Executed October 16, 2008 06:17 p.m. CDT by Lethal Injection in Texas
27th murderer executed in U.S. in 2008
1126th murderer executed in U.S. since 1976
11th murderer executed in Texas in 2008
416th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
|
Kevin Michael Watts B / M / 21 - 27 |
Hak Po Kim A / M / 30 Yuan Tzu Banks A / F / 52 Chae Sun Shook A / F / 59 |
Citations:
Watts v. State, Not Reported in S.W.3d, 2004 WL 3218854 (Tex.Crim.App. 2004) (Direct Appeal).
Watts v. Quarterman, 448 F.Supp.2d 786 (W.D.Tex. 2006) (Habeas).
Final/Special Meal:
None.
Final Words:
In his last statement, Watts expressed love and thanks to his friends. He also spoke words of encouragement to others in prison. "For everybody incarcerated, y'all keep your heads up," he said. "Stay strong and keep fighting, it's not over yet." Watts also asked the Lord to forgive him. He finished his last statement by saying, "I am out of here. I am gone. Keep me in your hearts." The lethal injection was then started. Watts then said, "Can I say something? I'm dying but..." He then lost consciousness.
Internet Sources:
Texas Department of Criminal Justice - Executed Offenders (Kevin Watts)
Inmate: Watts, Kevin MichaelPrior Prison Record: None
Summary of incident
On March 1, 2002, in San Antonio, Texas, Watts entered a restaurant and fatally shot 1 Asian male and 2 Asian females. Watts then kidnapped a fourth victim, a Asian female, sexually assaulted her and took her to codefendant Bolden's residence where he allowed Bolden to sexually assault her.
Co-defendants: T. Bolden
Texas Execution Information Center by David Carson.
Kevin Michael Watts, 27, was executed by lethal injection on 16 October 2008 in Huntsville, Texas for the murder of three people in a restaurant.
On 1 March 2002, four employees of the Sam Won Garden restaurant in San Antonio were inside the restaurant, preparing to open for business for the day. Watts, then 21, entered, brandishing a Tec-22 pistol. Demanding money, he fired one shot into the ceiling, then rounded up the four workers into the kitchen. He then shot the manager, Hak Po Kim, 30, cook Yuan Tzu Banks, 52, and cook Chae Sun Shook, 59, in the back of the head. He then ordered the manager's wife, Hye Kyong Kim, to retrieve her dying husband's wallet and car keys from his pants pocket and ordered her to empty the cash register. He then ordered her into her vehicle and fled with her.
Watts sexually assaulted Mrs. Kim in her car, then took her to his mother-in-law's apartment, where he again raped and sodomized her and allowed his roommate, Terrance Bolden, to rape her. Watts also forced Mrs. Kim to ingest narcotics and attempted to insert his pistol into her vagina. Mrs. Kim survived the ordeal and testified against Watts at his trial.
Watts was captured about three hours after the shootings, after he attempted to flee by ramming two police cars with the victim's sports utility vehicle. He confessed to the robbery and murders. The Tec-22 pistol he was carrying at the time of his arrest was matched to slugs removed from the victims' heads. A medical examiner testified that the angle of entry into the three victims' heads was consistent with them having been shot while kneeling. Also, police found Mr. Kim's wallet in the apartment Watts visited between the killings and his arrest.
Watts' attorney, Tina Tussay-Cooper, told the jury that Watts had gone on an alcohol and narcotics binge prior to the killings and that he "suffered a drug-induced psychosis" that led to his actions. Witnesses testified that Watts had been drinking "thug passion," an alcoholic drink made famous by rapper Tupac Shakur.
Watts' prior convictions included assault causing bodily injury, driving while intoxicated, and criminal mischief. He received probation for each of these convictions. At one point, his probation was revoked, and Watts was later arrested and convicted of failure to identify himself to a police officer while being a fugitive. Prosecutors also presented evidence that Watts was a member of a street gang and introduced a letter Watts wrote while in jail, describing how he wanted to become a member of the Black Gorilla Family prison gang.
Tussay-Cooper argued that Watts' string of misdemeanor convictions did not make him a continuing threat to society. "Two wrongs don't make a right," she told the jury. "Don't go back and retaliate because of the anger you feel."
A jury convicted Watts of capital murder in February 2003 and sentenced him to death. Mrs. Kim was permitted to address Watts after his punishment was announced, but she sobbed uncontrollably. An employee with the district attorney's office read her note.
As Watts was being led away, he made a brief statement expressing love to his family. He also apologized to the victims' families, but tempered his apology with the statement, "If they hate me, they hate me." Tussay-Cooper responded to the jury's decision by saying, "What a waste of four lives."
Terrance Bolden was convicted of aggravated sexual assault and sentenced to 14 years in prison. He remains in custody as of this writing.
The Texas Court of Criminal Appeals affirmed Watts' conviction and sentence in December 2004. All of his subsequent appeals in state and federal court were denied.
Even though Watts admitted his guilt, he still claimed he had been treated unfairly. In a courtroom appearance earlier this year, he exploded with an obscenity-filled tirade. "I never had a chance to speak for myself, how I was railroaded, how I had an inadequate attorney, how this is not about justice," he said. "My intent was to put food on the table, get some money, go home and live happily ever after," Watts said in an interview from death row the week before his execution. "The situation gets out of control, and one thing leads to another."
In the interview, Watts said that when he was about 14 years old, his mother moved him away from San Jose, California because he was involved in street gangs there. She moved him to San Antonio to live with an aunt. "I came to Texas and I guess you could say I picked up where I left off with the gangs," he said. Watts dropped out of school in the ninth grade. "School was boring," he said. "The teacher wasn't into it. I'm not into it. I got money on my mind. I want to get high, smoke some weed, make some money, be with the homies. So I became a full-time participant in the street life."
As the time for his execution drew close, Watts made an appeal, without his lawyer's knowledge, to the U.S. Supreme Court claiming he was mentally retarded and therefore ineligible for execution. The court returned the motion without considering it. Watts' lawyer, John Economidy, said there was no evidence to support his claim he was retarded.
In his last statement, Watts expressed love and thanks to his friends. He also spoke words of encouragement to others in prison. "For everybody incarcerated, y'all keep your heads up," he said. "Stay strong and keep fighting, it's not over yet." Watts also asked the Lord to forgive him. He finished his last statement by saying, "I am out of here. I am gone. Keep me in your hearts." The lethal injection was then started. Watts then said, "Can I say something? I'm dying but..." He then lost consciousness. He was pronounced dead at 6:17 p.m.
Thursday, October 9, 2008
Media Advisory: Kevin Watts Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Kevin Michael Watts, who is scheduled to be executed after 6 p.m. on Thursday, October 16, 2008. A Bexar County jury sentenced Watts to death in February 2003 for the execution-style shooting deaths of three people during a San Antonio restaurant robbery.
FACTS OF THE CRIME
Desperate for some “fast” money for his “girl” and his child, Kevin Watts, brandishing an automatic pistol, entered the Sam Won Gardens restaurant in San Antonio and demanded money from restaurant manager Hak Po Kim.
Angered by Kim’s refusal to comply, Watts made Kim and restaurant employees Yuan Tzu Banks and Sun Chae Shook kneel on the kitchen floor, facing the wall. Watts then shot all three of them in the head.
Watts ordered the manager’s wife, Hye Kyong Kim to take the wallet and car keys from her dying husband’s pants pocket and to give him the money from the cash register. Watts forced Mrs. Kim into her vehicle at gunpoint and drove around San Antonio for some time before stopping at his child’s maternal grandmother’s apartment.
Meanwhile, Jesse Rios arrived at the restaurant to make his usual produce delivery and found Mr. Kim and Ms. Shook dead in the kitchen. He called for help from the neighboring business. Rios told police he observed a black male leave the restaurant, shove a dark-haired woman into a vehicle, and accelerate hard out of the parking lot. Mr. Kim’s father provided the license plate number of his son’s vehicle, which matched Rios’ description, and he confirmed that his son’s wife was missing. An advisory was dispatched on police radio and publicized by local media.
A citizen called 9-1-1 to report a car with the matching license plate in a nearby apartment complex parking lot. Uniformed officers in unmarked cars surrounded the location, and when Watts entered the Kims’ vehicle and started to leave, police blocked him. Watts swerved, struck a police car and a wall, and was arrested after some resistance on his part. A Tec-22 pistol was tied sling-style around his shoulder and torso. The jury watched a videotape, recorded by a police car video camera, showing Mrs. Kim as she hysterically burst out of the car, exclaimed that she was the victim, and identified Watts as the perpetrator. Mrs. Kim also identified Watts at trial.
After police read him his Miranda rights, Watts confessed to the robbery and murders. Shell casings and live rounds found in the vehicle and the restaurant as well as the bullets taken from the victims’ heads matched his Tec-22. Police also found Hak Po Kim’s wallet and his widow’s tennis shoe in the apartment Watts visited immediately prior to his arrest. Dr. Frost, the medical examiner, testified that Mr. Kim, Ms. Shook, and Ms. Banks all died from the gunshots to their heads. The angle of entry was consistent with them having been shot while kneeling.
THE PENALTY PHASE EVIDENCE
During the punishment phase, the jury heard the second statement Watts made to police. Watts described sexually assaulting Mrs. Kim before permitting his friend Terrance Bolden to do the same.
The jury also heard about Watts’ numerous prior convictions for offenses ranging from evading arrest, criminal mischief, failure to ID, and possession of marijuana to resisting arrest, assault with bodily injury, and driving while intoxicated. As a sixteen-year-old, Watts was adjudicated in an unlawful-carrying-of-a-weapon case. Correctional officers for Bexar County testified about the numerous fights Watts became involved in or instigated while awaiting trial. Mark Wells, the mail supervisor for Bexar County jail, testified about a letter Watts wrote, containing threats of violence against whites and Hispanics, which was forwarded to the prosecutors.
Watts’ cousin, Sonia Watts, testified that the night before the murders, Watts drank quantities of “thug passion,” snorted cocaine, and consumed numerous pills. Another cousin, Mike Watts, testified that Watts had a drug problem since he was 14. He confirmed that the night before the murder, Watts was drinking heavily, snorting cocaine, smoking pot, and taking Xanax and ecstasy. Alicia Prince, the maternal grandmother of Watts’ child, testified that Watts had a drug problem.
PROCEDURAL HISTORY
March 1, 2002 – Kevin Watts killed Hak Po Kim, Yuan Tzu Banks, and Sun Chae Shook and kidnaped and sexually assaulted Hye Kyong Kim.
Feb. 10, 2003 – Watts entered a plea of not guilty and his trial began.
Feb. 13, 2003 – Watts was convicted of capital murder.
Feb. 19, 2003 – Watts was formally sentenced to death.
May 3, 2004 – Watts filed an application for state writ of habeas corpus.
Oct. 25, 2004 – Watts filed a supplemental application for state writ.
Nov. 23, 2004 – The trial court entered findings and conclusions recommending denial.
Dec. 15, 2004 – The Court of Criminal Appeals affirmed the conviction and sentence.
Jan. 18, 2005 – Mandate issued from the Court of Criminal Appeals.
Oct. 19, 2005 – The Texas Court of Criminal Appeals found the habeas court’s findings supported by the record and, upon such basis, denied relief. It further held that Watts’ supplemental application was filed after the deadline therefore depriving the Court of authority to do anything other than dismiss it as abuse of the writ.
Nov. 14, 2005 – Watts filed a second subsequent writ of state habeas relief.
Dec. 29, 2005 Watts filed a federal habeas corpus petition.
May 10, 2006 – The Texas Court of Criminal Appeals denied writ of habeas relief.
August 21, 2006 – The federal district court dismissed Watts’ federal habeas petition.
Dec. 4, 2006 – Watts filed application for certificate of appealability in the 5th Circuit.
Aug. 1, 2007 – The Fifth Circuit Court affirmed the district court’s denial of habeas relief.
Sept. 11, 2007 -- Watts petitioned the U.S. Supreme Court for certiorari review.
Jan. 7, 2008 – The U.S. Supreme Court denied certiorari review.
Oct. 16, 2008 – Kevin Michael Watts is scheduled to be executed on this date.
"Man who killed three is executed," by Terrence Stutz. (Friday, October 17, 2008)
HUNTSVILLE, Texas – A San Antonio street gangster who gunned down three people in the holdup of a Korean restaurant more than six years ago was executed Thursday. Kevin Watts, 27, was the second inmate executed this week.
"Killer in triple slaying executed," by Michael Graczyk. (AP Oct. 17, 2008, 6:30AM)
HUNTSVILLE, Texas — Condemned killer Kevin Watts quietly went to his death as the criminal justice system he said he detested executed him for a triple slaying in San Antonio 6 1/2 years ago.
The street gangster received lethal injection Thursday evening for fatally shooting three people in the holdup of a Korean restaurant. Watts, 27, had confessed to the shootings where one of the victims' newlywed wife also was abducted and raped. Watts had denounced the sentence at the conclusion of his trial in 2003.
