Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Jermaine Herron, who is scheduled to be executed after 6 p.m. Wednesday, May 17, 2006. On April 28, 1999, Herron was convicted and sentenced to death for his involvement the shooting deaths of Betsy Nutt and her son Cody in Refugio County. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

When Jerry Nutt arrived home from work one day in the summer of 1997, he found the bodies of his wife, Betsy, and the couple’s son,” Cody, in their mobile home, located on the Dos Amigos Ranch, about ten miles north of Refugio.

A murder investigation quickly focused on Herron and another man named Derrick Frazier. Herron had previously lived in the Nutt’s home and had visited the ranch owners the day before the murders with Frazier. The ranch owner’s home had been burglarized the same day as the murders. Police later discovered much of the stolen property in either Frazier or Herron’s possession. When police searched the apartment of Jermaine Herron’s girlfriend, investigators recovered Betsy Nutt’s cell phone and a 9-millimeter handgun also stolen from the Ranch owners’ home. Firearms experts determined the gun was the murder weapon. Further, both Frazier and Herron provided a videotaped statements admitting to the crime, Herron specifically admitted to murdering Cody Nutt.

PROCEDURAL HISTORY

Aug. 8, 1997 — A Refugio County grand jury indicted Heron.

April 28, 1999 — Herron is found guilty of capital murder and following a separate punishment hearing, is sentenced of death.

Mar. 26, 2001 -– Herron filed a state writ application in the trial court, concurrent with his direct appeal.

Oct. 9, 2002 — Herron’s conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.

Nov. 13, 2002 — The Court of Criminal Appeals denied Herron’s application for state habeas relief.

Jan. 5, 2002 — Herron filed a petition for writ of habeas corpus in a U.S. district court.

Mar. 24, 2005 — The federal district court denied habeas relief.

Dec. 14, 2005 — The 5th U.S. Circuit Court of Appeals denied Herron a certificate of appealability.

Jan. 18, 2006— The trial court entered an order setting the execution date for May 17, 2006.

Mar. 8, 2006 — Herron petitioned the U.S. Supreme Court for certiorari review, petition is still pending.

Mar. 8, 2006 — Herron asked the Supreme Court for a stay of execution.

PRIOR CRIMINAL HISTORY

Herron was accused of participating in two aggravated robberies, including slitting the throat of a cab driver during a robbery, but these charges were not pursued in light of his capital murder conviction.

Houston Chronicle

"Apologetic double murderer 9th to be executed in 2006." (Associated Press May 18, 2006, 1:15AM)

HUNTSVILLE - An apologetic Texas death row inmate was executed Wednesday night for killing a woman and her son nine years ago. "I just hope this brings some kind of peace to your family," Jermaine Herron told Jerry Nutt, whose wife and son were killed. "I wish I could bring them back, but I can't. I hope my death brings peace. Don't hang onto the hate."

Herron then looked at his mother, through a nearby window. "Mama, stay strong," he said. "Lord forgive me for my sins because here I come." As the drugs began to take effect, he kept his eyes on his family. Three members of the victims' family braced their hands on each other's shoulders as they watched. Herron was pronounced dead at 7:25 p.m., seven minutes after the lethal dose of drugs began and almost an hour after the U.S. Supreme Court rejected a bid for a last-minute appeal claiming the drugs used in lethal injections cause "excessive pain."

The Texas Court of Criminal Appeals denied Herron's appeal earlier Wednesday afternoon. In a separate opinion, the court lifted the temporary stay of execution it had granted for another Texas inmate on the same issue.

Herron, 27, was the ninth prisoner put to death this year in Texas and the second of three this month. He and Derrick Frazier were convicted in the shooting deaths of Betsy Nutt, 41, and her 15-year-old son, Cody, at their home on a ranch in Refugio County. Frazier won a reprieve from the Court of Criminal Appeals after his lawyers contended a juror improperly communicated with Jerry Nutt.

Huntsville Item

"State puts Herron to death for murders," by Brian Lacy. (CNHI News Service May 18, 2006)

Despite several last-minute court appeals, Jermaine Herron was executed Wednesday night inside the Huntsville “Walls” Unit for killing a mother and son nine years ago.

Herron, 27, addressed his victims’ husband and father, Jerry Nutt, during his final statement. “I just hope this brings some kind of peace to your family. I wish I could bring them back, but I can’t,” he said. “I hope my death brings peace; don’t hang on to the hate.” Herron then looked to his mother, telling her to stay strong. “Lord, forgive me for my sins because here I come,” he said. Herron stared at the ceiling for several moments before closing his eyes and taking several deep breaths. Three members of the victims’ family braced their hands on each other’s shoulders as they watched. He then released a final, long exhale. Seven minutes later at 7:25 p.m., he was pronounced dead.

The U.S. Supreme Court rejected a bid for a last-minute appeal claiming the drugs used in lethal injections cause “excessive pain.” The Texas Court of Criminal Appeals denied Herron’s appeal earlier Wednesday afternoon. In a separate opinion, the court lifted the temporary stay of execution it had granted for another Texas inmate on the same issue.

Jerry Nutt, whose wife, Betsy, 41, and son, Cody, 15, were shot an killed by Herron on June 27, 1997, said the slow pace of the legal system is unfair punishment on victims’ families. “I’ll tell you what the cruel and unusual punishment is, it’s the victims having to wait for justice. That is what’s cruel and unusual,” he said. “Watching him die looked very easy. He went peacefully. I just hope that the terror he felt in the last hour or two of his life was just a little bit of the terror that my son felt before he shot him in the head.”

Herron and a companion, Derrick Frazier, approached Nutt at her family’s mobile home on a ranch about 10 miles outside Refugio, saying they had car trouble and needed to make a phone call. Nutt and her son were fatally shot as they were about to give the two men a ride to town. The men then used her truck to carry loot taken during a burglary from the house next door. The slain woman’s cell phone and the murder weapon, a 9 mm handgun taken in the burglary, were recovered from the apartment of Herron’s girlfriend. Herron turned himself in three days after the slayings. He and Frazier gave nearly identical confessions, but later each defendant blamed the other for the killings. Both men received the death penalty.

Herron’s appeal cited the court’s ruling Monday that halted Tuesday’s scheduled execution of Derrick Sean O’Brien, 31, for the 1993 torture slayings of two Houston teenage girls. Now that the temporary stay has been lifted, the judge in O’Brien’s case can schedule a new execution date.

Corpus Christi Caller-Times

"Just before death, area killer apologizes." (Associated Press May 18, 2006 )

A 27-year-old Refugio County man was executed Wednesday after his last appeal for a stay was denied by both the Texas Court of Criminal Appeals and the U.S. Supreme Court. Jermaine Herron was pronounced dead at 7:25 p.m. He used his final words to apologize to victims' family members who were present, The Associated Press reported.

"I just hope this brings some kind of peace to your family," Herron told Jerry Nutt, husband and father of the victims. "I wish I could bring them back, but I can't. I hope my death brings peace. Don't hang on to the hate." Herron then looked at his mother, who watched from a nearby window. "Momma, stay strong," he said. "Lord forgive me for my sins because here I come."

