# Appendix — Medellin v. Dretke > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2005 - **Citation:** 544 U.S. 660 ## Text Supreme Court of the United States 2. JOSE ERNESTO MEDELLIN, Petitioner, DouG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT APPENDIX TO PETITION FOR A WRIT OF CERTIORARI GARY TAYLOR DONALD FRANCIS DONOVAN P.O. Box 90212 Counsel of Record Austin, Texas 78709 CATHERINE M. AMIRFAR (512) 301-5100 THOMAS J. BOLLYKY DEBEVOISE & PLIMPTON LLP MIKE CHARLTON 919 Third Avenue P.O. Box 1964 El Prado, New Mexico 87529 prt New York 10022 (505) 751-0515 Attorneys for Petitioner ee TABLE OF CONTENTS Medellin v. State, Order, No. 71997 (Tex. Crim. App. Mar. 19, 1997)............. Ex parte Medellin, Order, No. 50191-01 Cee Cee. ROD. CHL. Fp BOOED cc dicccvcccess Ex parte Medellin, Order, No. 675430-A (339th Dist. Ct. Jan. 22, 2001)............... Medellin v. Cockrell, Civ. No. H-01-4078 i ewan Medellin v. Dretke, 2004 U.S. App. LEXIS 9912 Cee Gee NE Ay ORs a ceceicnesevivesccsess Constitutional, Treaty, and Statutory OE HPO cidiccnscceesccdacsccende Torres v. Oklahoma, Case No. PCD-04-442 slip. op (Olka. Crim. App. May 13, 2004) .. Harris County Pre-Trial Services Agency, DOTORGAR IMTETVIEW ....... 0 ccccvccccccesvncvens Affidavit of Manuel Perez Cardenas, the Consul General of Mexico, filed in support of state post-conviction application for a WEEE GE REDON COTIOE ios ikke devcccidvesscccsee Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 I.C.J. No. 128 (March 31; EP ag ccdtasduderenncddacaducuctbatvaobeebdennses PAGE la 119a la MANDATE FROM COURT OF CRIMINAL APPEALS Austin, Texas THE STATE OF TEXAS, TO THE 339TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY - GREETINGS: Before our COURT OF CRIMINAL APPEALS, on the 30th day of April A.D. 1997 the cause upon appeal to revise or reverse your Judgment between JOSE ERNESTO MEDELLIN, —_—vs.— ~ THE STATE OF TEXAS, CCRA No. 71,997 Tr. Ct. No. 675430 was determined: and therein our said COURT OF CRIM- INAL APPEALS made it’s order in these words: “This cause came on to be heard on the transcript of the record of the Court below, and the same being con- sidered, because it is the Opinion of this Court that there was no error in the judgment, it is ORDERED, ADJUDGED AND DECREED by the Court that the judg- ment be AFFIRMED, in accordance with the Opinion of 2a this Court, and that the appellant pay all costs in this behalf expended, and that this Decision be certified below for observance.” . | The Appellant's Motion for Rehearing is Denied. WHEREFORE, We command you to observe the Order of our said COURT OF CRIMINAL APPEALS in this behalf and in all things have it duly recognized, obeyed and executed. WITNESS, THE HONORABLE MICHAEL J. MCCORMICK, Presiding Judge of our said COURT OF CRIMINAL APPEALS, with the Seal thereof annexed, at the City of Austin, this 16th day of May A.D. 1997. TROY C. BENNETT, JR., Clerk BELVA MYLER, Deputy Clerk ee ee 3a Appeal from HARRIS County No. 71,997 JOSE ERNESTO MEDELLIN, Appellant —Y.— THE STATE OF TEXAS, Appellee OPINION Appellant, Jose Ernesto Medellin, was convicted in September of 1994 of a capital murder committed in June of 1993. TEX. PENAL CODE ANN. §19.03(a)(2). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2-(e), the trial judge sentenced appellant to death.' Article 37.071 § 2(g). Direct appeal is automatic. Article 37.071 § 2(h). We will affirm. Appellant raises nine points of error, including chal- lenges to the sufficiency of the, evidence at both stages of trial. In his first point of error, appellant asserts that this cause should be abated and remanded to the trial court for the trial judge to enter written findings of fact and conclusions of law regarding the outcome of a hear- ing on the voluntariness of appellant's confession as required by Article 38.22 § 6 of the Texas Code of Crim- Any subsequent references to Articles are to those in the Texas Code of Criminal Procedure unless otherwise indicated. 4a inal Procedure. Because this has been done, appellant's first point of error is now moot.’ . A recitation of the facts will be helpful in addressing the remaining points of error. Looking at the evidence in the light most favorable to the jury’s verdict, the record reveals the following facts: On the night of June 24, 1993, a gang called the “Black and Whites” had come together to initiate a new member, Raul Villareal. The other gang members present were appellant, Peter Cantu, Roman Sandoval, Efrain Perez, and Sean O’Brien. Roman's brother, Frank, and appellant's fourteen-year- old brother, Venancio, were also tagging along. The ini- tiation involved fighting each member of the gang for a five to ten minute period. After the fighting was over, Raul was welcomed into the gang. Meanwhile, fourteen-year-old Jennifer Ertman and sixteen-year old Elizabeth Pena were visiting a girl- friend. Around 11:15 p.m., Jennifer and Elizabeth decided to head for their respective homes by way of a shortcut across the railroad tracks. Jennifer and Eliza- beth first encountered Roman and Frank as they made their way home, but managed to pass the brothers with- out incident. However, as they passed appellant, he attempted to engage Elizabeth in conversation. When Elizabeth tried to run from appellant, he grabbed her and threw her to the ground. Elizabeth screamed for Jennifer to help her. In response to her friend's cries, Jennifer ran back to help, but Peter and Sean grabbed her and threw her down as well. At this point, the Sandoval brothers decided that it was time to leave. This cause was abated on May 8, 1996, pursuant to Tex. R. App. Proc. 40(b)(2). See Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995). The requested findings of fact and conclusions of law were thereafter forwarded to this Court. The trial court having com- plied with our order, we now continue the appeal of this cause. 6 et ee les, AE et Sa Subsequent boastful statements of appellant and other gang members revealed that what ensued was a brutal gang rape of both of the girls. After the girls were thrown to the ground, the gang members orally, vagi- nally, and anally raped both of them. After the assault, appellant, Raul, Efrain, and Peter regrouped at Peter's house where he lived with his brother and sister-in-law, Joe and Christina Cantu, to brag about their exploits. Christina noticed that Raul was bleeding and that Efrain, had blood on his shirt. She asked the group what had occurred and appellant responded that they “had fun” and that their exploits would be seen on the television news. Appellant was hyper, giggling, and laughing. He boasted to Joe and Christina that the group had met two “hos” [sic] and had sex with them. He also told the cou- ple that two girls had been talking to them and that he punched one of the girls because she had started scream- ing after he grabbed her. Appellant related to Joe and Christina that he sexually assaulted one of the girls and bragged about having “opened” her since she had apparently been a virgin. As if to accentuate his conquest, appellant showed Christina his blood soaked underwear. Appellant related that after another gang member sexually assaulted the second girl, he “turned her around” and anally raped her. Appellant also bragged of having forced both girls to engage in oral sex with him. Peter joined the group shortly there- after and began to divide up the money and jewelry that had been taken from the two girls. Peter gave appellant a ring with an “E” design on it so that he could give it to his girlfriend, Esther. ; When Christina asked the group what happened to the girls, appellant told her that they had been killed so that they could not identify their attackers. Appellant then elaborated that it would have been easier with a gun, but ~~> —— 6a because they did not have one at the scene of the inci- dent, he took off one of his shoelaces and strangled at least one of the girls with it.‘ Both Joe and Christina noted that appellant complained of the difficulty group encountered in killing the girls. After appellant related the difficulty he encountered in strangling one of the girls, he said that he put his foot on her throat because she would not die. ; Christina subsequently convinced her husband to report the incident to the police. By the time the bodies were discovered, they were so badly decomposed that dental records were required to identify them. However, enough tissue remained for the medical examiner to determine that each girl had died of a trauma to the neck consistent with strangulation. Eventually, all of the individuals who participated in the rapes and murders were apprehended. After appellant was arrested, he gave a written and then an oral, tape- recorded statement, the latter of which was never offered into evidence at trial. In the written statement, appellant admitted to having had oral sex with Elizabeth, but com- mented that he only peripherally participated in her mur- der. At the punishment stage of trial, appellant's parents testified that appellant had been a good student and had made good grades until he entered the sixth grade. After that point, appellant's behavior deteriorated rapidly. Appellant was suspended from middle school in the Fall , Apparently all of the gang members were talking about hav- ing killed the two girls which resulted in some degree of confusion on the part of the witnesses. However, Christina testified that she under- stood appellant to have said that he personally participated in killing both of the girls, while Joe testified that he understood appellant to have said that he strangled one of the girls while his companions killed the other girl. et te Ses a eae 7a of 1990 for “misconduct and repeated misbehavior.” In high school, appellant was well known to administrators due to his repeated disciplinary violations. In January of 1992, appellant was restrained by an assistant principal from attacking another student. Furthermore, appellant repeatedly threatened to kill the assistant principal and to “fix it” so that he could not father any more children. Appellant told the assistant principal that life meant nothing to him. (appellant) and that someday he would be featured on television or the front page of the news- paper as the result of having killed someone, “probably a cop.” In October of 1992, appellant was involved in a gang related fight at school which resulted in his expul- sion from school and subsequent placement at an alter- native school. Appellant was also known to the police. In January of 1992, police were called to a restaurant in response to a disturbance call involving a terroristic threat. When ini- tially confronted by police, appellant refused to stop or to remove his hand from his pocket. He was later found to have a .38 caliber pistol concealed in his pocket. In June of 1993, appellant was found at the emergency room of a Houston hospital where Efrain Perez was being treated for a gunshot wound. Testimony from an employee of the hospital regarding a conversation the employee overheard between appellant and co-defendant Cantu indicated that the two knew who had shot Perez and that they were going to go after that individual themselves. When a police officer arrived to investigate the shooting, appellant was delligerent and uncoopera- tive. : While appellant was in jail awaiting trial on the instant offense, a search of appellant's cell turned up a 8a “shank’? which had been fashioned from a disposable razor. Another search of appellant's cell a year later, the day before punishment arguments were to be heard in the instant case, turned up another “shank” in the mak- ing. I. SUFFICIENCY OF THE EVIDENCE Appellant asserts in his sixth point of error that the evidence was legally insufficient to support the jury's guilty verdict. In reviewing the sufficiency of the evi- dence, this Court reviews all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential ele- ments of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). Appeliant concedes that sufficient evidence exists to prove his participation in the underlying offenses to the capital murder. How- ever, appellant takes issue with the sufficiency of the evidence to prove his specific intent to commit the offense of murder. He contends the evidence supporting this intent, the testimony of Joe and Christina Cantu, was more accurately attributable to appellant's co-defendants than to appellant. A review of the testimony of both Christina and Joe Cantu shows that they did indeed attribute many state- ments about the deaths of the two victims to the generic “they” encompassing the whole group. However, each witness also testified to statements attributed only to appellant. Specifically, Christina testified that appellant told her he killed the victims. In fact, she stated that appellant said that he took turns killing both of the girls. . A “shank” was described as a type of homemade or jailmade knife. er 9a Christina commented that appellant told her that “he took off his shoelace and strangled one of the girls.” Christina also told the jury that appellant related to her that he put his foot on one of the girl's throats, and she testified that appellant “said it would have been faster if he had a gun to kill them.” When Joe Cantu was asked if he remembered specifically what appellant told him about the killing, Joe responded that appellant had told him that appellant strangled one of the victims from the back and when she didn’t look like she was dead, he started stomping on her. Joe also testified that appellant commented that it would have been easier with a gun. Given the totality of the evidence, we hold that a rational trier of fact could have found appellant guilty of the offense of capital murder beyond a reasonable doubt. Point of error number six is overruled. in his seventh point of error, appellant posits that the evidence was insufficient to support the jury's affirma- tive answer to the issue on whether appellant would be a continuing danger. Article 37.071 § 2(b)(1). In review- ing whether the evidence is sufficient to support the jury's affirmative finding on the issue of future dan- gerousness, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a rea- sonable doubt that “there is a probability that (appellant] would commit criminal