Tuesday, November 13, 2012
Media Advisory: Ramon T. Hernandez scheduled for execution

AUSTIN – Pursuant to a court order by the 175th District Court in Bexar County, Texas, Ramon Torres Hernandez is scheduled for execution after 6 p.m. on November 14, 2012. In October 2002, a Bexar County jury convicted Hernandez of capital murder and sentenced him to death.

FACTS OF THE CRIME

The U.S. Court of Appeals for the Fifth Circuit described the facts of the crime as follows: Hernandez was indicted on one count encompassing several crimes, including killing Rosa Rosado (a) as part of a common scheme or course of conduct along with killing two middle school girls in 1994, (b) in the course of an aggravated sexual assault, (c) in the course kidnaping her, and (d) in the course of robbing her. Relating to the common-scheme aspect of the one-count indictment, two middle school girls, Sarah Gonzales and Priscilla Almares, were abducted in San Antonio in December 1994. The next day, their bodies were found in the brush by a road. Both had been sexually assaulted and asphyxiated. An anal swab of Gonzales found sperm, but a vaginal slide found none. A 2001 test showed Hernandez’s DNA was a match. Relating to the remaining parts of the indictment, Rosado disappeared in San Antonio in March 2001. The facts are in dispute, but according to Hernandez’s confession, while driving with his girlfriend, Abel Abdygapparova, Hernandez, and Santos Minjarez saw Rosado at a bus stop. Minjarez tried to grab her purse, and when she resisted, he pulled her into the car and covered her head, and Hernandez drove away. They stopped at Hernandez’s house to get tape to bind Rosado, gagged her, and went to a motel, where she was raped and killed. Abdygapparova was sent to get a shovel, which was used to bury the body. Hernandez and Abdygapparova took Rosado’s possessions and items used to cover her and burned them or dispersed them by tossing them from the car as they drove after her death.

Two crucial statements were made to police. Abdygapparova provided a written statement of the abduction, robbery, sexual assault, and murder of Rosado. She also led police to the body, the motel where the events occurred, and the car she had sold after using it in the crime. Although Hernandez initially denied participating and asked for an attorney, thus ending his first interrogation, the next day he asked to speak to the detectives again. He gave a statement confessing to participation in the crime but saying it was Minjarez who had raped and killed Rosado.

PROCEDURAL HISTORY

On March 12, 2002, Hernandez was charged in a four-paragraph indictment filed in the 175th District Court of Bexar County, Texas, with intentionally killing Rosa Rosado on March 31, 2001, by asphyxiation, during the course of committing or attempting to commit the aggravated sexual assault, kidnapping, or robbery of Rosado; and the murder of more than one person during different criminal transactions but pursuant to the same scheme and course of conduct, for the murder of Rosado, and the December 16, 1994, murders of Priscilla Almares and Sarah Gonzalez.

Hernandez was convicted and sentenced to death in October 2002 by a jury in the 175th District Court of Bexar County, Texas.

On March 23, 2005, the Texas Court of Criminal Appeals (CCA) affirmed his conviction and sentence on direct appeal.

On September 10, 2008, after the trial court held an evidentiary hearing, the CCA adopted all recommended findings and conclusions, save those regarding the ineffective-assistance-of-appellate-counsel claim, and denied habeas corpus relief.

On May 13, 2011, the federal district court denied habeas corpus relief and a certificate of appealability (COA).

On March 1, 2012, the Fifth Circuit Court of Appeals also denied COA.

The U.S. Supreme Court denied certiorari review on October 1, 2012.

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 the State presented evidence that, in 1986, Hernandez (who was a juvenile) was charged with engaging in delinquent conduct for entering a habitation on April 5, 1986, with the intent to commit theft, and was placed on juvenile probation for a year.

On July 18, 1990, Hernandez was convicted of unlawfully carrying a weapon – a knife with a blade of more than five inches. The charges stemmed from his arrest for felony theft of a vehicle and unlawfully carrying a prohibited weapon, but the felony charge was dismissed.

In March 1991, Hernandez pled guilty to three counts of burglary of a habitation with intent to commit theft, and was sentenced to 18 years in prison. • The first burglary occurred on April 24, 1990, when Hernandez entered a home through a kitchen window while the owner was at work, and stole numerous items from the home. • The second burglary also occurred on April 24, 1990, when Hernandez and an accomplice broke down the door of a home; while Hernandez and the accomplice were attempting to rob the home, a neighbor called the police. Hernandez and the accomplice fled on foot but were later apprehended with items from the burglaries in their car. • The third burglary plea resulted from the January 12, 1991, sexual assault of Anna Marie Diaz. Hernandez, Minjares, and Diaz’s husband, Danny Zapata, went to Hernandez’s apartment to watch a pornographic movie. Hernandez left the apartment, locking the burglar door from the outside so that no one could leave. Hernandez entered Diaz’s nearby apartment through an unlocked door and sexually assaulted her in her bed while her one-year-old child slept beside her. Diaz testified that she and Hernandez had been friends for many years. Hernandez only pleaded guilty to burglary of a habitation.

On March 15, 1994, Hernandez was arrested and charged with burglary after he and Santos Minjares were observed robbing a home. Hernandez led police on high-speed pursuit, ending when he crashed his car in a drainage ditch. The two suspects attempted to flee on foot but Hernandez was apprehended. The charges were dismissed for insufficient evidence. Two witnesses – a high school friend and a San Antonio police officer – testified Hernandez did not have a good reputation for being peaceful and law-abiding.

On August 15, 2002, while housed in the Bexar County jail for the present offense, Hernandez placed a make-shift dummy in his bunk and went missing from his cell. Hernandez was later found hiding in another cell where sheriff’s deputies discovered a carved-out hole through cinder block and bricks leading to the parking lot of the facility. Hernandez had also attempted to carve around the commode, and ventilation and intercom systems in his own cell. A piece of steel plate from the intercom system, big enough to be a weapon, was missing. Regarding the incident, Hernandez made the statement, “I fooled you too, right.”

Texas Execution Information Center by David Carson.

Ramon Torres Hernandez, 41, was executed by lethal injection on 14 November 2010 in Huntsville, Texas for the abduction, robbery, rape, and murder of a 37-year-old woman.

On 31 March 2002, Hernandez, then 30, Santos Minjarez, 30, and Asel Abdygapparova, 28, were driving around San Antonio at night, looking for a victim to rob. Hernandez was behind the wheel, Minjarez was in the passenger seat, and Abdygapparova, who was five months' pregnant with Hernandez's child, was in the back. They spotted Rosa Rosado, 37, at a bus stop. They parked and watched her talk on a pay phone across the street for approximately ten minutes. As she started walking across the street, Hernandez pulled the car up next to her, and Minjarez grabbed her purse. When she resisted, Minjarez pulled her inside the car, placing her between himself and Abdygapparova in the back seat. Hernandez drove to his home, where Abdygapparova obtained some mailing tape to cover Rosado's mouth. Minjarez taped over the victim's mouth and placed a towel over her head.

