Appendix — Medellin v. Texas

FILED

No. 06-984 AUG 2 3 2007

“ICE OF CLERK

In The See BRS , U.S.

Supreme Court of the Anited States

¢

JOSE ERNESTO MEDELLIN,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

SJ

On Writ of Certiorari to the

Court of Criminal Appeals of Texas

S

APPENDIX TO

BRIEF FOR RESPONDENT

°

GREG ABBOTT R. TED CRUZ

Attorney General of Texas Solicitor General

» se cor

KENT C. SULLIVAN Counsel of Record

First Assistant Attorney SEAN D. JORDAN

General Deputy Solicitor General

Eric J.R. NICHOLS KRISTOPHER S. MONSON

Deputy Attorney General DANIEL L. GEYSER

for Criminal Justice ADAM W. ASTON

Assistant Solicitors

General

OFFICE OF THE ATTORNEY

GENERAL

"0. Box 12548

Austin, Texas 78711

(512) 936-1700

COCKLE LAW BRIEP PRINTING (CO (ann) 995-4964

OR CALL COLLECT (402) 42-2831

(2)

(3)

(4)

(6)

APPENDIX

TABLE OF CONTENTS

Page

Medellin v. State, Order No. 71,997 (Tex.

a HRN. SEIS TUR IID Rocbetincipeinatsensoteniccciosdsinessionien App. 1

Statement of Jose Ernesto Medellin — State's

Trial Exhibit 113 at 000076, State v. Medellin,

No. 675430 (339th Dist. Ct. 1994)....000000000... App. 32

Affidavit of Manuel Perez Cardenas, the

Consul General of Mexico, filed in support of

State post-conviction application for writ of

habeas corpus; Ex parte Medellin, No. 675430-

A (339th Dist. Ct. Jan. 22, 2001); No. 50,191-

01 (Tex. Crim. App. Oct. 3, 2001)... App. 37

Ex parte Medellin, Order No. 675430-A (339th

en it Is ei MIEN Oiccchcedsinsinsenerannionnsncietiondadnitenis App. 39

Ex parte Medellin, Order No. 50191-01 (Tex.

ih Gy TRIE City MEIER Be chetnctiittisinntivenevetoniioninnanneen App. 64

Medellin v. Cockrell, Civ. No. H-01-4078 (S.D.

Fa I sett ccteciieriininntitniinnaninioccan nies App. 66

App. 1

MANDATE FROM

COURT OF CRIMINAL APPEALS

Austin, Texas

THE STATE OF TEXAS,

TO THE 339TH JUDICLAL 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 CRIMINAL

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 consid-

ered, 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 judgment be AFFIRMED, in

accordance with the Opinion of 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

App. 2

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

Appeal from HARRIS County

No. 71,997

JOSE ERNESTO MEDELLIN,

Appellant

we

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

§$ 2th). We will affirm.

Any subsequent references to Articles are to those in the Texas

(ode of Criminal Procedure unless otherwise indicated

App. 3

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 conclu-

sions of law regarding the outcome of a hearing on the

voluntariness of appellant's confession as required by

Article 38.22 § 6 of the Texas Code of Criminal 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 initiation 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-vear-old Jennifer Ertman and

sixteen-vear old Elizabeth Pena were visiting a girl-fmend.

Around 11:15 p.m., Jennifer and Elizabeth decided to head

for their respective homes by way of a shortcut across the

This cause was abated on May 8, 1996. pursuant to Tex R App

Proc 40\be 2) See Green oc State, 906 S Wild 937 Tex Crim. App

1995 The requested findings of fact and conclusion: of law were

thereafter forwarded to this Court The trial court having complied with

our order, we now continue the appeal of this cause

App. 4

railroad tracks. Jennifer and Elizabeth first encountered

Roman and Frank as they made their way home, but

managed to pass the brothers without incident. However,

as they passed appellant, he attempted to engage Eliza-

beth 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.

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, vaginally,

and anally raped both of them. After the assault, appel-

lant, Raul, Efrain, and Peter regrouped at Peter’s house

where he lived with his brother and sister-in-law, Joe and

Christina Caatu, 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 couple that two girls had

been talking to them and that he punched one of the girls

because she had started screaming after he grabbed her.

Appellant related to Joe and Christina that he sexu-

ally 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

App. 5

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 thereafter

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

because they did not have one at the scene of the incident,

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

' Apparently all of the gang members were talking about having

kilied the two girls which resulted in some degree of confusion on the

part of the witnesses However. Christina tesufied that she understood

appellant to have said that he personally participated in killing both of

the girls, while Joe tesufied that he understood appellant to have said

that he strangled one of the girls while his companions «illed the other

4 rl

App. 6

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, tapere-

corded 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

commented that he only peripherally participated in her

murder.

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 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 re-

peatedly 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 newspaper

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 expulsion from school

and subsequent placement at an alternative school.

Appellant was also known to the police. In January of

1992. police were called to a restaurant in response to

a disturbance cal] involving a terroristic threat. When

App. 7

initially 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 _ treated for

a gunshot wound. Testimony from an ployee 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

belligerent and uncooperative.

While appellant was in jail awaiting tral on the

instant offense, a search of appellant’s cell turned up a

“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 making.

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 evidence,

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 elements of the

offense beyond a reasonable deubt. Jackson v. Virginia,

443 U.S. 307 (1979). Appellant concedes that sufficient

evidence exists to prove his participation in the underlying

‘ A “shank” was described as a type of homemade or jailmade

knife

App. 8

offenses to the capital murder. However, appellant takes

issue with the sufficiency of the evidence to prove his

specific intent to commit the offense of murder. He con-

tends the evidence supporting this intent, the testimony of

Joe and Christina Cantu, was more accurately attribut-

able 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.

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 stomp-

ing 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 bevond a reasonable doubt.

Point of error number six is overruled.

App. 9

In his seventh point of error, appellant posits that the

evidence was insufficient to support the jury’s affirmative

answer to the issue on whether appellant would be a

continuing danger. Article 37.071 § 2(b)(1). In reviewing

whether the evidence is sufficient to support the jury’s

affirmative finding on the issue of future dangerousness,

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 reasona™ doubt that

“there is a probability that (appellant) would commit

criminal acts of ~iolence that would constitute a continu-

ing threat to society.” Article 37.071 § 2(b\(1); Jackson v.

Virginia, 443 U.S. 307 (1979); Allridge 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 defen-

dant’s probability for committing future acts of violence

than any other factor relevant to the second special issue.

ld.

At trial, the jury is - permitted to look at several

factors in its review of future dangerousness including, but

not limited to:

1. the circumstances of the capital offense. including

the defendant's state of mind and whether he was act-

ing 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;

1. the existence of a prior criminal record, and the

severity of the prior crimes;

App. 10

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 of-

fense;

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); Keetnon v.

State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987) (“Keeton

1”). 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

victims 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.

In contrast to showing remorse afterward, appellant

laughed about the incident, referred to the girls in deroga-

tory 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 individuals

with bodily harm or death and a history of being found in

possession of a firearm. Before his imprisonment, appel-

lant chose to spend his social hours with a group of young

men who engaged in illegal drinking and violent behavior.

App. 11

After being imprisoned, appellant continued to associate

himself with weapons.

Given the totality of the evidence, we hold that a

rational trier of fact could have believed beyond a reason-

able doubt that “there is a probability that [appellant]

would commit criminal acts of violence that would consti-

tute a continuing threat to society,” whether in prison or

out. Point of error seven is overruled.

If. 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 tral

court did not abuse its discretion in granting the challenge

for cause because the veniremember’s attitude about the

death penalty would have prevented or substantially

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 (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 veniremember. Coleman, supra.

The record reveals the following pertinent exchanges:

THE Court: Do you have any conscientious, reli-

gious, moral, or philosophical scruples against the in-

fliction of death as punishment in an appropriate

i

case’

([VENIREMEMBER:] No.

App. 12

(THE CourRT:| You said no, you don’t. So do you have

any opposition to the death penalty?

[VENIREMEMBER:] Religious beliefs. Thou shall not

kill.

{THE CourRT:| Well, you’re entitled to those; and no-

body is going to disagree with you.

* * cad

What we don’t want is someone whose beliefs are so

strong that when they take an oath to follow 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 pen-

alty?

| 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 11

other people in voting on these questions that we'll go

over, in voting in such a way that you know would re-

sult in this defendant receiving a death sentence if

the evidence called for it?

[\VENIREMEMBER:] If the evidence called for it, yes.

* ~ ~

App. 13

(THE S?TaTE:] And when you filled out your question-

naire, you stated to Question 86 —... that: I’m opposed

to capital punishment under any circumstances.

Okay. Now, | 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.

* * *

iTHE STATE:] In response to... Question No. 12, you

said: I do not believe in capital punishment under any

circumstance; and you checked that “disagree.”

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.

\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.

*< * a»

And if you were seated on this jury with those

conflicts that vou 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

App. 14

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 vr u feel?

[VENIREMEMBER:] Yes.

[THE STATE:] And you understand that I’m just a

mere mortal man. I don’t think | 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 manner or form,

you would try to find a way to come up with a life sen-

tence, would you not, if you were put in that box?