Herron was convicted in the 1997 murder-robbery of 41-year-old Betsy Nutt and her 15-year-old son, Cody, on a ranch in Refugio County. Derrick Frazier also was convicted in the murders. His execution was halted in April after an appeal alleging juror misconduct. An appeal filed late Tuesday on Herron's behalf, asked the Texas Court of Criminal Appeals to consider a stay based on the concern that drugs used for lethal injections cause excessive pain. The same appeal was made to the U.S. Supreme Court late Wednesday but was denied just after 6:30 p.m.

Jerry Nutt said he was frustrated and angered that Herron's execution might have been delayed because of his claims lethal injection is cruel and unusual punishment. "I'll tell you what the cruel and unusual punishment is, it's the victims having to wait for justice. That is what's cruel and unusual," he said. "Watching him die looked very easy. He went peacefully. I just hope that the terror he felt in the last hour or two of his life was just a little bit of the terror that my son felt before he shot him in the head."

Herron's appeal was similar to another made by death row inmate Derrick Sean O'Brien. An appeals court granted his stay Monday but lifted it Wednesday, clearing the way for his execution. Robert Owen, adjunct professor at the University of Texas School of Law, has taught at the school since 1998 and defended people condemned to death in Texas and federal courts since 1989. Owen said many people are waiting on a decision from the Supreme Court on a Florida case alleging that lethal injection is cruel and unusual punishment. But whatever the outcome, which is expected in July, it might not have an affect on the cases of Texas death row inmates. "For technical and legal reasons what the Supreme Court does may not dictate what the (Texas) Criminal Court of Appeals does," Owens said.

Herron's request to the Supreme Court for a review of his case was turned down Monday. The drug question was not raised in that appeal. It was raised in the appeals he made Tuesday and Wednesday. The latest appeal claimed, "the chemicals prison officials will inject unnecessarily create a risk that Mr. Herron will suffer excruciating excessive pain during the administration of his lethal injection." Owen said it only has been during the past several months that questions about the lethal injection drugs have been raised. He said the claims began after an article in a 2005 British medical journal had a medical researcher suggesting for the first time that there might be suffering to the condemned because of the drugs. The argument is that the painkiller sodium pentothal could wear off, causing pain before a second drug, pancuronium bromide, paralyzes the inmate. The final drug is potassium chloride, which causes a fatal heart attack.

Jerry Strickland, a spokesman for the Texas Attorney General's office, said lawyers for the state would address appeals on individual cases as they came through the courts.

Betsy Nutt's brother, Tom Tiller of Germantown, Ohio, didn't make arrangement to go to Herron's execution because he though Herron's petition for a stay would be granted. "They're doing that here in Ohio, too," he said of death row inmates. Tiller has called his sister a "rock solid Texas woman," someone who would give her all for her friends and help those in need. Tiller has also said of his nephew that Cody was bright and a rare kid that an adult could hold a conversation with.

Tiller said he was satisfied with what the jury had decided as an appropriate punishment for Herron and Frazier but he has tried to move on with his life and not think about his sister and nephews' murders all the time. Although he was not at the execution he said he had no problems with it going through. "It's justice happening and its fine by me," he said.

Fort Worth Star-Telegram

"Appeal rejected; inmate executed," by Juan A. Lozano. (Associated Press Posted on Thu, May. 18, 2006)

HUNTSVILLE -- Apologizing to his victims' relatives, Jermaine Herron, 27, was executed Wednesday night for killing a mother and son nine years ago on a Refugio County ranch. "I just hope this brings some kind of peace to your family," Herron told rancher Jerry Nutt. "I wish I could bring them back, but I can't. I hope my death brings peace. Don't hang on to the hate."

Herron then looked at his mother, who watched from a nearby window. "Mama, stay strong," he said. "Lord, forgive me for my sins because here I come." As the drugs began to take effect, he kept his eyes on his family. Herron was pronounced dead at 7:25 p.m., about an hour after the U.S. Supreme Court rejected his appeal, which asserted that drugs used in lethal injections cause "excessive pain."

Herron's final appeal cited the Texas Court of Criminal Appeals ruling on Monday that halted Tuesday's scheduled execution of Derrick Sean O'Brien, 31. Both inmates' appeals were based on the assertion that executions are unconstitutionally cruel and unusual because the painkiller sodium pentothal could wear off, causing pain before a second drug, pancuronium bromide, paralyzes the inmate. The final drug is potassium chloride, which causes a fatal heart attack.

The U.S. Supreme Court is considering an appeal in a Florida case where similar questions about excessive pain have been raised. The high court heard arguments in that case last month and a ruling is expected before July. But Wednesday, the Texas Court of Criminal Appeals denied Herron's appeal, and in a separate opinion, lifted O'Brien's temporary stay of execution.

Herron, 27, was the ninth prisoner executed in Texas this year and the second of three this month. He was convicted of killing Betsy Nutt, 41, and her 15-year-old son, Cody, on June 26, 1997. Herron and co-defendant Derrick Frazier approached Nutt at her family's home on a ranch about 10 miles outside Refugio, saying they had car trouble and needed to make a phone call. Nutt and her son were fatally shot as they were about to give the two men a ride to town.

The men used Nutt's truck to carry loot taken during a burglary from the house next door. The slain woman's cellphone and the murder weapon, a 9 mm handgun taken in the burglary, were recovered from the apartment of Herron's girlfriend. Herron surrendered three days later. He and Frazier gave nearly identical confessions, but later each defendant blamed the other for the killings. Both men received the death penalty.

ProDeathPenalty.com

A Refugio District Judge set execution dates for Derrick Frazier and Jermaine Herron. The men shot 41-year-old Betsy Nutt and her 15-year-old son Cody Nutt at their ranch in Refugio County in 1997. Both victims were shot in the head several times.

On June 26, 1997, Jerry Nutt had found his wife Betsy and son Cody. They had been killed in the family's mobile home at the Dos Amigos Ranch in Refugio, Texas. A pickup truck had been stolen, and a neighboring residence had been burglarized and set on fire. The pickup truck was found outside a Victoria apartment complex later that day, and Derrick Frazier was arrested there and brought in for questioning.

An arrest warrant was issued for another suspect in the case, Jermaine Herron, and Herron turned himself in a few days later. Jerry Nutt testified that he had found his wife and son dead. Members of the family whose house was burglarized and burned testified that Frazier and Herron had paid a visit to their ranch the day before the murders, on the pretense of looking for work. Herron knew the family because his father had once worked for them, and he introduced Frazier as his cousin Kenny.

An 18-year-old female testified that she and her boyfriend had driven the men to the Dos Amigos Ranch that day, and that her boyfriend had driven them there the following day when the burglary and the murders had taken place. The men had spent the morning at the mobile home, gathering up items they planned to steal, including guns and jewelry. They planned to kill the family, but got tired of waiting and walked the quarter mile to the Nutt home. The men told Betsy they were stranded and asked for drinks. Betsy offered to give the men a ride into Refugio. She left Cody in the house and went to the pickup truck with Frazier and Herron. As she started the truck, Herron said he needed to go to the bathroom, and returned to the house. Shortly thereafter, he enticed Betsy to return to the house, saying she had a phone call. Frazier made a videotaped confession where he admitted to killing Betsy Nutt using a 9 mm pistol they had stolen from the other house. Then Herron shot Cody with the same weapon.

Victoria Texas police spotted the Nutt's green Ford pickup truck later that night at an apartment complex and arrested Frazier. Both men had execution dates set at the same hearing.

