Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about 38-year-old Troy Albert Kunkle, who is scheduled to be executed after 6 p.m. Thursday, November 18. In 1985, Troy Albert Kunkle was sentenced to die for the August 1984 capital murder of Stephen Horton in Corpus Christi. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

At about 6 p.m. on August 11, 1984, then 18-year-old Troy Albert Kunkle and three companions drove from San Antonio to Corpus Christi. They saw Stephen Horton walking along a road and offered him a ride. They demanded his wallet. Kunkle then told one of his colleagues to kill Horton. When he refused, Kunkle took the gun and stuck it up against Horton’s head and said, “We’re going to take you back here and blow your brains out.” After one of his companions drove the car behind a skating rink, Kunkle shot Horton in the back of the head. They opened the car door, pushed the body out, and they took Horton’s wallet.

PROCEDURAL HISTORY

Oct. 17, 1984 — A Nueces County grand jury indicted Kunkle for the capital murder of Stephen Horton.
Feb. 22, 1985 — A jury found Kunkle guilty of capital murder.
Mar. 1, 1985 — The court assessed a sentence of death following a punishment hearing.
June 18, 1986 — The Texas Court of Criminal Appeals affirmed Kunkle’s conviction and sentence.
July 3, 1989 — Kunkle’s first petition for writ of certiorari was denied by the U.S. Supreme Court.
July 27, 1989 — Kunkle filed an application for writ of habeas corpus in the trial court.
Aug. 30, 1989 — The U.S. Supreme Court declined to rehear Kunkle’s certiorari petition.
Feb. 3, 1993 — The Texas Court of Criminal Appeals denied Kunkle’s application for writ of habeas corpus.
Aug. 24, 1993 — Kunkle filed a petition for writ of habeas corpus in the U.S. District Court.
Oct. 4, 1993 — The U.S. Supreme Court denied Kunkle’s second petition for writ of certiorari.
Jan. 10, 1995 — The court dismissed Kunkle’s petition for habeas relief for failure to exhaust state court remedies.
Mar. 1, 1995 — Kunkle filed a second application for writ of habeas corpus in the trial court.
Mar. 29, 1995 — The Texas Court of Criminal Appeals denied Kunkle’s second application for writ of habeas corpus.
Apr. 28, 1995 — Kunkle filed a second petition for writ of habeas corpus in U.S. District Court.
Sept. 2, 2002 — The federal district court granted summary judgment, denied Kunkle’s petition.
Feb. 13, 2003 — Kunkle requested permission to appeal from the 5th U.S. Circuit Court of Appeals.
Dec. 9, 2003 — The Fifth Circuit Court partially denied permission to appeal, but affirmed denial of habeas.
Jan. 28, 2004 — The Fifth Circuit Court declined to rehear the case.
Apr. 27, 2004 — Kunkle filed a petition for writ of certiorari in the U.S. Supreme Court.
Oct. 4, 2004 -- The U.S. Supreme Court denied the petition for a writ of certiorari.
Nov. 15, 2004 -- Kunkle filed a successive application for a writ of habeas corpus.

PRIOR CRIMINAL HISTORY

Kunkle had no prior criminal record, but was a problem student who was frequently disciplined for truancy, smoking, and classroom disruption.

ProDeathPenalty.com

Troy Kunkle was sentenced to die for fatally shooting Steven Horton, 29, during a robbery in Corpus Christi in 1984. On the night of August 11, 1984, Kunkle and his girlfriend Lora Lee Zaiontz, Russell Stanley, Aaron Adkins, and Tom Sauls, left San Antonio and drove to Corpus Christi. All five were under the influence of alcohol and L.S.D. While en route, Stanley removed a .22 caliber pistol from the glove compartment of the vehicle, fired it into the air, and asked Adkins if he wanted to make some money. Sauls told Stanley that “guns and acid don’t mix,” and Stanley returned the gun to the glove compartment. During the course of the trip, Stanley took out the gun several more times. Stanley and Adkins discussed committing a robbery and slowed the vehicle several times to assess potential victims.

When the group arrived in Corpus Christi, they drove to the beach. Kunkle and Zaiontz kept to themselves. Stanley, Adkins and Sauls went for a walk, and Stanley and Adkins again discussed robbing someone. The group left the beach and went to a convenience store to buy beer. There, Stanley and Adkins robbed a man in a phone booth at gunpoint, while Kunkle, Zaiontz, and Sauls remained in the car. Stanley and Adkins obtained only seven dollars from this victim, so they left the store to search for another victim.

They spotted Stephen Horton walking along the road. They pulled up next to Horton, and Zaiontz asked him if he needed a ride. Though he resisted at first, Horton was eventually persuaded to get into the car. Horton sat in the front seat, next to Zaiontz. Once inside the car, Stanley put the gun to the back of Horton’s head and told him to give them his wallet. Horton turned to look at Stanley, but Zaiontz scratched his face and told him to look forward. Kunkle told Stanley to kill him, but Stanley refused. Kunkle then took the gun from Stanley, put it to Horton’s head, and said, “We’re going to take you back here and blow your brains out.” Adkins drove the car behind a skating rink, and Kunkle shot Horton in the back of the head. They pushed his body out of the car, and Zaiontz took his wallet.