[VENIREMEMBER:}] That’s correct.

* * *

(THE STATE:] To be a juror would substantially im-

pair 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 — | would say just to be in the situa-

tion like this, so 1 would rather not.

(THE STATE:| Well, one of the magic words, we have to

have you say on the record. If it would substantially im-

pair vou from doing your duty as a juror, then you've

met the qualification under the law to be discharged.

Would it substantially umpair you —

'VENIREMEMBER:| Yes, it would.

App. 15

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 totality 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.

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 venireperson

R. Rodriguez. The record reveals that after the State exer-

cised its peremptory strike on the venireperson, appellant

’ Batson v. Kentucky, 476 US 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 im-

paneled 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 defendunt 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 representing 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

mve a racially neutral explanation for the challenges. The

burden of persuasion remains with the defendant to estab-

lish purposeful discrimination

App. 16

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. Furthermore, 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 v. State, 864

S.W.2d 524, 528 (Tex. Crim. App. 1993), cert. denied, __

U.S.___, 114 §.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. Crim.

App.), cert. denied, __ U.S. ___, 114 S.Ct. 455 (1993):

In order to invoke the protections set forth in

Batson, appellant must first raise an inference

of purposeful discrimination through the State’s

use of its peremptory strikes. Once appellant has

established such purposeful discrimination, the

burden of production shifts to the prosecutor to

come forward with racially neutral explanations

for the strikes. Once the prosecutor has articu-

lated racially neutral explanations, the burden

shifts back to the defendant to persuade the trial

court that the “neutral explanation” for the

strike is really a pretext for discrimination. [Ci-

tations omitted.] This Court will reverse the trial

court’s resulution 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

App. 17

Batson claim and not a Wainwright v. Witt claim, the trial

court held that a prima facie case had been established.

The prosecutor then gave the following race reasons for

striking Rodriguez:

My reason for striking Mr. Rodriguez is

there was a great deal of hesitation with his ex-

planation on the death penalty when he was

speaking with you. He’s also for the death pen-

alty 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.

With respect to the question | 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 siapped, 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 were only pretexts for

discrimination. A review of the entirety of the veniremem-

ber'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.

469 US 412:+1955)

App. 18

In his eighth and ninth points 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 estab-

lished 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.

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:

* = toad

(4) is a person enrolled and in actual atten-

dance 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

* Appellant contends that she was not properly excused pursuant

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 1s a

“technical” or “vocational!” school and not an “institution of higher

education.” Given the disposition of the point of error, we need not

address this contention here

App. 19

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 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 previ-

ous point, we hold that, even if the trial court erred in

excusing the veniremember pursuant 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.

Ill. 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

Article 35 03 states in pertinent part

Sec 1 Except as provided by Sections 2 and 3 of this article,

the court shall then hear and determine excuses offered for

nut serving as 4 juror, and if the court deems the excuse suf.-

ficient, the court shall discharge the juror or postpone the

yuror’s service to a date specified by the court

App. 20

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

statement 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 probable

cause. We disagree. It is well-settled that, in determining

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 (1993). How-

ever, 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.” Jd.

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

Because appellant has given us nothing more than his conclu-

sory statement that the affidavit was insufficient to show probable

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.

App. 21

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 difficult, if not impossible.

The bodies were removed to the Harris County

Morgue for complete autopsies and for dental

unmalysis and comparison with the dental charts

of two missing females. Jennifer Ertman and

Elizabeth Pena.

Your affiant is personally aware that a report

had been made to the Houston Police Depart-

ment 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 De-

partment and which states that on June 25,

1993, Randy Ertman called the Department to

state that his daughter, Jennifer Ertman and her

friend, Elizabeth Pena were last seen walking

from a friends house at approximately 11:00 P.M.

on June 24, 1993 and that they said that they

were going to take the short cut along the rail-

road tracks which are near T. C. Jester and West

34th and that they were going to go to Ertman’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 or-

der to locate the two missing girls.

App. 22

Your affiant is aware that on June 27, 1993 a

‘man called the Houston Police Department dis-

patcher 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 Po-

lice 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 tw 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 bodies of the

two girls.

Later on June 24, [sic] 1993, your affiant re-

ceived information from officer Ken Weiner of the

Houston Police Department Crime Stopper Divi-

sion. 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 several 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

App. 23

Homicide Division called the telephone number

and spoke with veronica 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 Chris-

tina 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 Po-

lice Department Homicide Division on June 28,

1993 in order to talk with him about this infor-

mation. Cantu gave a sworn affidavit to [Officer|

Todd Miller in which he states, under oath, that

in the early morning 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

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 railroad 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 out 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.

App. 24

Your affiant has checked the records of the Hous-

ton Police Department and learned that Joe

Adam Cantu has only one arrest for a Class C

Misdemeanor ticket but that he has no other ar-

rests and is going to school at this time and is

close to gradueting from the school.

As of the making of this affidavit your affiant has

not learned from the Harris County Medical Ex-

aminer’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 experi-

ence as a Homicide investigator for the Houston

Police Department, it is the opinion of your affi-

ant that the DNA of each of the men who raped,

the girls will be present in fluid samples ex-

tracted from the deceased girls during the autop-

sies. Further, by taking blood and saliva samples

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

evidence of the guilt of each defendant in these

Capital Murder cases.

The affidavit contains facts which establish probable

cause. In short, the affidavit states that two girls had

App. 25

disappeared 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

subsequent 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 facis contained in the affida-

vit 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 grounds, ___

U.S. __, 113 S.Ct. 3026 (1993)"'; Wilkerson v. State, 726

S.W.2d 542 ‘Tex. Crim. App. 1986). cert. dented, 480 U.S.

940 (1987). } ence, we hold that the affidavit contained

sufficient information with which a detached magistrate

could have found probable cause. /d.

Because appellant was arrested pursuant to a lawful

arrest warrant, the trial court did not err in denying

Earhart was vacated by the United States Supreme Court and

remanded to: this Court in light of Johnson ct. Texas, 509 vs.

11S SCt 2656 (1995) The case was then reaffirmed by this Court

Karhkart v. State, S77 S.W.2d 759 (Tex. Crim. App.!, cert denied, __

US. .115 8.Ct 43151994!

App. 26

appellant’s motion to suppress his custodial statement.”

Point of error two is overruled.

In supplemental points of error two-(A) through two-

(E), appellant 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 I, §§ 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

voluntariness 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.

At a hearing on a motion to suppress a defendant's

statement, the trial court is the sole judge of the credibility

of witnesses and the weight to be given their testimony.

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 f adings. /d. On appeal,

we only consider whether the trial court applied the law to

the facts properly. Jd. In Clewts, we held that courts of

appeals have jurisdiction to review questions of fact, and

in reviewing factual sufficiency of the elements of the

* 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. Proce. 74'f

App. 27

offense, the court of appeals “should set aside the verdict

only if it is so contrary to the overwhelming 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 giving

his written statement, appellant gave a tape recorded

statement to another officer. This tape recorded statement

was not admitted into evidence and appellant does not

question its legality. But appellant says the recording

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 following

findings of fact regarding the taped conversation:

Officer C.C. Abbondandolo . .. conducted an oral,

taperecorded interview with the defendant.

Abbondandolo provided cigarettes to the defen-

dant 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

v. Arizona, supra. The appellant asked if an

attorney could be appointed immediately, and

’ See German v. State, No. 10-94-192-CR ship 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 factual

sulficrenes applies to trial court's ruling on mixed questions of fact and

law!

App. 28

Abbondandolo responded that if he wanted an at-

torney at that time, they would have to termi-

nate the interview.

The defendant indicated that he desired to con-

tinue with the interview, and he voluntarily dis-

cussed 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 written

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

value in violation of Tex. R. Crim. Evid. 403. Appellant

recognizes that this Court has held that a photograph is

generally admissible where a verbal description of the

same is admissible. Long v. 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 photv-

graphs’ prejudicial value substantially outweighed any

App. 29

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 remainder being

autopsy photographs of the two different victims.

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

photographs to testify to the nature and extent of the

injuries inflicted. While these photographs are also gro-

tesque and depict extensive environmental! deterioration 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 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 is overruled.

App. 30

Finding no reversible error, we affirm the judgment of

the trial court.

MEYERS, J.

Delivered March 19, 1997

Do Not Publish

En Banc

App. 31

Appeal from Harris County

No. 71,997

JOSE ERNESTO MEDELLIN,

Appellant

eo

THE STATE OF TEXAS,

Appellee

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

App. 32

Statement of Jose Ernesto Medellin,

State’s Trial Exhibit 113 at 000076,

State v. Medellin, No. 675430 (339th Dist. Ct. 1994)

STATEMENT OF PERSON IN CUSTODY

Tuesday, June 29, 1993 Time: 554 Hrs.

Statement of Jose Ernesto Medellin taken in Harris

County, Texas.

Prior to making this statement | was warned by Sgt. L.W.

Hoffmaster of the Houston Police Homicide Division, the

person to whom this statement was made, that:

1.) JEM I have the right to remain silent and not make

any statement at all and any statement | make

may and probably will be used against me at

my trial;

Response: yes sir.

to

2...

