Martinez, Ex Parte Jose Noey

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,086

EX PARTE JOSÉ NOEY MARTINEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. CR-0385-95-G(1) FROM THE 370 TH DISTRICT COURT

OF HIDALGO COUNTY

Hervey, J., filed a concurring opinion in which Keller, PJ., Johnson , and Keasler,

JJ. , joined.

CONCURRING OPINION

I concur in the court's judgment. Applicant claims that trial counsel was constitutionally

ineffective (1) for not more vigorously pursuing a mitigation defense based on applicant's voluntary

intoxication at the time of the offense and for inadequately investigating and not discovering non-offense-related evidence of applicant's "troubled" childhood. The constitutional claim is that this

"mitigating" evidence might have, from the standpoint of at least one juror, somehow reduced

applicant's moral and personal culpability for brutally murdering and sexually assaulting a 68-year-old woman and her blind, 4 1/2-year-old granddaughter. (2)

Applicant's trial counsel provided testimony at the habeas hearing describing his punishment

theory at applicant's trial:

Q. [APPLICANT'S HABEAS COUNSEL]: -what would-what was your punishment

theory at trial? What theory of defense did you have with regards to the jury? Why

should they not assess the death penalty against [applicant]?

A. [APPLICANT'S TRIAL COUNSEL]: There was an issue of his age, even though

he was 18, he was still a young man. There was an issue of whether or not he was

diminished to some extent because of the ingestion of some substance. There was

an issue of whether or not there were psychological concerns, but not so much

psychological, so much as emotional that were involved.

There were some questions that we had going in on whether or not there was some

background, family background problems. We didn't have an awful lot of

information about that. It just depended on what came in.

Q. Was physical abuse an issue?

A. Physical abuse was a concern. Physical abuse was something that was discussed,

but we didn't really have much about?

Q. What do you mean about, not having "much about"?

A. Somebody has to be willing to tell you. You have to have a witness. You have

to have something.

Q. Was sexual abuse an issue?

A. Sexual abuse was something that we considered and discussed and were

concerned about, but we had no information about.

The habeas record reflects that applicant's mother did not plan to testify on applicant's behalf

at the punishment phase of his capital murder trial. In the middle of applicant's trial, the mother was

finally persuaded to testify by one of applicant's lawyers. The mother came to applicant's trial with

one of applicant's brothers and an aunt. Trial counsel briefly met with them in the hallway outside

the courtroom. Trial counsel decided not to have the aunt testify because she had alcohol on her

breath, her speech was a little slurred and she "didn't really have much to say at the time."

Applicant's mother and brother testified very briefly at the punishment phase of applicant's

trial. They testified that applicant's mother abandoned applicant and the brother when they were

young and that they lived with their physically abusive grandparents for five years. The State does

not dispute the assertion in applicant's brief that the brother's testimony "relating to his and

Applicant's experiences living with their grandparents constitutes 31 words; his actual description

of the conditions of abuse constitutes eight words." These were the only witnesses to testify for

applicant at the punishment phase of his trial.

The habeas record reflects that habeas counsel's post-conviction investigation of applicant's

background uncovered significantly more evidence than that presented at applicant's trial. This post-conviction investigation turned up new evidence of applicant's "troubled" childhood, including

evidence of physical and sexual abuse by his mother, which meets Tennard's low threshold for

constitutionally relevant mitigating evidence. See Tennard , 542 U.S. at 285. This new evidence is

based on affidavits of three people who were not interviewed by applicant's trial counsel. This new

evidence is also based on an affidavit of applicant's brother, who provided "more detailed facts about

his and Applicant's upbringing" than he did when he testified at applicant's trial, and an affidavit

of the aunt, who had alcohol on her breath at applicant's trial. This new evidence is also based on

an affidavit by a licensed "investigator/mitigation-specialist" (Milstein). Milstein's affidavit also

states that she needs more money to do a more complete and thorough report.

