Thursday, January 16, 2014
Media Advisory: Edgar A. Tamayo scheduled for execution

AUSTIN – Pursuant to a court order from the 209th District Court of Harris County, Edgar Arias Tamayo is scheduled for execution after 6 p.m. on Jan. 22, 2014. On Nov. 1, 1994, Tamayo was sentenced to die for the shooting death of Houston Police Officer Guy Gaddis.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described Gaddis’s murder as follows: Tamayo and another man were arrested in the parking lot of a bar in Harris County, Texas on January 31, 1994, for robbing another patron. After the men were searched and handcuffed, Officer Guy Gaddis of the Houston Police Department placed them in a patrol car, with Tamayo seated behind Officer Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed to the other passenger that he had a gun in his waistband. Tamayo managed to remove the gun from his waistband despite the fact that he was handcuffed. When Officer Gaddis returned to the vehicle and drove away, Tamayo shot Officer Gaddis multiple times. The patrol car crashed into a residence, and Tamayo escaped through a broken window. The police were called to the scene and captured Tamayo as he ran down the street near the crash, still handcuffed. Officer Gaddis was taken to the hospital immediately, but he was pronounced dead upon arrival.

Tamayo gave two written statements admitting that he had the gun in the police car, that he shot Gaddis, and that he knew Gaddis was a police officer. At trial, the evidence indicated that Tamayo, rather than the other passenger, was the shooter. The State also presented evidence that Tamayo had purchased the gun several days before the murder.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment. During the punishment phase of Tamayo’s trial, the State offered evidence of Tamayo’s criminal history and convictions, which included threatening bodily harm to several people. The State also offered evidence that Tamayo fired a gun in a mobile home park in the direction of other mobile homes and, on another occasion, was spotted chasing a man while in possession of a gun.

As mitigation evidence, Tamayo’s counsel offered the testimony of three bailiffs who escorted Tamayo to and from the courtroom, who stated that he was respectful and had never been violent. Two former co-workers testified that Tamayo worked with them and that they had no trouble with him. Finally, Tamayo’s parents testified that Tamayo had not been in trouble as a child and that he never wanted for food or shelter. Both parents indicated that they were sorry for the pain their son caused Gaddis’s family and pleaded with the jury to spare Tamayo’s life. In rebuttal, the State called a fourth bailiff who testified that Tamayo was aggressive and uncooperative.

PROCEDURAL HISTORY

On Sept. 27, 1994, a Harris County grand jury indicted Tamayo.
On Oct. 27, 1994, after a trial jurors found Tamayo guilty of capital murder.
On Nov. 1, 1994, after a punishment hearing, the court sentenced Tamayo to death.
On Dec. 11, 1996, the Court of Criminal Appeals affirmed Tamayo’s conviction and sentence.
On Feb. 23, 1998, Tamayo filed first state application for habeas corpus relief.
On June 11, 2003, the Court of Criminal Appeals denied habeas corpus relief.
On June 17, 2003, Tamayo filed his first subsequent state writ application.
On Sept. 10, 2003, the Court of Criminal Appeals dismissed Tamayo’s subsequent writ application.
On Sept. 11, 2003, Tamayo filed his petition for federal habeas corpus relief.
On Mar. 21, 2005, Tamayo filed his second subsequent state writ application.
On July 2, 2008, Court of Criminal Appeals dismissed Tamayo’s second subsequent writ application.
On Mar. 8, 2010, Tamayo filed his third subsequent state writ application.
On June 9, 2010, Court of Criminal Appeals dismissed Tamayo’s third subsequent writ application.
On Mar. 25, 2011, the federal district court denied habeas corpus relief.
On April 4, 2011, Tamayo filed his notice of appeal.
On July 20, 2011, Tamayo filed application for certificate of appealability in the Fifth Circuit.
On Dec. 21, 2011, the Fifth Circuit denied application for a certificate of appealability.
On Jan. 17, 2012, Tamayo petitioned for rehearing.
On Feb. 15, 2012, Tamayo’s petition for rehearing was denied.
On May 14, 2012, Tamayo sought certiorari review with the U.S. Supreme Court.
On Nov. 13, 2012, the U.S. Supreme Court denied certiorari review.

Texas Execution Information Center by David Carson.

Edgar Arias Tamayo, 46, was executed by lethal injection on 22 January 2014 in Huntsville, Texas for the murder of a police officer who was arresting him for robbery.

On 31 January 1994 in southwest Houston, a man flagged down Houston police officer Guy Gaddis outside a nightclub, saying he had just been robbed. Officer Gaddis, 24, detained Tamayo, then 26, and another man in a parking lot. He searched Tamayo and found the robbery victim's watch. He then handcuffed the two suspects and placed them in the back seat of his patrol car, with Tamayo seated directly behind him. While they were on their way to jail, Gaddis stopped at a convenience store to make a telephone call to the district attorney's office. Tamayo then revealed to the other suspect that he had a gun in his waistband. He was able to remove the pistol from his waistband despite the handcuffs. When Gaddis returned to the vehicle and began driving away, Tamayo turned around in his seat, facing the rear. He then fired six shots through the plexiglas divider, hitting Gaddis three times in the back of the head. Gaddis's car ran off the road into a house. Tamayo then kicked out a broken window and fled. He was arrested again several blocks away, still wearing handcuffs. He was also wearing the robbery victim's necklace and carrying his watch. Officer Gaddis was pronounced dead upon arrival at the hospital.