According to confessions and trial testimony by Hernandez and Abdygapparova, Santos Minjarez was the leader of the group and was also the primary assailant. Minjarez's account was unavailable for this report. Leaving Hernandez's home, the group took Rosado to a motel. Minjarez instructed Abdygapparova to take money from Rosado's purse and pay for a room. Hernandez and Minjarez then took Rosado into the room. Abdygapparova said that when she entered the room, Minjarez instructed her to go buy bleach and some douches. Abdygapparova returned about ten or fifteen minutes later. Rosado was alive and half-naked. She and Hernandez talked in the bathroom while Minjarez raped the victim. Hernandez told her to go buy a shovel at Wal-Mart. Abdygapparova, a University of Texas at San Antonio student from Kazakhstan, testified that at the time, she did not know the meaning of the word "shovel" and had to ask for assistance at Wal-Mart.

According to Hernandez's confession, he saw Minjarez sitting on top of Rosado, holding a pillow over her head. He then went outside to make sure no one was around. When he re-entered the room ten minutes later, Rosado was dead. Abdygapparova testified that when she returned from Wal-Mart to the motel room, Minjarez told her Rosado was "gone." Abdygapparova asked if that meant she was killed, and he said "yes, she is gone." She then saw Rosado's dead, naked body on the floor.

Hernandez and Minjarez then collected everything from the room, wrapped the victim in a blanket, and placed her body in the back seat of the car. With Abdygapparova driving, Hernandez directed her to a wooded area near the University of Texas at San Antonio. She dropped them off and was told to return in thirty minutes. When she returned, they asked her to leave again. After a short time, she returned once more and picked them up. Hernandez and Abdygapparova then disposed of Rosado's personal possessions by burning them or tossing them from the car as they drove back to Hernandez's residence. On 2 April, Abdygapparova took the car used in the murder to Austin and traded it for another vehicle.

On 5 April, Abdygapparova contacted authorities and told them about the murder. She led police to the body, the motel, and the car. She said she was too afraid of the men, especially Minjarez, to disobey them. Hernandez initially denied participating in the crime, but the day after he was arrested, he asked to speak to detectives and gave a confession.

In March 1991, Hernandez pleaded guilty to three counts of burglary of a habitation with intent to commit theft. In the third incident, which occurred in January 1991, Hernandez and Minjarez lured Danny Zapata to Hernandez's apartment by inviting him to watch a pornographic movie. While they were inside, Hernandez left and locked them in from the outside. He then went to Zapata's apartment and raped his wife, Anna Marie Diaz. Diaz testified that she and Hernandez had been friends for many years. Hernandez was sentenced to 18 years in prison. He was paroled after three years.

In March 1994, Hernandez and Minjarez were observed burglarizing a home. Hernandez led police on a high-speed chase, which ended when he crashed his car in a drainage ditch. He and Minjarez attempted to flee on foot, but Hernandez was apprehended. He was charged with burglary, but the charges were dismissed for insufficient evidence.

In December 1994, Sarah Gonzales, 12, and her cousin, Priscilla Almares, 13, were abducted in San Antonio. Their bodies were found the next day in the brush by a road. Both had been raped and asphyxiated. The murders went unsolved until 2001, when a DNA test matched sperm found in Gonzales' body to Hernandez. Hernandez was also a suspect in the killings of two 15-year-old San Antonio girls who disappeared within days of Gonzales and Almares.

On August 2002, while awaiting trial for Rosado's murder, Hernandez went missing from his jail cell. A makeshift dummy was found in his cell. He was discovered in another cell, which had a hole carved through some cinder block and bricks, leading to the parking lot.

A jury convicted Hernandez of capital murder in October 2002 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in March 2005. All of his subsequent appeals in state and federal court were denied.

Santos Minjarez was convicted of capital murder and sentenced to death. He died from an illness in January 2012.

Asel Abdygapparova was convicted of capital murder in 2005 and was sentenced to life in prison. A federal court ruled in 2007 that she did not receive a fair trial, and overturned the conviction. As of March 2012, she was still in custody awaiting retrial. Her and Hernandez's son, Ramon, now lives with his older step-sister in Kazakhstan.

In his last statement at his execution, Hernandez expressed love to his brother, who watched from a viewing room, and said he was "sorry for putting you through all this." He also glanced at relatives of Rosa Rosado, Sarah Gonzalez, and Priscilla Almares and said, "I'm very sorry for all the pain." He also encouraged the other prisoners on death row to "keep fighting; don't give up." The lethal injection was then started. He was pronounced dead at 6:38 p.m.

Houston Chronicle

"Man put to death for Texas woman's 2001 slaying," by Michael Graczyk. (Associated Press November 14, 2012 8:18pm)

HUNTSVILLE, Texas (AP) — A registered sex offender was put to death Wednesday for the rape, robbery and slaying of a woman abducted from a San Antonio bus stop 11 years ago. Ramon Torres Hernandez was one of three people convicted in the killing of Rosa Maria Rosado, 37, who was pulled into a car Hernandez was driving after she refused to let go of her purse during a drive-by robbery.

Hernandez, 41, told a family member he was "sorry for putting you through all this" after a warden asked if he wanted to make a final statement. "Tell everybody I love them," the condemned inmate said, directing his words at his brother who was standing nearby in the death chamber and watching through a window that separated him from Hernandez. Glancing briefly at relatives of his victim, Hernandez said: "I'm very sorry for all the pain." Then he urged other prisoners on death row to "keep fighting; don't give up." He took several breaths as the lethal dose of pentobarbital took effect, then began snoring quietly. Within a minute, all movement stopped. His time of death was announced as 6:38 p.m. CST, 26 minutes after the drug began flowing into his arms.

Hernandez became the 14th inmate executed this year in Texas. Another inmate, Preston Hughes III, is scheduled for lethal injection Thursday for a 1988 double slaying in Houston.

The U.S. Supreme Court refused last month to review Hernandez's death sentence and a late appeal filed earlier Wednesday was rejected by the Texas Court of Criminal Appeals. Hernandez, who was on parole at the time of his arrest in Rosado's death, also was a suspect in the slayings of three teenagers and a 12-year-old girl.

According to court records, Hernandez told police that he was driving around San Antonio with his pregnant girlfriend and a friend from prison looking for someone to rob when they saw Rosado at a bus stop on March 31, 2001. Hernandez said his friend, Santos Minjares, grabbed Rosado's purse. When she wouldn't let go, he pulled her into the car. They taped Rosado's mouth shut, covered her head with a towel and rented a motel room, where they raped and eventually killed her. Five days later, Hernandez's girlfriend, Asel Abdygapparova, contacted police and led them to the body. Police tied Hernandez to the crime in part with a shovel that he sent Abdygapparova to buy to bury Rosado. Her body was found in a shallow grave.

Hernandez and Minjares ended up on death row, where Minjares died in January of septic shock and multiple organ failure. Abdygapparova, a University of Texas at San Antonio graduate student from Kazakhstan, received a life sentence. She gave birth in jail following her arrest. At the time of Hernandez's arrest, he was a registered sex offender on parole from an 18-year sentence after admitting in court to a burglary where a woman was raped.