After the shooting, Kunkle quoted the following line from a song called "No Remorse" from an album "Kill 'Em All" by the heavy metal rock group Metallica: “another day, another death, another sorrow, another breath,” and told the group that the murder was “beautiful.”

On February 22, 1985, a jury convicted Kunkle for the capital murder of Horton. He was sentenced to death on February 26, 1985. Lora Lee Zaiontz received a life sentence for capital murder. Russell Stanley and Aaron Adkins were both sentenced to 30 years for murder.

Texas Execution Information Center by David Carson.

Troy Albert Kunkle, 38, was executed by lethal injection on 25 January 2005 in Huntsville, Texas for the abduction, robbery, and murder of a 31-year-old man.

On 12 August 1984, Kunkle, then 18, and four companions - Aaron Adkins, 19; Russell Stanley, 17; Kunkle's girlfriend, Lora Lee Zaiontz, 18; and an unidentified person - drove together from San Antonio to Corpus Christi. After visiting the beach, Adkins and Stanley robbed a man of seven dollars at gunpoint at a convenience store. The group then drove around looking for someone else to rob. They spotted Steven Horton walking down the street, and offered him a ride home. After Horton got in the front seat, Stanley put a .22-caliber pistol to the back of his head and demanded his wallet. Horton refused. Kunkle told Stanley to kill Horton, but Stanley replied that it wasn't necessary. Kunkle then took the pistol from Stanley, held it to Horton's head, and said, "We're going to take you back here and blow your brains out." Adkins drove the car behind a skating rink, where Kunkle shot Horton once in the back of the head. They then pushed Horton's body from the car, and Zaiontz took his wallet, which contained $13.

According to trial testimony, Kunkle said, "another day, another death, another sorrow, another breath" after the killing. These words are the refrain to "No Remorse," a song from Metallica's 1983 album "Kill 'Em All." As the judge was listening to the album - which depicts a pool of blood on the cover - Kunkle reportedly pretended to play a guitar. He became known as the "No Remorse" killer.

A jury convicted Kunkle of capital murder in February 1985 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 1986. Because Kunkle was convicted before a 1996 federal law that sets limits on federal appeals for criminal defendants was passed, his lawyers were able to file numerous appeals for decades. All of them were denied, although he did receive several stays of execution during his twenty years on death row.

Lora Lee Zaiontz was convicted of capital murder and received a life sentence. Information regarding her current status was unavailable for this report. Aaron Allen Adkins and Jerry Russell Stanley were convicted of murder and received 30 year sentences. Stanley served 6 years of his sentence, then was paroled in July 1990. Adkins was paroled in February 1991. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) Both are still on parole as of this writing. Stanley is scheduled to be discharged in 2014. Adkins is scheduled for discharge in 2017.

In a 1996 interview from death row, Kunkle said that his life had been transformed, thanks to prison ministers. "I get along better with others, which I had a problem with in the past. ... I do think about my victim every day." As a previous execution date approached in July 2004, Kunkle's lawyers files appeals claiming that the jury should have been instructed to consider Kunkle's history of drug and alcohol abuse and his "troubled and turbulent home environment." The U.S. Supreme Court issued a stay of execution, but later declined to hear the case and rescinded the stay.

In a 2004 death-row interview, Kunkle said that he didn't believe he was given a fair trial, because the jury did not get a chance to hear about his troubled childhood and abusive parents. He called his crime a "juvenile mistake made with juvenile peer pressure." Kunkle said that when his execution comes, "I'm hoping that I will be forgiven."

Stephen Horton's daughter and son-in-law came to Huntsville to witness the execution. "I would like to ask you to forgive me," Kunkle told them as he lay on the gurney. "I made a mistake, and I am sorry for what I did. All I can do is ask you to forgive me." He then recited the Lord's Prayer. As the lethal injection was being administered, Kunkle repeatedly mouthed "I love you" to his friends and relatives. He was pronounced dead at 8:12 p.m.