Tamayo told investigators that he was angry with the officer because he wouldn't allow him to leave his keys with his wife before being transported to jail. Tamayo was an illegal immigrant from Mexico. He had recently arrived in Texas after spending three years in prison in California for robbery. A jury convicted Tamayo of capital murder in November 1994 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in December 1996.

A provision of the Vienna Convention of 1963 states that citizens of a foreign country must have access to their consulate when charged with a crime. In 2004, the International Court of Justice (ICJ) issued a ruling finding that 51 Mexican nationals who were under death sentences in the United States had been denied their consular rights. One of those was Tamayo. In compliance with the court's ruling, President George W. Bush ordered Texas to review Tamayo's case to determine whether the failure to inform him of his consular rights negatively affected the outcome. In response, the Texas Court of Criminal Appeals ruled that the state was not bound by the ICJ's ruling, and it declined to review Tamayo's consular rights claim. In 2008, the United States Supreme Court agreed with the Texas high court where another Texas prisoner was concerned that the ICJ's ruling did not constitute binding domestic law because Congress had not passed legislation to implement it. In 2012, the Supreme Court declined to review Tamayo's case.

In addition to the consular rights issue, Tamayo also filed other appeals in state and federal court, including a claim that he was ineligible for execution by reason of mental retardation. All of his appeals were denied. A spokesperson for Texas Attorney General Greg Abbott noted that at the time of his arrest, Tamayo was afforded the rights of U.S. citizens, including the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. The spokesperson stated that upon hearing those rights recited to him in Spanish, Tamayo waived them and opted to confess to Gaddis's murder.

In late 2013, when Harris County prosecutors requested an execution date for Tamayo, U.S. Secretary of State John Kerry sent the judge a letter asking him not to set an execution date because Tamayo was a Mexican citizen. "I want to be clear. I have no reason to doubt the facts of Mr. Tamayo's conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer," Kerry wrote. This is a process issue I am raising because it could impact the way American citizens are treated in other countries." District Judge Michael McSpadden signed Tamayo's death warrant despite Kerry's request. Appeals by Mexico's Foreign Affairs Ministry to Governor Rick Perry and Attorney General Greg Abbot asking them to stay Tamayo's execution went unheeded.

Texas Department of Criminal Justice spokesman Jason Clark said he met with Tamayo in his cell the morning of his execution. Clark said Tamayo told him he was "ready to go. Twenty years is too long." When asked about the possibility of a stay, Tamayo shrugged and said, "If they take me back [to death row], they take me back." That afternoon, a federal judge rejected a civil suit filed by Tamayo's lawyers. Their appeals to the U.S. Fifth Circuit Court of Appeals and the U.S. Supreme Court were denied.

Officer Gaddis's mother and two brothers were among those who attended Tamayo's execution. One of the brothers, Gary Gaddis, told a reporter it was "unfortunate this has become a political event." "We're here to remind the public who the true victim is in this crime and to warn the public that John Kerry has no right to try to change the locks of the Supreme Court and turn the keys over to the international community," he said. No one attended on Tamayo's behalf.

The execution was delayed about three hours by the condemned man's final appeals. When the warden asked Tamayo if he wanted to make a last statement, he mumbled, "No." The lethal injection was given. He was pronounced dead at 9:32 p.m.

Houston Chronicle

"Texas executes man despite opposition from Mexico," by Michael Graczyk. (AP January 23, 2014)

HUNTSVILLE, Texas (AP) — A Mexican national has been executed in Texas for killing a Houston police officer, despite pleas and diplomatic pressure from the Mexican government and the U.S. State Department to halt the punishment. Edgar Tamayo, 46, received a lethal injection Wednesday night for the January 1994 fatal shooting of Officer Guy Gaddis, 24.

Asked by a warden if he had a final statement, he mumbled "no" and shook his head. As the lethal dose of pentobarbital began taking effect, he took a few breaths and then made one slightly audible snore before all movement stopped. He was pronounced dead 17 minutes after the drug was administered, at 9:32 p.m. CST. The execution, the first this year in the nation's most active death penalty state, was delayed more than three hours while the U.S. Supreme Court considered last-ditch appeals.

Tamayo never looked toward Gaddis' mother, two brothers and two other relatives who watched through a window. "He's a coward, just like when he shot my brother in the back of the head, and he died a coward," Glen Gaddis said. Several dozen police officers and supporters of the slain patrolman revved their motorcycles outside the prison before witnesses were allowed into the death chamber. Tamayo selected no witnesses of his own. "A little bit of my shredded heart is feeling better," the officer's mother, Gayle, said.