Then earlier this year, returning to the Bexar County court where a jury convicted him of capital murder and decided he should die, Watts confronted the judge scheduling his execution with an obscenity-laced tirade complaining about what he contended was a racist justice system. The judge ordered the courtroom cleared when his relatives also became disruptive. When Watts was returned, deputies had covered his face with a mask. And when he renewed his outburst, the judge finally ordered him out and set the execution for Thursday.
But strapped to the death chamber gurney Thursday night, his demeanor was subdued. He spoke softly, telling friends he appreciated their love and support and asked them to forgive him. He also urged his fellow prisoners to "keep your heads up." "I'm out of here, man," he concluded. "I'm gone. Keep me in your hearts." The lethal drugs began flowing and he asked to say something else. "I'm dying but...," he said, unable to say more because the drugs took effect. Seven minutes later, at 6;17 p.m. CDT, he was pronounced dead.
Watts became the second Texas inmate executed this week and the 11th this year. Two more are set to die next week in the nation's most active capital punishment state.
Watts' appeals were exhausted. Without his lawyer's knowledge, he filed an appeal with the U.S. Supreme Court contending mental retardation should make him ineligible for execution, but the court returned it without consideration because there was no evidence to support the claim.
Watts walked into the Sam Won Gardens restaurant the morning of March 1, 2002, after a night of drinking and drugs and demanded money. "My intent was to put food on the table, get some money, go home and live happily ever after," Watts said last week in a death row interview. "The situation gets out of control and one thing leads to another. When I woke up in the county jail, I said to myself: 'I ain't getting out.' "
He ordered manager Hak Po Kim, 30, and cooks Yan Tzu Banks, 52, and Chae Sun Shook, 59, to kneel on the kitchen floor and face a wall. Then he shot each of them in the head. He forced Kim's wife of two months to retrieve the wallet and keys from her dying husband, grabbed about $100 from a cash register, then drove off with her in Kim's SUV.
The truck was spotted at a nearby apartment complex parking lot and police arrested Watts about three hours after the shootings. "He was caught with a victim by the police as he's trying to escape and he had the murder weapon literally tied around his neck," Bill Pennington, the Bexar County assistant district attorney who prosecuted Watts, said. None of the relatives of the victims attended Watts' execution Thursday evening.
Watts was from San Jose, Calif. He said when he was about 14 his mother tried to get him away from gangs there and moved him to San Antonio to live with an aunt. But he said he hooked up with gangs in the Alamo city, dropping out of high school in the ninth grade. "I became a full-time participant in the street life," he said.
Watts' record included misdemeanor convictions for evading arrest, criminal mischief, trespassing, marijuana possession and driving while intoxicated. He also had a weapons case against him as a 16-year-old.
At the time of the shootings, he had an infant daughter. The night before the slayings, witnesses said he'd been drinking "thug passion," a champagne and cognac drink made famous by slain gangster rap singer Tupac Shakur, snorting cocaine and taking numerous pills.
On Tuesday, Joseph Ries, 29, is the first of two prisoners set to die next week. He was convicted of breaking into a rural home in Hopkins County in northeast Texas and fatally shooting and taking the car of Robert Ratliff, 64, who was asleep.
On the morning of March 1, 2002, Watts entered the Sam Won Gardens restaurant in San Antonio, Texas, brandishing a Tec-22 pistol. Before demanding any money, Watts murdered restaurant employees Hak Po Kim, Yuan Tzu Banks, and Chae Sun Shook, shooting them execution-style in the back of the head. He then ordered the wife of Hak Po Kim to retrieve her dying husband’s wallet and car keys from his pants pocket. Watts told her to empty the cash register. The take was only $100.
Holding Mrs. Kim at gunpoint, Watts ordered her into the Kims’ vehicle and fled the scene with her. For several hours, Watts sadistically tortured and sexually assaulted Mrs. Kim both in the vehicle and later in his mother-in-law’s apartment – at one point allowing his roommate to rape her. Watts himself repeatedly sodomized Mrs. Kim, forced her to ingest narcotics, and attempted to rape her with the Tec-22 pistol. Acting on a phoned in tip from a neighbor who had seen a TV story about the murders and the missing vehicle, San Antonio Police captured Watts only after he unsuccessfully attempted to escape by ramming the Kims’ vehicle into two police cruisers.
Kim's wife survived and testified against Watts at his capital murder trial in 2003, identifying him as the gunman and her attacker. At his trial, defense lawyers didn't deny Watts was responsible for the slayings but tried to show he didn't intend to kill the victims and was high on drugs. In his written confession, Watts told police he shot the three because they were yelling at him. "I did what I had to do," he wrote. "I needed fast money, because that's what I'm used to." When the execution date was set, Watts was removed from the courtroom twice because of epithet laced tirades to the judge.
"Convict calm before execution," by Michelle Mondo. (10/17/2008 12:00 CDT)
HUNTSVILLE — The man sentenced to die for killing three San Antonio restaurant employees during a 2002 robbery that netted him $100 was executed Thursday. Strapped to the gurney, Kevin Watts, 27, looked at Tiffany Prince, the mother of his 8-year-old daughter, and Sonia Watts, his cousin, and asked that they remember him.
His final words were quiet, tempered and calm, unlike the outburst seen in the Bexar County courtroom when receiving his execution date, the last time he made a public statement. “Thank you for showing me love and teaching me how to love,” he said Thursday. Along with thanking his family and friends, he asked for God's forgiveness and then spoke to his fellow inmates. “Y'all keep your heads up, stay strong, keep fighting,” he said. “I'm outta here. I'm gone. Keep me in your hearts.” Just before the drugs took hold, Watts murmured, “I'm dying, but ...”
Seven minutes after the drugs were administered, Watts was pronounced dead at 6:17 p.m. Prince hugged Sonia Watts as the two cried. “He's at peace now,” Prince said. “He has a chance to be saved,” Watts said
No one from the families of the victims was present. Only one relative of a victim agreed to talk to the Express-News before the execution. The rest of the family members asked to be given their privacy or did not return calls seeking comment.
The triple homicide, robbery and sexual assault committed by Watts shocked the city and shook its small, tight-knit Korean community.
On the morning of March 1, 2002, after a night of drinking and taking drugs, Watts entered the Sam Won Garden restaurant with the intent to rob the eatery. When he was not given the money fast enough, Watts ordered manager Hak Po Kim, 30, and employees Chae Sun Shook, 59 and Yuan Tzu Banks, 52 to kneel down in the restaurant's kitchen where he then shot each in the head. Kim and Shook died at the scene. Banks died a day later at Brooke Army Medical Center.
Kim's newlywed wife, in America for just two months, was forced at gunpoint into her husband's vehicle and driven to an apartment complex where she was sexually assaulted by Watts and another man.
Watts was caught by police trying to flee the complex. At the time he had a semi-automatic pistol tied around his neck with a shoestring. The gun was later determined by ballistics tests to be the murder weapon.
Watts said in a jailhouse interview eight days before his execution that he was remorseful for what happened but said he did not intend to kill the three people. He blamed the mixture of alcohol, cocaine, Xanax and ecstasy. “At the time I did a lot of drugs, and you hear voices, you know, to do this or that, and I don't know what I was thinking,” he said. “It just got so out of control.”
Watts is the 11th prisoner to be executed this year, and 10 more Texas inmates are scheduled to be executed by the end of 2008.
Canadian Coalition Against the Death Penalty
KEVIN M. WATTS
Texas Death Row
Writings By Kevin
Only The Strong Survive
Bad times and good times - they come but never last
Some find it hard to reminisce on the past
Cuz they want to cherish that last laugh
It grows tiresome when all your life you've had to fight
Around a settle focus on thing in sight
You think to yourself, I know I ain't work this hard to get where I'm at
I know I ain't set myself up for this bottomless trap
Quiet as kept on yourself you slept
Now that you're wake, one mustn't continue to sleep
Once a menace now lost to society
I gotta strengthen the person inside this body
Ain't no one stopping me but my lack of self confidence
The streets couldn't hold me so these walls shouldn't make no difference
Things never change around us, only on insecure mind frame
Don't let this concrete jungle take you as claim
You can beat yourself or you can strive to beat your enemies
Remember they ain't gone stop, this here has been going on for centuries
So now you understand me, or do you wish to carry on in self pity.
Facts, Thoughts, and Ambitions
So many nights, so many crys
I just look at the sky and wonder why
Is this my destiny is this all meant to be
I pray this is a dream cause I wish to wake to flee
This bares a strain on my brain as I grit my teeth to the grain
I fight every day to keep from going insane
The world is cold leaving a lonely man to fold
but I keep my dignity because its more precious than gold
Time will continue to carry on
its in my hands to exceed and not prolong.
because I have visions of being free because this is where I do not belong
Click here for more writings By Kevin Watts
--------------------------------------------------------------------------------
PENPAL REQUEST :
At 22 years old I was apprehended for three counts of Murder, Aggravated Sexual Assault, and Aggravated Kidnapping...These crimes are hideous, but know so much is the truth and so much is a lie.
I'm not able at the moment to go into what is what - as the importance of this presentation is my desire for Support, Help, and Trust.
I'm now 24 years old and as I've come to learn, the road on Death Row is a sound proof confinement - especially when extending a foreign hand for a supporting hand. But know it takes less than you imagine ... It takes Heart and Understanding. In my short peroiod here I've encountered individuals that take a step into my life, but my charges outweigh the person they've come to know. I've been made an example, a subject to lies and manipulation and deprived of the truth and of justice.
My name is Kevin Watts. I am a father of a beautiful little girl and I seek the individual reading this to extend a hand and some Time, Devotion, and Dedication to assist me in achieving excelling in this oppression environment.
While being locked down 23 hours a day I make an effort to elevate myself and escape insanity's walls by writing articles, poems, letters to my daughter, All this is how I fight for my life and maintain my composure until justice is prevelant.
To get to understand me and become concious to what type of individual DK is seeking to murder, please don't hesitate to write me.
Sincerely; Kevin.
Kevin Watts 999456
Polunsky Unit
3872 FM 350
Livingston TX 77351 USA
"Texas Kevin Michael Watts Has Been Executed. (Thursday, October 16, 2008)
Kevin Watts has been executed this evening in the Texas death chamber by lethal injection.
San Antonio-The Texas Board of Pardons and Paroles has denied both an application for clemency and a 30-day reprieve request from death row inmate Kevin Watts, clearing the way for the state to execute him today. The board acted Tuesday. Watts was sentenced to die in 2003 for the execution-style shootings of three employees of a Northeast Side Korean restaurant and the rape of a worker's wife.
By his own admission, during a robbery at the Sam Won Garden restaurant in March 2002, Watts shot restaurant manager Hak Po Kim, 30, and employees Chae Sun Shook, 59, and Yuan Tzu Banks, 52. Testimony and evidence showed he also kidnapped and sexually assaulted Kim's new bride.
Watts said from prison last week that he was not ready to face his execution. His time on death row has gone quickly, he said; inmates typically have 10 years or more awaiting execution. Lawyers on both sides of the case said the overwhelming evidence against Watts, along with his confession, led to fewer delays.
On Wednesday, family members including his 8-year-old daughter tried to see Watts for a last visit, said his aunt, Linda Watts. The families of the victims either did not return calls seeking comment or asked for their privacy and declined to comment.
One relative of a victim — who spoke on condition of anonymity, citing safety concerns — said the loss was “unimaginable” and that the punishment fits the crime. “There are many good people, more than bad ones, but the bad ones have to be put away for the (safety of) the good ones,” he said.
UPDATE (Associated Press)
HUNTSVILLE, Texas -- A San Antonio street gangster who gunned down three people in the holdup of a Korean restaurant more than six years ago was executed Thursday evening.
Kevin Watts told friends he was thankful for their love and support. "For everybody incarcerated, y'all keep your heads up," he said. He told them to "stay strong and keep fighting." "I'm out of here, man. I'm gone. Keep me in your hearts," he said As the lethal drugs began flowing, Watts said, "Can I say something? I'm dying but." At that point, he began snoring and stopped breathing a moment later. At 6:17 p.m. CDT, he was pronounced dead.
No friends or relatives of any of the victims attended the execution.
Watts, 27, confessed to the execution-style shootings where the newlywed wife of one of the victims also was abducted and raped. Earlier this year, returning to the Bexar County court where a jury convicted him of capital murder and decided he should die, Watts angrily confronted the judge scheduling his execution with an obscenity-laced tirade complaining about a racist justice system. The judge twice had to order him removed from the courtroom.
Watts was the second Texas inmate executed this week. Two more are set to die next week in the nation's most active capital punishment state.
Watts' appeals had exhausted his appeals. Without the help of his lawyer, John Economidy, he filed a clemency request with the Texas Board of Pardons and Paroles that was rejected. Also without his lawyer's knowledge, he filed an appeal with the U.S. Supreme Court contending mental retardation should make him ineligible for execution, but Economidy said there was no evidence to support the claim and the court was returning the motion without even considering it.