7?

—

Any statement | make may be used as evidence

against me in court; Response: yes.

3.) JEM I have the right to have a lawyer present to

advise me prior to and during any questioning;

Response: yes sir.

4.) JEM If 1 am unable to employ a lawyer, I have the

right to have a lawyer appointed to advise me

prior to and during any questioning and;

Response: yes sir.

5.) JEM I have the right to terminate, or stop, this

interview at any time.

Response: yes sir.

or

C.

2

_.

Prior to and during the making of this state-

ment I knowingly, intelligently and voluntarily

waived, or gave up, the rights set out above and

made the following voluntary statement:

Response: yes sir. JEM

App. 33

My name is Jose Ernesto Medellin. I am 18 years old years

old. I was born in Laredo Mexico on 3/4/75. | last went to

school at Eisenhower High School and have a total of 8

years of formal] education.

On Thursday June 24th, 1993, around 8:30 or 9:00PM in

the evening, | went to the Brook Green apartments with

Raual (doesn’t know last name), Peter Cantu, my little

brother Venancio Medellin Jr., Efrain Perez, Frank San-

daval and his brother Roman Sandaval. Another friend

Sean Derrick Obnen, lives in the Brook Green Apart-

ments. | went to Sean’s Apartment and to!d him that we

were going to initiate Raual into our gang. Sean and |

went to the parkinglot to go meet the others. Then we

went to the railroad tracks behind the Brook Green

Apartments and crossed over to the grass area on the

banks of the bayou. Peter told Sean to take him, meaning

to fight Raual, Raual’s initiation was going to be to fight

all of us. Sean said no | can't see, it’s too dark. Sean has

vision problems.

Jost E. MEDELLIN

Signature

Witnesses:

Sor. G. J. NOVAK 6-29-93 7:23 AM

M. E. DoyLr 6-29-93 7:23 AM

Page 2 of Custodial Statement of Jose Ernesto Medellin.

Me and Peter were talking to Sean about it. We called

Roman Sandoval to where we were and told Roman to

take him. Roman said no man he’s a little bit to big for me.

Then we iold Roman that if we were to get into a fight out

on the street he wouldn't be able to say that. Roman said

App. 34

fuck it, I'll take him. Roman went up to Raual and started

fighting with him. They stopped fighting and Sean said

fuck it, ll whip his ass to. Then Sean started fighting

with Raual. They stopped fighting and Peter said I'll take

him. I told Peter no you are the leader I'll take him. |

fought Raual and then we stopped. Then Peter said you

take him Junior, meaning Efrain Perez and they started

fighting. When they stopped Peter told Raual that if he

could stand up for more than ten seconds, he was in. Then

we went back to the tracks in the middle of the railroad

bridge and we were drinking up there. We were talking

and drinking and we said fuck it lets find something else

for him to do.

We were walking back to the parking lot and as we were

walking down the tracks a girl passed by us. When Peter

saw the second girl, he said kick his ass Junior to Efrain

Perez. Peter thought the hispanic girl was a boy. We

started talking to the two girls, they told us their names

were Jenifer and Elizabeth and that they had to go home.

Peter grabbed Jenifer and said bitch your going to come

over here. Peter told Raual to grab the other one. The were

saying let us go please and Peter said bitch were going to

fuck your ass. Elizabeth said don’t hurt me I'll let you do

it. | was with Peter and Elizabeth and Sean, Raual and

Efrain were with Jenifer. Peter was having sex with

Elizabeth, then Peter ask her for her phone number and

she gave him a number, 686-3267. Then Peter ask her why

don’t you suck my friends dick, meaning me, and she said

yes. Then she did it. Elizabeth told me to hurray up that

she had to go home. She ask Peter you're going to let us go

right and he said yes.

App. 35

While this was going on Raual, Sean and Efrain were

taking turns having sex with Jenifer.

Then Peter called Raual and me over to where he was.

Peter told my little brother to get all their stuff, beepers,

watch, rings and necklaces. Then we took them to the

woods and Efrain began having sex with Elizabeth in the

woods and Sean with Jenifer. Then Peter told Raual to kill

Jenifer, Sean handed Raual a belt and said do it with this.

Raual strangled Jenifer with the belt. The belt tore and

Jenifer fell to the ground and Peter told Raual to use his

foot, to put his foot on her throat and step on it. Then

Raual did that. Peter told Efrain to do the same thing to

Elizabeth but to use his shoe lace. Efrain couldn't get a

good grip so he told me to hold one end of the shoe lace.

Then Efrain got a better grip on the shoe lace and took it

JOSE E. MEDELLIN

Signature

Witnesses:

Sct. G. J. NOVAK 6-29-93 7:23 AM

M.E. DOYLE __ 6-29-93 7:23 AM

Page 3 of Custodial Statement of Jose Ernesto Medellin.

back and continued to choke Elizabeth. Efrain let go and

she was still moving and Peter told him to step on her

throat and Efrain did that.

As all of this was going on, my little brother walked by and

Peter told me to tell him to leave, so that he wouldn't see it

but they had already started killing the girls.

As we were leaving Raual said | don't think this bitch

is dead, he was talking about Jenifer. Raual started

App. 36

stomping on Jenifer’s face with his foot. Then he started

doing the same thing to Elizabeth. Then we left.

Raual kept some of the jewelry and | threw one of the

beepers in the bayou and Peter threw the other beeper in

the bayou. Then we went home. The Mickey Mouse Watch

that my little brother Venancio had belonged to one of the

girls, | don’t know which one.

| have read this, my statement, consisting of 3 page/pages,

and finished reading it at 7:23 Hrs.

JOSE E. MEDELLIN

Signature

Witnesses:

Scr. G. J. NOVAK Pr# 39034 Date: 6-29-93

M. E. DOYLE Pr# 40900 Time: 07:23 Hrs.

End of statement of Jose Ernesto Medellin.

App. 37

Affidavit of Manuel Perez Cardenas, the Consul

General of Mexico, filed in support of state

post-conviction application for a writ of habeas corpus;

Ex parte Medellin, No. 675430-A (339th Dist. Ct. 2001);

No. 50,191-01 (Tex. Crim. App. 2001).

AFFIDAVIT OF MANUEL PEREZ-CARDENAS

STATE OF TEXAS §

COUNTY OF HARRIS §

My name is Manuel Perez Cardenas, Consul General

of Mexico in Houston, Texas. My current address is 1440

Westoffice Drive, Houston Texas 77042. I am above the age

of eighteen (18) years and am competent in all respects to

make this oath. | am personally acquainted with the facts

herein stated.

] am the Consul General of Mexico in Houston, Texas.

One of the duties of the Mexican Consulate in Houston is

to advise any Mexican National who, having been arrested

or detained for some crime committed here, exercises his

right under Article 36 of the Vienna Convention on Consu-

lar Relations of 1963, to contact the Mexican Consulate for

help in responding to the fact of his detention, dealing

with the arresting authority, and arranging for represcn-

tation for local legal counsel. When Jose Ernesto Medel-

lin was arrested for capital murder in Harris County he

was not advised of his right to contact with his Consu-

late, the Mexican Consulate was not timely informed.

Had the Mexican Consulate been informed of Jose

Ernesto Medellin arrest, an officer of the Consulate

would have contacted him immediately to explain to him

the full significance and importance of his right under

Miranda Warning included te have legal counsel present

to serve as an intermediary between himself and the

App. 38

police in the custodial setting (particularly in a capital

charge). Had the Mexican Consulate been timely informed

of Jose Ernesto Medellin’s arrest, an officer of the Consu-

late would have immediately arranged to have legal

counsel present during any custodial interrogation. Fi-

nally, had the Mexican Consulate been told Jose Ernesto

Medellin’s detention, the Consulate representative would

have strongly advised him that he had a right not to speak

to the police except on the advice and in the presence of

his legal counsel, and that it would be in his best interest

not to speak to the police unless and until his lawyer

might advise that he do so. “Nothing included in this

document shall be construed or interpreted as a waiver of

the immunities, privileges and rights of Consul General

Manuel Perez Cardenas, established by the Vienna Con-

vent on Consular Relations, the US-Mexico Consular

Convention of 1942, and international law”.

MANUEL PEREZ-CARDENAS

Manuel Perez-Cardenas

Consul General of Mexico in Houston

SIGNED under oath before me on March 24, 1998

[NOTARY STAMP]

LISA MILSTEIN

Notary Public, State of Texas

My Commission Expires

04-15-2001

LISA MILSTEIN

NOTARY PUBLIC, State of Texas

App. 39

IN THE 339TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

Cause No. 675430-A

EX PARTE

JOSE ERNESTO MEDELLIN.

Applicant

RESPONDENT'S PROPOSED FINDINGS OF FACT,

CONCLUSIONS OF LAW AND ORDER

The Court, having considered the applicant's applica-

tion for writ of habeas corpus, the Respondent’s Original

Answer, the evidence elicited at the applicant’s capital

murder trial in cause no. 675430, affidavits submitted in

cause no. 675430-A, and official court documents and

records, makes the following findings of fact and conclu-

sions of law:

FINDINGS OF FACT

1. The applicant, Jose Ernesto Medellin, was in-

dicted and convicted of the felony offense of capital murder

in cause no. 675-430 in the 339th District Court of Harris

County, Texas.

