Thursday, January 19, 2012
Media Advisory: Rodrigo Hernandez scheduled for execution

AUSTIN – Pursuant to a court order by the 144th District Court of Bexar County, Rodrigo Hernandez is scheduled for execution after 6 p.m. on Jan. 26, 2012. In 2004, a Bexar County jury found Hernandez guilty of murdering Susan Verstegen.

FACTS OF THE CASE

The Texas Court of Criminal Appeals described the facts of the crime as follows: The record reflects that in the early morning hours of February 18, 1994, victim Susan Verstegen was re-stocking snack products at a San Antonio grocery store from the storage bin in back of the store. While working at the storage bin, Verstegen was attacked, sexually assaulted, and strangled by Hernandez. The offense remained unsolved until 2002 when the results of DNA testing of evidence that had been collected from the crime scene, and that had been entered into a national database, matched the results of DNA testing on a sample that had been collected from Hernandez by the State of Michigan and entered into the same national database. After the reported match, another sample from Hernandez was tested, and the DNA pattern was found to match the DNA pattern from the sample collected from the crime scene. Hernandez’s written statement, which detailed his actions in attacking, sexually assaulting and killing Verstegen, was also introduced into evidence.

PROCEDURAL HISTORY

On Dec. 11, 2002, Hernandez was indicted for capital murder by a Bexar County grand jury. On March 18, 2004, Hernandez was convicted of capital murder. After a separate punishment proceeding, Hernandez was sentenced to death on March 22, 2004.

On Feb. 15, 2006, Hernandez’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals on direct appeal. Hernandez appealed the state court’s decision to the U.S. Supreme Court, but the Court denied certiorari review on Oct. 2, 2006. Hernandez also filed a state application for habeas corpus relief, which was denied by the Court of Criminal Appeals on April 30, 2008.

On April 22, 2009, Hernandez filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of Texas, San Antonio Division. The federal court denied this petition on Feb. 25, 2010.

On Oct. 18, 2010, the U.S. Court of Appeals for the Fifth Circuit rejected Hernandez’s appeal and affirmed the denial of habeas corpus relief by the district court. Hernandez filed a petition for writ of certiorari in the U.S. Supreme Court on Jan. 14, 2011, but the Court denied certiorari review on April 18, 2011.

On Jan. 17, 2012, Hernandez filed an application for a post-conviction writ of habeas corpus and a brief in support.The writ remains pending.

On Jan. 18, 2012, Hernandez filed a motion to withdraw the execution date in the trial court. On Jan. 19, 2012, the trial court denied the motion to withdraw the execution date.

On Jan. 23, 2012, the Texas Court of Criminal dismissed Hernandez's application for a post-conviction writ of habeas corpus.

On. Jan. 24, 2012, Hernandez filed a writ of certiorari petition and a motion to stay in the Supreme Court.

On Jan. 24, 2012, the Texas Board of Pardons and Paroles voted against a reprieve/commutation for Hernandez.

On Jan. 25, 2012, the State filed its brief in opposition to Hernandez's certiorari petition and motion for stay.

On Jan. 26, 2012, the U.S. Supreme Court denied Hernandez's writ of certiorari petition and motion for a stay of execution.

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 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 penalty phase of Hernandez’s trial, jurors learned that Hernandez had been convicted of multiple criminal offenses in Michigan. In 1992, Hernandez had been placed on probation for burglarizing a sporting goods store; however, he had committed numerous violations of the conditions of that probation. As a “youthful offender” facing sentencing for his first felony, Hernandez had been granted probation for burglarizing a home, but did not successfully complete the probation and was sentenced to jail. He had also been convicted of felony assault with intent to do great bodily harm, indecent exposure, and misdemeanor malicious destruction of property and engaging in an illegal gambling business. A former high-school girlfriend testified that Hernandez had assaulted her.

Texas Execution Information Center by David Carson.

Rodrigo Hernandez, 38, was executed by lethal injection on 26 January 2012 in Huntsville, Texas for the rape and murder of a 38-year-old woman.

In the early morning of February 18, 1994, Susan Verstegen, a snack foods vendor, was delivering products to an H-E-B supermarket in San Antonio. While she was working at a stocking shed behind the store, she was attacked, sexually assaulted, and strangled. The unknown assailant then transported her body to a nearby church and left it in a 55-gallon garbage barrel.

The crime remained unsolved until 2002. That February, in Michigan, Rodrigo Hernandez was being released from prison after having served 3½ years for beating a man nearly to death. As a condition of his parole, Hernandez had to provide a DNA sample. That sample was then entered into a national data base. It was subsequently matched to the DNA evidence from the 1994 San Antonio case. Hernandez was arrested in Michigan in September 2002. Another DNA sample was taken from him. It also matched the DNA evidence from the San Antonio crime scene. Hernandez then gave a written statement, wherein he confessed to attacking, raping, and murdering Verstegen and disposing of her body. "I had been smoking weed, drinking beer and mixed drinks, and did not realize what I was doing," he stated. "I want to say I am sorry and wish it was me instead of her." Hernandez had previous convictions in Michigan for indecent exposure, engaging in an illegal gambling business, malicious destruction of property, felony assault, burglary of a home, and burglary of a business.

A jury convicted Hernandez of capital murder in March 2004 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in February 2006. All of his subsequent appeals in state and federal court were denied.

In March 2010, Hernandez was identified, again by DNA, as the perpetrator in another cold case murder. Muriel Stoepker, a 77-year-old "bag lady" in Grand Rapids, Michigan, was beaten, raped, and shot in September 1991. Hernandez had been released from jail on a burglary charge one month earlier. In an interview from death row a few weeks before his execution, Hernandez stated that he met Verstegen at a different H-E-B in San Antonio, where he worked. He said that they had a sexual relationship for several months, and he denied killing her. "I have a history," he said. "I was hanging out with the wrong crowd. But it still doesn't make me a murderer."