Jurors at his 2002 capital murder trial learned Hernandez also was linked by DNA to the 1994 sexual assaults and slayings of Sarah Gonzales, 13, and her cousin, Priscilla Almares, 12, in the same San Antonio area where Rosado was abducted. "We're not cruel people, we don't want to have to watch somebody die," Brenda Ayala, Almares' sister, said after witnessing Hernandez's execution. "It doesn't give us happiness at all. If anything, I feel sorry for his family and they're going to have to feel what we felt when we lost our loved ones." He was a suspect in the killings of two 15-year-old girls west of San Antonio as well. They disappeared within days of the Gonzales and Almares slayings.

Hughes, set to follow Hernandez to the death chamber, was convicted of the 1988 stabbing deaths of Shandra Charles, 15, and her 3-year-old cousin Marcell Taylor. They were attacked in a field behind an apartment complex where Hughes lived. Hughes, 46, claims police planted evidence and coerced his confession. He and his appeals attorney, who Hughes has sought to fire, have multiple appeals pending in state and federal courts to put off Thursday's planned execution. Police responding to a passer-by's call about a body in the field found Charles still alive. The teen told an officer that "Preston" had tried to rape her. Authorities went to the nearby apartments and determined that Hughes was the only resident with that first name. Hughes, who knew Charles through a friend, denied any involvement in her death. However, he made statements while in police custody that implicated him, one of his trial attorneys recalled this week. "We did what we could with what we had. ... I could say he convicted himself," defense attorney Ellis McCullough said. But Hughes has insisted he is innocent. "The fact is I didn't kill anyone," he told The Associated Press last month from death row.

Huntsville Item

"San Antonio sex offender put to death," by Cody Stark. (November 15, 2012)

HUNTSVILLE — A San Antonio man was put to death Wednesday for the kidnapping, rape and murder of a 37-year-old woman taken from a bus stop during an attempted robbery 11 years ago. Ramon Torres Hernandez, 39, was pronounced dead at 6:38 p.m., 26 minutes after the lethal dose was administered. His lawyers had filed an appeal earlier Wednesday, but it was denied, paving the way for his execution for the murder of Rosia Maria Rosado in 2001.

Hernandez turned his head and addressed his brother, Daniel Hernandez, after the warden asked him if he had a final statement. “Did I ever tell you, you have Dad’s eyes? I have noticed that in the last couple of days,” Ramon Hernandez said. “I’m sorry for putting you through all of this. Tell everyone I love them. It was good seeing the kids. I love them all, tell mom, everybody. I am very sorry for all the pain.”

Hernandez, who was also a suspect in four other murders, was the 14th inmate executed in Texas this year. Another inmate, Preston Hughes III, is scheduled for lethal injection today for a double slaying in Houston in 1988.

The U.S. Supreme Court refused last month to review Hernandez’s death sentence and a late appeal filed Wednesday morning was rejected by the Texas Court of Criminal Appeals. Hernandez contended he had new evidence that showed his appeals lawyers earlier in the process were deficient, but the appeals court said his claim involved no new evidence and was improperly filed.

According to court records, Hernandez told police that he was driving around San Antonio with his pregnant girlfriend and a friend from prison looking for someone to rob when they saw Rosado at a bus stop on March 31, 2001. Hernandez said his friend, Santos Minjares, grabbed Rosado’s purse. When she wouldn’t let go, he pulled her into the car. They taped Rosado’s mouth shut, covered her head with a towel and rented a motel room, where they raped and eventually killed her. Five days later, Hernandez’s girlfriend, Asel Abdygapparova, contacted police and led them to the body. Police tied Hernandez to the crime in part with a shovel that he sent Abdygapparova to buy to bury Rosado. Her body was found in a shallow grave.

Hernandez and Minjares wound up on death row, where Minjares died in January of septic shock and multiple organ failure. Abdygapparova, a University of Texas at San Antonio graduate student from Kazakhstan, received a life sentence. She gave birth in jail following her arrest. At the time of Hernandez’s arrest, he was a registered sex offender on parole from an 18-year sentence after admitting in court to a burglary where a woman was raped.

Jurors at his 2002 capital murder trial learned Hernandez also was linked by DNA to the 1994 sexual assaults and murders of a 13-year-old girl and her 12-year-old cousin in the same San Antonio area where Rosado was seized. He is a suspect in the slayings of two 15-year-old girls west of San Antonio as well. They disappeared within days of the cousins’ slayings.

Hughes, 46, was scheduled to follow Hernandez to the death chamber 24 hours later for the 1988 stabbing deaths of Shandra Charles, 15, and her 3-year-old cousin Marcell Taylor. They were attacked in a field behind an apartment complex where Hughes lived. Hughes has insisted he is innocent and claims police planted evidence and coerced his confession. He and his appeals attorney, who Hughes has sought to fire, have multiple appeals pending in state and federal courts to put off the execution. Police responding to a passerby’s call about a body in the field found Charles still alive. She told an officer that “Preston” had tried to rape her. Authorities went to the nearby apartments and determined that Hughes was the only resident with that first name. Hughes, who knew Charles through a friend, denied any involvement in her death. However, he made statements while in police custody that implicated him, one of his trial attorneys recalled this week. “If there was a bad guy, he was one of them,” defense attorney Ellis McCullough said. “When we looked into his eye, it looked like staring into the pit of evil. “We did what we could with what we had. ... I could say he convicted himself.” Evidence tested for DNA at Hughes’ request after his conviction found traces of Charles’ blood on his clothing, prosecutors said. At trial, prosecutors showed Charles’ glasses were found on a couch in Hughes’ apartment. He insisted the evidence was planted. “The fact is I didn’t kill anyone,” Hughes told The Associated Press last month from death row.

San Antonio Express

"Dying killer focuses on his brother," by Michelle Mondo. (Wednesday, November 14, 2012)

HUNTSVILLE — Looking at his brother, the only member of his family to witness his execution Wednesday, Ramon Hernandez asked him to tell everyone he loved them. “Did I ever tell you, you have dad's eyes?” Hernandez said to his brother. His brother, standing close to the glass and crying said: “I love you.” Hernandez, called a serial rapist and murderer by prosecutors, was pronounced dead at 6:38 p.m., 26 minutes after the lethal dose of drugs began flowing.

A jury sentenced Hernandez to death for the 2001 abduction, rape and strangulation slaying of Rosa Maria Rosado, 37, a single mom who was snatched from a West Side bus stop. Hernandez's girlfriend at the time, Asel Abdygapparova, led police to Rosado's body five days later. She had been buried in a shallow grave by Loop 1604 and UTSA Boulevard. Abdygapparova was given life in prison, and a third co-defendant, Santos Minjarez, was given the death penalty. He died in January from natural causes before his execution date was set. Abdygapparova's sentence was overturned in 2007 and she remains in Bexar County Jail, awaiting a new trial.

During the investigation into Rosado's homicide, authorities linked Hernandez through DNA to another high-profile case from the mid-1990s. In that case, Sarah Gonzales, 13, and her cousin Priscilla Almares, 12, were reported missing Dec. 16, 1994, then found the next day in Rodriguez Park. They had been raped, beaten and strangled. Family members of Priscilla and Rosado also witnessed the execution. Standing up to the glass, Priscilla's sister Brenda Ayala had tears in her eyes as Hernandez spoke his last words.