National Coalition to Abolish the Death Penalty

Troy Kunkle - TEXAS - November 18, 2004

The state of Texas is scheduled to execute Troy Kunkle, a white man, Nov. 18 for the 1984 murder of Stephen Horton in Nueces County. Mr. Kunkle was 18 and two months old, had no criminal record, and was under the influence of alcohol, marijuana, and LSD at the time of the crime. Four other teenagers were involved in the crime. None of them received the death penalty. Tragically, Troy, a schizophrenic teenager who received no real guidance or counsel in making the most important decision of his life, turned down a plea bargain. The case proceeded to trial without any evaluation of Tory?s mental health or his competency to make such a momentous decision. Although Mr. Kunkle is schizophrenic with a family history of mental illness who was subjected to particularly shocking child abuse, no fact finder or court has ever considered whether this life history mitigates in favor of a life sentence. Mr. Kunkle was physically and emotional abused by his father, including an incident where he was thrown against a wall so hard that his spleen was bruised. Both parents also suffered from mental illness. When Mr. Kunkle was a baby, his mother was committed to a mental hospital for attempting to choke him. However, at the time, Texas law did not provide jurors with a mechanism for giving consideration to this ?mitigation?, and Troy?s lawyers never did the investigation necessary to present these facts to the jury. Recent interviews with the jurors indicate that this information would have saved Troy?s life. When the U. S. Supreme Court forced Texas to change its laws and allow jurors a chance to spare the lives of defendants like Troy, Troy asked for a new trial where he could present this evidence to the jury. However in a cruelly ironic twist, the appellate courts refused to take his history into account because it was presented to them too late in the process. Mr. Kunkle was young and had no criminal record. His actions were clearly impaired by drugs and alcohol. He had a truly horrific childhood, and suffers from mental illness. Above all, this evidence was never presented to a jury because he was tried under a statute later found unconstitutional, and has not received full consideration by the courts due to procedural technicalities. This is precisely the circumstance, where important, valid evidence cannot be brought to the courts, when the clemency process is meant to serve as a safety net. This cannot be justice, and execution is clearly not the answer. Please contact Gov. Rick Perry and urge him to stop the execution of Troy Kunkle.

Houston Chronicle

"Killer who spent half of life on death row to die tonight," by Michael Graczyk. (AP Jan. 25, 2005, 8:33PM)

A condemned killer who twice avoided execution last year when courts halted his punishment on the day he was to die was executed today for a slaying in Corpus Christi more than 20 years ago. The execution came after the U.S. Supreme Court refused on a narrow 5-4 vote to block Troy Kunkle's execution.

Kunkle was contrite as he looked toward the daughter and son-in-law of his victim, Stephen Horton, and sought their forgiveness. "I would like to ask you to forgive me," he said. "I made a mistake and I am sorry for what I did. All I can do is ask you to forgive me." Kunkle then turned his head toward an adjacent window in the death house and expressed love to witnesses he selected to watch him die, including his mother and his wife. "I love you and I will see all of you in heaven," he said. "I love you very much. Praise Jesus."

Kunkle recited the Lord's Prayer and then indicated to the warden he had finished. In the seconds before the lethal drugs began taking effect, he repeatedly mouthed "I love you" to his friends and relatives. He exhaled slightly and gasped before he slipped into unconsciousness. Eight minutes later, at 8:12 p.m. CST, he was pronounced dead. "Shame to Texas," his wife, Christa Heber, said as she watched him die.

Kunkle, 38, spent more than half of his life on death row for the death of Horton, 31, who was fatally shot and robbed of $13. The 1984 shooting gained notoriety with disclosures Kunkle, from San Antonio and then just over 18, quoted lyrics of a song by the heavy metal rock group Metallica after Horton was gunned down. The lethal injection was the second of the year in Texas, the nation's busiest execution state.

Denton Record-Chronicle

"Killer who cited Metallica lyrics executed," by Michael Graczyk. (AP 01/26/2005)

A condemned killer who twice avoided execution last year when courts halted his punishment on the day he was to die was executed Tuesday for a slaying in Corpus Christi more than 20 years ago. The execution came after the U.S. Supreme Court refused on a narrow 5-4 vote to block Troy Kunkle's execution.

Kunkle was contrite as he looked toward the daughter and son-in-law of his victim, Stephen Horton, and sought their forgiveness. "I would like to ask you to forgive me," he said. "I made a mistake and I am sorry for what I did. All I can do is ask you to forgive me." Kunkle then turned his head toward an adjacent window in the death house and expressed love to witnesses he selected to watch him die, including his mother and his wife. "I love you and I will see all of you in heaven," he said. "I love you very much. Praise Jesus."

Kunkle recited the Lord's Prayer and then indicated to the warden he had finished. In the seconds before the lethal drugs began taking effect, he repeatedly mouthed "I love you" to his friends and relatives. He exhaled slightly and gasped before he slipped into unconsciousness. Eight minutes later, at 8:12 p.m. CST, he was pronounced dead. "Shame to Texas," his wife, Christa Heber, said as she watched him die.

Kunkle, 38, spent more than half of his life on death row for the death of Horton, 31, who was fatally shot and robbed of $13. The 1984 shooting gained notoriety with disclosures Kunkle, from San Antonio and then just over 18, quoted lyrics of a song by the heavy metal rock group Metallica after Horton was gunned down. The lethal injection was the second of the year in Texas, the nation's busiest execution state.

Twice last year Kunkle was spared from the death chamber by court rulings on the day he was set to die. The most recent halt came Nov. 18 when the U.S. Supreme Court stopped the execution about 40 minutes after Kunkle could have been strapped to the death chamber gurney for injection. Tuesday's execution date was his sixth.

In their appeal, Kunkle's lawyers had contended jurors at his trial were not allowed to properly consider as mitigating evidence his history of alcohol and drug abuse, plus a family history of mental illness and abuse. Attorneys also contended his death sentence was unconstitutional and he improperly was denied resentencing due to procedural technicalities that limit the number of appeals on the same issues.