Watts walked into the Sam Won Gardens restaurant the morning of March 1, 2002, after a night of drinking and drugs and demanded money. He ordered manager Hak Po Kim, 30, and cooks Yan Tzu Banks, 52, and Chae Sun Shook, 59, to kneel on the kitchen floor and face a wall. Then he shot each of them in the head.
He forced Kim's wife of two months to retrieve the wallet and keys from her dying husband, grabbed about $100 from a cash register, then drove off with her in Kim's SUV. The truck was spotted at a nearby apartment complex parking lot and police arrested Watts about three hours after the shootings. He had tried to flee from officers with Kim's wife by ramming the truck into two patrol cars. "He was caught with a victim by the police as he's trying to escape and he had the murder weapon literally tied around his neck," Bill Pennington, the Bexar County assistant district attorney who prosecuted Watts, said.
The abducted woman identified him during the guilt-innocence portion of his trial as the gunman at the family's restaurant. Then at the punishment phase of the trial, she testified how she was forced at gunpoint to perform sex acts.
"My intent was to put food on the table, get some money, go home and live happily ever after," Watts, in a death row interview last week, said of the robbery. "The situation gets out of control and one thing leads to another. When I woke up in the county jail, I said to myself: 'I ain't getting out.' "
Watts was from San Jose, Calif. He said when he was about 14 his mother tried to get him away from gangs there and moved him to San Antonio to live with an aunt. "I came to Texas and I guess you could say I picked up where I left off with the gangs," he said.
Watts' record included misdemeanor convictions for evading arrest, criminal mischief, trespassing, marijuana possession and driving while intoxicated. He also had a weapons case against him as a 16-year-old. He dropped out of San Antonio's Theodore Roosevelt High School in the ninth grade. "School was boring," he said. "The teacher wasn't into it. I'm not into it. I got money on my mind. I want to get high, smoke some weed, make some money, be with the homies." "So I became a full-time participant in the street life."
At the time of the shootings, he had an infant daughter. The night before the slayings, witnesses said he'd been drinking "thug passion," a champagne and cognac drink made famous by slain gangster rap singer Tupac Shakur, snorting cocaine and taking numerous pills.
On Tuesday, Joseph Ries, 29, is the first of two prisoners set to die next week. He was convicted of breaking into a rural home in Hopkins County in northeast Texas and fatally shooting and taking the car of Robert Ratliff, 64, who was asleep.
Video: Convicted Killer Lashes Out Against Court As Execution Date Is Set
Watts v. State, Not Reported in S.W.3d, 2004 WL 3218854 (Tex.Crim.App. 2004) (Direct Appeal).
Background: Defendant was convicted in a Bexar County trial court of capital murder, and was sentenced to death. Appeal was automatic.
Holdings: The Court of Criminal Appeals held that:
(1) defendant failed to preserve for appellate review his claim of constitutional error in admission during sentencing phase of evidence of his desire for membership in black racist gangs;
(2) it declined to conduct proportionality review of defendant's sentence, and
(3) imposition of death penalty did not implicate Eighth Amendment.Affirmed.
PER CURIAM.
On February 13, 2003, the appellant was convicted of capital murder, FN1 an offense that occurred on March 1, 2002. Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced the appellant to death.FN2 Direct appeal to this Court is automatic.FN3 The appellant raises three points of error. We affirm.
FN1. See Tex. Penal Code § 19.03(a)(7). FN2. See Tex.Code Crim. Proc. art. 37.071, § 2(g) FN3. See id., § 2(h).
The first point of error in the appellant's brief complains that “the trial court erred (abuse of discretion standard) when during the punishment phase it admitted evidence of [his] future membership in a black racist prison gang against [him] in violation of Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 ... (1992) (constitutional error to admit evidence of defendant's membership in white racist prison gang where that evidence was not relevant to any issue being decided at the punishment phase).” The appellant complains that during punishment, “the State was allowed over objection to show the jury a hand written letter from [him] written from the Bexar County Adult Detention Center while [he] was awaiting trial.” He also complains that, in its evidence and its jury arguments, the State attempted to unfairly prejudice the white jury with his past, present, and future membership in racist black gangs. Specifically, he claims that the trial court improperly allowed Sergeant Ricardo Vijil, Sergeant Mark Gibson, Sonia Watts, and Tonya Prince to testify as to his gang membership, improperly allowed the admission of a letter he wrote while incarcerated, and improperly allowed the prosecutor to refer to his gang membership during the punishment phase of trial.
“As a prerequisite to presenting a complaint for appellate review, the record must show that (1) the complaint was made to the trial court....” FN4 The appellant has not satisfied this prerequisite. FN4. Tex.R.App. P. 33.1(a).
During the punishment phase, the State introduced Exhibit 105-A, a letter written by the appellant while in jail describing how he wanted to become a member of the Black Gorilla Family prison gang. The appellant objected to the admission of the letter on the grounds that the letter had been obtained in violation of county-jail regulations and state and federal laws. The appellant never objected to the letter on Dawson or First Amendment grounds or even mentioned gang membership in his objection. Similarly, when the State questioned Sergeant Vijil about whether the appellant admitted that he was a member of a gang and Vijil answered affirmatively, the appellant objected on hearsay grounds. The appellant never objected on Dawson or First Amendment grounds or even mentioned gang membership in his objection. The appellant did not preserve a constitutional claim with respect to the introduction of the letter into evidence or Vijil's testimony because his objections at trial do not comport with the claim he now raises on appeal.
The appellant also complains about testimony by Sergeant Gibson. However, it was the appellant who elicited testimony from Gibson about gang affiliation; when Gibson testified about gangs, the appellant did not object. In regard to Watts's and Prince's testimony about gangs, the appellant also made no objection. Similarly, the appellant made no objection to the State's reference to his gang membership during its closing punishment arguments. Because the appellant failed to object at trial, he has not preserved error for our review. Point of error one is overruled.
In his second point of error, the appellant argues that his “sentence of death is grossly proportionate [ sic ] to the crimes committed in violation of the Eighth Amendment [to the] United States Constitution (cruel and unusual-evolving standards of decency-proportionality).” He asks this Court “to revisit [our] holdings in the light of legally evolving standards of decency” and conduct a proportionality review. We have previously held that this Court does not conduct proportionality reviews in this context. Ladd v. State, 3 S.W.3d 547, 574 (Tex.Cr.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Point of error two is overruled.
In point of error three, the appellant complains that “the death penalty sentence violates the Eighth Amendment [to the] United States Constitution (cruel and unusual).” We have previously rejected this argument. Brooks v. State, 990 S.W.2d 278, 288 (Tex.Cr.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999). Point of error three is overruled.
We affirm the judgment of the trial court.
Watts v. Quarterman, 448 F.Supp.2d 786 (W.D.Tex. 2006) (Habeas).
Background: Petitioner sought writ of habeas corpus, challenging his capital murder conviction and death sentence.
Holdings: The District Court, Orlando F. Garcia, J., held that:
(1) petitioner procedurally defaulted on federal habeas claims asserting violation of Eighth Amendment right to present mitigating evidence at penalty phase;
(2) petitioner procedurally defaulted on federal habeas claim asserting violation of First Amendment right to freedom of association; and
(3) prosecutor's closing argument at penalty phase did not make the trial fundamentally unfair. Petition denied.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA, District Judge.
Petitioner Kevin Michael Watts, also known as Kevin Vann, filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his February, 2003, Bexar County capital murder conviction and sentence of death. For the reasons set forth below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
I. Statement of the Case
A. Petitioner's Offense
The essential facts surrounding petitioner's capital offense have never been in dispute. Petitioner executed a pair of detailed, written statements shortly after his arrest and has never presented any state or federal court with any evidence controverting same.FN1
FN1. Two versions of petitioner's original, written, post-arrest, statement or confession were admitted into evidence and read verbatim into the record during the guilt-innocence phase of petitioner's capital murder trial. A redacted or edited version was admitted as State Exhibit No. 2 and recounted petitioner's robbery of the Sam Won Gardens restaurant, his fatal shooting of three persons inside the restaurant, his kidnaping of a fourth person from the restaurant, and the circumstances surrounding petitioner's arrest several hours later. Statement of Facts from petitioner's trial (henceforth “S.F. Trial”), Volume 18 of 26, testimony of Barney Whitson, at pp. 63-68. A copy of State Exhibit No. 2 appears in S.F. Trial, Volume 24 of 26.The full, unedited, version of petitioner's original statement was admitted into evidence as State Exhibit No. 2-A and read into the record during the punishment phase of petitioner's trial. S.F. Trial, Volume 22 of 26, testimony of Barney Whitson, at pp. 18-19. A copy of State Exhibit No. 2-A appears in S.F. Trial, Volume 25 of 26.
In addition, petitioner gave law enforcement officers a second written statement shortly after he executed his first statement. This second statement was admitted and read verbatim into evidence during the punishment phase of petitioner's capital trial as State Exhibit No. 101. S.F. Trial, Volume 22 of 26, testimony of Barney Whitson, at pp. 22-27. A copy of State Exhibit No. 101 appears in S.F. Trial, Volume 26 of 26.
Furthermore, the surviving victim and eyewitness to petitioner's armed robbery and fatal shooting of three people testified at petitioner's trial in a manner wholly consistent with petitioner's written confessions. More specifically, Hye Kyong Kim, the widow of Sam Won Gardens restaurant manager Hak Po Kim, testified without contradiction at the guilt-innocence phase of petitioner's capital trial that, on the morning of March 1, 2002, (1) petitioner entered the restaurant, fired a shot, and directed her and her husband at gunpoint to move to the kitchen area, (2) petitioner then directed the Kims and two restaurant employees, Yuan Tzu “Tina” Banks and Chae Sun “Gina” Shook, to face a wall and kneel, (3) Mrs. Kim then heard three shots, turned, and saw three bodies on the floor, (4) petitioner then forced her to follow him, open the cash register, and give petitioner all the money in the register, (5) petitioner directed Mrs. Kim to retrieve the keys to her husband's vehicle from his pocket, (6) when petitioner demanded more money, Mrs. Kim also retrieved her husband's wallet as well as his keys and gave same to petitioner, and (7) petitioner forced her into her husband's vehicle and fled the scene in their vehicle.FN2
FN2. S.F. Trial, Volume 20 of 26, testimony of Hye Kyong Kim, at pp. 132-41, 186-89, 191-95, 197, 220-22. Mrs. Kim also testified petitioner threatened her during their flight from the restaurant, struck her in the face with his fist, and fired the gun inside the vehicle. Id., at pp. 195, 202-03, 208-09.
A produce delivery truck driver testified at petitioner's trial that, on the morning in question (1) he observed a black male shove a female into the Kims' vehicle and flee the scene and (2) he entered the unusually silent restaurant and observed two bodies on the floor. FN3. S.F. Trial, Volume 18 of 26, testimony of Jesse Rios, at pp. 77-114.
Several San Antonio Police Officers testified regarding the circumstances surrounding petitioner's arrest on the afternoon of March 1, 2002, specifically about (1) the petitioner's unsuccessful attempt to flee from police by smashing the Kims' stolen vehicle into two police vehicles before petitioner drove into a wall, rendering the Kims' vehicle inoperable, (2) Mrs. Kim's distraught condition as she fled the damaged stolen vehicle, and (3) the handgun and cash police found inside petitioner's jacket once petitioner had been arrested. FN4
FN4. Several San Antonio Police officers testified (1) petitioner drove the Kims' stolen vehicle at a rapid rate of speed toward the exit of an apartment complex in North San Antonio, (2) the petitioner appeared wide-eyed when he saw police officers in full uniform, (3) petitioner drove the Kims' stolen vehicle, a silver Toyota 4Runner, into the side of a uniformed officer's unmarked vehicle, hopped a curb, struck a second, marked, police cruiser, and then slammed into the wall of an apartment building, at which point the Kims' vehicle was no longer operable, (4) a search of petitioner produced a TEC-22 handgun tied to the petitioner's neck and shoulder inside the petitioner's jacket, as well as several rolls of cash, and (5) Mrs. Kim appeared to be distraught as she fled the damaged vehicle. S.F. trial, Volume 19 of 26, testimony of Andy Hernandez, at pp. 41-60; testimony of David Payne, at pp. 85-98; testimony of Robert Rosales, at pp. 138-51; Volume 20 of 26, testimony of James Holguin, at pp. 27-41.A latent fingerprint examiner also testified fingerprints found inside the Kims' stolen 4Runner matched petitioner's. S.F. trial, Volume 20 of 26, testimony of Ray Frausto, at pp. 116-22.