After their execution dates were set, Jerry Nutt, the husband and father of the victims, said, "This is one of the happiest days of my life in the past 81/2 years. Only two days are going to be better and you know which two days those are going to be," Nutt said. Nutt says he will travel to Huntsville to witness the executions. "Well the first three years after it happened, until I met my wife...I was going downhill. I'm not going to kid you. I didn't do anything," he said. Nutt remarried five years ago. The couple said said Betsy and Cody are still a big part of their lives. Jerry Nutt said, "We still have a shrine for Betsy and Cody up in the house. I told her, 'You can take that down; we're starting a new life.' She said, 'Cody and Betsy made you who you are...so they are always going to be part of our lives'. Jane Nutt said, "Betsy and I have actually become quite good friends. When Jerry does something that is frustrating, I talk to Betsy's picture...I say, 'okay Betsy you should've straightened him out on this...'," Jane said.

Texas Execution Information Center by David Carson.

Jermaine Herron, 27, was executed by lethal injection on 17 May 2006 in Huntsville, Texas for murder of a woman and her son during a burglary of their home.

On 25 June 1997, Herron, then 18, and Derrick Frazier, 20, visited owned by Ron Lucich, ten miles north of Refugio. Herron and his father had lived on the ranch many years earlier, when Herron's father was Lucich's foreman. Mr. and Mrs. Lucich were away, but their three children were home. Herron introduced Derrick Frazier as his cousin, Kevin, and stated that they came to see whether the Lucichs had any work for them. They decided to "hang out" until the Lucichs came home. Mrs. Lucich then came home and became concerned about the two men loitering in her home. She called her husband, who told her to "get them out of there." Mrs. Lucich took the men and her children out for lunch, then dropped the men off at the house of one of Herron's friends. Later that day, Ron Lucich called Herron and told him to never come back to his ranch.

That afternoon, Herron and Frazier made plans to burglarize the ranch. They had observed several guns in the home, and they learned that the Lucichs were planning to be out of town the following day. They drove with another man, Michael Brown, to a roadside park from which the ranch could be viewed, and discussed their plan further. A second trailer home, occupied by Betsy Nutt and her 15-year-old son, Cody, was also on the property. At one point, Herron pointed to Mrs. Nutt's truck and said, "That's my truck."

At about 9:00 p.m., Crystal Mascorro drove Herron, Frazier, and Brown to the entrance of the Lucich ranch. All three men wore bandanas over their faces, and Herron carried a .22-caliber rifle. As they approached the Lucichs' trailer, the porch light came on. Brown turned back and ran. Herron and Frazier subsequently joined him, and they all left the ranch.

A few hours later, in the early morning hours of 26 June, the thee men drove back to the ranch. This time, Brown dropped Herron and Frazier off. They hid and waited for the Lucichs to leave. At about 7:30 a.m., the Lucichs left. Herron and Frazier then entered their trailer and gathered up some guns and other items. They then called Brown and told him to come pick them up. They were still waiting at 2:00 p.m., when Betsy and Cody Nutt came home. They approached Mrs. Nutt, told her that their car had broken down, and asked to use her phone. Once inside Nutt's trailer, they forced the Nutts to their knees, then shot each of them twice in the head with a 9mm pistol. They then called Brown again.

A jury convicted Herron of capital murder in April 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in October 2002. All of his subsequent appeals in state and federal court were denied.

Derrick Frazier was also convicted of capital murder and sentenced to death. He remains on death row as of this writing.

Betsy Nutt's husband, Jerry, attended Herron's execution. "I just hope this brings some kind of peace to your family," Herron told Mr. Nutt in his final statement. "I wish I could bring them back, but I can't. I hope my death brings peace. Don't hang on to the hate." Herron then express love to his mother, who was also present. The lethal injection was started. Herron was pronounced dead at 7:25 p.m.

National Coalition to Abolish the Death Penalty

Jermaine Herron, Texas - May 17, 2006

Do Not Execute Jermaine Herron!

Jermaine Herron, a black man, awaits execution on Texas’ death row for the 1997 shooting death of 41-year-old Betsy Nutt and her 15-year-old son Cody Nutt at their Refugio County ranch. According to court documents, Herron, along with his accomplice Derrick Frazier, drove to the ranch on the morning of June 26 with the intention of robbing it, having learned that the family would be out of town that day. However, after burglarizing one of the trailers on the property, the two decided to sit in the living room and drink. At approximately 2 p.m. Herron and Frazier observed Ms. Nutt arriving home and decided to approach her trailer. They told Ms. Nutt that their car had broken down and asked to use her phone. Once inside the trailer, Herron and Frazier forced Ms. Nutt and her son to their knees and shot each in the head. On June 29, after a warrant was issued for his arrest, Herron turned himself in to a captain of the Refugio County Sheriff’s office.

Crucial to the prosecution’s case against Herron were the statements he made to police after surrendering himself for arrest. What is troubling is that these statements were made without an attorney present even though Herron had explicitly requested one. While the first statement was not introduced in court, Herron’s second statement to police was. The statement was allowed regardless of a law dictating that a defendant’s initial assertion of his right to counsel continues past the state’s initial violation of this right and trumps any subsequent waivers he agreed to or signed. Therefore, the second statement should not have been admissible in court. This fact ties into a larger problem of ineffective assistance of council. In other words, Herron’s counsel failed to request that the jury be given instructions by the judge on the legality of his confession. This begs the question of whether or not the jury would have arrived at the same verdict had they been instructed to disregard Herron’s statements to the police. Due to the fact that the prosecution’s case relied largely on these statements it seems likely that the jury would not have come to the same conclusion.

Although the Texas Court of Criminal Appeals admitted that the trial court had made an error by allowing Herron’s statements, they deemed the error “harmless” and refused to grant Herron relief. While we will never know whether or not the jury would have decided differently had the statement been excluded, this case illustrates that human fallibility is a reality in our criminal justice system.

KRIST-TV.COM NEWS6

"Convicted killer Jermaine Herron talks with 6 News." (May 17, 2006, 11:48 PM EDT)

LIVINGSTON, Texas - It's been nearly nine years since a Refugio County woman and her son were murdered. Betsy Nutt and her 15-year-old son Cody were shot to death at their ranch home, back in June 1997. 28-year-old Derrick Frazier and 27-year-old Jermaine Herron were convicted for the slayings and sentenced to death. Last month, the Texas Court of Criminal Appeals issued a stay on Frazier's execution while it considers a new appeal. But Jermaine Herron is still scheduled to die Wednesday night in Huntsville.

He spoke exclusively to 6 News' Aaron Drawhorn from Texas death row. The clock is ticking for Jermaine Herron. It's now a matter of hours before he's scheduled to be executed.

"What's going through my mind? A lot of things. Trying to save my life off top," said Herron. He said he's innocent. But prosecutors said the evidence against Herron and his accomplice, Derrick Frazier is overwhelming and they said it all points to them for killing Betsy and Cody Nutt in Refugio County in 1997. "I'm guilty of arson. I'm guilty of, I guess you could say, auto theft. We stole a truck. I'm guilty of breaking and entering. Yes, I'm guilty of that, but capital murder? No, that's made up. They twisted that."

