests for Dr. Kern,FN4 believed that Esparza had low motivation to actually perform on the tests and believed the test results were invalid. Dr. Sparks testified that Esparza understood that if he was deemed mentally retarded then he could not be executed. FN4. Guerrero's clinical impression of Esparza was that his intelligence was in the low average range.

On the other hand, Esparza's expert, Tussay, discounted the higher previous I.Q. scores of 86 and 88 because the packets did not provide what test was used. Tussay concluded that Esparza was mentally retarded. Tellingly, Tussay admitted that this case was the first time she had evaluated an incarcerated individual for mental retardation. Both Dr. Kern and Dr. Sparks, however, had years of experience interacting with incarcerated individuals. Indeed, Dr. Kern was a psychologist at the University Health System, Detention Health Care Services, and Dr. Sparks was the medical director of the Bexar County Detention Center. Finally, Dr. Arambula, Esparza's expert, testified during the punishment phase of the capital murder trial and opined that Esparza was of normal intelligence and thus he had not had Esparza tested for mental retardation. Under these circumstances, Esparza has not shown that the finding of no subaverage intellectual functioning is debatable among reasonable jurists. Because Esparza has failed to make a substantial showing on the first prong of the test, there is no need to address the remaining two prongs. See Salazar, 443 F.3d at 432 (“To state a successful claim, an applicant must satisfy all three pongs of this test.” (citation omitted)). Accordingly, we DENY a COA with respect to his Atkins claim.

B. JURY FINDING ON MENTAL RETARDATION

Citing Ring v. Arizona, Esparza also contends that he is entitled to obtain a jury finding on the issue of whether he is mentally retarded. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the Supreme Court held that because a death sentence was authorized only if an aggravating factor was present, the Sixth Amendment required that the aggravating factor must be proved to a jury. Id. at 603–09, 122 S.Ct. 2428. This Court has rejected the instant claim, explaining that neither Ring nor Atkins “render the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt.” In re Johnson, 334 F.3d 403, 405 (5th Cir.2003); see also Woods v. Quarterman, 493 F.3d 580, 585 n. 3 (5th Cir.2007).

Moreover, contrary to Esparza's argument, the holding in Ring cannot be applied retroactively on collateral review. As a general matter, the Supreme Court has explained that “ Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Although Esparza recognizes that holding, he nonetheless contends that the decision should be revisited. We, of course, are bound by the Supreme Court's decision. United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998). Further, this Court has rejected his precise contention in the context of a claim of mental retardation, explaining that this “claim does not meet the requirements of § 2244(b) because the claim that a jury must determine mental retardation does not rely upon a new rule of constitutional law made retroactive by the Supreme Court.” In re Woods, 155 Fed.Appx. 132, 134 (5th Cir.2005). Accordingly, we are constrained to find that this claim is not debatable among reasonable jurists. We DENY his motion for a COA as to this claim.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Esparza argues that his Sixth Amendment right to effective assistance of counsel was violated during the sentencing phase of his trial. He contends that his trial counsel failed to adequately investigate and present mitigating evidence with respect to his mental retardation.

To establish ineffective assistance of counsel, Esparza must show (1) defense counsel's performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must find that trial counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. The Supreme Court instructs courts to look at the “norms of practice as reflected in the American Bar Association and the like” and to consider “all the circumstances” of a case. Id. at 688, 104 S.Ct. 2052. While “[j]udicial scrutiny of counsel's performance must be highly deferential,” Esparza can demonstrate deficient performance if he shows “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. However, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Strickland's “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

1. Performance Prong

As previously set forth, Esparza contends that trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence of his mental retardation during the sentencing phase of his trial. In determining whether trial counsel's performance was deficient, our “focus [is] on whether the investigation supporting counsel's decision not to introduce [additional] mitigating evidence of [a petitioner's] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522–23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Thus, we must consider the reasonableness of trial counsel's investigation.

With respect to investigation, the record reveals that counsel requested the appointment of a forensic psychologist, a private investigator, and a DNA expert. Counsel also filed numerous discovery motions. Counsel interviewed at least two members of Esparza's family—the two sisters who testified at the punishment phase of trial. Because Esparza has not submitted an affidavit from trial counsel, the record does not contain the full extent of counsel's investigation. However, as previously stated, Esparza must demonstrate that counsel's performance was deficient, Strickland, 466 U.S. at 687, 104 S.Ct. 2052, and there is a strong presumption that counsel's investigation was reasonable. Webster, 392 F.3d at 793.