Hernandez declined to discuss Stoepker's killing in the interview. A few days before his execution, however, he wrote a letter to a San Antonio Express-News reporter and stated, "I didn't do it; I payed [sic] for [oral sex], that's it, that's where they found my DNA." Hernandez' execution was attended by his sister and another relative. Susan Verstegan's son, Chuck Monney, was among the victims' witnesses.

"I want to tell everybody that I love everybody," Hernandez said in his last statement. "We are all family, people of God Almighty. We're all good. I'm ready." The lethal injection was then started. Hernandez uttered, "This stuff stings, man," then lost consciousness. He was pronounced dead at 6:19 p.m.

Reuters News

(Reuters) - Texas executed a convicted murderer by lethal injection on Thursday, administering the ultimate punishment to a man who had been paroled for an assault in Michigan when his DNA linked him to a years-old murder in San Antonio. Rodrigo Hernandez, 38, was convicted of sexually assaulting and strangling Susan Verstegen in 1994, leaving her body in a San Antonio trash can.

The execution, which a spokesman for the Texas Department of Criminal Justice said was carried out at a prison in Huntsville, was the second in the United States this year after Oklahoma executed Gary Welch on January 5 for stabbing a man to death during a drug dispute.

Among Hernandez's final statements, he said: "I want to tell everybody that I love everybody. Keep your heads up," according to the Department of Criminal Justice spokesman. "We are all family, people of God almighty." Shortly before lapsing into unconsciousness, he said: "This stuff stings, man," according to Jason Clark, the department spokesman.

Hernandez's victim was a 38-year-old Frito-Lay worker who was stocking snacks at a grocery store when she was attacked in 1994, according to the Texas Attorney General's Office. Hernandez's DNA wasn't matched to the crime until 2002, when Michigan officials took a sample from him as he was paroled for a separate crime and put it into a national database.

Hernandez was the first person executed this year in Texas, which executed 13 people in 2011 and has put to death more than four times as many people as any other state since the United States reinstated capital punishment in 1976, according to the Death Penalty Information Center. Hernandez told the San Antonio Express-News in an interview published this month he didn't kill Verstegen and will "take that to the grave."

But Verstegen's mother, Anna Verstegen of San Antonio, said this week she hoped Hernandez would, before he died, feel sorry for what he did to her daughter, who left behind a 15-year-old son. "It's never too late," she told Reuters. "We're just praying for him. The kind of God I believe in can forgive."

In 2010, Michigan investigators said DNA evidence linked Hernandez to the 1991 murder of Muriel Stoepker, 77, of Grand Rapids, but that he would not be tried because he was already on death row in Texas.

An execution that had been scheduled in Texas for next week was stayed on Wednesday by the Supreme Court. The convict granted the reprieve, Donald Newbury, was to be executed for his role in the 2000 murder of an Irving, Texas, police officer. Newbury, part of a group known as the "Texas Seven," escaped from prison and robbed a sporting goods store at gunpoint. The officer, Aubrey Hawkins, was killed outside the store as the group left the scene. Newbury was granted the stay after his attorneys raised concerns about the effectiveness of his lawyers during post-conviction proceedings.

Nationwide, the number of executions fell for the second year in a row in 2011, with 43 inmates put to death compared with 46 in 2010 and 52 in 2009, Death Penalty Information Center figures show. In 1999, a record 98 prisoners were executed.

Huntsville Item

"Hernandez put to death for Bexar Co. murder," by Cody Stark. (January 26, 2012)

HUNTSVILLE — A convicted murderer who raped and strangled a San Antonio woman 18 years ago became the first inmate to be executed in Texas this year.

Rodrigo Hernandez was put to death by lethal injection Thursday night for the murder of Susan Verstegen after a last-day appeal was denied by the U.S. Supreme Court earlier in the day. He was pronounced dead at 6:19 p.m., 10 minutes after the lethal dose began. “I want to tell everybody in the world I love everybody,” Hernandez said. “Keep your heads up. We are all family, people of God almighty. We’re all good. I’m ready.”

Charles Monney, Verstegen’s son who witnessed the execution, said he supported the death penalty but that Hernandez’s execution did not bring him happiness. “Nearly 18 years ago, Susan Verstegen, a woman in the prime of her life, was killed by a stanger,” he said. “A 15-year-old boy suddenly lost his mom, a mother and father lost their daughter and a family lost their beloved sister. Today the man who took her life paid the ultimate price with his life. Now I pray for his soul. “... Today’s execution doesn’t change the fact that my kids will never hear the sweet laugh or feel the tender embrace of their grandmother who would have been crazy for them. Every holiday or family get together will forever be missing something.”

Hernandez, 38, was convicted and sentenced to death for slaying Verstegen, an employee of Frito-Lay, in February of 1994. She was attacked at a storage area behind a supermarket and her body was found dumped in a garbage barrel behind a San Antonio church.

The Supreme Court rejected a final appeal two hours before Hernandez was executed Thursday. His lawyers had argued he had deficient attorneys early in his appeals who failed to address claims he had equally ineffective legal help at his trial when claims Hernandez was mentally impaired weren’t pursued.

Verstegen’s murder went unsolved for eight years, but Hernandez, who was serving time in Michigan prison for beating a man with a bottle, had to submit a DNA sample to a national database as a requirement for parole. The sample linked him to Verstegen’s murder, and recently, to the 1991 slaying of a homeless woman in Michigan.