It was Aug. 11, 1984, when Kunkle and several friends drove from their home in San Antonio about 140 miles to the southeast to Corpus Christi for a day at the beach. They were high on drugs and beer and looking for someone to rob when they offered Horton a ride that evening. Once inside the car, a gun was put to his head and he was ordered to surrender his wallet. Horton refused and was shot. His body was pushed out of the car. His wallet, containing $13, was taken.

According to testimony at Kunkle's capital murder trial, after shooting Horton in the head Kunkle chanted: "Another day, another death, another sorrow, another breath" — the refrain from the Metallica song "No Remorse" on the album "Kill 'Em All." Prosecutors also remembered him at one point during his trial playing an air guitar in the courtroom as lawyers discussed whether the Metallica song could be admitted into evidence.

Kunkle, born in Nuremberg, Germany, where his father was stationed in the military, last year told San Antonio television station KENS the slaying was a "juvenile mistake made with juvenile peer pressure." "There's nothing about this to be proud of," he added. "Really, it's kind of a shame and an embarrassment." Three of Kunkle's companions that day received prison terms ranging from 30 years to life.

"To this day I can recall Stephen's face as I stood there alone with him," Ed Wimberly, who was working as a Corpus Christi police officer at the time and found Horton's body, recently wrote to the Corpus Christi Caller-Times. "I wondered why someone would shoot him in the head and then dump his lifeless body in a field without a care in the world."

Reuters News

"Texas Man Executed for Murder Over 20 Years Ago." (Tue Jan 25, 2005 09:55 PM ET)

HUNTSVILLE, Texas (Reuters) - A Texas man was executed by lethal injection on Tuesday for the robbery and murder more than 20 years ago of a man carrying $13 in his wallet. Troy Kunkle, 38, was condemned for killing Steven Horton, 31, in Corpus Christi, Texas, after robbing him on Aug. 12, 1984. Kunkle's execution was delayed for two hours as the U.S. Supreme Court considered last minute appeals by his lawyers.

In 1984, Kunkle and three accomplices offered Horton a ride in their car as he walked down a Corpus Christi street. When Horton refused to give up his wallet, Kunkle shot him in the back of the head. After killing Horton, an accomplice said Kunkle quoted: "Another day, another death, another sorrow, another breath," a lyric from heavy-metal band Metallica song "No Remorse." His three accomplices received prison sentences ranging from 30 years to life.

In a final statement while strapped to a gurney in the death chamber, Kunkle sought forgiveness. "I would like to ask you to forgive me," he said. "I made a mistake and I am sorry for what I did. All I can do is ask you to forgive me. I love you and I will see all of you in Heaven. I love you very much. Praise Jesus. I love you." He then recited the Lord's Prayer.

Kunkle was the second person executed in Texas this year. He was the 338th put to death since the state resumed capital punishment in 1982, six years after the Supreme Court lifted a national death penalty ban, a total that leads the nation.

For his final meal, Kunkle requested fried chicken, chicken fried steak, a hamburger with cheese and onions, french fries, cauliflower, cinnamon rolls, apple pie and milk.

Blabbermouth.Net

METALLICA-'Inspired' Killer's Case Goes to U.S. Supreme Court - Jan. 25, 2005

San Antonio's WOAI.com is reporting that the U.S. Supreme Court Tuesday night (Jan. 25) was considering whether to block the execution of a Texas death row inmate who chanted the chorus to METALLICA's "No Remorse" after fatally shooting a man in the head in Corpus Christi and robbing him of $13 twenty years ago.

Kunkle is from San Antonio, and he faced execution Tuesday for the 1984 shooting death of a man in Corpus Christi during a robbery. The victim was Stephen Horton.

Twice last year, Kunkle was spared from the Texas death chamber by court rulings on the day he was scheduled to die. The most recent halt came Nov. 18, when the U.S. Supreme Court stopped the execution about 40 minutes after Kunkle could have been strapped to the death chamber gurney for injection.

The 1984 shooting gained notoriety with disclosures that Kunkle quoted lyrics from METALLICA's song "No Remorse", from the album "Kill 'em All" ("Another day, another death, another sorrow, another breath") after Horton was gunned down.

The defense says jurors weren't allowed to properly consider as mitigating evidence Kunkle's history of alcohol and drug abuse, plus a family history of mental illness and abuse.

METALLICA-'Inspired' Killer's Case Goes to U.S. Supreme Court - Jan. 25, 2005

A Texas death row inmate who chanted the chorus to METALLICA's "No Remorse" after fatally shooting a man in the head in Corpus Christi and robbing him of $13 twenty years ago faces lethal injection Tuesday evening (Jan. 25), according to The Associated Press.

"I've completely lost all faith in the court system, not necessarily the local district attorney's office, but I'm talking about the appeals courts in all these things," says Nolan Horton, whose son was killed the evening of Aug. 11, 1984, in Corpus Christi. "I don't understand it. I don't know how some of these people got there. They just make stupid, crazy decisions."