2. The applicant was represented during trial by

counsel Jack Millin, now deceased, and Linda Mazzagatti.

3. On September 20, 1994, the trial court assessed

the applicant’s punishment at death by lethal injection

App. 40

af‘er the jury affirmatively answered the first two special

issues and negatively answered the third special issue.

4. The Court of Cr.minal Appeals affirmed the

applicant'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 publication).

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 Harris

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 prosecu-

tor as “on the attack” (R. XX — 184).

7. The Court finds that the State exercised a per-

emptory strike at the conclusion of the voir dire examina-

tion of prospective juror Elizabeth Berry, and the applicant

made a Batson challenge (R. XX - 226).

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

App. 41

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

serving 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).

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,

App. 42

two white females, an Hispanic female, an Hispanic 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 juror 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 Rodri-

guez: 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 Rodri-

guez’s position on the death penalty; and, that 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

App. 43

philosophical reply during voir dire examination concern-

ing “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 pro-

spective juror Rafael] Rodriguez was a racially neutral

explanation 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) Porfirio Rodriguez, Jr.,

Hispanic male; (12) Elizabeth Ann Berry, black female;

and (13) Rafael Rodriguez, Hispanic 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:

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 challenges

against Hispanic male venire members. And this also

includes a Batson Challenge. And, of course, the

App. 44

Court - I agree that whatever Batson challenges were

preserved during the proper objection at the time

would be the Batson Challenges that would be con-

sidered. 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 per-

emptory 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. | — 264-5) (R. XXVI — 11-2).

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 tria] judge in the

applicant’s case and the trial judge in Kenneth Wayne

App. 45

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

vu. Kenneth Wayne Morris, cause no. 597997.

26. The Court finds that the Court of Criminal

Appeals, on direct appeal of the capital murder conviction

of Kenneth Wayne Morris, overruled Morris’ claim that the

trial court improperly based her ruling on the absence of

purposeful discrimination by the same prosecutor 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 prosecutor's credibility, it

is not error for the court to consider its past experiences

with a prosecutor in determining his credibility.” Morris v.

State, 940 S.W.2d 610, 612 (Tex. Crim. App. 1996).

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 to preclude the State from seeking

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. I —- 95-107).

App. 46

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. I — 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. I — 108).

30. The Court finds, based on the appellate record,

that the trial court ruled on pre-trial motions and verbally

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 recollec-

tion, 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 tou preclude the State from seeking the death

penalty, not a motion requesting that the State be pre-

cluded from carrying 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

App. 47

the applicant’s resulting death sentence, that the inadver-

tent error on the written order accompanying the appli-

cant’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

during 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

complainant and Ertman after the repeated sexual as-

saults (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 appli-

cant 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 applicant, 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

App. 48

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 remainder 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

evidence 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-vear old student in 1992; that he was confronta-

tional, 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

school by 1992; that he was expelled from school after

being in a gang-related fight; and, that the applicant never

App. 49

altered his behavior while attending schoo! 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

emergency 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 sharp-

ened end was also found in the mattress in the applicant's

lock-down cel] (R. XXXIV — 225-7).

App. 50

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 incon-

sequential 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 applicant'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 ir

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 eligibility

in the event of a life sentence because counsel’s previous

experience in capital cases showed that polied jurors

thought that a life sentence was truly a life sentence (R. V.

XXVIT - 12-3).

45. The Court finds that the issue of parole eligibil-

ity 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. Martt-

nez v. State, 924 S.W.2d 693 ‘Tex. Crim. App. 1996);

App. 51

Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 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 foreign

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 individual

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

applicant’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 initially 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).

App. 52

49. The Court finds that the applicant’s school

records contain the notation “516396627” under social

security number for the applicant.

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 re-

questing assistance from the Mexican consulate.

51. The Court finds that it is a reasonable inference

that the applicant was familiar with the laws and proce-

dures 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 crimi-

nal history.

52. The Court finds that the applicant was informed

of his Miranda rights prior to giving a statement admit-

ting 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;

App. 53

specifically, that “the Vienna Convention Treaty illustrates

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).

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 v. Johnson,

81 F.3d 515, 520 (5th Cir. 1996), cert. denied, US. __,

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, 383-4245)(R XXX — 490-4540).

97. The Court finds, according to the credible affida-

vit 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 testimony as

App. 54

witnesses; that Hays did not promise the Cantus any

reward money in exchange for their cooperation or testi-

mony; and, that Hays did not promise “protection” to

either Christina or Joe Cantu.

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 beat-

ing 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 affida-

vit 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 Attor-

neys 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

App. 55

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 dis-

missed prior to the trials of the applicant and co-defendant

Efrain Perez, that Munier made no promises or assur-

ances to either Joe or Christina Cantu concerning any

reward money in exchange for their cooperation or testi-

mony; Munier was aware that Christina Cantu was

pregnant, but Munier was not aware of any miscarriage;

and, that Munier was never told of any alleged beating of

Christina Cantu.

60. The Court finds, according to the credible affida-

vit 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 testimony;

that Vinson has no specific recollection of being aware of

either Joe Cantu’s 1994 arrest for a misdemeanor 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 Chris-

tina 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.

App. 56

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

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

terroristic 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

Vollman’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, requesting,

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

App. 57

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 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 neu-

tral).

2. The trial court properly found that the State’s

explanation 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 neu-

tral explanation which does not violate the precepts of

Batson v. 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 finding that prosecutor’s

reasons for striking prospective juror were racially neutral

where prosecutor stated that strike was based, in part, on

prospective juror’s volunteer 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 peremptory 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

App. 58

purposeful 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 discriminate, and

defendant must show this fact and other relevant circum-

stances 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

present 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. Jd. (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 susceptible to two

reasonable interpretations and trial court’s decision is in

accord with one of these two interpretations).

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 violated.

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

App. 59

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 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 v. 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 - ineffeciive assistance of counsel re

contacting probation officer:

9. The applicant fails to show deficient performance,

much less harm, in trial counsel's not contacting probation

officer Guerra and not presenting punishment evidence

that the applicant was allegedly punctual for appoint-

ments with his probation officer and that the applicant

allegedly presented no problems for his probation 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

App. 60

environments of school and jail. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984).

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) (holding

issue of parole eligibility not a matter for jury’s considera-

tion in capital murder trial); Rhoades v. State, 934 S.W.2d

113 (Tex. Crim. App. 1996) (citing Smith v. State, 898

S.W.2d 838, 246 (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 strategy only

when it is without a plausible basis).

12. Tae applicant fails to show deficient perform-

ance, much less harm, based on trial counsels’ reasonable

trial strategy of not informing the jury concerning parole

eligibility; 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

App. 61

Vienna Convention, the applicant is procedurally barred

from presenting his habeas claim that the alleged violation

of the Vienna Convention violated his constitutional

rights. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim.

App. 1982); Williams v. State, 549 S.W.2d 183, 187 (Tex.

Crim. App. 1977).

14. In the alternative, the applicant fails to show

foreign nationality which requires notification of a foreign

consulate when a “national” of the “sending state” is

detained in custody. See Maldonado v. State, 998 S.W.2d

239, 246-7 (Tex. Crim. App. 1999) (holding that defendant

not entitled to art. 38.23 instruction where defendant 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

individual, 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

Mexican consulate concerning his arrest for capital mur-

der; the applicant was provided with effective legal repre-

sentation upon the applicant's request; and, the applicant’s

constitutional rights were safeguarded. See and cf. Rocha

v. State, 16 S.W.3d 1, 19 ‘Tex. Crim. App. 2000) ‘holding

that treaties do not constitute “laws” for purpose of TEX.

App. 62

Cope CRIM. Proc. art. 38.23, and Vienna Convention

Treaty illustrates proposition that art. 38.23 is not suit-

able enforcement mechanism for international treaties).

17. The applicant fails to show that his rights,

pursuant to U.S. Const. amends. V, VI, and XIV, were

violated and fails to show that any non-notification of the

Mexican authorities impacted on the validity of his convic-

tion or punishment. Ex paste 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 tc 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 information in the

instant case. United States v. Agurs, 427 U.S. 97, 96S. 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

conviction was unlawfully obtained. Accordingly, it 1s

App. 63

recommended to the Texas Court of Criminal Appeals that

relief be denied.

BY THE FOLLOWING SIGNATURE, THE COURT

ADOPTS THE RESPONDENT'S PROPOSED FINDINGS

OF FACT AND CONCLUSIONS OF LAW IN CAUSE NO.

675430-A.

Signed this 22nd day of January, 2001.

CAPRICE COSPER

CAPRICE COSPER

Presiding Judge

339th District Court

App. 64

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. 50,191-01

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

punishment 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 allega-

tions challenging the validity of his conviction and result-

ing sentence. The trial court has entered findings of facts

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

App. 65

upon such basis the relief sought by the applicant is

denied.

IT 1T SO ORDERED THIS 38RD Day or OcTrosBer, 2001.

