The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,567-01
EX PARTE MARK ANTHONY GONZALEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2011-CR-5289 IN THE 175TH DISTRICT COURT
FROM BEXAR COUNTY
WALKER, J., delivered the opinion of the Court in which
SCHENCK, P.J., and NEWELL, FINLEY, and PARKER, JJ., joined. PARKER, J.,
filed a concurring opinion. KEEL and MCCLURE, JJ., dissented. RICHARDSON
and YEARY, JJ., did not participate.
OPINION
Applicant Mark Anthony Gonzalez was convicted of capital murder for
intentionally and knowingly causing the death of a peace officer acting in the lawful
discharge of an official duty, knowing that the person he killed was a peace officer.1
Based on the jury’s answers to the special issues set forth in Texas Code of Criminal
1
See TEX. PENAL CODE Ann. § 19.03(a)(1).
2
Procedure article 37.071, §§ 2(b) and 2(e), the trial judge sentenced Applicant to
death. This Court affirmed the conviction and sentence on direct appeal. See Gonzalez
v. State, 616 S.W.3d 585, 587 (Tex. Crim. App. 2020) (published in part).
In this initial article 11.071 writ application, Applicant raises seven claims for
habeas corpus relief from his capital murder conviction and death sentence:
Claim 1: A six-part jury misconduct claim, including an allegation
(Sub-Claim 1.1) that one of the alternate jurors threatened
the lone “life” holdout juror in an effort to change the
juror’s vote while the two were sequestered overnight in
the same hotel room;
Claim 2: A two-part ineffective assistance of counsel claim, alleging
that trial counsel (Paul Goeke and Kurt Gransee,
Applicant’s second set of attorneys)2 conducted a
constitutionally inadequate guilt phase investigation and
presentation (Sub-Claim 2.1), and a constitutionally
inadequate mitigation investigation and presentation (Sub-
Claim 2.2);
Claim 3: A four-part ineffective assistance of counsel claim, alleging
that Goeke and Gransee were ineffective during jury
selection;
Claim 4: A twelve-part ineffective assistance of counsel claim,
alleging that Goeke and Gransee were ineffective at the
guilt phase for reasons other than those alleged in Claim 2;
Claim 5: A five-part ineffective assistance of counsel claim, alleging
2
Applicant’s mother retained Goeke to replace Applicant’s first set of attorneys. Goeke, in
turn, asked the trial judge to appoint Gransee as second-chair, which was granted.
3
that Goeke and Gransee were ineffective at the punishment
phase for reasons other than those alleged in Claim 2;
Claim 6: A four-part ineffective assistance of counsel claim, alleging
that Goeke and Gransee were ineffective at Applicant’s
competency trial; and
Claim 7: A Brady claim, alleging that the State withheld evidence
that could have impeached one of its guilt phase witnesses,
Steve Starling.
On these claims, we determine first that Claim 1 is procedurally barred. Next,
based upon the habeas court’s findings and our own independent review of the record,
we find that Sub-Claim 2.1 and Claims 3, 4, 5, 6, and 7 are without merit.
On Sub-Claim 2.2, Applicant has alleged that trial counsel ignored red flags
indicating that they should have investigated Applicant’s mental condition and instead
relied solely on self-reporting by Applicant and his mother to develop their mitigation
case. However, regardless of whether counsels’ performance was deficient, we find
that it did not prejudice the defense. Relief is denied on all claims.
I — Background
The unpublished portion of this Court’s direct appeal opinion provides a
detailed account of the offense and the evidence the parties presented at both phases
of trial. See Gonzalez v. State, No. AP-77,066, 2020 WL 6482409, at *7–14 (State’s
guilt phase case), at *14–18 (defense guilt phase case), at *18–21 (State’s guilt phase
4
rebuttal), at *21 (State’s punishment phase case), at *21 (defense punishment case)
(Tex. Crim. App. Nov. 4, 2020) (not designated for publication). We summarize that
evidence below.
I(A) — Guilt Phase Evidence
On May 28, 2011 around 2:00 a.m., Bexar County Sheriff’s Deputy Kenneth
Vann stopped at a red light in his marked patrol car. Meanwhile, Applicant had been
out drinking with his friend, Steve Starling, and the two were going to go to a nearby
Denny’s restaurant. Instead of following Starling, Applicant pulled his pickup truck
alongside Vann’s patrol car. Even though Applicant had no previous connection to
Vann, he shot at Vann with an AR-15-style semi-automatic rifle (Smith & Wesson
M&P-15) that he had with him in the cab of the truck. At least thirty-nine shots, of
forty-six or more, struck Vann, causing devastating, gruesome injuries.
Within minutes of fleeing the scene, Applicant called Starling, and, in that
phone call, Applicant confessed that, “I killed a cop.” Id. at *11. He chuckled and told
Starling not to tell anyone. About a week later, Starling revealed this information to
his wife, who immediately called the reward tip-line. Afterwards, Starling told
authorities what he knew about the offense, and he later testified for the State at trial.
Based on Starling’s information and other evidence, law enforcement arrested
5
Applicant and charged him with capital murder.
Although Applicant pleaded not guilty, his identity as Vann’s killer was not an
issue at trial. The defense team that took the case to trial—Paul Goeke and Kurt
Gransee—acknowledged that Applicant fired the shots that killed Vann. Instead, their
defense was that Applicant did not act intentionally, knowingly, or voluntarily because
he was in an automatistic state caused by a “perfect storm” of alcohol and
prescription drug abuse, head injuries, brain dysfunction, and hypoglycemia. Id. at
*14. The defense presented this theory through the testimony of their expert, Dr.
James Merikangas, a clinical psychiatrist and neurologist. The State countered with
a robust rebuttal case—the testimonies of Dr. Brian Skop, a general and forensic
psychiatrist, and Dr. Peter Fox, a neurologist and neuro-imaging specialist. The jury
rejected Applicant’s defensive theory and found him guilty of capital murder as
alleged in the indictment.
I(B) — The Parties’ Punishment Phase Cases
During the punishment phase, the State emphasized the offense’s heinousness;
evidence from which the jury could infer that Applicant lacked remorse, refused to
accept responsibility for the offense, and engaged in a cover up; an incident in which
Applicant disrupted a pretrial hearing and arguably threatened deputies; and other
6
evidence to support an affirmative answer to the future dangerousness special issue.
On direct appeal, we rejected Applicant’s issue that the evidence was legally
insufficient to show future dangerousness:
Applicant’s reliance on his lack of a violent criminal history is
misplaced. Applicant’s jury could have reasonably inferred from the
evidence that, in 1988 and 1989, Applicant engaged in conduct that led
to his arrest for vehicle burglaries, unlawfully carrying a weapon, DWI,
and attempting to elude an officer. In 2000, he drove with an invalid
license, and the jury could have reasonably inferred that he continued to
do so after that date and often drove while intoxicated. When he lost his
right to buy guns, he circumvented the restriction by persuading his wife
to buy them for him, and he then used one of those guns to murder
Vann. The jury could have reasonably concluded that Applicant
demonstrated an on-going and escalating pattern of disrespect for and
continued violations of the law.
Further, the facts of the offense are especially heinous. Applicant
murdered Vann, a total stranger to him, without provocation, by firing
forty-six shots at him with a rifle. Applicant paused in the middle of
firing to rest or switch his trigger finger before resuming firing. The
resulting “mini explosion” inside Vann’s vehicle destroyed the deputy’s
body. The sheer brutality of the instant killing could indicate to a jury
that Applicant posed a future danger to society. Even if the jury had been
inclined to find that Applicant’s conduct stemmed from an isolated
incident of rage, it could have rationally concluded that Applicant’s
“rage is of such an uncontrollable and extreme nature that he is a
continuing danger to society.”
In addition, the jury could have reasonably found that Applicant
displayed a lack of remorse and expressed a willingness to engage in
future violent acts. Immediately after murdering Vann, Applicant
admitted to committing the crime and chuckled about it. Hours later, he
browsed pornography sites. During the following week, he engaged in a
7
cover-up, re-loaded the murder weapon’s high-capacity magazine, made
a threatening comment to his supervisor, continued to browse
pornography sites, focused on finding his lost sunglasses, shopped for
more firearms, continued to get “fucked up” on alcohol, and partied.
When uniformed SWAT officers arrived in a clearly marked
armored vehicle and approached his home, Applicant tried to retreat to
a bathroom where the murder weapon and another firearm were located.
Although those guns were not loaded, the jury could have inferred, as
argued by the prosecutor, that Applicant forgot that fact in the stress of
the moment. Applicant then struggled against the officers who prevented
him from barricading himself inside the bathroom, took him to the
ground, and handcuffed him. And at the end of a pretrial proceeding,
Applicant disrupted the courtroom and struggled against and threatened
the deputies who were charged with escorting him to the holding area,
stating, “I’ll do what I got to do.”
Id. at *23–24 (overruling point of error eleven) (internal citations omitted; references
to “appellant” changed to “Applicant”).
The defense presented a mitigation case, which this Court described as “weak,
consisting mainly of evidence that he was a good father and son, he was kind to
homeless people, and he had faced financial and emotional strain during his adult
life.” Id. at *46. Trial counsel’s presentation was summarized as follows:
Applicant’s family members collectively testified that, although
Applicant drank too much and got “worked up” about things that did
not bother others, he was a loving and attentive son and father who
encouraged his children to pursue their goals in life. They related the
emotional and financial strain Applicant experienced when his younger
son was born with hydrocephalus. The jury also heard of Applicant’s
kindness to homeless people. A prison classification expert testified
8
about TDCJ’s inmate classification system, living conditions, and
restrictions within each classification.
Id. at *21 (references to “appellant” changed to “Applicant”).
In an effort to refute Applicant’s mitigation case, the State emphasized
evidence that he was selfish by spending irresponsibly on himself even when his family
was facing financial hardship, and that he spoiled his children with gifts just as his
parents had spoiled him as a child and as an adult.
I(C) — Punishment Phase Deliberations
The jury answered the punishment special issues in a manner requiring the trial
court to sentence Applicant to death, but the process was not entirely straightforward.
First, an alternate was substituted for a regular juror after the regular juror became
disabled late in the evening of the first day of punishment phase deliberations. The
procedure surrounding that substitution—specifically, the fact that the trial court did
not instruct the jury to begin its deliberations anew—was the subject of an ultimately
unsuccessful Sixth Amendment lack-of-group-deliberation challenge on direct appeal.
See Gonzalez, 616 S.W.3d at 592–93 (finding Sixth Amendment argument not
preserved; alternatively, assuming there was error, finding such error not structural
and harmless beyond a reasonable doubt because the alternates attended deliberations
before the substitution, the trial court did not prohibit the jury from beginning its
9
deliberations anew, and the verdict was adopted by each juror individually in the
post-verdict poll).
Second, we know from the direct appeal, supplemented by the habeas record,
that there was a lone holdout juror for a “life” sentence, even with counsel’s weak
mitigation presentation. On the second day of punishment phase deliberations, the
jury foreperson sent a note generally indicating that a juror’s emotions were
interfering with the juror’s ability to answer the special issues and asking if it was
possible for a juror to self-withdraw. See Gonzalez, 2020 WL 6482409, at *47 (quoting
the exact questions in the note). The juror was subsequently identified as Eve
Martinez, and the trial court interviewed her in the parties’ presence.
The theme of the interview was Martinez’s emotional stress, difficulty in
deciding the special issues, and her desire not to cause a mistrial. At one point in the
exchange, Martinez expressly stated that she believed Applicant should receive a life
sentence, although she also acknowledged that there were “no excuses” for what he
had done. Id. at *47. The trial court emphasized throughout that Martinez should hold
to her beliefs, whatever they were, and the trial court sent her back to deliberate. The
jury returned its punishment verdict shortly thereafter. In individual polling, each
juror affirmed that the answers to the special issues were his or her own.
10
II — The Holdout Juror
Although we deny Claim 1 as procedurally barred, we take note of the factual
allegations underlying Sub-Claim 1.1, which alleges that an alternate juror threatened
the single life holdout outside of the jury room. Applicant contends that the second
alternate juror, Martha Rubio, verbally pressured the lone “life” holdout juror, Eve
Martinez, and threatened her with a knife to change her vote when the two of them
were sequestered in the same hotel room after the first day of the jury’s punishment
phase deliberations. Whether the “life” holdout juror Eve Martinez would have held
on for Applicant’s dear life or whether she would have still let go and changed her
vote is relevant to the resolution of Sub-Claim 2.2, discussed in Section IV(I)(2),
infra.
II(A) — Martinez’s Declaration
Eve Martinez, the regular juror at the heart of Sub-Claim 1.1, provided two
declarations, the second of which focused on her experience during the punishment
phase deliberations. In that declaration, Martinez stated that she was the last juror to
change her vote from life to death. The jury deliberated until 1:00 a.m., after which
they were sequestered overnight at a nearby hotel. Martinez stated that she was put
in a room with alternate juror Martha Rubio. Once inside the hotel room, Rubio
11
started arguing with Martinez about the case. Rubio told Martinez that Applicant was
guilty and should get the death penalty. Based on what Martinez had said during jury
deliberations, Rubio accused Martinez of being on Applicant’s side instead of being
with the jury.3 Rubio said she wanted and needed to go home to her family and her
baby, and she wanted Martinez to vote for death. Martinez responded that she did not
want to change her vote; she believed that Applicant should get life instead of death.
They continued arguing:
[Rubio] kept repeating that she needed to go home to her family and that
I needed to make a decision. Then she told me that she had a knife in her
pocket. When [Rubio] told me that she had a knife, she was sitting on her
bed and I was on mine. [Rubio] was sitting facing towards the foot of her
own bed, but her head was turned to the right, when she was speaking to
me. I was sitting on the side of my bed with my whole body facing her.
When [Rubio] said that she had a knife she pointed to her right pocket
with her left hand to show me where she had the knife.
Martinez “was shocked and scared” and “did not know how to react.” Martinez
further “believed that she was threatening to hurt me if I did not change my vote to
death.” Rubio continued telling Martinez that Rubio wanted to go home and for
Martinez to change her vote to death. Rubio eventually went to sleep, but Martinez
could not fall asleep because: (1) she did not know what to do; (2) she was afraid of
3
Rubio was in a position to know Martinez’s stance because the trial judge instructed the
alternate jurors to join the regular jurors during deliberations but not to vote or otherwise participate.
12
being alone with Rubio; and (3) she could not stop thinking about Applicant’s
sentence. She thought about asking the judge if she could get off the jury, and she only
managed to sleep for thirty minutes that night.
The next morning when jury deliberations resumed, Martinez still believed that
Applicant should get life, but she was worried about being sequestered with Rubio
another night. However, Martinez did not tell any of the other jurors what happened
with Rubio. Hoping that the judge would dismiss Martinez, the jury sent a note to the
trial court asking if Martinez could withdraw. Martinez was brought in to speak with
the trial judge, and Martinez explained that she did not think Applicant should be
sentenced to death. She wanted to tell the judge about what happened with Rubio, but
Martinez was stressed by the situation and did not want to embarrass herself by
making herself out to be a victim. The trial judge sent Martinez back and instructed
her to continue deliberating.