The execution came after the U.S. Supreme Court and lower federal courts rejected last-day appeals and Texas officials spurned arguments that Tamayo's case was tainted because he wasn't informed, under an international agreement, that he could get legal help from the Mexican consulate after his arrest in the officer's slaying. Attorneys had also argued unsuccessfully that Tamayo was mentally impaired, making him ineligible for execution, and that the state's clemency procedures were unfair.

The Texas Board of Pardons and Paroles rejected Tamayo's request for clemency on Tuesday. "It doesn't matter where you're from," said Lucy Nashed, spokeswoman for Gov. Rick Perry. "If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty." Tamayo's lawyers, Sandra L. Babcock and Maurie Levin, issued a statement after the Supreme Court's ruling, saying Perry and Attorney General Greg Abbott "ignored promises they made to our nation's leaders that they would ensure review of Mr. Tamayo's consular rights violation." "The execution of Mr. Tamayo violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad," Babcock and Levin also said.

The Mexican government earlier this week said it "strongly opposed" the execution. "The issue of fundamental importance in this case is the respect for the right of access to protection provided by our consulates to Mexicans abroad," Euclides Del Moral Arbona, a director in the Mexican Ministry of Foreign Affairs, told reporters outside the prison.

Gaddis, who had been on the force for two years, was driving Tamayo and another man from a robbery scene when the officer was shot three times in the head and neck with a pistol Tamayo had concealed in his pants. The car crashed, and Tamayo fled on foot but was captured a few blocks away, still in handcuffs, carrying the robbery victim's watch and wearing the victim's necklace. Mexican officials and Tamayo's attorneys contend he was protected under a provision of the 1963 Vienna Convention on Consular Relations. Legal assistance guaranteed under that treaty could have uncovered evidence to contest the capital murder charge or provide evidence to keep Tamayo off death row, they said. Records show the consulate became involved or aware of the case just as his trial was to begin.

Secretary of State John Kerry previously asked Abbott to delay Tamayo's punishment, saying it "could impact the way American citizens are treated in other countries." The State Department repeated that stance earlier Wednesday but had no immediate comment following the execution. Another of Gaddis' brothers, Gary, said it was "unfortunate this has become a political event." "But we're here to remind the public who the true victim is in this crime and to warn the public that John Kerry has no right to try to change the locks of the Supreme Court and turn the keys over to the international community," he said. Tamayo was in the U.S. illegally and had a criminal record in California, where he had served time for robbery and was paroled, according to prison records.

At least two other inmates in circumstances similar to Tamayo's were executed in Texas in recent years. He was among more than four dozen Mexican nationals awaiting execution in the U.S. in 2004 when the International Court of Justice in The Hague, Netherlands, ruled they hadn't been advised properly of their consular rights. The Supreme Court subsequently said hearings urged by the international court in those inmates' cases could be mandated only if Congress implemented legislation to do so. That legislation has not been passed.

Huntsville Item

"Texas executes man despite opposition from Mexico," by Michael Graczy. (AP Jan 22, 2014, 10:17 PM)

A Mexican national was executed Wednesday night in Texas for killing a Houston police officer, despite pleas and diplomatic pressure from the Mexican government and the U.S. State Department to halt the punishment. Edgar Tamayo, 46, received a lethal injection for the January 1994 fatal shooting of Officer Guy Gaddis, 24.

Asked by a warden if he had a final statement, he mumbled "no" and shook his head. As the lethal dose of pentobarbital began taking effect, he took a few breaths and then made one slightly audible snore before all movement stopped. He was pronounced dead 17 minutes after the drug was administered, at 9:32 p.m. CST.

Tamayo never looked toward Gaddis' mother, two brothers and two other relatives who watched through a window. He selected no witnesses of his own. There were several dozen police officers and supporters of the slain patrolman were revving their motorcycles outside of the prison before witnesses were let inside the death chamber.

The execution, the first this year in the nation's most active death penalty state, came after the U.S. Supreme Court and lower federal courts rejected last-day appeals and Texas officials spurned arguments that Tamayo's case was tainted because he wasn't informed, under an international agreement, that he could get legal help from the Mexican consulate after his arrest for the officer's slaying. Attorneys had also argued unsuccessfully that Tamayo was mentally impaired, making him ineligible for execution, and that the state's clemency procedures were unfair.

The Texas Board of Pardons and Paroles on Tuesday had rejected Tamayo's request for clemency. "It doesn't matter where you're from," Perry spokeswoman Lucy Nashed said. "If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty."