Counsel obtained the appointment of Dr. Arambula, a forensic psychiatrist. Dr. Arambula evaluated Esparza and testified during the punishment phase that he could not identify a specific mental illness. Dr. Arambula also testified that Esparza was more unstable than a “normal” person because when he was six years old his mother was institutionalized for mental illness. As a result, he was temporarily sent to an orphanage. Although unable to diagnose an illness, Dr. Arambula suspected that Esparza had inherited a “genetic load” from his mentally ill mother.

Dr. Arambula testified that after Esparza's mother remarried and his father died, Esparza's stepfather would regularly beat him. It was Dr. Arambula's opinion that the neglect and abuse Esparza suffered as a child did not allow him to trust other people and made him prone to disagreement and physical altercations. Dr. Arambula explained that a victim of domestic violence can repeat the violent behaviors he has suffered.

Dr. Arambula noted that Esparza obtained a GED in prison. On cross examination, the prosecutor asked whether he had administered any I.Q. tests on Esparza. Dr. Arambula responded: “No. I didn't believe that I needed to, based on the evaluation.” The prosecutor then inquired: “Because he seems to have normal intelligence?” Dr. Arambula responded: “Yes.” Accordingly, defense counsel had a mental health expert evaluate Esparza, and the expert's conclusion was that Esparza was of “normal intelligence.” Moreover, as previously discussed, the evidence Esparza relies on to demonstrate his mental retardation is unpersuasive. Under these circumstances, Esparza has failed to make a substantial showing that counsel's performance with respect to investigating the issue of mental retardation was deficient.

It is not clear from the briefing, but it also appears that Esparza is arguing that counsel's presentation of the mitigating evidence about his childhood is deficient. Counsel was able to elicit testimony that Esparza's mother was institutionalized when he was six years old, and, as a result, he was sent temporarily to an orphanage. Subsequently, Esparza and his siblings were sent to live with their grandmother. His sisters testified that his mother was in the hospital once or twice a year due to her mental illness. The testimony also demonstrated that Esparza was beaten by his stepfather. Further, one sister was asked “how much schooling” Esparza had, and she replied: “Not much.... I know he stopped going to school because he had to help my mom to pay bills and all.” Esparza then began working in a restaurant and in construction. Additionally, counsel elicited testimony from Dr. Arambula that the highly structured setting in prison would make Esparza less likely to be a future danger, which is mitigating evidence with respect to the first question given to the jury after the punishment phase.FN5 Although Esparza claims counsel's questioning of the mitigation witnesses was “very superficial,” he has wholly failed to explain what else counsel should have elicited from the mitigation witnesses. As such, he has failed to demonstrate that reasonable jurists would find debatable his claim that counsel's performance with respect to investigating and presenting the evidence in mitigation was deficient.

FN5. The first question is: “Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Guadalupe Esparza, would commit criminal acts of violence that would constitute a continuing threat to society?” The second question is: State whether, taking into consideration all the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the Defendant, there is a sufficient mitigating circumstance or are sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

2. Prejudice Prong

Because Esparza made an insufficient showing on the first prong of the test, it is unnecessary for this Court to address the second prong-whether counsel's deficient performance prejudiced him. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nonetheless, we briefly state that it is clear that Esparza has failed to make a sufficient showing of prejudice. In the context of a claim that counsel failed to discover and present mitigating evidence, to determine whether a petitioner has shown the required prejudice, “we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.

Here, the aggravating evidence included evidence that Esparza kidnapped a 7–year old girl from her home in the middle of the night, raped and sodomized her, and strangled her to death. Esparza had a previous conviction for aggravated sexual assault, and the victim of that crime testified at the punishment phase of this trial. She recounted how Esparza hit her in the head with his gun and raped her at gunpoint after asking her for a ride home in her car. Another victim testified that Esparza choked her and attempted to rape her. Shortly before the instant crime, Esparza put his hand underneath the clothes of a little girl as she was sleeping. The evidence showed that as a juvenile he attempted to rob another child of his mini-bike at knife point. Esparza also was the “getaway” driver when two other individuals were stealing parts from a vehicle. Finally, Esparza had received disciplinary reports in prison, including an incident in which he was kicking another inmate in the side while the inmate was lying on the ground.

With respect to his claimed evidence of mental retardation, as we previously discussed, the evidence indicates that Esparza was not actually mentally retarded. Thus, in light of the aggravating evidence presented to the jury, we are unpersuaded that Esparza has made a substantial showing that there is a reasonable probability that, had his additional mitigating evidence been presented, the outcome of the sentencing hearing would have been different. In other words, we are persuaded that reasonable jurists would not find Esparza's claim of ineffective assistance of counsel debatable. We therefore DENY a COA as to his claim of ineffective assistance of counsel.

IV. CONCLUSION