Although Martinez still did not want Applicant to be sentenced to death, she
also did not think she could change anyone else’s mind. She was also afraid that if she
did not change her vote, she would be sequestered again with Rubio, who would hurt
her. Martinez changed her vote from life to death because of her fear of Rubio and
because she was afraid of causing a mistrial.
13
Martinez stated in her declaration that she did not understand that if she had
stuck to her vote, Applicant would have gotten life, which she still thinks Applicant
should have been sentenced to.
II(B) — Rubio’s Declaration and Affidavit
In Rubio’s handwritten declaration, she said that she did not remember much
about the guilt phase deliberations, but “[i]t was the second deliberation when things
got stressful” because of Martinez, whom she referred to as “the girl”:
There was so much drama. Things started getting heavy when one
girl voted [life] and everyone else voted [death]. People were arguing a
lot. Some of the jurors were really angry that the girl was voting [life]. I
also felt angry that she was voting for life and keeping us in that room. I
believed [Applicant] was guilty and should get the death penalty. I
wanted the case to be over so I could take care of my daughter and start
working again. We all went around the room giving our opinions and
verdicts. . . .
We stayed in the court very late. I think around midnight they
stopped us and sent us to a hotel for the night. I got mad when I found
out we would have to spend the night in a hotel. I was tired and wanted
to go home to my daughter. I was mad at the girl for causing us to stay in
the hotel and for dragging the case on. They did not give us our phones
back. They did not search us when we left court. A court officer called
my mom to tell her that I wasn’t coming home that night. We all walked
over to the hotel. It was near the courthouse. It was kind of hidden.
Nobody wanted to room with the girl who was still voting for life. Other
people started pairing up with each other. I went to the bathroom in the
lobby. When I came back out, the officer told me that I was rooming with
the girl voting for life. I got even more mad when I found out I was
rooming with her. I was more mad because she was the whole reason we
14
were at the hotel. We went up to the room.
Right when we got settled in our rooms we started arguing about
the case. I told her that it was pretty obvious that [Applicant] was guilty.
The girl said that he was probably mentally ill and that she didn’t want
his death on her conscience. She wanted to give him a chance. I ended
up telling her that I didn’t have time for this. I told her I had a daughter
to get back to and that this was dumb. I was really mad at her when we
were arguing. I was lying down a lot at the time when we were arguing.
When I told her I did not have time for this, I sat up. I sat up because I
got even more mad. I told her that I hoped she made her decision
tomorrow because I don’t have time for this. I was really angry that she
was keeping us there and that her opinions were not making sense. I
think we argued for about five minutes. Eventually I told her that I was
going to go to sleep. I slept for a little bit. But I also stayed up for a while
staring at the wall and thinking about my daughter and my boyfriend.
In the morning we did not say anything to each other. We went
downstairs and ate quietly in the hotel. Then we went back to court. In
the morning it all went back to that girl. She said that she still felt the
same and everyone got mad again. I was just so mad I didn’t talk to
anybody. The girl eventually got taken to see the Judge. When she came
back from her meeting with the Judge, she had changed her vote to
[death]. The girl told the group that she was going to vote [death]
because she did not want to stay at another hotel again overnight. When
she changed her vote I was relieved. The jury could finally give the
verdict. We went to the courtroom and gave the verdict. Everybody in
the courtroom was happy with the decision. After I left court that day I
found out that my boyfriend had broken up with me because he thought
I had been cheating. There was so much drama for those few days.
(paragraph breaks inserted). Before the habeas evidentiary hearing, the State obtained
a sworn affidavit from Rubio that succinctly stated:
I never threatened eve martenez [Martinez]
15
I never had a knife
We brarely [barely] talked
II(C) — Boilerplate Affidavits
The State also filed boilerplate affidavits that all the regular jurors and alternate
Rubio signed on the day of the punishment verdict or a day or so afterward. As
relevant to Sub-Claim 1.1, the affidavit signed by Martinez attested that “the verdict
of the Jury was reached by each and every one of the Jurors individually and
satisfactorily to each of us.” Alternate Rubio attested that she was present in the jury
room, and she also stated “[f]rom [her] observations, the verdict of the Jury was
reached by each and every one of the Jurors individually and satisfactorily to each of
them.”
II(D) — Martinez and Rubio at the Evidentiary Hearing
Martinez and Rubio both testified at the habeas evidentiary hearing. Martinez’s
testimony was generally consistent with the declarations she provided to Applicant.
However, at the hearing Martinez was able to further explain that when she was paired
up with Rubio, Rubio let out a frustrated sigh. Martinez interpreted it as showing
Rubio was mad because Martinez was the hold-out juror. Martinez also described
Rubio’s physical appearance as bigger and kind of rough, with tattoos and piercings.
When they got into the hotel room, Rubio was angry with Martinez, and then they
16
argued as described in Martinez’s declaration. The next morning when the jury had
breakfast at the hotel’s restaurant, Martinez did not eat or talk to any of the other
jurors because she felt alone due to her status as the hold-out juror.
Importantly, Martinez testified that she did not feel like she could actually hold
on to her beliefs if it meant having to spend another night in a hotel room with Rubio.
She was terrified of that possibility, and she changed her vote even though that was
not the vote she actually wanted. She would not have changed her vote if Rubio had
not threatened her the night before, and she would not have changed her vote if she
had known that she would not be sequestered again with Rubio.
Martinez acknowledged that she answered “yes” when the court polled the jury
after reading the punishment verdict, but she explained that it did not feel right.
However, she felt that she would not be allowed to change her vote in the courtroom.
Regarding the boilerplate affidavit, Martinez acknowledged that she signed it, but she
said that did not really read it or think about what it said because she was tired and
eager to leave.
Although she did not tell the trial judge about the threat from Rubio when she
was brought out of the jury room, Martinez testified that she tried to speak up toward
the end of the conversation when she told the judge that “[t]here’s other stuff, but I
17
don’t know if I can say it here.” At the evidentiary hearing, Martinez explained that
she was referring to the threat from Rubio, and also an issue with her contact lens
solution. She testified that she did not tell the judge about the threat because she felt
that the trial judge was cutting her off and did not want to hear about it. Additionally,
on cross-examination Martinez agreed that the jurors went through security screening
and were under the watch of court bailiffs through the deliberations, without access
to their belongings. She also did not tell any of the bailiffs about Rubio’s threat.
Martinez denied that she was having “buyer’s remorse” about the death
sentence. Yet, Martinez said she regretted voting for death, because it was not her
vote and it was not what she wanted. It was not her “real vote.”
For her part, Rubio also provided testimony in line with her prior declaration
and affidavit. In her testimony, Rubio again denied threatening Martinez with a knife
or ever bringing a knife. She explained that the jurors went through security screening,
and when the jury was sequestered there was no chance to find a knife. Rubio
acknowledged that she was angry and frustrated with Martinez and argued with her.
She also stated that she observed a lot of pressure was being put on Martinez by the
other jurors, and she was not the only one telling Martinez to change her vote; “[i]t
was me and everybody[.]”
18
Rubio conceded that she looked up information about Applicant’s case on the
internet even though the trial judge instructed the jury not to; nevertheless, she did
not share that information. She also admitted that she participated in the deliberations,
despite the trial court’s instructions that the alternates not participate and her post-
trial boilerplate affidavit in which she attested that she did not participate. She made
posts on her Facebook account about her service as an alternate juror while the trial
was ongoing, although the posts complained of jury service generally and did not
include facts about the case specifically. Regarding her short affidavit provided to the
State, Rubio agreed that the affidavit, in which she attested that she barely talked to
Martinez, made no mention of being sequestered with Martinez or the argument she
had with Martinez in the hotel room.
On re-direct, Rubio explained that she was mad at Martinez, not because she
was voting for life, but because she was the holdout. If the sides were reversed, and all
of the jurors except Martinez were voting for life without parole, Rubio said she would
have been just as mad at Martinez for being the holdout and keeping the jury there.
Rubio repeated that everybody was harsh towards Martinez—“eleven people in that
room were mad” at Martinez because she was the holdout.
II(E) — Habeas Court’s Findings of Fact (Claim 1)
19
In its findings of fact and conclusions of law on Claim 1, the habeas court
acknowledged all six of Applicant’s sub-claims, but it only made findings as to
Sub-Claim 1.1, the allegation that Rubio threatened and pressured Martinez about her
vote on the punishment special issues when they were in the hotel room together. We
take note of the findings on Sub-Claim 1.1, because Martinez’s initial vote for life and
her reluctance to change her vote to death is relevant to Sub-Claim 2.2, regarding
whether Applicant’s trial counsel provided constitutionally ineffective assistance of
counsel as a result of a deficient mitigation investigation. Having independently
reviewed the record in our role as the ultimate fact finder, we find the habeas court’s
findings regarding Sub-Claim 1.1 are supported by the record, which state:
1. Specifically, with regard to the claim involving Jurors [Martinez]
and [Rubio], . . . [t]he alternate jurors were allowed to be present
for jury deliberations. During sequestration, alternate juror
[Rubio] was assigned a hotel room with juror [Martinez].
2. Neither side objected to [Rubio] being present for deliberations
and being assigned to room with [Martinez]. . . .
3. This court finds . . . that alternate juror [Rubio] did improperly
voice her opinions to juror [Martinez] in an attempt to pressure
[Martinez] to change her vote from life to death. This was in
disobedience to the court’s instructions to not discuss the case,
particularly with regard to [Rubio] being an alternate juror.
4. The court finds credible [Martinez’s] testimony that she felt
pressured to change her vote from life to death. The court also
20
finds credible [Martinez’s] misgivings about changing her vote
and believes that it would have been her preference to stick with
her vote of life, rather than death.
5. The court finds credible [Martinez’s] position that after hearing
from the defense expert regarding Applicant’s mental health, she
believed that he had a mental illness and should not be put to
death.
6. Nevertheless, this court does not find credible [Martinez’s]
accusation that [Rubio] threatened [Martinez] with a knife. The
following circumstances weigh against finding [Martinez’s]
version of that story credible:
a. [Martinez] did not see a knife.
b. [Martinez] did not tell the bailiffs about the perceived knife
threat.
c. [Martinez] did not tell anyone else on the jury about it.
d. [Martinez] had an opportunity to tell the judge about her
fear of [Rubio] when she was called into the judge’s
chambers the next morning, but she did not tell the judge at
that time. The court does not find it credible that the Judge
prevented [Martinez] from telling her about the knife threat
and her fear of [Rubio].
e. [Martinez] was being pressured to change her vote by all of
the jurors, not just by [Rubio].
f. [Rubio] did not continue to pressure [Martinez] after their
exchange in the hotel room, but the other jurors continued
to pressure [Martinez] during the next day’s deliberations.
g. [Martinez] did not say anything about the alleged threat by
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[Rubio] or her ambivalence regarding her verdict when the
jury was polled after the verdict.
h. [Martinez] did not say anything about her ambivalence
when asked to fill out her affidavit after the trial was over.
I. [Martinez] waited two years to tell someone of [Rubio’s]
“threat” and to “confess” that she didn’t really want to
vote for the death penalty.
...
12. As noted above, although the court agrees that [Rubio] disobeyed
the court’s admonitions and improperly attempted to persuade
[Martinez] to change her vote when they were in the hotel room,
the court does not find it credible that [Rubio] threatened
[Martinez] with a knife. Such a claim raised two years too late
does not ring true.
13. The Court finds it more likely than not that [Martinez] changed
her vote from life to death, (1) because she did not want to be
sequestered another night with [Rubio], and (2) she felt pressured
by all of the other jurors to change her vote, not just by [Rubio].
...
(emphasis in original).
We find the facts underlying Sub-Claim 1.1 troubling. However, as the habeas
court found, the alternate juror’s behavior was not quite as bad as Applicant alleges.
Given Martinez’s silence about the threat at the time it was supposedly made, it does
not seem likely that Rubio actually threatened Martinez. Even if their hotel room
22
argument descended into the realm of threats, no knife seems to have been involved.
Yet, the alternate’s behavior was still improper. How that improper behavior affected
the “life” holdout juror Eve Martinez and whether she would have still changed her
vote after being pressured, or whether she would have held onto her vote for “life”
in the face of a more thorough mitigation presentation, is relevant to the resolution of
Sub-Claim 2.2, which we now turn to.
III — Ineffective Assistance of Counsel
In Claims 2 through 6, Applicant argues that he received ineffective assistance
of counsel throughout the trial from voir dire to punishment and also in the separate
competency proceeding. A successful claim for constitutionally ineffective assistance
of trial counsel requires an applicant to establish, by a preponderance of the evidence,
that (1) counsel’s performance fell below an objective standard of reasonableness
(deficient performance); and (2) there is a reasonable probability that the result of the
proceedings would have been different but for counsel’s deficient performance
(prejudice). Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing
Strickland v. Washington, 466 U.S. 668, 688 (1984)). An applicant’s failure to satisfy
both prongs of the two-pronged test defeats a claim of ineffective assistance. Ex parte
Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009).
23
As to the deficient performance prong, there is a strong presumption that
counsel’s conduct was reasonable and judicial scrutiny of it will be highly deferential.
Strickland, 466 U.S. at 689. To satisfy the deficient performance prong, an applicant
must show “that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687; see also
Harrington v. Richter, 562 U.S. 86, 110 (2011) (“Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’”) (quoting Strickland, 466
U.S. at 687). “The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from
best practices or most common custom.” Richter, 562 U.S. at 105 (quoting Strickland,
466 U.S. at 690).
Regarding the prejudice prong, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “It
is not enough ‘to show that the errors had some conceivable effect on the outcome of
the proceeding.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).
“Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687).
The “reasonable probability” standard is somewhere less than a
24
preponderance,4 as explained in Strickland itself: “[W]e believe that a defendant need
not show that counsel’s deficient conduct more likely than not altered the outcome
in the case.” Strickland, 466 U.S. at 693. Instead, “[t]he result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” Id. at 694.
In the years since Strickland, the Supreme Court has reaffirmed that the
reasonable probability standard is less than a preponderance. Two years after
Strickland, the Court noted that “a defendant need not establish that the attorney’s
deficient performance more likely than not altered the outcome in order to establish
prejudice under Strickland.” Nix v. Whiteside, 475 U.S. 157, 175 (1986). It explained
in Williams v. Taylor that:
If a state court were to reject a prisoner’s claim of ineffective assistance
of counsel on the grounds that the prisoner had not established by a
preponderance of the evidence that the result of his criminal proceeding
would have been different, that decision would be “diametrically
different,” “opposite in character or nature,” and “mutually opposed”
to our clearly established precedent because we held in Strickland that
the prisoner need only demonstrate a “reasonable probability that . . . the
result of the proceeding would have been different.
4
While a “reasonable probability” is less than a preponderance, an applicant nevertheless
must show that it is more likely than not that such a reasonable probability exists. See Overton, 444
S.W.3d at 640.