Twice last year, Kunkle was spared from the Texas death chamber by court rulings on the day he was scheduled to die. The most recent halt came Nov. 18, when the U.S. Supreme Court stopped the execution about 40 minutes after Kunkle could have been strapped to the death chamber gurney for injection. "Ecstatic," Kunkle replied when asked to describe his feeling. "Praise God."

In December, the Supreme Court lifted the order it issued the previous month, although one justice, John Paul Stevens, wrote he believed the sentence was imposed unconstitutionally. Two days later, a judge in Corpus Christi set Kunkle's new execution date.

Kunkle, 38, who has declined requests in recent weeks to speak with The Associated Press, was 2 1/2 months past his 18th birthday when he was arrested for Horton's slaying. He's spent more than half his life on death row. The 5th U.S. Circuit Court of Appeals last week refused the halt the punishment. His attorneys Monday had new efforts in the state and federal appeals courts.

One of his lawyers, Danalynn Recer, told the Corpus Christi Caller-Times that Kunkle is remorseful for the crime and is "anguished by the effect this is having on his family, particularly his mother." "He's very concerned about how devastating it's going to be for her," Recer said. "And he's scared."

Troy Kunkle, who has the METALLICA logo tattooed on his left arm, was first scheduled to be executed in July, but the Supreme Court issued a stay as the justices considered a writ filed by Kunkle's lawyers. The writ asked the justices to decide if Texas courts have been applying an unconstitutional standard that did not allow juries to consider mitigating circumstances, such as mental illness, during capital murder trials.

According to the Texas Department of Criminal Justice, Kunkle, who was 18 at the time, and his friends, Lora Lee Zaiontz, Russell Stanley and Aaron Adkins, were visiting Corpus Christi from San Antonio in 1984. They saw Steven Horton, 31, walking along Paul Jones Avenue and offered him a ride. They demanded his wallet, which contained $13. Kunkle, according to the state's report, then told Stanley to kill Horton. When Stanley refused, Kunkle took the .22-caliber pistol and shot Horton. At the time of the killing, Kunkle reportedly quoted lyrics from METALLICA's song "No Remorse", from the album "Kill 'em All", when he said, "Another day, another death, another sorrow, another breath." All four reportedly had taken LSD and were drinking. They were eventually convicted of murder. Besides Kunkle, only Zaiontz remains incarcerated, prison officials said. The others were released.

On legal notepads in court, Kunkle wrote METALLICA lyrics, alleging the lyrics from "No Remorse" inspired him to kill. This disturbed the band's lead singer, James Hetfield, when he learned how Kunkle reacted to the verse, according to KZTV10. Hetfield, in 1984, said, "I guess this kid took it into his own ways. Of course, we're upset but I mean we had nothing directly to do with it."

Leslie Poynter Dixon, a former assistant district attorney in Nueces County who prosecuted the case, last week recalled a hearing about whether the METALLICA song could be used as evidence.

"As this album [METALLICA's 'Kill 'Em All'] was being played for the judge so he could make his decision on whether it would be admitted, Mr. Kunkle was playing an air guitar," said Dixon, now the district attorney in Van Zandt County in East Texas. "That really struck me. It suggested to me that Mr. Kunkle had no regard for human life — even his own — because this was his trial and the state was seeking the death penalty."

Corpus Christi Caller-Times

"Kunkle's sixth date for death is tonight," by Neal Falgoust. (January 25, 2005)

Condemned inmate Troy Kunkle is scheduled to die at 6 p.m. today for the 1984 shooting death of Corpus Christi resident Steven Wayne Horton.

This is the sixth time Kunkle, 38, has faced the death chamber during his 20 years in prison. The U.S. Supreme Court stayed his last execution on Nov. 18, with the news coming about half an hour after Kunkle was scheduled to die at 6 p.m. It was the second time the high court stayed the execution on the day Kunkle was set to die. The court lifted the most recent stay last month. Kunkle's attorneys have made an appeal to the Texas Board of Pardons and Paroles for a 180-day reprieve and the commutation of his death sentence to life in prison.

Members of the Texas Coalition to Abolish the Death Penalty will hold a vigil at 6 p.m. at the Incarnate Word Convent at 2910 S. Alameda St. to protest Kunkle's execution. If the execution goes forward, Kunkle will be the 338th person on Texas' death row to die by lethal injection, and the second this year.

Kunkle's attorneys have argued the jury that sentenced him to death did not have the opportunity to properly consider his history of drug and alcohol abuse as mitigating evidence at trial. That evidence, they said, could spare his life.

Kunkle, 18 at the time of the killing, and three friends were visiting Corpus Christi from San Antonio on Aug. 12, 1984, when they decided to look for someone to rob. Horton, 31, was walking on Paul Jones Avenue when the group stopped and offered him a ride home. Once he was in the car, one of the four put a gun to Horton's head and demanded his wallet. Horton refused, and Kunkle shot him in the back of the head with a .22-caliber pistol. Kunkle's girlfriend then pushed Horton's body out of the car and took his wallet, which contained $13, according to state reports.

