Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about 29-year-old David Aaron Martinez, who is scheduled to be executed after 6 p.m. Thursday, July 28, 2005. Martinez was sentenced to death for the July 1997 rape, robbery and slaying of Kiersa Paul in an Austin park

FACTS OF THE CRIME

On July 23, 1997, a jogger found Kiersa Paul’s body beside a Zilker Park Greenbelt trail. Kiersa had been raped, strangled, and her throat had been cut. Paul told her sister the previous day that she intended to meet an individual named Wolf at the park. David Aaron Martinez, whose nickname was Wolf, told friends that he intended to meet a girl the evening of July 22, 1997, at the Greenbelt. He returned home after midnight, on July 23, 1997, with a bicycle he did not own. A police search of his apartment produced Paul’s bicycle, Paul’s bicycle bag, and Martinez’s Swiss army knife. Blood on the knife matched Paul’s DNA. Hairs on Paul’s body were consistent with Martinez’s hair and Martinez’s DNA matched semen on Paul’s underwear.

PROCEDURAL HISTORY

A Travis County grand jury indicted Martinez for capital murder on Dec 9, 1997. Martinez was convicted of capital murder on Oct. 29, 1998 and sentenced to death on Dec. 1, 1998. The Texas Court of Criminal Appeals on May 10, 2000, affirmed the conviction and sentence.

On March 6, 2002, the Texas Court of Criminal Appeals denied Martinez’s petition for state habeas relief. On July 15, 2003, a U.S. district court denied Martinez’s petition for federal habeas relief. On May 24, 2004, the 5th U.S. Circuit Court of Appeals affirmed the lower court’s denial of relief. On January 10, 2005, the U.S. Supreme Court denied Martinez certiorari review.

CRIMINAL BACKGROUND

On April 20, 1995, the State of Texas placed Martinez on five years’ deferred adjudication for carrying an explosive device. Boot camp followed when he failed to comply with the terms of his probation.

Austin American Statesman

"Greenbelt killer executed; Final appeal rejected, David Martinez given lethal injection," by Chuck Lindell. (AMERICAN-STATESMAN STAFF Thursday, July 28, 2005)

David Martinez, 29, of Austin, his final appeal tersely denied by the U.S. Supreme Court only minutes earlier, died Thursday evening in the Texas execution chamber while the family of his victim sat silently watching. "Only the sky and the green grass goes on forever, but today is a good day to die," was Martinez's final statement. He was pronounced dead at 6:17 p.m.

Martinez was convicted in 1998 for the murder of Kiersa Paul, a Minnesota resident who was working in Austin while visiting her sister. Paul was 24 when her body was found eight years and one week ago on the Barton Creek greenbelt by an early-morning jogger. She had been strangled, raped and stabbed. Her bike, found several days later with Martinez, became a key piece of evidence in his trial.

Thursday's execution, the state's 10th this year, followed last-minute appeals from lawyers who accused Travis County District Attorney Ronnie Earle's office of failing to adequately investigate claims that Martinez had been sexually abused as a teenager. The mitigating evidence, they argued, might have convinced a jury to spare Martinez's life. Appeals courts rejected that argument.

Austin American Statesman

"Martinez appeal turned down; Execution set for Thursday; U.S. Supreme Court next for Barton Creek greenbelt killer," by Chuck Lindell. (AMERICAN-STATESMAN STAFF Thursday, July 28, 2005)

Texas' highest criminal appeals court refused Wednesday to throw out the death sentence of David Martinez, convicted in the 1997 killing of Kiersa Paul on the Barton Creek greenbelt. Martinez, 29, is scheduled to die by chemical injection about 6 p.m. today. His next appeal, seeking a stay of execution and a review of his case from the U.S. Supreme Court, was filed Wednesday.