Gaddis, who had been on the force for two years, was driving Tamayo and another man from a robbery scene when evidence showed the officer was shot three times in the head and neck with a pistol Tamayo had concealed in his pants. The car crashed, and Tamayo fled on foot but was captured a few blocks away, still in handcuffs, carrying the robbery victim's watch and wearing the victim's necklace. Mexican officials and Tamayo's attorneys contend he was protected under a provision of the 1963 Vienna Convention on Consular Relations. Legal assistance guaranteed under that treaty could have uncovered evidence to contest the capital murder charge or provide evidence to keep Tamayo off death row, they said. Records show the consulate became involved or aware of the case just as his trial was to begin. Secretary of State John Kerry previously asked Texas Attorney General Greg Abbott to delay Tamayo's punishment, saying it "could impact the way American citizens are treated in other countries."

Huffington Post

"Mexican National Edgar Tamayo Executed," by Michael Graczyk. (AP 01/22/14 11:52 PM ET EST)

HUNTSVILLE, Texas (AP) — A Mexican national was executed Wednesday night in Texas for killing a Houston police officer, despite pleas and diplomatic pressure from the Mexican government and the U.S. State Department to halt the punishment. Edgar Tamayo, 46, received a lethal injection for the January 1994 fatal shooting of Officer Guy Gaddis, 24.

Asked by a warden if he had a final statement, he mumbled "no" and shook his head. As the lethal dose of pentobarbital began taking effect, he took a few breaths and then made one slightly audible snore before all movement stopped. He was pronounced dead 17 minutes after the drug was administered, at 9:32 p.m. CST. The execution, the first this year in the nation's most active death penalty state, was delayed more than three hours while the U.S. Supreme Court considered last-ditch appeals.

Tamayo never looked toward Gaddis' mother, two brothers and two other relatives who watched through a window. "He's a coward just like when he shot my brother in the back of the head and he died a coward," Glen Gaddis said. There were several dozen police officers and supporters of the slain patrolman were revving their motorcycles outside of the prison before witnesses were let inside the death chamber. Tamayo selected no witnesses of his own. "A little bit of my shredded heart is feeling better," the officer's mother, Gayle, said.

The execution came after the U.S. Supreme Court and lower federal courts rejected last-day appeals and Texas officials spurned arguments that Tamayo's case was tainted because he wasn't informed, under an international agreement, that he could get legal help from the Mexican consulate after his arrest for the officer's slaying. Attorneys had also argued unsuccessfully that Tamayo was mentally impaired, making him ineligible for execution, and that the state's clemency procedures were unfair.

The Texas Board of Pardons and Paroles rejected Tamayo's request for clemency on Tuesday. "It doesn't matter where you're from," said Lucy Nashed, spokeswoman for Gov. Rick Perry. "If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty." Tamayo's lawyers, Sandra L. Babcock and Maurie Levin, issued a statement after the Supreme Court's ruling, saying Perry and Attorney General Greg Abbott "ignored promises they made to our nation's leaders that they would ensure review of Mr. Tamayo's consular rights violation." "The execution of Mr. Tamayo violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad," Babcock and Levin also said.

The Mexican government earlier this week said it "strongly opposed" the execution. "The issue of fundamental importance in this case is the respect for the right of access to protection provided by our consulates to Mexicans abroad," Euclides Del Moral Arbona, a director in the Mexican Ministry of Foreign Affairs, told reporters outside the prison.

Gaddis, who had been on the force for two years, was driving Tamayo and another man from a robbery scene when evidence showed the officer was shot three times in the head and neck with a pistol Tamayo had concealed in his pants. The car crashed, and Tamayo fled on foot but was captured a few blocks away, still in handcuffs, carrying the robbery victim's watch and wearing the victim's necklace.

Mexican officials and Tamayo's attorneys contend he was protected under a provision of the 1963 Vienna Convention on Consular Relations. Legal assistance guaranteed under that treaty could have uncovered evidence to contest the capital murder charge or provide evidence to keep Tamayo off death row, they said. Records show the consulate became involved or aware of the case just as his trial was to begin.

Secretary of State John Kerry previously asked Abbott to delay Tamayo's punishment, saying it "could impact the way American citizens are treated in other countries." The State Department repeated that stance earlier Wednesday but had no immediate comment following the execution. Another of Gaddis' brothers, Gary, said it was "unfortunate this has become a political event." "But we're here to remind the public who the true victim is in this crime and to warn the public that John Kerry has no right to try to change the locks of the Supreme Court and turn the keys over to the international community," he said.

Tamayo was in the U.S. illegally and had a criminal record in California, where he had served time for robbery and was paroled, according to prison records. At least two other inmates in circumstances similar to Tamayo's were executed in Texas in recent years. He was among more than four dozen Mexican nationals awaiting execution in the U.S. in 2004 when the International Court of Justice in The Hague, Netherlands, ruled they hadn't been advised properly of their consular rights. The Supreme Court subsequently said hearings urged by the international court in those inmates' cases could be mandated only if Congress implemented legislation to do so. That legislation has not been passed.