acts of violence that would con- stitute a continuing threat to society.” Article 37.071 § 2(b)(1); Jackson v. Virginia, 443 U.S. 307 (1979); A//- ridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, ___ U.S. ___, 114 S.Ct. 101 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the special issue. Allridge, supra. In fact, the circumstances of the crime may provide greater probative evidence of a defendant's probability rs ee eT ce em 10a for committing future acts of violence than any other factor relevant to the second special issue. /d. At trial, the jury ‘s-permitted to look at several factors in its review of future dangerousness including, but not limited to: |. the circumstances of the capital offense, includ- ing the defendant's state of mind and whether he was acting alone or with other parties; 2. the calculated nature of the defendant's acts; 3. the forethought and deliberateness exhibited by the crime’s execution; 4. the existence of a prior criminal record, and the severity of the prior crimes; 5. the defendant's age and personal circumstances at the time of the offense; 6. whether the defendant was acting under duress or the domination of another at the time of the offense; 7. psychiatric evidence; and 8. character evidence. Barnes v. State, 876 S.W.2d 316, 322 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 115 S.Ct. 174 (1994); Keet- non v. State, 724 S.W:2d 58, 61 (Tex. Crim. App. 1987) (“Keeton I”). These factors are also helpful in this Court's evaluation of this question. The facts of the instant case are brutal and barbaric enough to alone support the jury's answer to the special issue. The instant scenario began with underage drinking and fighting as a gang initiation rite. When the two vic- tims came into the picture, appellant not only took full part in violently raping both of them and killing at least one of them, but appears to have initiated those actions. lla In contrast to showing remorse afterward, appellant laughed about the incident, referred to the girls in Gerogatory terms, and enjoyed the spoils of the group's perceived conquest. In addition, appellant has a history of misconduct and violent misbehavior both in school and out, with repeated suspensions, expulsions, and arrests dating back to the sixth grade. He has a history of threatening indi- viduals with bodily harm or death and a history of being found in possession of a firearm. Before his imprison- ment, appellant chose to spend his social hours with a group of young men who engaged in illegal drinking and violent behavior. After being imprisoned, appellant con- tinued to associate himself with weapons. Given the totality of the evidence, we hold that a rational trier of fact could have believed beyond a rea- sonable doubt that “there is a probability that [appellant] would commit criminal acts of violence that would con- stitute a continuing threat to society,” whether in prison or out. Point of error seven is overruled. Il. VOIR DIRE Appellant complains in his third point of error that the trial court erred in granting the State's challenge for cause to venireperson R. L. Mackey pursuant to her views concerning the death penalty. The State contends the trial court did not abuse its discretion in granting the Chailenge for cause because the veniremember’s attitude about the death penalty would have prevented or sub- stantially impaired the performance of her duties as a juror in accordance with her oath and the instructions of the court. See Wainwright v. Witt, 469 U.S. 412 (1985): Coleman v. State., 881 S.W.2d 344, 347-48 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763 |2a (1995). In reviewing such a point of error, we apply a deferential standard because the trial court was in the best position to evaluate the responses of the venire- member. Coleman, supra. The record reveals the following pertinent exchanges: THE CourRT: Do you have any conscientious, reli- gious, moral, or philosophical scruples against the infliction of death as punishment in an appropriate case? [ VENIREMEMBER:] No. [THE COURT:] You said no, you don’t. So do you have any opposition to the death penalty? { VENIREMEMBER:] Religious beliefs. Thou shall not kill. [THE COURT:] Well, you're entitled to those; and nobody is going to disagree with you. * * * What we don’t want is someone whose beliefs are so strong that when they take an oath to foilow the law and render a true verdict according to that law, that it’s going to do violence to their conscience. ** * So, [veniremember], only you know the answer to this question. Are your religious beliefs so strong that you could not follow the oath you would have to take as a juror and render a true verdict according to the law and the evidence and if the evidence called for it, vote in such a way that it would result in the death penalty? een £0 OE Se 8 ee l3a I know that’s a mouthful. But did you understand the question? Might have been too long. [| VENIREMEMBER:] I could follow the law; but, like I say, it’s just my religious belief. The law says one thing, and the religious belief says another. [THE COURT:] Could you then participate with 1] other people in voting on these questions that we'll go over, in voting in such a way that you know would result in this defendant receiving a death sen- tence if the evidence called for it? [VENIREMEMBER:] If the evidence called for it, yes. * (THE STATE:] And when you filled out your ques- tionnaire, you stated to Question 86 — .. . that: I'm opposed to capital punishment under any circum- stances. Okay. Now, I take it, if you marked that, you had a reason for marking it, correct? [VENIREMEMBER:] Yes, I did. [THE STATE:] That’s what you believe? [ VENIREMEMBER:] Uh-huh. * * * [THE STATE:] In response to . . . Question No. 12, you said: I do not believe in capital punishment under any circumstance; and you checked that “dis- agree.” And then in response to 89, you said you don't want to be a juror in this case because of your reli- gious background, you don’t think that you could. Ida [ VENIREMEMBER:] Uh-huh, that’s what I stated. [THE STATE:] Followed by 90 that states: My Bible tells us thou shall not kill and this is my belief. * e And if you were seated on this jury with those conflicts that you are having — I'm evidencing right now that perhaps you are having some conflict about this. Am I correct? [ VENIREMEMBER:] If — if — if — yes. [THE STATE:] And only if I'm correct, ma’am. Cer- tainly. Nobody is here to try to persuade you or make you participate in this. This is fully one where you have an opportunity to say: No; that if I was called upon to participate in this trial, that my belief would substantially impair me from participating and returning a verdict of death in this case even if it was the right thing to do because of my religious belief. Is that the way you feel? [ VENIREMEMBER:] Yes. [THE STATE:] And you understand that I’m just a mere mortal man. I don’t think I have the power of persuasion and [ability to] cloud your mind like the shadow could and get you to do my deed in light of your religious belief. And if you were selected on this jury, you would be more inclined to try to find a way, if you did end up on this jury, in some man- ner or form, you would try to find a way to come up with a life sentence, would you not, if you were put in that box? { VENIREMEMBER:] That's correct. [THE STATE:] To be a juror would substantially impair you from carrying out the law, following the law in this case, because of your religious belief? You answered yes to that at one time. [VENIREMEMBER:] The reason I said yes is I have just retired. And I worked with children, young adults, and I worked with young adults which have cancer. And my daughter died of cancer and that has a total thing with me for — I would say just to be in the situation like this, so I would rather not. [THE STATE:] Well, one of the magic words, we have to have you say on the record. If it would sub- stantially impair you from doing your duty as a juror, then you've met the qualification under the law to be discharged. Would it substantially impair you — [ VENIREMEMBER:] Yes, it would. Upon continued questioning by the parties and the court, the veniremember continued to express her feelings that she did not want to participate on this jury and that she would be inclined to answer the punishment questions in such a way that appellant would receive a life sentence. Given the toiality of the voir dire, we cannot say that the trial court abused its discretion in sustaining the State's challenge for cause to the veniremember. Coleman, Supra; see also Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). Point of error three is overruled. 16a In his fourth point of error appellant claims the trial court erred in overruling his Batson’ and Article 35.261° challenges to the State's peremptory strike of venireper- son R. Rodriguez. The record reveals that after the State exercised its peremptory strike on the venireperson, appellant stated, “we'll make a Batson challenge.” Nowhere did appellant invoke the application of Article 35.261 or move for a dismissal of the array. Further- more, appellant has not separately argued the protection of 35.261 in his brief. Hence, we find any complaint as to Article 35.261 has not been preserved for appellate review. Camacho vy. State, 864 $.W.2d 524, 528 (Tex. Crim. App. 1993), cert. denied, __ U.S. __, 114 S.Ct. 1339 (1994); Tex. R. App. Proc. 52(a). With regard to appellant's Batson claim, we stated in Satterwhite v. State, 858 S.W.2d 412, 423 (Tex. Batson v. Kentucky, 476 U.S. 79 (1986). . Article 35.261 prohibits the use of peremptory challenges on racial grounds. It reads in pertinent part: (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant. facts that tend to show that challenges made by the attorney rep- resenting the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of per- suasion remains with the defendant to establish purposeful discrimination. 17a Crim. App.), cert. denied, ___ U.S. . 114 S.Ct. 455 (1993): In order to invoke the protections set forth in Bar- son, appellant must first raise an inference of pur- poseful discrimination through the State's use of its peremptory strikes. Once appellant has established such purposeful discrimination, the burden of pro- duction shifts to the prosecutor to come forward with racially neutral explanations for the strikes. Once the prosecutor has articulated racially neutral explanations, the burden shifts back to the defendant to persuade the trial court that the “neutral expla- nation” for the strike is really a pretext for dis- crimination. [Citations omitted.] This Court will reverse the trial court's resolution of a Batson issue only if the court's findings are found to be clearly erroneous. In the complained-of instance, appellant made a Batson challenge and offered the veniremember’s questionnaire as evidence. He noted that the veniremember stated that he could basically look at both sides and was generally in favor of the death penalty. After noting that this was a Batson claim and not a Wainwright v. Witt claim,’ the trial court held that a prima facie case had been estab- lished. The prosecutor then gave the following race rea- sons for striking Rodriguez: My reason for striking Mr. Rodriguez is there was a great deal of hesitation with his explanation on the death penalty when he was speaking with you. He's also for the death penalty without any compulsion whatsoever if it happened to one of his relatives. I still do not have a full understanding of his position on the death penalty. 7 469 U.S. 412 (1985) 18a With respect to the question I asked him, he gave me a philosophical — he gave a theological and Biblical and his own philosophy. One of the things put me on edge, turning the cheek, you turning the other cheek. That goes back to the philosophy if you're slapped, you turn the other cheek. I'm afraid he may be looking to turn the other cheek in this case, and I don’t want it turned in my favor. The trial court accepted these reasons as race-neutral and appellant made no attempt to rebut the explanations given or otherwise explain why they \ ere only pretexts for discrimination. A review of the eniirety of the veniremember's voir dire reveals that the prosecutor's reasons were supported by the record. Given this, we cannot say that the judge’s ruling in this instance was clearly erroneous. See Satterwhite, supra. Point of error four is overruled. In his eighth and ninth poinis of error, appellant claims the trial court reversibly erred in granting school exemptions for prospective jurors M. L. Lambeth and P. S. Jolly. The August 11, 1994, voir dire of Lambeth revealed that the venireperson had recently graduated from Texas A & M University. However, she had also completed one semester of Nursing School. Furthermore, it was established that Lambeth was only on summer break and had already enrolled in and paid for nine hours of Nursing classes for the fall semester which would commence on August 29, 1994. Because her classes were scheduled to run every day of the week, and because the trial was not scheduled to begin until September 12, 1994, it was undisputed that the trial and the classes would conflict. 19a Tex. Gov't Code § 62.106 states that: A person qualified to serve as a petit juror may establish an exemption from jury service if he: * +£ (4) is a person enrolled and in actual attendance at an institution of higher education[.] Even if Lambeth was not properly excused under this section,* the judge properly excused her under Tex. Code of Crim. Proc. Article 35.03.’ See Butler v. State, 830 S.W.2d 125, 131-132 (Tex. Crim. App. 1992); Harris v. State, 784 S.W.2d 5, 18-19 (Tex. Crim. App.1989) , cert. denied, 494 U.S. 1090 (1990). Jolly’s voir dire also established that while she was not in school at the time of her individual voir dire on August 10, 1994, she had registered and paid for college classes which she would attend, commencing August 29, 1994. Although Jolly testified that she might be able to make up the classes she would miss due to the trial, she was not sure about this and she did not want to get. . Appeliant contends that she was not properly excused pur- suant to this section because she was not attending classes at the time of voir dire. However, we note that Gov't Code § 62.106 deals with “jury service” and not voir dire. In the instant case, the venireperson would be attending classes at the time of “jury service.” Appellant also contends under this point that Nursing School is a “technical” or “vocational” school and not an “institution of higher edu- cation.” Given the disposition of the point of error, we need not address this contention here. % Article 35.03 states in pertinent part: Sec. |. Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, and if the court deems the excuse suf- ficient, the court shall discharge the juror or postpone the juror’s service to a date specified by the court. 20a behind in her classwork. As with Lambeth, the trial judge excused the potential juror pursuant to Tex. Gov't Code § 62.106 as well as Tex. Code of Crim. Proc. 35.03. As with the previous point, we hold that, even if the trial court erred in excusing the veniremember pur- suant to Tex. Gov't Code § 62.106, she was properly excused under Article 35.03. See Butler, supra; Harris, supra. Points of error eight and nine are overruled. II]. ADMISSION OF EVIDENCE Appellant contends in his second point of error that the trial court erred “in admitting into evidence the appellant's written custodial statement obtained after his unlawful arrest.” Appellant notes that he was arrested pursuant to an arrest warrant. However, he states with- out authority or analysis that the affidavit for the warrant was insufficient on its face to provide probable cause to arrest appellant. Hence, he concludes, appellant's state- ment was the fruit of an illegal arrest and thus should not have been admitted at trial. Appellant then proceeds to argue why the taint from the arrest was not attenuated.'” Appellant seems to be complaining that because the affidavit on its face did not specifically tie appellant to the two bodies found, it was insufficient to support prob- able cause. We disagree. It is well-settled that, in deter- mining the sufficiency of an affidavit for an arrest or search warrant, a reviewing court is limited to the “four corners of an affidavit.” Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921 10 Because appellant has given us nothing more than his con- clusory statement that the affidavit was insufficient to show proba- ble cause, he has inadequately briefed this point of error. Tex. R. App. Proc. 74(f). However, we have reviewed the affidavit in the interest of justice. we ee te ere ee oe te Cm 2la (1993). However, this determination is not meant “to place legalistic blinders on the process wherein a neutral and detached magistrate must decide whether there are sufficient facts stated to validate issuance of a proper warrant.” /d. Rather, the warrant affidavit should be interpreted in a common sense and realistic manner and the reviewing magistrate is permitted to draw reasonable inferences from the information contained therein. /d. The affidavit in the instant cause reads as follows: On June 28, [sic] 1993, your affiant [a homicide investigator employed by the Houston Police Department] personally went to a wooded area within the vicinity of West 34th St. and T. C. Jester in Houston, Harris County, Texas. At that location your affiant observed the bodies of two females, one of them was naked, and the other was partially unclothed and both appearing to have been dead for several days based upon the decomposition which had taken place on their bodies. The amount of decomposition which had taken place made the identification of the bodies by physical features dif- ficult, if not impossible. The bodies were removed to the Harris County Morgue for complete autopsies and for dental analysis and comparison with the dental charts of two missing females, Jennifer Ert- man and Elizabeth Pena. Your affiant is personally aware that a report had been made to the Houston Police Department that Jennifer Ertman and Elizabeth Pena had been reported missing since June 24, 1993. Your affiant has personally read Houston Police Department report number 66830993 which was prepared by R. L. Curl of the Houston Police Department and which states that on June 25, 1993, Randy Ertman 22a called the Department to state that his daughter, Jennifer Ertman and her friend, Elizabeth Pena were last seen walking from a friends house at approxi- mately 11:00 P.M. on June 24, 1993 and that they said that they were going to take the short cut along the railroad tracks which are near T. C. Jester and West 34th and that they were going to go to Ert- man’s apartment. He reported that his daughter nor the other girl had been seen. Your affiant is aware that an investigation had begun by the Houston Police Department in order to locate the two missing girls. Your affiant is aware that on June 27, 1993 a man called the Houston Police Department dispatcher claiming to be Mr. Gonzalez [sic] and who told the dispatcher a possible location where the bodies of the two girls could be found. Your affiant is aware that officers of the Houston Police Department were sent to the location that “Mr. Gonzales” told them of and the officers were unable to locate their bodies. © On June 24, [sic] 1993, the same person called back claiming to be Mr. Gonzales and giving them a more specific location where the bodies could be located. He told the dispatcher that he had found the bodies himself and wanted to let the police department know. where the bodies were. On this occasion, your affiant personally went to the location as given to the dispatcher by “Mr. Gonzales” which was a wooded area near the intersection of T. C. Jester and West 34th St., Houston, Harris County, Texas. It was at this time that your affiant observed the bod- ies of the two girls. ~ 23a Later on June 24, [sic] 1993, your affiant received information from officer Ken Weiner of the Houston Police Department Crime Stopper Division. He told your affiant that a female had called him telling him that her sister told her that her husband's, the caller's brother in law, brother had admitted to both her sister and her sister's husband that he and sev- eral other men had grabbed the two girls near the railroad tracks which run near the intersection of T. C. Jester and West 34th and that they raped and then killed the two girls. Weiner told your affiant that the caller left him her telephone number. Your affiant is personally aware that Officer Todd Miller of the Houston Police Department Homicide Division called the telephone number and spoke with veron- ica Barroso who told Miller that her sister and brother in law are Christina and Joe Adam Cantu and that they live at 1128 Ashland in Houston. She further said that Christina told her that her brother in law, Peter Cantu, and Joe Madellin both admitted to both her and her husband Joe Adam Cantu that they, along with some other men, saw the two girls walking down the railroad tracks near T. C. Jester and West 34th the night of June 24, 1993 and that they all grabbed the girls, raped them and then killed them. Based upon the aforesaid, your affiant brought Joe Adam Cantu to the offices of the Houston Police Department Homicide Division on June 28, 1993 in order to talk with him about this information. Cantu gave a sworn affidavit to [Officer] Todd Miller in which he states, under oath, that in the early morn- ing hours of June 25, 1993, his brother, Peter Cantu, who lives with him and his wife in the house on Ashland St. came into the house along with Efrin 24a Perez and another man whose name he did not know. He said that Peter, Efrin, Jose Madellin and the other man started telling him about two girls that they raped and killed in the woods near the rail- road tracks near West 34th and T. C. Jester. They showed him jewelry that they had taken from the girls and they admitted raping the two girls and then killing them by strangling them and leaving the bodies cut in the-woods. He then said that later a black male who he knows as Derrick Shawn O'Brien called his house and told him that he, too, had participated in the rapes and the murder of the two girls. Your affiant has checked the records of the Houston Police Department and learned that Joe Adam Cantu has only one arrest for a Class C Misdemeanor ticket but that he has no other arrests and is going to school at this time and is close to graduating from the school. As of the making of this affidavit your affiant has not learned from the Harris County Medical Exam- iner’s Office as to the caused (sic] of death of either of the two girls. Further, your affiant is not aware that a positive identification has been made of the two bodies but, based upon all of the information that your affiant has gathered it is the opinion of your affiant that the two bodies that were found this morning are, in fact, the bodies of Jennifer Ertman and Elizabeth Pena. Based upon the admissions which were made by the aforementioned Defendants to Cantu in which each of the men stated that they each raped the two girls and the fact that your affiant is personally aware, based upon years of experience as a Homicide ' 25a investigator for the Houston Police Department, it is the opinion of your affiant that the DNA of each of the men who raped, the girls will be present in fluid samples extracted from the deceased girls during the autopsies. Further, by taking blood and saliva sam- ples from each of the Defendants upon their arrest it will be possible for chemists to extract from those samples the known DNA of each Defendant and to then compare that with the DNA found from the autopsies of the two dead girls which will be evi- dence of the guilt of each defendant in these Capi- tal Murder cases. The affidavit contains facts which establish probable cause. In short, the affidavit states that two girls had dis- appeared on June 24, 1993, and were last known to be in a specific area of Houston that evening. Pursuant to a tip received by law enforcement personnel three days sub- sequent to the girls’ disappearance, two female bodies were discovered in the same area in which the girls were last known to be. These bodies were determined to have been deceased for several days. In calling the telephone number left by the tipster, police officers located one Joe Cantu who told them, under oath, that his brother, appel- lant, and some others had come to his home in the early morning hours of June 25, 1993, claiming to have just raped and killed two girls in the precise area in which the two girls had last been placed and the two female bodies had been found. Additionally, each individual cited within the affidavit is identified by name, and some are also identified by address. The majority of the facts contained in the affi- davit were told either directly to the affiant, or to other law enforcement personnel. Earhart v. State, 823 S.W.2d 607, 631 (Tex. Crim. App. 1991), vacated on other 26a grounds, ___ U.S. ___, 113 S.Ct. 3026 (1993)!'': Wilk- erson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). Hence, we hold that the affidavit contained sufficient information with which a detached magistrate could have found probable cause. ld. Because appellant was arrested pursuant to a lawful arrest warrant, the trial court did not err in denying appellant's motion to suppress his custodial statement.'* Point of error two is overruled. In supplemental points of error two-(A) through two- (E), «ppellant claims the trial court abused its discretion in determining his custodial statement was given inten- tionally, knowingly, and voluntarily, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article 1, §§ 10 and 19 of the Texas Constitution; and Articles 38.22 and 38.23. Appellant briefs all of these contentions together. Appellate urges that we abandon our previous standard of reviewing vol- untariness of a statement in favor of the standard set forth in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Appellant says that under this standard, we would have to conclude that the trial court abused its discretion in concluding his statement was voluntarily made. ‘| Earhart was vacated by the United States Supreme Court and remanded to: this Court in light of Johnson v. Texas, 509 ____ U.S. ___., 113 S.Ct. 2658 (1993). The case was then reaffirmed by this Court. Earhart v. State, 877 S.W.2d 759 (Tex. Crim. App.), cert. denied, __. U.S. ___, 115 S.Ct. 431 (1994), se To the extent appellant may otherwise be complaining that his statement was not voluntarily given, he has not adequately set out the issue in a-separate point of error or properly briefed it. Therefore, any further claim as to appellant's statement will not be entertained here. Tex. R. App. Proc. 74(f). en ee | 27a At a hearing on a motion to suppress a defendant's statement, the trial court is the sole judge of the credi- bility of witnesses and the weight to be given their tes- timony. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Therefore, if the record supports the trial court's findings, we will not disturb those findings. Id. On appeal, we only consider whether the trial court applied the law to the facts properly. /d. In Clewis, we held that courts of appeals have jurisdiction to review questions of fact, and in reviewing factual sufficiency of the elements of the offense, the court of appeals “should set aside the verdict only if it is so contrary to the over- wheiming weight of the evidence as to be clearly wrong and unjust.” 922 S.W.2d at 134-36. We leave for another day whether we will extend Clewis.'* Even if Clewis were applied to the facts of this case, appellant would not be entitled to relief. After giv- ing his written statement, appellant gave a tape recorded Statement to another officer. This tape recorded state- ment was not admitted into evidence and appellant does not question its leyality. But appellant says the record- ing reflects that he asked for an attorney and that this is evidence that he had wanted an attorney at the time of his written statement. While the tape is not made a part of the record on appeal, the trial court made the fol- lowing findings of fact regarding the taped conversation: Officer C.C. Abbondandolo . . . conducted an oral, taperecorded interview with the defendant. 'S See German v. State, No. 10-94-192-CR slip op. (Tex. App.