He was strapped to the gurney just after 6 p.m. and began his last statement at 6:11 p.m. “I'm sorry for putting you through all of this ...,” he said, looking at his brother. “I am very sorry for all of the pain. I love them all, tell mom, everybody.” After Hernandez appeared to stop breathing, his brother had to turn away for several minutes. He was supported by three spiritual advisers.

Ayala spoke after the execution and said she had hoped Hernandez would have apologized directly to the families of his victims but instead focused on just his brother. Ayala, sitting with her father Marcos Almares, said the family didn't find closure in the execution. “We're not cruel people; we don't want to have to watch somebody die,” she said. “It doesn't give us happiness at all. If anything I felt sorrow for his family. They'll have to feel what we felt.” Rosado's family — her two sisters and a brother-in-law — didn't speak to the media. Attempts to reach Hernandez's family weren't successful.

Hernandez's was the first of two executions scheduled this week — Preston Hughes, 46, of Harris County faces injection today.

Reuters News

(Reuters) - Texas on Wednesday executed a San Antonio man convicted of kidnapping a single mother from a bus stop, then robbing, raping and murdering her. Ramon Torres Hernandez, 41, was convicted in the 2001 death of 37-year-old Rosa Maria Rosado. Hernandez was pronounced dead by lethal injection at 6:38 p.m. local time at the state penitentiary in Huntsville, Texas, according to the state department of corrections. He was the 39th execution in the United States this year and the 14th in Texas.

"I'm sorry for putting you through all of this. Tell everyone I love them," Hernandez said, as part of a brief final statement, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice. "To everybody back on the row, I know you're going through a lot over there. Keep fighting, don't give up, everybody," he quoted Hernandez as saying.

Hernandez had also been linked to the rapes and murders of two teenage girls in the 1990s and was considered the prime suspect in the killings of two others in a nearby county. A DNA test linked Hernandez to the similar rape and murder of cousins Sarah Gonzales, 13, and Priscilla Almares, 12, in 1994, according to an account by the Texas Attorney General's Office. According to recent news reports, officials in Bandera County, south of San Antonio, also considered him a prime suspect in the deaths of teens Jennifer Taylor and Laura Gamez, who disappeared a month before Gonzales and Almares.

Hernandez was one of three people convicted in the attack on Rosado, the crime for which he was executed. Also involved were Santos Minjarez, who was sentenced to death but died of an illness on death row in January 2012. Hernandez's girlfriend, Asel Abdygapparova, 42, was sentenced to life in prison and will be eligible for parole in 2045.

In March 2001, the three were riding in a car when Rosado was abducted at a bus stop and yanked inside the car, according to an account by the Texas Attorney General's Office. The men tried to take her purse and demanded money, but she insisted she had none, according to the attorney general's account. Rosado was taken to a motel, where she was raped and strangled to death, according to the account. During the ordeal, Abdygapparova, a master's student from Kazakhstan, was sent to a nearby store to buy a shovel, state officials said.

Five days later, Abdygapparova told police what had happened and led them to the bus stop, the motel and to Rosado's body - which was buried in a shallow grave near the University of Texas-San Antonio campus. Abdygapparova, who was five months pregnant with Hernandez's child at the time of the killing, told authorities she feared for her life and was coerced into taking part. She said she did not know which man had killed Rosado, the attorney general's office said.

Hernandez confessed to witnessing the attack but said Minjarez was the killer.

Texas Coalition to Abolish the Death Penalty

ProDeathPenalty.Com

Ramon Hernandez was classified as a sex offender in 1991 after admitting in court to breaking into a house intending to commit sexual assault. Hewas indicted on one count encompassing several crimes, including killing Rosa Rosado (a) as part of a common scheme or course of conduct along with killing two middle school girls in 1994, (b) in the course of an aggravated sexual assault, (c) in the course kidnapping her, and (d) in the course of robbing her. Relating to the common-scheme aspect of the one-count indictment, two middle school girls, cousins Sarah Gonzales and Priscilla Almares, were abducted in San Antonio a week before Christmas, in December 1994. They were walking to a friend's holiday party. The next day, their bodies were found in the brush by a road. Both had been sexually assaulted and asphyxiated. An anal swab of Gonzales found sperm, but a vaginal slide found none. DNA testing could not match the sperm at the time, but a 2001 test showed Hernandez’s DNA was a match.

Relating to the remaining parts of the indictment, Rosado disappeared in San Antonio in March 2001. The facts are in dispute, but according to Hernandez’s confession, while driving with his pregnant girlfriend, Abel Abdygapparova, Hernandez, and fellow parolee Santos Minjarez saw Rosado at a bus stop in the same area of town where the young girls were kidnapped years earlier. Minjarez tried to grab Rosa's purse, and when she resisted, he pulled her into the car and covered her head, and Hernandez drove away. They stopped at Hernandez’s house to get tape to bind Rosa, gagged her, and went to a motel, where she was raped and killed. Her body was cleaned using bleach and a douche. Abdygapparova was sent to get a shovel, which was used to bury the body. Hernandez and Abdygapparova took Rosado’s possessions and items used to cover her and burned them or dispersed them by tossing them from the car as they drove after her death. Two crucial statements were made to police. Abdygapparova provided a written statement of the abduction, robbery, sexual assault, and murder of Rosado. She also led police to the body, the motel where the events occurred, and the car she had sold after using it in the crime. Although Hernandez initially denied participating and asked for an attorney, thus ending his first interrogation, the next day he asked to speak to the detectives again. He gave a statement confessing to participation in the crime but saying it was Minjarez who had raped and killed Rosado.

A jury found Hernandez guilty of the crimes charged in the indictment, and he received a sentence of death. Minjarez was also sentenced to death and died on death row in January 2012 of septic shock and multiple organ failure. Abdygapparova received a life sentence in the crime and gave birth in jail. Her sentence was overturned in 2007 and she remains in the county jail awaiting a new trial. UPDATE: Family members of Priscilla and Rosado also witnessed the execution. Standing up to the glass, Priscilla's sister Brenda Ayala had tears in her eyes as Hernandez spoke his last words.

Hernandez v. State, 931 S.W.2d 49 (Tex.Crim.App. 1996). (Direct Appeal)

Defendant was convicted in the Criminal District Court, Tarrant County, Lee Ann Dauphinot, J., of murder and attempted murder, and he appealed. The Court of Appeals, Chuck Miller, J. (Assigned), held that: (1) prosecutor's argument at conclusion of guilt stage of trial referring to question asked by defense counsel during voir dire was proper, and (2) prosecutor's argument at punishment phase of trial stating that it was the state's position that case was not indicative of a probated sentence was proper. Affirmed.

CHUCK MILLER, Justice (Assigned).

Appellant, Ramon Hernandez, was charged in two indictments with the offenses of murder and attempted murder. Tex. Penal Code Ann. §§ 15.01, 19.02 (Vernon 1994). Hernandez pled not guilty to a jury, and after hearing evidence, the jury found Hernandez guilty and assessed his punishment at 99 years confinement in the murder case and 20 years confinement in the attempted murder case, both to be served in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Hernandez brings two points of error complaining that the prosecutor committed reversible error during final argument at both the guilt stage and the punishment phase of the trial. We affirm.