Derrick Frazier and Jermaine Herron are housed here on Texas death row at the Polunsky Unit in Livingston, Texas. Both inmates said they are able to communicate with each other, and they do. When we sat down with each of them separately, they blame the murders on each other. Both Herron and Frazier said their confessions were coerced. Herron said he was there at the crime scene, but Frazier pulled the trigger. "I didn't see him. I didn't see him. I just heard shots," he said. "I'm in the truck. I heard shots. Multiple shots. He come running out. He told me to drive. I jumped up and drove...Things got blown out of proportion. Nobody was supposed to lose their life." So was the pair just looking for trouble? Herron said, "I wouldn't say we were looking for trouble. It was just - the whole intent off the top was just burglary: the guns, money, and that's it."

Refugio County District Attorney Michael Sheppard said both Herron and Frazier clearly are killers and need to face their punishment. 6 News asked Herron why he decided to talk to the media. He replied, "Because I feel this is an opportunity for me to kinda counter what the DA is saying. I mean, he's trying to portray me as a killer. I'm not a killer, so why portray me as that?" "So many people want me to be and live up to the definition of a murderer, a killer, as far as who committed capital murder. That's not who I am. Who I am is Jermaine Herron."

"What could I have done to avoid it? What could I have done to avoid them losing their lives? We could have easily walked past that trailer, and went on. Just walked back to Refugio, which was planned, until we've seen that somebody was home." "If I could bring them back, if I could, I would." Friends and family of Betsy and Cody Nutt, have no use for Herron. They consider him and Frazier vicious killers. Now, Herron claimed he was coerced and set up by police. "That's the guilt. That will be tormenting them for the rest of their lives."

No matter what the jury found or the evidence showed, Herron has his own beliefs. "To me, I keep hope alive. I mean, if I don't have hope, you might as well say I just gave up entirely, which I haven't. I'm going to continue to fight as long as I continue to breathe." "As a Baptist, I believe in God, that there is a God. My faith is in him. I know whatever happens, that's his doing, his control."

6 News asked Herron if God knows you're innocent of murder? He replied, "God knows the truth." Friends and family of Betsy and Cody Nutt said they portray him as a killer, because he is a killer. And as the tattoo on his left arm says "A thug for life", they just hope his life is over come Wednesday night. Wednesday on KRISTV.COM and KRIS 6 News at Six, find out what kind of remorse Herron has for the victims and what he has to say about the law enforcement officers who investigated the murders.

Death row inmate talks with 6 News (April 28, 2006, 06:52 PM EDT)

LIVINGSTON, Texas - It's been almost nine years since a mother and her son were shot to death on a South Texas ranch. Betsy Nutt, 41 and her 15-year-old son were murdered at their home in Refugio County, back in June 1997. Two men sit on Texas' death row for the crime. Derrick Frazier, 28, was set to die Thursday night in Huntsville, but Monday, the Texas Court of Criminal Appeals halted the execution to consider a new appeal. Jermaine Herron, 27, is still scheduled to die in three weeks. Both inmates spoke exclusively to 6 News from death row.

The Polunsky unit in Livingston, houses Texas' death row and more than 400 of our state's most violent criminals. Among them is convicted killer Derrick Frazier. "I don't talk about my case. I don't talk about it. I don't talk to media," said Frazier, but for the first time publicly, Frazier did talk to 6 News from a steel and glass cage, going into detail about his case and as many condemned inmates do, he professed his innocence. Frazier: "I've been doing that for nine years." 6 News: "Who did it then?" Frazier: "I didn't. It's obvious, obvious, obvious."

Frazier now said the real killer is his convicted accomplice Jermaine Herron. After their arrests in the summer of 1997, Frazier gave police a videotaped confession saying he killed Betsy Nutt and Herron killed her 15-year-old son, Cody. He said, "I confessed to a murder." A confession Frazier now claims was coerced. "The only thing I'm guilty of is possession of stolen property."

Frazier's father once was a foreman on the ranch next door. Authorities said Frazier and Herron showed up at the Nutt's trailer home under the guise their car had broken down and needed to make a phone call. This is the story Frazier tells now, blaming Herron for the killings. Frazier: "I was in her truck." 6 News: "Mrs. Nutt's truck?" Frazier: "I was in her truck." 6 News: "And what did you hear? Describe that." Frazier: "I heard gunshots. I heard gunshots in (from) the back seat. I heard gunshots. He come out."

"I asked him directly, 'What the [expletive] wrong with you?' That's what I asked him. 'Man, man, get me up out of here.'" The men then fled with her pickup. Both Herron and Frazier said they are innocent of murder. In fact, they blame each other for the crime. Herron said he feels for the family of Betsy and Cody Nutt, but when we talked to Frazier, he clearly has no remorse, even going as far as comparing his feelings for the Nutts to his feelings for road kill. "Driving down the highway, you see a raccoon on the side of the road. It just got run over by a truck. Do you have any remorse? You didn't even know that raccoon, did you?" Frazier said he never knew them and adds another man pulled the trigger. He said he's sticking with this story until the very end. "How do I know whether to believe you when there are killers right there housed with you who come up with the same stories every time...You will be honestly shocked to realize how many honest people will tell you they done it."

This death row inmate maintains he is honest and he did not kill anyone. 6 News: "And you will go to your grave saying you are innocent of murder?" Frazier: "The thing is, I'm not trying to go to my grave. That's what y'all fail to realize." "I've been screaming this stuff for nine years, man...nine years. I've been saying this same stuff for nine years," Frazier said. He said the evidence points to convicted accomplice Jermaine Herron. "I'm not here, right now, to talk about my co-defendant. I'm here to talk about my situation." But to hear Frazier tell it, so much of his situation involves his co-defendant.

"They've got DNA evidence. They have saliva. They have urine. They have blood. You know, my co-defendant's. All of it! fingerprints, my co-defendant's. Hair, my co-defendant's."

Both Herron and Frazier admit to being at the crime scene in Refugio back in 1997, but when you talk to them, they blame each other for the deadly shootings. "I don't even have to [blame Jeremy]. The physical evidence said what it is. I don't have to say nothing." With evidence and a confession, a jury in Refugio County found both Frazier and Herron guilty of capital murder.

But Frazier and his attorneys maintain, the jury was not fair, claiming one juror had improper communication with Jerry Nutt, whose wife and son were killed. Monday, the Texas Court of Criminal Appeals agreed to review this issue. According to an affidavit from a friend of Frazier's, one juror looked at Mr. Nutt and said, "'Oh, don't worry about it. We'll find him guilty. He's dead. We're going to kill him.' This is before everything was decided!" Prosecutors said they have their own affidavits from jurors saying the incident never happened. Meantime, Frazier said he'll continue his fight from death row, never giving up or counting the days left in his life.

"Sitting up here, oh, oh, oh, that's beyond my, beyond my, I can't control that." Just days before his reprieve, Frazier was confident he'd be avoiding the needle Thursday night and would be alive Friday to see another day. "I'll see you Friday. You be up here again and say, 'How does it feel to get a stay?'"

If all had gone as scheduled, Frazier would have died just hours before his 29th birthday. Prosecutors and the victim's family hope it will be his last. His accomplice Jermaine Herron is still scheduled to die on May 17. KRISTV.COM and KRIS 6 News will have his story...later this month.

San Antonio Express

"Appeal denied for Jermaine Herron," by Jeorge Zarazua. (Web Posted: 05/18/2006 12:00 AM CDT)

The state's highest criminal court denied a last-minute appeal Wednesday from a condemned Refugio County inmate, rejecting arguments that the cocktail of drugs used in lethal injections inflicts excruciating pain.