- Waco July 5, 1995) (do not publish), reh'g denied (Aug. 2, 1995) (do not publish) pet. granted (PDR No. 1036-95 granted to determine whether great weight and preponderance of evidence standard for fac- tual sufficiency applies to trial court's ruling on mixed questions of fact and law). 28a Abbondandolo provided cigarettes to the defendant and arranged for him to be served a meal, but the defendant stated that he did not like the food and declined to eat it. Abbondandolo warned the defendant of his rights pursuant to art. 38.22, 5 2, supra, and Miranda vy. Arizona, supra. The appellant asked if an attorney could be appointed immediately, and Abbondandolo responded that if he wanted an attorney at that time, they would have to terminate the interview. The defendant indicated that he desired to continue with the interview, and he voluntarily discussed the rape and murder . The fact that appellant requested an attorney during his tape recorded statement does not render the trial court's conclusions as to the voluntariness of his previous writ- ten statement “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” It does not strain credibility to believe that a defendant might provide a written statement without invoking his right to an attorney, but change his mind while giving a second statement and request an attorney at that time. Appellant contends his request for an attorney during the taped conversation clearly indicates that he did not understand his rights at the time of the written statement. This, without more, does not follow. Therefore, even if a Clewis standard were applied here, which we expressly do not decide, appellant's claim would have no merit. Appellant's points of error two- (A) through two-(E) are overruled. In his fifth point of error, appellant alleges the trial court erred in admitting into evidence scene and autopsy photographs of the two deceased victims because their probative value was far outweighed by their prejudicial ee a 29a value in violation of Tex. R. Crim. Evid. 403. Appellant recognizes that this Court has held that a photograph ts generally admissible where a verbal description of the same is admissible. Long vy. State, 823 S.W.2d 259, 270 (Tex. Crim. App. 1991). cert. denied, 505 U.S. 1224 (1992). But, he maintains that, in the instant case, the photographs’ prejudicial value substantially outweighed any probative value they may have had thus rendering them inadmissible. In his point of error, appellant refers to thirty-nine (39) different photographs, three (3) of which appear to be scene photographs with the remain- der being autopsy photographs of the two different vic- tims. Of the three photographs depicting the crime scene, one shows both victims as their bodies appeared in rela- tion to the surrounding environment. One of the remain- ing two photographs shows a close-up shot of one of the victims in the position in which she was found while the other photograph shows the second victim as she was found. Although these photographs are gruesome, they are highly probative in reflecting the nature and scene of the crime and the extent of some of the victims’ injuries. Barnes v. State, 876 S.W.2d 316, 326 (Tex. Crim. App.), cert. denied, ___ U.S. __., 115 S.Ct. 174 (1994). With regard to the autopsy photographs, the medical examiner told the trial court that she needed all of the phatographs to testify to the nature and extent of the injuries inflicted. While these photographs are also grotesque and depict extensive environmental deterio- ration of the subject pictured, they are probative in reflecting the nature of the crime in the context in which it occurred and the extent of some of the injuries. This visual evidence was also probative of the perpetrator’s state of mind and intent during the commission of the crime due to the nature and extent of the injuries Wa inflicted. Given the totality of the evidence, we cannot say that the trial court abused its discretion in finding that the prejudicial effect of the photographs, if any, did not outweigh their probative value. Point of error five ts overruled Finding no reversible error, we affirm the judgment of the trial court MEYERS, J Delivered March 19, 1997 Do Not Publish En Banc 31a Appeal from Harris County No. 71.997 JOSE ERNESTO MEDELLIN, Appellant THE STATE OF TEXAS. Appeliec CONCURRING OPINION I concur in the result as to appellant's supplemental points of error, and otherwise join the opinion of the Court. However, I would directly address the merits of appellant's supplemental points of error and make clear to the, bench and bar that Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996), has no application in reviewing a trial court's determination of a motion to suppress. McCormick, Presiding Judge (Delivered March 19, 1997) En Banc Do Not Publish a IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. 50.191-0! EX PARTE JOSE ERNESTO MEDELLIN HABEAS CORPUS APPLICATION FROM HARRIS COUNTY The order was entered per curiam. ORDER This is an application for writ of habeas corpus filed pursuant to the provisions of Art. 11.071, V.A.C.C.P. On September 16, 1994, a jury found applicant guilty of capital murder. The jury returned answers to the pun- ishment phase special issues and the trial court assessed punishment at death. This Court affirmed applicant's conviction on direct appeal. Medellin v. State. No. 71,977 (Tex.Cr.App. delivered March 19, 1997). In the instant cause, applicant presents five allegations challenging the validity of his conviction and resulting sentence. The trial court has entered findings of facts 33a and conclusions of law recommending the relief sought be denied. This Court has reviewed the record. The trial court's findings and conclusions are supported by the record and upon such basis the relief sought by the applicant is denied. IT IT SO ORDERED THIS 3RD DAY OF OCTOBER. 2001 Do Not Publish 34a IN THE 339TH DISTRICT COURT OF HARRIS COUNTY, TEXAS Cause No. 675430-A EX PARTE P JOSE ERNESTO MEDELLIN. Applicant RESPONDENT'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court, having considered the applicant's appli- cation for writ of habeas corpus, the Respondent's Orig- inal Answer, the evidence elicited at the applicant's capital murder trial in cause no. 675430, affidavits sub- mitted in cause no. 675430-A, and official court docu- ments and records, makes the following findings of fact and conclusions of law: FINDINGS OF FACT |. The applicant, Jose Ernesto Medellin, was indicted and convicted of the felony offense of capital murder in cause no. 675430 in the 339th District Court of Harris County, Texas. ae — oe wel 3Sa 2. The applicant was represented during trial by coun- sel lack Millin, now deceased, and Linda Mazzagatti. 3. On September 20, 1994, the trial court assessed the applicant's punishment at deain by lethal injection after the jury affirmatively answered the first two special issues and negatively answered the third special issue. 4. The Court of Criminal Appeals affirmed the appli- cant’s conviction in an unpublished opinion delivered March 19, 1997. Medellin v. State, No. 71,997 (Tex. Crim. App. Mar. 19, 1997) (not designated for publica- tion). First Ground—ineffective assistance of appellate counsel re Batson claim: Fourth Ground—Batson claim: 5. The Court finds that, during the State's voir dire examination of prospective juror Elizabeth Ann Berry, she stated that both of her brothers had been arrested for drug-related offenses; that both have had a “number of cases;” that one was “serving time now,” that they had been in and out of the prison system often in the last five or Six years; and, that the cases were prosecuted in Har- ris County (R. XX - 181-2). 6. The Court finds that, on the juror questionnaire, prospective juror Elizabeth Berry described a defense attorney as the underdog, always fighting, and a prose- cutor as “on the attack” (R. XX - 184). 7. The Court finds that the State exercised a peremp- tory strike at the conclusion of the voir dire examination of prospective juror Elizabeth Berry, and the applicant made a Batson challenge (R. XX - 226). 36a 8. The Court finds that the trial court requested that the State, “regardless of a prima facie showing,” offer an explanation for the strike of prospective juror Elizabeth Berry, and that the State explained that the strike was based upon Berry having two brothers involved in drugs and serving time in prison; that one brother had been in prison on numerous occasions; and, that one brother was presently on parole and the other brother was presently in custody (R. XX - 227-8). 9. The Court finds that the State, in explaining its strike of prospective juror Elizabeth Berry, noted Berry's characterization of the prosecution as on the attack and the defense as the underdog and stated that, as a result, the State would have the perception during the trial that Berry viewed the applicant as the underdog and the prosecutor as a “wild mongrel” on the attack (R. XX - 228). 10. The Court finds that the State, via prosecutor Mark Vinson, stated that he had an appreciation of blacks serv- ing On juries, because he was a black male who grew up during the 1940's, 50°s, 60°s, 70°s, 80's, and 90°s (R. XX - 229). 11. The Court finds that the trial court stated that it did not believe that a prima facie showing had been made at that time, but the trial court found that the State's reasons for striking prospective juror Elizabeth Berry were race-neutral based on Berry's demeanor and her responses and her juror questionnaire (R. XX - 230). 12. The trial court denied the applicant's Batson motion and informed the applicant that the court would reconsider the motion if the applicant wanted to reurge it at the end of jury selection (R. XX - 230). ee eee 37a 13. The Court finds that the trial court noted, after denying the applicant's Batson challenge, that the jury was then composed of nine people, including a black female, a black male, an Hispanic male, and an Hispanic female; that there was no indication of gender bias; and, that the jury composition at that time was a black female, two white females, an Hispanic female, an His- panic male, two white males, and a black male (R. XX - 230-1). 14. The Court finds that, during the State's voir dire examination of prospective juror Rafael F. Rodriguez, the State noted that there was hesitation on Rodriguez's part regarding the death penalty when questioned by the trial court and Rodriguez stated that he had not given the death penalty much thought (R. XXI - 71). 15. The Court finds that, during the State's voir dire examination of prospective juroz Rafael Rodriguez, his responses concerning his thoughts on the death penalty were unclear and ambiguous (R. XXI - 90, 92-6). 16. The Court finds that, at the conclusion of the voir dire of prospective juror Rafael Rodriguez, the State exercised a peremptory strike on Rodriguez and the applicant made a Batson challenge, noting that the appli- cant and Rodriguez are both Hispanic (R. XXI - 115-6). 17. The Court finds that, at the conclusion of the State's voir dire of prospective juror Rafael Rodriguez and after the applicant's Batson challenge, the trial court made a finding of a prima facie case, and the State gave the following explanations for the peremptory strike of Rodriguez: that he had a great deal of hesitation when he was talking about the death penalty with the trial court; that the State still did not have a full understanding of Rodriguez's position on the death penalty; and, that 38a Rodriguez had stated that he was absolutely in favor of the death penalty without any compunctions if the victim were a relative of Rodriguez (R. XXI - 117). 18. The Court finds that the State also noted that prospective juror Rafael Rodriguez's theological and philosophical reply during voir dire examination con- cerning “turning the other cheek” indicated that Rodriguez would be “looking to turn the other cheek in this case...” (R. XXI - 118). 19. The Court finds that the trial court found that the State's explanation for the peremptory strike of prospec- tive juror Rafael Rodriguez was a racially neutral expla- nation and the trial court denied the applicant's Batson challenge (R. XXI - 118). 20. The Court finds that the applicant, on August 17, 1994, presented a written motion to strike the jury panel based, in part, on the State’s exercising thirteen pre- emptory strikes against the following prospective jurors, as noted by the applicant: (1) Kirven O'Neal Tillis, black male; (2) Mary Freeman, white female; (3) Kathy Felder, black female; (4) Bernard Richardson, black male; (5) Walter Wynn Martin, white male; (6) Andra McCoy, black male; (7) Marie Clark, white female; (8) Vastine Dickie, black male; (9) Christine Rossi, white female; (10) Raford Earl Gresham, white male; (11) Por- firio Rodriguez, Jr., Hispanic male; (12) Elizabeth Ann Berry, black female; and (13) Rafael Rodriguez, His- panic male (R. I - 264-5) (R. XXVI - 11). 21. The Court finds that, on August 17, 1994, the applicant presented the following argument in support of its motion: ee ee ee ee 39a And the State exercised six of it’s (sic) peremptory challenges against black venire members and eight of it’s (sic) peremptory challenges against males and the State exercised two of it’s (sic) peremptory chal- lenges against Hispanic male venire members. And this also includes a Batson Challenge. And, of course, the Court — I agree that whatever Batson challenges weré preserved during the proper objec- tion at the time would be the Batson Challenges that would be considered. But we are bringing to the Court's attention that these persons have been struck and that we would suggest to the Court that it’s a prima facie case of discrimination for the State's use of peremptory challenges and we would suggest to the Court that the motion — that our Motion to Strike the Panel be also granted on this premise. [R. XXVI - 11-2). 22. The Court finds that the State, in response to the applicant's August 17, 1994 argument in support of the applicant's motion to strike the panel, informed the trial court that the record reflected that the final jury was a “melting jury” and that the thirteen noted peremptory strikes were racially neutral (R. XXVI - 12-3). 23. The Court finds that the trial court denied the applicant's motion to strike the jury panel by written order on August 19, 1994 (R. I - 267). 