Applicant's trial counsel testified at the habeas hearing about his pretrial investigation of

mitigating evidence on applicant's background which included an investigation of whether applicant

had been physically or sexually abused. Applicant's trial counsel testified that he spoke with many

but not all of applicant's relatives, none of whom mentioned anything about applicant being

physically or sexually abused. Applicant's trial counsel testified that applicant's mother was very

uncooperative and not forthcoming with any information of physical or sexual abuse. Applicant's

trial counsel also spoke by telephone with the aunt who came to applicant's trial with alcohol on her

breath. This aunt provided no information that applicant may have been physically or sexually

abused. The record is not clear on whether applicant's trial counsel spoke with the brother before

applicant's trial. The record supports a finding that the brother failed to mention anything about

physical or sexual abuse when he spoke to applicant's trial counsel before testifying at applicant's

trial. (3)

Applicant's trial counsel did not seek out the assistance of any social workers or "mitigation

specialists," and he did not have anyone prepare a formal "social history" of applicant.

Q. [APPLICANT'S HABEAS COUNSEL]: Did you have any social workers

assisting you?

A. [APPLICANT'S TRIAL COUNSEL]: No.

Q. Mitigation specialists? Have you ever heard of mitigation specialists?

A. Sure.

Q. Did you use anyone in this case?

A. I didn't know of mitigation specialists back then. I think that it is a new specialty

that people are outdoing [sic] money now.

Q. Have you ever used-

A. No.

* * *

Q. I believe you said a minute ago-well, let me ask you this. Did you or anyone at

your direction prepare a social history of [applicant]?

A. A social history, no.

Q. A social history. Okay. Did you or anyone, as part of the defense team, prepare

any kind of summary of the mitigating factors, of [applicant's] background,

character, health, at the time of the offense?

A. A formal?

Q. Formal. Formal.

A. Formal, no, certainly not.

Applicant's trial counsel testified that applicant was not forthcoming with evidence of

physical or sexual abuse either to him or to the psychologist (Alamia) appointed by the court to assist

the defense. (4) Alamia filed an affidavit in this habeas proceeding. Alamia's affidavit states:

"In the matter of [applicant], I was appointed by the court to assist the trial team in

assessing whether or not [applicant] was mentally retarded, competent to stand

trial/not insane and whether or not there was any other presenting problem that would

explain his behavior ( i.e., if he had been physically/sexually abused).

With reference to this latter point, a developmental history and assessment for abuse

was conducted on [applicant]. The results yielded no indication that he had been

abused and he also denied any history of sexual or physical abuse; however, he did

state that he abused alcohol and drugs. A follow up investigation into this matter was

conducted through telephonic conference discussions with the biological mother and

step father. Efforts to meet with the biological father to discuss these issues proved

futile ( i.e., he refused to meet with me). After having done this, it was concluded

that, there was no conclusive data to substantiate that he had been abused.

A clinical interview to assist in determining his mental status revealed that his

thought process was coherent, logical and relevant. He had no delusions or

hallucinations and his cognitive function was found to be alert. He was also oriented

to person, place, time and situation. He was not insane at the time of his act.

A Wechsler test of intellectual functioning was also administered and its results

indicated that he had a fair fund of knowledge and although his scores were

borderline to low average, it was commensurate with his deficient academic

achievement and learning difficulties that were reported in school records that were

provided and reviewed for this matter.

I was also asked to work on the jury questionnaire and to work with [applicant] and

prepare him in case he was to testify on his behalf. In the latter regard we reviewed

video tapes of the crime scene and discussed the various statements he had made

about this incident. At no time during all of the aforementioned efforts did

[applicant] show any signs of being impaired in any fashion. He was able to

understand his legal situation, charges against him, facts relevant to his case, legal

issues and procedures in his case as well as the legal defenses available to him. Thus,

[applicant] was not found to be mentally retarded, competent to stand trial [sic]/not

insane and no evidence was found to support the fact that he had been

physically/sexually abused."[ (5) ]

Applicant's trial counsel testified that applicant was not forthcoming to him with any

allegations of physical or sexual abuse other than saying that his mother was "rough with him."

Habeas counsel also questioned trial counsel on the difficulty that young males might have

discussing allegations of physical and sexual abuse.

Q. [APPLICANT'S HABEAS COUNSEL]: Could I ask you a question. In your

experience, you have dealt with these issues before, have you not, of dealing with

sexual abuse?

A. [APPLICANT'S TRIAL COUNSEL]: Yes.

Q. Is it strange that sexual abuse has been very difficult to obtain from someone?

A. Sure.

Q. Is it also fair to say that actually with young males, perhaps the issue of sexual

abuse might be somewhat shameful, and might be a little less reluctant to reveal that?