After the killing, Kunkle reportedly recited lyrics from heavy metal band Metallica's song "No Remorse," from the album "Kill 'em All," saying, "Another day, another death, another sorrow, another breath." Later, he reportedly said the killing was "beautiful," according to state reports.

Amnesty International

"Troy Kunkle - Texas uses misapplication of law." (Saturday, January 22 2005 @ 07:11 AM EST)

USA: Texas relies on technicality to push ahead with execution of mentally ill prisoner

Amnesty International has issued an urgent appeal to the authorities in Texas to try to prevent the execution of a schizophrenic prisoner set to be lethally injected despite a US Supreme Court judge describing the execution as "unconstitutional".

The 38-year-old prisoner, Troy Kunkle, who is on death row in Texas having been convicted of a murder committed in 1984, is set to be executed on 25 January. The state authorities are relying on a legal technicality to push ahead with the execution.

Kunkle’s death sentence was imposed without the original jury being asked to consider any mitigating evidence - a process later deemed unconstitutional in a legal change. The jury also never heard any expert mental health evidence. Since his conviction evaluations have indicated that Kunkle suffers from serious mental illness, including schizophrenia.

Kunkle, who had no criminal record before the killing, had an abusive upbringing. When he was 12 his father’s mental health deteriorated and he was subject to extremely violent attacks from his father. Attacks included his father slamming his head into walls and putting Kunkle into life-threatening chokeholds. His mother also suffered from serious mental illness and Kunkle’s childhood was scarred by violence and neglect.

A psychologist has concluded that an expert evaluation at the time of the trial would have been likely to have shown Kunkle’s emerging mental disorder.

Several of the jurors in his case have since indicated that they would have voted for life imprisonment if they had been allowed to give weight to mitigating evidence.

In December the US Supreme Court expressed "regret" that despite Kunkle’s sentence being "imposed in violation of the Constitution", it was unable to act because Texas had relied on a technical rule that prevents federal courts intervening on procedural matters.

Amnesty International UK Director Kate Allen: "It is clearly wrong that Texas should rely on a legal technicality to push ahead with the execution of man whose history of childhood abuse and mental illness was never properly considered at his trial. "The Texas paroles board should recommend that the state governor commute Troy’s sentence and failing that the governor should use his power to commute the sentence. "We wish to see the total abolition of the death penalty and this disgraceful case is just one of the reasons why."

In November the Supreme Court stayed Kunkle’s execution less than an hour before it was due to be carried out. Earlier in 2004 a legal decision had allowed several Texas death row prisoners to apply for new sentencing hearings to address the question of mitigating evidence not being considered by juries at their original trial convictions.

Kunkle is being denied a new sentencing hearing on the basis that Texas court rules prevent inmates from repeat-filing a claim already lost, even though this had only been lost because of a longstanding misapplication of the law.

Kate Allen added: "Texas is relying on a bizarrely rigid application of the letter of the law to press ahead with Kunkle’s execution. It should now show that it understands the spirit of the law and allow Kunkle his constitutional rights. His execution would be a travesty, bringing nothing but shame on Texas."

Executions in Texas constitute more than one-third of the total number of executions carried out in the USA - 337 out of 946 - since 1977. Many of these have been carried out in contravention of international standards.

Kunkle v. State, 771 S.W.2d 435 (Tex.Cr.App. 1986). (Direct Appeal)

Defendant was convicted in the 28th Judicial District Court, Nueces County, Walter Dunham, Jr., J., of capital murder, and sentenced to death, and he appealed. The Court of Criminal Appeals, Miller, J., held that: (1) witness was not accomplice witness; (2) evidence was sufficient to support finding that defendant caused death of victim deliberately, though there was evidence that defendant was under influence of LSD at time of murder; and (3) evidence was sufficient to support finding that defendant would commit future acts of violence and be continuing threat to society. Affirmed. Clinton and Teague, JJ., filed dissenting opinions.

MILLER, Judge.
This is an appeal taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings twelve grounds of error before this Court. We affirm.

Appellant's first eight grounds of error concern the laws regarding accomplice witnesses, whether one of the witnesses was an accomplice witness, and the trial court's charge to the jury on these matters. In order to dispose of these grounds, as well as other grounds raised by appellant, a brief recitation of the facts is necessary.

The record shows that on August 11, 1984, at approximately 6:00 p.m., appellant and his three co-defendants, Lora Lee Zaiontz, Russell Stanley and Aaron Adkins, left San Antonio to go to Corpus Christi. Appellant was 17 years old at the time of the offense. Tom Sauls, who was not indicted for any offense stemming from these activities, was also present. Sauls believed that the five were going to the beach to "party." All five individuals were under the influence of alcohol and L.S.D. at the time. While en route to their destination, Stanley removed a loaded .22 caliber pistol from the glove compartment of the car, and fired it into the air while asking Adkins if he wanted to make money. Sauls told Stanley that "guns and acid don't mix," whereupon Stanley returned the gun to the glove compartment. Stanley removed the gun several other times.