24. The Court finds that the State exercised thirteen peremptory strikes and that a review of the State's peremptory strikes, as noted in the applicant's motion to strike the jury panel, shows that the State struck three white females and two white males, comprising almost fifty percent of the State's thirteen total peremptory strikes (R. I - 264-5) (R. XXVI - 11-2). 40a 25. The Court finds, based on personal recollection, that the prosecutor in the applicant's case was also the prosecutor in the 1993 Harris County capital murder trial of Kenneth Wayne Morris; that the trial judge in the applicant's case and the trial judge in Kenneth Wayne Morris’ case was the same person; that the prosecutor offered an explanation for a peremptory strike during jury selection in Kenneth Wayne Morris’ case; that the trial judge found the prosecutor's explanation to be racially neutral in Kenneth Wayne Morris’ case; and, that the trial judge noted in Kenneth Wayne Morris’ case that the same prosecutor had tried a capital case three months earlier and that there were either three or four black jurors. See Volume 4, page 115, appellate record of The State of Texas v. Kenneth Wayne Morris, cause no. 597997. 26. The Court finds that the Court of Criminal Appeals, on direct appeal of the capital murder convic- tion of Kenneth Wayne Morris, overruled Morris’ claim that the trial court improperly based her ruling on the absence of purposeful discrimination by the same pros- ecutor in another criminal trial and stated, “A ruling on a Batson objection is a credibility determination. Because the trial judge determines the issue of the pros- ecutor’s credibility, it is not error for the court to con- sider its past experiences with a prosecutor in determining his credibility.” Morris v. State, 940 S.W.2d 610, 612 (Tex. Crim. App. 1996). Ne te ee el 4la First Ground - ineffective assistance of appellate counsel re Motion to Preclude State from Seeking Death Penalty: 27. The Court finds that the applicant, prior to trial, filed a written motion too preclude the State from seek- ing the death penalty and that the clerk’s file-mark on the face of the motion notes that the motion was filed at 2:00 p.m. on July 29, 1994 (R. 1 - 95-107). 28. The Court finds that the face of the applicant's written motion to preclude the State from seeking the death penalty shows the following stamp: On The Record Date: 9/9/94 Ct. Reporter: Wong Lee (R. 1 - 108). 29. The Court finds that the written order accompa- nying the applicant's motion to preclude the State from seeking the death penalty is signed by the Honorable Caprice Cosper, the presiding judge of the 339th District Court and that there are initials placed on the line next to “GRANTED” (R. 1 - 108). 30. The Court finds, based on the appellate record, that the trial court ruled on pre-trial motions and ver- bally denied the applicant's objection to preclude the State from seeking the death penalty (R. XXVII - 9). 31. The Court finds, based on its personal recollection, that the written order notation on the applicant's motion to preclude the State from seeking the death penalty is an inadvertent error. 32. The Court finds that the applicant's written motion to preclude the State from seeking the death penalty and its accompanying order were a request for the trial court 42a to preclude the State from seeking the death penalty, not a motion requesting that the State be precluded from car- rying out a constitutionally valid death sentence after such sentence is assessed. 33. The Court further finds, based on the applicant's trial in which the State sought the death penalty and on the applicant's resulting death sentence, that the inad- vertent error on the written order accompanying the applicant's motion to preclude the State from seeking the death penalty was rendered moot by the applicant's trial and subsequent sentence of death. Second Ground—ineffective assistance of counsel re contacting probation officer: 34. The Court finds that evidence was presented dur- ing the guilt-innocence phase of the applicant's trial: showing that the applicant and his co-defendants, Peter Cantu, Efrain Perez, Derrick Sean O'Brien, and Raul Villarreal, took turns sexually assaulting the complainant and Jennifer Ertman (R. XXXII -948-9); that the appli- cant participated in the strangulation deaths of the com- plainant and Ertman after the repeated sexual assaults (R. XXXII - 949); that the applicant afterwards laughed and bragged about his part in the sexual assaults and murders (R. XXIX - 389-90); that the applicant said that he “fucked one of the girls in the pussy” and then “fucked her in the ass ;” (R. XXIX - 391-2); that the applicant said that he made one of the girls give him a “blow job” and that he hit her on the top of her head when she would not close her mouth (R. XXIX - 395, 425); and, that the applicant later showed Christina Cantu his underwear with blood on it and stated that he could not believe that one of the girls was telling the truth when she said that she was a virgin; that the appli- 43a cant, who admitted having sex with both girls, seemed proud that he “opened” the girl who was a virgin, and that he “dirtied” the inside of the girl when he was first entering her; that the applicant said they had fun; and, that the applicant took part of the property stolen from the murdered girls (R. XXIX - 393-4, 397-401, 405, 422, 424-5) (R. XXX - 477-8, 533-4). 35. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that the applicant was suspended from school at the age of fourteen in 1990; that he was placed in an alternative school for repeated misbehavior and misconduct; and, that he was not able to function at the alternative school and was expelled from the school district for the remain- der of the school year (R. XXXIV - 76-8). 36. The Court finds that, during the punishment phase of the applicant's trial, the State further presented evi- dence that the applicant called a female teacher a whore, used profanity and defied the rules (R. XXXIV - 7-13). 37. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that the applicant made threats of physical violence toward two adult principals when the applicant was a sixteen- year old student in 1992; that he was confrontational, aggressive, and physically resisted the principals when they attempted to calm the applicant; that he screamed profanities at another student; and, that the applicant stated that life did not mean anything to him; he would be on television or in the newspaper for killing someone and jail did not scare him (R. XXXIV - 17-64). 38. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that the applicant had been suspended several times from 44a school by 1992; that he was expelled from school after being in a gang-related fight; and, that the applicant never altered his behavior while attending school before he was permanently removed (R. XXXIV - 64-9). 39. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that the applicant was referred as a juvenile on a weapons charge after he was detained as a result of an auto theft and after he was found in possession of a .38 revolver on January 4, 1992 (R. XXIV - 110-54), and that the appli- cant was charged with the offense of carrying a weapon on July 18, 1992, after a .38 weapon was found partially under the applicant's car seat on the floorboard of the car next to two live rounds of .38 SP ammunition, a more powerful round than a normal .38 round (R. XXXIV - 179-81) 40. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that the police talked to the applicant outside of the emer- gency room at Memorial Northwest Hospital after the applicant and Peter Cantu accompanied the gunshot Efrain Perez to the hospital on June 6, 1993; that the applicant and Cantu were uncooperative, belligerent, abusive, sarcastic and vulgar; and, that the applicant changed his story concerning the shooting several times (R. XXXIV - 197, 216-8). 41. The Court finds that, during the punishment phase of the applicant's trial, the State presented evidence that a shank was found during a search of the applicant's one-man cell in the Harris County Jail on July 1, 1993 (R. XXXIV - 84-90), and that an L-shaped metal pipe, capable of causing serious bodily injury and death, with a sharpened end was also found in the mattress in the applicant's lock-down cell (R. XXXIV - 225-7). 45a 42. The Court finds, based on the appellate record, that information, if any, that the applicant was punctual for appointments with his juvenile probation officer and did not cause his probation officer any problems is inconsequential in light of the overwhelming evidence of the applicant's prior history and in light of the brutality of the offense which the applicant committed. 43. The Court finds, based on the appellate record, that information, if any, that the applicant presented no problems for his probation officer does not establish that the applicant does well when supervised and does not establish that such evidence is indicative of the appli- cant’s expected behavior in prison if he received a life sentence, in light of the extensive evidence showing the applicant's repeated illegal activities and inability to function in structured environments, including jail. Second Ground—ineffective assistance of counsel re parole eligibility instruction: 44. The Court finds that, during the applicant's trial, trial counsel stated that counsel did not want the trial court to inform the jury of the applicant's parole eligi- bility in the event of a life sentence because counsel's previous experience in capital cases showed that polled jurors thought that a life sentence was truly a life sen- tence (R. V. XXVII - 12-3). 45. The Court finds that the issue of parole eligibility was not a matter for the jury's consideration at the time of the applicant's September, 1994 capital murder trial, and the trial court was not required to instruct the jury concerning parole eligibility in a capital case. Martinez v. State, 924 S$.W.2d 693 (Tex. Crim. App. 1996); Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 46a 1996) (citing Smith v. State, 898 S.W.2d 838, 846 (Tex. Crim. App. 1995)). Third Ground—Vienna Convention: 46. The Court finds that the applicant did not object pre-trial or during trial to any violation of the Vienna Convention on Consular Relations which grants a for- eign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the indi- vidual of this right “without delay.” Vienna Convention, art. 36(1) (b), 21 U.S.T. at 100-101; 595 U.N.T.S. at 292. 47. The Court finds that testimony during the appli- cant’s trial and the applicant's statement reflect that the applicant was born in Mexico, but lived most of his life in the United States; that he spoke, read and wrote the English language; that he attended Houston public schools beginning with elementary school; that he ini- _ tially did well in elementary school; that his family and friends lived in the United States; that his father had been gainfully employed since his arrival in the United States; that his mother was presently employed; and that the applicant had been employed in the United States while going to Houston schools (R. XXXV - 279-92) (R. XXX - 652, 670). 48. The Court finds that the applicant's father testified that they had lived in the United States for fifteen years and that both he and the applicant's mother had a “green card” (R. XXXV - 279-80, 288). 49. The Court finds that the applicant's school records contain the notation “516396627” under social security number for the applicant. 47a 50. The Court finds, based on the appellate record, that there was no testimony presented during the appli- cant’s trial that he was not a United States citizen; that the applicant told anyone during his detention that he was a Mexican national; that he requested assistance from the Mexican consulate; or, that he was prevented from requesting assistance from the Mexican consulate. 51. The Court finds that it is a reasonable inference that the applicant was familiar with the laws and pro- cedures of the country and state in which he had lived almost his entire life and that the applicant was familiar with the criminal justice system based on his prior crim- inal history. , 52. The Court finds that the applicant was informed of his Miranda rights prior to giving a statement admitting participation in the offense (R. XXX - 633-40) (R. XXXII - 942-5). 53. The Court finds that the Court of Criminal Appeals has held that a defendant does not have standing to advance a claim that his death sentence violated the United Nations Charter, stating that “...treaties operate as contracts among nations. Therefore, it is the offended nation, not an individual, that must seek redress for a violation of sovereign interests.” Hinojosa v. State, No. 72,932 (Tex. Crim. App. Oct. 27, 1999). 54. The Court finds that the Court of Criminal Appeals has also held that treaties do not constitute “laws” for the purposes of TEX. CODE CRIM. PROC. art. 38.23; specifically, that “the Vienna Convention Treaty illus- trates well the proposition that Article 38.23 is not a suitable enforcement mechanism for international treaties.” Rocha v. State, 16 S.W.3d 1, 19 (Tex. Crim. App. 2000). 48a 55. The Court finds that federal courts have found that a violation of the provisions of the Vienna Convention will not require reversal of a criminal conviction or other judgment, in the absence of a showing that the defendant was actually harmed by the violation. Faulder vy. Johnson, 81 F.3d 515, 520 (Sth Cir. 1996), cert. denied, __ U.S. _.. 117 S. Ct. 487 (1997); United States v. $69,530.00 in United States Currency, 22 F.Supp.2d 593, 595 (W.D.Tex. 1998). Fifth Ground—Brady issue: 56. The Court finds that, during the guilt-innocence phase of the applicant's trial, the State presented testi- mony from Joe Cantu, the brother of the applicant's co- defendant Peter Cantu, and from Christina Cantu, Joe Cantu’s wife, about the admissions the applicant made concerning his part in the capital murder (R. XXIX - 366-373, 383-425) (R. XXX - 490-540). 