Paul, a 24-year-old Minnesota resident who had spent several months working in Austin and visiting her sister, was strangled, raped and stabbed near the popular Campbell's Hole swimming spot eight years ago this month. Martinez, who was arrested a short time later, alleged in his latest appeal that District Attorney Ronnie Earle's office did not adequately investigate claims that Martinez was sexually abused as a teenager by his father, Ray Martinez, and his father's companion. Evidence of sexual abuse has prompted juries to opt for a life sentence instead of the death penalty in other cases.

The Texas Court of Criminal Appeals issued a two-page order Wednesday afternoon dismissing Martinez's request for a new trial and denying the Austin man's motion for a stay of execution. Without elaborating, the court said Martinez failed to meet appellate standards that required him to provide facts that were not available at the time of his 1998 trial and, if presented, would have given jurors reason to choose a different punishment.

The same court denied Martinez's automatic appeal of his conviction and death sentence in 2000, then turned down another appeal last year, followed by rejections from the 5th U.S. Circuit Court of Appeals and, in January, the U.S. Supreme Court.

The Texas Board of Pardons and Paroles also denied Martinez's request for clemency on a 7-0 vote Tuesday.

Houston Chronicle

"Former drifter executed for '97 killing of woman; 24-year-old was raped, slashed in an Austin park," by Michael Graczyk. (AP July 29, 2005, 7:46PM)

HUNTSVILLE - A former Austin drifter was executed Thursday evening for the rape-slaying of a Minnesota woman attacked on a jogging trail eight years ago. David Martinez received lethal injection for the 1997 killing of Kiersa Paul, a 24-year-old former art student who said she was going to meet him at a popular Austin park.

"Only the sky and green grass goes on forever, and today is a good day to die," Martinez said in a brief statement before being put to death. He was pronounced dead at 6:17 p.m. Paul's parents, with another of their daughters, watched through a window a few feet away from Martinez. He made brief eye contact but said nothing to them. Martinez, 29, was the 10th prisoner to receive lethal injection this year in Texas.

Attorneys tried to block the execution with an appeal to the U.S. Supreme Court, arguing that prosecutors in Travis County should have done more to investigate claims of Martinez's abusive childhood. Moments before Martinez was scheduled to die, the high court rejected the appeals.

Martinez was convicted of capital murder for the death of Paul, a University of Minnesota sophomore art student who came to Austin to visit her sister in 1996. Eight years ago last week, Paul told her sister she was heading out on her bicycle to a popular Austin park along the Barton Creek greenbelt to meet someone she knew only as "Wolf," which was Martinez's nickname. The next morning, her body was found by a jogger. She'd been raped and strangled, had her throat cut at least eight times and had an "X" carved into her chest. Martinez was arrested days later. A Travis County jury deliberated 15 minutes at his 1998 trial before convicting him of capital murder.

ProDeathPenalty.com

In October 1998, a jury convicted Martinez of the capital murder of Kiersa Paul while attempting to commit or committing robbery or aggravated sexual assault. A jogger found Kiersa’s body along a trail on the Barton Creek Greenbelt. Kiersa told her sister the previous night that she intended to meet an individual named Wolf at that location. Her body was covered only by a pair of unbuttoned boxer shorts, and her legs were spread open. Further investigation revealed injuries consistent with strangulation, blunt force injury to the head and nose, gouge marks on the neck, bruising of both nipples, cuts on her neck, breast, and stomach, and forceful sexual intercourse. Martinez, whose nickname was “Wolf,” told friends that he intended to meet a girl that evening along the trail. He returned to his friends’ house with a bicycle he did not own. After executing a search warrant, the police determined that Martinez possessed Kiersa’s bicycle and bicycle bag. They also seized a Swiss army pocketknife owned by Martinez. Forensic tests determined that hairs found on Kiersa were consistent with Martinez’s hair and that Martinez’s pocketknife contained blood that matched Kiersa’s DNA. Semen collected from Kiersa's underwear matched Martinez’s DNA.

Texas Execution Information Center by David Carson.

David Martinez, 29, was executed by lethal injection on 28 July 2005 in Huntsville, Texas for the rape, murder, and robbery of a 24-year-old woman.