Stanley and Adkins discussed committing robbery, and several times they slowed down to evaluate the chances of committing robbery upon the occupants of cars parked on the roadside. Although Sauls was within hearing distance of the discussions, he did not take part in them. After arriving in Corpus Christi, the five drove to the beach. Appellant and Zaiontz, his girlfriend, kept to themselves while Stanley, Adkins and Sauls walked together and discussed robbing someone. Sauls was present, but did not contribute to the discussion.

The five left the beach and went to a convenience store to buy some beer. There, Stanley and Adkins robbed a man in a phone booth at gunpoint, and obtained seven dollars. Appellant and the other two persons remained in the car while the robbery took place, but could not see the actual robbery. Sauls did not participate in the robbery or share in its proceeds. Next, the five left the convenience store and drove around looking for someone else to rob. They spotted Stephen Horton, the deceased, walking along the road. Adkins drove the car up beside Horton and Zaiontz asked Horton if he wanted a ride. Horton replied that he lived only a few blocks away, but was finally persuaded to enter the car. Horton got in the front seat, next to Zaiontz.

Stanley put a gun to the back of Horton's head and told him to give them his wallet. When Horton turned to look at Stanley, Zaiontz stuck her nails into the side of his face and told him to look forward. Appellant told Stanley to kill Horton, but Stanley refused because Stanley *438 did not believe that a killing was necessary. Stanley just wanted to "beat [Horton's] ass." Appellant then took the gun away from Stanley, stuck it up against Horton's head and said, "We're going to take you back here and blow your brains out." Adkins drove the car behind a skating rink, and appellant shot Horton in the back of the head. They opened the car door, pushed the body out, and Zaiontz took Horton's wallet. After shooting Horton, appellant stated "another day, another death, another sorrow, another breath." [FN1] Later, he also stated that the murder was beautiful. FN1. The record shows that these words are lyrics from a song.

After the murder, Sauls "freaked out on the whole thing and just sat there scared." Sauls stated that when he complained about the murder and said that they did not have to kill Horton, Stanley pointed the gun at Sauls' head and told him "[I]f you don't shut up, I am going to shoot you, too." Sauls stated that he "shut up, and ... just sat there and stared out the window the rest of the way home." The others acted as though nothing had happened as they drove back to San Antonio. When they arrived in San Antonio, the five spent the night in the same place. The next day, they went to Canyon Lake. When asked why Sauls went with the others to the lake, he stated: "Because I didn't--well, I thought it would be awful strange for me not to, because we did everything else together. It was sort of keeping an eye on me so I wouldn't go to the police." Sauls also testified that he was afraid to call the police. He was later contacted by Austin police officers, and told them everything that happened. Sauls was never arrested or charged with any offense arising out of the murder.

* * * *

9. "If you find from the evidence that the witness, Tom Sauls, was an accomplice, or you have a reasonable doubt thereof, then you are instructed that if you find beyond a reasonable doubt that an offense was committed, you cannot convict the Defendant, Troy Kunkle, of capital murder upon the testimony of Tom Sauls unless you first believe that his testimony is true and shows that the Defendant is guilty as charged; and even then you cannot convict the Defendant unless you *443 further believe that there is other evidence in this case, outside the testimony of Tom Sauls, tending to connect the Defendant with the offense committed, if you find that an offense was committed and tending to establish that the Defendant, Troy Kunkle, intentionally caused the death of Stephen Horton by shooting him with a firearm in the course of committing robbery of Stephen Horton, and then from all the evidence you must believe beyond a reasonable doubt that the Defendant is guilty of capital murder. The corroboration, if any, is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission and tend to establish that the Defendant intentionally caused the death of Stephen Horton by shooting him with a firearm in the course of committing robbery of Stephen Horton."

* * * *

We find that when the facts of the offense are considered in conjunction with the evidence presented at the punishment stage of trial, there was evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant would commit future acts of violence and be a continuing threat to society. C.f. generally Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Appellant's eleventh ground of error is overruled. The judgment is affirmed.

Ex parte Kunkle, 852 S.W.2d 499 (Tex.Cr.App. 1993). (State Habeas)

After capital murder conviction and sentence of death, application for writ of habeas corpus was filed. The 28th Judicial District Court, Nueces County, Eric Brown, J., denied application. Applicant appealed. The Court of Criminal Appeals, McCormick, P.J., held that: (1) in punishment phase, defendant was not entitled to submission of particularized charge on mitigation in addition to statutory special issues, and (2) counsel was not ineffective for deciding not to present evidence of defendant's parents' mental histories and evidence of defendant's early abuse and behavioral problems. Relief denied. Maloney, J., dissented. Clinton, J., issued dissenting opinion in which Baird, J., joined.

Kunkle v. Dretke, 352 F.3d 980 (5th Cir. 2003) (Federal Habeas)

Background: After capital murder conviction and sentence of death, affirmed at 771 S.W.2d 435, and after denial of state petition for habeas relief, 852 S.W.2d 499, state prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, Janis Graham Jack, J., denied petition, and petitioner sought certificate of appealability (COA).