ProDeathPenalty.Com

Case history from Houston Police Officers Union web site: On Sunday night, January 30, 1994, Officer Gaddis reported for duty on the night shift at the Beechnut. He was assigned to ride a one-man unit, 17E23N. After running several report calls, Gaddis was flagged down in the 6700 block of Bissonnet by a citizen who reported that he had been robbed by two suspects at the Topaz Night Club. The officer reported this on-view complaint to the dispatcher and requested other units to check by with him at the Topaz, a known area trouble spot located at 6501 Chimney Rock. The reporting time was 2:21 a.m. now on the morning of Monday, January 31. Three of Officer Gaddis' fellow units, with a total of five officers on board, immediately responded to this request.

The first officer to arrive observed Officer Gaddis to have two suspects against a wall, spread-eagled and undergoing a search. This officer also observed that Gaddis had apparently completed his search of what will now be referred to as the No. 2 suspect. This first responding officer took control of this suspect and immediately handcuffed him with his hands to the rear. While doing so, this officer observed Gaddis continue his search of the No. 1 suspect. In doing so, he discovered the robbery complainant's watch. At this point, Officer Gaddis very likely ended his search of the No. 1 suspect prematurely, handcuffing his hands behind him. Other officers were arrived and observed the end results of the arrest. They watched as Officer Gaddis and the first arriving officer placed both suspects in the rear of Gaddis' patrol car.

Suspect No. 1, later identified as Edgar Tamayo, was seated in the left rear seat while Suspect No. 2, Jesus Zarco Mendoza, was placed in the right rear seat. A very careful review of all officers present took place not only for the prosecution of the offense but also eleven years later to document the line of duty death for this publication. While no blame was assessed, important lessons were learned from the Gaddis experience. Without a doubt, the events of this early morning will live forever in the hearts and minds of all five officers present prior to Officer Gaddis' departure with the two suspects. There names are not used here. While they did not suffer the same consequence as Guy Gaddis, their names should not be brought forth for further questions about their actions. These two suspects were in custody, handcuffed behind their back in the rear seat of a caged patrol car.

While Gaddis transported them to the Southeast Command Station, the following is known: Officer Gaddis drove southbound in the 8100 block of Chimney Rock. He drove through the City of Bellaire, just north of Chimney Rock and Holly. Then something went terribly awry in the back seat of the patrol car from behind the Plexiglas cage. While driving, Officer Gaddis was shot in the back of his head, causing his patrol car to veer to the left, out of control. The unit crossed a residential yard on the northeast corner of this intersection, traveled further south across Holly and into the yard of a residence at 5229 Holly, striking the house at a high rate of speed and landing near the front door that faced north. The crash awakened the occupants of this residence. They immediately came out the side door, only to see that a Houston police had crashed into the front of their home. The patrol officer who had been the driver was slumped over the steering wheel. They also saw an individual in the back seat cage portion of the police vehicle bleeding from the head and apparently unconscious. The residents immediately summoned the Bellaire police.

The Bellaire dispatcher sent Officer W. T. Warner to the scene, backed up by Officer J. M. Manning. Officer Warner had been monitoring HPD's radio channel and was aware of the arrests having been made on Chimney Rock. The Bellaire officers saw a real-life scene unlike anything they had seen in their veteran police careers: the crashed HPD patrol car and, more importantly, the condition of Officer Gaddis. They quickly called an ambulance manned by City of Bellaire paramedics Carla Breeding and Chuck Lysack. Breeding and Lysack found that the officer was not breathing and had no vital signs. They didn't give up. They made every effort possible to resuscitate Gaddis, who had three gunshot wounds to the back of his head. As they did so, the LifeFlight helicopter was in flight. Bellaire Officers Warner and Manning took control of the scene as well as the suspect Mendoza in the rear of the police car. The suspect had regained consciousness. The paramedics also examined him, finding no serious injuries.

While these activities took place, Houston police officers virtually surrounded the neighborhood. LifeFlight rushed Officer Gaddis to Hermann Hospital, with little hope for his survival. Doctors pronounced him dead at 4:31 a.m., January 31, 1994. He was only twenty-four years old, leaving his pregnant wife Rosa behind. Besides his wife, the officer was survived his parents, Mr. And Mrs. Edwin (Gayle) Gaddis of Brookside Village; brother Glenn and his wife Angela of Houston; brother Gary and nephew Justyn Gaddis of Brookside; his aunt Patsy Reeves of Shreveport; Uncle Charles Gottlick and wife Maureen of Scotch Plains, New Jersey; aunt Bernadette Lopez and husband George and uncle Russell Gottlick and wife Joyce. Funeral services were held at 11 a.m. Wednesday, February 2, 1994, at the Second Baptist Church in Houston with Dr. Ed Young, Reverend David Dixon, and HPD Chaplain Ed Davis officiating. Burial followed at the South Park Cemetery in Pearland.