57. The Court finds, according to the credible affidavit of Gail Hays, Harris County District Attorney's Office Investigator, that Hays was assigned as an investigator to the 263rd District Court during 1994; that Assistant District Attorney Marie Munier was the chief of the 263rd District Court and was the prosecutor in the trial of the applicant's co-defendant Efrain Perez at that time; that Hays talked with witnesses Christina and Joe Cantu; that Hays made no deals or agreements with Christina and Joe Cantu in exchange for their cooperation or tes- timony as witnesses; that Hays did not promise the Can- tus any reward money in exchange for their cooperation or testimony; and, that Hays did not promise “protec- tion” to either Christina or Joe Cantu. 49a 58. The Court further finds, according to the credible affidavit of Gail Hays, that Hays was aware that Christina Cantu was pregnant, but Hays was not aware of any miscarriage and was never informed of any alleged beating of Christina Cantu; that Hays became aware that Joe Cantu had been arrested prior to trial when Christina Cantu telephoned Hays and gave her such information; that Hays’ understanding was that Joe Cantu made a statement about “blowing up” his place of employment after having an argument at work and Joe Cantu was subsequently arrested; that Hays informed Assistant District Attorney Marie Munier of Joe Cantu’s arrest either the night Hays learned he had been arrested or the next business day; that Hays had no knowledge of any events concerning Joe Cantu’s arrest after that time; that Hays did not recommend a lawyer or give any lawyer's name to either Joe or Christina Cantu; that Hays made no promises concerning Joe Cantu's case; and, that Hays was not aware of the disposition of Joe Cantu’s arrest until December, 1999. 59. The Court finds, according to the credible affidavit of Harris County Assistant District Attorney Marie Munier, the prosecutor in the case of the applicant's co- defendant Efrain Perez, that Munier learned that Joe Cantu had been arrested prior to trial; that Munier has no specific recollection of informing Assistant District Attorneys Mark Vinson or Terry Wilson of Joe Cantu’s arrest; that Munier made no deals or agreements with Joe or Christina Cantu involving their testimony in the trials or involving Joe Cantu’s arrest; that Munier took no action involving Joe Cantu’s arrest or the disposition of his case; that Munier was aware that Joe Cantu’s case was dismissed prior to the trials of the applicant and co- defendant Efrain Perez; that Munier made no promises or assurances to either Joe or Christina Cantu concern- 50a ing any reward money in exchange for their cooperation or testimony; Munier was aware that Christina Cantu was pregnant, but Munier was not aware of any miscar- riage; and, that Munier was never told of any alleged beating of Christina Cantu. 60. The Court finds, according to the credible affidavit of Harris County Assistant District Attorney Mark Vin- son, the prosecutor in the applicant's capital murder trial, that, Vinson did not make any deals or agreements with Joe-or Christina Cantu involving their testimony in the trials; that Vinson did not promise or assure either Joe or Christina Cantu that they would receive any reward money in exchange for their cooperation and tes- timony; that Vinson has no specific recollection of being aware of either Joe Cantu’s 1994 arrest for a misde- meanor offense or the disposition of Joe Cantu’s case; that Vinson had nothing to do with the disposition of Joe Cantu’s case; that Vinson has a slight recollection of being aware that Christina Cantu was pregnant, but he was never aware of any miscarriage; and, that Vinson was never told of any alleged beating of Christina Cantu. 61. The Court finds, based on official court records, that a complaint against Joe Cantu for the misdemeanor offense of terroristic threat, cause no. 9425339, Harris County Court at Law # 13, was dismissed on August 4, 1994, based on insufficient evidence; that trial testimony began in the applicant's case on September 12, 1994 (R. XXVIII - 34); and, that Joe Cantu testified in the appli- cant’s case on September 14, 1994 (R. XXX - 490-577). See attached complaint and motion to dismiss, cause no. 9425339, 62. The Court finds, based on the credible affidavit of Harris County Assistant District Attorney Joni Vollman, that Vollman was the chief prosecutor in Harris County FO te EE ee Pe ee a i Sla Court at Law #13 in August, 1994; that Vollman signed the motion to dismiss contained in the clerk's file in the State of Texas v. Joe Cantu, cause no. 9425339, in which Cantu was charged with the misdemeanor offense of ter- roristic threat; that Vollman has no specific recollection as to the facts of the case in cause no. 9425339; that Vollman had some awareness that Joe Cantu was related to the defendant Peter Cantu, one of the defendant's in Elizabeth Pena and Jennifer Ertman’s murders; that Voll- man’s vague awareness about this relationship did not influence Vollman’s dismissal of the charges against Joe Cantu in cause no. 9425339; that Vollman would have specifically remembered if anyone in the Harris County District Attorney's Office had approached her, request- ing, suggesting, or ordering that charges be dismissed against Joe Cantu; that Vollman states with certainty that she has no such recollection; and, that the charges against Joe Cantu in cause no. 9425339 were dismissed based on insufficient evidence. See attached March 1, 2000 affidavit of Joni Vollman. CONCLUSIONS OF LAW First Ground—ineffective assistance of appellate counsel re Batson claim: Fourth Ground—Batson issue: 1. The trial court properly found that the State's explanations that the State exercised a peremptory strike against prospective juror Elizabeth Berry based on her two brother's criminal history, including one of the brother's being on parole and the other brother being incarcerated, and based on Berry's perception of the applicant being the underdog and the prosecutor being the attacker were racially neutral explanations logically S2a related to the instant case. See Harris v. State, 827 S.W.2d 945, 955 (Tex. Crim. App. 1992) (holding that prosecutor's explanation in capital case that he struck venireperson because her brother was on probation for burglary was racially neutral). 2. The trial court properly found that the State's expla- nation that the State struck prospective juror Rafael Rodriguez, in part, because the State still did not have a full understanding of Rodriguez's position on the death penalty is supported by the ambiguity of Rodriguez's cited voir dire statements about the death penalty, and the State’s explanation that the State feared that Rodriguez believed in “turning the other cheek” was a racially neutral explanation which does not violate the precepts of Batson vy. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986); see Cantu v. State, 842 S.W.2d 667, 688-9 (Tex. Crim. App. 1992) (holding that trial court's find- ing that prosecutor’s reasons for striking prospective juror were racially neutral where prosecutor stated that strike was based, in part, on prospective juror’s volun- teer work indicating that she would be “kind-hearted” ); see also Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995) (holding that prosecutor could exercise peremp- tory strikes against two prospective jurors who were not in favor of death penalty as long as strikes not made in racially discriminatory manner). 3. The applicant, in his written motion to strike the jury panel, fails to establish a prima facie case of pur- poseful discrimination in the State's peremptory strikes. Harris, 827 S.W.2d at 955 (holding that defendant, in order to establish prima facie case, may rely on fact that peremptories constitute jury selection practice that allows those to discriminate who are of mind to dis- criminate, and defendant must show this fact and other 53a relevant circumstances raise inference that peremptories were exercised to exclude prospective jurors on basis of race). 4. In the alternative, the trial court properly found that the State's explanations for striking specific jurors were racially neutral. Wheatfall v. State, 882 S.W.2d 829, 835 (Tex. Crim. App. 1994) (holding State has burden to pre- sent neutral explanation for strike); see also Trevino v. State, 864 S$.W.2d 499, 500 (Tex. Crim. App. 1993) (holding State's explanation for strike does not have to rise to level needed to justify challenge for cause). 5. The applicant fails to show that the trial court's decision that the State's strikes were racially neutral was clearly erroneous. /d. (holding appellate court may not reverse trial court's decision that State's strike is racially neutral unless trial court’s decision is clearly erroneous and trial court's choice of interpretation may not be found to be clearly erroneous when evidence is suscep- tible to two reasonable interpretations and trial court's decision is in accord with one of these two interpreta- tions). 6. The applicant fails to show that the trial court erred in allegedly failing to grant a Batson hearing, and the applicant fails to show that his rights under the equal protection clause, U.S. CONST. amend. XIV, were vio- lated. 7. The applicant fails to show that appellate counsel is ineffective for not presenting on direct appeal the claim that the trial court allegedly erred in finding that the State gave race neutral reasons for peremptory strikes and in allegedly not granting a Batson hearing. The applicant fails to show that, but for appellate counsel's alleged error, the results of the proceeding would have S4a been different. Ex parte Butler, 884 S.W.2d 782, 783 (Tex. Crim. App. 1994) (holding that Strickland standard applies to appellate counsel as well as trial counsel). First Ground—ineffective assistance of appellate counsel re Motion to Preclude State from Seeking Death Penalty: 8. The applicant fails to show that appellate counsel is ineffective for not advancing the meritless claim that the trial court allegedly erred in orally denying the appli- cant’s Motion to Preclude State from Seeking the Death Penalty when the trial court allegedly granted the same written motion. See Butler, 884 S.W.2d at 783; see also Kinnamon vy. State, 791 S.W.2d 84, 97 (Tex. Crim. App. 1990) (counsel not ineffective for failing to request jury charge on lesser-included of murder when the evidence did not support such charge). Second Ground—ineffective assistance of counsel re contacting probation officer: 9. The applicant fails to show deficient performance, much less harm, in trial counsel's not contacting pro- bation officer Guerra and not presenting punishment evi- dence that the applicant was allegedly punctual for appointments with his probation officer and that the applicant allegedly presented no problems for his pro- bation officer, in light of the overwhelming evidence of the brutality of the applicant's crime, the applicant's past illegal activities, and the applicant's inability to function in the structured environments of school and jail. Strick- land v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). 5Sa Second Ground—ineffective assistance of counsel re parole eligibility instruction: 10. The trial court properly did not instruct the jury as to parole eligibility and defense counsel properly did not voir dire on the issue of parole eligibility. See Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) (hold- ing issue of parole eligibility not a matter for jury's con- sideration in capital murder trial); Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) (citing Smith vy. State, 898 S.W.2d 838, 846 (Tex. Crim. App. 1995)). 11. Trial counsel are not ineffective for making the reasonable, strategic decision, based on prior experience, not to request that the jury be informed and instructed concerning parole eligibility, an instruction which would make the jury aware that the eighteen-year old applicant would be eligible for parole at the relatively young age of forty-three. Ex parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978) (appellate court will review trial strat- egy only when it is without a plausible basis). 12. The applicant fails to show deficient performance, much less harm, based on trial counsels’ reasonable trial strategy of not informing the jury concerning parole eli- gibility; thus, the applicant fails to show that his rights, pursuant to U.S. CONST. Amends. VI and XIV, were vio- lated. Third Ground—Vienna Convention: 13. Based on the applicant's lack of objection at trial to the alleged failure to inform him of his rights under the Vienna Convention, the applicant is procedurally barred from presenting his habeas claim that the alleged violation of the Vienna Convention violated his consti- tutional rights. Hodge v. State, 631 S.W.2d 754, 757 56a (Tex. Crim. App. 1982); Williams vy. State, 549 S.W.2d 183, 187 (Tex. Crim. App. 1977). 14. In the alternative, the applicant fails to show for- eign nationality which requires notification of a foreign consulate when a “national” of the “sending state” is detained in custody. See Maldonado vy. State, 998 S.W.2d 239, 246-7 (Tex. Crim. App. 1999) (holding that defen- dant not entitled to art. 38.23 instruction where defen- dant not informed of his right to consult consulate but evidence showed that defendant lived in United States many years, spoke English, had Texas driver's license, and bought car in United States and evidence did not show that defendant was a Mexican citizen). 15. In the alternative, the applicant, as a private indi- vidual, lacks standing to enforce the provisions of the Vienna Convention. Hinojosa v. State, No. 72,932 (Tex. Crim. App. Oct. 27, 1999) (holding that treaties operate as contracts among nations; thus, offended nation, not individual, must seek redress for violation of sovereign interests). 