Autopsies revealed that each of the three persons shot inside the restaurant died as a result of a single gunshot wound to the back of the head.FN5
FN5. The medical examiner who conducted the autopsies of the three victims testified without contradiction during the guilt-innocence phase of petitioner's trial that (1) each of the three victims died as a result of a single gunshot wound to the back of the head, (2) in each case, the fatal bullet wound tracked from back to front and downward through the skull and brain, with the bullet coming to rest inside the base of the skull, and (3) all three fatal gunshot wounds were consistent with a shot having been fired from above and behind the victim's head. S.F. Trial, Volume 19 of 26, testimony of Randall Frost, at pp. 13-26.
Ballistics tests established the handgun petitioner was carrying at the time of his arrest fired each of the fatal shots.FN6
FN6. A firearms examiner testified (1) that four cartridge casings found inside the restaurant were all fired by the same handgun police found tied around petitioner's neck and shoulder at the time of his arrest and (2) the three bullets removed during the autopsies of the three victims were all fired by the same weapon, i.e., the one petitioner had tied to his neck and shoulder at the time of his arrest. S.F. Trial, Volume 20 of 26, testimony of Edard William Love, Jr., at pp. 84-94.
B. Indictment
On May 21, 2002, a Bexar County grand jury returned a one-Count indictment in cause no. 2002-CR-3470 charging petitioner with having fatally shot Hak Po Kim (1) while in the course of the same criminal transaction in which petitioner fatally shot Yuan Tzu Banks and (2) while in the course of committing and attempting to commit the robbery of Hak Po Kim, Yuan Tzu Banks, Chae Sun Shook, and Hye Hyong Kim.FN7
FN7. Transcript of pleadings, motions, and other documents filed in petitioner's state trial court proceeding (henceforth “Trial Transcript”), Volume 1 of 2, at p. 141.
C. Guilt-Innocence Phase of Trial
The guilt-innocence phase of petitioner's trial began on February 10, 2003. On February 13, 2003, after hearing the evidence summarized above and deliberating less than three hours, the jury returned its verdict, finding petitioner guilty of capital murder.FN8
FN8. Petitioner's jury began its deliberations at the guilt-innocence phase of trial not earlier than 1:40 p.m. on February 13, 2003 and returned its guilty verdict not later than 4:10 p.m. the same date. S.F. Trial, Volume 21 of 26, at p. 128; Trial Transcript, at pp. 75-89.
D. Punishment Phase of Trial
The punishment phase of petitioner's trial commenced on February 14, 2003.
1. The Prosecution's Case
During the punishment phase of petitioner's trial, the prosecution presented (1) a host of documentary evidence and testimony from law enforcement officers regarding numerous instances of criminal conduct by petitioner FN9 and (2) testimony from correctional officers concerning numerous instances of violent or disruptive conduct by petitioner while in detention awaiting trial for capital murder.FN10
FN9. More specifically, a fingerprint examiner testified petitioner's fingerprints matched those found on not less than eleven judgments of conviction in various misdemeanor criminal proceedings, including the offenses of evading arrest, criminal mischief, possession of marijuana, failure to identify (two counts), criminal trespass (three counts), driving while intoxicated, resisting arrest, and assault causing bodily injury (two counts). S.F. Trial, Volume 22 of 26, testimony of Richard Contreras, at pp. 10-16.A juvenile probation officer testified petitioner had received a probated sentence in 1997 for unlawfully carrying a weapon. S.F. trial, Volume 23 of 26, testimony of Eddie Ortiz, at pp. 7-9.
A San Antonio Police officer testified about an incident on July 21, 2001 in which (1) he responded to a call from a woman named Marquketa Rector, whose face was lacerated and covered in blood and who identified petitioner as the person who had beaten her in the face, (2) he arrested petitioner, (3) thereafter, while emergency medical personnel treated Ms. rector's injuries, Tiffany Prince, who identified herself as petitioner's common law wife, approached him and informed him that petitioner had also assaulted her by striking her repeatedly in the face. S.F. Trial, Volume 23 of 26, testimony of Montrose Butler, at pp. 124-29.
Another San Antonio Police officer testified about an incident on February 8, 2002 during which petitioner identified himself as a member of a street gang. S.F. Trial, Volume 23 of 26, testimony of Ricardo Vijil, at pp. 133-34.
Yet another San Antonio Police officer testified about an incident on December 15, 1998 during which petitioner violently resisted arrest, fought with the officer, and caused the officer to sustain a severely lacerated leg which required several sutures to close. S.F. Trial, Volume 23 of 26, testimony of Randy Geary, at pp. 101-23.
FN10. More specifically, several correctional officer at the Bexar County Adult Detention Center testified concerning incidents (1) on March 6, 2002, during which petitioner exchanged punches with an Hispanic inmate, (2) on July 1, 2002, during which petitioner became argumentative, assumed a physically threatening, combative, posture, verbally abused, and threatened a guard, (3) on October 13, 2002, during which petitioner had a physical altercation with an Hispanic inmate in the rec yard which necessitated both inmates being sent to the infirmary, and (4) on November 14, 2002, during which petitioner and another Black inmate were involved in a fight with two Hispanic inmates. S.F. Trial, Volume 23 of 26, testimony of Carlos Soto, at pp. 30-34; testimony of Jack Farmer, at pp. 64-69; testimony of William Wadsworth, at pp. 55-58; testimony of Christopher LeBlanc, at pp. 46-49.
The prosecution also introduced a letter petitioner had written while in custody awaiting trial for capital murder, in which petitioner made several ethnic slurs against Hispanics and Anglos and indicated his desire to join a Black prison gang.FN11
FN11. The letter in question was admitted into evidence during the punishment phase of petitioner's trial as State Exhibit No. 105-A. S.F. Trial, Volume 23 of 26, testimony of Mark Wells, at pp. 79-81 & 95. A copy of State Exhibit No. 105-A appears in S.F. Trial, Volume 26 of 26.Significantly, the only objection petitioner's raised to the admission of this letter consisted of an argument that BCADC officials had illegally seized the letter. At no point did petitioner's trial counsel raise any complaint that admission of the letter violated petitioner's First Amendment rights. S.F. Trial, Volume 23 of 26, at pp. 82-95.
Petitioner's kidnap victim, Hye Kyong Kim, returned to the stand at the punishment phase of petitioner's capital trial and testified that, after petitioner fled the restaurant with her in her husband's vehicle, petitioner (1) tied her hands to a headrest, (2) drove around for several hours, (3) forced her to remove her shoes and pants, (4) repeatedly sprinkled cocaine on his penis and forced her to perform fellatio on him, (5) threatened to insert the barrel of his gun inside her vagina, (6) snorted cocaine with a rolled-up ten or twenty dollar bill, (7) unsuccessfully attempted to have sex with her on several occasions, (8) sprinkled cocaine on her vagina and licked it off, (9) gave her a beer to drink, (10) blindfolded her and took her to an apartment complex where he locked her in a closet, directed her to remove her underwear, and later directed her to put on a dirty pair of underwear, (11) removed her from the closet and again directed her to fellate him multiple times, (12) after again unsuccessfully attempting to sexually assault her, took a shower, and gave another occupant of the apartment permission to rape her, (13) made her count the money he had taken from the restaurant, and (14) again blindfolded her before returning her to the stolen vehicle just before police apprehended him. FN12. S.F. Trial, Volume 22 of 26, testimony of Hye Kyong Kim, at pp. 51-60.
2. The Defense's Case
The defense introduced testimony from petitioner's cousins and mother-in-law to the effect that (1) petitioner had developed a drug problem while living with his mother in California and, at age fourteen, moved to live with an aunt in San Antonio, (2) petitioner was a loving, friendly, giving, kind-hearted person, (3) the handgun which petitioner told police officer was his really belonged to one of his cousins, (4) another of petitioner's cousins was actually the person who had assaulted Marquketa Rector, not petitioner, (4) his conduct on March 1, 2002 was aberrational, (5) the night before the murders, petitioner consumed massive quantities of alcohol and cocaine, and multiple pills of Ecstasy, Valium, and Xanax, and (6) petitioner was a good father to his daughter.FN13
FN13. S.F. Trial, Volume 23 of 26, testimony of Sonia Watts, at pp. 170-225; testimony of Ronald Melvin Watts, at pp. 226-47; testimony of Alicia Prince, at pp. 247-54.
Petitioner's common law wife testified on direct examination that (1) she had known petitioner for two years and seven months, (2) she had only known petitioner to use drugs during the two months immediately prior to petitioner's capital offense, (3) when petitioner was high on drugs he was a very different person than he was otherwise, (4) she spoke with petitioner on the phone the night before the murders and could tell petitioner was high on something, and (5) while petitioner once pushed her in the face, petitioner was normally a nice, loving, person.FN14 On cross-examination, however, she admitted (1) petitioner had a drug problem at least as early as July, 2001, (2) petitioner failed to take advantage of the drug-treatment programs available to him while he was in custody prior to March, 2002, and (3) petitioner had been in a street gang in California before he came to live in Texas.FN15
FN14. S.F. Trial, Volume 24 of 26, testimony of Tiffany Prince, at pp. 73-86. FN15. Id., at pp. 91-103.
The defense then introduced the testimony of a licensed social worker and chemical dependency counselor who described herself as a “mitigation specialist” and who testified she had interviewed petitioner and his family and reviewed petitioner's school, jail, medical, and psychiatric records and opined that (1) petitioner had experienced many negative influences during his developmental years and (2) petitioner was probably in the midst of a substance-induced psychosis or delusional state at the time of his capital offense.FN16 Significantly, the state trial court repeatedly sustained the prosecution's hearsay objections whenever defense counsel attempted to elicit testimony from this witness concerning the contents of petitioner's school, medical, or jail records and concerning the contents of her discussions with petitioner's family and friends.FN17
FN16. S.F. Trial, Volume 24 of 26, testimony of Linda Mockeridge, at pp. 113-32. FN17. Id., at pp. 122-23, 128-29, 132.
3. The Verdict
After deliberating less than three hours, the jury returned its verdict at the punishment phase of petitioner's capital trial, unanimously finding (1) there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all the evidence, including the circumstances of the offense and the defendant's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant that a sentence of life imprisonment, rather than a death sentence, be imposed on petitioner.FN18
FN18. Petitioner's jury retired to deliberate at the punishment phase of petitioner's trial at 3:35 p.m. on February 19, 2003 and returned its verdict at approximately 5:50 p.m. that same date. Trial Transcript, Volume 1 of 2, at pp. 102-03; S.F. Trial, Volume 24 of 26, at pp. 198-206.
E. Direct Appeal
In an unpublished, per curiam opinion issued December 15, 2004, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence on direct appeal.FN19 Petitioner did not thereafter seek certiorari review of his conviction and sentence by the United States Supreme Court.
FN19. Watts v. State, AP-74,593 (Tex.Crim.App. December 15, 2004).As points of error on direct appeal, petitioner argued (1) the state trial court abused its discretion when it (a) admitted evidence during the punishment phase of petitioner's trial indicating petitioner's desire to join a black racist prison gang and (b) permitted the prosecution to make a racist jury argument referring to same, (2) petitioner's sentence was grossly disproportionate to petitioner's crimes, and (3) the death sentence violates the Eighth Amendment. The Texas Court of Criminal Appeals held (1) petitioner failed to properly preserve his complaints about the admission of petitioner's letter indicating petitioner's desire for membership in a black prison gang and the prosecution's closing argument referring to same by failing to timely object to same on constitutional grounds, i.e., the grounds urged on appeal, (2) there is no right to a proportionality review of a capital sentence, and (3) petitioner's conclusory Eighth Amendment claim was without merit.
F. State Habeas Corpus Proceeding
Petitioner filed his first state habeas corpus application on May 3, 2004, asserting three claims for relief therein.FN20 On October 14, 2004, the state responded to petitioner's first state habeas corpus application. FN21 On October 25, 2004 petitioner filed a “supplemental” state habeas corpus application in which, for the first time, he asserted claims that his trial and appellate counsel had rendered ineffective assistance by failing to timely object to, and present points of error on direct appeal complaining about, the state trial court's rulings on the admissibility of Ms. Mockeridge's expert testimony.FN22
FN20. Transcript of pleadings, motions, and other documents filed in petitioner's first state habeas corpus action, i.e., App. No. 62-250-01 & 62,650-02 (henceforth “State Habeas Transcript”), at pp. 1-34.Petitioner's first state habeas corpus application asserted three claims for relief, to wit, arguments that (1) the state trial court erred when it “severely limited” the testimony of petitioner's mitigation expert, (2) the state trial court erred when it permitted the prosecution to introduce evidence showing petitioner's desire to join a black racist prison gang, and (3) the prosecution improperly used its evidence of petitioner's desire to join a black prison gang in a racist manner during closing argument.