The evidence admitted at trial showed that Hernandez murdered a woman, with whom he was having a rocky, dysfunctional relationship, after the woman professed to having a relationship with another man. In the process of committing this crime, he shot the deceased's roommate, but she survived the assault. After these crimes, he led the police on a high speed chase and kept them at bay in a stand off for a lengthy period of time. During argument at the conclusion of the guilt stage of the trial the prosecutor made the following complained-of argument: [Defense counsel] covered this in voir dire. He talked about intense moments. He asked specific questions. Have you ever had an intensity that made you very angry? Were you still in control of your mental faculties? And the answer was yes. Hernandez's objection to this remark was sustained, the jury was instructed by the judge to disregard the remark, and Hernandez's motion for mistrial was denied. On appeal, Hernandez maintains that this argument improperly directed the jury's attention to matters that were not in evidence since they were brought out on voir dire.

In dealing with the first point of error, we begin with Alejandro. In that case from Tarrant County, the permissible areas of final argument were laid out thusly: To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney. Alejandro v. State, 493 S.W.2d 230, 231–32 (Tex.Crim.App.1973) (citations omitted).

Additionally, in McFarland the Court of Criminal Appeals stated, “the jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error.” McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993) (quoting Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988)). Even if an erroneous argument is made, the harm from improper arguments will, in most cases, be cured by the sustaining of an objection and a curative instruction to the jury to disregard the remarks. Spears v. State, 801 S.W.2d 571, 579 (Tex.App.—Fort Worth 1990, pet. ref'd). In this case, the prosecutor was referring to a question Hernandez's attorney asked a venire woman, who was later chosen to sit on the jury, during voir dire. The venire woman answered that she had maintained control of her mental facilities once when she had become very angry. We have doubts that this was even an improper argument. In Villarreal, the Waco court of appeals was faced with a prosecutor's final argument that referred to voir dire remarks, made by the defense attorney, about sympathy. The Waco Court held that: [T]he statements made by the prosecutor in this case were made in response to comments made by defense counsel during voir dire. When taken in context, this argument is clearly the type of response considered proper under Alejandro. Villarreal v. State, 860 S.W.2d 647, 649 (Tex.App.—Waco 1993, no. pet.).

We agree with the holding of the Waco court of appeals and further believe that the “answer to argument of opposing counsel” language in Alejandro allows the commenting on and answering of opposing counsel's remarks made during the voir dire as well as made during final argument. Alejandro, 493 S.W.2d at 231–32.

In this case we believe the prosecutor was clearly answering remarks made by defense counsel during voir dire, and that this was a permissible argument under Alejandro. In any event we find that it was not the type of argument that could not be cured by the trial court's prompt instruction to disregard. Spears, 801 S.W.2d at 579; Harris v. State, 790 S.W.2d 568, 578–88 (Tex.Crim.App.1989). Point of error number one is overruled. During the final argument at the punishment phase of the trial the following argument was made by the prosecutor: What that means is, if you sentence him to ten years or less for either crime, then if you want to recommend to the Court probation, you sign the verdict form that talks about probation. The State is going to tell you right here and now, in no uncertain terms, that it is the State's position that this case—both cases are absolutely in no way indicative of a probated sentence. The murder of [victim] and attempted murder of [victim] are not probation cases. To this argument also, Hernandez's objection was sustained, the jury was instructed by the judge to disregard the remark, and Hernandez's motion for mistrial was denied. On appeal, Hernandez maintains that this was an improper statement of personal opinion by the prosecutor. We have dealt with remarkably similar arguments from the prosecution recently and also in the past. In Frias the argument by the prosecutor was, “I don't think probation is appropriate and I don't think that you think probation is appropriate.” Frias v. State, 775 S.W.2d 871, 875 (Tex.App.—Fort Worth 1989, no pet.). In Frias we found that this, in context, was a mere summation of the evidence in the form of a conclusion that, in the State's view, probation was not appropriate. Id. Frias was recently cited in Maupin, where we stated: The cases are legion saying that it is improper for a prosecutor to inject personal opinion in statements to the jury. .... No matter how couched, however, the remarks of a prosecutor, speaking for the State, can often be construed as giving an opinion about what a verdict should be or what a proper punishment should be. ....

Thus we perceive that there is often more to the prohibition against giving personal opinion than would be indicated by the literal meaning of the prohibition. When phraseology that sounds like personal opinion, such as the above, is, either overtly or inferentially, combined with special expertise, it is that combination that is prohibited.... However the prohibition is couched, it is clear that it is improper for a prosecutor to give a personal opinion that is also, impliedly or overtly, based on his expertise as a prosecutor or based on some other special knowledge possessed by the prosecutor. Maupin v. State, 930 S.W.2d 267, 269–70 (Tex.App.—Fort Worth 1996, n.w.h.) (citations omitted).

The complained-of argument in Maupin was: [PROSECUTOR]: Ladies and gentlemen, I told you I was appalled in closing argument and I'm appalled now, that he would get up here and ask you for something in the middle. Because ten years is what this man deserves. He thinks you are fools. Id., 930 S.W.2d at 269. We held, after an exhaustive look at the prohibition against giving personal opinion in final argument, that: [W]e do not read the prosecutor's remarks as either expressing a personal opinion or as implying special expertise. The prosecutor in very plain words gave the position of the State of Texas in the case, and that position was that these were not probation cases. We feel, as we did in Frias, that this argument did not violate the prohibition contained in the above cited cases. Id., 930 S.W.2d at 270.

Just as in Frias and Maupin, we believe that in this case the complained-of argument was not violative of this general prohibition, and was proper under Alejandro. The prosecutor did not even use the first person context in telling the jury what the position of the State was with regards to probation. We believe that the argument, on its face, was proper. Hernandez's second point of error is overruled. The judgment of the trial court is affirmed.

Hernandez v. Thaler, 463 Fed.Appx. 349 (5th Cir. 2012). (Federal Habeas)

Background: Following affirmance of his state-court conviction for capital murder and death sentence, petitioner sought federal habeas relief. The United States District Court for the Western District of Texas, Orlando L. Garcia, J., 787 F.Supp.2d 504, denied relief. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) reasonable jurists could not disagree over whether petitioner initiated further discussion with police after his initial interrogation ceased; (2) reasonable jurists could not disagree regarding voluntariness of petitioner's confession; (3) petitioner's attorney did not engage in deficient performance with respect to developing claim that petitioner's confession was involuntary; (4) petitioner's counsel was not ineffective in deciding not to argue in pretrial motion to quash that statute under which defendant was convicted of engaging in common scheme of murder was unconstitutionally vague as applied to him; (5) Texas court was not unreasonable in concluding that defense counsel's failure to object to comment made by prosecutor during punishment phase was appropriate tactical decision; and (6) petitioner's appellate attorney was not deficient in not complaining that trial court should have admitted statement under doctrine of optional completeness. COA denied.