On 22 July 1997, Kiersa Paul told her sister that she was going to an Austin park that night to meet an acquaintance named "Wolf." She rode her red bicycle to work that day as usual, then left work at 7 pm on her bicycle. Meanwhile, Martinez, who was nicknamed Wolf, told some friends that he was going to meet a woman in the park. He came home after midnight with a red bicycle. Paul's body, clothed only in a pair of underwear, was found by a jogger the next day. She had been beaten on the head, raped, and strangled, and her throat was cut. An "X" was carved into her chest.

Police searched Martinez' apartment and found Paul's bicycle and a bloody knife. DNA from the blood matched the victim. Hairs consistent with Martinez' were found on Paul's body, and his DNA was matched to semen found on Paul's underwear. Martinez' defense attorney, Steve Brittain, presented no witnesses, resting his case immediately after the prosecutor did. In closing remarks, Brittain stated that Martinez didn't act like a guilty person because he didn't hide evidence, such as the bicycle, and because he told lies that were easily discovered.

Martinez had no prior criminal convictions, but in April 1995, a few months prior to his 18th birthday, he was charged with carrying an explosive device. He was given deferred adjudication and placed on five years' probation. He was sent to boot camp after violating the terms of his probation.

A jury convicted Martinez of capital murder in October 1998 and subsequently sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 2000. All of his subsequent appeals in state and federal court were denied.

"Only the sky and green grass goes on forever, and today is a good day to die," Martinez said in his last statement. The lethal injection was then started. Martinez was pronounced dead at 6:17 p.m.

National Coalition to Abolish the Death Penalty

David Aaron Martinez - TEXAS - July 28, 2005 6:00 PM CST

The state of Texas is scheduled to execute 29-year-old David Aaron Martinez, a Hispanic man July 28th for the July 27, 1997 slaying of 24-year-old Kiersa Paul, a white female in Travis County. Martinez was 21 when the crime was committed. He was charged with intentional murder while committing a robbery and aggravated sexual assault.

Like many on death row, Martinez comes from a troubled background. His attorneys said that he moved from Texas to Iowa and back to Texas, living with one parent or the other. While Martinez lived in Austin during his early to mid-teens, his father was “heavily involved” in making sadomasochistic paraphernalia. For some time before his arrest, Martinez lived on the street. In his case file, a March 1997 form from the Salvation Army lists him as homeless.

The death penalty is an arbitrary punishment that is more likely to be distributed to those who come from poor upbringings and economic backgrounds, and is less likely to be the punishment for those who commit the worst crimes. This penalty also punishes those who are convicted for killing whites more than any other race. In cases that result in a death sentence, four out of every five murder victims are white, despite the fact that blacks make up about 50 percent of this country’s murder victims.

Do not let the state of Texas carry out a punishment that is inherently unequal. Please take a moment to write Governor Rick Perry and the Board of Pardons and Paroles to recommend that Martinez’s life be sparred.

Dallas Morning News

"Killer put to death for Minn. student's slaying." (AP 08:07 AM CDT on Friday, July 29, 2005 )

HUNTSVILLE – With the parents of his victim watching through a window a few feet from him, a condemned Texas prisoner quietly went to his death for raping, strangling and slashing their daughter eight years ago at an Austin park. David Martinez, 29, became the 10th inmate executed this year in Texas, which leads the nation in carrying out capital punishment. The lethal injection Thursday evening came moments after the U.S. Supreme Court rejected last-day appeals that sought to block the execution.

Martinez was convicted of the July 1997 slaying of Kiersa Paul, 24, a sophomore art student at the University of Minnesota who was visiting her sister in Austin, decided to stay longer and had found a job as a cashier at a bakery. She and Martinez met through mutual friends where they all shot pool at an Austin club. Paul's parents, from Bloomington, Minn., and another of their daughters were among the people in a death chamber witness area. They held hands tightly as Martinez made only brief eye contact with them. He had a short statement, sputtered and gasped before slipping into unconsciousness.