FN21. State Habeas Transcript, at pp. 79-99.The state argued that (1) the state trial court had not, in fact, restricted Ms. Mockeridge's expert testimony but, rather, had permitted her to express the same opinions before the jury that she expressed during the hearing on the admissibility of her testimony and petitioner's trial counsel failed to preserve any error concerning the trial court's rulings on Ms. Mockeridge's status as an expert witness by failing to make a timely proffer of any additional testimony she could have given at petitioner's trial and failing to challenge the trial court's ruling on direct appeal, (2) petitioner's trial counsel likewise failed to preserve any alleged constitutional error in the admission of petitioner's vitriolic letter from prison or to the prosecution's closing jury argument at the punishment phase of petitioner's trial by failing to make a timely objection on constitutional grounds to same, and (3) petitioner's grounds for state habeas relief, at best, raised only harmless error. FN22. State Habeas Transcript, at pp. 35-46.
In an Order issued November 23, 2004, the state habeas trial court (1) found the trial court had ruled that Ms. Mockeridge, while not specifically determined to be an expert on mitigation, would be permitted to testify as an expert, (2) found the trial court sustained the prosecution's hearsay objection to Ms. Mockeridge's summary chart, (3) found Ms. Mockeridge was permitted to testify regarding the nature of the documents and other evidence she had reviewed while developing her psycho-social history of petitioner but was not allowed to testify as to the specific contents of those hearsay documents and conversations, (4) found Ms. Mockeridge was permitted to express her opinions that numerous negative factors impacted on petitioner's childhood development and that petitioner was probably “in the midst of a substance [-]induced psychosis” at the time of his offense, (5) found any confusion in the trial court's rulings regarding Ms. Mockeridge's testimony excluded only hearsay testimony on her part and not any expression of her expert opinions, (6) found petitioner never complained to the trial court that its rulings had impacted on petitioner's constitutional right to present mitigating evidence, (7) concluded petitioner had procedurally defaulted on his constitutional complaint regarding the trial court's rulings on Ms. Mockeridge's testimony by failing to timely make a bill of exceptions regarding same and failing to present those complaints on direct appeal, (8) alternatively concluded there was no error in the trial court's rulings on the proper scope of Ms. Mockeridge's testimony, (9) found petitioner's trial counsel first raised the issue of gang membership at trial, (10) found no evidence was admitted identifying either the Longview Crips, i.e., the California street gang to which petitioner admitted once having been a member, or the Black Gorilla Family, i.e., the prison gang to which petitioner wrote he planned to seek membership, were “racist” gangs, (11) found petitioner made no constitutional objection to the admission of any evidence showing petitioner was either a member of the Longview Crips or hoped one day to be a member of the Black Gorilla Family, (12) found petitioner made no constitutional objection to the prosecution's wholly proper summary of the evidence before the jury during closing argument at the punishment phase of petitioner's trial, and (13) concluded petitioner procedurally defaulted on his constitutional complaints about the admission of State Exhibit No. 105-A and the prosecution's closing argument by failing to make timely objections on constitutional grounds thereto. FN23. State Habeas Transcript, at pp. 180-204.
In an Order issued July 11, 2005, the state habeas trial court ruled petitioner's “supplemental” application was untimely and did not qualify under applicable state law as a “successive” application. FN24. State Habeas Transcript, at pp. 169-71.
In an unpublished, per curiam, Order issued October 19, 2005, the Texas Court of Criminal Appeals (1) adopted the trial court's findings and conclusions concerning petitioner's initial three claims, (2) denied all relief requested in petitioner's initial state habeas corpus application, and (3) dismissed petitioner's “supplemental” state habeas application as a successive application under the Texas writ-abuse statute. FN25. Ex parte Kevin Watts, WR-62,650-01 & WR-62,650-02 (Tex.Crim.App. October 19, 2005).
G. Petitioner's Federal Habeas Corpus Proceeding
Petitioner filed his federal habeas corpus petition on December 29, 2005, alleging in his petition (1) the state trial court violated his Eighth Amendment right to present mitigating evidence when it restricted the trial testimony of its mitigation expert, Ms. Mockeridge, by not permitting her to testify “as a mitigation expert,” (2) the trial court violated petitioner's First Amendment rights and the Supreme Court's holding in Dawson v. Delaware by permitting the prosecution to admit evidence showing petitioner's desire for membership in a black prison gang, and (3) the prosecution violated petitioner's Fifth and Fourteenth Amendment rights when it used evidence of petitioner's gang affiliation “in a racist manner' during closing arguments at the punishment phase of trial”. FN26. Petitioner's Petition for Writ of Habeas Corpus, filed December 29, 2005, Docket entry no. 6 (henceforth “Petition”).
On May 18, 2006, respondent filed his answer, arguing in pertinent part that (1) petitioner had procedurally defaulted on his complaints regarding the trial court's rulings on the admissibility of Ms. Mockeridge's testimony by failing to contemporaneously object thereto, timely make a bill of exceptions, or raise same on direct appeal, (2) the state trial court committed no constitutional error in its rulings regarding Ms. Mockeridge's testimony or the admissibility of the hearsay contained in her report and summary chart, (3) petitioner procedurally defaulted on his constitutional complaints regarding the admission of petitioner's letter regarding his hoped-for prison gang membership by failing to make a contemporaneous constitutional objection thereto, (4) the trial court committed no constitutional error when it admitted petitioner's letter, (5) petitioner procedurally defaulted on his constitutional complaints concerning the prosecution's punishment-phase closing argument by failing to raise any timely objection thereto, and (6) any error in the state trial court's failure to sua sponte correct the prosecution during closing argument did not rise above harmless error. FN27. Docket entry no. 12.
On June 13, 2006, petitioner filed a reply to respondent's answer in which petitioner argued (1) respondent's arguments effectively eliminated the need for petitioner to allege and prove ineffective assistance by petitioner's trial counsel, (2) the state trial court effectively prevented petitioner from presenting mitigating evidence showing the details of petitioner's neglected and deprived childhood, and (3) the “illiterate gibberish” contained in petitioner's letter from jail was erroneously construed by the prosecution during closing argument as threatening in nature. FN28. Docket entry no. 16.
* * *
III. Exclusion of Mitigating Evidence Claim
A. The Claim
In his first claim herein, petitioner argues the state trial court violated his Eighth Amendment right to present mitigating evidence when it restricted the trial testimony of its mitigation expert, Ms. Mockeridge, by not permitting her to testify “as a mitigation expert” about numerous events which negatively impacted petitioner's childhood development, including the fact the petitioner (1) was sexually abused by a male baby-sitter, (2) engaged in gang activities and drug use from an early age, and (3) experienced a very disruptive family life. FN29. Petition, docket entry no. 6, at pp. 8-17.
More specifically, petitioner argues that, but for the trial court's rulings, Ms. Mockeridge could have testified that, in her opinion, (1) petitioner's health and emotional development were at risk from his early youth, (2) petitioner felt abandoned and lacked a sense of trust, (3) as a child, petitioner was preoccupied and oriented to a survival mode, (4) persons raised in survival mode lack good coping skills, (5) as a result of having been victimized by a sexual predator, petitioner developed trust and abandonment issues and a need to belong and to have safety, which, in turn led to petitioner becoming involved with gangs by age eight, (6) petitioner began abusing drugs at age ten, (7) petitioner had genetic loading with a positive family history of drugs and alcohol, (8) petitioner developed insecure, isolated, unhealthy relationships, (9) petitioner was failure-oriented, possessed low self-concept, and felt hopeless, (10) petitioner learned inappropriate responses, behaviors, and beliefs, (11) petitioner's life view was one of hopelessness, lack of coping skills, poor judgment, and impaired decision-making ability, (12) petitioner had a distorted sense of reality and identity, low tolerance, no sense of direction or purpose, and inappropriate responses, (13) petitioner is emotionally damaged, disabled, and dysfunctional, uses illegal drugs to self-medicate to calm himself, and (14) petitioner was probably in a psychotic state at the time of the murders. FN30. Affidavit of Linda Mockeridge, attached as Exhibit L to Petition, docket entry no. 6. Petitioner presented the same affidavit to the state courts during his state habeas corpus proceeding. State Habeas Transcript, at pp. 30-32.
B. State Court Disposition
During the punishment phase of petitioner's capital trial, the trial court held a hearing outside the presence of the jury during which Ms. Mockeridge testified concerning (1) her training and experience as a master's level social worker, licensed chemical dependency counselor, psychotherapist, and “mitigation specialist,” (2) the extent of her efforts to investigate petitioner's background and to develop a psycho-social history of petitioner, (3) her opinion that petitioner was probably in a psychotic state at the time of his capital offense.FN31 After hearing extensive argument from the parties regarding whether “mitigation science” was a legitimate field of scientific inquiry for which Ms. Mockeridge qualified as an “expert,” the state trial judge (1) ruled “in an abundance of caution” that he would permit Ms. Mockeridge to testify as an expert but was not specifically finding her to be an expert as to “mitigation science” per se, (2) ruled inadmissible a summary chart prepared by Ms. Mockeridge which contained hearsay, and (3) advised the parties he would address the prosecution's concerns about Ms. Mockeridge's apparent plans to relate to the jury wholly hearsay information she had obtained from other sources on a question-by-question basis.FN32
FN31. S.F. Trial, Volume 24 of 26, testimony of Linda Mockeridge, at pp. 5-56. FN32. S.F. Trial, Volume 24 of 26, at pp. 57-72.
Thereafter, petitioner called Ms. Mockeridge as a witness and she testified she had interviewed petitioner and his family and reviewed petitioner's school, jail, medical, and psychiatric records and opined that (1) petitioner had experienced many negative influences during his developmental years and (2) petitioner was probably in the midst of a substance-induced psychosis or delusional state at the time of his capital offense.FN33 The state trial court repeatedly sustained the prosecution's hearsay objections whenever defense counsel attempted to elicit testimony from Ms. Mockeridge concerning the contents of petitioner's school, medical, or jail records and concerning the contents of her discussions with petitioner's family and friends. FN34 On cross-examination, Ms. Mockeridge admitted (1) she was unaware of the legal definition of “mitigating evidence” until the date of petitioner's trial, (2) a “mitigation specialist” does basically the same thing as a social worker, i.e., investigate a person's background for the purpose of developing a psycho-social history of that person, and (3) she had not reviewed any of the police reports or other evidence relating to petitioner's capital offense. FN35
FN33. S.F. Trial, Volume 24 of 26, testimony of Linda Mockeridge, at pp. 113-32. FN34. Id., at pp. 122-23, 128-29, 132. FN35. Id., at pp. 134-51.
Petitioner's trial counsel made no effort whatsoever to elicit any opinion testimony from Ms. Mockeridge along the lines of that contained in the affidavit petitioner later presented to the state habeas court and to this Court, i.e., addressing her opinions concerning the impact of the many negative influences occurring during petitioner's childhood on petitioner's psychological and social development. More specifically, petitioner made no effort at trial to elicit testimony from Ms. Mockeridge with regard to her opinions that petitioner (1) felt abandoned and lacked a sense of trust, (2) as a child, was preoccupied and oriented to a survival mode, (3) lacked good coping skills, (4) had trust and abandonment issues and the needs to belong and for safety, (5) developed insecure, isolated, unhealthy relationships, (6) was failure-oriented, possessed low self-concept, and felt hopeless, (7) learned inappropriate responses, behaviors, and beliefs, (8) had a life view characterized by hopelessness, lack of coping skills, poor judgment, and impaired decision-making ability, (9) had a distorted sense of reality and identity, low tolerance, no sense of direction or purpose, and inappropriate responses, and (10) was emotionally damaged, disabled, and dysfunctional, and used illegal drugs to self-medicate to calm himself.
Petitioner's trial counsel likewise made no effort to introduce properly authenticated copies of petitioner's relevant school, medical, jail, and other records relied upon by Ms. Mockeridge in the course of developing her psycho-social history of petitioner. Likewise, petitioner's trial counsel made no effort to introduce any testimony from petitioner's family, friends, or others possessing personal knowledge regarding the circumstances of petitioner's allegedly difficult childhood. Instead, petitioner's trial counsel attempted, unsuccessfully, to employ Ms. Mockeridge's status as an “expert” witness to circumvent the Hearsay Rule and introduce rank hearsay information about petitioner's childhood through her trial testimony. The state trial court sustained the prosecution's hearsay objections to these attempts, as well as the prosecution's hearsay objections to Ms. Mockridge's written report and a summary chart detailing the information she had acquired while developing her psycho-social history of petitioner. In sum, while the state trial court permitted Ms. Mockeridge to express some of her expert opinions regarding the negative influences affecting petitioner's development and petitioner's likely mental condition at the time of his offense, the state trial court excluded any and all hearsay testimony by Ms. Mockeridge detailing precisely what information she had relied upon in arriving at her opinions.
For unknown reasons, petitioner's trial counsel made no effort to introduce in admissible form any of the underlying evidence relied upon by Ms. Mockeridge in the course of developing her expert opinions. For instance, petitioner's trial counsel made no effort to secure and introduce certified, or otherwise properly authenticated, copies of the petitioner's birth, school, medical, mental health, juvenile, residency, or jail records relied upon by Ms. Mockeridge in formulating her expert opinions. Likewise, petitioner's trial counsel called no witnesses possessing personal knowledge regarding the details of petitioner's allegedly deprived childhood relied upon by Ms. Mockeridge in developing her psycho-social history of petitioner.