A. Sure.

Applicant's habeas counsel also questioned applicant's trial counsel about American Bar

Association standards and an attorney's obligation to independently investigate evidence of physical

and sexual abuse when the client is not forthcoming about these matters.

Q. [APPLICANT'S HABEAS COUNSEL]: Did you-do you understand, sir, do you

agree or disagree that sometimes-well, let me back up here. Do you agree or

disagree that in order to perform a competent investigation, a competent pretrial

investigation, you have to go beyond simply the matters that the client may tell you?

A. [APPLICANT'S TRIAL COUNSEL]: My experience in criminal law tells me,

yes, you need to go past what your client tells you. They tend not to tell you

everything, yes.

Q. For whatever reasons, they keep things to themselves?

A. Various reasons they do, yes.

Q. They don't understand certain things that might be mitigating, correct?

A. Sometimes they don't, yes.

Q. All right. And so in order to basically to present the best picture possible

regarding the client's background, character, any aspect which is mitigating, you need

to perform as thorough a background investigation as possible before you start

making a decision as to what to present, correct?

A. Theoretically, sure.

Q. That is sort of the ideals, once you hear that?

A. Ideals are one thing, but you have to deal with what you have in your pockets, yes.

Q. Are you a member of the American Bar Association?

A. Not anymore. I think I was a while back.

Q. Are you familiar with the American Bar Association Standards for Criminal

Justice?

A. I have read them.

Q. You have read them. So you are familiar with them, then?

A. Yes, I'm familiar with them.

Q. And you are aware that standard 4-4.1, deals with the Duty to Investigate?

A. Sure, I don't remember the exact number, but there is a Duty to Investigate.

Q. And you are familiar with that standard, right?

A. In the sense that?

Q. Generally.

A. In the sense that I read it, yes.

Q. And that standard is basically saying that you need to do a thorough investigation,

going beyond what the client tells you?

A. Yes.

Q. Would you agree with me, that sort of the industry standard as reflected by the

ABA, is to do a complete background investigation as possible before you start

making a defensive theory in deciding what to present?

A. I'm not sure what industry, but if you are saying that you need to do as thorough

an investigation as you can.

Q. How about the defense bar?

A. The defense bar tries to do as thorough an investigation as they can, yes.

Q. Would the ABA standards suggests [sic] that the defense bar should do that, that

that should be the industry standard?

A. The ABA sets a standard that they think is a good ideal, yes.

Q. Sir, have you read a case called, Wiggins versus Smith ?

A. Sounds familiar.

Q. Okay. Have you read a case called, Williams versus Taylor ?

A. I don't recall.

Q. Okay. Have you heard a case called, Strickland versus Washington ?

A. Yes.

Q. And in Strickland versus Washington , the Supreme Court used the ABA standards

as a measure of objectively reasonable defense practice, correct?

A. I think so. I mean, I haven't read it for a while, but I believe so. I had to deal with

the effective assistance and all that, and it has been a while.

Q. Would you argue with me that if I tell you under Wiggins versus Smith and

Williams versus Taylor , the Supreme Court also cites to the ABA standard with

regards to what is required for of a lawyer to investigate prior to going to trial?

A. Would I argue with you, no, I would not argue with you.

* * *

Q. And according to the ABA standards, you need to dig pretty darn deep, correct?

A. Well, you know, it is, like, deep. How deep do you want to drill before you figure

out you have not hit oil? You need to dig.

In deciding whether applicant's trial counsel exercised "reasonable professional judgment"

in his mitigating evidence investigation, it is necessary to objectively review his performance and

measure it for "reasonableness under prevailing professional norms," which "includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time."

See Wiggins , 539 U.S. at 522-23 (internal quotes omitted). The record fairly reflects that applicant's

trial counsel, as seen from his perspective at the time, could reasonably have decided that any further

investigation of applicant's background for evidence of a "troubled" childhood would not turn up

anything based on trial counsel's interviews with applicant, his uncooperative mother, the other

relatives, and the psychologist (Alamia). These sources provided no information regarding a

"troubled" childhood that "triggered an obligation to look further." See Wiggins , 539 U.S. at 519

(discussing federal district court's conclusion that counsel's knowledge of defendant's background

"triggered an obligation to look further") and at 525 (scope of counsel's investigation into

defendant's background unreasonable in light of what counsel had discovered about the defendant's

background from other sources).