Do Not Publish

App. 66

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-01-4078

JOSE ERNESTO MEDELLIN,

Petitioner,

= Vv. —

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 consid-

ered 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 judgment, denies

Medellin’s petition, and denies a Certificate of Appealabil-

ity.

App. 67

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 mem-

bers raped and killed sixteen-year-old Elizabeth Pena and

her fourteen-year-old friend, Jennifer Ertman. 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 Elizabeth 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 evidence

' Medellin confessed to his participation in the rape and murder 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 participated in the rape

of Ehzabeth 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; capital murder of

Elizabeth Pena in the course of a robbery, and capital murder of Eliza-

beth Pena in the course of aggravated sexual assault. Tr. Vol. | at 6. The

jury instructions provided for his conviction under any of those theories.

Ty. Vol. | at 285-86. The jury returned a genera! verdict of guilty without

specifying under which theory it convicted Medellin. Tr. Vol. | at 294.

App. 68

of Medellin’s violent character and criminal offenses.

Medellin had a long history of violent threats and misbe-

havior, 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 punishment 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 unneces-

sary 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).

On November 28, 2001, Medellin filed a preliminary

federal petition for a writ of habeas corpus through ap-

pointed counsel. (Docket Entry # 5). On July 18, 2002,

' Judge Caprice Cosper presided over Medellin’s trial and his state

habeas proceedings

App. 69

Medellin amended his habeas petition. (Docket Entry

# 12). Medellin’s amended petition raises five grounds for

habeas relief:

1. Medellin’s Sixth Amendment right to effective

assistance of counsel was violated by trial coun-

sel’s’ failure to present evidence of his good be-

havior while on juvenile probation, trial counsel’s

failure to present evidence of the parole eligibil-

ity 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;

2. 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 manner;

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

tu capital punishment.

Respondent secks summary judgment on the merits of

Medellin’s claims. ‘Docket Entry # 16). Medellin has filed

a response to the summary judgment motion. (Docket

Entry # 24).

* Jack Millin and Linda Mazzagatti represented Medellin at tnal

For the sake of clarity. the Court will generally refer to these attorneys

ecnjunctively as “tral counsel.”

~ Randy McDonald represented Medellin on appeal This Court will

refer to hum as “appellate counsel.”

App. 70

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 Communications, Inc., 87

F.3d 745, 747 (5th 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 (5th Cir. 1987). “As a

general principle, Rule 56 of the Federal Rules of Civil

Procedure, relating to summary judgment, applies with

equal force in the context of habeas corpus cases.” Clark v.

Johnson, 202 F.3d 760, 764 (5th 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 Gov-

erning Section 2254 Cases in the United States District

Courts. In habeas proceedings, a court’s summary judg-

ment review is circumscribed by the AEDPA. See Proctor v.

Cockrell, 283 F.3d 726, 729-30 (5th 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.” Bell 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 federalism, comity, and finality

of judgments,” Evans v. Cockrell, 285 F.3d 370, 374 (5th

Cir. 2002), “substantially restrictling] the scope of federal

review of state criminal court proceedings.” Montoya v.

App. 71

Johnson, 226 F.3d 399,404 (5th Cir. 2000), cert. denied,

532 U.S. 1067 (2001); see also Woodford v. Visciotti, __

U.S. __, 123 S. Ct. 357, 360 (2002) (“[Section] 2254(d)’s

highly deferential standard for evaluating state-court

rulings ... demands that state court decisions be given the

benefit of the doubt.”). In essence, the “AEDPA was en-

acted, 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 (5th Cir. 2003).

The AEDPA provides that a federal habeas petition

shall not be granted with respect to any claim adiudicated

on the merits in state court unless the adjudication:

(1) resulted in a decision that was contrary to, or in-

volved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an un-

reasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254 idv1)-12). 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 (5th 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 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

App. 72

holds that a state court decision is “contrary to” federal

precedent if: (1) the state court’s conclusion 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 indistinguish-

able 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 federal law if it “identifies the correct governing

legal rule from |the Supreme Court] cases but unreasona-

bly 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 a new context where it should not apply or unreasona-

bly 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 evidence.”

Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002), cert.

denied, __ US. __, 123 S. Ct. 963 (2003). In reviewing

the state court’s substantive decision under the AEDPA,

* An unreasonable, application of federal law “is different from an

incorrect application of federal law.” Jd. 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 ‘differentiating

between an incorrect state determination and an “unreasonable

application uf federal law”). Valdez v. Cockrel!, 274 F.3d 941, 947 5th

Cir. 2001) “Thus, a state court application may be incorrect in our

independent judgment and, yet. reasonable.”). cert denied, _ U Dh mas

123 S. Ct. 106 +2002

App. 73

this court focuses on “‘determining the reasonableness of

the state court's ‘decision,’... not grading their papers.’”

Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001)

(quoting Cruz v. Miller, 255 F.3d 77, 86 (2d Cr. 2001)), cert.

denied, 535 U.S. 982 (2002); cf. Dillard v. Blackburn, 780

F.2d 509, 513 (5th 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 resolu-

tion 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 proceeding|.}”

Miller-El v. Cockrell, _ US. __, 123 S.Ct. 1029, 1043

(2003). A federal habeas court must presume the underlying

factua] determinations of the state court to be correct, unless

the petitioner “rebut|s} the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see

also Miller-El, U.S. at_ _, 123 S. Ct. At 1036.

The AEDPA also established strict standards limiting the

availability of evidentiary hearings in federa! court. See 28 USC

§ 2254d'e" 2). Medellin requests a hearing but has not shown that such a

hearing is necessary to the adjudication of his claims. As the availabil-

ity of an evidentiary hearing ts within the discretion of this Court. see

Williams ve Taylor 529 US. 420, 436 (2000) ‘stating that it was

“Congress intent to avoid unneeded evidentiary hearings in federal

habeas corpus”', Rule § of the Rules Governing Section 2254 Cases (“If

i uppears 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 1s no need for an evidentiary hearing in this

case

App. 74

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.

§$ 2254(d) “does not require federal habeas courts to grant

relief reflexively.” Robertson, 324 F. 3d at 306; see also

Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003)

(finding that 28 U.S.C. § 2254(d) does not entitle a peti-

tioner to habeas relief). No Supreme Court case “hals}

suggested that a writ of habeas corpus should automati-

cally issue if a petitioner satisfies the AEDPA standard[.]”

Horn v. Banks, 536 U.S. 266, 272 (5th 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 Consti-

tution 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 ‘relving on Teague v. Lane, 489 U.S. 288

(1989))

ANALYSIS OF THE CASE

I. Effective Assistance of Counsel

Medellin raises three claims criticizing his trial and

appellate legal representation. Medellin first argues that

App. 75

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 counse] for not alerting the jury to the fact that

he would not be eligible for parole for at ‘east thirty-five

years if given a life sentence. Medellin finally faults

appellate counsel for not seeking enforcement of an appar-

ently 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

professional norms. See Strickland v. Washington, 466

U.S. 668, 688 (1984). In Strickland, the Supreme Court

established a two-prong test for resolving ineffective

assistance 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.” Jd. 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 the Sixth Amendment.” Strickland, 466 U.S. at 687.

In reviewing ineffectiveness claims “judicial scrutiny of

App. 76

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

different result. A reasonable probability is one that is

sufficient 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 rendered 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 v. Collins,

980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 508 U.S.

978 (1993). A petitioner's conclusory and speculative

allegations will not suffice in this regard. See Kinnamon v.

Scott, 40 F.3d 731, 734-35 (5th Cir.), cert. denied, 513 U.S.

1054 (1994); Barnard v. Collins, 958 F.2d 634, 643 n.11

(5th Cir. 1992), cert. denied, 506 U.S. 1057 (1993). The

Fifth Circuit has cautioned that

(al 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 whether the decisions of defense

°

i

App. 7

counsel are within the range of those a reasona-

bly competent lawyer might have made under

those same facts and circumstances. It also takes

us far along in judging its prejudice, if that in-

quiry is required.

Black v. Cockrell, 314 F.3d 752, 754-55 (5th 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-counsel

claims.

* The Fifth Circuit's language echos [sic] 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 conduct, and to evaluate the conduct from coun-

sel’s perspective at the ume... . 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

wv * *

Thus, a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel's challenged conduct on

the fucts of the particular case, viewed as of the time

of counsel's conduct The court must then determine

whether. in hght of al! the circumstances, the idenufied acts

or omissions were vutside the wide range of professiona!ly

competent assistance. |TJhe court should recognize that

counsel is strongly presumed to have rendered adequate as-

sistance and made all significant dectsions in the exercise of

reasonable professional judgment

Strickland. 466 U.S. at 689-90: see also Williams v Collins, 16 F.3d

626, 631 15th Cir), cert. dented, 512 U.S. 128911994).