Petitioner's trial counsel voiced no objection to any of the trial court's evidentiary rulings concerning Ms. Mockeridge. Petitioner's trial counsel made no proffer of additional opinion testimony from Ms. Mockeridge along the lines of that contained in her affidavit now before this Court. After the jury began its deliberations at the punishment phase of petitioner's capital trial, petitioner did move for the admission of Ms. Mockeridge's written report, as well as her summary chart, and the trial court admitted both for purposes of the record. FN36. S.F. Trial, Volume 24 of 26, at pp. 199-201.
Petitioner raised no point of error on direct appeal complaining about the trial court's rulings with regard to Ms. Mockedridge's testimony, report, or chart.
In his original state habeas corpus application, however, he complained for the first time that the trial court's rulings regarding Ms. Mockeridge's testimony had effectively precluded petitioner from presenting “mitigating” evidence to his capital sentencing jury. FN37. State Habeas Transcript, at pp. 12-21.
The state habeas trial court (1) found the trial court had ruled that Ms. Mockeridge, while not specifically determined to be an expert on mitigation, would be permitted to testify as an expert, (2) found the trial court sustained the prosecution's hearsay objection to Ms. Mockeridge's summary chart, (3) found Ms. Mockeridge was permitted to testify regarding the nature of the documents and other evidence she had reviewed while developing her psycho-social history of petitioner but was not allowed to testify as to the specific contents of those hearsay documents and conversations, (4) found Ms. Mockeridge was permitted to express her opinions that numerous negative factors impacted on petitioner's childhood development and that petitioner was probably “in the midst of a substance[-]induced psychosis” at the time of his offense, (5) found any confusion in the trial court's rulings regarding Ms. Mockeridge's testimony excluded only hearsay testimony on her part and not any expression of her expert opinions, (6) found petitioner never complained to the trial court that its rulings had impacted on petitioner's constitutional right to present mitigating evidence, (7) concluded petitioner had procedurally defaulted on his constitutional complaint regarding the trial court's rulings on Ms. Mockeridge's testimony by failing to timely make a bill of exceptions regarding same and failing to present those complaints on direct appeal, (8) alternatively concluded there was no error in the trial court's rulings on the proper scope of Ms. Mockeridge's testimony.FN38 The Texas Court of Criminal Appeals subsequently adopted the trial court's findings and conclusions when it denied state habeas corpus relief. Ex parte Kevin Watts, WR-62,650-01 & WR-62,650-02 (Tex.Crim.App. October 17, 2005). FN38. State Habeas Transcript, at pp. 184-94.
C. Procedural Default
Respondent correctly points out that petitioner procedurally defaulted on his complaints concerning the trial court's rulings on Ms. Mockeridge's testimony by failing to timely object on constitutional grounds to same and, thereafter, failing to raise points of error on direct appeal challenging the trial court's rulings.
1. Failure to Make a Contemporaneous Objection
Petitioner's failure to contemporaneous object to the state trial court's allegedly “limiting” rulings regarding the admissibility of Ms. Mockeridge's testimony, written report, and summary chart constitutes a form of procedural default, which serves as a barrier to federal habeas review of this claim. See Johnson v. Cain, 215 F.3d 489, 495 (5th Cir.2000) (holding a federal district court may raise the issue of procedural default sua sponte); Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir.1998)(holding the same). In point of fact, petitioner failed to make any proffer at trial, and likewise failed to obtain a state trial court ruling specifically addressing the admissibility, of the additional opinion testimony contained in Ms. Mockeridge's affidavit now before this Court. Simply put, the state trial court never had an opportunity to address specifically the admissibility of Ms. Mockeridge's additional opinion testimony, proffered for the first time in her affidavit which accompanied petitioner's initial state habeas corpus application.
Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). Procedural defaults only bar federal habeas review when the state procedural rule which forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991).
Petitioner alleges no facts, and cites this Court to no Texas case law, showing the Texas courts have inconsistently applied the contemporaneous objection rule in similar contexts, i.e., with regard to alleged errors in the admission of evidence. More specifically, petitioner identifies no instances in which the Texas Court of Criminal Appeals has entertained the merits of a claim challenging the constitutionality of a state trial court's ruling on the admissibility of potentially mitigating evidence at the punishment phase of a capital trial when raised for the first time in a state habeas corpus application. The Fifth Circuit has long recognized a federal habeas petitioner's failure to comply with the Texas contemporaneous objection rule as an adequate and independent state procedural barrier to federal habeas review. See Rowell v. Dretke, 398 F.3d 370, 375-75 (5th Cir.2005) (holding a defendant's failure to timely object to alleged errors in a jury charge determined by a Texas appellate court to be a violation of the Texas contemporaneous objection rule barred federal habeas relief of the alleged erroneous jury charge under the procedural default doctrine), cert. denied, 546 U.S. 848, 126 S.Ct. 103, 163 L.Ed.2d 117 (2005); Graves v. Cockrell, 351 F.3d 143, 152 (5th Cir.2003) (Texas contemporaneous objection rule is an adequate and independent state ground and failure to comply with this rule procedurally bars federal habeas review), cert. denied, 541 U.S. 1057, 124 S.Ct. 2160, 158 L.Ed.2d 757 (2004); Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir.2003) (holding violation of the Texas contemporaneous objection rule is an adequate and independent barrier to federal habeas review), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir.2000)(holding the Texas contemporaneous objection rule is strictly or regularly and evenhandedly applied in the vast majority of cases and, therefore, an adequate state bar), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001); Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir.2000)(failure to timely object waives error in jury instructions unless the error is so prejudicial no instruction could cure the error), cert. denied, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998) (Texas courts strictly and regularly apply the Texas contemporaneous objection rule which is an adequate state procedural rule), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Sharp v. Johnson, 107 F.3d 282, 285-86 (5th Cir.1997) (holding the Texas contemporaneous objection rule is an independent and adequate state ground upon which to base a procedural bar to federal review); Rogers v. Scott, 70 F.3d 340, 342 (5th Cir.1995)(holding a federal habeas petitioner's failure to comply with the Texas contemporaneous objection rule also bars federal habeas review of a claim absent cause and prejudice or a fundamental miscarriage of justice), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996); Nichols v. Scott, 69 F.3d 1255, 1278 n. 44 (5th Cir.1995) (holding the same), cert. denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996); Amos v. Scott, 61 F.3d 333, 338-45 (5th Cir.1995)(holding the same), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).
More importantly, the Fifth Circuit has recognized the efficacy of the Texas contemporaneous objection rule as a barrier to federal habeas review was “firmly established” for federal procedural default purposes long before the date petitioner filed his brief on direct appeal. See Hogue v. Johnson, 131 F.3d 466, 487 (5th Cir.1997) (holding the Texas contemporaneous objection rule was already well established 35 years ago and recognized as an adequate state procedural barrier to federal habeas review at least twenty years ago), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998); Rogers v. Scott, 70 F.3d at 342 (recognizing the Texas contemporaneous objection rule foreclosed federal habeas review); Amos v. Scott, 61 F.3d at 343-44 (holding Texas appellate courts consistently apply the contemporaneous objection rule in the vast majority of cases and, thereby, strictly and regularly apply same).
Petitioner's trial counsel wholly failed to present the trial court with any opportunity to rule on the admissibility of Ms. Mockeridge's additional opinion testimony, i.e., that contained in her affidavit now before this Court. Petitioner failed to obtain a state trial court ruling regarding the admissibility of the vast bulk of Ms. Mockeridge's recently-proffered opinion testimony and failed to object to any ruling by the trial court purporting to limit the scope of Ms. Mockeridge's opinion testimony. For those reasons, petitioner procedurally defaulted on his first claim for federal habeas relief herein.
2. Failure to Raise Claim on Direct Appeal
Likewise, the Fifth Circuit has long recognized the efficacy of the Texas procedural rule requiring presentation of claims about allegedly erroneous trial court rulings on direct appeal. Petitioner identifies no instances in which the Texas Court of Criminal Appeals has entertained the merits of a federal constitutional claim about a state trial court's allegedly erroneous evidentiary ruling when that claim was raised for the first time in a state habeas corpus application. More importantly, the Fifth Circuit has recognized that the same procedural default rule relied upon by the Texas Court of Criminal Appeals in its adopted findings and conclusions denying petitioner state habeas corpus relief was “firmly established” for federal procedural default purposes before the date the Texas Court of Criminal Appeals disposed of petitioner's direct appeal. See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir.2004), (holding the Texas Court of Criminal Appeals' opinion in Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996) modified on motion for rehearing on February 2, 1998, to recognize this new procedural default rule, “firmly entrenched” that procedural default rule on that date), cert. denied, 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001) (holding a federal habeas petitioner procedurally defaulted on an unexhausted newly discovered evidence theory supporting a Brady claim by failing to raise same on direct appeal); Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.2000) (holding a federal habeas petitioner procedurally defaulted on a fair cross-section complaint by failing to raise it in a direct appeal that became final in 1997), cert. denied, 530 U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000). At the time petitioner filed his appellant's brief the law in Texas, as established on rehearing in Ex parte Gardner, required a convicted criminal defendant to present any and all claims then available as points of error on direct appeal. Id. For unknown reasons, petitioner's appellate counsel failed to assert petitioner's complaint regarding the trial court's rulings on Ms. Mockeridge's testimony as a point of error on direct appeal. Thus, petitioner has procedurally defaulted on this claim in this Court.
Petitioner has twice procedurally defaulted on his federal claim arising from the trial court's allegedly restrictive or limiting rulings on Ms. Mockeridge's testimony.
3. Exceptions Inapplicable
Petitioner's failures to make a timely constitutional objection to the state trial court's allegedly “restrictive” or “limiting” rulings on the admissibility of Ms. Mockeridge's punishment-phase testimony or to raise points of error complaining about same on direct appeal bar federal habeas review of petitioner's constitutional challenge to those rulings unless petitioner can satisfy one of the two exceptions to the procedural default doctrine.
The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel's ability to comply with the state's procedural rules or that petitioner's trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, petitioner does not allege any specific facts in this Court establishing that his trial counsel's failure to assert a constitutional challenge to the trial court's rulings on Ms. Mockerdige's testimony or his appellate counsel's failure to present points of error on direct appeal complaining about same satisfy either prong of the Strickland v. Washington test for ineffective assistance.
In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347, 112 S.Ct. at 2523. Petitioner has alleged no specific facts satisfying this “factual innocence” standard. At the punishment phase of petitioner's capital trial, Ms. Mockeridge made the jury aware of the fact there had been many negative influences on petitioner's childhood development.FN39 Petitioner's cousins informed the jury the petitioner was involved with gangs and drugs by the time he arrived in Texas at age fourteen.FN40 Thus, Ms. Mockeridge's additional opinion testimony, proffered in her affidavit, offers little in the way of additional substantive evidence regarding petitioner's background or moral culpability for his capital offense sufficient to have earned petitioner a life sentence.
FN39. S.F. Trial, Volume 24 of 26, testimony of Linda Mockeridge, at pp. 130-31. FN40. S.F. Trial, Volume 23 of 26, testimony of Sonia Watts, at pp. 171-72, 205; testimony of Ronald Melvin Watts, at pp. 227-28.
Given the record now before this Court which establishes the heinous nature of petitioner's offense, petitioner's equally remorseless conduct toward Hye Kyong Kim in the hours after his capital offense, and petitioner's complete failure to express any genuine remorse personally or to make a sincere personal expression of contrition for his murderous conduct before the jury, petitioner has failed to establish by “clear and convincing evidence” that, but for the trial court's allegedly erroneous evidentiary rulings, no reasonable jury could have found him eligible for the death sentence. In short, the evidence of petitioner's long history of violent behavior, propensity for future criminal conduct, and utter lack of remorse for his criminal misbehavior was overwhelming. Even considering petitioner's additional opinion testimony from Ms. Mockeridge, in the absence of any scintilla of evidence showing the petitioner ever personally expressed remorse for his capital offense before his capital sentencing jury, there is not even a remote possibility, much less clear and convincing evidence, that, but for the absence of Ms. Mockeridge's additional opinion testimony, a rational jury could have found petitioner ineligible for the death penalty. Because petitioner has failed to satisfy the “actual innocence” test, he is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine.