Hernandez has insisted he is innocent of both murders, but he confessed to Verstegen’s murder at the time he was arrested. However, he told a San Antonio police detective, George Saidler, who questioned him after the DNA match was discovered in 2002 that he was high on marijuana and alcohol and that he grabbed Verstegen, wrapped his hands around her neck when she struggled, drove off in her car and threw her body in the trash can when he realized she was not breathing.

MySanAntonio.Com

"Rapist executed for 1994 S.A. murder," by Eva Ruth Moravec.

Rodrigo Hernandez, 38, was executed Thursday evening for raping and strangling single mother Susan Verstegen behind a grocery store in San Antonio in 1994 before dumping her body in a 55-gallon barrel at a nearby church.

Hernandez said little in the moments before he died. “I want to tell everybody that I love everybody,” he said. “We are all family, people of God almighty. We're all good. I'm ready.” As the lethal injection took its course, reporters heard him say, “This stuff stinks, man. Almighty,” although a state transcript released minutes later quoted it as, “This stuff stings, man.”

His relatives there to witness the execution sobbed. Verstegen's son Chuck Monney, 33, stood with his arms crossed, swaying from side to side, and kept his eyes on Hernandez.

Verstegen's slaying was a cold case until 2002, when a DNA sample Hernandez provided as a condition of his parole for an assault in Grand Rapids, Mich., matched evidence collected in the San Antonio killing. In 2009, while he was on death row, Michigan detectives also connected him to the 1991 rape and fatal shooting of Muriel Stoepker, 77, a homeless woman.

His attorney, Michael Gross, filed unsuccessful appeals attempting to halt the execution, including a request for a stay denied by the U.S. Supreme Court on Thursday.

The 2002 DNA match surprised Verstegen's relatives, who had all but given up hope for an arrest, and San Antonio Police Department detectives, who had never considered Hernandez a suspect. It sent Det. George Saidler, now a Bexar County District Attorney's investigator, to a Michigan jail, where Hernandez confessed to raping and killing Verstegen, 38, near a stocking shed behind an H-E-B when he was 19. “I had been smoking weed, drinking beer and mixed drinks and did not realize what I was doing,” Hernandez's written confession stated. “I want to say I am sorry and wish it was me instead of her.”

But Hernandez later denied confessing and insisted he was innocent when interviewed weeks before his execution. He and Verstegen had a months-long sexual relationship after they met at an H-E-B where he worked, he said. Verstegen stocked Frito-Lay products at area grocery stores.

At the time of the killing, Hernandez had been living with relatives in San Antonio. He returned to Grand Rapids shortly afterward. Hernandez declined to talk to a Michigan detective in 2010 about Stoepker's slaying, and again when interviewed this month. But in a letter to an Express-News reporter days before his execution, he wrote, “I didn't do it; I payed (sic) for (oral sex), that's it, that's where they found my DNA.”The case was to be closed upon Hernandez's death, Michigan officials have said. Monney was 15 when his mother was killed.

“Although I support the death penalty, there is no joy in this for me,” he said after the execution. Hernandez's death “doesn't change the fact that my kids will never hear the sweet laugh or feel the tender embrace of their grandmother, who would have been crazy for them.” He said he prayed for Hernandez's relatives.

Hernandez's sister and another relative witnessed his execution. Several members of his family declined comment in the weeks leading up to it. A younger cousin who declined to be named said the 2002 arrest was a shock to relatives, but Hernandez's connection to the Michigan slaying “blew our wig stack — it's like he had a split personality.”

Raised by his grandmother in Grand Rapids, Hernandez described himself in the interview as a normal teen who liked skateboarding and riding bicycles until the early 1990s, when he became involved in a gang and dropped out of high school. “I have a history. I was hanging out with the wrong crowd,” he said. “But it still doesn't make me a murderer.”

Hernandez became the first person executed by the state of Texas this year.

ProDeathPenalty.Com

Hernandez v. State, Not Reported in S.W.3d (Tex.Crim.App. 2006) (Direct Appeal)

JOHNSON, J., delivered the unanimous opinion of the Court.

Appellant was charged with capital murder by an indictment that alleged, in separate paragraphs, murder in the course of committing and attempting to commit aggravated sexual assault and murder in the course of committing and attempting to commit kidnapping.FN1 A jury convicted appellant of capital murder, and its answers to the special issues resulted in a sentence of death. On direct appeal, appellant raises five points of error. FN1. The indictment allegations of the two separate paragraphs were not listed in the conjunctive or disjunctive, but rather the two paragraphs were listed consecutively as “Paragraph A” and “Paragraph B” without any connector.

The record reflects that in the early morning hours of February 18, 1994, the complainant was re-stocking snack products at a San Antonio grocery store from the storage bin in back of the store. While working at the storage bin, the complainant was attacked, sexually assaulted, and strangled by appellant. The offense remained unsolved until 2002 when the results of DNA testing of evidence that had been collected from the crime scene, and that had been entered into a national database, matched the results of DNA testing on a sample that had been collected from appellant by the State of Michigan and entered into the same national database. After the reported match, another sample from appellant was tested, and the DNA pattern was found to match the DNA pattern from the sample collected from the crime scene. Appellant's written statement, which detailed his actions in attacking, sexually assaulting and killing the complainant, was also introduced into evidence.

The record also reflects that appellant had been convicted of multiple criminal offenses in Michigan. In 1992, appellant had been placed on probation for burglarizing a sporting goods store; however, he had committed numerous violations of the conditions of that probation. As a “youthful offender” facing sentencing for his first felony, he had been granted probation for burglarizing a home, but did not successfully complete the probation and was sentenced to jail.FN2 He had also been convicted of felony assault with intent to do great bodily harm, indecent exposure, and misdemeanor malicious destruction of property and engaging in an illegal gambling business. A former high-school girlfriend testified that appellant had assaulted her. FN2. The record reflects that this offense occurred in July of 1990, a few weeks after appellant had turned seventeen years old.