25
Williams v. Taylor, 529 U.S. 362, 405–06 (2000); see also Woodford v. Visciotti, 537
U.S. 19, 22 (2002) (“[Strickland] specifically rejected the proposition that the
defendant had to prove it more likely than not that the outcome would have been
altered[.]”); Thornell v. Jones, 602 U.S. 154, 163–64 (2024) (“This standard does not
require a defendant to show that it is more likely than not that adequate representation
would have led to a better result[.]”).5
IV — Claim 2: “Trial Counsel Were Ineffective for Failing to Investigate
[Applicant’s] Psycho-Social History and Present Critical Evidence at Both
Phases of Trial.”
Claim 2, leveled solely against the attorneys who took the case to trial (Goeke
and Gransee), complains in two intertwined sub-claims (Sub-Claim 2.1 for guilt phase,
Sub-Claim 2.2 for punishment phase) that:
5
The federal courts of appeals have taken Strickland’s caution to heart, and some have even
explicitly characterized the reasonable probability standard as “less than” a preponderance. See, e.g.,
Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (“This standard ‘is not a stringent one;’ it is less
demanding than the preponderance standard.”) (quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir.
1999)); Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir. 2008) (“A reasonable probability . . . is less
than a preponderance of the evidence.”); Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir. 2009)
(“‘[a] reasonable probability” . . . is less than a preponderance of the evidence.”); Paul v. United
States, 534 F.3d 832, 837 (8th Cir. 2008) (“A reasonable probability is less than ‘more likely than
not[.]’”) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)); Lambright v. Schriro, 490 F.3d 1103,
1121 (9th Cir. 2007) (“A reasonable probability . . . is ‘less than the preponderance more-likely-than-
not standard.’”) (quoting Summerlin v. Schriro, 427 F.3d 623, 643 (9th Cir. 2005)); Fisher v. Gibson,
282 F.3d 1283, 1307 (10th Cir. 2002) (“The prejudice defendant must demonstrate is by less than
a preponderance of the evidence[.]”); Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d 1338,
1355 (11th Cir. 2020) (“‘A reasonable probability’ . . . is a lesser showing than a preponderance of
the evidence[.]”).
26
• Trial counsel failed to do a constitutionally adequate investigation
into Applicant’s background before settling on the guilt phase
defense of automatism. Their shortcomings included failing to
follow up on various “red flags” that were evident in: (1)
Applicant’s behavior while the initial trial team was representing
him; (2) discovery material provided by the State; and (3)
information in the initial defense team’s files. The investigation
that trial counsel failed to do would have also functioned as a
source of mitigating evidence for the jury to consider at the
punishment phase, if Applicant were convicted of capital murder.
• If a constitutionally adequate investigation had been done, the
results would have led reasonable counsel to present a defense
that, at the time of the offense, Applicant was in the grip of
delirious mania or Bell’s mania—to which he was particularly
susceptible due to untreated bipolar disorder and childhood
trauma or abuse—and thus he lacked the requisite mens rea for
capital murder. The Bell’s mania theory would have: (1) been
more convincing and more effective at countering the State’s
evidence than the automatism defense, and (2) had the advantage
of front-loading mitigating evidence of Applicant’s traumatic
background and untreated mental illness.
• It is reasonably likely that the Bell’s mania theory would have
persuaded the jury to acquit Applicant of capital murder.
• Alternatively, even if the jury had still convicted Applicant of
capital murder, it is reasonably likely that the mitigating evidence
that would have already been presented at the guilt phase (by
virtue of the Bell’s mania defense) would have resulted in
Applicant receiving a sentence of life without parole.
In essence, Applicant argues that trial counsel rushed into the automatism
theory without enough information, and then they put blinders on for the rest of their
27
representation regarding anything that they thought might conflict with that theory.
Applicant acknowledges that trial counsel enlisted the aid of some mental health
experts, but he contends that the experts’ work was narrowly focused on a head injury
Applicant sustained about a week before the offense. Applicant further emphasizes
that these experts did not have the benefit of the information about Applicant’s
background that a reasonable investigation would have uncovered. As a result,
Applicant argues that trial counsel failed to discover significant mitigating evidence
that they could have used to obtain an acquittal of capital murder or, barring that, a
sentence of life without parole.
Applicant also points to Goeke and Gransee’s inexperience in representing a
client facing the death penalty, and neither was on Bexar County’s list of attorneys
approved to be appointed to represent defendants in capital-death cases. Trial counsel
consulted with the Texas Defender Service (TDS)—specifically, Kathryn Kase, who
was then TDS’s executive director. Relying on Kase’s declaration, Applicant alleges
that trial counsel unreasonably ignored Kase’s repeated advice to further investigate
Applicant’s mental health and trauma history before deciding on a guilt phase
defensive theory.6
6
Besides providing a written declaration, Kase testified at the habeas evidentiary hearing.
Her live testimony is summarized in Section IV(G)(1)(g), infra. Because there are no material
28
IV(A) — Red Flags that Applicant Says Trial Counsel Overlooked or Ignored
IV(A)(1) — Red Flags in Applicant’s Behavior
IV(A)(1)(a) — Courtroom Incident
Applicant first contends that the circumstances which led to Goeke and
Gransee becoming involved in his case indicated that he suffered from serious,
untreated mental illness. Applicant says his relationship with the original defense team
deteriorated because he came to believe that initial counsel Michael Gross and Mario
Del Prado were involved, with the State and the trial judge, in a conspiracy against
him. Applicant asserts that his paranoia resulted in him causing a scene at the end of
a pre-trial hearing in mid-May 2012 by attempting to pass a note to the media, and
bailiffs had to wrestle him from the courtroom.7 Goeke and Gransee took over
Applicant’s representation soon after this incident. Applicant argues that Goeke and
Gransee should have recognized from this paranoid behavior that his mental health
might be compromised, and they should have realized that they needed to investigate
that issue extensively.
discrepancies between her live and written testimony, we discuss her written testimony no further
except to give context to Applicant’s allegations.
7
At the punishment phase, the State elicited testimony about the incident from a deputy who
was involved, and the State also published the relevant courtroom video to the jury. This Court’s
direct appeal opinion summarizes the incident. See Gonzalez, 2020 WL 6482409, at *21.
29
IV(A)(1)(b) — Applicant’s Suicidality
Applicant asserts that after Goeke and Gransee took over, they continued to
ignore signs of mental illness in his behavior. Relying on Kase’s declaration, Applicant
says Goeke and Gransee repeatedly represented to her that Applicant threatened to
kill himself if the trial team did not focus on a defensive theory that would result in his
complete acquittal if the jury believed it. Applicant also points to the post-trial written
declaration provided by Goeke, in which Goeke stated that, in regard to whether he
investigated the potential for a plea deal, Applicant:
was not interested in cutting his losses. He said I do not want to live like
an animal [sic]. His constant refrain was that he was going to kill himself.
During voir dire, he disclosed to me that, at some earlier time, he
attempted suicide in the jail by swallowing pills – probably Trazadone.
The result was that he slept for three days and woke with a headache.
During voir dire, Mr. Gransee convinced him that he could commit
suicide anytime and that he could at least wait and see what prison was
like. After that, [Applicant] stopped talking about suicide.
Applicant says the fact that he had apparently actually attempted suicide and the fact
that suicide was “his constant refrain” would have put reasonable trial counsel on
notice that they needed to investigate Applicant’s psychological health.
IV(A)(1)(c) — Applicant’s Jail Phone Calls
Applicant stresses that trial counsel had access to a transcript of his recorded
jail calls, in which he “expressed extreme paranoia and agitation.” From our cold
30
review of the that transcript, we find that Applicant seems normal in most of these
conversations. However, there are definitely instances in which Applicant exhibits
seemingly irrational paranoia about Gross and Del Prado, as well as somewhat
grandiose thinking. As to “agitation,” there are instances in which Applicant appears
to become angry at his wife and mother when he believes they are not taking his
complaints about Gross and Del Prado seriously enough.
IV(A)(2) — Red Flags in Discovery Materials
Applicant emphasizes a number of materials that were provided to the defense
in discovery. The materials generally reflect his assertions or reasonably support his
inferences:
• Statements that Applicant, Patricia Alcala (Applicant’s wife), and
Mario Sepulveda (Applicant’s friend and Alcala’s cousin) gave to
police indicating that Applicant’s suicidality was recurrent over
his life. Applicant asserts that this information should have alerted
Goeke and Gransee that Applicant’s suicidality was not simply
situational, but a symptom of a long-standing mental illness that
required further investigation.
• Alcala’s and Sepulveda’s statements to police indicating that
Applicant experienced mood swings, anxiety, and paranoia; took
medication for anxiety; and had excessive, compulsive, and
impulsive spending habits.
• A San Antonio jail medical record showing that Applicant
reported suffering panic attacks from age sixteen, and that these
panic attacks had prompted Applicant to “run out” of class
31
occasionally.
• Indications from multiple sources that Applicant had been very
badly affected by the 2000 death of his only sibling, Richard
Gonzalez. The habeas record shows that Richard, Applicant’s
younger brother, died of a self-inflicted gunshot wound after
murdering his ex-girlfriend and her female roommate.
• Relatives’ statements to police indicating that Applicant
experienced physical, verbal, and possibly sexual abuse as a child.
Alcala asserted that Applicant’s father, Alberico (“Al”)
Gonzalez, was “very abusive” to Applicant and his brother and
“would beat them a lot.” Applicant’s mother, Ninfa Gonzalez,
asserted that Al verbally and physically abused her. Ninfa also
asserted that Applicant said that a friend’s father sexually abused
Richard, but Applicant denied that the man also sexually abused
him.8
• Indications that Applicant’s father and brother suffered from
mental illness. Applicant emphasizes (1) statements to the police
from various sources reporting that Al had been repeatedly
admitted to the VA hospital for psychotic episodes, was “manic”
and mentally unstable, and took Trazadone for depression; and (2)
information trial counsel had about Richard’s death (a double
murder-suicide). Applicant argues that this information should
have alerted Goeke and Gransee to the possibility that both
Richard and Applicant inherited Al’s mental illness.
IV(A)(3) — Red Flags in Materials Inherited from the Initial Trial Team
8
Alcala’s post-trial affidavit stated that Applicant’s upbringing was “terrible”; his father
was an abusive alcoholic; and after his brother’s suicide, Applicant told her that his friend’s father
sexually molested Applicant multiple times when he was between nine and thirteen years-old.
Mitigation specialist Gerald Byington’s affidavit reflects that, in his June 2011 interview notes to the
first trial team, he stated, inter alia, “Patricia [Alcala] told me that [Applicant] had said to her that
one time when he was about 12[,] he was sexually assaulted by a neighbor.”
32
Applicant notes that when Goeke and Gransee became Applicant’s counsel,
they received Applicant’s basic medical, employment, and educational records and
work product from the original team’s mitigation investigator, Gerald Byington.
According to Applicant, red flags in these materials included:
• Medical records showing that Applicant was diagnosed with social
anxiety in 2010 and prescribed medication for it;
• School records revealing that Applicant was frequently absent for
long periods of time, had been put in speech pathology for a
language disorder, and had a chaotic home life;9 and
• An interview in which Sepulveda told Byington that Applicant
was depressed and suicidal and that Applicant’s father, Al, was
“crazy” and once shot at Applicant and Sepulveda with a
shotgun.
As with the previous “red flag” evidence Applicant relies on, these exhibits generally
reflect his assertions or reasonably support his desired inferences.
IV(B) — What Applicant Says Reasonable Counsel Would Have Done in the
Face of These Red Flags
Applicant contends that the information set forth above in Section IV(A), supra,
would have prompted reasonable counsel to attempt the following:
1. talk to Applicant’s extended family members, friends, neighbors,
and teachers, all of whom he says were available and willing to
testify;
9
Applicant asserts that all of these correlate with mental illness.
33
2. get Applicant’s father’s VA records, which showed that Al had
been diagnosed with several mood disorders and had a lifetime of
psychiatric hospitalizations and treatment;
3. get Al’s criminal records, which revealed that he repeatedly
abused his children and Applicant’s mother;
4. get the education and death investigation records for Applicant’s
brother;10 and
5. investigate the possibility that two different neighborhood men
(Joe Garza and Clayton Meyer) sexually abused Applicant when
he was a child.
Applicant avers that instead of doing the above, all Goeke and Gransee did was
hire the original team’s mitigation investigator, Byington, to re-interview four
witnesses (Applicant’s wife, mother, and in-laws); interview Applicant’s teenage son;
obtain Applicant’s basic educational, employment, and recent medical records; and
arrange for Applicant to undergo neuropsychological testing to demonstrate that
Applicant had cognitive impairment consistent with a head injury.
IV(C) — Applicant’s Prejudice Argument
Applicant alleges that, if trial counsel had conducted an adequate investigation,
they could have presented “a consistent, unified theory of defense and mitigation that
10
Applicant emphasizes that susceptibility to mental illness can be inherited, and they say
these records provided clues that Richard likely had a mood disorder.
34
relied on evidence of [Applicant’s] struggle with mental illness and trauma.”
Specifically, Applicant argues that:
[T]rial counsel would have been able to engage a neuropsychiatrist to
explain to the jury that, on the night of the offense, [Applicant]
experienced a delirious mania, known as a Bell’s mania, during which
[Applicant’s] consciousness waxed and waned. The expert would have
told the jury that [Applicant’s] history of mental health and trauma
rendered him particularly vulnerable to a Bell’s mania following his head
injury a week before the offense. That expert’s opinion would have been
corroborated by the extensive social history evidence demonstrating that
[Applicant] and his immediate family members suffered from Bipolar
Disorder, as well as evidence that [Applicant] experienced significant
traumas correlated with mental illness.
For the theory that Applicant is bipolar and was experiencing Bell’s mania, Applicant
relies on declarations from his writ mental health experts—Dr. James Campbell,
Psy.D., a clinical psychologist and trauma expert, and Dr. George Woods, M.D., a
neuropsychiatrist.
Alternatively, Applicant argues that even if the jury found him guilty of capital
murder, there is a reasonable probability that he would have been spared the death
penalty had the jury heard the evidence about his background.
IV(D) — Trial Counsels’ Written Declarations Provided to Applicant
Before or soon after Applicant filed his habeas application, Goeke and Gransee
each gave Applicant a written declaration. As relevant to Claim 2, they stated as
35
summarized below.
IV(D)(1) — Goeke
Regarding Goeke’s selection of the automatism defense, he said the idea
occurred to him before Goeke formally began representing Applicant, when initial lead
trial counsel Gross talked to him about the case. Goeke said he was aware of
automatism due to his training in the area of clinical psychology. He emphasized his
undergraduate degree in psychology; his year working as a neurosurgical technician
before deciding to attend law school; his perceived ability to tell, with a sufficiently
long conversation, the difference between someone who had suffered head injuries
and people with naturally occurring low intellect; and his success in helping a previous
client avoid criminal charges after that client had taken Ambien and started driving in
the middle of the night, causing several accidents.