Attorneys for Jermaine Herron, 27, filed the appeal in the hope of capitalizing on a Monday ruling from the same court that halted a separate execution based on the same argument. But instead of stopping Herron's execution, the Texas Court of Criminal Appeals did an about-face and not only rejected his appeal but also lifted the reprieve given to the Houston gang member in the separate execution. "We have now reviewed this subsequent application and find that it should be dismissed," the court said of the appeal of Derrick Sean O'Brien, the gang member.

Death penalty opponents criticized the decisions, accusing the nine-member appeals court of flip-flopping under pressure. If Herron's appeal had succeeded, observers said, it would have led to a "temporary moratorium" on executions in the nation's busiest death chamber. "You either had to reverse yourself for what you've done the first time or go ahead and issue the second stay, which I'm sure they didn't want to do," said David Atwood, founder of the Texas Coalition to Abolish the Death Penalty. "They're really out of line with what has been done nationally."

Atwood said other states have halted executions until the U.S. Supreme Court rules on a Florida case in which the defendant is requesting a last-minute hearing to challenge the constitutionality of lethal injections. Although the high court hasn't ruled on the Florida case, late Wednesday it denied a stay for Herron, convicted in the June 26, 1997, shooting deaths of Betsy Nutt, 41, and her 15-year-old son, Cody.

"I just hope this brings some kind of peace to your family," Herron told Jerry Nutt, whose wife and son were killed, just before the lethal drugs were injected. "I wish I could bring them back, but I can't. I hope my death brings peace. Don't hang on to the hate." Herron then looked at his mother, watching from a nearby window. "Momma, stay strong," he said. "Lord, forgive me for my sins because here I come." Almost an hour after the Supreme Court rejected Herron's appeal, the former ranch hand was pronounced dead.

Refugio County District Attorney Michael Sheppard lauded the decision not to grant Herron a stay of execution, saying his arguments weren't legitimate. "The issue that was raised had nothing to do with whether or not he had a fair trial," Sheppard said, adding that he also opposed Monday's stay of execution for O'Brien.

The Texas court halted O'Brien's execution a day before he was scheduled to die to consider his appeal that the drugs pancuronium bromide and potassium chloride lead to a cruel death. O'Brien was scheduled to die for the June 24, 1993, rapes and murders of Jennifer Ertman, 14, and Elizabeth Peña, 16. Herron's attorneys used the same argument in their appeal filed Tuesday. "The chemicals prison officials will inject unnecessarily create a risk that Mr. Herron will suffer excruciating excessive pain during the administration of his lethal injection," the appeal states.

Death penalty critics have argued that the painkiller sodium pentothal could wear off, causing pain before the pancuronium bromide paralyzes the inmate. Potassium chloride then causes a fatal heart attack. But in the 5-4 ruling lifting O'Brien's appeal, the judges said he did not offer evidence that the drugs could cause a painful death. Appeals Judge Cathy Cochran wrote in an opinion that O'Brien's appeal "has failed to produce any facts or scientific evidence that a scenario involving unnecessary pain and suffering by the use of (state officials') chemical protocol is anything other than speculation."

Herron's path to the death chamber started when he and a companion, Derrick Frazier, approached Betsy Nutt at her family's mobile home on a ranch about 10 miles outside of Refugio, saying they had car trouble and needed to make a phone call. She offered to drive them to town, but the men instead shot her and her son. Both men received the death penalty. Frazier won a reprieve from the Court of Criminal Appeals three weeks ago, just days before his scheduled execution, after his lawyers contended that a juror at his trial improperly communicated with Jerry Nutt. The appeals court has not ruled in that appeal.

ALIVE - Coalition to Abolish the Death Penalty e.V.

In Memoriam Jermaine Herron - Jermaine was executed by the state of Texas on May 17th 2006

This was his homepage with ALIVE:

Dear Reader,
As you will learn from my introduction letter on this same page, my name is Jermaine Herron, and yes, I am still subjected to a cell on Texas famous Death Row. No change has come for the better and it’s still a struggle to maintain in such a place as this. But, being the young man I am I just have to try to keep my sanity and survive this madness until better days embrace me.

Even though none of you out there can fully comprehend my situation and how it can take its toll on mind, body and soul, I would still like to share with you what I am experiencing as I fight to save my young life... A true friend is whom I am still in search of to call on when my struggle becomes too much of a burden to carry on my own. I wish for someone I can release all of which stresses me at times to.

Could you be that someone for me to call upon when I feel as if it’s just me against the world? Will you be that true friend and fight this battle with me or, even console me with your words when the pressure starts to increase? I really need someone to help me keep my focus and to express words of encouragement to uphold my strength, because as I had said in my introductions letter on this same page "even the strongest man can become weak".

Hopefully some time soon I will hear from you, the one that will not let me face this kind of situation alone, but instead, keep me believing in HOPE and that anything is possible...

Still I breathe, Jermaine

May you have…

Enough happiness to keep you sweet,
Enough trials to keep you strong,
Enough sorrow to keep you human,
Enough hope to keep you happy,
Enough failure to keep you humble,
Enough success to keep you eager,
Enough friends to keep you with comfort,
Enough wealth to meet your needs,
Enough enthusiasm to look forward,
Enough faith to banish depressions,
Enough determination to make each day better than yesterday,
Enough courage and willingness to be my friend.
May you have…
If you believe then you can achieve

Jermaine Herron #999304

Derrick Frazier

The purpose of The Derrick Frazier Support Committee is to inform the public about Derrick’s case, and to assist and help him in any way possible to prove his innocence, so that he can one day become a free man again. If you can help us in our struggle in any way possible, that being financially or with advice and assistance; please do not hesitate to contact us at one of the following addresses:

DFSC -Chair Person
Knut Erik Paulli
Morkved
8020 Bodoe
Norway .
Email: hrctexas@hotmail.com

DFSC – US Coordinator
Will Saunders
P.O. Box 87193
Gaithersburg, MD 20886
U.S.A
Email: h_shakur77@yahoo.com

To donate, please go to www.hasanshakur.com/donate for more information

A Brief Summary of the Case and the Trial

On Monday September 21, 1998, the trial against Derrick Wayne Frazier (21) started in the Dewitt County Courthouse in Cuero, Texas. If he was found guilty of the charges raised against him, he could face the death penalty. The trial had been moved from Refugio to Cuero after questions had been raised in a pre-trial hearing, whether an impartial jury could be found in Refugio. The Presiding Judge at the trial was District Judge Stephen Williams. Attorneys for the State were Michael Sheppard (District Attorney), Alger Kendall (Assistant District Attorney) and Tom Wells. Court appointed attorneys Stephen A. Cihal and Elliot Costas represented Frazier.

On June 26, 1997, Jerry Nutt had found his wife Betsy Nutt (41) and son Cody Nutt (15) killed in their mobile home at the Dos Amigos Ranch in Refugio, Texas. A pickup truck had been stolen, and the neighbor residence, the Luchich family’s mobile home, had been burglarized and set on fire. The pickup truck was found outside a Victoria apartment complex later that day, and Frazier was arrested there and brought in for questioning. An arrest warrant was issued for another suspect in the case, Jermaine Herron (18), and Herron turned himself in a few days later.