At trial, appellant presented testimony from a court-appointed psychiatrist and from a licensed social worker. The psychiatrist testified about pervasive conditions during appellant's upbringing, including social conflicts and discord, substance abuse, incarceration of family members, and mental illness. He also testified about environmental risk factors that appellant faced. The psychiatrist pointed out that his CT scan of appellant's head revealed the presence of a bullet in the left frontal bone of his skull, but conceded that the injury had occurred after this offense. He also pointed out that appellant had been twenty years old in 1994 and was thirty at the time of trial, and offered his opinion that there had been some maturation and some indication that appellant's behavior had become less anti-social. He also noted that appellant's abuse of multiple substances had ended and was not likely to recur in an incarcerated setting and that the two rule violations that appellant had committed while incarcerated had been minor and had not disrupted the penal facility or in any way created violence. Appellant also presented testimony from a licensed social worker who had prepared a social report. Her testimony was based upon interviews with appellant and his family members and a review of appellant's school, jail, and prison records. The social worker opined that appellant does well in a highly structured setting, such as incarceration. The state did not present psychiatric or psychological testimony.

Appellant's point of error one alleges that there was insufficient evidence to support the jury's finding that appellant will be a continuing danger to society because the evidence showed that he had not committed a violent offense “in years” and had never committed a violent rules infraction during his several incarcerations. Appellant argues that, of those people convicted of capital murder, “the death penalty is reserved for those few who would continue to be dangerous even after being removed from free society [and he] is not such a person.” He asserts that the evidence at trial did not show that he is likely to commit criminal acts of violence while incarcerated for the next forty years or more. Appellant also points out that “[t]his appeared to be a crime of impulse, not long in planning, when [he] was very young and very intoxicated on alcohol and marijuana. Both these factors tend to disprove that [he] will be a future danger, since [he is] no longer young and no longer has access to drugs and alcohol.” Appellant also suggests that “[b]y the time of trial, [he] was not the same angry young man who had committed the offense.”

The state argues that the evidence is legally sufficient to support the jury's finding on future dangerousness. It discusses categories of evidence that were presented at trial and concludes that “[g]iven all the facts in the instant offense, [a]ppellant's character traits, and the nature and number of the other extraneous acts shown, a rational jury could reasonably have concluded that [a]ppellant would be a continuing threat to society.”

In reviewing the sufficiency of the evidence to support an affirmative finding to the future dangerousness special issue, we review the evidence in a light most favorable to the jury's verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that there is a probability that the defendant would commit future criminal acts of violence that would constitute a continuing threat to society. Russeau v. State, 171 S.W.3d 871, 878 (Tex.Crim.App.2005)(citing Tex.Code Crim. Proc. Art. 37.071, § 2(b)(1)). “We have enumerated a non-exclusive list of factors that the jury may consider in determining whether a defendant constitutes a continuing threat to society....” Smith v. State, 74 S.W.3d 868, 870 (Tex.Crim.App.2002)(citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987)).

These factors include: 1) the circumstances of the capital offense, including the defendant's state of mind and whether he was acting alone or with other parties; 2) the calculated nature of the defendant's acts; 3) the forethought and deliberateness exhibited in the crime's commission; 4) the existence of a prior criminal record and the severity of the prior crimes; 5) the defendant's age and personal circumstances at the time of the offense; 6) whether the defendant was acting under duress or the domination of another at the time of the offense; 7) psychiatric evidence; and 8) character evidence. Id.

In its determination of the future-dangerousness special issue, a jury is entitled to consider all of the evidence presented at both the guilt and punishment phases of the trial. The circumstances of the offense itself, if severe enough, may be sufficient to support an affirmative finding to that special issue. Conner v. State, 67 S.W.3d 192, 199 (Tex.Crim.App.2001); Miniel v. State, 831 S.W.2d 310, 322 (Tex.Crim.App.1992). “If, given all of the evidence, a rational jury would have necessarily entertained a reasonable doubt as to the probability of appellant's future dangerousness, we must reform the trial court's judgment to reflect a sentence of imprisonment for life.” Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App.2001).

After reviewing the evidence presented in the guilt and punishment phases, we conclude that there was sufficient evidence to support the jury's finding that there was a probability that appellant would commit criminal acts of violence that would be a continuing threat to society. Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.), cert. denied, 528 U.S. 956 (1999). We overrule point number one. Point of error two claims that “[a]ppellant's motion to preclude the death penalty should have been granted [because t]he factors that made this case ‘death-worthy’ should have been passed on and specified by a grand jury, rather than allowing the state unfettered discretion to seek the death penalty or not.” Appellant acknowledges that his motion did not raise that point, but rather argued that a fact that increases the penalty for a crime beyond the statutory maximum must be alleged in the indictment and proved to the jury beyond a reasonable doubt, as announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). We observe that Apprendi is predicated on submission of aggravating factors to a petit jury.

Appellant also argues that “[a] death sentence cannot be given unless other facts are found after the guilty verdict ... [and that] those facts are elements of the offense of capital murder ... and should have to be pled in the indictment.” He points to the United States Supreme Court's opinion in Blakely v. Washington, 542 U.S. 296 (2004), which held that a trial court's sentencing to a term in excess of the statutory maximum of the standard range for the offense was unconstitutional when the basis for the excess in sentencing was a finding by the trial judge that was neither admitted by the defendant nor found by a jury. While that may be true, by Texas statute, the jury is charged with deciding two special issues. Its answers to those issues determine the sentence that will be assessed by the trial court; the trial court has no discretion to assess a different sentence.