Goeke claimed that, largely because of his background and training, he has good
relationships with psychiatrists and psychologists, including psychiatrist Dr. Michael
Arambula. Goeke talked to Arambula about using an automatism defense, “but
[Arambula] doubted that automatism could produce behavior as complex as both
shooting and making well-placed shots.” Second-chair Gransee found Dr. James
Merikangas, who “believed automatism was a viable explanation for what occurred.”
36
Merikangas became their expert at trial.
Regarding an investigation into Applicant’s background, Goeke said he came
into the case mindful of what he understood from talking with Gross. Goeke believed
that the attorney-client relationship between the Gross-Del Prado team and Applicant
deteriorated because: (1) Applicant did not trust Gross and Del Prado because they
were court-appointed; (2) Gross and Del Prado talked to Applicant about mitigation
from the outset; and (3) Applicant perceived Gross and Del Prado’s focus on the
penalty phase as giving up.
What Goeke found when he took over the case was consistent with this belief.
He found Applicant to be very focused on obtaining a complete acquittal. Goeke
recounted Applicant’s expressed aversion to spending the rest of his life in prison;
“constant refrain was that he was going to kill himself”; and assertion that he had
previously attempted suicide in jail.11
Because of what he understood about the initial team’s experience, Goeke said
he did not immediately talk to Applicant about Applicant’s background or mitigating
evidence. But when Goeke eventually did try to talk to Applicant about these subjects,
11
There is independent support in the record for Goeke’s assertion about Applicant’s
attitude. Applicant’s wife, Alcala, predicted to the police that Applicant would commit suicide in
jail or provoke someone to kill him. Alcala told investigators that, after Applicant’s brother
committed double-murder-suicide in 2000, Applicant told her that he “would’ve done the same
thing, because [he] wouldn’t never wanna go to prison.”
37
Applicant did not want to. Goeke’s impression was that Applicant saw preparing a
mitigation case as surrendering. Goeke acknowledged that, from conversations with
Applicant’s mother, “it seemed clear that [Applicant’s] father was an abusive
alcoholic[.]” But Goeke said that, when asked about it, Applicant “insisted he had a
happy childhood.” According to Goeke, Applicant “did not think of himself as
abused. He said and seemed to believe his childhood was fine because he did not know
any better.” Goeke admitted that Applicant “had a malignant lack of insight” into his
past.12
Goeke stated that he spent a lot of time with Applicant’s mother, Ninfa, trying
to discover potentially mitigating information. While Goeke learned from her that
Applicant sustained a head injury as a teenager, when Goeke asked about the family’s
home life, she
would act as though it was none of my business and be evasive. She
talked about his father’s drinking and abuse, but it was not like
[Applicant] was beaten with rods. She appeared to be an abused spouse
in denial. She also appeared afraid of her husband. My understanding is
that, when she spoke to the mitigation investigator Gerald Byington, she
hid the fact that she was talking to him from her husband.
12
Goeke’s admission is notable because it acknowledges that he was contemporaneously
aware that Applicant had poor insight into his history. And yet, as will be seen, Goeke kept turning
to Applicant, whom he knew to have poor insight, and to Applicant’s mother, whom he
contemporaneously found to be evasive, for information about Applicant’s history.
38
Goeke further made this statement:
28. Childhood abuse can be a mitigating factor, but it is also not
uncommon. I believed that in [Applicant’s] case, it was sad, but typical.
I suspected it existed in this case, but it was typical. It was not like he was
chained in the basement. It appeared to be a plain vanilla abusive household.
[Applicant] did make a point of telling me that he was different from his
father – he did not hit his children.
(emphasis added). Goeke did not explain “typical” in his declaration. However,
Goeke’s live hearing testimony suggests he was referring to Applicant’s
socioeconomic demographic (“blue collar”) and possibly also to Applicant’s Mexican
heritage. In any event, the habeas record supports a finding that Goeke generally made
no effort, other than asking Applicant and his mother about it, to ascertain what was
going on in Applicant’s childhood home even though he subjectively suspected that
some kind of abuse occurred.
Goeke continued:
29. From what I was able to glean from Gerald Byington and
[Applicant’s] mother, the only mitigation available was the moderately
abusive environment, his father’s alcoholism, and his head injuries. The
head injuries in combination with alcohol and Xanax® led to
“automatism” which I saw as intrinsically mitigating.
30. As I recall, [Applicant] had a mediocre IQ, no real demonstrable
deficits, nothing glaring, although the results of his testing was consistent
with head injury. I do not remember him having any particular
psychological disorders. He was probably chronically depressed and had
an ongoing substance abuse problem. We did not learn anything about
39
his mental health that was not discussed in conjunction with in the
neuropsychological and psychiatric evaluations that were conducted in
preparation for trial.
The final sentence quoted above seems to say nothing more than that “they learned
nothing about Applicant’s mental health except for what they learned.”
Goeke added, “[t]o me, the best-available mitigation was the guilt-innocence
defense theory. I hoped to carry that evidence, along with the idea that the brain is
fragile, into the penalty phase. . . . We presented what mitigation we could through
[Applicant’s] wife and son, both in the guilt-innocence and the penalty phase. In my
view, any good qualities that were inconsistent with the crime supported our theory
of automatism.”
IV(D)(2) — Gransee
Gransee stated that he had never heard of automatism before, and “[t]he
automatism idea first came from Paul [Goeke,]” who “is well versed in medical and
mental health issues” due to his undergraduate studies. After Gransee was appointed,
he and Goeke attended death penalty seminars in Dallas hosted by the TDS. They
started using a few TDS lawyers they encountered there as sounding boards, including
Kathryn Kase, whom Gransee knew from law school. “There were no big
disagreements with them.”
40
Gransee said that he did not actually meet Applicant until about six months
before trial began. This was due to Goeke’s concern that Applicant would “turn
against” Gransee because Gransee was appointed by the trial court like Applicant’s
previous lawyers. Goeke told him that Applicant “was adamant that, if he was found
guilty, he would rather die than serve a sentence of life without parole.”
On Gransee’s first visit with Applicant, the defense team was investigating
whether Applicant should testify at trial. Gransee asked soft questions, and the
questioning “went alright.” But during the next session, Gransee conducted “harder,
more robust questioning of [Applicant], and it did not go well.”13 It is implied that
Goeke and Gransee decided it would be a bad idea for Applicant to testify at the guilt
phase. Gransee said they could not recommend that Applicant testify at the
punishment phase, either, “in part because he showed no empathy or sympathy for
Sergeant Vann’s family. I attributed that to the fact that he had no memory of the
shooting. He always maintained that he does not remember what happened that
night.” Gransee continued:
15. We also told [Applicant] that we wanted to put on a mitigation case.
13
In the affidavit Gransee later gave to the State, summarized in Section IV(E)(2), infra, he
said Applicant seemed “very sharp” at the first mock-examination session. But in the second
session, Gransee said he asked more difficult questions, and Applicant contradicted himself. “At
first he said he didn’t remember anything about the night of the killing, but when I asked him about
his conversation with his mother after he got home, he said it was an ordinary conversation.”
41
[Applicant] said he did not want a life sentence, but he did not forbid us
from putting on mitigation evidence. We told [Applicant] that the State
was not going to let him walk out of that Court and go back to his former
life. He said something to the effect of, “Are you telling me that I don’t
have a one-in-a-million chance?” He did not want us to focus or put any
effort on mitigation and would become agitated when we did.
Gransee said they had multiple experts meet with Applicant, and these experts
reported their findings. They also had various medical tests performed. Goeke dealt
with the mental health experts due to his background. Gransee:
[C]an’t remember an issue we learned that was not reflected in the
experts’ reports. He suffered that head injury in Corpus Christi. He was
a likeable guy, a good father to his kids, and he had a decent job. His IQ
was okay, even if he probably would never be an engineer. One of the
psychologists told us he was primitive during competency proceedings.
He had a lot of photographs of his car in his phone, pictures of it with the
hood up and no engine. I asked why he had pictures of his cars, and he
said something like, “My friends don’t believe the good shit I got.” His
response was like he was 15–16 years old.
As to their guilt phase strategy, the plan was to present evidence that the
shooting was out of character for Applicant and resulted from a head injury.
We wanted to both explain how the shooting happened and show that
[Applicant] was not evil. His family testified about him. We showed that
he had no serious criminal record and that there was no explanation
other than something went wrong upstairs, meaning his head injury. I
cannot think of any available mitigation evidence that we were prevented
from putting on this way.
Gransee also noted that Applicant’s mother was “adamant” that the police
42
were framing her son. Her attitude “appeared to stoke [Applicant’s] belief that even
his original appointed lawyers were against him.”
Gransee described his understanding of Applicant’s background as follows:
19. My sense was that [Applicant] had kind of a spoiled childhood, that
his parents even provided things for him, like his pickup and a
motorcycle, when he was a kid and an adult. I don’t remember if that
idea came from his wife or mother. He seemed to make decent money,
but he was always short on money. He was living in an inexpensive
trailer, and he was spending money on guns and drinking. I got the sense
from his wife that she felt he was kind of worthless. That said, he paid for
his son’s piano lessons.
Gransee also mentioned that, during voir dire, Applicant “sometimes
inappropriately waved or smiled at jurors.” Applicant would also “get angry about
questions we asked that appeared directed toward finding jurors who would vote for
a life sentence.”
IV(E) — Trial Counsels’ Written Declarations Provided to the State
After Applicant filed his application and before the live evidentiary hearing, the
State obtained responsive affidavits from Goeke and Gransee. The statements they
provided in these affidavits, relevant to Claim 2, are summarized below. While these
statements overlap with the statements given to Applicant, there is enough additional
detail and difference in tone to warrant discussion.
IV(E)(1) — Goeke
43
In his affidavit provided to the State, Goeke said that Applicant’s mother hired
him after the first trial team withdrew because of conflict in their relationship with
Applicant. As to the idea that he and Gransee should have provided a Bell’s mania
defense, Goeke stated that he was generally familiar with Bell’s mania from reading
psychiatric literature over the years, but he “thought it had become an archaic
diagnosis supplanted by the spectrum of bipolar disorder that has evolved in modern
psychiatry.” Further, “Bell’s mania seems to be equated here with ‘excited
delirium[,]’ a controversial diagnosis[.]” And “[o]ne of its manifestations (that of
amnesia for or unawareness of an event) can be compared to automatism, the
recognized defense which we presented, and one which the State would have attacked
in a similar manner.” Goeke said that:
[N]one of the many psychological professionals who evaluated
[Applicant] mentioned Bell’s mania or excited delirium as a possible
diagnosis. This is not surprising in that the two “conditions” are not
recognized by the vast majority of medical, psychiatric and psychological
organizations in existence. Excited delirium is recognized by the
American College of Emergency Medicine but this acceptance is not
shared by any other recognized body that I can find. I am however not a
physician or other professional qualified to diagnose.
Regarding his approach to Applicant’s case, Goeke again emphasized that he
and Gransee were the second set of lawyers to represent Applicant, replacing Gross
and Del Prado.
44
Mr. Gross referred [Applicant’s] mother (Ninfa Gonzalez) to me when
he and Mr. Del Prado withdrew . . . based upon the ethical ramifications
of [Applicant’s] (and Ninfa’s) total lack of cooperation in helping them
prepare for a mitigation defense. Neither [Applicant] nor his mother
would provide access to the historical information or any family
members who could provide it.
Goeke speculated a lot about Gross’s state of mind and reasons for giving Goeke’s
contact information to Ninfa.
Goeke further explained that he:
[I]nherited the expert witnesses and investigators that [the first trial
team] had engaged, including a Mitigation Specialist (Gerald Byington)
who had worked on the case from the beginning. When I spoke to him
about his investigation, Mr. Byington described his inability to obtain
information without the approval and cooperation of the client and his
mother, and described the ways [Applicant’s] mother prevented his
inquiries in this regard. Mr. Byington was highly experienced in this area
and seemed to confirm for me the futility of further efforts in this regard.
The discussion was further disheartening about the possibility of
acquiring and presenting the mitigation evidence deemed necessary to
the Colorado Method of defending a death penalty case.[14] I took this as
expert confirmation that Mr. Gransee and I would have no greater
success in this regard than [Gross and Del Prado.]
Despite this information, I undertook this case from a “fresh
start” point of view and interviewed [Applicant] as any new client
without regard to these preexisting determinations. [Applicant] was
adamant that he had not committed the offense, a position not
uncommon in my experience of criminal case defendants. I began the
14
There is no explanation in the record for the “the Colorado Method.” Goeke often seemed
to use “the Colorado Method” and “a traditional mitigation case” as shorthand references for a
mitigation case that focuses on a defendant’s upbringing and any adversities he faced.
45
review of discovery . . . [which] made clear the untenability of
[Applicant’s] claim of innocence. I eventually informed him of this and
explained the need for a mitigation investigation to support plea
negotiations that would save his life. His refusal to cooperate in this
regard continued and similar discussions with his mother also fell upon
deaf ears. Every time I raised the topic, [Applicant’s] constant refrain
was, “I don’t want to live like this, caged up like an animal.” After many
failed attempts to persuade [Applicant] and his mother of the need for
mitigation evidence, we focused our pursuit of a defense strategy
consistent with the facts, including the fact of [Applicant’s] blanket
denial of the charged offense. Such an approach would enable us to
honor the fully-informed choices that were his to make throughout the
litigation if and when he could not be persuaded to the contrary.
Goeke said automatism was the only defense that met all of these criteria.
Gransee found a well-qualified forensic psychiatrist and neurologist who had
published on the topic of automatism and criminality (Dr. Merikangas). Dr.
Merikangas consulted with them, and after examining Applicant and reviewing the
evidence, agreed to testify in Applicant’s defense.
Regarding their interactions with Kathryn Kase, Goeke explained that “[w]hen
[they] attended her capital murder seminar on the Colorado Method, [they] began
what would become extensive discussions with her about [Applicant’s] case. Goeke
felt encouraged when they told Kase about their planned automatism defense, because
Kase seemed to understand that they were trying to present “up-front mitigation.”
When they described the difficulties they had been having with Applicant and his
46
mother, “Kase observed the particularly tragic nature of that situation because
lawyers have often succeeded in persuading such reluctant defendants to seek life
sentences by appealing for help from family members, a remedy obviously unavailable
to us.” Although Kase seemed to approve of their strategy in this situation, she urged
them “to keep trying for more traditional mitigation” and noted that “you have to
have every bit that there is.” Goeke also felt encouraged because Kase spoke
approvingly of Merikangas’s experience in capital cases. Further,
[Kase] was unable to suggest a method by which we could surmount the
obstacles we faced in obtaining mitigation other than expressing her
willingness to come talk to [Applicant] personally about the difference
between life in prison generally and life on death row. I asked [Applicant]
if he would talk to another lawyer about his case and he declined. Having
grown to trust me (and apparently me alone), he did not even want to
meet and speak to [Gransee] about his case until proximity to trial
required it.