JERRY E. SMITH, Circuit Judge:

Ramon Hernandez filed a federal habeas corpus action to challenge his 2002 conviction of capital murder and his sentence of death. The district court denied the petition and denied a certificate of appealability (‘COA”), so Hernandez asks this court to grant one. We deny the application.

I.

Hernandez was indicted on one count encompassing several crimes, including killing Rosa Rosado (a) as part of a common scheme or course of conduct along with killing two middle school girls in 1994, (b) in the course of an aggravated sexual assault, (c) in the course kidnaping her, and (d) in the course of robbing her. Relating to the common-scheme aspect of the one-count indictment, two middle school girls, Sarah Gonzales and Priscilla Almares, were abducted in San Antonio in December 1994. The next day, their bodies were found in the brush by a road. Both had been sexually assaulted and asphyxiated. An anal swab of Gonzales found sperm, but a vaginal slide found none. DNA testing could not match the sperm at the time, but a 2001 test showed Hernandez's DNA was a match. Relating to the remaining parts of the indictment, Rosado disappeared in San Antonio in March 2001. The facts are in dispute, but according to Hernandez's confession, while driving with his girlfriend, Abel Abdygapparova, Hernandez, and Santos Minjarez saw Rosado at a bus stop. Minjarez tried to grab her purse, and when she resisted, he pulled her into the car and covered her head, and Hernandez drove away. They stopped at Hernandez's house to get tape to bind Rosado, gagged her, and went to a motel, where she was raped and killed. Her body was cleaned using bleach and a douche. Abdygapparova was sent to get a shovel, which was used to bury the body. Hernandez and Abdygapparova took Rosado's possessions and items used to cover her and burned them or dispersed them by tossing them from the car as they drove after her death. Two crucial statements were made to police. Abdygapparova provided a written statement of the abduction, robbery, sexual assault, and murder of Rosado. She also led police to the body, the motel where the events occurred, and the car she had sold after using it in the crime. Although Hernandez initially denied participating and asked for an attorney, thus ending his first interrogation, the next day he asked to speak to the detectives again. He gave a statement confessing to participation in the crime but saying it was Minjarez who had raped and killed Rosado. A jury found Hernandez guilty of the crimes charged in the indictment, and he received a sentence of death.

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal appellate courts do not obtain jurisdiction over a habeas case unless a COA has been granted. Moore v. Quarterman, 517 F.3d 781, 783 (5th Cir.2008). The district court denied a COA, so for this court to grant one, we must find that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). Hernandez raises several arguments on appeal, but none deserves encouragement to proceed. Hernandez argues that his confession was involuntary and thus inadmissible. He was first questioned after Detective Carian arrested him and read him his rights. During that questioning, Hernandez denied participating in the murder of Rosado and eventually asked for his lawyer, at which point the interrogation ceased. FN1. Hernandez mentions in his brief that his initial requests for a lawyer were ignored, but he does not argue it here. He raised this issue at trial in an attempt to block admission of the confession, but the point was rejected.

Hernandez was then booked into jail and given Prozac. He said that he then asked for a doctor, and when he became insistent, the mental health social worker called a detention officer. Hernandez also claims that he was experiencing a panic attack from then through his interrogation by Carian, because he was suffering from withdrawal from the drug Klonopin. He had been taking Klonopin for PTSD and anxiety disorder until his doctor recently tried to wean him off it. Hernandez testified that he resisted the reduction of Klonopin by getting some from his uncle, but eventually that ran out, and he began experiencing withdrawal. The trial court denied the motion to suppress, and each subsequent court has found the confession voluntary. Custodial statements are admissible if the accused (1) initiated further discussion with the police and (2) knowingly and intelligently waived the previously invoked right. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Hernandez's claim that he asked for the doctor but was instead brought to speak with detectives is an argument that he did not initiate that discussion. The mental health worker testified, however, that Hernandez came to her and said he wanted to get something off his chest. The booking sergeant the social worker contacted, who then called Carian, testified that he would not have known Hernandez wanted to speak with Carian unless Hernandez had identified Carian. Furthermore, when detectives arrived to speak to Hernandez, he did not act surprised to see them or resist speaking, and as soon as Carian asked him “what's up,” Hernandez began discussing the case.

To counterbalance that weighty evidence from multiple witnesses, Hernandez offers only his testimony that he asked for a doctor. Because the trial court's credibility determination has already gone against him, in light of the totality of the circumstances, reasonable jurists could not disagree over whether Hernandez initiated further discussion with the police. Nor could reasonable jurists disagree on whether Hernandez's waiver was knowing and voluntary. Contesting the voluntariness of a confession requires the defendant to show—looking at the totality of the circumstances—that but for the police coercion, he would not have confessed. Muniz v. Johnson, 132 F.3d 214, 219 (5th Cir.1998). Hernandez's argument that his confession was involuntary revolves around his suffering Klonopin withdrawal. He argues that he confessed because it was the only way he would get more Klonopin. For a confession to be rendered involuntary because of mental condition, there must be coercive activity by the police. Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). No evidence suggests the police withheld medical treatment. First, according to Hernandez's physician, Dr. Stowe, Prozac should have been enough to treat him, and Hernandez was given Prozac. Also, neither detective had authority to withhold medical treatment at the jail. Despite Hernandez's testimony that he was having an anxiety attack during the first interview and was sweating profusely, shaking uncontrollably, and felt blood pulsing through his hands, no witnesses testified to Hernandez's showing outward symptoms. Additionally, his vitals were normal when checked on his admittance to jail.

The only evidence supporting Hernandez's claim that he was experiencing withdrawal symptoms was his and his mother's testimony that when he called her, he sounded as though he was having a panic attack. Again, the trial court, which had the chance to weigh the witnesses' credibility in live testimony, found Hernandez less credible. Considering the totality of the circumstances, reasonable jurists could not disagree regarding the voluntariness of the confession. Hernandez also contends that he received ineffective assistance of counsel because his trial counsel did not develop the claim that his confession was involuntary on account of Klonopin withdrawal. To succeed on a claim of ineffective assistance, the defendant must show deficient performance and that the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Taking AEDPA deference into account, the question becomes whether there is any reasonable argument that counsel satisfied the Washington standard. Premo v. Moore, –––U.S. ––––, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011) (quoting Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). Neither prong of Washington is satisfied. Performance is deficient where, given all the circumstances, it falls below an objective standard of reasonableness. Washington, 466 U.S. at 688, 104 S.Ct. 2052. Professional norms play a role in the determination, but overall there are multiple ways effective assistance can be provided, and the court's examination must be highly deferential in favor of counsel's having been effective. Id. at 689–91, 104 S.Ct. 2052. Part of being effective counsel includes investigating substantial lines of defense. Id. at 680–81, 104 S.Ct. 2052. Demonstrating prejudice requires the defendant to show that but for that objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