The on-duty Homicide supervisor, Lieutenant, C. S. "Steve" Arrington, upon learning of this tragedy, began an immediate call to the Homicide Murder squad responsible for this particular time segment. Lieutenant Nelson Zoch was the Homicide Murder Squad lieutenant on-call at this time of the morning. "I can vividly recall arriving on the scene to find it very professionally protected not only by Lieutenant Arrington of HPD Homicide and the Beechnut Patrol officers and supervisors as well as Bellaire P.D.," Zoch said. "This offense occurred in the City of Bellaire, a municipality complete and separate from the City of Houston. As such, Bellaire had legal jurisdiction into the offenses which had occurred at that location on Chimney Rock and Holly. "Having had previous experience with conflicting jurisdictional issues, after being assessed of the situation, Lieutenant Arrington and I approached the highest-ranking supervisor on the scene, the Bellaire chief of police. Words cannot describe the look on the chief's face when I, as a mere lieutenant of the Houston Police Department, volunteered to take complete responsibility for this investigation. That offer was graciously accepted, at which time their full support and cooperation was also pledged to provide their assistance to our department. There was never any doubt in my mind that the chief and his department could and would have conducted a professional investigation. However, as learned from previous incidents, law enforcement/justice was best served with one agency assuming total responsibility for the investigation."

Shortly after this jurisdictional matter was resolved, Criminal Investigations Assistant Chief John Gallemore and Homicide Captain W. G. "Bill" Edison arrived on the scene. Both were in complete agreement about the jurisdictional issue and assisted from that time forth in providing any additional manpower and resources necessary to pursue the goal of securing a conviction of those responsible for the capital murder of one of Houston's finest, Officer Guy Patrick Gaddis. Lieutenant Zoch began a complete squad callout to assist the initial scene investigators, Sergeants Jerry Novak and Larry Webber, who were to be the lead investigators under the supervision of Captain Bill Edison and Lieutenant Zoch. It would be their responsibility to coordinate all investigative responsibilities through their supervisors and the Harris County District Attorney's Office. "Lieutenant Arrington and I, while at the scene, reviewed the personnel which had been utilized to this point," Zoch recalled. Two Homicide Chicano Squad Investigators, Jaime Escalante and Vincente Garcia were called in to assist in the all important interviews with the principals, Tamayo and Mendoza.

As had been the practice in previous officer-involved Investigations, a Homicide investigator was assigned to be personally responsible for the care of the suspect, mainly assuring that a suspect was provided full constitutional rights under the law. In this instance, Zoch assigned Sergeant Rick Maxey the responsibility for the main suspect, Tamayo. The lieutenant gave Maxey's partner, Sergeant Stuart Hal Kennedy, the assignment to interview the second suspect, Mendoza, who at this time appeared to us not only as a robbery suspect, but as a valuable witness to a capital crime. "Thus, we had a full squad of capable investigators to choose from, as well as a pool of qualified detectives to assist from in the two other dayshift Murder squads and the Chicano Squad," Zoch said. Sergeant Fred W. Carroll was assigned to conduct the hospital investigation while Sergeant Stuart. H. "Hal" Kennedy, who had been assigned to the suspect Mendoza, also was given the difficult task of attending the autopsy of the officer. Officer Gaddis' patrol car, heavily damaged from the impact with the house, was towed to the HPD print stall building and secured. Sergeant Eugene Yanchak was assigned to coordinate a thorough Crime Scene Unit and Lab personnel processing of this vehicle. Lieutenant Zoch assigned Sergeant David A. Ferguson as his assistant, whose job was to coordinate with the District Attorney's Office regarding any charges that would be filed in this case. Chief Prosecutor Ned Morris was present during the scene investigation, this being the norm in cases involving the death and/or serious on-duty injury of a police officer.

Further assignments were as follows: Sergeant D. D. Shirley conducted an at-length interview with the original robbery complainant. (This became more important than ever since it was this offense that eventually led to the death of Officer Gaddis); Sergeant R. L. "Rick" Maxey began to do thorough computer background investigations into the criminal histories of both suspects, mainly Tamayo; When it became apparent that Tamayo and Mendoza's language barrier was an issue, Chicano Squad Investigators Jaime Escalante and Vincente Garcia were assigned to conduct interviews with the suspects; Veteran Detectives Maxey and Kennedy supervised these all-important proceedings; Sergeants Larry Ott and Bruce Baker assisted in the acquisition of legal consents and warrants relating to the recovery of additional evidence from both suspects.

Other observations and evidence recovered and/or noted at the scene and during the vehicle examination were that there were five bullet holes in the Plexiglas shield supposedly in place to protect the police officer. Six spent .380 hulls and were recovered from the rear area of the police car as well as a Bersa .380 automatic weapon. From the evidence recovered, as well as from a statement provided by the second robbery suspect, the following was believed to have been the chain of events leading up to this tragedy: Somehow, during the original pat down and cursory searches conducted at the robbery scene, Edgar Tamayo had managed to secrete a semi-automatic .380 pistol on his person. After leaving the scene with both suspects, Officer Gaddis stopped to make a telephone call, believed to have been to confer with the District Attorney's Intake Office over charges he intended to file on both suspects. During this phone call while Tamayo and Mendoza were alone, but in the sight of Officer Gaddis, according to Mendoza, Tamayo spoke of shooting his way out of this situation. He was able to get the pistol in his handcuffed hands behind his back. When Officer Gaddis drove south on Chimney Rock in the block north of Holly, Tamayo was able to turn himself around in the rear seat and place the pistol right up against the Plexiglas barrier and fire it six times.