In the application, Applicant emphasized the negative impact of his brother’s
suicide on his mental health. Apparently responding to that, Goeke asserted that he
and Gransee “never would have used [that] tragic death . . . as mitigating evidence.”
After noting that the brother’s death was ruled a murder-suicide, Goeke stated, “We
felt that [information] could have made a death sentence more likely for a couple of
congenital murderers.” Further, “Ninfa confided in me that she had been questioned
by law enforcement in relationship to the suspicious death of a man with whom she
47
was acquainted and we jokingly feared they were now viewed as a family of killers.”
To make matters worse, Goeke said, Ninfa did not believe the official report of the
brother’s death and instead “had an elaborate conspiracy theory that was frankly
crazy[.]”
Goeke also noted that Applicant’s friend, Mario Sepulveda, who witnessed the
incident in which Applicant fell and hit his head shortly before the offense, ultimately
became “a very reluctant witness.” The point of this assertion seems to be that trial
counsel had to deal with some uncooperative defense witnesses.
IV(E)(2) — Gransee
In relevant part, Gransee reiterated that he did not meet Applicant until about
six months before trial began because Goeke feared Applicant might “turn on”
Gransee the way Applicant had turned on his previous trial team. But “for at least a
year before” Gransee met Applicant, Goeke met “repeatedly” with Applicant and
Applicant’s family. Gransee said that he and Goeke were also consulting regularly
with Kathryn Kase and another TDS attorney.
Gransee insisted that he and Goeke “wanted to present a mitigation case” but
they were stymied by Applicant, who “was adamant that he wanted to get a not guilty
or death” verdict and “did not want to spend the rest of his life in prison.” Hoping
48
to change Applicant’s mind, Gransee asked Applicant to meet with Kase, so she could
explain how defendants serving life without parole sentences could still live
meaningful lives. Applicant refused. Gransee stated:
[Applicant] wouldn’t budge from this position. He was adamant that he
did not want us to put on a mitigation case. As for mitigation, he said he had
a perfectly normal childhood, and was not abused or sexually abused. He
even seems to have been indulged with presents and so forth. He kept his
family from cooperating with us on preparing a mitigation case. They
told us they had no living relatives who could talk about their family
history, [Goeke] did meet with [Applicant’s] mother repeatedly.
(emphasis added). Gransee’s italicized statement is arguably inconsistent with what
he said in the declaration he gave to Applicant (i.e., that Applicant “did not forbid”
them from presenting a mitigation case but “[h]e did not want us to focus or put any
effort on mitigation and would become agitated when we did.”).
In any case, Gransee averred that he and Goeke “definitely didn’t want to
present evidence about [Applicant’s] brother’s murder-suicide, which would make
[Applicant] seem more dangerous.” According to Gransee, Applicant “also insisted
we not put on this evidence.”
Gransee described the defense approach to trial as showing that Applicant:
[W]as an ordinary man who did something completely out of character
for him because of his recent head injury and his drinking and drug use.
There was no other defensive theory we could see that would lead to a
not guilty verdict. I found our primary [expert], Dr. Merikangas. As soon
49
as I talked to him and outlined the minimal facts, he suggested we
consider automatism. He wasn’t making a diagnosis, just suggesting it as
a theory. When I conveyed that to [Goeke] he said he’d thought the
same thing. So that became part of our defensive theory.
Gransee noted that two of their witnesses, Applicant’s wife and Sepulveda, became
uncooperative as trial approached.
Regarding Applicant’s assertion that they should have presented a defensive
theory based on Bell’s mania rather than automatism, Gransee stated that this
approach “would have run contrary to the defense we had prepared.”15 Further,
Applicant “was interviewed and evaluated by multiple psychological professionals,
and none suggested [the Bell’s mania] theory.”
IV(F) — Additional Declarations Filed by Applicant Before the Live Hearing
In the post-trial affidavit that Goeke provided to the State, he made certain
assertions about his interactions with Applicant’s initial lead counsel, Gross, and
Gross’s mitigation investigator, Byington. Apparently in response to those assertions,
Applicant obtained declarations from Gross and Byington. Neither party called Gross
or Byington to give live testimony at the evidentiary hearing.
IV(F)(1) — Gross’s Declaration
15
This assertion sidesteps the issue, which is whether they should have prepared an
automatism defense at all, given what they could have uncovered with further investigation into
Applicant’s background.
50
In his declaration, Gross stated that he was appointed as Applicant’s lead
counsel in early June 2011, and Del Prado was appointed as second chair shortly
thereafter. On the same day he was appointed, Gross successfully moved the trial
court to appoint “a pathologist, a psychologist, an investigator, and a mitigation
specialist” to assist with Applicant’s defense. Gross did not name these individuals,
but the record shows that the mitigation specialist was Byington.
The direct appeal record shows that, in May 2012, the State formally filed
notice of its intent to seek the death penalty. That same month, at the end of a routine
pretrial hearing, Applicant created a disturbance in the courtroom “when he stood up
and threw some papers toward the gallery, exclaiming, ‘This is for the fucking media,’
and then resisted deputies as they tried to remove him from the courtroom.”
Gonzalez, 2020 WL 6482409, at *21. As summarized below, Gross’s written
declaration sheds some light on the incident.
Gross described his and Del Prado’s relationship with Applicant as consistently
“up and down,” but he explained that the beginning of the end came in February
2012, when an intermediate appellate court affirmed a magistrate judge’s refusal to
lower Applicant’s bond.16 Applicant took the appellate ruling as evidence that Gross
16
At the June 2011 bond reduction hearing that was the subject of the appeal, Gross called
Applicant’s maternal cousin, Gloria Medrano, as a witness. At the habeas evidentiary hearing, Goeke
51
and Del Prado were conspiring with the State to keep Applicant “locked up.” Gross
said Applicant’s suspicions grew over the next few months, and Applicant came to
believe that the trial judge was also part of a conspiracy against him.17 “It seemed to
me that this belief was a product of mental illness because there was no basis for it.”
According to Gross, what Applicant threw to the media in May 2012 was a letter
accusing Gross, Del Prado, and the trial judge of conspiring with the district attorney.
Gross said he and Del Prado eventually learned that Applicant and Applicant’s
agreed that he did not interview any of Applicant’s blood relatives, aside from Applicant’s mother
and Applicant’s older son. Goeke’s justification was that he “was told there were none.” However,
Goeke admitted that a transcript of Medrano’s bond hearing testimony was in the file he received
from Gross.
In support of the habeas application, Medrano submitted a declaration giving a detailed
biographical and social history of Applicant’s maternal-side family, emphasizing the extreme poverty
and male-dominated society in which Applicant’s mother grew up in Mexico, her coming to the
United States, and her marriage-of-convenience to Applicant’s father, Al. Medrano also described
Al’s emotional, verbal, and physical abuse; alcoholism; inability to hold a job; frequent stays in the
VA hospital; receipt of disability payments; and tumultuous marriage to Applicant’s mother.
Medrano additionally noted the high level of dysfunction in Applicant’s nuclear family and
Applicant’s depression, especially after his brother’s suicide.
17
The direct appeal record corroborates Gross’s statements about Applicant’s belief in a
conspiracy. The trial judge held a hearing in late January 2013 to address Applicant’s desire for
Goeke and Gransee to take over his representation and the fact that neither attorney was on Bexar
County’s list of attorneys approved to represent defendants in capital-death cases. During this
hearing, the trial judge referenced Applicant’s mental health and seemingly “irrational thoughts,”
and she implied that these factors had caused her to delay setting a firm trial date. At the same
hearing, Goeke asserted that “the problem that ha[d] arisen [between Applicant and the Gross-Del
Prado team] ha[d] to do with [Applicant] having a distrust of the court appointed lawyer system.”
Goeke did not mention anything about the mitigation investigation being a point of friction between
Applicant and Gross and Del Prado.
52
mother were talking to Goeke about the possibility of retaining Goeke to represent
Applicant. Throughout his declaration, Gross described the problem in his and Del
Prado’s relationship with Applicant as being the fact that they were court-appointed.
Gross “[did] not remember feeling like [Applicant] or his mother were obstructing our
mitigation investigation or that our mitigation investigation was a focal point of
[Applicant’s] distrust of Mario and me.” “At some point, I gave my files to [Goeke].
In my conversations with [Goeke] at the time we transferred the case to him, he
indicated that he intended to distinguish his defense team from ours as much as
possible in the hopes that doing so would insulate them from the paranoia that
ultimately derailed our relationship with [Applicant].”
IV(F)(2) — Byington Declaration
In his declaration, Byington described his work on Applicant’s case while
assisting Gross and Del Prado and Applicant’s level of cooperation. Gross and
Byington had worked together before, and as was Gross’s typical practice, he invited
Byington to conduct his own investigation and follow the evidence where it led.
Byington suggested that he did not have a meaningful opportunity to develop
mitigating evidence in Applicant’s case while working for the initial trial team
because, after about a year, Gross advised Byington that Gross and Del Prado would
53
be withdrawing from Applicant’s case. At that point, Byington stopped working on
the case and sent Gross a final invoice for Byington’s work as of July 31, 2012.
Byington explained that when the attorney who retained him leaves a case, Byington
is also off the case unless the new attorney asks for his services.18
The invoice and Byington’s discussion of the work he did on the case while
working for Gross and Del Prado collectively indicate that between late June 2011 and
the end of July 2012, Byington:
1. Interviewed Applicant four times. Byington said he does not recall
the purpose of the second and third visits, but he surmised that it
was to follow up on something. He said the last visit was to get
Applicant to sign a release allowing Byington to share his files and
information with Applicant’s new lawyers;
2. interviewed the following people once: Applicant’s mother,
Applicant’s wife (Alcala), Applicant’s friend (Sepulveda), and
Applicant’s in-laws (Gloria and Luis Alcala);
3. emailed summaries of these interviews to Gross and Del Prado;
4. collected some of Applicant’s technical training, employment,
medical, psychological treatment, Social Security Administration,
and jail medical records;
5. reviewed the results of Applicant’s neuropsychological evaluation
by Gross and Del Prado’s expert, Dr. Gilbert Martinez; and
6. started plugging the above information into a document detailing
18
As discussed below, Goeke eventually re-hired Byington in a limited capacity.
54
Applicant’s life history.
In his email summary of the witness interviews sent to Gross and Del Prado,
Byington reported:
7. Ninfa “talked and cried about how abusive her husband was/is.
Beat both her and the boys. Lots of violence.”
8. “Patricia [Alcala] told me that [Applicant] had said to her that one
time when he was about 12[,] he was sexually assaulted by a
neighbor.”
9. “Mom has NO education. Came to the US when she was 17.
Learned English from hearing kids speak it. Still doesn’t write
English.”
10. “Dad has always been disabled. Been on military and VA pension.
Used to be on Lithium (Bipolar Disorder?) Was and is practicing
alcoholic.”
11. Applicant’s only sibling, Richard, shot and killed his ex-girlfriend,
her female roommate, and himself in June 2000, but Applicant’s
mother believed that someone else did it.19
Turning back to the declaration, Byington described Applicant as having had
“an unrealistic expectation” about his case’s outcome and having been “resistant to
preparing for” either phase of trial. Nonetheless, Byington said Applicant “answered
[Byington’s] questions and signed the releases that would permit [Byington] to gather
19
At the habeas evidentiary hearing, Goeke admitted that he could not dispute that this email
summary was in the file he received from Gross and Del Prado. But Goeke testified that he did not
remember reading the email.
55
records about him.” Byington said that Applicant “also had no interest in meeting
with a neuropsychologist,” but Applicant did ultimately meet with and participate in
an assessment done by Gross and Del Prado’s expert (this appears to have been
neuropsychologist Gilbert Martinez).
Byington did not find Applicant’s reluctance to focus on preparing for the
penalty phase unusual because such preparations suggest “a high likelihood” of
conviction. Byington suggested that he did what he ordinarily does when he
encounters such resistance: he explained that the attorneys would be best prepared to
defend Applicant if they know as much as possible about him and what led to his legal
predicament. “In other words, I try to help them see that the mitigation investigation
will help their attorneys in the guilt-innocence phase as well as, if necessary, the
penalty phase.”
Byington said Goeke eventually re-hired him on the case in a limited capacity.
Byington said he first heard from Goeke in early October 2013, after which Byington
gave his file for Applicant’s case to Goeke. About a month later, in November 2013,
Goeke asked if Byington could provide additional mitigation services for Applicant’s
case. Byington told Goeke that he was available, but he expressed concern that there
was not enough time to adequately prepare for trial, which was then scheduled for
56
June 2014.
Byington heard from Goeke again in mid-February 2014. Implying in his
declaration that Goeke again asked Byington if he could do some mitigation work,
Byington says he told Goeke that he could not assist with Applicant’s case unless the
trial date were continued. In mid-April 2014, Goeke contacted Byington again with
news that Applicant’s trial date had been rescheduled for mid-January 2015. In
mid-May 2014, Goeke informed Byington that “an order authorizing funding for
[Byington’s] services was in the process of being finalized.” Byington said that he
received that order in mid-October 2014 and soon after resumed his work on
Applicant’s case.
Byington’s role was “relatively limited” when he resumed working on
Applicant’s case. Goeke was his main contact.
Instead of requesting a full mitigation investigation, Mr. Goeke asked me
to focus on discrete tasks. Primarily, he wanted me to update the witness
interviews that I had previously conducted. As a result, I again
interviewed [Applicant’s] wife, mother, and in-laws. Based on my files,
it appears that these are all the witnesses I spoke with when I resumed
work on the case, except that this time I also interviewed [Applicant’s
older] son, Mark Gonzalez, Jr. I do not remember being asked to
interview other witnesses, except that I tried to interview [Applicant’s]
ex-girlfriend and she refused to meet with me. I interviewed
[Applicant’s] mother, Ninfa. She sent her husband, Alberico[,] outside
and refused to have him provide information to me.
57
Byington further stated that, by the time he resumed work on Applicant’s case,
Goeke “already had identified the automatism theory that was presented at trial.”
Byington said he “was skeptical that a jury would be convinced by this theory given
the number of shots that appeared to have been fired at the time of the offense, but
Mr. Goeke appeared to believe in it.” As to Goeke’s punishment phase strategy,
Byington stated:
If Mr. Goeke had an over-arching penalty phase strategy, I was not privy
to it. I do not remember saying and do not believe I would have told Mr.
Goeke that further mitigation investigation was impossible or futile. I
also do not remember discussing with Mr. Goeke whether or not
[Applicant] had been abused sexually while growing up, but I was not
asked to find records, such as [Applicant’s] father’s criminal or medical
records, or otherwise develop evidence relating to abuse. I do remember
discussing that this was an abusive household. Had I been asked, I would
not have told Mr. Goeke that there was no point in investigating those
topics. I do remember discussing childhood abuse with [Applicant] in
2011, which he denied, but it is apparent from my June 29, 2011 email to
Mr. Gross and Mr. Del Prado that his mother talked about her husband
being abusive when I first met with her at the outset of the case.