That this Court, in hindsight, could conclude that a different investigation by applicant's trial

counsel might have discovered the evidence of applicant's background discovered by habeas counsel

is not the standard and is not dispositive of applicant's ineffective assistance of counsel claim. See

Wiggins , 539 U.S. at 523 (requiring that every effort be made to eliminate the distorting effects of

hindsight). (6) Several of the habeas court's findings are worth noting and are set out here:

332. This Court finds that the hindsight affidavits attached to Applicant's application

for writ are hardly accurate descriptions concerning what mitigation testimony was

available to Applicant's trial attorneys at the time that this case was being prepared

for trial and then tried.

333. Instead, as shown by [applicant's trial counsel's] affidavit, which this Court

finds credible, Applicant's Houston family members were actually, at the time, very

uncooperative with defense counsel and were hardly willing to come to the Rio

Grande Valley to testify for Applicant.

* * *

344. This Court further finds that it is easy for Applicant, his habeas attorney, and an

investigator hired by said attorney to go to Applicant's family members and friends

after Applicant has been sentenced to death and ask them if they would have testified

at his trial in order to keep him from receiving such a sentence and that it is also easy

for those thus contacted to now say that they would have testified on Applicant's

behalf.

345. However, the credible affidavit testimony by Applicant's trial attorneys shows

that what Applicant's family members and friends now say with the benefit of 20-20

hindsight does not accurately describe their views at the time Applicant was tried.

346. Said credible information concerning the attitude of Applicant's family

members and friends at the time instead shows that the situation which counsel faced

at the time of trial was far different than the rosy picture of available, cooperative

family members and other defense-favorable witnesses which is presented in the

affidavits attached to Applicant's application for writ.

347. In fact, it shows that Applicant's family members had actually been

uncooperative with his trial attorneys, unwilling to testify on his behalf, and

unconcerned with the prospect of Applicant receiving a death sentence.

Most importantly, a defendant (such as applicant) accused of a death-penalty offense has

some obligation to assist his trial counsel in investigating his background information. When such

a defendant is not forthcoming with this information, (7) he risks that it will not be presented at his trial.

The following discussion from Strickland , 466 U.S. at 691, greatly disposes of any claim that

applicant's trial counsel did not adequately investigate applicant's background for evidence of a

"troubled" childhood, including physical and sexual abuse:

The reasonableness of counsel's actions may be determined or substantially

influenced by the defendant's own statements or actions. Counsel's actions are

usually based, quite properly, on informed strategic choices made by the defendant

and on information supplied by the defendant. In particular, what investigation

decisions are reasonable depends critically on such information. For example, when

the facts that support a certain potential line of defense are generally known to

counsel because of what the defendant has said, the need for further investigation

may be considerably diminished or eliminated altogether. And when a defendant has

given counsel reason to believe that pursuing certain investigations would be fruitless

or even harmful, counsel's failure to pursue those investigations may not later be

challenged as unreasonable. In short, inquiry into counsel's conversations with the

defendant may be critical to a proper assessment of counsel's investigative decisions,

just as it may be critical to a proper assessment of counsel's other litigation decisions.

(Citation omitted).[ (8) ]

Finally, any constitutionally deficient performance by trial counsel in failing to more

vigorously pursue a mitigation defense based on applicant's voluntary intoxication at the time of the

offense (9) and to further investigate applicant's background did not prejudice applicant. See Wiggins ,

539 U.S. at 534 (prejudice assessed by reweighing the evidence in aggravation against the totality

of available mitigating evidence). Evidence was also presented at applicant's trial that, while in the

county jail awaiting trial for this offense, applicant and another county-jail inmate wrote a letter to

President Clinton threatening, in rather vulgar language, to kill him and rape his wife and daughter.

When a U.S. Secret Service Special Agent questioned applicant about the letter, applicant admitted

that he wrote the letter, and he "reiterated every sentiment expressed in the letter." (10) The habeas

court's findings summarize this letter.