App. 78

B. Failure to present evidence of good behavior

while on juvenile probation

During the punishment phase, trial counsel called

several witnesses to present testimony that would support

a 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 supervision,

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 reliable indica-

tion of wh... testimony Medellin’s former probation 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 “neve* 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 investigator is hearsay, and Medellin has not

shown that it falls under any exception to the hearsay

App. 79

rule. Cf. FED R. EvibD. 802; see also Herrera v. Collins, 506

U.S. 390, 417-18 (1993) (holding on the facts of the case

that affidavits containing hearsay statements obtained

eight years after the habeas petitioner’s trial were not

sufficient to grant habeas relief). Absent the hearsay

statements 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

reliable, Medellin fails to show an entitlement to habeas

relief. The state habeas court issued several factual

findings commenting on the potential impact of the puta-

tive 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 evi-

dence 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 inability to func-

lion in structured environments, including jail.

App. 80

State Habeas Record at 207, 9942, 43. The state habeas

court concluded that the absence of the probation evidence

did not meet either prong of the Strickland analysis. State

Habeas Record at 215, 99. That decision was neither

contrary to, nor an unreasonable application of, federal

law.

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 probation

appointments and never caused his probation officer

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 tral, 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 character, 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.

App. 81

C. Failure to emphasize the parole eligibility ac-

companying 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

after thirty-five years incarceration if the jury returned a

life sentence. The trial court indicated to the defense that

it would be willing to allow parole eligibility information to

come before the jury. Tr. Vol. 27 at 12. Trial counsel Ms.

Mazzagatti told that court that her co-counsel 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 previ-

ously, 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

eligibility. The state habeas court concluded that “/t]rial

counsel are not ineffective for making the reasonable,

strategic decision, based on prior experience, not to re-

quest 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

App. 82

forty-three.” State Habeas Record at 215-16, 9 11.° The

state habeas court’s decision was not contrary to, or an

unreasonable application of, federal law.

Trial counsel apparently hoped to leave the jury with

the impression that a life sentence meant just that —

lifelong 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 (5th Cir.) (quoting King v. Lynaugh, 850 F.2¢ 1035,

1060 (5th 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 hy-

pothesizing that a jury, faced with the informa-

tion about parole for which [the petitioner]

contends, would have been more lenient. If any-

thing, given the egregious nature of this case, a

suggestion to prospective jurors that [the peti-

tioner] 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

* The Court notes that the state habeas court erred in its mathe-

matical 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.

App. 83

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 death penalty is speculative, and we shall

not lightly second-guess a decision whether or not to

inform a jury of information regarding parole.” Simmons v.

South Carolina, 512 U.S. 154, 168 (1994). Trial counsel

based his decision not to inform the jury of parole eligibil-

ity on his prior experience and on objectively defensible

strategy. As Medellin failed to show that the state habeas

court’s decision was contrary to or an unreasonable appli-

cation of federal law, this claim is denied. See 28 U.S.C.

§$ 2254(d1).""

D. Failure to seek enforcement on appeal of the

trial court’s order allegedly precluding the

State from seeking a death sentence

Prior to trial, Medellin filed a “Motion to Preclude

Prosecution from Seeking the Death Penalty.” Tr. Vol. | at

95-107. Medellin’s motion argued that Texas should not be

permitted to seek the death penalty against him because

The state habeas court alse found that Medellin failed to show

that he was prejudiced by trial counsel's failure to offer evidence or

question about parole eligibility. State Habeas Record at 216, § 12

Medellin’s response to the summary judgment motion relies on studies

showing that a jury's correct knowledge of parole eligibility increases

the likelihood of them imposing a life sentence Considering the

overwhelming evidence that supported a death sentence in this case.

and the brutal nature of the murders, there is no reasonable probability

that a jury would return a hfe sentence had it known about the lengthy

ume before Medellin would be eligible for parole

App. 84

of various perceived deficiencies in the capital sentencing

statute. On September 9, 1994, the trial court held a

hearing to address various pre-trial motions. There, the

following interchange occurred:

Trial counsel: Your Honor, could we start with the

Motion to Declare the Texas Capital

Sentencing Scheme Unconstitutional

and Motion to Preclude the Imposi-

tion of the Death Penalty because

these will probably be —

Trial court: That will be denied. All right. What

else?

Trial counsel: Then the next one, Your Honor, will

be the Motion to Preclude the Prose-

cution from Seeking the Death Pen-

alty.

Trial court: That will be denied.

Tr. Vol. 27 at 9. When the trial court signed the defense’s

proposed order that day, however, the trial judge initialed

the line indicating that the motion to preclude the death

penalty had been granted. Tr. Vol. I at 108. Neither trial

nor appellate counsel seized on the written order as an

opportunity to avoid a capital conviction.

Medellin argues that the written order of the trial

court was enforceable and should have prevented his

capital prosecution. Medellin faults his appellate counsel

for not identifying the existence of the challenged order in

the record. Medellin contends that appellate counsel

rendered ineffective assistance by not asking the Court of

Criminal Appeals to vacate his death sentence because the

trial court initialed the portion of his written order that

would prevent his capital prosecution, even when the trial

App. 85

court clearly evinced on the record the intent to deny the

motion.

Medellin raised this claim on state habeas review.

There, the same court which presided over his trial issued

the following factual finding: “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.” State Habeas

Record at 204, 731." On that basis, the court denied

habeas relief. State Habeas Record at 215, | 8. This

conclusion is neither contrary to, nor an unreasonable

application of, federal law. See 28 U.S.C. § 2254(d)(1).

The state habeas court explicitly found its notation on

the written order was inadvertent. This Court must

presume that finding to be correct unless Medellin shows

clear and convincing evidence to the contrary. See 28

U.S.C. § 2254(e)1). Medellin has not produced any evi-

dence that would suggest that the trial court intended to

prevent the State from seeking a death sentence. The

record itself, most particularly the interchange where the

trial court orally denied the motion, supports the conclu-

sion that the written order reflects an inadvertent error.

Nothing would indicate that the trial court meant to

prevent the State from seeking a death sentence.

An appellate attorney cannot be faulted for not raising

meritless claims. See ['nited States v. Kimler, 167 F.3d 889,

' The trial court .t gund “based on the applicant’s trial

in which the State sought the death penalty and on the applicant's

resulting death sentence, that the inadvertent 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 tral

and subsequent sentence of death.” State Habeas Record at 204, J 33

App. 86

893 ‘5th Cir. 1999) (“An attorney’s failure to raise a merit-

less argument thus cannot form the basis of a successful

ineffective assistance of counsel claim because the result of

the proceeding would not have been different had the

attorney raised the issue.”); Williams v. Collins, 16 F.3d

626, 634 (5th Cir), cert. denied, 512 U.S. 1289 (1994).

“Failure to raise meritless objections is not ineffective

lawyering; it is the very opposite.” Clark v. Collins, 19 F.3d

959, 966 (5th Cir.), cert. denied, 513 U.S. 966 (1994): see

also Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998)

(“|FJailure to make a frivolous objection does not cause

counsel’s performance to fall below an objective level of

reasonableness ... ”), cert. denied, 525 U.S. 1174 (1999).

The trial court obviously made an inadvertent mistake in

signing the order upon which Medellin now relies. Appel-

late counsel had no chance of crafting that into a viable,

meritorious appellate argument. The state habeas court’s

rejection of this claim was not contrary to, or an unreason-

able application of, federal law. See 28 U.S.C. § 2254(d)(1).

This claim is denied.

Il. Vienna Convention

Medellin is a citizen of Mexico. Medellin contends that

he was never given consular access before, during, or after

his trial. Medellin maintains that this denial of consular

assistance violated his rights under the Vienna Conven-

tion on the Law of Treaties, May 22, 1969, art. 31(1), 8

1.L.M. 4 (1969) (“Vienna Convention”). Because of this

denial, Medellin asks this Court to order that a new trial

be held.

Medellin presented this claim on state habeas review.

The state habeas court held that Medellin failed to object

App. 87

to the violation of the Vienna Convention at trial. On that

basis, the state habeas court concluded that his failure to

properly preserve the claim waived his right to assert the

claim on post-conviction review. State Habeas Record at

210, 413." Respondent argues that the state habeas

court's reliance on an independent and adequate state

procedural rule, i.e., Texas’ contemporaneous objection

rule, bars federal consideration of Medellin’s Vienna

Convention claim.

The Fifth Circuit “has consistently held that the Texas

contemporaneous objection rule constitutes an adequate

and independent state ground that procedurally bars

federal habeas review of a petitioner’s claims.” Fisher v.

State, 169 F.3d 295, 300 (5th Cir. 1999); see also Sharp v.

Johnson, 107 F.3d 282, 285-86 (5th Cir. 1997); Nichols v.

Scott, 69 F.3d 1255, 1280 n.48 (5th Cir. 1995). cert. denied,

518 U.S. 1022 (1996); Amos v. Scott, 61 F.3d 333, 345 (5th

Cir.), cert. denied, 516 U.S. 1005 (1995). Medellin, how-

ever, argues that Vienna Convention claims are exempt

from the constrains of the procedural default doctrine.