Appellant also argues that “the maximum punishment is that which can be imposed without any additional post-guilty-verdict fact-finding.” (Emphasis in original.) This is contrary to the plain language of Article 37.071, which states that, when the state is seeking the death penalty, there are two possible sentences: life in prison or death. Thus, the prescribed statutory maximum punishment, without or without additional findings, is death.

Appellant further complains that the indictment in this case did not allege the special issues. He argues that he not only has the right to have a jury find the additional facts that result in a death sentence, but that he also has a right to notice in the indictment that the state will seek such findings. In Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App.2003), cert. denied, 543 U.S. 823 (2004), we discussed a claim that Apprendi required the special issues to be plead in the capital-murder indictment and pointed out that Apprendi does not compel the state to allege the special issues in the indictment. Id. More recently, we have held that neither Apprendi nor Ring v. Arizona, 536 U.S. 584 (2002), require that the special issues be alleged in the indictment. Russeau v. State, 171 S.W.3d at 885-86. Nor can we find any such requirement in Blakely. We have also said, “A defendant indicted for capital murder is effectively put on notice that the special issues under Article 37.071 will be raised, so such procedural provisions need not be alleged in the indictment.” Moore v. State, 969 S.W.2d 4, 13 (Tex.Crim.App.1998). We overrule point two.

Point of error three asserts that the mitigation special issue is unconstitutional because it does not have a burden of proof, thus allowing the jury to give no effect to mitigating evidence. Point of error four asserts that the mitigation special issue is unconstitutional “because it does not impose a burden of proof on the state's evidence that is offered as ‘anti-mitigating’ evidence.” Appellant acknowledges that this Court has rejected this argument many times. He suggests that the lack of a burden of proof allows each juror to create his or her own burden of proof and that individual jurors could choose to apply an impossible burden to the defense evidence. Appellant argues that, given the lack of instruction on burden of proof, jurors were free to disregard his mitigating evidence altogether,FN4 while the jurors must consider mitigating evidence in order for a death-penalty scheme to be constitutional. He also suggests that the lack of a burden of proof on victim-impact “anti-mitigating” evidence, offered by the state to rebut his mitigating evidence, permits jurors to accept such evidence without a standard for acceptance. FN4. We observe that failure to find mitigation is not conclusive evidence that the jury did not consider the evidence; a jury may consider defense mitigation evidence and then choose to disbelieve it and thus disregard it.

We have rejected the claim that the mitigation special issue is unconstitutional because it omits a burden of proof. Resendez v. State, 112 S.W.3d 541, 549 (Tex.Crim.App.2003). See also Paredes v. State, 129 S.W.3d 530, 541 (Tex.Crim.App.2004); Prystash v. State, 3 S.W.3d 522, 535 (Tex.Crim.App.1999). Appellant's arguments do not persuade us to overturn our prior rejection of this claim. Points of error three and four are overruled.

In point of error five, appellant asserts that the trial court should have granted appellant's motion to declare the “10-12 rule” unconstitutional because it violates the Sixth and Eighth Amendments to the United States Constitution. The trial court denied appellant's “Motion to Declare the '10-12 Rule' Unconstitutional,” and instead instructed the jury in accordance with Tex.Code Crim. Proc. Art. 37.071, § 2(d)(f).FN5 Appellant argues that the “10-12 rule” instruction “misleads juries and puts unconstitutional pressure on jurors who want to vote for life to change their votes in order to achieve a unanimous vote” and “deprives [him] of effective assistance of counsel, by not allowing his attorneys to inform the jurors of the effect of their individual votes.”

FN5. Appellant complains about the jury charge instructions which stated,

The jury may not answer the first issue “Yes” unless there is unanimous agreement of the individual jurors upon that answer. The jury may not answer the first issue “No” unless ten or more jurors agree upon that answer. The jury may not answer the second issue “No” unless there is unanimous agreement of the individual jurors upon that answer.

The [j]ury may not answer the second issue “Yes” unless ten or more jurors agree upon that answer. Appellant acknowledges that this Court has overruled this claim many times. See, e.g., Resendez v. State, 112 S.W.3d at 548-49. Appellant does not persuade us to overturn our rejection of this Eighth Amendment claim. In his brief, appellant failed to argue or show that his trial counsel's representation fell below an objective standard of reasonableness and that such deficiency prejudiced him; thus he fails to present his Sixth Amendment claim of ineffective assistance of counsel within the well-established parameters of Strickland v. Washington, 466 U.S. 668 (1984). As to this claim, appellant's issue is inadequately briefed. See Tex.R.App. P. 38.1(e)-(h). Point of error five is overruled. We affirm the judgment of the trial court.

Hernandez v. Thaler, 398 Fed.Appx. 81(5th Cir. 2010) (Habeas)

Background: Following affirmance of his capital murder conviction and death sentence, 2006 WL 367271, petitioner sought federal habeas relief. The United States District Court for the Western District of Texas denied relief, and petitioner sought a certificate of appealability (COA) and a stay of proceedings.

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) counsel was not ineffective in not calling defendant to testify on suppression motion; (2) COA was not warranted on claim that counsel erred in arguing law applicable to suppression; (3) counsel was not ineffective in not objecting to prosecutor's question to medical examiner; (4) counsel was not ineffective in not objecting to prosecutor's closing; (5) counsel was not ineffective in not arguing residual doubt as mitigation during penalty phase; (6) counsel was not ineffective in not obtaining a dental expert; and (7) stay was not warranted. Denied.

JERRY E. SMITH, Circuit Judge: (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.)