"Only the sky and the green grass goes on forever, and today is a good day to die," Martinez said. Eight minutes after the drugs began flowing into his arms, he was pronounced dead.

The night she died, Paul told her sister she was going to a popular Austin park along the Barton Creek greenbelt to meet a guy she knew only as "Wolf," which was Martinez's nickname. The next morning her body was found by a jogger. Her wounds included at least eight slashes to her throat and an "X" carved into her chest. Martinez was arrested days later. A Travis County jury deliberated only 15 minutes at his 1998 trial before convicting him of capital murder. Two weeks later, they decided he should be put to death.

In their appeals, defense attorneys argued prosecutors in Travis County should have done more to investigate claims of Martinez's abusive childhood. Jurors who determined he should be put to death should have had more of that information so they could have better considered whether a life prison term would have been more appropriate, lawyers said in their appeals. "The case on guilt-innocence was fairly overwhelming," Darla Davis, a Travis County assistant district attorney who was one of the trial prosecutors, said Wednesday. "We had DNA, we had hair consistent with his in her hand, he had her belongings, and he had a knife with her blood on it."

Bill White, one of Martinez's trial lawyers, said the defense strategy at the capital murder trial was not to convince jurors of Martinez's innocence but to focus on punishment. "Our goal was to bring forward evidence in terms of his own life in his family and how he grew up and the circumstances that certainly were not the best," White said. "My idea was to try to talk them out of death."

Court documents indicated Martinez's mother, who also witnessed the execution, may have abused and neglected him. Their house was filled with bird feces. His father was living elsewhere in an openly gay relationship and involved in the manufacture of sadomasochistic sex toys. When Martinez stayed there, he also may have been abused. Later, Martinez at times lived on the streets of Austin. Appeals lawyers tracked down his father, but they said he refused to cooperate. He also had refused to testify at Martinez's trial.

At the time of the slaying, Martinez was on probation for a 1995 conviction for possession of an explosive device, a homemade hand grenade police found in his car during a traffic stop.

At least eight other Texas death row inmates have execution dates, two in each of the next four months.

Reuters News

"Texas executes man for 1997 killing." (Thu Jul 28, 2005 8:07 PM ET)

HUNTSVILLE, Texas (Reuters) - HUNTSVILLE, Texas, July 28 (Reuters) - Texas executed a 29-year-old high school dropout on Thursday for the 1997 rape and slaying of a woman in an Austin park.

David Aaron Martinez was convicted of sexually assaulting, strangling, slashing and robbing 24-year-old Kiersa Paul, whose body was found by a jogger. The two had been set to meet at the park on the evening of July 22, 1997. Friends reported he returned home early the next day with a bicycle he did not own.

A police search of his apartment turned up Paul's bicycle and bag along with Martinez's Swiss army knife, stained with blood that matched Paul's DNA, according to the Texas attorney general's office. Hairs on Paul's body and semen on her underwear matched those of Martinez, authorities said. He was convicted and sentenced to death.

Martinez was the 346th person put to death in Texas since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Texas leads the country in executions.

Martinez did not request a last meal but did make a final statement: "Only the sky and the green grass goes on forever and today is a good day to die." Texas has eight more executions scheduled this year.

Minneapolis Star

"St. Paul woman's killer executed in Texas." (Austin American-statesman July 29, 2005)

HUNTSVILLE, TEXAS -- The man who killed a St. Paul woman eight years ago died Thursday evening in a Texas execution chamber while the victim's family watched silently from behind barred glass.

Convicted murderer David Martinez of Austin, his final appeal tersely denied by the U.S. Supreme Court only 37 minutes earlier, spent about 10 seconds staring at the parents and sister of victim Kiersa Paul, then turned and nodded toward an adjacent, separate room containing his mother and three friends.