At Frazier’s trial District Attorney Sheppard portrayed Frazier as the instigator of the murders and as the brain behind the crimes, claiming that Frazier has been showing the younger Herron – who would be tried separately a few months later – how to leave a crime scene without leaving any witnesses. Jerry Nutt testified for the jury about how he had found his wife and son dead. Members of the Luchich family testified about how Frazier and Herron had been paying a visit to their ranch the day before the murders saying they were looking for work. Herron, who knew the Luchichs as is father had once used to work for them, had introduced Frazier as his cousin Kenny. Crystal Mascorro (18), testified that it was she and her boyfriend Michael Brown, who had driven the suspects to the Dos Amigos Ranch that day, and it was Brown who had been driving them there the following day too when the burglary and the murders had taken place. Despite of all the testimonies and evidence that the prosecution presented, there wasn’t really anything that could place Frazier in the Nutt residence. However, after having been promised a 30-year deal, Frazier had admitted to having killed Betsy Nutt in a videotaped confession made to the police investigators and this piece of evidence was the prosecutions trump card. “The most important piece of evidence was the confession,” said District Attorney Mike Sheppard after the jury had found Frazier guilty. “That is was really put him at the scene.” And it was only after having asked to see the videotaped confession again, that the jury decided on the guilty verdict. The trial moved into the punishment phase in which the attorney for the defense presented practically no mitigating evidence, and on October 2, 1998, the jury, after having deliberated for two hours, sentenced Derrick Frazier to death. All the jurors were white. Derrick Frazier is Black.

DFSC Notes:

The moving of the trial
In a pre-trial hearing, attorneys for Derrick Frazier and his co-defendant Jermaine Herron asked for the trial to be moved because it was questionable whether an impartial jury could be found in Refugio. The trial was moved to Cuero, some 65 miles away. If it would be any easier to find an impartial jury in Cuero is an open question, but a statement made by Betsy Nutt’s widower, Jerry Nutt, after it had been decided where the trials would be held, may cast some light over that question: “I'd be surprised if they could panel 12 jurors that aren't either involved in the case, know the defendants, of heard about it,” Nutt said. “Besides, Cuero has a reputation for being tough on criminals. I'd like to see the trial go over there.”

The Jury:
With an all-white jury (one of the jurors being a Mexican woman married to a white man), the prosecution might very well have won the first battle already before the hearings had started as Derrick Frazier is a Black male. The racial composition of the jury in a case where a black man is charged for having killed a white woman and a white boy, is of course of great importance and could be decisive for the outcome of the verdict. The jury consisted of eight woman and four men. The jury foreman was Mr. Charles W. Wanjura. With eight female jurors, the prosecution also possibly had another advantage as these jurors especially, could easily identify themselves with the victim as a woman, and as a mother. Whether the composition of the jury; the jurors gender and race; affected the verdict one can only guess. But nevertheless it is important to keep these things in mind as one looks deeper into the case.

The Indictment
The indictment against Derrick Frazier outlined five theories that would support a capital-murder conviction: that Frazier murdered (1) Betsy Nutt and Cody Nutt during the same criminal transaction; (2) Betsy Nutt during the course of a robbery; (3) Cody Nutt in the course of robbing Betsy Nutt; (4) Betsy Nutt during the burglary of Ron Lucich’s home; (5) Cody Nutt during the burglary of Ron Lucich’s home. The trial court’s instructions allowed the jury to convict Derrick Frazier under any of those theories, either as a party or as the principle actor. The jury returned a general verdict that did not specify under which theory it found him guilty. Such jury instructions are not unusual, but the use of them in capital cases where the defendant’s life is at stake, is questionable. The result was nonetheless, that the prosecution was pretty free to present theories about the burglary of the Luchich home, and the murder of the Nutt’s, in a way that could make it difficult for the members of the jury to keep these two crimes separated. And the same goes for findings from the crime scene and physical evidence. With the pressure that jurors in a case like this are under, it is more than likely that an uncertain juror who is in doubt whether the defendant is guilty of both the burglary charges and the murder charges, could possibly be influenced to vote for a guilty verdict even if he/she had ‘reasonable doubt’ about what crime the defendant was actually guilty of.

The Defense Attorneys
The court appointed attorney that represented Derrick Frazier was Stephen A. Cihal, assisted by Elliot Costas. Cihal didn’t make his opening statement till at the end of the first week of the trial. He correctly pointed out that there was no physical evidence that placed Derrick inside the Nutt’s home where the murders had taken place, and he argued that the videotaped confession shouldn’t be allowed as evidence. Other than that he did little but being present at the trial. After the guilty verdict, he didn’t present any mitigating evidence in the punishment phase. Except for one phone call to Derrick’s grandmother, he didn’t have any contact with the family, and he didn’t talk to any friends of Derrick, or to any school teachers and other people that could have contributed with valuable information. He didn’t by any means live up to the standards one must expect a defense attorney to have, and he was literally completely unprepared - especially for the punishment phase. Stephen A Cihal have later received a Public Reprimand, been on several probations, and have also been suspended from practicing law for periods of time. Bad legal representation for defendants in death penalty cases are not unusual, but in this case particular it can seem that the prosecution, lead by the very experienced District Attorney Michael Sheppard, had a very easy match.

The Confession
The videotaped confession, in which Derrick said he had killed Betsy Nutt, was the prosecution’s most important piece of evidence. And it was only after having watched this confession again, that the members of the jury decided on their verdict. Whether they were informed about this confession having been made only after Derrick had been offered a 30-year deal, is unclear. Neither were they informed that he claimed to having been threatened and coerced into confessing. In the video that the jury was showed, Derrick waived his right to counsel, but other videotapes that the jury never saw exist too, and in one of these Derrick said “if I could afford one, I would”, when the interrogation officer explained his right to counsel and to have an attorney present. It is highly unbelievable that an experienced officer like Oscar Rivera did not understand the meaning of Derrick’s answer, and if he didn’t, it is very questionable that he was capable to understand more complex matters that such an interrogation and/or investigation would involve. Denying a defendant his constitutional right to have an attorney present during an interrogation is a breaking of American law, and evidence produced by using illegal means and methods, is not to be allowed as evidence in any court of law.

Physical findings
An analysis of a shoe print found on the Lucich ranch, matched the pattern of the sole of a Converse shoe worn by Derrick Frazier. However no unique characteristics were observed on this print or on Derrick’s shoe; and the analysis couldn’t conclude with the print having actually been made with the shoe belonging to Derrick Frazier. Analysis of two fingerprints found on the owner’s manual guide in Betsy Nutt’s Ford Pickup truck, were later identified as the left index and left middle fingerprints of Derrick Frazier. The owner’s manual was in the car when it was found in Victoria, Texas, several miles from the scene of the crime, and as no other fingerprints were found, this finding could only indicate that Derrick had touched the owner’s manual guide. It couldn’t even conclude with him having been inside the car, only that he had touched the manual guide. Items stolen from the Luchich’s home were found in Derrick’s possession. However, the murders of Betsy and Cody Nutt didn’t take place in the Luchich’s home, and therefore those findings do not connect Derrick to the murders in any way.

Confession of Co-Defendant
Derrick’s co-defendant, Jermaine Herron, made a written statement after both Derrick and Jermaine had been found guilty and sent to death row, in which he confesses to having killed both Betsy and Cody Nutt. This written confession is however not signed and it has therefore not been presented as part of any appeals made to the courts.