Rodrigo Hernandez was convicted in 2004 of the rape and capital murder of Susan Verstegen and sentenced to death. He filed a state application for writ of habeas corpus, claiming he had received ineffective assistance of counsel during trial. The trial court held an evidentiary hearing, and the Texas Court of Criminal Appeals denied all habeas relief. Ex parte Hernandez, No. 69,470–01, 2008 WL 1914743 (Tex.Crim.App. Apr.30, 2008) (unpublished). After reviewing the record, the federal district court denied all habeas relief on the merits and did not grant a COA. Hernandez now seeks a COA on the same issues presented to the district court. He also moves for a stay of the federal habeas proceeding so he can return to state court and exhaust a new claim for relief—that because he is mentally retarded, he is ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We deny a COA and a stay.

I. Certificate of Appealability.
A. Standard of Review.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA requires “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The petitioner must “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[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.” Miller–El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because AEDPA forbids a full consideration of the merits, a COA analysis is only a threshold inquiry of the claim and a general assessment of its merits. Id. at 337, 123 S.Ct. 1029. Hernandez contends he was denied his Sixth Amendment right to effective assistance of counsel. The analysis requires a preliminary, not definitive, application of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Miller–El, 537 U.S. at 338, 123 S.Ct. 1029.

Under the first prong, the petitioner must show that counsel's performance was deficient, meaning that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment.” Washington, 466 U.S. at 687, 104 S.Ct. 2052. The proper measure is whether “the representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. That standard is highly deferential, and a court must presume that counsel's conduct falls within the wide range of prevailing professional norms. Id. at 689, 104 S.Ct. 2052. Because it is easy to denounce an unsuccessful course of action with benefit of hindsight, courts should evaluate the challenged conduct from counsel's perspective at that time. Id. Therefore, unless the conduct was unreasonable as a matter of law, strategic decisions following a thorough investigation are “virtually unchallengeable.” Id. at 690, 104 S.Ct. 2052. Decisions after a less-than-thorough investigation may still be reasonable if supported by reasonable professional judgments. Id. at 691, 104 S.Ct. 2052. To satisfy the second prong, the petitioner must show that the deficient performance prejudiced the defense, meaning that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial.” Id. at 687, 104 S.Ct. 2052. There must be a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome, id., but prejudice may also occur if “the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

Not all errors justify setting aside a conviction. The Sixth Amendment does not guarantee the right to counsel for the sake of having counsel, but rather to ensure that legal assistance afforded the defendant a fair trial and to justify reliance on the outcome. Washington, 466 U.S. at 691–92, 104 S.Ct. 2052. Thus, if counsel's errors—no matter how unreasonable—did not have a prejudicial effect on the defense, they do not rise to the level of a constitutional violation. Id. at 693, 104 S.Ct. 2052. Both Washington prongs are mixed questions of law and fact. Id. at 698, 104 S.Ct. 2052. The state court's findings of fact are subject to deference under 28 U.S.C. § 2254(d), and the district court's findings are reviewed under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). Miller–El, 537 U.S. at 340, 123 S.Ct. 1029. Because of the severity and finality of the death sentence, any doubts should be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 763 (5th Cir.2000).

B. Analysis.

Hernandez contends that five separate actions and omissions by his attorney satisfy the Washington test: (1) failing to call Hernandez to testify during the hearing on his motion to suppress his confession, and erroneously arguing that Michigan law should govern the confession's admissibility; (2) failing to object to the prosecutor's allegedly misleading questions to the medical examiner regarding the amount of time necessary to cause death from a ligature; (3) failing to object to the prosecutor's comments regarding the alleged use of a ligature to cause death; (4) failing to argue, at the punishment phase, that residual doubt should mitigate imposition of the death penalty, and failing to raise residual doubt through cross-examination; and (5) failing to retain a dental expert to examine the possible bite marks on Verstegen's body and compare them to Hernandez's teeth. We address each action or omission in turn. 1. Failing To Call Hernandez To Testify, and Arguing Michigan Law.FN1. The district court noted that Hernandez did not raise these two arguments in the state habeas proceeding, and therefore that they should have been dismissed as unexhausted claims. See Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The state, however, did not assert procedural default, and the court denied habeas relief on the merits under § 2254(b)(2). We therefore analyze the constitutional violation and not procedural default.

The state trial court held an evidentiary hearing to determine whether Hernandez's written confession should be suppressed. The two officers who interviewed Hernandez testified that after he was given his Miranda warnings, he confessed to his involvement in Verstegen's death, claiming that he had raped her but had not intended to kill her. The officers also said that although Hernandez agreed to give a written statement, he asked one of them to write it for him because his hands were shaking too much. According to the detective who took the statement, Hernandez read it before initialing each page and signing the last page. Hernandez's attorney argued that the confession should be suppressed because it did not comply with Michigan law. The state trial court concluded that Texas and not Michigan law applied and that under Texas law the confession was proper, so it was admissible.

Hernandez now asserts that it was unreasonable error for his attorney not to put him on the stand to testify during the hearing. Hernandez contends that he would have testified that he had signed a blank form and that his initials were forged. The lawyer testified during the state habeas proceeding, however, that Hernandez was extremely nervous and had an extensive criminal record, so his credibility likely could be impeached. It would have been Hernandez's word against that of two officers. The attorney did suggest at the proceeding that the confession may have been forged, but he chose to raise that argument during cross-examination of the officers.

Hernandez's lawyer made a reasonable tactical decision not to call Hernandez to testify. The attorney believed it would do more harm than good for Hernandez to testify and that attacking the authenticity of the statement was better left to cross-examination of the officers. Had Hernandez testified that the confession was a forgery, the prosecution would have cross-examined Hernandez and thus could have argued that it was implausible that a man well versed in the criminal justice system would never sign a blank witness statement form. Reasonable jurists could not contest that the attorney's strategy was objectively reasonable, and thus this claim does not warrant a COA.