D. No Merits
Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)(holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984)(holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874. “When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.” Coleman v. Thompson, 501 U.S. at 730, 111 S.Ct. at 2554. A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner's trial fundamentally unfair. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir.2000); Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir.1999). The failure to admit evidence amounts to a due process violation only when the omitted evidence is a crucial, critical, highly significant factor in the context of the entire trial. Johnson v. Puckett, 176 F.3d at 821. Thus, the question before this Court is not whether the state trial court properly applied state evidentiary rules but, rather, whether petitioner's federal constitutional rights were violated by any ruling made by the trial court in admitting or excluding evidence actually proffered for admission during petitioner's trial. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir.2005) (holding federal habeas review of a state court's evidentiary ruling focuses exclusively on whether the ruling violated the federal Constitution), cert. denied, --- U.S. ----, 126 U.S. 239, 163 L.Ed.2d 221 (2005).
None of the many Supreme Court opinions cited by petitioner in support of his first claim for relief herein holds that the Eighth Amendment abrogates state evidentiary rules, including the Hearsay Rule. On the contrary, the Fifth Circuit has upheld against a due process challenge a state trial court's exclusion during the punishment phase of a capital trial of an expert's proffered hearsay testimony regarding out-of-court statements made to the expert by the defendant. See McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir.1999) (holding there was no due process violation where the state trial court permitted the expert to testify as to his opinions about the petitioner's state of mind during and after the crime arising from petitioner's statements to the expert but excluded the petitioner's statements to the expert), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). The Fifth Circuit's holding in McGinnis controls the disposition of petitioner's initial claim for relief herein. Petitioner's trial court (1) permitted Ms. Mockeridge to opine regarding her beliefs that (a) petitioner had been negatively impacted by numerous factors during his childhood and (b) petitioner was likely suffering from substance-induced psychosis at the time of his capital offense but (2) refused to permit Ms. Mockeridge to testify regarding hearsay statements made to her by petitioner and others or about hearsay information contained in documents petitioner never proffered for admission in properly authenticated form.
The state trial court's rulings concerning Ms. Mockeridge's testimony did not render petitioner's trial fundamentally unfair. Petitioner's trial counsel made no effort whatsoever to elicit any opinion testimony from Ms. Mockeridge along the lines of that contained in her affidavit now before this Court. More specifically, petitioner made no effort at his trial to present the jury with opinion testimony by Ms. Mockeridge regarding the impact of the many negative influences on petitioner's development on petitioner's character. For instance, Ms. Mockeridge opines in her affidavit that petitioner suffered from (1) feelings of hopelessness, abandonment, and isolation, (2) a pathological need for belonging, (3) a lack of coping skills, (4) an inability to engage in appropriate behavior, (5) emotional damage, and (6) a preoccupation with survival behavior. However, petitioner's trial counsel made no effort to elicit similar testimony from Ms. Mockeridge during the punishment phase of petitioner's trial. Petitioner cannot fault the state trial court for what was apparently the wholesale deficient performance of his trial counsel in failing to either (1) attempt to elicit similar testimony or (2) obtain a clarifying ruling from the trial court regarding the admissibility of such testimony. It is disingenuous for petitioner to make no effort to secure a specific trial court ruling on the admissibility of particular opinion testimony and then to complain the trial court's allegedly ambiguous rulings on hearsay matters somehow dissuaded petitioner from even offering that same opinion testimony.
When viewed in the context of petitioner's entire trial, there was nothing crucial, critical, or highly significant about any of the additional opinion testimony from Ms. Mockeridge petitioner now claims he was somehow prevented from eliciting from that witness during the punishment phase of his capital trial. It is significant that the trial court's only rulings excluding testimony by Ms. Mockeridge addressed efforts by petitioner's trial counsel to do an end-run around the Hearsay Rule by having Ms. Mockeridge testify as to information which she either (1) was told by petitioner or his family or (2) read in wholly hearsay documents which had never been proffered for admission into evidence at petitioner's trial. The state trial court cannot reasonably be faulted for enforcing the Texas Hearsay Rule. Nor can the state trial court be faulted for “excluding” Ms. Mockeridge's opinion testimony where (1) the trial court permitted her to testify fully concerning her opinion of the petitioner's mental state at the time of his offense and (2) the petitioner made no effort at trial to offer additional opinion testimony from Ms. Mockeridge concerning the other matters set forth in her post-trial affidavit. While petitioner correctly argues the Eighth Amendment ensures a capital defendant the opportunity to present relevant mitigating evidence, nothing in the federal Constitution abrogates state evidentiary rules. See McGinnis v. Johnson, 181 F.3d at 693 (holding there was no violation of due process where a defense expert was permitted to testify at the punishment phase of a capital trial regarding his opinion of the defendant's mental state at the time of the offense but was precluded from testifying regarding the specific contents of hearsay statements made by the defendant which helped form the basis for the expert's opinion).
E. Conclusions
Petitioner procedurally defaulted on his initial claim for federal habeas relief herein by failing to timely object to, or otherwise properly preserve for state appellate review, his complaint about the trial court's allegedly limiting rulings regarding Ms. Mockeridge's testimony. In fact, petitioner made no effort to obtain a ruling from the trial court on the admissibility of the vast majority of Ms. Mockeridge's opinion testimony which petitioner now claims he was somehow precluded from introducing at trial. Furthermore, petitioner procedurally defaulted a second time on this same claim of allegedly erroneous trial court evidentiary rulings by failing to raise his complaints on direct appeal. Petitioner has alleged no specific facts sufficient to overcome either of his two, separate, procedural defaults on his first federal habeas claim. The state habeas court's alternative conclusion that petitioner's federal constitutional rights were not violated by the trial court's evidentiary rulings is consistent with the Fifth Circuit's squarely-on-point holding in McGinnis. Under such circumstances, the state habeas court's alternative ruling that there was no federal constitutional error arising from the trial court's rulings on the admissibility of Ms. Mockeridge's testimony, written report, and summary chart was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.
IV. Dawson v. Delaware Claim
A. The Claim
In his second claim herein, petitioner argues his First Amendment rights, as recognized by the Supreme Court in Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), were violated when the trial court admitted the letter petitioner wrote to his cousin from jail while awaiting trial for capital murder, which contained several ethnic slurs and indicated petitioner's desire to assault others and join a prison gang identified therein by petitioner as the “Black Gorilla Family,” i.e., State Exhibit No. 105-A. FN41. Petition, docket entry no. 6, at pp. 17-18.
B. State Court Disposition
When the prosecution offered State Exhibit no. 105-A at trial, the only objections petitioner's trial counsel raised were arguments that jail personnel had unlawfully tampered with, examined, and seized petitioner's private correspondence.FN42 At no time did petitioner's trial counsel raise an objection that the admission of State Exhibit no. 105-A violated petitioner's First Amendment right to association recognized by the Supreme Court's holding in Dawson v. Delaware. FN42. S.F. Trial, Volume 23 of 26, testimony of Mark Wells, at pp. 81-94.
In his first point of error on direct appeal, petitioner argued the state trial court violated the Supreme Court's holding in Dawson v. Delaware when it admitted evidence of petitioner's desire for membership in “a black racist prison gang.” The Texas Court of Criminal Appeals (1) found petitioner never objected at trial to the admission of State Exhibit no. 105-A on Dawson or First Amendment grounds, (2) found petitioner's trial objections to the admission of State Exhibit no. 105-A and to related testimony made no mention of gang membership, and (3) concluded petitioner failed to properly preserve for state appellate review any federal constitutional objection to the admission of State Exhibit no. 105-A or any trial testimony concerning same. FN43. Watts v. State, AP-74,593 (Tex.Crim.App. December 15, 2004). A copy of this unpublished opinion is attached to Petitioner's Petition herein at exhibit B.
In his initial state habeas corpus application, petitioner again urged his complaint that the admission of State Exhibit no. 105-A violated his federal constitutional right to association.FN44 The state habeas trial court (1) found petitioner's trial counsel first raised the issue of gang membership at trial, (2) found there was no dispute that petitioner had admitted to having been a member of the Longview Crips street gang, (3) found no evidence was admitted identifying either the Longview Crips, i.e., the California street gang to which petitioner admitted once having been a member, or the Black Gorilla Family, i.e., the prison gang to which petitioner wrote he planned to seek membership, as “racist” gangs, (4) found petitioner made no constitutional objection to the admission of any evidence showing petitioner was either a member of the Longview Crips or hoped to one day be a member of the Black Gorilla Family, (5) concluded the Texas Court of Criminal Appeals had held on direct appeal that petitioner procedurally defaulted on this same constitutional claim by failing to timely object at trial to the admission of State Exhibit no. 105-A on the same ground as that now urged by petitioner, and (6) alternatively concluded no constitutional error arose from the admission of State Exhibit no. 105-A.FN45
FN44. State Habeas Transcript, at pp. 21-23. FN45. State Habeas Transcript, at pp. 196-202.
C. Procedural Default
Respondent correctly argues that petitioner has procedurally defaulted on this claim by failing to timely object at trial to the admission of State Exhibit no. 105-A on the same federal constitutional ground petitioner initially urged on direct appeal and now urges before this Court.
Generally speaking, Texas law requires an objection to coincide with a point of error on direct appeal. See, e.g., Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003), (defendant failed to preserve complaint regarding the admission of victim-impact evidence by objecting thereto only on the ground that the witness was unqualified to render an opinion regarding the impact of the crime on the victim's personality); Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex.Crim.App.1999) (holding a hearsay objection did not preserve for appellate review a complaint that the testimony in question was irrelevant), cert. denied, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000). The Texas Court of Criminal Appeals' determination on direct appeal, as well as the state habeas court's similar determination, that petitioner's trial counsel's objections to the petitioner's allegedly improperly-seized correspondence failed to properly preserve petitioner's constitutional complaint about the admission of State Exhibit no. 105-A appear to be straight-forward applications of this “firmly established and regularly followed” principle of state criminal procedure.
By failing to present the trial court with a contemporaneous objection to the admission of State Exhibit no. 105-A which mirrored the First Amendment complaints petitioner subsequently presented on direct appeal and in his state habeas corpus proceeding, petitioner procedurally defaulted on his Dawson v. Delaware claim in this federal habeas corpus proceeding.
D. No Merits
In Dawson v. Delaware, the Supreme Court specifically held that it is proper for a capital sentencing jury to consider evidence of the defendant's racial intolerance and subversive advocacy where such evidence is relevant to the issues before the jury. Dawson v. Delaware, 503 U.S. at 164-65, 112 S.Ct. at 1097. The particular evidence in that case, i.e., Dawson's membership in the Aryan Brotherhood, was unaccompanied by any showing Dawson's capital offense was racially motivated or in anyway endorsed by the Aryan Brotherhood and was not relevant to rebut any mitigating evidence proffered by the defense; therefore, the Supreme Court concluded, the evidence was irrelevant to any issue before the sentencing jury. Id., 503 U.S. at 166-67, 112 S.Ct. at 1098-99. The Supreme Court took great pains in Dawson, however, to explain the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the Constitution. Id., 503 U.S. at 165, 112 S.Ct. at 1097. The constitutional flaw in the prosecution's reliance on Dawson's membership in the Aryan Brotherhood, the Supreme Court explained, was the prosecution's failure to introduce other evidence tying Dawson's membership to any of the considerations before the sentencing jury. Id., 503 U.S. at 166-67, 112 S.Ct. at 1097-98.
In contrast to the circumstances of Dawson, evidence of petitioner's intense racial animus against Hispanics and Anglos was relevant to rebut the defense's contention that petitioner's assaults on Hispanic inmates and threats against Anglo guards while petitioner was in pretrial detention were all instances of self-defense undertaken by petitioner as a result of petitioner's fear of assault by inmates who were acting at the behest of the Mexican Mafia prison gang. Furthermore, as correctly pointed out by respondent, unlike in Dawson, the record from petitioner's trial was bereft of any evidence identifying the “Black Gorilla Family” referenced in petitioner's epithet-laced letter as a “racist” organization. In fact, there was no evidence introduced at petitioner's trial identifying any of the racial tenets or policies of that organization or of the street gang (the “Longview Crips”) to which petitioner admitted to having been a member. In sum, State Exhibit no. 105-A's evidence of petitioner's racial animus toward Hispanics and Anglos was relevant to rebut petitioner's contention that his lengthy record of violence during his pretrial detention was solely the product of petitioner's fear of assault by Mexican Mafia prison gang members.