IV(G) — Live Evidentiary Hearing (Claim 2)
Applicant attached a large number of exhibits to his application, including
witness declarations. Many of these declarants also testified at the hearing and their
written testimony is generally consistent with their live testimony. Therefore, we
largely do not discuss these declarations unless they are particularly relevant, and we
58
will discuss other exhibits as they become relevant to the evidentiary hearing
testimony.
IV(G)(1) — Applicant’s Witnesses
IV(G)(1)(a) — Philip Wischkaemper
Over the State’s objection, Philip Wischkaemper testified as an attorney-expert
on whether Applicant’s trial team adhered to ABA and Texas Guidelines regarding
attorney representation in capital cases. Wischkaemper opined that Goeke and
Gransee did not adhere to these guidelines.
IV(G)(1)(b) — Mental Health Experts (Drs. Woods, Campbell, and Agharkar)
Applicant’s mental health experts at the hearing were Dr. Woods; Dr.
Campbell; and an additional expert not relied on in the application, Dr. Bushan
Agharkar, a clinical and forensic psychiatrist. Dr. Woods opined that Applicant
suffered from previously undiagnosed Bipolar Disorder, PTSD, and personality
changes secondary to head trauma at the time of the offense. The interaction among
these caused Applicant to experience “delirious mania” (or “Bell’s mania”) on the
night of the offense. Applicant had many factors that made him susceptible to Bipolar
Disorder and PTSD, including childhood trauma (physical and emotional abuse and
possibly sexual trauma). Dr. Woods opined that Applicant’s lack of a disciplinary
59
history in prison was because people with Bipolar Disorder do better in institutional
settings. Dr. Woods acknowledged that the DSM-5 (Diagnostic and Statistical Manual
of Mental Disorders, Fifth Edition) does not recognize Bell’s mania as a disorder.
Dr. Campbell, a trauma expert, opined that Applicant suffered prolonged
physical and emotional child abuse and neglect in his highly dysfunctional home. Dr.
Campbell asserted that Applicant was also sexually abused, although Dr. Campbell
acknowledged that Applicant denied sexual abuse when asked by many interviewers.
This complex trauma psychologically damaged Applicant; led to developmental delay,
emotional immaturity, and a tendency to dissociate; and caused him to suffer from
PTSD. However, Dr. Campbell testified that the effects of the childhood trauma
Applicant experienced can be successfully treated. Dr. Campbell recognized that
Applicant’s father was on medication for Bipolar Disorder, among other things, but
Dr. Campbell did not diagnose Applicant with Bipolar Disorder.
Dr. Agharkar, who did not personally examine Applicant and therefore did not
diagnose him, testified in rebuttal to the State’s mental health experts, Dr. Skop and
Dr. Fox. Dr. Agharkar faulted the State’s experts for approaching the data in isolation
in reaching their conclusions about Applicant rather than considering the data as a
whole. Dr. Agharkar further testified that there was evidence to support Dr. Woods’s
60
Bipolar Disorder diagnosis for Applicant and that this diagnosis was a reasonable
conclusion. Dr. Agharkar said the same of Dr. Woods’s and Dr. Campbell’s diagnoses
of PTSD. Dr. Agharkar also agreed that automatism was a reasonable diagnosis given
the evidence. Dr. Agharkar additionally testified that it is very common for victims of
trauma, including sexual trauma, to avoid disclosing the traumatic experience, and
that men generally show a greater reluctance to disclose than women. Like Dr.
Campbell, Dr. Agharkar testified that Bipolar Disorder and PTSD can be treated
effectively, even if the PTSD is from prolonged child abuse.
IV(G)(1)(c) — Applicant’s Childhood Friends and Neighbors
Four of Applicant’s childhood friends and neighbors testified: Dora Breig; Alex
Hartley; Jennifer Murray; and Lafreda “Rusty” Munoz. One of these witness was an
adult when Applicant was a child, while the others were his contemporaries.
Collectively, these witnesses testified that Applicant’s father was a mentally ill,
very violent man who terrorized his wife and sons through verbal and physical abuse.
Applicant’s mother, Ninfa, also had “a nasty side,” and her mood changed
frequently. Applicant also behaved strangely at times, “completely zon[ing] out,”
staring into the distance, and chuckling to himself—without seeming to realize that
he was doing it. Applicant’s moods changed frequently too. He tried beer when he was
61
around seven or eight years old, and he started drinking alcohol regularly when he was
between fourteen and sixteen years old. Applicant and his friends smoked marijuana
in high school, and he used cocaine at age seventeen. The people in the neighborhood
were generally poor and some residents (in addition to Applicant’s father) engaged in
bizarre behavior.
Applicant’s friends also testified about an older adult man, Clayton P. Meyer,
who frequented their neighborhood, befriended them when they were children, and
behaved very inappropriately with them. The behavior they describe suggests that
Meyer attempted to fondle them and have them touch him near his genitals, and that
he frequently exposed his flaccid penis to them. Meyer also put pornography on TV
while the children were in his apartment.20 They also once encountered another man
in a car, who watched them and masturbated. Applicant chased the man off.
Roy Ramirez, another of Applicant’s childhood neighbors and friends, gave a
declaration in support of Applicant’s application, but Applicant did not call Ramirez
to testify at the live hearing. Ramirez’s declaration echoed what many of the other
20
One of Applicant’s habeas exhibits shows Meyer filed a civil suit against certain
defendants, alleging that the defendants made a false complaint against him in 1984, accusing him
of unspecified criminal acts involving the defendants’ children. Meyer alleged that, as a result of the
false complaint, he was arrested and transported to California (Meyer does not reveal the exact
nature of the criminal charges against him or what happened with them). The exhibit shows that
Meyer’s suit was eventually dismissed for want of prosecution.
62
declarants and live hearing witnesses related about Applicant’s negative childhood
environment and Applicant’s mood changes.
Notably, Ramirez also stated that Applicant stayed overnight at Ramirez’s
house many times when they were children. Ramirez further related that his
stepfather, Joe Garza, was arrested in 1983 (when Applicant was in eighth grade) for
sexually abusing young boys. Garza’s victims included boys in Ramirez’s friend group
and the neighborhood in general. Ramirez said it is possible that Garza sexually
molested Applicant, noting that Garza had plenty of opportunities to do so and that
Garza was “very nice to” and paid “a lot of attention” to Applicant. Applicant also
attached an exhibit to the application reflecting Garza’s February 1984 conviction for
Indecency with a Child–Sexual Contact (offense date—July 1983). According to the
Pre-Sentence Investigation report, the offense involved a twelve year-old male victim.
IV(G)(1)(d) — Applicant’s Wife
Applicant’s wife, Alcala, testified at trial. Although she was not called to testify
at the live habeas hearing, she provided a declaration to Applicant. As relevant to the
sexual abuse topic, she stated:
[Applicant] once admitted to me that he had been sexually
molested. He told me this not long after his brother killed himself. We
were at home when he told me. I believe he was sitting quietly by himself,
like he was thinking about something, and I went over to go see what was
63
wrong. He just blurted it out. [Applicant] told me that when he was
young, somewhere between nine and thirteen years old, a friend’s dad
sexually abused him. [Applicant] told me that this man did sexual things
to him and made [Applicant] do sexual things back. [Applicant] made it
seem like it happened not just once, but multiple times. I tried to ask
[Applicant] for details, but he did not want to keep talking about it.
About a week or two later, I asked [Applicant] about it again.
When I brought it up, [Applicant] looked very uncomfortable. He looked
scared, as if he had forgotten that he had told me this secret and was now
worried that I knew about it. He told me that he did not want to talk
about it. I did not push the issue because [Applicant] was already very
depressed, and I did not want to make things worse.
(paragraph break inserted to increase readability).
Alcala did not state whether trial counsel asked her about Applicant’s history
of sexual abuse or whether she otherwise provided this information to them. She
emphasized her “bad experience” with the second trial team, especially Goeke, whom
she found to be “cocky and disrespectful” and who “would push her buttons for no
reason.” Alcala said that Goeke and Gransee “did not seem interested in learning just
how bad [Applicant’s] mental health had been, and the struggles he faced in his life
starting from when he was a child.”
Whether Alcala personally told Goeke and Gransee about Applicant’s
revelation to her about sexual abuse, she apparently mentioned it to Byington as
indicated by his interview notes. Through Byington’s notes, Goeke and Gransee had
64
constructive notice that Alcala had heard Applicant was abused. Goeke did not
dispute that these notes were in the files he inherited from Gross and Byington.
However, as discussed below, Goeke said he does not remember seeing them.
IV(G)(1)(e) — Gloria Medrano
Gloria Medrano, Applicant’s cousin (as the daughter of Applicant’s mother’s
half-sister), stated that early in Applicant’s case, she testified at his bail hearing at the
request of his first set of attorneys. At the writ hearing, Medrano testified that
Applicant’s second set of attorneys, Goeke and Gransee, never contacted her.
Medrano gave details about Applicant’s extended family and testified that Ninfa,
Applicant’s mother, grew up in extreme poverty in Mexico, entered the United States
illegally, reluctantly married Applicant’s father Al, and was raped by him on their
wedding night. The ensuing marriage was bad. Al did not work, but he received
disability checks from the VA. The burden of keeping the family financially afloat fell
mostly to Ninfa. Al was a severe alcoholic. He spent several stints in the VA Hospital
for mental issues, and Ninfa and the children seemed happier and much more relaxed
during his absences. Applicant was quiet as a child, especially compared to his younger
brother, Richard. Richard seemed to have some mental health issues as an adult.
Applicant took Richard’s death extremely hard.
65
IV(G)(1)(f) — Paul Goeke
Goeke agreed that Applicant’s case was the first and only time Goeke had
represented a client potentially facing the death penalty. He had also not previously
served as second chair in a capital death case. On cross-examination, the habeas
prosecutor elicited evidence that Goeke was nonetheless an experienced criminal
defense attorney who often dealt with felony charges.
Goeke agreed that his overarching defensive theory was that the offense was a
bizarre act caused by Applicant lapsing into an automatistic state due to a combination
of a recent head injury, alcohol, Xanax, and low blood sugar. Goeke stated that
automatism is a neurological or neuropsychiatric condition somewhat analogous to an
alcoholic or pharmacological blackout. Goeke talked to Applicant and his mother
several times before entering a formal appearance, and he also talked to Gross. The
automatism defense occurred to Goeke when he was talking to Gross, before Goeke
took over the case or consulted Applicant’s eventual trial expert, Dr. Merikangas.
Goeke’s overarching penalty phase theory was the same or similar to his guilt phase
theory—that a person in an automatistic state is not criminally responsible for his
actions because the person is not acting voluntarily. Goeke thought the automatism
defense was “inherently mitigating” as to punishment.
66
Goeke agreed that Applicant’s mental condition was an important aspect of
both trial phases and that Dr. Merikangas or a similarly-situated forensic psychiatrist
was essential to Applicant’s case. Goeke stated that Dr. Merikangas was a board-
certified psychiatrist and neurologist with forensic training. Goeke agreed that mental
health professionals generally want as much information as possible about the person
being assessed.21
Applicant questioned Goeke about what he knew when he took the case to trial
about abuse in Applicant’s home when Applicant was growing up. Goeke agreed that:
(1) he did not try to get the VA or criminal records for Applicant’s father, so he did
not know what information they held; (2) there were various reasonable avenues open
to him for obtaining these records; and (3) these avenues did not legally require Goeke
to obtain Applicant’s or Ninfa’s permission. Goeke agreed that when he took the case
to trial, he did not have any records documenting Al’s abuse of Ninfa when Applicant
was growing up or Al’s abuse of Applicant and Applicant’s younger brother when
they were children. Goeke further agreed that he did not talk to any of Applicant’s
childhood neighbors, friends from elementary school, or blood relatives other than
21
Notably, Dr. Merikangas did not testify at the live hearing. He also did not provide an
affidavit stating that he would have reached a different opinion about Applicant’s mental state at the
time of the offense, had he been informed of the information uncovered by Applicant’s investigation.
67
Applicant’s mother and teenage son.
Goeke explained that he did not seek Al’s VA and criminal records because he
did not want to jeopardize the relationship with Applicant or his mother. Goeke
stressed that he believed Applicant’s relationship with the first trial team broke down
because neither Applicant nor his mother would cooperate in any way with Gross and
Del Prado’s efforts, through their mitigation investigator Byington, to develop a
traditional mitigation case.22 “[A]cutely aware” that he was the second lawyer on the
case, Goeke said that he was bound by the approaches that Applicant and his mother
wanted him to take, and they were very opposed to him delving into the family’s
history. Further, Goeke asserted that they denied that any type of abuse happened.
Instead, Applicant said that he had a happy childhood.23
Regarding Applicant’s former neighbors, Goeke stated that Byington had
expressed the sentiment that such endeavors were futile.24 Goeke was shown an email
letter that Byington wrote to Gross and Del Prado in late July 2012, before Byington
22
Gross’s and Byington’s declarations do not support Goeke’s assertion.
23
In his written declaration, Goeke admitted that he was contemporaneously aware that
Applicant’s mother was being “evasive” and that Applicant had poor or “malignant” insight into
his past.
24
Byington disputed this, responding that “I do not remember saying and do not believe I
would have told Mr. Goeke that further mitigation investigation was impossible or futile.”
68
knew for certain whether Gross and Del Prado were leaving Applicant’s case. The
letter was in the trial file Goeke received from the first team. Goeke acknowledged that
the letter showed that Applicant was not cooperating with his initial trial team at that
point. However, as Applicant tried to show, a reasonable reading of that letter also
suggests that Byington had not given up on finding mitigating evidence. At most,
Byington expressed the belief that the trial team would need to find a way to get
Applicant to be more cooperative with them again and that it would probably take
persistent effort; Byington proposed some ideas like visiting Applicant every couple
of weeks.
On the topic of Applicant’s elementary school friends, Goeke pointed out that
they had talked to Applicant’s friend, Mario Sepulveda. However, Goeke agreed that
Applicant and Sepulveda met as teenagers, and Sepulveda could not speak to
Applicant’s environment when he was younger.
As for not talking to any of Applicant’s other blood relatives besides Ninfa,
Goeke said he was told that there were none. Goeke admitted, however, that he
inherited Gross and Del Prado’s file. Gross and Del Prado called Applicant’s cousin,
Gloria Medrano, to testify at a pre-trial hearing on Applicant’s motion to reduce bond,
and the trial file contained a transcript of Medrano’s testimony. On
69
cross-examination, Goeke agreed that the transcript showed that Medrano “knew
very little about Applicant, she hadn’t seen him in ten years.”25 On re-direct, although
he had previously stated that he was told Applicant had no other family, Goeke gave
a reason for not contacting Medrano, that he “was not going to run afoul of [his]
client’s desires for a certain strategic approach” that Applicant had the right to make
choices about. “I wasn’t going to blow up that relationship unnecessarily.” Goeke
stated that he never talked to Medrano because he “wanted to stay on [Applicant’s]
good side.”