Those items say that the author was writing to the "fucking president": that his name

is [applicant]; that he and his friend Jamie Charles Nunn were going to kill the

President; that he was going to "fuck" the President's daughter; that he wanted the

President to see him "fuck" his wife and his "stupid ass" daughter; that they were

then going to kill the President or "blow (up)" the White House: and that he and his

friend were in jail. (R. XLIV-92). They then say that Applicant just wanted the

President to know what was going to happen to "the mother-fucker"; that he and

Nunn wanted to do "that" but were locked up; that he had gotten some guys that

work for them who would do it; that he was 18-years-old and his friend Jamie was

19; that they had connections and wanted to kill the President; and that Applicant and

Jamie were then going for the Vice-President too. (R. XLIV-92).

The exhibits then states [sic] that Applicant hates the President; that the President is

not doing a "fuck thing"; that he wants the President's daughter to feel "my dick in

her mouth" and his wife too; that Applicant must close the letter; and that "we" just

want the President to die. (R. XLIV-92). They also indicate that the letter was

signed "Your friend ( sic ), [applicant] and Jamie Charles Nunn" and that a second

page stated "I do not fuck around. I want him dead". (R. XLIV-92-93).

The State also presented some powerful victim-impact evidence. The habeas court's findings

summarize this evidence. For example,

Patricia Palomo said that she had not believed what was happening when she came

into her mother-in-law's house and saw her mother-in-law and her daughter; that she

couldn't believe that it was happening to her mother-in-law and her baby; that

Amanda was everything to her; and that it was very difficult for her to have children,

as she could not carry them full term. (R. XLIII-23-24). She also said that she had

lost her first baby; that Amanda had then been born prematurely and had not been

expected to live; that she felt that she had failed to protect Amanda like she was

supposed to; and that she wakes up every day, wants to start to fix Amanda breakfast

and get her ready for school, and then stops and wonders what she is doing. (R. XIII-24-25).

Ms. Palomo then explained that she has been in denial that Amanda is dead; that she

wanted it to be the same as it was before; that she would always reassure Amanda

that she would always protect her; that she cannot live without her baby and wishes

she was dead; and that she had thought about suicide, but had decided not to kill

herself since her faith taught her that suicide would keep her from seeing Amanda in

heaven. (R. XIII-25-26).

This witness then stated that she had first heard the details of what had happened

while listening to the prosecution's final argument; that she could not believe that a

person could do that to another human being and a baby; that she could not believe

what she was hearing about what her baby had gone through; that she had wished that

it had happened to her; and that she could not believe the way the victims were killed.

(R. XLIII-26-27).

The totality of the available mitigating evidence does not outweigh the evidence in

aggravation. See Wiggins, 539 U.S. at 534. There is no reasonable probability that applicant's

"troubled" childhood evidence would have caused anyone on applicant's jury to answer the special

issues any differently than they did at applicant's trial in light of the brutal nature of this offense,

applicant's subsequent threats of more rape and murder and the other circumstances. See id .;

compare Miniel v. Cockrell , 339 F.3d 331, 347-48 (5 th Cir. 2003), cert. denied , 540 U.S. 1179 (2004)

(petitioner's "past violent behavior would overwhelm any of the proposed mitigating evidence [of

petitioner's 'rough' childhood] in determining future dangerousness. . .[petitioner] has failed to

present 'evidence of sufficient quality and force to raise a reasonable probability that, had it been

presented to the jury, a life sentence would have resulted'").

With these comments, I concur in the Court's judgment to deny habeas corpus relief.

Hervey, J.

Filed: June 28, 2006

Publish

1. See generally Strickland v. Washington , 466 U.S. 668 (1984).

2. See Wiggins v. Smith , 539 U.S. 510, 535 (2003) (evidence about a defendant's background

and character is relevant because of the belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background may be less culpable than

defendants who have no such excuse) (internal quotes omitted) quoting in part Penry v. Lynaugh ,

492 U.S. 302, 319 (1989) (underlying Supreme Court's mitigation jurisprudence "is the principle

that punishment should be directly related to the personal culpability of the criminal defendant. If

the sentencer is to make an individualized assessment of the appropriateness of the death penalty,

'evidence about the defendant's background and character is relevant because of the belief, long held

by this society, that defendants who commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be less culpable than defendants who have

no such excuse.'"); see also Tennard v. Dretke , 542 U.S. 274, 285 (2004) (constitutionally relevant

mitigating evidence is evidence that sentencer could reasonably find warrants a sentence less than

death).