In Breard v. Greene, 523 U.S. 371 (1998), the Supreme

Court considered the effect of the procedural default

doctrine on a prisoner’s Vienna Convention claim. Recog-

nizing that federal courts “should give respectful consid-

eration to the interpretation of an international treaty

“ The state habeas court also considered the merits of Petitioner's

Vienna Convention claim. A state court’s alternative adjudication of a

claim on the merits does not vitiate the validity of its procedural bar

See Corwin vo Johnson, 150 F.3d 467, 473 (5th Cir.) ("lt is clear in this

Circuit that alternative rulings do not operate to vitiate the validity of a

procedural bar that constitutes the primary holding.” ., cert denied, 525

L'S. 104911998)

App. 88

rendered by an international court,” the Supreme Court

nonetheless found that, “absent a clear and express

statement to the contrary, the procedural rules of the

forum State govern the implementation of the treaty in

that State.” Jd. at 375." The Supreme Court held that the

procedural default doctrine could bar consideration of a

Vienna Convention claim. See id. at 375-76. The Supreme

Court supported this finding by recognizing that the

procedural default doctrine applied is even to claims

brought under the United States Constitution — a docu-

ment “‘on full parity with a treaty.’” Jd. ay |sic] 376

(quoting Reid v. Covert, 354 U.S. 1, 8 (1957)). The Supreme

Court also expressed doubt that any Vienna Convention

claim could be successful absent “some showing that the

violation had an effect on the trial.” Breard, 523 U.S. at

377 ‘citing Arizona v. Fulminate, |sic] 499 U.S. 279

(1991)). The Breard decision would allow Medellin’s failure

to comply with Texas’ contemporaneous objection rule to

bar federal review of this claim.

Medellin, however, argues that a case decided in the

International Court of Justice (“ICJ”) abrogates reliance

on a procedural bar in rejecting Vienna Convention claims.

In the LaGrand Case (Germany v. United States), 2001

1.C.J. 104, the ICJ found that the procedural default rule

itself did not violate the Vienna Convention. See LaGrand

” The Supreme Court noted that “|t)his proposition is embodied in

the Vienna Convention itself, which provides that the mghts expressed

in the Convention ‘shall be exercised in conformity with the laws and

regulations of the receiving State.’ provided that ‘said laws and

regulations must enable full effect to be given to the purposes for which

the rights accorded under this Article are intended” Breard, 523 US

at 375 ‘quoting Article 36 2), '1970! 21 U.S. T., at 101))

App. 89

Case, 2001 1.C.J. 104, at 9 90. The ICJ, however, con-

demned the application of the procedural default rule

when “it prevented) ‘full effect [from being] given to the

purposes for which the rights accorded under {the Vienna

Convention} are intended.” Jd. at 9 91. The ICJ held that,

because of “the failure of the American authorities to

comply with their obligation” under the Vienna Conven-

tion, “the procedural default rule prevented [LaGrand|

from attaching any legal significance” to the State’s

violation of the Vienna Convention. Jd. According to

Medellin, the effect of the LaGrand Case is that “proce-

dural default rules may not be invoked to deny merits-

based review of [a Vienna Convention] violation.” (Docket

Entry # 24 at 21).

Medellin forfeited consideration of his Vienna Conven-

tion claim by failing to comply with an adequate and

independent state procedural rule. The Supreme Court

has long held that such procedural rules bar federal

consideration of defaulted claims, except under narrow

exceptions. Medellin’s reliance on the LaGrand Case

would create a wholesale exception to procedural limita-

tions when a petitioner raises Vienna Convention claims —

potentially invalidating well-settled law such as the

AEDPA's insistence on the exhaustion of remedies and the

timely presentation of claims. The concerns of comity,

federalism, and finality of state judgements suggest that

this Court refrain from jettisoning the procedural bar

doctrine until the Supreme Court reconciles its caselaw

‘ The ICJ previousiv entered an order requiring the United States

to ensure that LaGrand was not executed. Arizona executed LaGrand in

1999 The ICJ did not enter its final judgment in the LeGrand Case

until 2001

App. 90

with the ICJ action in the LaGrand Case. This Court is

simply wary of finding that the ICJ overruled entrenched

Supreme Court precedent.”

Even if this Court were to consider the merits of the

claim, Medellin is not entitled to federal habeas relief The

state habeas court found that Medellin “as a private

individual, lacks standing to enforce the provisions of the

Vienna Convention.” State Habeas Record at 216, 4 15.

Federal law supports the state habeas court’s rejection of

this claim. The preamble to the Vienna Convention ex-

plains that it is “not to benefit individuals but to ensure

the efficient performance of functions by consular posts on

behalf of their respective States.... ” On that basis, the

Fifth Circuit has refused to recognize that the Vienna

Convention “creates judicially enforceable rights of consul-

tation between a detained foreign national and his consu-

lar office.” United States v. Jimenez-Nava, 243 F.3d 192,

198 (5th Cir.), cert. denied, 533 U.S. 962 (2001). If this

“ The wisdom in this approach is suggested by the fact that the

Supreme Court refused to stay LaGrand’s execution, notwithstanding

the fact that the ICJ ordered the United States to “take all measures at

its dispusal to ensure that [LaGrand| is not executed pending the final

decision in these proceedings” LaGrand Case, 2001 1.C.J. 104, at 32.

The Supreme Court's refusal to stay LaGrand’s execution raises

substantial questions concerning its own view of the ICJ’s ability to

intrude in American legal proceedings.

In Beard |sic|], the Supreme Court considered whether the

Vienna Convention provided a private, enforceable right. Finding the

claim procedurally barred, the Supreme Court did not directly rule on

the claim. While the Supreme Court noted that the Vienna Convention

“arguably confers on an individual the mght to consular assistance

following arrest!,)” the Supreme Court left the resolution of that issue

to the lower courts. 523 U.S. at 376 Since 1970, the United States

Department of State has interpreted the Vienna Convention as not

creating enforceable individual rights. See United States v. Li, 206 F.3d

56, 63 (ist Cir), cert. denied, 531 U.S. 956 12000). The federal circuit

‘Continued on following page)

App. 91

Court were to recognize that the Vienna Convention

created a personally-enforceable right, such a finding

would create a new rule of law, violating the non-

retroactivity principle of Teague v. Lane. See Flores v.

Johnson, 210 F.3d 456, 457-58 (5th Cir. 2000) (finding that

any recognition of enforceable, individual rights under the

Vienna Convention would amount to a new rule of law in

violation of Teague’s non-retroactivity principle), cert.

denied, 531 U.S. 987 (2000). The ICJ’s rejection of the

procedural default doctrine in Vienna Convention cases

did not purport to overrule the Supreme Court’s weighty

Teague jurisprudence. This Court, therefore, cannot grant

habeas relief on Petitioner’s Vienna Convention claim.

Even if procedural law and non-retroactivity princi-

ples did not mandate the denial of this claim, and the

Court were to assume that the Vienna Convention created

an enforceable right, Petitioner would have to show

concrete, non-speculative harm for the denial of his consu-

lar rights. See Breard, 523 U.S. at 377; Faulder v. John-

son, 81 F.3d 515, 520 (5th Cir. 1996), cert. denied, 519 U.S.

995 (1996). When a Vienna Convention claim is “properly

raised and proven, it is extremely doubtful that the

courts that have considered the issue have generally refused to address

the merits of the question, instead finding that the defendant failed to

demonstrate prejudice or sought an unavailable remedy. See United

States v De La Pava, 268 F.3d 157, 164-66 (2nd Cir. 2001), United

States v. Minjeres-Alvarez, 264 F.3d 980, 986-88 (10th Cir. 2001),

United States v. Page, 232 F.3d 536, 540 (6th Cir.), cert. denied, 532 US

935 (2001); United States v. Lawel, 231 F.3d 1045, 1048 (7th Cir. 2000),

United States v. Chanthadara, 230 F.3d 1237, 1255 (10th Cir 2000),

cert dented, 122 S Ct. 457 (2001), United States v. Cordoba-Mosquera,

212 F 3d 1194, 1196 (11th Cir 2000), cert. denied, 531 US. 1131 (2001)

No circuit court has held that the Vienna Convention creates valid,

enforceable individual! mghts

App. 92

violation should result in the overturning of a final judg-

ment of conviction without some showing that the viola-

tion had an effect on the trial.” Breard, 523 U.S. at 377.

Medellin contends that the Mexican Consular would have

taken immediate steps to secure representation for him

and would have advised him not to confess to the rape and

murder of the two young girls.

The state habeas court, however, found that Petitioner

“failled] to show that he was harmed by any lack of notifi-

cation to the Mexican consulate concerning his arrest for

capital murder; [Medellin] was provided with effective

legal representation upon [his] request; and, [his] constitu-

tional rights were safeguarded.” State Habeas Record at

217, 9 16. Petitioner has not shown that this determina-

tion was contrary to, or an unreasonable application of,

federal law. See 28 U.S.C. § 2254(d)(1). Medellin’s allega-

tions of prejudice are speculative. The police officers

informed Medellin of his right to legal representation

before he confessed to involvement in the murders. Medel-

lin waived his right to advisement by an attorney. Medel-

lin does not challenge the voluntary nature of his

confession. There is no indication that, if informed of his

consular rights, Medellin would not have waived those

rights as he did his right to counsel. Medellin fails to

establish a “causal connection between the [Vienna Con-

vention] violation and {his] statements.” United States v.

Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). Petitioner has

failed to show prejudice for the Vienna Convention viola-

tion.’ This claim is denied.

' Furthermore, Petitioner has not demonstrated that a new trial

would be an appropriate remedy under the Vienna Convention. The

Vienna Convention does not articulate a specific remedy for its

‘Continued on following page)

App. 93

Ill. Batson Claim

Medellin claims that the State violated his constitu-

tional rights through the discriminatory use of peremptory

challenges. Medellin first raised the issue of discrimina-

tion when the State used a peremptory challenge to excuse

potential juror Elizabeth Ann Berry. Medellin raised a

Batson" challenge, contending that the State only struck

Ms. Berry because she was an African-American woman.

Tr. Vol. 20 at 227. After Medellin raised the Batson chal-

lenge, the following exchange occurred:

Trial court: Mr. Millin, that’s plenty. If you want

to put something in rebuttal, that’s

fine. But there’s a Batson challenge

on the table. Mr. Vinson, do you want

to go ahead and — I will ask that the

State, regardless of a prima facie

showing, put its explanation on the

record at this time because its fresh

in everybody’s mind. Mr. Millin,

if you want to reurge your Batson

violation See Jimenez-Nava, 243 F 3d at 199. Federal courts generally

hold that Vienna Convention violations do not require the dismissal of

an indictment or the suppression of evidence See De La Pava, 265 F 3d

at 164-66; Page, 232 F 3d at 540-41, Cordoba-Mosquera, 212 F.3d at

1195-96; Li, 206 F.3d at 61-62. The Fifth Circuit has held that reversal

is not an appropriate remedy when trial counsel had access tu the same

information as consular officials. See Faulder, 81 F.3d at 520. The Fifth

Circuit has also rejected the suggestion that the exclusionary rule

should prevent the introduction of confessions taken in violation of the

Vienna Convention. See Jimenez-Nava, 243 F.3d at 197-98. No court

has reversed a capita! conviction or set aside a death sentence on the

basis of a Vienna Convention violation. This Court questions its ability

to overturn Medellin’s conviction and sentence under the Vienna

Convention, especially in light of his failure to demonstrate prejudice

* Batson v. Kentucky, 476 U.S. 79 (1986)

The State:

Tr. Vol. 20 at 227-

App. 94

motion at a later time. The jury (sic)

is not clearly the reason of selecting a

capital murder jury.

I guess the main issue and problem

that 1 have with Ms. Berry is that

she has two brothers of which both

have been involved in drugs. Both

have been to the penitentiary. One, |

think, has been on numerous occa-

sions, she testified to. And I think

one is released on parole at this time

and one is in custody at the peniten-

tiary at this time as well. Moreover, |

did not feel comfortable with Mrs.

Berry’s characterization of the prose-

cutors as on the attack and defense

attorneys as being the underdog. And

throughout this trial, I would have a

perception in my mind to present my

case to Mrs. Berry, she’s looking at

the defendant as the underdog and

I'm the one on attack, like a wild

mongrel.

28. The prosecutor also provided rele-

vant personal information relating to his choice of stmkes:

The State:

‘Trial court:

Moreover, your Honor, the record as

sic] been silenced on my color. The

prosecutor in this case, I would like

the record to reflect is a black prose-

cutor and has an appreciation of

blacks serving on juries, having

grown up during the 40's, 50's, 60’s,

* 70's, 80's, and 90 —

wy

Are you saying you're an old black

prosecutor?

The State:

Trial court:

The State:

Trial court:

App. 95

That's right.

Let the record reflect that Mr. Vin-

son is African American and he is old.

‘However, he is

And youthful in appearance.

However, he looks much younger

than his years.

Tr. Vol. 20 at 228-29. In rebuttal, the defense argued that

Mrs. Berry expressed an ability to be impartial notwith-

standing her brothers’ criminal record. Tr. Vol. 20 at 229.

The trial court then denied the Batson challenge to Mrs.

Berry as follows:

Trial court:

Let me state that I do not believe

that there’s a prima facie showing

that’s been made at this time. How-

ever, I find based on observing Ms.

Berry’s demeanor and her responses

and viewing her questionnaire, that

Mr. Vinson’s reason|s] proffered are

racial, neutral reasons. At this time, I

will deny any Batson motion. If you’d

like to, Mr. Millin, reurge your Bat-

son challenge at the end of the jury

selection, 1 will reconsider it at that

time as well. However, let the record

reflect at this time — still at this time,

our nine-man jury is comprised of a

black female, a Hispanic male, a His-

panic female, a black male. ... And

so there’s no indication of gender

bias. There are — the composition of

males to females are a black female,

a white female, a Hispanic female,

a white female; and with regard to

Tr. Vol. 20 at 230-3 1.

App. 96

men, Hispanic male, a white male, a

black male, and a second white male.

Medellin next raised a peremptory challenge when the

State excused potential juror Rafael Rodriguez with a

peremptory strike. The trial court found that Medellin

made a prima facie case for the purposes of Batson by

noting that the potential juror was Hispanic and had

generally stated that he could be impartial. Tr. Vol. 21 at

117. The State then explained the motivation for striking

Mr. Rodriguez:

The State:

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 understand-

ing of his position on the death pen-

alty. With respect to the question |

asked him, he gave me a philosophi-

cal — he gave a theological and Bibli-

cal 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 philoso-

phy 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 | don’t want it turned

in my favor.

App. 97

Tr. Vol. 21 at 117-18. The trial court found that to be a

race-neutral explanation and denied the Batson challenge.

Tr. Vol. 21 at 118.

After the parties selected the jury panel, Medellin

filed a “Motion to Strike Jury Panel.” Tr. Vol. I at 260.

According to Medellin’s count, the State struck eight men

and five women. Five of those excluded [sic] white, six

were black, and two were Hispanic. Medellin argued that

the State based its voir dire strategy on removing minori-

ties and men from the jury panel.

On August 17, 1994, the trial court discussed Medel-

lin’s motion to strike the panel in a pretrial hearing. In

that hearing, the defense asked the court to quash the

entire panel because the State allegedly used its peremp-

tory challenges in a discriminatory manner. Tr. Vol. 26 at

11-12. The State responded to that allegation:

The State: Your Honor, I think the record will reflect

too the final disposition of that jury again

is a melting pot jury. And while the State

exercised those strikes, | think it was 13 -

1 don’t have mine with me night now. But

those are all race neutral strikes.

“In his motion. Medellin noted that the State exercised its

peremptory challenges against the foliowing prospective jurors: Kurven

O'Neal Tillis. a black male, Mary Freeman, a white female, Kathy

Felder. a black female. Bernard Richardson, a black male; Walter Wynn

Martin, a white male: Andr. McCoy, a black male; Marie Clark, a white

female; Vastine Dickie. a black male, Christine Rossie, a white female.

Kaford Earl Gresham. a white male. Porfirie Rodriguez. a hispanic

male, Elizabeth Ann Berry. a black female, and Rafael Rodriguez. a

hispanic male. ‘Ty. Vol. I at 264

App. 98

Tr. Vol. 26 at 12-13. At that point, the trial court went off

the record. The record from that hearing does not reflect

any further on-the-record discussion of the Batson issue.

On August 19, 1994, the trial court entered a written order

denying Medellin’s motion to strike the jury panel. Tr. Vol.

I at 267.

A. Claim raised on direct review

On direct appeal, Medellin raised a single Batson

claim. Medellin argued that the State violated the equal

protection clause with respect to the peremptory strike of

Mr. Rodriguez.” The Court of Criminal Appeals recognized

that the trial court found that Medellin made a prima

facie case for discrimination. Opinion at 12. The Court of

Criminal Appeals then noted that the State gave a race-

neutral explanation for the challenge to Mr. Rodriguez:

that his opinion on the death penalty would not make him

an attractive juror for the State. Opinion at 12. The Court

of Criminal Appeals found that

* Medellin raised this claim under Batson and under the relevant

state statute prohibiting the use of race-based peremptory challenges.

While the Court of Criminal Appeals found that Medellin failed to

preserve error on his state law claim, the Court of Criminal Appeals

considered the merits of his Batson argument. Apparently anticipaung

that Respondent would rely on the procedural default doctrine to bar

this claim, Medellin now argues that appellate counsel rendered

ineffective assistance by failing to present a broad Batson claim on

direct review. Medellin has not shown that he was prejudiced by this

failure. Aside from the fact that he fails to show that a Batson violation

actually existed, Medellin presented the Batson ‘aim on state habeas

review where it received full consideration by the Court of Criminal

Appeals. The state habeas court rejected that claim. There is no reason

to suppose that the claim would have fared better on direct review

Medellin fails to show Strickland prejudice with respect to the ineffec-

tive-assistance-of appellate counsel nuance of his Batson claim.

App. 99

lthhe trial court accepted these reasons as race-

neutral and appellant made no attempt to rebut

the explanations given or otherwise explain why

they were only pretexts for discrimination. A re-

view of the entirety 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.

Opinion at 12.

Medellin renews his Batson claim against Mr. Rodri-

guez in his federal petition. Medellin argues that the lack

of

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