Later, investigating officers asked themselves: Now, what person in his right mind would believe he could shoot the driver of a car with your hands cuffed behind you in a locked backseat, and still be able to escape safely? The actions of Tamayo rendered Officer Gaddis totally disabled and the police car careened out of control. It crossed a residential yard on the northeast corner of Chimney Rock and Holly, then crossed Holly, and into the yard of the Clay family home. It crashed into the front door at a high rate of speed. The impact injured both Tamayo and Mendoza, but Tamayo was able to then kick out the window glass of the left rear door and escape. Tamayo fled north on Chimney Rock, but HPD Officer O. R. Warren was southbound on Chimney Rock when he observed what had to have been his sight of a lifetime, a suspect running with his hands cuffed behind his back. Amazingly, this was the man who had just minutes before, murdered Officer Gaddis. The evidence was stronger by the minute: the handcuffs recovered from Tamayo bore Officer Guy Gaddis' employee number, 98834.

UPDATE: Edgar Tamayo, 46, received a lethal injection for the January 1994 fatal shooting of Officer Guy Gaddis, 24. Asked by a warden if he had a final statement, he mumbled "no" and shook his head. As the lethal dose of pentobarbital began taking effect, he took a few breaths and then made one slightly audible snore before all movement stopped. He was pronounced dead 17 minutes after the drug was administered, at 9:32 p.m. CST. Tamayo never looked toward Gaddis' mother, two brothers and two other relatives who watched through a window. He selected no witnesses of his own. There were several dozen police officers and supporters of the slain patrolman were revving their motorcycles outside of the prison before witnesses were let inside the death chamber.

Ex Parte TAMAYO, 2008 WL 2673775 (Tex. Crim. App. July 2, 2008). (State Habeas)

On Application for Writ of Habeas Corpus in Cause No. 9422714, In the 209th Judicial District Court, Harris County.

PER CURIAM.

This is an application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In November 1994, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed. Tamayo v. State, AP-72,033 (Tex.Crim.App. Dec. 11, 1996)(not designated for publication). The Court denied applicant relief on the three claims he raised in his initial writ application. Ex parte Tamayo, No. WR-55,690-01 (Tex.Crim.App. June 11, 2003)(not designated for publication). In reviewing his first subsequent application, we found that applicant failed to meet the requirements of Article 11.071 § 5 and dismissed the application. Ex parte Tamayo, No. WR-55,690-02 (Tex.Crim.App. Sept. 10, 2003)(not designated for publication).

On June 17, 2008, this Court received applicant's second subsequent application in which he asserted that his rights under the Vienna Convention were violated. This Court reviewed applicant's second subsequent application under Article 11.071 § 5 and concluded that it failed to meet one of the exceptions provided for in the statute. Applicant's second subsequent application is dismissed. See Ex parte Medellin, 223 S.W.3d 315 (Tex.Crim.App.2006). IT IS SO ORDERED.

Tamayo v. State, 2014 WL 223687 (5th Circuit Jan. 21, 2014). (Federal Habeas)

On Transfer from District Court Motion for an Order Authorizing the United States District Court for the Southern District of Texas to Consider a Successive 28 U.S.C. § 2254 Application.

PER CURIAM:

Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed by the State of Texas on January 22, 2014. He filed a federal habeas petition in district court which the court construed as a successive habeas petition requiring transfer to our court under 28 U.S.C. 1651. We therefore must determine whether this application is a successive habeas petition and, if so, whether we should grant authorization. Concluding that this action is not a successive habeas petition, we REMAND the application back to the district court.

Factual and Procedural History

Tamayo and Jesus Mendoza were arrested in the parking lot of a bar in Harris County, Texas on January 31, 1994, for robbing a patron. After the men were searched and handcuffed, Officer Guy Gaddis of the Houston Police Department placed them in a patrol car, with Tamayo seated behind Officer Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed to Mendoza that he had a gun in his waistband. The evidence at trial showed that Tamayo managed to remove the gun from his waistband despite the fact that he was handcuffed. When Officer Gaddis returned to the vehicle and drove away, Tamayo shot Officer Gaddis multiple times. The patrol car crashed into a residence, and Tamayo escaped through a broken window. The police were called to the scene and captured Tamayo as he ran down the street near the crash, still handcuffed. Officer Gaddis was taken to the hospital immediately, but he was pronounced dead upon arrival.