Eyes closed, Martinez delivered a final statement without directly addressing either family. "Only the sky and the green grass goes on forever, and today is a good day to die," he said, paraphrasing an American Indian saying. The lethal drugs began flowing a few seconds later. Martinez, 29, sputtered several times and sighed. He was pronounced dead eight minutes later at 6:17 p.m.

Paul's parents -- Gerald and Margaret Paul of Bloomington, Minn. -- held hands but said nothing. They declined to speak with reporters after the execution.

Their daughter was 24 when her body was found eight years and one week ago on the Barton Creek greenbelt, a wooded trail that Paul loved to explore on her red Raleigh bicycle -- and a place she had gone the night before to console Martinez, a troubled acquaintance. An early-morning jogger discovered Paul, who had been strangled, raped and stabbed. Her bike, found several days later with Martinez, became a key piece of evidence in his trial.

Thursday's execution, the state's 10th this year, followed a last-minute appeal from attorneys who accused Travis County District Attorney Ronnie Earle's office of failing to adequately investigate claims that Martinez had been sexually abused as a teenager by his father.

While Martinez's guilt was not in question, his attorneys said, evidence of his abusive past might have persuaded a jury to spare his life. The U.S. Supreme Court had ruled previously that a death sentence cannot be valid unless evidence of childhood sexual abuse is investigated and presented to a jury. However, the high court dismissed Martinez's final appeals without comment Thursday, other than noting that Justice Sandra Day O'Connor did not participate in consideration of the appeals. A day earlier, the Texas Court of Criminal Appeals rejected a similar appeal.

Paul was a University of Minnesota student who was taking an extended break visiting her sister, Julie Andrews of Austin. Andrews, given up for adoption as an infant, was a sister Paul didn't know she had until a few years earlier, but the women quickly developed a strong bond. Though she enjoyed the friends she made and Austin's outdoor-oriented lifestyle, Paul had decided to return to the University of Minnesota in the fall of 1997. One of her acquaintances was Martinez, a cook who had been homeless after dropping out of high school after his junior year.

Martinez is the 346th person executed since Texas began administering the death penalty in 1982 -- six years after the U.S. Supreme Court reinstated capital punishment.

ABOLISH Archives

TEXAS:

In Austin, a Travis County jury took only 15 minutes Thursday to find David Aaron Martinez guilty of capital murder in the rape, robbery and killing of Kiersa Paul. The speedy verdict caught court personnel by surprise as they ran to find attorneys who had just left the building. But no one in the courtroom seemed taken aback by the jury's decision.

The punishment part of the trial, which begins Tuesday, is expected to last at least 2 weeks. Martinez could receive either life in prison or the death penalty.

Before reading the jury's decision, Judge Mike Lynch advised Paul's family not to show too much emotion. Her relatives from Minnesota and Texas, who took up the 1st 3 rows of the right side of the courtroom, were moved to tears a few times times during the 4-day trial.

Martinez, who has sat impassively throughout the proceedings, showed no reaction when the verdict was read, apart from briefly closing his eyes.

The swiftness of the verdict seemed to reflect what prosecutor Robert Smith referred to as the overwhelming evidence against Martinez, also known as "Wolf." He said Martinez was motivated by the desire to have "deviant sexual intercourse" with Paul.

Paul told people she was meeting "Wolf," an acquaintance she felt sorry for, on July 22, 1997, the night before her body was found. DNA testing matched hair and semen found on Paul's body with samples taken from Martinez. He also brought home her red Raleigh bicycle that night and passed around American Spirit cigarettes -- her brand, not his. Her blood also was found on his pocket knife.

Martinez's attorneys presented no witnesses, resting their case immediately after the state did. In his closing remarks, defense attorney Steve Brittain said Martinez didn't act like a guilty person because he didn't hide evidence, like the bicycle, and because he told lies that were easily discovered.

(source: Austin American-Statesman)

Martinez v. Dretke, 99 Fed.Appx. 538 (5th Cir. Tex. 2004) (Habeas)

Background: Defendant convicted of capital murder petitioned for a writ of habeas corpus. The United States District Court for the Western District of Texas denied relief, and defendant appealed.