Derrick Frazier is now in the final phase of his appeals and time is running short…… …..please reach out and help an innocent man gain his freedom back.

Voices From Death Row: Reaching Out

Greetings to all of you who are reading my words. May they open up your mind and give you a glimpse of my reality as I share it with you.

On May 17th of this year, an attempt on my life will be made, as it is the date set by a judge for me to be executed. Where I am currently housed at, are other human beings awaiting to have their own fate tested, meaning, dates of executions have been set for them too. Some are before my own, some are after, but let me speak on, in short, of those before mine, and of all the ones that have been carried out while I’ve been housed over here.

On the date of an execution, two guards come and get the human being who is to be executed and escort that person to the visitation room where he will visit with family and friends until it is time to be transferred to the facility where all executions are carried out here in Texas. When I see that human being leave on their execution date and not return, then later on that evening hear on the radio their execution has been carried out, a feeling of numbness envelops me… That feeling of numbness first grabs me when I see that human being making his final walk from his cell on his date of execution, then fully sets in once I then hear that he has been executed. After a while that numb feeling will lift from upon me and that’s when I come to see how vulnerable a lot of us on Death Row are to Texas’ infamous act of so called justice.

This experience of having a date with death has given birth to a lot of thoughts and feelings, which used to be foreign to me, such as the numbness I mentioned early on. I’ve always been a strong individual with the mind mentality of never giving up on what I believe in and always striving to make a difference. But to see the ones with dates before me leave on their date to be executed and hear later on it was carried out, I feel that a little of my strength to deal with such a situation is being deleted, because that thought in the back of my mind of “my date is coming”, will fully surface.

When such a thought does surface, it slowly begins to take its toll, leaving me feeling very vulnerable and as if I am trapped with no way out… I once read, “Vulnerable is he whose mind is shackled, for to problems, he’s one who’s most easily tackled.” If I let my mind become shackled from this of which I face, then no longer is there a way for me to prevail against the ones who want to take my life. But, I do confess, it’s a very unique challenge to keep hope alive in this position, especially when I see those before me never return and hear they’ve been killed… Jermaine Herron

Herron v. State, 86 S.W.3d 621 (Tex.Crim.App. 2002) (Direct Appeal)

Defendant was convicted in the 24th District Court, Refugio County, Stephen Williams, J., of capital murder, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Holcomb, J., held that: (1) trial court's error in declaring admissible defendant's first videotaped statement to police was harmless; (2) defendant's second statement to police was admissible; (3) state's challenges for cause were properly granted; (4) state's unrebutted, race-neutral explanation for its exercise of peremptory challenge against African-American prospective juror was sufficient to overcome prima facie showing of discrimination; (5) trial court was required to give accomplice-witness instructions as to two witnesses; (6) its failure to do so was harmless error; and (7) defendant received effective assistance of trial counsel. Affirmed. Womack, J., dissented with opinion in which Johnson, J., joined.

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, KEASLER, HERVEY, and COCHRAN, JJ., joined. In April of 1999, appellant, Jermaine Herron, was tried for capital murder. SeeTex. Pen.Code § 19.03.FN1 At that trial, the State presented evidence that appellant shot and killed a woman and her son in the course of committing a robbery. Pursuant to the jury's answers to the special issues set forth in Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Appellant raises nine points of error. We affirm.

STATEMENT OF FACTS

Although appellant does not contest the sufficiency of the evidence, a brief discussion of the relevant facts is appropriate. The evidence adduced at trial, viewed in the light most favorable to the verdict, established the following. Ron Lucich and his family lived in a trailer home on their ranch in Refugio County. Betsy Nutt and her son, Cody, lived in a second trailer on the property. Appellant was familiar with the Luciches and their ranch, because he and his father had lived on the property many years earlier when his father had been Mr. Lucich's ranch foreman.

On June 25, 1997, at approximately 11 a.m., appellant and Derrick Frazier paid a visit to the Lucich residence. The stated purpose of their visit was to see whether Mr. Lucich had any work for them. Mr. Lucich was at work, however, and only his three children were home. Appellant and Frazier decided to “hang out” for awhile.FN2 Sometime during the visit, Mrs. Lucich came home. She became concerned about the presence of appellant and Frazier in her home and called her husband. Mr. Lucich told her to “get them out of there.” FN3 Mrs. Lucich, in a diplomatic attempt to get them to leave, took everyone out for lunch. After lunch she dropped appellant and Frazier off at the house of one of appellant's friends. During their visit to the ranch, appellant and Frazier observed a number of guns that were kept in plain view around the house. They also learned that the Luciches were planning an out-of-town day trip the next day.

FN2. Appellant introduced Frazier as his cousin, “Kevin.” In actuality, Frazier was not his cousin, and his first name was Derrick. FN3. Later that day, Ron called appellant and told him never to come back to his ranch.

That afternoon (i.e., June 25, 1997), appellant, Frazier, and Michael Brown made plans to burglarize the Lucich residence and steal the guns and Ms. Nutt's truck. At around 4 p.m., they drove to a roadside park from which the ranch could be viewed. There, they further discussed the details of the plan. At one point, appellant pointed to Ms. Nutt's truck and said, “That's my truck.”

Around 9:00 p.m. that evening, Crystal Mascorro drove appellant, Frazier, and Brown to Trey Johnson's house, where appellant picked up a .22-caliber rifle. Mascorro then drove appellant, Frazier, and Brown to the entrance of the Lucich ranch and dropped them off so that they could carry out their plans. All three men were wearing bandanas on their face, and appellant was carrying the rifle. Mascorro briefly tried to talk them into abandoning their plans but ultimately left, believing that the threesome would make their way back to town by stealing Ms. Nutt's truck. Both Mascorro and Brown were under the impression that the rifle appellant had picked up from Johnson's house was broken and could not be used as a firearm. Brown was also under the impression that no one was to be at the Lucich home; however, once at the ranch, appellant started talking about killing someone. At that point, Brown felt that it was time to turn back, and when the porch light came on at the Lucich house, he ran. Frazier and appellant subsequently joined him, and they all left the ranch.

A few hours later, in the early morning hours of June 26, 1997, appellant and Frazier convinced Brown to drive them back to the Lucich ranch in order to complete the burglary. Brown left after dropping the pair off. Appellant and Frazier then hid and waited for the Luciches to leave. At around 7:30 a.m., the Luciches left. Appellant and Frazier then entered the house. After burglarizing the home, finding the guns, and gathering up everything they wanted to steal, appellant telephoned Brown and told him that he and Frazier had found some alcohol. They then positioned some chairs in front of the living room window so that they could observe the road leading up to the residence. They spent the next four to five hours sitting around, drinking, and waiting. At around 2 p.m., Ms. Nutt pulled up to her trailer in her truck. Appellant and Frazier, who had observed Ms. Nutt pull up, then walked over to her trailer house and asked to use the phone. They told Ms. Nutt that their car had broken down. Once inside, they forced Ms. Nutt and her son to get on their knees and then shot each of them in the head twice. Shortly thereafter, appellant called Brown again and told him that he had killed a woman and a little boy. It was for those murders that appellant was tried, convicted, and sentenced to death.