Hernandez's trial counsel conducted an appropriate investigation and reasonably did not pursue the withdrawal defense. Nothing in Hernandez's medical record indicates that he was experiencing Klonopin withdrawal; the record shows—to the contrary—that he had been successfully weaned off the drug. Additionally, none of the witnesses gave any indication that Hernandez was displaying symptoms of Klonopin withdrawal. Finally, Hernandez never told his trial counsel he was experiencing withdrawal symptoms during questioning. At the suppression hearing, counsel demonstrated that he had reviewed Hernandez's medical records by asking cross-examination questions about Hernandez's medical condition, but based on the evidence provided to Hernandez's trial counsel, he reasonably did not find that arguing that the confession was involuntary because of Klonopin withdrawal was a viable defense. Nor can Hernandez demonstrate prejudice. All the previously described evidence weighed in favor of finding the confession voluntary. Hernandez's vitals upon entering prison showed no Klonopin withdrawal, no witness recalled any visible symptoms, and there is nothing besides Hernandez's own testimony to suggest the police deliberately withheld Klonopin to obtain a confession. Though Hernandez was given Klonopin after he confessed, he admitted that he specifically requested it, and his testimony suggested he believed he could have gotten any drug that he could convince the prison staff would keep him calm. With the evidence against Hernandez, even if counsel had presented the medical evidence and testimony regarding Klonopin withdrawal, Hernandez cannot show a substantial probability that the result would have been different.

III.

Hernandez maintains that his counsel was ineffective for not arguing that the statute under which he was convicted of engaging in a common scheme by murdering the school girls and Rosado was unconstitutionally vague as applied to him. Because Hernandez's claim is for ineffective assistance of counsel, the question on appeal is whether his lawyer should have argued, in a motion to quash, that the law was unconstitutionally vague as applied to Hernandez. The Court of Criminal Appeals held that Hernandez's argument was not cognizable in a pretrial motion to quash the indictment, because the argument relied on evidence from the trial, and one can quash only indictments that are insufficient on their face. A federal habeas court is bound by a state court's interpretation of state law and so generally cannot second-guess such state court determinations. FN2. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Young v. Dretke, 356 F.3d 616, 628 (5th Cir.2004) (“[W]e cannot review the correctness of the state habeas court's interpretation of state law.”).

Attempting to defeat the argument that Texas courts procedurally bar such a claim, Hernandez reminds us that only firmly established and regularly followed state procedural rules will prevent federal review. Ford v. Georgia, 498 U.S. 411, 423–24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Ford does not help Hernandez, however, because this procedural bar is regularly applied. The Texas court cited multiple cases that say a motion to quash cannot be supported by evidence.FN3 Even if in Corwin v. State, 870 S.W.2d 23 (Tex.Crim.App.1993) the court considered the question on the merits rather than dismissing it according to the procedural bar, Hernandez has not provided any other cases in which the procedural bar was so bypassed. Occasional lapses in an otherwise regularly applied rule do not invalidate a state's procedural bar. FN4 Because Texas precedent shows that Texas courts regularly find such claims barred, Ford offers Hernandez no support. Thus, his attorney was not ineffective for deciding against raising this claim in favor of presenting a different argument he believed was more meritorious.

FN3. E.g., State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1994) (dissenting op. adopted on reh'g); Woods v. State, 153 S.W.3d 413, 415 (Tex.Crim.App.2005); Carpenter v. State, 477 S.W.2d 22, 23 (Tex.Crim.App.1972). FN4. See Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir.2000) (noting a procedural bar was previously held adequate because it was “strictly or regularly applied evenhandedly to the vast majority of similar claims” (quoting Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.1998))).

IV.

Hernandez avers that his trial counsel was ineffective for not objecting to the prosecutor's statement during closing that suggested the victim's families would want a death sentence. During the punishment phase of trial, Hernandez called a string of family members as witnesses who pleaded that his life be spared. In its closing arguments at the punishment phase, the prosecution responded to the emphasis on that testimony by saying: And I respectfully suggest to you, and I want to commend all these folks for how well they behaved throughout this trial. And don't you know that if they could, they would stand up here and cry and tell you what the believe the proper answer to those questions is, are?

Under Texas law, the wishes of the victim's family regarding the defendant's punishment are not admissible. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003). Therefore, if this comment was indicating that the families would want the death penalty, then it was objectionable.FN5 The question under AEDPA becomes whether there is an objectively reasonable rationale that would explain why trial counsel did not object. See Premo, 131 S.Ct. at 740. FN5. The Court of Criminal Appeals determined that the prosecutor was not necessarily referencing the families of the victims with this comment. If he was not, then the statement was not even objectionable. But for the reasons provided, even if the comment did reference the victims' families, counsel's failure to object is not ineffective assistance.

The district court correctly noted that there was an objectively reasonable rationale for not objecting to the prosecutor's passing reference. The main thrust of Hernandez's case in the punishment phase was the emotional testimony of his family's pleading for his life. Defense counsel may have thought that objecting to a passing emotional argument would have undermined the legitimacy of his own emotional appeals. The jury might have found it disingenuous to make emotional arguments and then complain when the other side tries to do the same. Counsel can choose not to make certain objections for strategic reasons to avoid focusing the jury's attention on those arguments. The court was reasonable in believing that Hernandez's lawyer may have weighed the effect of making an objection and determined that because the statement was not especially harmful, drawing additional attention to it would do more to damage his case than to benefit it.

Although Hernandez argues that Moore v. Johnson, 194 F.3d 586, 604 (5th Cir.1999), directs us to determine that his counsel made no strategic decision worthy of deference, Moore is a pre-AEDPA opinion. Id. at 590–91. AEDPA grants state court determinations more deference. Thus, instead of refusing to recognize counsel's actions as a tactical decision any time this court feels there is not enough record evidence that counsel made a considered tactical choice, a federal court considering a habeas petition can grant relief only where the state-court adjudication resulted in a decision that is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” See id. The state habeas court was not unreasonable in concluding that Hernandez's defense counsel's not objecting to that passing comment was an appropriate tactical decision. FN6. Hernandez argues that an instruction could have cleared up any misunderstanding as to why only the defense can present emotional appeals regarding the proper punishment. But it is not unreasonable that defense counsel and the court may have different opinions on how much impact the objection will have on the jury. The court may have thought an instruction explaining the law would fully resolve the matter, but the defense attorney may have felt the jury would discount his witnesses' testimony after the objection, despite an explanatory instruction. Thus, just because the court could have made an explanatory instruction to the jury does not mean the lawyer was ineffective for refusing to object.

Even if counsel was deficient in not objecting, Hernandez cannot show prejudice, which is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Harrington, ––– U.S. ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). Showing that the errors had some conceivable effect is not enough; the error must be so serious that it deprived the defendant of a fair trial the result of which was reasonable. Id. at 787–88.