Back to direct examination, Goeke testified that he and Gransee “basically
suspected that [they] had not gotten the entire story” about Applicant’s background.
However, Goeke asserted that Applicant had “specifically disclaimed . . . that he had
suffered any abuse as a child” and had characterized “his childhood as a happy one.”
But Goeke agreed that “it would be fair to say” that he “did not have a clear
understanding about the nature or the extent of the abuse that [Applicant] experienced
while growing up.”
Goeke agreed that, when they went to trial, he believed that the only
25
That line of cross-examination misses the point. While Medrano may have been unaware
of Applicant’s life in the years immediately preceding trial, Applicant’s argument is that trial counsel
should have contacted Medrano to learn more about Applicant’s early years and his extended
family’s background and to do so by talking to Medrano and any relatives to whom she could point
to.
70
psychological disorders that Applicant met under the DSM-5’s criteria were
depression and substance abuse. The extent to which Applicant’s depression was
more than situational “was never really clarified.”
When asked if he or anyone else on his team, including Byington, investigated
whether Applicant had been sexually abused as a child by someone outside the home,
Goeke became evasive and defensive. Goeke eventually agreed that any such
investigation did not extend beyond talking to Applicant, Applicant’s mother, and
possibly Applicant’s wife about the subject. Regarding Applicant’s wife, Goeke said
the conversation with her occurred during trial. Goeke said he remembered her
“mak[ing] intimations of physical abuse but mak[ing] no accusation of sexual abuse.”
Goeke justified not talking to potential fact witnesses about the sexual abuse
issue “because [he] talked to a lot of mental health professionals about these things.”
Goeke again laid the responsibility at Byington’s feet, repeating his assertion that,
when the first trial team withdrew, Byington told Goeke that any further investigation
was futile because Applicant and his mother would not cooperate. Nevertheless,
Goeke acknowledged that the ABA and Texas guidelines for capital-death penalty
cases state that counsel still has a duty to investigate, even when the client says he
does not want to present evidence at the penalty phase. Goeke also agreed that lawyers
71
need to give their clients informed advice about their options, and to give informed
advice, lawyers need to know what the available relevant evidence is.
Goeke agreed that he received both Gross’s entire file and Byington’s file on
Applicant’s case, and these materials included invoices for Byington’s work while
employed by the first trial team. According to these invoices, while employed by the
first trial team, Byington interviewed five potential witnesses: Applicant’s wife,
mother, mother-in-law, father-in-law, and best friend. Byington stopped working on
the case when the first trial team withdrew.
Goeke agreed that he did not immediately hire a mitigation specialist when he
took over Applicant’s representation, stating this decision was “because of my
conversations with [Byington, Gross, and Del Prado].” Goeke eventually agreed that
more than two years and four months passed before Byington did any work on
Applicant’s case again. After Byington resumed work on the case, his work for Goeke
totaled about forty-one hours, about a week of work, over the next roughly fifteen
months.
Goeke agreed that Byington’s work for him consisted of interviewing the same
witnesses that Byington had previously interviewed for the initial trial team
(Applicant’s wife, mother, in-laws, and best friend), plus Applicant’s eldest son, for
72
a total of one new person. Goeke did not ask Byington to find other family members
on his own, without relying on Applicant or Applicant’s mother. Instead, Goeke
“asked Byington to do what he does,” implying that he left Byington to his own
devices. Goeke admitted that, although he had the transcript of Medrano’s testimony,
Goeke did not direct Byington to talk to her. Goeke again laid the blame on Byington,
asserting that Byington “had access to all the files.” Goeke denied that he set
Byington’s task as simply updating the interviews that Byington had already done.
Goeke thought that he would have generally told Byington something like, “Try
again.”
Goeke insisted that Applicant’s writ counsel were able to discover the
information they did because they received a degree of cooperation that neither the
first nor second trial team received. Goeke attributed the lack of cooperation he
encountered to “denial and shame and cover-up and all of that within this family. I am
aware of that now.” Goeke held to this view, even though he acknowledged that he
did not know how Applicant’s writ counsel went about their investigation. When
pressed by Applicant, Goeke admitted that resources like online databases exist to
help find names and addresses, but he did not direct Byington to use such resources.
Goeke expressed the view that it would have been inappropriate for him to give
73
those kinds of instructions to Byington. Goeke likened it to a client telling him how to
conduct voir dire. Goeke nonetheless acknowledged that he was lead counsel. Goeke
said he did not tell Byington to find people, besides Applicant’s friend Sepulveda, who
knew Applicant growing up: “I gave [Byington] no specific instructions of how to do
what mitigation specialists do[.]” To Goeke’s knowledge, Byington did not interview
anyone who knew Applicant before he was a teenager, other than Applicant’s mother.
Byington “communicated to [Goeke] that he didn’t think he would get anywhere with
[Applicant’s mother].” Goeke again insisted that neither Applicant nor his mother
would cooperate with the mitigation investigation.
Byington did not visit Applicant when Goeke represented Applicant, and Goeke
never asked Byington to do so. “I let [Byington] do his work according to what his
presentation said he could [sic].”
Goeke acknowledged that, although he thought he was at a dead end with
Applicant as far as getting him to cooperate with a mitigation investigation, Goeke did
not ask Gransee to try. Goeke did not think that Gransee would be any more
successful and be counter-productive instead. Goeke stated that having Gransee talk
to Applicant about mitigation risked losing “the trust and relationship that [Goeke]
had built up with [Applicant] . . . which was to lose everything.” Goeke asserted that,
74
based on his experience with the trial judge, she would not allow Applicant to fire him,
and so Goeke would have a client who did not want him and they would “be stuck
with each other.” Goeke explained, “[Applicant] trusted me to have been persuaded
by him [sic] that I wasn’t going to force anything on him.” Goeke insisted that
Applicant would not have provided information for a mitigation investigation “under
any circumstances. He wouldn’t have done it for Jesus of Nazareth.”
Goeke downplayed Applicant’s suicidality and said Applicant made statements
that were technically suicidal but were not “statements of certain intent.” Goeke
denied that Applicant said he planned to kill himself if he was convicted: “No. He did
not say that he planned to kill himself in a way like that.” Goeke acknowledged that
Applicant told him during jury selection that he attempted suicide in jail, but
Applicant stopped talking about suicide after Gransee pointed out that Applicant
could commit suicide at any time and should adopt a wait-and-see attitude.
Goeke asserted that Applicant and Ninfa kept Applicant’s father’s abuse a
secret. “[Applicant] believed he had a very . . . happy childhood. He kept his abuse a
secret. He may have described his father as harsh but not – not in a – he didn’t
describe himself as an abused child.” “As time went on, Ninfa complained about her
husband. But her husband towards her, not towards her children.” Applicant
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impeached this testimony with Byington’s email of interview notes to Gross, which
was in the trial file. In these notes, Byington said Ninfa talked and cried about how
abusive Al was and how he beat her and the boys, and she mentioned “lots of
violence.” The notes also stated that Al “has always been disabled,” was on a
military-VA pension, used to be on lithium for Bipolar Disorder, and was an alcoholic.
The notes further mentioned Alcala telling Byington that Applicant revealed to her
that he was sexually assaulted around age twelve. Goeke testified that he did not recall
reading these notes, especially the part about sexual assault; he said, “That’s glaring
to me. I don’t recall ever reading this.” Nevertheless, Goeke said he could not dispute
that the email and notes were in the file he received from Gross.
Goeke agreed that the file also included transcripts of the State’s interviews
with Applicant’s parents and wife. He agreed that these transcripts contained
information that, when Applicant was growing up, Applicant’s father Al: (1) was
chronically “real sick” with mental disabilities, was manic depressive and could not
work, and was very verbally abusive to Ninfa and their children; (2) started taking
medication for his mental issues when the boys were three or four, and according to
Ninfa, the medication—not the underlying condition—made him very aggressive and
violent; (3) had been jailed twice for hurting Ninfa; (4) had physical fights with his
76
sons when they were teenagers as they defended Ninfa against their father’s physical
assaults; and (5) could become “very aggressive and violent” when drinking alcohol.
Goeke stated that Ninfa had discussed Al’s mental problems with him, and “it was no
secret” that Al was being treated by the VA. But Goeke stated that he understood
from Ninfa that Al was “abusive towards her and verbally aggressive towards his kids
. . . but not in a way that was so far outside the ordinary” in “a traditional” household
with “a domineering male . . . in the days of corporal punishment and the like[.]”
Goeke agreed that the file he inherited from Gross also contained documents
showing that Gross consulted with psychologist Joann Murphy, including a
questionnaire completed by Applicant. In response to a question asking, “Do you
think you were abused as a child, physically, emotionally or sexually?,” Applicant
answered “yes” and explained, “There’s too much spanking and yelling.” Goeke
reluctantly agreed that this response indicated that Applicant felt that he was abused
as a child, although Goeke minimized the abusive nature of “spanking and yelling,”
contending that it could be characteristic of many households.
Goeke further agreed that, while Goeke and Gransee represented Applicant,
Applicant signed an authorization form allowing them to obtain a wide range of his
records.
77
Goeke acknowledged that, during the course of representing Applicant and
despite knowing that he had a professional duty to investigate mitigating evidence, he
never made a record that Applicant did not want them to do so. Goeke expressed the
view that it would have been inappropriate or unethical to make such a record because
it would have been acting adversely to Applicant in order to protect himself.
Despite Goeke’s habeas testimony that Applicant was adamant about wanting
to die rather than serve a sentence of life without parole, Goeke acknowledged his
contrary punishment phase strategy. He never told the jury that Applicant would
rather die than live in a cage; he cross-examined the State’s punishment phase
witnesses whenever he judged it appropriate; he called Applicant’s wife and son to
testify on Applicant’s behalf; and he argued in closing that Applicant should receive
a sentence of life without parole. Goeke acknowledged that Applicant at no time
during the penalty phase “[stood] up and [told] the jury he wanted a death sentence,”
although Applicant had already shown himself capable of making such outbursts.
Applicant engaged in further questioning designed to show that Goeke’s habeas
testimony—that Applicant’s relationship with initial counsel broke down because they
emphasized doing a mitigation investigation and because they were
court-appointed—was inconsistent with the record. Goeke acknowledged that
78
Applicant exhibited an aversion to having court-appointed counsel very early in the
case. Further, Goeke agreed that Applicant’s letter tossed to the media early in the
case complained of many things related to initial trial counsel, but not about their
emphasis or approach to a mitigation investigation. But although there was nothing
in the letter about this, Goeke said he understood the letter as Applicant complaining
that, by “[p]reparing for the punishment phase hearing through mitigation from the
beginning meant they weren’t trying to win the case in any way.” Goeke testified that
he would not expect Applicant to have said this to the media and that Goeke “now .
. . know[s] that’s what [Applicant] meant.”
Goeke agreed that, in a pretrial hearing about Applicant’s poor relationship with
Gross and Del Prado, Goeke told the trial court that Applicant mistrusted
court-appointed lawyers but Goeke did not say anything about the breakdown being
because Gross and Del Prado were trying to investigate mitigating evidence. Although
it is not clear how Goeke would have personal knowledge of this, he nevertheless told
Applicant that Gross and Del Prado’s efforts to do a mitigation investigation was “a
dominant theme” in Applicant’s interactions with Gross and Del Prado. Gross, as
noted, disputes this in his post-trial declaration.
Returning to the issue of whether Applicant’s household growing up was an
79
abusive environment, Goeke testified that “it was very common in blue collar families
to yell and to spank[.]” Thus, he explained, he did not find this information
noteworthy as far as mitigation evidence—“there was nothing unique about that.”
But Goeke presented other evidence that was “common” at the punishment phase
—Applicant provided for his family, was supportive when his younger son had health
problems, and sometimes gave money to the homeless. Goeke agreed that there was
nothing extraordinary about this evidence. Goeke again said he “knew nothing about
[Applicant] being sexually assaulted. He, in fact, specifically disclaimed that[.]”
As for physical abuse, Goeke stated that he received some information from
Applicant’s wife during voir dire that Applicant’s father was “more abusive than
[Applicant] and Ninfa had let on.” As for what Applicant’s wife told investigating
officers very early in the case, that Applicant’s father “would beat them a lot[,]”
Goeke seemed to shrug that off:
His dad would beat them a lot. Okay? Spanking, yelling, blue collar
households are not the kind of horrific abuse that to me really stands out.
. . . My point is that we’re not talking about being held captive, tied to
the bed, these kind of really horrific PTSD type of abuse scenarios. Okay.
He would beat them a lot. . . . [w]ith stick[s], clubs, or spankings, you
know.
Goeke agreed that his position was that the abuse Applicant suffered as a child was
“not uncommon. . . . All those things exist in a continuum, okay. But I saw it as
80
corporal punishment perhaps in the extreme.” Goeke noted that, years ago, it was
“[v]ery common to take a belt to kids.” Goeke did not endorse such conduct, but he
observed that, “for some people that is a legitimate approach to discipline.”
However, Goeke agreed that the following things are not typical in “the average
American home,” although he thought they might be more common in some
unspecified populations:
• A father being too mentally ill to hold a job;
• A father being hospitalized over and over due to mental illness;
• Children having to call the police to their home dozens of times;
• A child having to leave home late at night to get away from his
father;
• A father threatening to kill his wife and sons;
• A father asking his son to kill him; or
• A seventeen year old bringing his father to the hospital because
the father is “going crazy and beating us.”
Applicant returned to the transcript of Applicant’s mother’s interview with the
State. In this transcript, Ninfa said that when Applicant was eleven or twelve, he told
her that one of his friends’ father was in jail for molesting children. Applicant thought
the man had molested his younger brother, but Applicant denied having been
81
molested by the man. Goeke volunteered that Applicant’s comments to his mother
could have been “a device” because “many people are unable to admit to having been
victimized in that way because of shame” and so Applicant “may have been able to
say that he thought it happened to his brother and not [have been] able to say that it
happened to him.” Goeke agreed that, at a minimum, “just based on this statement,
[Applicant] appeared to have been at risk of sexual abuse when he was a child” and
this information was in Goeke’s file. Goeke noted that Applicant denied having been
sexually abused, but Goeke acknowledged that Applicant could have been unable to
admit it.
Regarding the transcript of Sepulveda’s interview with law enforcement, Goeke
agreed that Sepulveda told the police that Applicant’s father was mentally unstable
and went to the VA for treatment of mental issues. Goeke agreed that Sepulveda
characterized Applicant as having always been sad, that Applicant was especially badly
affected by his brother’s suicide, and that Applicant often started crying if he had been
drinking. Goeke acknowledged that Sepulveda also referred to Applicant’s unwise
spending patterns, describing Applicant as spending money like it was “water” on
gadgets for himself and his children.
Goeke agreed that Applicant’s Bexar County jail records contained signs that
82
Applicant had a long-standing untreated mental health issue. An excerpt from those
records recounted Applicant reported anxiety problems, including panic attacks,
starting at around age sixteen. Applicant reported that the attacks increased in
frequency over time and grew especially bad about the time of his brother’s death.