Hernandez asserts in his brief, without any support, that his attorney erred in failing to realize that Texas law would apply. It is equally possible, though, that the attorney, in a desperate attempt to secure exclusion, knew the confession was admissible under Texas law and thus decided to argue that the more favorable Michigan law should apply. Although there is no evidence of either rationale in the record, we must strongly presume that counsel “made all significant decisions in the exercise of reasonable professional judgment.” Washington, 466 U.S. at 690, 104 S.Ct. 2052. Therefore, reasonable jurists cannot debate whether the attorney's actions were unreasonable. That is enough to deny a COA. Additionally, the admission of Hernandez's confession did not prejudice the defense, so there was no constitutional violation. In fact, the confession may have helped the defense, because it was the only evidence (other than putting Hernandez on the stand at trial) supporting his defense that he accidentally killed Verstegen and thus should be convicted of only felony murder.

Hernandez's attorney testified that if the confession had been suppressed, his strategy would have been to argue that Verstegen and Hernandez had engaged in consensual sex. But the evidence makes this argument implausible. Verstegen's body was found in a garbage can, headfirst and unclothed from the waste down. In tape-recorded phone conversations with his sister, Hernandez denied knowing Verstegen, and her body showed evidence of assault and strangulation. Thus, Hernandez would have had to take the stand to lend any credibility to that defense. Either way, if Hernandez had testified that Verstegen's death was an accident or that they had engaged in consensual sex, he would have opened himself to a withering cross-examination raising his prior criminal history and violence against women. Therefore, because the confession did not prejudice the defense, reasonable jurists could not debate that a constitutional violation did not occur.

2. Failing To Object During Questioning of Medical Examiner.
The medical examiner, Dr. Bux, testified at trial that the marks on Verstegen's neck indicated that she was likely strangled by a ligature or a combination of ligature and hands, although it was possible that only hands were used. At the end of Bux's testimony, the following exchange occurred between him and the prosecutor: Q: How long would a person then have to hold Susan Verstegen's neck before she would not come back to consciousness? A: That's a good question. We know that they'll come back in 100 seconds. We don't know what the magic number is after that. It would be at least two to three minutes, and it might be longer in somebody that's young and healthy like she was.... Q: Is it fair to say that the absolute minimum that a person would have to hold a ligature on Susan Verstegen's neck after she lost consciousness is two minutes? A: Yes, sir. I think that would be very conservative.

Hernandez claims that it was an unreasonable error for his attorney not to object to the second question, because it mischaracterized Bux's earlier testimony that Verstegen could have been strangled with hands alone.

The decision not to object falls squarely within the wide range of reasonable trial tactics. The first question used the phrase “hold Susan Verstegen's neck,” which implies using hands alone, whereas the second question used the phrase “hold a ligature on Susan Verstegen's neck,” which implies either ligature alone or hands and ligature. Looking at the line of questioning as a whole makes it obvious that the prosecutor was using this portion of Bux's direct examination to elicit testimony as to the length, not the manner, of the strangulation.

Had Hernandez's attorney interrupted the flow of questioning to ask the prosecutor to clarify a trivial and immaterial point, it could have drawn more attention than necessary to the strangulation. The decision to raise an objection is driven largely by trial strategy, and we have no reason to second-guess it. Further, even though the attorney testified at the state habeas proceeding, Hernandez failed to question him regarding his motive behind the decision to object. The threshold is lower for a COA than for habeas relief, yet the petitioner still has the burden of showing that reasonable jurists might find his lawyer's conduct objectively unreasonable at the time of trial. See Washington, 466 U.S. at 687–91, 104 S.Ct. 2052. Hernandez has failed to meet that burden, so reasonable jurists would defer to the attorney's strategy. This claim does not warrant a COA.

3. Failing to object during closing argument.
During closing arguments, the prosecutor summarized Bux's testimony and said that “some type of ligature was used—either ligature alone or ligature and hands.” Hernandez argues that it was an unreasonable error for his attorney to fail to object to that mischaracterization of Bux's testimony. Hernandez asserts that the prosecutor put forth a “more vicious version of the facts” when he said that some type of ligature had been used. Hernandez also contends that the prosecutor's statements called into doubt his written confession, which stated that he had accidentally strangled Verstegen with only his hands. There is no apparent reason why one method of strangulation is more vicious than the other. Arguably, some might believe that strangling someone with, as the idiom goes, “your bare hands” is more vicious than using a ligature, which would make the task easier. When weighing the harm caused by drawing attention to the fact that Hernandez may have strangled Verstegen with only his hands, against the benefit of bolstering the credibility of the written confession, it is reasonable to decide that making an objection was not in the defense's best interest. Again, Hernandez did not question his trial attorney during the state habeas proceeding as to his reasoning for choosing not to object. Instead, he only argues that “there can be no strategy for failing [to object].” Because Hernandez has put forth no reason to second-guess his lawyer's decision, reasonable jurists must presume that the trial tactic was sound, and the claim does not warrant a COA.

4. Failing To Argue Residual Doubt.

Hernandez contends that his attorney “should have attacked through additional evidence, vigorous objections, and closing argument the serious lack of proof as to [Hernandez's] guilt of the capital murder.” By failing adequately to raise residual doubt in the minds of jurors, Hernandez argues, his attorney's performance was deficient and prejudiced the punishment phase of trial. Despite vigorously denouncing his attorney's performance, Hernandez does not provide the court with any additional exculpatory evidence to consider. Nor does Hernandez describe any objections that counsel should have raised, other than those that the state habeas court, the district court, and this court found meritless. Moreover, Hernandez does not identify the alleged flaws in counsel's closing arguments. The only two issues that Hernandez does raise in support are that his lawyer (1) did not attack with enough force the prosecution's reliance on “mere science” and the three-page confession, when pointing out that there were no eye-witnesses, and (2) should have mentioned that the police questioned other individuals and asked them to submit to polygraph and DNA testing.