Tamayo gave two written statements admitting that he had the gun in the police car, that he shot Gaddis, and that he knew Gaddis was a police officer. At trial, the evidence indicated that Tamayo, rather than Mendoza, was the shooter. The State also presented evidence that Tamayo had purchased the gun several days before the murder. The jury found Tamayo guilty of capital murder and subsequently sentenced him to death. Tamayo appealed to the Texas Court of Criminal Appeals (“CCA”), which affirmed his conviction. Tamayo v. State, No. AP–72,033 (Tex.Crim.App.1996).

In February 1998, Tamayo sought state habeas relief based on ineffective assistance of counsel (“IAC”) for failing to investigate evidence of organic brain damage. The CCA rejected Tamayo's claim in June 2003. Ex parte Tamayo, No. WR–55,690–01 (Tex.Crim.App.2003) (not designated for publication).

In September 2003, Tamayo filed his federal habeas application, reasserting his IAC claim based on counsel's failure to investigate the alleged organic brain injury. Tamayo moved to stay the proceedings in 2005 to allow him to return to state court to present additional claims, including two claims under the Vienna Convention on Consular Relations (the “Vienna Convention”), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 and a claim that he was ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002). The CCA dismissed these successive habeas petitions as an abuse of the writ. See Ex parte Tamayo, 2010 WL 2332395 (Tex.Crim.App.2010) (not designated for publication) (Atkins Claim); Ex parte Tamayo, 2008 WL 2673775 (Tex.Crim.App.2008) (not designated for publication) (Vienna Convention Claim); Ex parte Tamayo, WR–55,690–02 (Tex.Crim.App. Sept. 10, 2003) (not designated for publication) (Vienna Convention Claim).

Tamayo amended his federal habeas petition, adding his Vienna Convention and Atkins claims. In December 2011, the federal district court denied Tamayo federal habeas relief on his claims and determined that he was not entitled to a COA. Tamayo v. Thaler, 4:03–cv–03809 (S.D.Tex. Mar. 25, 2011). Tamayo then sought a COA from this court, which we denied in December 2011. Tamayo v. Thaler, No. 11–70005 (5th Cir. Dec. 21, 2011). The Supreme Court denied Tamayo's petition for certiorari in November 2012. Tamayo v.. Thaler, 133 S.Ct. 608 (2012). On September 17, 2013, in response to the state's motion, the 209th Harris County District Court scheduled Tamayo to be executed on January 22, 2014.

On January 16, 2014, Tamayo filed a successive habeas petition in Texas state court, arguing that his sentence of death is “illegal and unconstitutional” based on his alleged mental retardation. In support of this claim, he relied on the newly-released decision of the Inter–American Commission on Human Rights (“IACHR”). The IACHR concluded, inter alia, that Tamayo presented evidence of mental disability that should have been reviewed on the merits by the state courts1 and that the state's violation of the Vienna Convention through its denial of his consular notification rights prejudiced Tamayo.2 In connection with this successive habeas petition, Tamayo filed a request for a stay of execution in light of what he believes are novel issues of law—including the amount of deference, if any, that should be given the IACHR's decision by Texas state courts. The CCA denied relief on January 21, 2014. Ex parte Tamayo, WR–55,690–05 & WR–55,690–06, at *3 (Tex.Crim.App. Jan. 21, 2013) (not designated for publication).

Discussion

Examining Tamayo's application for habeas relief with respect to the newly released IACHR decision, we conclude that his petition is not successive on this point. As we have previously held:

A prisoner's application is not second or successive simply because it follows an earlier federal petition. Instead, section 2244—one of the gatekeeping provisions of the [Anti–Terrorism and Effective Death Penalty Act]—was enacted primarily to preclude prisoners from repeatedly attacking the validity of their convictions and sentences. Thus, a later petition is successive when it: 1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ. In re Cain, 137 F.3d 234, 235 (5th Cir.1998) (citations omitted); see also In re Flowers, 595 F.3d 204, 205 (5th Cir.2009) (explaining that a petition is successive when the claims raised “were or could have been raised in [the] first [28 U.S.C .] § 2254 application” (emphasis added)).

Here, Tamayo could not have raised his claim based on the January 2014 IACHR decision in his first federal habeas petition in September 2003. Therefore, it is unnecessary for Tamayo to seek authorization to file a successive habeas petition concerning the IACHR decision and instead he properly filed his habeas petition in the district court under § 2254.3

Conclusion

The application transferred to this court predicated on the IACHR decision is REMANDED to the district court for consideration.

Footnotes

1 Specifically, the IACHR decision stated: “[T]he [IAC] concludes that the United States violated Articles I and XXVI of the American Declaration to the detriment of Mr. Tamayo by refusing to provide funds for an independent expert evaluation and by denying any opportunity to present evidence regarding this mental and intellectual disability and be heard on the merits of that evidence.” IACHR Decision at p. 37.

2 Specifically, the IACHR decision stated: “Given the comprehensive assistance provided by the Mexican Government to its citizens in death penalty cases in the United States, the IACHR believes that there is a reasonable probability that, had Mr. Tamayo received consular assistance at the time of his arrest, this would have had a positive impact in the development of his criminal case.” IACHR Decision at p. 31.