Holdings: After granting COA, the Court of Appeals, W. Eugene Davis, Circuit Judge, held that:
(1) petitioner was not entitled to complete transcript of voir dire;
(2) petitioner's ineffective assistance of counsel claim was unexhausted and barred from federal habeas review;
(3) District Court was within its discretion in refusing to accept state's waiver of exhaustion defense; and
(4) petitioner was not denied effective assistance of counsel. Affirmed.

W. EUGENE DAVIS, Circuit Judge:
Petitioner, Troy Kunkle (Kunkle), was convicted of capital murder in Texas and sentenced to death. He now seeks a Certificate of Appealability (COA) from the district court's denial of habeas corpus relief. We grant Kunkle's request for a COA on his claim of ineffective assistance of counsel. After examining the merits of this claim, we conclude that the district court did not err in finding it was unexhausted. We also conclude that the Kunkle failed to demonstrate that he suffered prejudice from counsel's performance. With respect to Kunkle's remaining claims, we deny his application for COA because he has failed to make a substantial showing of a denial of a constitutional right.

On the night of August 11, 1984, Kunkle and his girlfriend Lora Lee Zaiontz, Russell Stanley, Aaron Adkins, and Tom Sauls, left San Antonio and drove to Corpus Christi. All five were under the influence of alcohol and L.S.D. While en route, Stanley removed a .22 caliber pistol from the glove compartment of the vehicle, fired it into the air, and asked Adkins if he wanted to make some money. Sauls told Stanley that "guns and acid don't mix," and Stanley returned the gun to the glove compartment. During the course of the trip, Stanley took out the gun several more times. Stanley and Adkins discussed committing a robbery and slowed the vehicle several times to assess potential victims.

When the group arrived in Corpus Christi, they drove to the beach. Kunkle and Zaiontz kept to themselves. Stanley, Adkins and Sauls went for a walk, and Stanley and Adkins again discussed robbing someone. The group left the beach and went to a convenience store to buy beer. There, Stanley and Adkins robbed a man in a phone booth at gunpoint, while Kunkle, Zaiontz, and Sauls remained in the car. Stanley and Adkins obtained only seven dollars from this victim, so they left the store to search for another victim. They spotted Stephen Horton walking *984 along the road. They pulled up next to Horton, and Zaiontz asked him if he needed a ride. Though he resisted at first, Horton was eventually persuaded to get into the car. Horton sat in the front seat, next to Zaiontz.

Once inside the car, Stanley put the gun to the back of Horton's head and told him to give them his wallet. Horton turned to look at Stanley, but Zaiontz scratched his face and told him to look forward. Kunkle told Stanley to kill him, but Stanley refused. Kunkle then took the gun from Stanley, put it to Horton's head, and said, "We're going to take you back here and blow your brains out." Adkins drove the car behind a skating rink, and Kunkle shot Horton in the back of the head. They pushed his body out of the car, and Zaiontz took his wallet. After the shooting, Kunkle quoted the following line from a song: "another day, another death, another sorrow, another breath," and told the group that the murder was "beautiful."

On February 22, 1985, a jury convicted Kunkle for the capital murder of Horton. He was sentenced to death on February 26, 1985. Kunkle's conviction and sentence were affirmed on direct appeal. Kunkle v. State, 771 S.W.2d 435 (Tex.Crim.App.1986). The Supreme Court denied certiorari. Kunkle v. Texas, 492 U.S. 925, 109 S.Ct. 3259, 106 L.Ed.2d 604 (1989).

Kunkle filed a state habeas petition in July 1989. After hearing argument from counsel, the state habeas judge determined that an evidentiary hearing was not necessary, and recommended the denial of habeas relief. The Court of Criminal Appeals accepted the recommendation and denied relief. Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App.1993).

In August 1993, Kunkle filed his first federal habeas petition pro se. He was later appointed counsel who then filed an amended petition in March 1994. In January 1995, this petition was dismissed without prejudice for failure to exhaust some of the claims in state court, and the case was closed. Kunkle filed another state habeas petition asserting the claims the district court specified as unexhausted. This petition was denied.

In April 1995, Kunkle filed an amended petition in federal court. However, he filed it under the old case number instead of initiating a new suit. No action was taken on this petition for several years. In July 2001, an order was issued under a new case number indicating that the amended petition would be treated as a new petition, filed in April 1995, and ordering the clerk of court to file a copy of the petition under the new case number. The State filed its response and moved for summary judgment. In September 2002, the federal district court denied habeas relief and refused to issue a COA. Kunkle now seeks a COA from this court.

* * * *

For the reasons stated above, we grant Kunkle's request for a COA on the claim of ineffective assistance of counsel. After considering the merits of Kunkle's ineffective assistance claim, we conclude that the district court did not err in finding it was unexhausted and deny it as procedurally defaulted. We also conclude that Kunkle has not shown prejudice as required by the second prong of Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accordingly, we affirm the district court's denial of relief on this claim. For the reasons stated above, we deny COA on Kunkle's remaining claims. AFFIRMED; COA DENIED.