Moreover, the erroneous admission of prejudicial evidence can justify federal habeas corpus relief only if it is material in the sense that it is a crucial, critical, or highly significant factor to the outcome of the trial. Givens v. Cockrell, 265 F.3d 306, 308 (5th Cir., 2001); Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir.1999), cert. denied, 529 U.S. 1027, 120 S.Ct. 1437, 146 L.Ed.2d 326 (2000); Little v. Johnson, 162 F.3d 855, 862 (5th Cir., 1998), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999). Petitioner's mention of his desire to join the “Black Gorilla Family” upon his arrival in prison was only one small fragment of a racial-epithet-strewn letter petitioner wrote to his cousin while awaiting trial for capital murder and was unaccompanied by any evidence identifying the “Black Gorilla Family” as an organization which harbored or promoted racial animus toward other ethnic groups. The evidence before the jury during the punishment phase of petitioner's capital trial consisted of (1) the horrific details of petitioner's capital offense (including the fact he shot three people execution-style before demanding any money), (2) the equally abhorrent details of petitioner's hours-long, cocaine-fueled, sexual rampage against his kidnap victim, (3) the uncontroverted eyewitness testimony of multiple law enforcement officers regarding petitioner's efforts to ram the stolen vehicle he was driving into multiple police vehicles during petitioner's unsuccessful attempt to flee with his kidnap victim, (4) multiple eyewitness accounts of petitioner's alcohol, cocaine, and prescription medication binge the night before his capital offense, (5) accounts of petitioner's physical assaults on other jail inmates while awaiting trial, (6) accounts of petitioner's history of physical assaults upon a law enforcement officer and a pair of women, including his own common law spouse, and (7) a complete and total absence of any evidence showing petitioner had ever personally expressed sincere remorse or genuine contrition for his capital offense before his capital sentencing jury. Under such circumstances, the admission of State Exhibit no. 105-A and its vague reference to the “Black Gorilla Family” was neither a crucial, critical, nor highly significant factor in the outcome of the punishment phase of petitioner's capital trial.
Finally, the Supreme Court left open in Dawson the question of whether the admission of evidence of Dawson's gang membership might have been harmless error. Having independently reviewed the entire record from petitioner's trial, this Court concludes the admission of State Exhibit no. 105-A had no “substantial and injurious effect or influence” in determining the jury's verdict at the punishment phase of petitioner's capital trial. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)(holding the test for harmless error in a federal habeas corpus action brought by a state prisoner is “whether the error had substantial and injurious effect or influence in determining the jury's verdict”).
E. Conclusions
Petitioner procedurally defaulted on his Dawson v. Delaware complaint regarding the admission of petitioner's racial epithet-strewn letter to his cousin by failing to make a contemporaneous objection at trial raising this same constitutional claim. The state habeas court's alternative holding that no federal constitutional violation resulted from the admission of State Exhibit no. 105-A was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.
V. Improper Prosecutorial Argument
A. The Claim
In his third and final claim for federal habeas relief herein, petitioner argues the prosecution improperly “stirred the racism pot” by referring to petitioner's letter and desire to join the “Black Gorilla Family” prison gang. FN46. Petition, docket entry no. 6, at pp. 19-22.
B. State Court Disposition
During closing argument at the punishment phase of petitioner's capital trial, the prosecution argued in part without objection from petitioner's trial counsel that (1) petitioner was an admitted gang member and (2) petitioner's expressed desire to join a prison gang indicated petitioner posed a threat of future dangerousness while incarcerated, as did the multiple racist references in petitioner's letter. FN47. S.F. Trial, Volume 24 of 26, at pp. 161-63, 166, 191, 196.
On direct appeal, the Texas Court of Criminal Appeals held petitioner procedurally defaulted, i.e., failed to preserve error, on his complaints about the prosecution's references to petitioner's gang membership during punishment-phase closing argument by failing to timely object thereto.FN48 During petitioner's state habeas corpus proceeding, the state habeas trial court reached the same conclusion when petitioner re-urged his complaints about the prosecution's closing punishment-phase jury argument and concluded, alternatively, the prosecution's closing arguments were proper summations of the evidence then before the jury.FN49
FN48. Watts v. State, AP-74,593 (Tex.Crim.App. December 15, 2004), slip op. at p. 3. FN49. State Habeas Transcript, at pp. 202-03.
C. Procedural Default
Respondent correctly points out petitioner's failure to contemporaneously object to the prosecution's closing argument constitutes a procedural default which bars federal habeas review of same. The Fifth Circuit has recognized the efficacy of the Texas contemporaneous objection rule as a barrier to federal habeas review as “firmly established” for federal procedural default purposes long before the date of petitioner's trial. See Hogue v. Johnson, 131 F.3d at 487 (holding the Texas contemporaneous objection rule was already well established 35 years ago and recognized as an adequate state procedural barrier to federal habeas review at least twenty years ago); Rogers v. Scott, 70 F.3d at 342 (recognizing the Texas contemporaneous objection rule foreclosed federal habeas review); Amos v. Scott, 61 F.3d at 343-44 (holding Texas appellate courts consistently apply the contemporaneous objection rule in the vast majority of cases and, thereby, strictly and regularly apply same).
D. No Merit
Under Texas law, proper closing argument by the prosecution in criminal trials fall into four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000); Hathorn v. State, 848 S.W.2d 101, 117 (Tex.Crim.App.1992), cert. denied, 509 U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993). See also Buxton v. Collins, 925 F.2d 816, 825 (5th Cir.1991)(recognizing the four proper areas for prosecutorial jury argument are summation of the evidence, reasonable inference from the evidence, answers to opposing counsel's argument, and pleas for law enforcement), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991).
An improper prosecutorial argument which does not implicate a specific constitutional provision is not cognizable on collateral review unless the defendant shows an abridgment of due process, i.e., the improper argument rendered the proceeding fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986)(“it is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant inquiry is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process”); Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir.2002)(holding prosecutorial remarks are a sufficient ground for habeas relief only if they are so prejudicial they render the trial fundamentally unfair and such unfairness exists only if the prosecutor's remarks evince either persistent and pronounced misconduct or the evidence was so insubstantial that, in probability, but for the remarks no conviction would have occurred), cert. denied, 540 U.S. 1218, 124 S.Ct. 1503, 158 L.Ed.2d 152 (2004); Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir.2000)(holding (1) the relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process and (2) the prosecutor is permitted to argue to the jury those inferences and conclusions the prosecutor wishes the jury to draw from the evidence so long as those inferences are grounded upon evidence), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001); Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir.2000)(holding (1) federal habeas review of allegedly improper prosecutorial statements made during the punishment phase of a capital trial focuses on whether the remarks so infected the punishment phase as to make the resulting sentence a denial of due process and (2) a trial is fundamentally unfair only if there is a reasonable probability the verdict might have been different had the trial been properly conducted), cert. dism'd, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001).
Improper jury argument by the state does not present a claim of constitutional magnitude in a federal habeas action unless it is so prejudicial that the state court trial was rendered fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment. Id. To establish that a prosecutor's remarks are so inflammatory, the petitioner must demonstrate the misconduct is persistent and pronounced or the evidence of guilt was so insubstantial the conviction would not have occurred but for the improper remarks. Harris v. Cockrell, 313 F.3d at 245; Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir.1997); Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir.1995)(wholly apart from the issue of procedural bar, failure to object to an argument is an indication it was not perceived as having a substantial adverse effect or would not naturally and necessarily be understood as advancing improper considerations)( citing Milton v. Procunier, 744 F.2d 1091, 1095 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985)), cert. denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996); Buxton v. Collins, 925 F.2d at 825 (recognizing the four proper areas for prosecutorial jury argument are summation of the evidence, reasonable inference from the evidence, answers to opposing counsel's argument, and pleas for law enforcement).
“A prosecutor's improper argument will, in itself, exceed constitutional limitations in only the most egregious cases.” Harris v. Cockrell, 313 F.3d at 245 n. 12; Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir.1987), quoting Menzies v. Procunier, 743 F.2d 281, 288-89 (5th Cir.1984). The burden is on the habeas petitioner to show a reasonable probability that, but for the prosecutor's remarks, the result of the trial would have been different. Nichols v. Scott, 69 F.3d at 1278.
The prosecutor's allegedly objectionable arguments did not so infect petitioner's trial was to render same fundamental unfair. The state habeas court reasonably concluded the prosecutor's comments were fair summations of, and drew reasonable, fair, legitimate inferences from, the evidence then before the jury. There was overwhelming evidence favoring the prosecution on both of petitioner's capital sentencing special issues. In addition to the heinous details of petitioner's capital offense and torture of his kidnap victim, the jury had before it at the punishment phase of petitioner's trial unchallenged testimony establishing the petitioner (1) aggressively attempted to flee from police when they encircled the stolen vehicle he was driving, (2) had a long history of violent behavior, both while in detention and on the street, and (3) had a drug-abuse problem of long duration for which petitioner had sought no treatment during his previous incarcerations and periods on probation. Under such circumstances, the prosecutors' passing references to the petitioner's use of racial epithets and expression of his desire to join a prison gang did not render petitioner's trial fundamentally unfair.
E. Conclusions
Petitioner procedurally defaulted on his complaints about the prosecution's punishment-phase closing argument by failing to contemporaneously object thereto. The state habeas court's alternative conclusion that no federal constitutional violation resulted from the prosecutor's closing jury arguments was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.
VI. Certificate of Appealability
The AEDPA converted the “certificate of probable cause” previously required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a “Certificate of Appealability” (“CoA”). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir.1997)(recognizing the “substantial showing” requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.1997)(holding the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041, 118 S.Ct. 1342, 140 L.Ed.2d 502 (1998).
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002)(holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000)(holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997)(holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000).
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 ( quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir.2005), cert. denied, --- U.S. ----, 126 S.Ct. 2986, 165 L.Ed.2d 987 (2006); Miller v. Dretke, 404 F.3d 908, 913 (5th Cir.2005); Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005), cert. denied, 546 U.S. 980, 126 S.Ct. 550, 163 L.Ed.2d 466 (2005); Bigby v. Dretke, 402 F.3d 551, 557 (5th Cir.2005), cert. denied, 546 U.S. 900, 126 S.Ct. 239, 163 L.Ed.2d 221 (2005); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005).
Petitioner procedurally defaulted on all three of his claims herein by failing to contemporaneously object on the same federal constitutional grounds petitioner urges herein to either (1) the trial court's rulings regarding the admissibility of Ms. Mockeridge's testimony, report, or chart, (2) the admission of State Exhibit no. 105-A, or (3) the prosecution's closing punishment-phase jury arguments. There can be no genuine dispute among reasonable jurists as to the nature of petitioner's procedural default on each of his claims herein.
Furthermore, there can be no disagreement among reasonable jurists as to the utter lack of merit underlying each of petitioner's federal constitutional claims herein. Nothing other than the deficient performance of petitioner's trial counsel prevented petitioner from introducing the additional opinion testimony of Ms. Mockeridge which petitioner contends he was precluded from presenting at trial. This Court's independent review of the record from petitioner's trial leads to the inescapable conclusion the state trial judge invited petitioner to present expert testimony from Ms. Mockeridge and announced a desire to exclude only that testimony which was barred by the Hearsay Rule. If petitioner's trial counsel had any question as to the precise parameters of the state trial court's rulings, said counsel could either have requested further clarification from the trial court or proceeded to seek to elicit additional expert opinion testimony from Ms. Mockeridge and, thereby, obtained specific rulings from the trial court regarding the admissibility of same. By failing to undertake either course of action, and ignoring the issue completely on direct appeal, petitioner procedurally defaulted a second time on his complaints regarding the trial court's rulings on Ms. Mockeridge's opinion testimony. There can be no disagreement among reasonable jurists that the trial court's exclusion of hearsay testimony by Ms. Mockeridge was a reasonable application of clearly established federal law. See McGinnis v. Johnson, 181 F.3d at 693 (holding there was no violation of due process where a defense expert was permitted to testify at the punishment phase of a capital trial regarding his opinion of the defendant's mental state at the time of the offense but was precluded from testifying regarding the specific contents of hearsay statements made by the defendant which helped form the basis for the expert's opinion).
Finally, reasonable jurists cannot disagree regarding the utter lack of arguable merit underlying petitioner's complaints about (1) the admission, without federal constitutional objection, of State Exhibit no. 105-A and (2) the prosecution's objection-less, punishment-phase, closing arguments. Neither the admission of petitioner's epithet-strewn letter nor the prosecution's allusions thereto during closing argument violated any specific federal constitutional right possessed by petitioner nor rendered the punishment phase of petitioner's trial fundamentally unfair. In view of the overwhelming evidence demonstrating petitioner's propensity for future violence while incarcerated, the horrific details of petitioner's offense, and extraordinarily weak mitigating evidence presented by petitioner at trial, the admission of evidence showing petitioner's professed desire for future gang membership and the prosecution's fleeting references to same during closing argument were but a pair of droplets of water in an ocean of aggravating evidence presented by the prosecution. Neither of those events played any crucial, critical, or highly significant factor in the outcome of petitioner's capital trial. The heinous details of petitioner's crimes and petitioner's complete refusal to personally express any genuine remorse or sincere contrition for his capital offense virtually dictated the jury's answers to the petitioner's capital sentencing special issues. Reasonable jurists could not disagree with regard to the foregoing conclusions. Therefore, petitioner is not entitled to a CoA with regard to any of his claims for relief herein.
Accordingly, it is hereby ORDERED that: 1. All relief requested in petitioner's pleadings herein FN50 is DENIED. FN50. Docket entry nos. 6 & 16. 2. Petitioner is DENIED a Certificate of Appealability on all of his claims for relief herein. 3. All other pending motions are DISMISSED AS MOOT. 4. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.