3. Contrary to the testimony of applicant's trial counsel at the habeas hearing, Milstein states

in her affidavit, which relies heavily on statements by applicant, his mother, his brother and the aunt:

We have concluded from the investigation, however, that [applicant's] trial counsel

only contacted and interviewed three witnesses-[the mother], [the brother] and [the

aunt]. Of these three, only [the mother] was interviewed to a significant extent. [The

brother], who testified, was never contacted prior to trial, and was only interviewed

briefly right before he testified. [The aunt] was contacted a number of times by

telephone, but was only interviewed interviewed [sic] to any extent the day of trial.

[The aunt] did not testify at trial.

4. Evidence was presented at the habeas hearing that Alamia has a PhD. and teaches psychology

at a local university. Evidence was also presented at the habeas hearing that Alamia is not licensed

to practice psychology by the Texas Board of Standards and Professional Counseling and that

Alamia "should not be working outside the university setting."

5. Applicant's trial counsel testified that Alamia did not provide any kind of written report.

6. For example, we note from Milstein's affidavit that applicant's new evidence of a "troubled"

childhood relies heavily on statements by applicant and his mother who apparently are more

forthcoming now than they were before applicant's trial. See also Wiggins , 539 U.S. at 523-24

(counsel's duty to investigate further based, in part, on defendant's "description of his own

background as 'disgusting,' and observing that he spent most of his life in foster care").

7. The habeas record in this case supports a finding that applicant was not forthcoming with

evidence of his "troubled" childhood.

8. Habeas counsel suggested at the habeas hearing that ABA standards require "a thorough

investigation, going beyond what the client tells you." Strickland , however, states that ABA

standards "are guides to determining what is reasonable, but they are only guides." Strickland , 466

U.S. at 688 ; see also Wiggins , 539 U.S. at 524 (same but deleting the language "but they are only

guides"). It does not appear that Strickland was intended to empower the American Bar Association,

by promulgating new ABA standards, to negate portions of Strickland and the Constitution. And,

despite Wiggins ' deletion of Strickland's "but they are only guides" language, Wiggins still retains

Strickland's language that ABA standards "are guides to determining what is reasonable." See

Wiggins , 539 U.S. at 524 . (Emphasis added).

9. I agree with the Court's ultimate conclusion that counsel was not deficient for failing to

present a mitigation case based on temporary insanity caused by applicant's voluntary intoxication.

Several of the habeas court's findings on this issue are also set out:

275. After all, reliance on the theories Applicant and habeas counsel say trial counsel

should have urged would have involved telling the jury that it should consider the

fact that Applicant had taken rohypnol on the night in question as a factor mitigating

against the death penalty for killing a 68-year-old widow and her blind 4-and-a-half-year-old granddaughter because the drug made him temporarily insane; that he had

thus not understood or appreciated the wrongfulness of his conduct; and that the

rohypnol may have even caused aggressive behavior or a "rage reaction."

276. Such an argument would have also forced counsel to try to explain how

Applicant, though allegedly temporarily insane and not able to comprehend the

wrongfulness of his conduct, was nonetheless coherent enough to repeatedly mention

the need to go back to the scene and recover the weapon he had left behind.

277. A competent attorney could certainly take the position that any attempt to argue

those theories would backfire on the defense by making the jury believe that

Applicant and his attorneys were simply trying to explain away his unconscionable

behavior and escape the consequences of his actions.

278. Such an attorney could also adopt the view that such evidence of voluntary

intoxication on rohypnol would be viewed by the jury as an aggravating

circumstance, rather than a basis for mitigation.

10. The relevant portion of this Court's opinion on direct appeal states:

At the punishment phase of trial, U.S. Secret Service Agent Juan Landa testified that

he went to [sic] Hidalgo County jail to question [applicant] about a letter he had

written wherein he threatened to kill the President and rape his wife and daughter.

(Footnote omitted). Another inmate also signed the letter. While questioning

appellant, Landa obtained a written statement from him in which he admitted writing

the letter and reiterated every sentiment expressed in the letter. In a hearing outside

the presence of the jury, it was brought out that Landa had generated a report on the

incident which apparently concluded that appellant felt little to no remorse about the

instant capital murder. Landa was not questioned about this report nor was it

otherwise brought before the jury.

Martinez v. State , slip op. at 47-48 (Tex.Cr.App. No. 72,704, delivered June 30, 1999) (not

designated for publication).