16. In the alternative, the applicant fails to show that he was harmed by any lack of notification to the Mexi- can consulate concerning his arrest for capital murder; the applicant was provided with effective legal repre- sentation upon the applicant's request; and, the appli- cant’s constitutional rights were safeguarded. See and cf. Rocha y. State, 16 §.W.3d 1, 19 (Tex. Crim. App. 2000) (holding that treaties do not constitute “laws” for pur- pose of TEX. CODE CRIM. PROC. art. 38.23, and Vienna Convention Treaty illustrates proposition that art. 38.23 is not suitable enforcement mechanism for international treaties). S7a 17. The applicant fails to show that his rights, pur- suant to U.S. CONST. amends. V, VI, and XIV, were vio- lated and fails to show that any non-notification of the Mexican authorities impacted on the validity of his con- viction or punishment. Ex parte Barber, 879 S.W.2d 889, 891-92 (Tex. Crim. App. 1994) (holding that, in order to be entitled to habeas relief, defendant must plead and prove that complained-of error did, in fact, contribute to his conviction or punishment). Fifth Ground—Brady issue: 18. The applicant fails to show that there was any deal between the State and Joe and Christina Cantu; thus, the applicant fails to show that the State did not disclose material evidence, i.e., a non-existent agreement between Joe and Christina Cantu in exchange for their testimony during the applicant's trial. The applicant fails to show that the State did not disclose a non-existent agreement or any alleged favorable and material infor- mation in the instant case. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985) (holding evidence is material where there is a reasonable probability that, if disclosed, result of the proceeding would have been different). The applicant fails to show that he was denied due process under U.S. CONST. amend. XIV and TEx. CONST. art. 1, § 10. 19. The applicant fails to demonstrate that his con- viction was unlawfully obtained. Accordingly, it is rec- ommended to the Texas Court of Criminal Appeals that relief be denied. 58a BY THE FOLLOWING SIGNATURE, THE COURT ADOPTS THE RESPONDENT'S PROPOSED FIND- INGS OF FACT AND CONCLUSIONS OF LAW IN CAUSE NO. 675430-A. Signed this 22nd day of January, JOG]. CAPRICE COSPER __ CAPRICE COSPER Presiding Judge 339th District Court 59a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Civil Action No. H-01-4078 JOSE ERNESTO MEDELLIN, ; Petitioner. — JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. ORDER Petitioner Jose Ernesto Medellin (“Medellin”) filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his capital conviction and death sentence. (Docket Entry # 12). Pending before the Court is Respondent Janie Cockrell’s (“Respondent”) motion for summary judgment. (Docket Entry # 16). Having considered the record, the pleadings, and the applicable law, particularly the application of the Anti- Terrorism and Effective Death Penalty Act (“AEDPA”), the Court grants respondent's motion for summary judg- ment, denies Medellin’s petition, and denies a Certifi- cate of Appealability. 60a BACKGROUND On September 23, 1993, a Texas grand jury indicted Medellin for his role in the capital murder of Elizabeth Pena. The evidence in the guilt/innocence phase of trial showed that on June 24, 1993, Medellin and his fellow gang members raped and killed sixteen-year-old Eliza- beth Pena and her fourteen-year-old friend, Jennifer Ert- man. The evidence at trial, briefly summarized, showed that, after participating in a gang initiation, Medellin and other gang members encountered the victims walking along railroad tracks at approximately 11:30 p.m. Over the next hour, the gang repeatedly and viciously raped the two girls. The testimony at trial established that Medellin participated in the rape of both victims. The gang members then strangled the two girls to death. Trial testimony established that Medellin helped strangle Eliz- abeth Pena with one of his shoestrings. In describing the attacks later, Medellin appeared “hyper, giggling and laughing” as he recounted his role. Medellin also bragged about deflowering one of the young girls. The only remorse Medellin showed was that he did not have a gun so that the killing would have been quicker. ' The jury found Medellin guilty of capital murder.* In a separate punishment phase, the State presented evi- dence of Medellin’s violent character and criminal offenses. Medellin had a long history of violent threats ' Medellin confessed to his participation in the rape and mur- der of the two girls. Medellin’s confession portrays a more limited involvement in the crimes than he bragged about immediately after the killings. Medellin’s confession, however, indicates that he par- ticipated in the rape of Elizabeth Pena and then helped another gang member strangle her. The State indicted Medellin under three different theories: capital murder of Elizabeth Pena in the course of a kidnaping: capi- 6la and misbehavior, often associated with the possession of firearms. The State also presented evidence that Medellin had been discovered with a “shank” in his cell while incarcerated pending trial. The defense’s punish- ment phase case focused on testimony that Medellin had a good character and on an expert's opinion that he would not be a future danger to society. The jury answered Texas’ special issues in a manner requiring the imposition of a death sentence. The Court of Criminal Appeals denied Medellin’s direct appeal from his conviction and sentence on March 19, 1997. Medellin v. State, No. 71, 997 (Tex. Crim. App. Mar. 19, 1997) (unpublished). Medellin did not seek certiorari review in the United States Supreme Court. Medellin filed a state application for habeas corpus relief. The trial habeas court held that no controverted, previously unresolved issues existed and found it unnec- essary to hold an evidentiary hearing. State Habeas Record at 177.* On January 22, 2001, the trial court signed the State's proposed findings and conclusions recommending that habeas relief be denied. State Habeas Record at 198-218. The Court of Criminal Appeals found that the record supported the lower court's findings and conclusions and, on that basis, denied relief. Ex parte Medellin, No. 50, 191-01 (Tex. Crim. App. Oct. 3, 2001). tal murder of Elizabeth Pena in the course of a robbery; and capital murder of Elizabeth Pena in the course of aggravated sexual assault. Tr. Vol. I at 6. The jury instructions provided for his conviction under any of those theories. Tr. Vol. I at 285-86. The jury returned a general verdict of guilty without specifying under which theory it convicted Medellin. Tr. Vol. I at 294. * Judge Caprice Cosper presided over Medellin’s trial and his state habeas proceedings. 62a On November 28, 2001, Medellin filed a preliminary federal petition for a writ of habeas corpus through appointed counsel. (Docket Entry # 5). On July 18, 2002, Medellin amended his habeas petition. (Docket Entry #12). Medellin’s amended petition raises five grounds for habeas relief: |. Medellin’s Sixth Amendment right to effective assistance of counsel was violated by trial coun- sel’s* failure to present evidence of his good behavior while on juvenile probation, trial coun- sel’s failure to present evidence of the parole eli- gibility accompanying a life sentence, and appellate counsel’s® failure to seek enforcement of a trial court order allegedly precluding the State from seeking a death sentence; tv . The State violated Medellin’s rights under the Vienna Convention by not protecting his right to consular access; 3. The State violated the Fourteenth Amendment by exercising its peremptory challenges in a dis- criminatory manne; 4. The State failed to disclose material exculpatory information to the defense; and 5. The trial court denied Medellin an impartial jury by excluding a potential juror for her opposition to capital punishment. Respondent seeks summary judgment on the merits of Medellin’s claims. (Docket Entry # 16). Medellin has 4 Jack Millin and Linda Mazzagatti represented Medellin at trial. For the sake of clarity, the Court will generally refer to these attorneys conjunctively as “trial counsel.” 5 Randy McDonald represented Medellin on appeal. This Court will refer to him as “appellate counsel.” 63a filed a response to the summary judgment motion. (Docket Entry # 24). STANDARDS OF REVIEW Respondent seeks summary judgment in this case. In ordinary civil cases, summary judgment is appropriate if “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” FED. R. Civ. P. 56(c); Rojas v. TK Communica- tions, Inc., 87 F.3d 745, 747 (Sth Cir. 1996). A petition for writ of habeas corpus is a civil action in federal court. See Archer v. Lynaugh, 821 F.2d 1094, 1096 (Sth Cir. 1987). “As a general principle, Rule 56 of the Fed- eral Rules of Civil Procedure, relating to summary judg- ment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (Sth Cir.), cert. denied, 531 U.S. 831 (2000). However, “[t]he Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that they are not inconsistent with the Habeas Corpus Rules.” Woodford v. Garceau, __ U.S. __, 123 S. Ct. 1398, 1402 (2003); see also Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts. In habeas proceedings, a court's summary judgment review is circumscribed by the AEDPA. See Proctor v. Cockrell, 283 F.3d 726, 729-30 (Sth Cir. 2002). The intent.of the AEDPA is “to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Be/l/ v. Cone, 535 U. S. 685, 693 (2002); see also Woodford __ U.S. at _., 123 S. Ct. at 1401 (“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases.”). The AEDPA “embodies the principles of fed- 64a eralism, comity, and finality of judgments,” Evans vy. Cockrell, 285 F.3d 370, 374 (Sth Cir. 2002), “substan- tially restrict{ing] the scope of federal review of state criminal court proceedings.” Montoya v. Johnson, 226 F.3d 399,404 (Sth Cir. 2000), cert. denied, 532 U.S. 1067 (2001); see also Woodford vy. Visciotti, _. U. S. __ , 123 S. Ct. 357, 360 (2002) (“[Section] 2254(d)'s highly def- erential standard for evaluating state-court rulings. . . demands that state court decisions be given the benefit of the doubt.”). In essence, the “AEDPA was enacted, at least in part, to ensure comity, finality, and deference to state court habeas determinations by limiting the scope of collateral review and raising the standard for federal habeas relief.” Robertson v. Cockrell, 324 F.3d 297, 306 (Sth Cir. 2003). The AEDPA provides that a federal habeas petition shall not be granted with respect to any claim adjudi- cated on the merits in state court unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceed- ing. 28 U.S.C. § 2254 (d)(1)-(2). Deference under the AEDPA differs depending on whether the state court engaged in a legal, factual, or mixed inquiry. See Gachot v. Stalder, 298 F.3d 414,417-18 (Sth Cir. 2002). Federal courts analyze questions of law and mixed questions of law and fact under 28 U.S.C. § 2254(d)(1) to determine whether the state court decision was either “contrary to” or an “unreasonable application” of 65a Supreme Court precedent. See DiLosa v. Cain, 279 F.3d 259, 262 (Sth Cir. 2002); Martin v. Cain, 246 F.3d 471, 475 (Sth Cir.), cert. denied, 534 U.S. 885 (2001). The Supreme Court holds that a state court decision is “con- trary to” federal precedent if: (1) the state court's con- clusion is “opposite to that reached by [the Supreme Court] on a question of law” or (2) “the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000); see also Bell, 535 U.S. at 698; Early v. Packer, __ U.S, __, 123 S. Ct. 362, 365 (2002). A state court may unreasonably apply fed- eral law if it “identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the particular facts of the particular state prisoner's case” or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to anew context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.° A federal habeas court's review under 28 U.S.C. § 2254(d) “should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evi- ® An unreasonable application of federal law “is different from an incorrect application of federal law.” /d. at 410. To provide relief, a federal habeas court must not only conclude that “the relevant state- court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” /d. at 411; see also Woodford, __ U.S. at __, 123 S. Ct. at 361 (differ- entiating between an incorrect state determination and an “unrea- sonable application of federal law”); Valdez v. Cockrell, 274 F.3d 941, 947 (Sth Cir. 2001) (“Thus, a state court application maybe incorrect in our independent judgment and, yet, reasonable.”), cert. denied, __ U.S. __, 123 S. Ct. 106 (2002). 66a dence.” Neal v. Puckett, 286 F.3d 230, 246 (Sth Cir. 2002), cert. denied, __ U.S. __, 123 S. Ct. 963 (2003). In reviewing the state court's substantive decision under the AEDPA, this court focuses on “ ‘determining the rea- sonableness of the state court's ‘decision,’ . . . not grad- ing their papers.” * Santellan v. Cockrell, 271 F.3d 190, 193 (Sth Cir. 2001) (quoting Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001)), cert. denied, 535 U.S. 982 (2002); cf. Dillard v. Blackburn, 780 F.2d 509, 513 (Sth Cir. 1986) (observing that “federal courts do not sit as courts of appeal and error for state court convictions”). Thus, this Court bases its analysis on “the state court's ultimate conclusion, not on its reasoning process.” DiLosa, 279 F.3d at 262; Neal, 286 F.3d at 246. The AEDPA affords deference to a state court's reso- lution of factual issues. Under 28 U.S.C. § 2254(d)(2) “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court pro- ceeding[.]” Miller-El v. Cockrell, _ U.S. __, 123 S. Ct. 1029, 1043 (2003). A federal habeas court must presume the underlying factual determinations of the state court to be correct, unless the petitioner “rebut[s] the pre- sumption of correctness by clear and convincing evi- dence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, __ U.S. at__ , 123 S. Ct. At 1036.’ Notwithstanding a petitioner's ability to show that a state court decision is erroneous under 28 U.S.C. § 2254(d), that does not guarantee that a petitioner is entitled to habeas relief. The language of 28 U.S.C. ’ The AEDPA also established strict standards limiting the availability of evidentiary hearings in federal court. See 28 U.S.C. § 2254(e)(2). Medellin requests a hearing but has not shown that such a hearing is necessary to the adjudication of his claims. As the avail- 67a § 2254(d) “does not require federal habeas courts to grant relief reflexively.” Robertson, 324 F. 3d at 306; see also Aleman vy. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003) (finding that 28 U.S.C. § 2254(d) does not entitle a petitioner to habeas relief). No Supreme Court case “hat[s] suggested that a writ of habeas corpus should automatically issue if a petitioner satisfies the AEDPA standard[.]” Horn v. Banks, 536 U.S. 266, 272 (Sth Cir. 2002). A habeas corpus petitioner meeting his burden under 28 U.S.C. § 2254(d) must still comply with 28 U.S.C. § 2254(a): he must show that “he is in custody in violation of the Constitution or law and treaties of the United States.” This includes a showing that any constitutional error at trial “had a ‘substantial and injurious effect or influence in determining the jury's verdict.’” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see also Aleman, 320 F.3d at 690 (“Nothing in the AEDPA suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law that may have occurred did not affect the outcome”). Habeas relief is also unavailable if it would require the creation of a new constitutional rule. See Horn, __ U.S. at _, 122 S. Ct. at 2151 (relying on Teague v. Lane, 489 U.S. 288 (1989)). ability of an evidentiary hearing is within the discretion of this Court, see Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that it was “Congress’ intent to avoid unneeded evidentiary hearings in federal habeas corpus”); Rule 8 of the Rules Governing Section 2254 Cases (“If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require.”), this Court holds that there is no need for an evidentiary hearing in this case. 68a ANALYSIS OF THE CASE l. Effective Assistance of Counsel Medellin raises three claims criticizing his trial and appellate legal representation. Medellin first argues that trial counsel's representation in the punishment phase fell below constitutional norms when counsel failed to present evidence of his good probation history. Also, Medellin faults trial counsel for not alerting the jury to the fact that he would not be eligible for parole for at least thirty-five years if given a life sentence. Medellin finally faults appellate counsel for not seeking enforce- ment of an apparently erroneous order precluding the State from seeking the death penalty. The Texas courts rejected each of those claims. This Court will consider their merits under the relevant legal standards. A. Strickland standard The proper standard for evaluating the effectiveness of counsel is reasonable performance under prevailing pro- fessional norms. See Strickland v. Washington, 466 U.S. 668, 688 (1984). In Strickland, the Supreme Court estab- lished a two-prong test for resolving ineffective assis- tance claims. Under that test, a defendant must show that counsel's performance was deficient and prejudicial to the defense. /d. at 687. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” /d. at 700. Both the performance and prejudice components of the ineffective assistance of counsel inquiry are mixed ques- tions of law and fact. See Motley v. Collins, 18 F.3d 1223, 1226 (Sth Cir.), cert. denied, 513 U.S. 960 (1994). To establish deficient performance, the petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed. . . by 69a the Sixth Amendment.” Strickland, 466 U.S. at 687. In reviewing ineffectiveness claims “judicial scrutiny of counsel's performance must be highly deferential,” and every effort must be made to eliminate “the distorting effect of hindsight.” /d. at 689. A petitioner must also show that counsel's deficient performance resulted in a reasonable probability of a dif- ferent result. A reasonable probability is one that is suf- ficient to undermine confidence in the outcome. See id. However, “an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Thus, in addition to establishing a reasonable probability of a different result, a petitioner must demonstrate that counsel's deficient performance ren- dered the result of the proceeding fundamentally unfair or unreliable. See Vuong v. Scott, 62 F.3d 673, 685 (Sth Cir.) (citing Lockhart, 506 U.S. at 372), cert. denied, 516 U.S. 1005 (1995). The burden of proof in a habeas corpus proceeding attacking the effectiveness of trial counsel is on the peti- tioner. See Montoya, 226 F.3d at 408; Jernigan vy. Collins, 980 F.2d 292, 296 (Sth Cir. 1992), cert. denied, 508 U.S. 978 (1993). A petitioner’s conclusory and spec- ulative allegations will not suffice in this regard. See Kinnamon vy. Scott, 40 F.3d 731, 734-35 (Sth Cir.), cert. denied, 513 U.S. 1054 (1994); Barnard vy. Collins, 958 F.2d 634, 643 n.11(S5th Cit. 1992), cert. denied, 506 U.S. 1057 (1993). The Fifth Circuit has cautioned that [a] claim of ineffective assistance of counsel must be judged with eyes directly upon the reality of the Situation facing defense counsel at the time of the acts and not years later. This discipline best assures faithful application of the objective measure of 70a whether the decisions of defense counsel are within the range of those a reasonably competent lawyer might have made under those same facts and cir- cumstances. It also takes us far along in judging its prejudice, if that inquiry is required. Black v. Cockrell, 314 F.3d 752, 754-55 (Sth Cir. 2002), cert. denied, __U.S.__, __ 8. Ct. __, 2003 WL 1235155 (April 21, 2003).* The Court will apply the above-stated standards to Medellin’s ineffective-assistance-of-coun- sel claims. B. Failure to present evidence of good behavior while on juvenile probation During the punishment phase, trial counsel called sev- eral witnesses to present testimony that would support a . The Fifth Circuit's language echos the Strickland decision: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged con- duct, and to evaluate the conduct from counsel's perspective at the time... . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. * ee * Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.... The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689-90: see also Williams v. Collins, 16 F.3d 626.631 (5th Cir.), cert. denied, 512 U.S. 1289 (1994). Tila life sentence. These witnesses included former employ- ers, friends, and family members. Medellin also called a psychologist whose testimony suggested that Medellin would not be a future danger to society. Medellin now argues that trial counsel provided ineffective assistance by not calling his former juvenile probation officer as a witness. Medellin contends that trial counsel should have presented his probation officer's testimony to show that he would not be a danger when placed under supervi- sion, thus encouraging the jury to answer the special issues in a manner favoring a life sentence. Medellin fails to support this claim with competent evidence. Claims of uncalled witnesses are not favored on habeas review because they are “largely speculative.” Evans, 285 F.3d at 377. A petitioner raising such claims generally leaves a court to speculate on the exact nature of an uncalled witness’ putative testimony. Here, Medellin has failed to provide this Court with any reli- able indication of what testimony Medellin’s former pro- bation officer would have given if called as a witness. Medellin relies on an affidavit from his state habeas investigator stating that his probation officer, Maria Guerra, told her that Medellin “came on time” and that she “never had a problem” with him. (Docket Entry # 12, Exhibit F). Essentially, Ms. Guerra allegedly told the investigator that Medellin “did what he was supposed to do.” (Docket Entry # 12, Exhibit F). What Medellin’s former probation officer allegedly told his habeas inves- tigator is hearsay, and Medellin has not shown that it falls under any exception to the hearsay rule. Cf. FED R. EviD. 802; see also Herrera v. Collins, 506 U.S. 390, 417-18 (1993) (holding on the facts of the case that affi- davits containing hearsay statements obtained eight years after the habeas petitioner's trial were not suffi- cient to grant habeas relief). Absent the hearsay state- 72a ments in his investigator's affidavit, this Court is left with nothing but speculation concerning what a former probation officer may have added to Medellin’s defense. This claim could be rejected on that basis alone. Even assuming that the hearsay statements are reli- able, Medellin fails to show an entitlement to habeas relief. The state habeas court issued several factual find- ings commenting on the potential impact of the putative evidence: 42. The Court finds, based on the appellate record, that information, if any, that the applicant was punctual for appointments with his juvenile pro- bation officer and did not cause his probation officer any problems is inconsequential in light of the overwhelming evidence of the applicant's prior history and in light of the brutality of the offense which the applicant committed. 43. The Court finds, based on the appellate record, that information, if any, that the applicant pre- sented no problems for his probation officer does not establish that the applicant does well when supervised and does not establish that such evidence is indicative of the applicant's behavior in prison if he received a life sentence, in light of the extensive evidence showing the applicant's repeated illegal activities and inabil- ity to function in structured environments, including jail. State Habeas Record at 207, 99.42, 43. The state habeas court concluded that the absence of the probation evi- dence did not meet either prong of the Strickland anal- ysis. State Habeas Record at 215, 49. That decision was neither contrary to, nor an unreasonable application of, federal law. 73a Trial evidence portrayed Medellin as an extremely violent and depraved individual. The State presented extensive evidence that Medellin consistently broke the law, often in a violent manner. Medellin participated in the brutal gang rape and murder of two young girls. As noted by the Court of Criminal Appeals on direct review, “(t]he facts of the case are brutal and barbaric enough to alone support the jury’s answer to the [future dangerous] special issue.” Opinion on Direct Review (“Opinion”) at 7. The mere fact that Medellin was prompt at his pro- bation appointments and never caused his probation offi- cer problems would not overcome the substantial, nearly overwhelming, evidence of his future dangerousness. The punishment phase evidence rebuts Medellin’s insistence that the probation officer's testimony could have shown that he would not be a threat in a structured environment. The State presented evidence that, while incarcerated pending trial, Medellin secreted weapons in his cell. Medellin’s own actions refute any inference that he would not be violent in prison. In light of the depraved nature of the offense, his highly violent char- acter, and his poor behavior while incarcerated, the fact that Medellin was not tardy at his probation meetings does not create a reasonable probability that the jury would not find him to be a future danger. The state court's decision was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). This claim is denied. C. Failure to emphasize the parole eligibility accompanying a life sentence Medellin also faults counsel for not making the jury aware, either through voir dire questioning or through a jury instruction, that Texas law provided for parole only aiter thirty-five years incarceration if the jury returned 74a a life sentence. The trial court indicated to the defense that it would be willing to allow parole eligibility infor- mation to come before the jury. Tr. Vol. 27 at 12. Trial counsel Ms. Mazzagatti told that court that her co-coun- sel Mr. Millin has already articulated to the Court his reasons for not wanting to pursue the basis of informing the jurors of the 35 years because he had previously, based on his experience in six other capital murder trials, polled jurors and found that they believe that it was truly a life sentence. And so he thought as a strategy he would not proceed with the advising people on the 35 years. Tr. Vol. 27 at 12-13. Medellin now argues that trial coun- sel’s failure to present evidence of parole eligibility meets both prongs of the Strickland analysis. The state habeas court held that trial counsel made a strategic decision not to inform the jury about parole eli- gibility. The state habeas court concluded that “(trial counsel are not ineffective for making the reasonable, strategic decision, based on prior experience, not to request that the jury be informed and instructed con- cerning parole eligibility, an instruction which would make the jury aware that the eighteen-year old applicant would be eligible for parole at the relatively young age of forty-three.” State Habeas Record at 215-16, 411.” The state habeas court's decision was not contrary to, or an unreasonable application of, federal law. ° The Court notes that the state habeas court erred in its math- ematical computation of at what age Medellin would be eligible for parole. Nonetheless, the same principle applies whether Medellin would be released in his forties or his fifties—he could still commit a violent crime. 75a Trial counsel apparently hoped to leave the jury with the impression that a life sentence meant just that—life- long incarceration. The integrity of trial counsel's choice is reflected in concerns raised by the Fifth Circuit in other cases: that a jury's knowledge that the defendant could one day return to society may “ ‘predispose[ } them to impose a death penalty *” Woods v. Johnson, 75 F.3d 1017, 1037 (Sth Cir.) (quoting King v. Lynaugh, 850 F.2d 1055, 1060 (Sth Cir. 1988)), cert. denied, 519 U.S. 854 (1996). Indeed, as noted by the Fifth Circuit in another case, the petitioner's crime, and his revelry in it, leave no room for hypothesizing that a jury, faced with the information about parole for which [the petitioner] contends, would have been more lenient. If anything, given the egregious nature of this case, a suggestion to prospective jurors that [the petitioner] might return to society in [thirty-five] years could very easily have predisposed them to impose a death sentence. King, 850 F.2d at 1061. This concern is amplified in this case due to Medellin’s youth at the time of the murders. Trial counsel made a choice not to risk the chance that a jury would not view thirty-five years as an appropriate amount of time before parole, and thus return a death sentence. The Supreme Court has recognized that “[i]n a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the dea [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A03. Public record. Not legal advice.