Goeke agreed that he regularly consulted with TDS lawyer Kase while
representing Applicant. Kase suggested that Applicant might have significant mental
health issues and that further investigation into Applicant’s past was needed. She
encouraged Goeke to focus more on mitigating evidence. Goeke responded by
explaining the obstacles they were encountering in that regard, including Applicant’s
insistence that he did not commit the offense. Goeke said that Kase approved of the
automatism approach they were taking because it incorporated up-front mitigation.
On cross-examination, the State focused on Goeke’s overall legal experience,
how bad the facts of the offense were, and Applicant’s refusal to admit guilt despite
the mountain of evidence against him. Through questioning, the State argued that this
left Goeke with limited options as far as a defensive theory. Goeke testified that he
tried to persuade Applicant that the chances were very good that he would be
convicted, and therefore they needed to prepare a mitigation case. Goeke stated that
this made no difference in Applicant’s “willingness to talk about anything bad ever
83
happening to him. It was . . . odd. It was as if he didn’t want to criticize his mother or
father.” Goeke testified that he also explained to Applicant how information about his
upbringing and family background could allow them to argue that Applicant was more
susceptible to automatism and thus support the idea that Applicant did not know what
he was doing when he committed the offense.
To the extent that Applicant’s psychologist, Dr. Campbell, spoke of “triggering
events,” Goeke said that Applicant’s use of Xanax and alcohol made the most sense
as the trigger, but because Applicant regularly consumed these substances together,
he should have developed a tolerance to them. The only other significant event in
Applicant’s life seemed to be his brother’s suicide, but that happened eleven years
before the offense.
The possibility of automatism occurred to Goeke, and then Gransee separately
found Dr. Merikangas, who independently suggested automatism, too. The intent
element of the State’s case was really the only element that they could attack, and it
seemed like they could present evidence fitting all the criteria of automatism. On
re-direct, Goeke agreed that the first forensic psychiatrist he talked to, Arambula,
thought Applicant’s behavior was too complex to be automatistic.
Goeke tried to get Applicant to talk to Kase so she could explain that life in
84
prison might not be so bad and would be different from Applicant’s experience in
county jail, but Applicant refused. Goeke said that Applicant seemed to think there
was no point in having that kind of conversation because if things were done properly,
he would not be convicted at all. Kase was not the only TDS lawyer Goeke consulted
with; he also talked a lot to TDS lawyer Carlos Garcia. According to Goeke, both Kase
and Garcia seemed to approve of the defense trial counsel had chosen, given the
limitations they were operating under. But Kase did seem to hold the belief that there
was no such thing as too much mitigating evidence.
Goeke reiterated that his discussions with Byington gave him the sense that
seeking more mitigation would be futile. In his defense, Goeke emphasized that
Byington did exactly the same thing when he worked for Goeke as when he worked for
Gross and obtained exactly the same “non-result.”26 To the extent Applicant faulted
Goeke for not talking to any of Applicant’s neighbors from Applicant’s formative
years, Goeke defended himself by blaming Byington. Goeke said Byington did not tell
him that such an effort might lead somewhere productive.27
26
It is inaccurate to say that Byington obtained a “non-result.” Byington’s interview notes
indicate that he uncovered a lot of significant information. But even taking Goeke’s characterization
at face value, it remains problematic. Goeke could have considered trying something different, such
as looking to sources of information beyond Applicant and his mother.
27
Goeke spent much of his testimony asserting that he would not presume to tell Byington
how to conduct a mitigation investigation. Implicitly, Goeke’s position is that counsel should not be
85
As to the interview that Mario Sepulveda gave to the police, Goeke
remembered the import of Sepulveda’s comments being more that Applicant’s father
was verbally rather than physically abusive. Goeke’s impression of Sepulveda’s
comments to the police was consistent with Goeke’s understanding that Applicant’s
father was a “strict disciplinarian in the extreme as opposed to Ted Bundy[.]” But on
re-direct, Goeke acknowledged that Sepulveda told the police that Al also took out a
firearm and shot it toward Applicant, Sepulveda, and some other kids.
Goeke testified that Applicant was assessed by the following mental health
professionals: Gilbert Martinez, the neuropsychologist that Gross hired; Dr. James
Sullivan, a neuropsychologist that Goeke and Gransee hired; Dr. Merikangas; and Dr.
Matthew Faubian, who evaluated Applicant for the competency trial. As far as Goeke
knows, Applicant denied childhood physical or sexual abuse to all of these experts.
held to fault for failing to supervise the mitigation investigation, to the extent there was actually such
an investigation.
But holding counsel responsible for overseeing the mitigation investigation is not like, for
example, holding an attorney responsible for the specific tests a neuropsychologist decides to
administer to a criminal defendant. That kind of decision would reasonably be deemed outside most
attorneys’ expertise and the very thing for which one relies on a mental health expert. In contrast,
the decisions involved in Applicant’s case were common-sense and appropriate for an attorney to
guide: Who else could they talk to besides Applicant and his mother to learn details about
Applicant’s formative period? What kinds of records could they obtain that might also lend such
insight? Did the information they already had, such as the discovery they received from the State,
provide any clues? An attorney overseeing a mitigation investigation could formulate and pose these
kinds of questions to a mitigation specialist and then, based on the answers, give the mitigation
specialist instructions about how far to pursue the inquiry.
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IV(G)(1)(g) — Kathryn Kase
Kase testified that Gransee, whom she knew from law school, and Goeke
attended a capital defense training she was teaching, after which they consulted with
her about Applicant’s case. She was aware of Applicant’s case because TDS staff had
seen a news article describing Applicant’s courtroom outburst when he was still
represented by the initial trial team of Gross and Del Prado. By the time Kase met with
Goeke and Gransee, Goeke had already identified a defense—automatism—and
secured an expert.
Kase said she was concerned from the start, and she told them they need to back
up and complete their mitigation investigation. It was clear from Goeke’s comments
that the mitigation investigation had not been done. Goeke’s information signaled to
her that Applicant had been abusing alcohol and might be addicted to prescription
drugs. Further, Goeke reported that Applicant continually spoke of suicide.
Applicant’s substance abuse suggested that he was numbing himself to something,
such as underlying trauma, and Kase thought it critical to investigate that. She thought
Applicant’s suicidality also signaled a traumatic history. And then there was
Applicant’s courtroom outburst, which suggested an impulsivity and lack of
self-control that could reflect a mental health issue. However, Goeke seemed
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uninterested in evidence that might conflict with the automatism defense. It became
a continual theme between them for Kase to urge further investigation and for Goeke
to be disinterested in doing so.
Goeke reported to Kase that Applicant and Applicant’s mother, who was
paying Goeke, did not want a mitigation investigation, and he also expressed concern
that such an investigation might uncover information that would lead their expert
witness to conclude that Applicant was not in an automatistic state at the time of the
offense. Kase specifically told Goeke that the ABA and Texas guidelines required him
to do a mitigation investigation, regardless of Applicant’s and his mother’s wishes and
regardless of whether it weakened the automatism theory.
Kase did not recall Goeke mentioning Applicant’s father, Applicant’s abusive
childhood, or the possibility that a neighbor might have sexually abused Applicant.
Kase said that information about possible sexual abuse would have been “a big red flag
for [her].”
To the extent Goeke testified that Kase seemed to approve of their choice of an
automatism defense, Kase disagreed. She asserted that she kept telling trial counsel
that they needed to conduct a thorough mitigation investigation before settling on a
defensive theory. She testified that she never suggested to trial counsel that they had
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sufficiently investigated Applicant’s history and mental health, and she never
suggested that trial counsel should not pursue independent avenues of investigation
that were available to them, like getting criminal and medical records for Applicant’s
father. Kase testified that she affirmatively urged Goeke to seek a continuance so they
could more thoroughly investigate Applicant’s past.
Kase was baffled by Goeke’s choice to limit Gransee’s contact with Applicant
for so long. Kase opined that it was important for each member of the trial team to
meet individually with the client because the client might develop better rapport with
different members of the team.
Goeke did not tell Kase that he did not hire a mitigation investigator for more
than two years, and when Byington was re-hired, Goeke did not reveal to Kase the
limited nature of Byington’s work. Kase did not even recall knowing that Byington
was working on Applicant’s case. On cross-examination, Kase agreed that Byington
is a well-known and experienced mitigation specialist, but she said “[i]t depends”
when asked if Byington was “of high regard[.]”
After Applicant was sentenced, Kase recruited habeas counsel for his case
because she thought that trial counsel should have raised the issue of Applicant’s
competency to stand trial earlier, and she questioned the constitutional adequacy of
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the mitigation investigation.
On cross-examination, Kase resisted the suggestion that a death sentence was
inevitable because the victim was a police officer and the facts of the case were
horrible. Kase noted the Harris County case of Jose Quintero, who was spared the
death penalty despite similarly involving a police-officer victim and horrible facts.
IV(G)(2) — The State’s Hearing Witnesses
IV(G)(2)(a) — Drs. Skop and Fox
The State’s mental health experts from trial, Drs. Skop and Fox, testified at the
hearing. Dr. Skop and Dr. Fox disagreed with the retrospective Bipolar Disorder and
PTSD diagnoses given by Applicant’s habeas experts, as well as Applicant’s experts’
conclusion that Applicant was in the grip of Bell’s mania or delirious mania at the time
of the offense.
Dr. Skop was aware at the time of trial that Applicant’s father had been
diagnosed with Bipolar Disorder, so he was alert to Applicant’s somewhat elevated
risk of also having developed the malady. Nonetheless, after examining Applicant and
reviewing the materials made available, Dr. Skop ruled out a Bipolar Disorder
diagnosis. The additional information that Applicant provided about his background,
including his mental health history, did not change Dr. Skop’s opinion on the Bipolar
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Disorder issue. He further noted that a complete social and behavioral history is not
necessary to make a bipolar diagnosis, explaining that if someone is manic, “it’s pretty
apparent to any clinical provider and generally apparent to family and relatives that are
around them at the time.” As to PTSD, after reviewing the additional materials, Dr.
Skop opined that Applicant may have suffered from PTSD at some point earlier in his
life due to childhood trauma. When Dr. Skop examined Applicant before trial, though,
he did not endorse symptoms of PTSD. Applicant did not report having been
physically or sexually abused, but Dr. Skop agreed that it is common for victims of
sexual abuse—especially men—to not disclose the abuse.
Regarding the idea that Applicant was in a delirious mania at the time of the
offense, Dr. Skop noted that delirious mania is not a condition that the DSM
recognizes. But Dr. Skop acknowledged that extremely manic individuals can exhibit
“cognitive issues of not thinking clearly.” He explained that, in extreme cases, an
extremely manic person may become disoriented, psychotic, and catatonic. Dr. Skop
stated that it is a very extreme condition which is “blatantly noticeable” and “fairly
persistent,” meaning that it does not typically wax and wane or resolve on its own.
Applicant’s observed behavior and demeanor immediately before and after the offense
was generally inconsistent with Applicant being in a manic state, much less being in
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a state of manic delirium.
Dr. Fox’s testimony generally echoed Dr. Skop’s. The additional materials
made available in habeas proceedings did not change the opinion Dr. Fox had at trial
that Applicant was not in an automatistic state at the time of the offense. As for
delirious mania, Dr. Fox did not believe that it was a valid or recognized diagnosis.
Further, like Dr. Skop, Dr. Fox did not think the data supported a finding that
Applicant was in a manic or even a hypomanic state (hypomania being a slightly less
elevated state than mania) at the time of the offense or at any time before the offense.
Dr. Fox especially noted that Applicant’s mother, who was married to a bipolar
individual and would be familiar with its manifestations, never described or suggested
that Applicant suffered from the same illness.
IV(G)(2)(b) — Kurt Gransee
The State also called second-chair trial counsel Gransee. Gransee testified that
he and Goeke consulted with both Kase and another TDS lawyer, Carlos Garcia. They
also had mental health and medical professionals examine Applicant. The medical
professionals did things that included blood tests and brain scans. Not all of the mental
health experts who examined Applicant wrote reports that appear in the record.
Gransee and Goeke inherited a psychological report, but no medical reports of
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examinations, from the initial trial team. None of the mental health professionals who
examined Applicant reported that he said he was physically or sexually abused as a
child. None of them suggested a defense that seemed more likely to succeed than
automatism.
Gransee and Goeke came up with the automatism defensive theory because “it
seemed to fit the facts as they understood them,” noting Applicant’s asserted inability
to recall the incident, his recent head injury, and his lack of a violent criminal history.
Gransee used resources in his law partner’s office to identify their eventual expert, Dr.
Merikangas. After Dr. Merikangas had been involved for a bit, he suggested
automatism as a defense.
As far as what Applicant told Gransee about Applicant’s childhood, Gransee
testified that:
[T]here was nothing brought up about any traumatic incidences. And I
would say from talking to some of his friends, his wife, it seemed as if he
may have had some difficulties. But basically, . . . it seemed as if his
childhood was – I don’t want to say spoiled, but his parents helped him
out financially, bought him gifts, toys, motorcycle, paid for his vehicle
when he got older. So it didn’t seem like there was any real trauma – that
anybody disclosed to us.
Further, Applicant “was very against it” when they tried to prepare a
“normal” mitigation defense. “I think . . . there was a chance that during the trial, he
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would have acted very negatively to trying to . . . go that route[.] [E]ven during voir
dire, [Applicant] was very opposed to that idea.” Gransee said Applicant knew when,
during voir dire, they “started going down the path of asking questions that could be
used to determine a mitigation type juror, [and] he would become agitated that we
were doing that.”
Apparently referring to Applicant’s expressed resistance to serving a life
without parole sentence, Gransee advised Applicant that Applicant needed to make
an informed decision about whether death would be preferable. Gransee wanted Kase
to talk to Applicant about what a capital life sentence would be like, but Applicant
refused. “[H]e was just opposed to any – any thought of that.” Applicant wanted
them to take any shot possible at a not guilty [verdict], even if the chance was very
remote. “[H]e made it very clear that . . . if he didn’t get a not guilty and life in prison
[sic], he would rather die. And he maintained that” position.
Goeke met with Applicant’s mother a lot; Gransee less so. Gransee’s
impression was that the mother gave no information about Applicant’s childhood that
would in anyone’s mind “justify or cause or even make somebody commit a situation
like this. I wasn’t aware of any type of abuse.” Gransee did acknowledge, however,
that:
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[T]here was some discussion of maybe mental health issues with the
father, some issues along those lines. . . . [T]he impression I got was that
there was some issues on that [sic]. But it was also that [Applicant] was
always well taken care of.
Gransee also opined that putting on evidence that Applicant had an abused childhood
would have increased the likelihood that the jury would find him to be a future danger.
As to whether Applicant’s mother suggested any other relatives or old friends
that trial counsel could talk to, they:
[W]ere told that there were some unknown relatives, maybe in Mexico,
but that they had really nothing of value o
This text is long and has been trimmed here. Open the source document for the complete record.