The evidence against Hernandez at the punishment phase was already substantial. As the district court explained, the evidence established beyond a reasonable doubt that (1) petitioner participated in the abduction and robbery of Rosado, (2) petitioner stood guard while Minjarez sexually assaulted Rosado, (3) petitioner was present at the motel with Minjarez when Rosado was killed, (4) petitioner directed Abdygapparova to purchase the shovel used to bury Rosado's body, (5) petitioner had previously been convicted, pursuant to a guilty plea, of burglary with intent to commit sexual assault in connection with an incident in which petitioner lured his victim's husband away from home, locked his victim's husband in petitioner's apartment, and then went back to sexually assault the victim, (6) petitioner participated in numerous burglaries, at least one of which resulted in petitioner serving a prison sentence and another of which involved petitioner leading police on a dangerous, high speed, chase, (7) [petitioner] deposited his semen inside the rectum of a twelve year old girl only hours before her lifeless body was found beside that of her equally battered thirteen-year-old cousin “dumped” in the high brush in an isolated location only days before Christmas, (8) the girls' bodies and Rosado's body revealed all three had been bound, severely beaten about the head and face, violently sexually assaulted, and asphyxiated in a manner suggesting they had been unable to offer much resistance as they were strangled to death, (9) petitioner had come very close to escaping from the BCADC only weeks before the start of his trial, and (10) petitioner had never expressed any sincere remorse or contrition for his role in any of the three abductions, rapes, or murders. Memorandum opinion and order denying relief, 787 F.Supp.2d 504, 562–63 (W.D.Tex.2011).

There was also mitigating evidence, including the traumatic death of Hernandez's father when Hernandez was a teenager and the emotional pleas of his family. The first mitigating factor, however, was weakened by evidence that Hernandez engaged in delinquent behavior and fathered children out of wedlock before his father was killed. Moreover, the jury likely already believed that the victim's families wanted the man who killed their loved ones executed. Hinting that fact to the jurors does not tell them anything they did not already know. There is no reasonable probability that an instruction telling the jury to disregard the suggestion that the victim's families wanted Hernandez executed would have resulted in a different sentence.

V.

Hernandez argues his appellate counsel was ineffective for not complaining on appeal that the trial court should have admitted either Abdygapparova's written statement or hearsay testimony by Carian under the doctrine of optional completeness. To succeed on a claim of ineffective assistance of appellate counsel, a defendant must satisfy the two-prong Washington test. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The district court found two reasons why the failure to raise this objection was not ineffective assistance: (1) Counsel believed the error was not properly preserved, and (2) any error would have been harmless.

First, the district court found that it was not unreasonable for the appellate lawyer to conclude that the error had not been properly preserved. For a complaint to be preserved for appellate review, the record has to show there was a timely objection, request, or motion that stated, with particularity, the grounds for the requested ruling unless it is evident from context. Tex.R.App. P. 33.1(a). The doctrine of optional completeness states: When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. “Writing or recorded statement” includes depositions. Tex.R. Evid. 107.

The record shows that trial counsel never mentioned the rule of optional completeness when requesting that the court admit the statement. If, however, the context makes clear that optional completeness was the basis for the objection, it is still preserved. In context, the trial lawyer's arguments show he was objecting to an allegedly false impression provided by Carian's testimony under the doctrine of optional completeness. Carian testified that he told Hernandez all the information he had from Asel's statement when interrogating Hernandez. Hernandez's counsel tried to elicit that Carian had not told him that Asel did not say in her statement that Hernandez killed or raped Rosado. He explained that the purpose of that line of questioning was to correct what he felt was a false impression conveyed to the jury that Asel had told police that Hernandez, her boyfriend, had murdered Rosado. Thus, counsel made it evident that he was intending to correct what he felt was a false impression left by incomplete disclosure of Asel's previous statement to the police by seeking to have the rest of the statement admitted. Such a situation easily implicates the rule of optional completeness and was enough for the trial court to become aware that that was the basis of the objection.

Hernandez's attorney was not deficient, however, because he was justified in believing any error resulting from not admitting the rest of the statement was harmless. Appellate advocates research all available arguments and determine which are most likely to bring success, rather than raising every non-frivolous contention. Smith, 528 U.S. at 288, 145 L.Ed.2d 756. Had the remainder of Abdygapparova's statement been admitted, it would not have helped exonerate Hernandez. The statement discussed Hernandez's extensive participation in the crime. It includes his telling Abdygapparova to get a shovel (though Rosado was still alive), she asks whether they killed her when told Rosado is gone, and she was not in the room when Rosado was killed, so she cannot say whether Hernandez killed Rosado. The exchange between Abdygapparova and Minjarez, in which she asked, “Did you kill her?,” does not plainly indicate whether she was asking Minjarez whether he did it or whether, instead, he and Hernandez did it. Moreover, Hernandez's own statement reiterated his extensive participation.

The Texas law of parties further supports the harmlessness of refusing to admit Abdygapparova's full statement: (a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Tex. Penal Code Ann. § 7.02 (West 2003). Thus, even if Hernandez did not murder Rosado, he could be convicted if he aided in the ways described above.

With all the evidence of Hernandez's participation, including helping abduct Rosado, having Abdygapparova get tape to bind her, standing guard while she was sexually assaulted, and sending Abdygapparova to buy a shovel used to bury Rosado after she was murdered, it was reasonable for the appellate lawyer to conclude that an appellate court would find the trial's result would have been the same if Abdygapparova's full statement were admitted. Choosing not to plead weak arguments on appeal but to focus on those most likely to succeed forms the core of effective appellate advocacy. Smith v. Murray, 477 U.S. 527, 535–36, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Thus, even though counsel did not prevail on appeal, dropping this weak argument in favor of points he believed were stronger was a legitimate tactical decision that is not ineffective assistance.

Because of the strength of the evidence presented, and given that no part of the statement refutes Hernandez's alleged participation in murdering Rosado, Hernandez also suffered no prejudice from the court's refusal to admit Abdygapparova's statement in full. As explained, the evidence was strong enough, particularly under the Texas law of parties, that admitting the statement would not have changed the result. Though nothing in the statement directly says Hernandez killed Rosado, it does describe his participation in the crime. The closest the statement comes to exculpating him is where Abdygapparova discusses returning to the hotel after Rosado was killed:

Santos opened the door. He wouldn't let me in, but walked me back to the car. He was telling me not to go in there. I asked him why, what did they do in there. He said she is gone. I said what do you mean, you killed her? He said “yes, she is gone.” He told me to wait outside. I was waiting by the car. Santos came back out and called me to the room. I went into the room and saw her laying down on the floor. She didn't have a towel on her head anymore and she had no clothes on. That is when I saw her body. She was dead. She wasn't moving, and she didn't have the towel on her head or the tape on her wrists. Her eyes were closed, and there was some blood on the right side of her face. I couldn't tell where it was coming from. They told me they have to bury her.

Although Abdygapparova did ask Minjarez “you mean you killed her” and he answered “yes, she is gone,” before that she asked what they had done, so “you” could as easily have been plural for both Hernandez and Minjarez as it could have been Minjarez alone. Further, because Abdygapparova was buying a shovel, she was gone during the murder. Overall, nothing in the statement exculpates Hernandez. The jury already knew Abdygapparova was not present for the killing, so the full statement, showing that she indicated that Hernandez did it, adds nothing. Even if it does not say directly that he killed her, the statement describes Hernandez as a major participant and never clears him, so introducing all of it, with the other evidence, would not have changed the jury's impression that Hernandez's girlfriend turned him in to the police for this crime. Thus, even if the court should have admitted the full statement, Hernandez suffered no prejudice from its failure to do so.