The attorney testified at the state habeas proceeding that in cases where the defendant's DNA links him to the victim and there is a signed confession, arguing residual doubt is of little use. Counsel believed that by finding Hernandez guilty of capital murder, the jury had plainly rejected the felony-murder defense, so arguing residual doubt would be harmful. The defense's strategy was thus to convince the jury that because of Hernandez's growing maturity and peaceful prison record, he would not pose a future threat if sentenced to life without parole. We defer to the state habeas court's factual finding that counsel conducted a thorough investigation of the law and facts before settling on that strategy. Such trial decisions are “virtually unchallengeable,” and Hernandez has given us no evidence to doubt that decision's reasonableness. See Washington, 466 U.S. at 690, 104 S.Ct. 2052. Conclusional arguments and assertions such as those Hernandez provides are insufficient. Mallard v. Cain, 515 F.3d 379, 383 (5th Cir.2008). No reasonable jurist could debate whether the strategy was reasonable. This claim does not warrant a COA.

5. Failing To Retain a Dental Expert.

At trial, one of the investigating detectives testified that another detective, from looking at autopsy photos and not the autopsy report, believed that one of the marks on Verstegen's body was possibly a bite mark; he consulted a forensic dental expert, who said that he would need dental impressions to compare to the photograph. The search warrant authorized detectives to take dental impressions of Hernandez, which they did. Other than the detective's brief testimony on the issue, the only other mention of bite marks at trial was the testimony of Bux, who stated that he did not mention bite marks in the autopsy report because he could not determine whether the marks in question were in fact bite marks.

Hernandez claims that it was unreasonable error for his attorney to fail to retain a dental expert to compare his dental impressions against the marks in the autopsy photos. Hernandez again makes a broad conclusional statement without any evidence in support. The autopsy report did not include any mention of bite marks, and Hernandez gives no reason why counsel should not have relied on that report in conducting the investigation. The only mention of bite marks was in the search warrant, and there is no evidence that the dental impressions were ever used. In fact, Hernandez does not even argue that the bite marks do not match his. Hernandez cannot assert merely that his attorney should have investigated some matter; he must make an “affirmative showing of what the missing evidence or testimony would have been” and explain why it would have made a difference during trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994). Without such a showing, “a habeas court cannot even begin to apply [ Washington's ] standards.” Id. (quoting United States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir.1991)) (internal quotation marks omitted). No reasonable jurist could debate whether counsel's conduct was reasonable, and therefore no COA should issue.

II. Motion for Stay.

A federal court may not grant habeas relief unless the petitioner has exhausted all available state court remedies, including state habeas review. 28 U.S.C. 2254(b)(1)(A). If presented with an application with both exhausted and unexhausted claims, a court may stay and abate the federal proceeding to allow the defendant to return to state court to exhaust the necessary claims. A stay allows the petitioner to return to federal court once the state court has adjudicated the claims, and such a stay tolls AEDPA's one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).

Hernandez intends to raise an Atkins claim in the state habeas court and thus moves for a stay. A court may issue a stay, but only in limited circumstances so as not to undermine AEDPA's objectives of reducing delay, particularly in capital cases. See id. at 276–77, 125 S.Ct. 1528. First, there must be good cause for the failure to exhaust. Second, a district court should not grant a stay where the unexhausted claims are plainly meritless. Third, there should be reasonable time limits on the petitioner's trip to state court and back. And finally, a court should not grant a stay if the petitioner engages in abusive litigation tactics or intentional delay. We deny a stay, because the unexhausted claim is meritless.

Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must bring his federal claim within one year from the date on which judgment became final by the conclusion of direct review or from the expiration of the time for seeking such review. The period is tolled while state post-conviction or collateral review is pending. § 2244(d)(2). Atkins claims are not exempt from the limitations period and may be time-barred. In re Lewis, 484 F.3d 793, 796 (5th Cir.2007). Because Hernandez's limitations period expired on April 30, 2009, the future Atkins claim would be time-barred. The limitations period may be subject to equitable tolling, which is applied restrictively and only in “rare and extraordinary circumstances” where strict application of the statute of limitations would be inequitable. In re Wilson, 442 F.3d 872, 878 (5th Cir.2006); see Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.2002). Equitable tolling usually applies where the petitioner is prevented in some extraordinary way from asserting his rights. FN2 Hernandez argues that extraordinary circumstances exist here, because his attorney failed to file the claim timely, and he “has no [other] vehicle in which to raise this mental retardation issue.”

FN2. See Fierro, 294 F.3d at 682. For example, lack of counsel and constraint by the Texas two-forum rule qualify as extraordinary circumstances. See In re Wilson, 442 F.3d 872; In re Hearn, 389 F.3d 122 (5th Cir.2004) (on petition for rehearing).

First, if failure to file timely were deemed to be rare or extraordinary, the exception would swallow the rule. “Excusable neglect” does not justify equitable tolling. Fierro, 294 F.3d at 682. Second, although Hernandez's Atkins claim is time-barred, that bar does not foreclose the possibility that he could bring a Ford claim once an execution date is set.FN3 Because Hernandez's Atkins claim is time-barred and he has not met the restrictive standard for equitable tolling, the claim is meritless. We deny the motion to stay proceedings. FN3. See Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see also Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). We express no view on the merits of any such claim, which is not before us.