Holdings: The Court of Appeals, Smith, Circuit Judge, held that:
(1) defendant was not denied effective assistance of counsel, and
(2) admission of a test considering 20 factors in determining whether a person met the definition of a psychopath did not violate clearly established federal law. Affirmed.

SMITH, Circuit Judge.
David Martinez appeals the denial of his petition for writ of habeas corpus. Finding no error, we affirm.

In October 1998, a jury convicted Martinez of the capital murder of Kiersa Paul while attempting to commit or committing robbery or aggravated sexual assault. [FN1] During the punishment phase of the trial, the defense and prosecution presented witnesses regarding Martinez's character, past experiences, and future dangerousness. The prosecution also offered the testimony of an expert, Dr. Ferrara, who used the Hare Psychopathy Checklist to argue that Martinez posed a future danger to society.

FN1. A jogger found Paul's body along a trail. Paul told her sister the previous night that she intended to meet an individual named Wolf at that location. Her body was covered only by a pair of unbuttoned boxer shorts, and her legs were spread open. Further investigation revealed injuries consistent with strangulation, blunt force injury to the head and nose, gouge marks on the neck, bruising of both nipples, cuts on her neck, breast, and stomach, and forceful sexual intercourse. Martinez, whose nickname was "Wolf," told friends that he intended to meet a girl that evening along the trail. He returned to his friends' house with a bicycle he did not own. After executing a search warrant, the police determined that Martinez possessed Paul's bicycle and bicycle bag. They also seized a Swiss army pocketknife owned by Martinez. Forensic tests determined that hairs found on Paul were consistent with Martinez's hair and that Martinez's pocketknife contained blood that matched Paul's DNA. Semen collected from Paul's underwear matched Martinez's DNA.

The jury expressly found (1) that a probability existed that Martinez would commit future criminal acts of violence and would represent a continuing threat to society; and (2) that no sufficient mitigating circumstances existed to justify a life sentence rather than the death penalty. Consequently, the court sentenced Martinez to death.

Martinez unsuccessfully challenged his conviction and sentence through a direct appeal and through a state habeas petition. He filed a federal habeas petition pursuant to 28 U.S.C. § 2254. The district court denied relief on all seven issues Martinez raised but issued a Certificate of Appealability ("COA"), pursuant to 28 U.S.C. § 2253(c)(2) on four issues: (1) whether the petitioner was denied the effective assistance of counsel when his trial counsel failed to prepare for and adequately argue the results of the Hare Psychopathy Tests should be excluded, or adequately impeach the State's expert on this issue; (2) whether the petitioner's due process rights were violated with the admission of the Hare Psychopathy Tests; (3) whether the petitioner was denied the effective assistance of counsel when his trial counsel failed to investigate and present evidence of the substantial abuse suffered by the petitioner at the hands of his mother, father, and his father's sado-masochistic homosexual lover; and (4) whether the petitioner was denied the effective assistance of counsel when his trial attorneys failed to adequately investigate and present mitigating evidence as well as employ and prepare defense experts and cross-examine the State's experts in such a manner as to provide the jury a true and correct picture of the petitioner's future dangerousness.

The four grounds do not concern the validity of the verdict but only address questions surrounding the punishment phase of the trial. The district court did not err in denying Martinez's habeas petition on these four matters.

* * *

Thus, Martinez's trial attorneys did not perform in a manner that fell below any objective standard of reasonableness. They conducted investigations and located numerous witnesses to help their client avoid the death penalty. In the course of the punishment phase, they had to make strategic decisions based on the available evidence and on the predicted effect a certain approach might have on the jury. Martinez has not satisfied the first prong of Washington. Thus, his claims with respect to the first, third, and fourth issues on which he requested a COA are denied.

* * *

The judgment denying habeas relief is AFFIRMED.