MOTION TO SUPPRESS APPELLANT'S STATEMENTS

In point of error one, appellant contends that the trial court erred in denying his motion to suppress two statements which he gave to law enforcement officers after surrendering himself for arrest. Citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), appellant asserts that the police violated his Fifth Amendment right to counsel when they took his statements in the absence of counsel, even though he had unequivocally asserted his right to have an attorney present. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At a suppression hearing, the trial judge is the trier of fact and assesses the witnesses' credibility and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). As long as they are supported by the record, we afford almost total deference to a trial court's findings of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Furthermore, we defer to a trial court's application of law to fact rulings if they turn on an evaluation of credibility and demeanor. Id. Before trial, appellant filed a motion to suppress his statements, alleging that the police had taken them in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Texas Constitution. After a hearing, the trial court entered findings of fact and denied appellant's motion based on the following facts.

On June 29, 1997, after a warrant was issued for his arrest, appellant contacted Captain Willie Brown of the Refugio County Sheriff's Office and surrendered himself to Brown at Brown's home.FN4 Brown read appellant his rights and informed him that if he had anything to say, then he needed to say it to the investigating officer and not to Brown. Brown then transported appellant to the county jail. En route to the jail, appellant told Brown that he wanted an attorney. Although Brown may have informed the sheriff at the jail of appellant's request, he did not inform either Deputy Bolcik, the local investigating officer, or Texas Ranger Oscar Rivera, who was also investigating the offense. FN4. Captain Brown is apparently appellant's uncle.

When Bolcik arrived at the jail, appellant was being processed. Bolcik approached appellant and asked him, “Did you want to talk to me?” Appellant answered, “Yes.” Without further questioning, Bolcik took appellant to a room where Rivera was waiting. Rivera interviewed appellant on videotape with Bolcik present. Before the interview, Rivera reminded appellant that he had previously been advised of his rights, again advised appellant of his rights pursuant to Article 38.22, and provided appellant a written admonishment of his rights. After reading it, appellant signed the waiver of rights and then provided the videotaped statement. The trial court found that appellant understood his rights and knowingly, intelligently, and voluntarily waived them and voluntarily gave the statement. The court ruled the statement admissible, but it was not introduced into evidence.

According to Bolcik, appellant saw him in the jail on July 1, 1997, and motioned for him to come over. When Bolcik got to the door, appellant told him that “what he said on the first statement was true, but he left out something and asked if he could talk to me.” Bolcik again contacted Rivera and arranged another interview. Rivera conducted the interview with Bolcik and Assistant District Attorney Terry Breen present. This interview was also videotaped. Prior to taking appellant's statement, Rivera reminded appellant that he had been previously informed of his rights at least twice. Rivera then gave appellant a printed admonishment of his rights, read the warnings to appellant, and appellant waived his rights again. Appellant testified later in the hearing and contested Bolcik's version of these events. The trial court found that the interview was initiated by appellant and that appellant knowingly, intelligently, and voluntarily waived his rights and provided the statement. The trial court concluded that the statement was admissible, and it was later introduced at trial.

In Miranda v. Arizona, 384 U.S. at 474, 86 S.Ct. 1602, the United States Supreme Court held that if an accused requests counsel, then all interrogation must cease until an attorney is present. The Supreme Court reaffirmed that holding in Edwards but further noted that an accused could waive his prior election by initiating further communication with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. Statements thereafter gathered through the accused's initiation would be admissible against him at trial. Id.

One officer's knowledge that a defendant has requested counsel is imputed to every other state agent. See Arizona v. Roberson, 486 U.S. 675, 687-88, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). The failure to convey such knowledge cannot justify the State's failure to suspend interrogations until counsel has been provided. Id. Thus, appellant's first videotaped statement was not admissible at trial despite the trial court's conclusion to the contrary. However, because that statement was not introduced into evidence, the trial court's error in declaring it admissible is irrelevant. While appellant recognizes that the admissibility of his first statement is moot because it was not introduced into evidence, he argues that the inadmissible first statement induced his second statement.FN5 Appellant further argues that even assuming that he initiated the second interview, the police's initial violation of his right to counsel rendered the subsequent waiver of his rights involuntary. FN5. However, appellant does not cite, nor have we found, any authority in support of this argument.

We agree with appellant that under Edwards, his assertion of the right to counsel continued past the State's initial violation of his rights and would trump subsequent waivers at police-initiated interviews. See Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. However, the Supreme Court in Edwards held: [A]n accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. 451 U.S. at 484-85, 101 S.Ct. 1880 (emphasis added).

Evidence in the record supports the trial court's finding that appellant initiated the second interview on July 1.FN6 Thus, under Edwards, appellant waived his previously asserted right to counsel for the purposes of that interview. Id. In the absence of anything in the record indicating that the statement was otherwise involuntary, the trial judge acted within his discretion in ruling the statement admissible. See, e.g., Oregon v. Elstad, 470 U.S. 298, 310-12, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Appellant's first point of error is overruled. FN6. We have reviewed the actual videotape of the July 1st interview, and on it appellant, after being warned of his rights, readily agreed that he initiated the interview.

* * *

In his ninth point of error, appellant argues that trial counsel denied him effective assistance of counsel by failing to request an Article 38.23 instruction on the “legality of [his] confession.” Appellant argues that his testimony raised factual questions about whether he requested counsel on June 29 and whether he had initiated the interview on July 1. However, appellant has failed to argue how counsel's alleged deficiency prejudiced him and undermined the reliability of his trial. That failure precludes any relief. Ladd v. State, 3 S.W.3d 547, 570 (Tex.Crim.App.1999), cert. denied,529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Appellant's ninth point of error is overruled. The judgment of the trial court is affirmed.

Herron v. Dretke, 158 Fed.Appx. 603 (5th Cir. 2005) (Habeas)

PER CURIAM:
Petitioner Jermaine Herron seeks a certificate of appealability (“COA”) on eight issues that the district court deemed unworthy of review. The district court denied Herron's 28 U.S.C. § 2254 habeas petition and, sua sponte, denied any petition for a COA. The district court held that *604 clear, binding precedent foreclosed review of Herron's claims and that many of his claims were barred by the doctrine in Teague v. Lane.

* * *

We note at the outset of our review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that, as a court of appeals, our consideration is limited “to a threshold inquiry into the underlying merit of [Petitioner's] claims.” FN2 We are to analyze only “an overview of the claims in the habeas petition and [make] a general assessment of their merits···· This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” FN3 After conducting such a limited review, we conclude that Herron is not entitled to a COA on any issue because he has failed to make a “substantial showing of the denial of a constitutional right.” FN4 He has not demonstrated “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that ··· the issues presented are adequate to deserve encouragement to proceed further.” FN5

FN2. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). FN3. Id. at 336, 123 S.Ct. 1029. FN4. 28 U.S.C. § 2253(c)(B)(2). FN5. Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595).

Here, the briefs, the record on appeal, and in particular the district court's well-articulated decision, support denial of a COA. Although we typically issue more lengthy and detailed opinions in death penalty cases, the district court here wrote a thoroughly detailed and well-reasoned 56-page opinion and order denying Herron's petition for habeas relief and a COA. Were we to write more extensively than we do, we would be exalting formalism and scrupulosity over substance and judicial economy, adding nothing but repetition and doing nothing more than filling innumerable pages with synonyms and paraphrases. In this exceptional case, therefore, we decline to do so and simply deny Herron's petition for the reasons well and fully explicated in the district court's writing. PETITION DENIED.