Nov. 11
TEXAS:
Justices hear arguments in "Texas Seven" case
During a hearing in Waco on Wednesday, the Texas Court of Criminal Appeals
heard a case involving one of the "Texas Seven," a group of inmates who
broke out of prison and then killed a police officer.
The appeal was made by Joseph Garcia, a 33-year-old who was part of the
gang. His attorneys argued his death sentence should be set aside and he
should be given a new trial because of procedural errors.
Garcia was convicted of capital murder after he and the other escapees
shot 29-year-old Irving police officer Abry Hawkins 11 times. Hawkins was
responding to a call at a sporting goods store the men robbed on Christmas
Eve 2000, 11 days after their escape from a prison near San Antonio.
In a brief filed with the court, Garcia's attorneys alleged 13 points of
error. On Wednesday, they focused on the court's allowing testimony about
the men's escape to be introduced during the guilt/innocence phase of the
trial.
The escape is a so-called "extraneous offense" and should have triggered a
special instruction from the judge, argued one of Garcia's attorneys, Matt
Fry Jr. of Dallas.
The jury should have been told to consider the information only as it
might relate to Garcia's motive or intent, not to determine his guilt, Fry
said. Instead, the testimony was allowed without such a "limiting
instruction" because the court ruled it showed the context in which the
crime was committed.
Fry said such a move was wrong because the escape is not contextual to the
murder since the 2 incidents occurred 11 days and hundreds of miles apart.
"It was crucial that the jury in these circumstances be informed of how
they could use that information and that it had to be limited to the
intent and motive ... and not to label Mr. Garcia as a criminal
generally," Fry said.
The attorney arguing the case for the state, Dallas County Assistant
District Attorney Johanna H. Kubalak, said the way the information was
introduced was appropriate because the murder was part of a single
conspiracy that started with the men's prison break and ended with their
capture in Colorado a month later.
"It's an unusual situation here," Kubalak said. "...Everything was done in
the furtherance of their escape."
Even if the evidence was introduced the wrong way, it didn't sway jurors
in their decision to convict, Kubalak further argued.
The court will issue an opinion on the case after deliberating at a later
date.
******************************
Justices weigh death conviction in Penry case
Attorneys for convicted murderer Johnny Paul Penry were in Waco on
Wednesday to continue a highly publicized fight to keep him from the
execution chamber.
Arguing before the Texas Court of Criminal Appeals during a special
session at Baylor University, Penry's attorney said his death sentence was
unconstitutional because the issue of whether he is mentally retarded was
not properly addressed in his latest trial.
The nine-justice panel typically convenes in Austin but Baylor invited the
justices here so students could see the state's highest criminal appeals
court in action. Penry's case was 1 of 4 argued Wednesday.
The legal battle has drawn international attention, in part because of its
protracted nature. Penry has been convicted in the same case three times
and seen two of those death sentences thrown out by the U.S. Supreme
Court. The main reason the case has garnered interest is because it deals
with the controversial subject of executing the mentally retarded.
Penry, 48, was first convicted of capital murder in 1981, 2 years after he
admitted killing 22-year-old Pamela Moseley Carpenter of Livingston,
Texas. Penry met Carpenter while helping another man deliver appliances to
her home. He went back 3 weeks later, raping and fatally stabbing her with
a pair of scissors.
Penry's first 2 sentences were overturned in 1989 and 2001 when the U.S.
Supreme Court found the juries were not properly instructed on how to
assess his mental state in deciding whether to condemn him. His attorneys
say his IQ has always been low enough to categorize him as mentally
retarded and that he has the mind of a 7-year-old.
That left Penry to be tried a 3rd time in 2002. While the trial was going
on, the Supreme Court ruled in another case that executing the mentally
retarded was cruel and unusual punishment and thus unconstitutional.
As a result, Penry's jurors were told they could not give him a death
sentence if they thought he was retarded. However, they found Penry was
not retarded and once again said he should be executed.
That led to Wednesday's hearing, where Penry's attorneys alleged 20 points
of error during the third trial. They asked that the verdict in the
trial's punishment phase be thrown out and that the case be sent back for
a new trial.
During oral arguments, Penry's attorneys focused on two of the 20 points.
Houston attorney Michael Charlton began by saying the court violated the
6th and 14th amendments by not allowing Penry to have the attorney of his
choice represent him in the appeal.
Charlton was referring to Huntsville attorney John E. Wright's being
removed from the case. He had been on Penry's legal team for the past 25
years except for a 3-year period, Charlton said.
Wright was removed because prosecutors said he had a conflict of interest.
Because Wright had been Penry's attorney at trial, they said, he could not
raise one of the most common appeal points - that a defendant's attorney
did a poor job during trial. The legal term for that is "ineffective
assistance of counsel."
Charlton said it was wrong for Wright to be taken off the case against
Penry's wishes simply because of a potential conflict. It's even more
ridiculous, he argued, because Wright has saved Penry from death twice
before.
"He built up a relationship with (his attorneys) for 25 years and they
were obviously successful on his behalf," Charlton said of Penry in an
interview before the hearing. "The sort of arbitrary reasoning in this
case (that removed Wright) is a subterfuge to move (Penry) closer to the
execution table."
William Lee Hon, an assistant district attorney in Polk County who argued
the case for the state, said the action was appropriate because courts
have an obligation under Texas law to ensure the accused get an effective
defense.
"I think there are serious questions about Mr. Wright's ability to be
objective," Hon said.
The second point argued Wednesday focused on instructions given to the
jury during the punishment phase of the trial. They described mental
retardation as "a mitigating factor as a matter of law."
A mitigating factor is anything about a defendant or crime that might make
the defendant less morally culpable and therefore entitled to a lighter
sentence. An example would be a defendant who was abused as a child.
Penry's attorneys argued the instruction was flawed for two reasons. For
one, it never explained what the phrase meant, potentially confusing
jurors not familiar with legal definitions.
More importantly, mental retardation should no longer be categorized as a
mitigating factor due to the Supreme Court's prohibition on executing the
mentally retarded, Charlton argued. It is its own separate issue and
should not be lumped together with factors such as a defendant's character
or the circumstances of the crime, he said.
In light of that, the jury should have had to answer a separate question
asking whether Penry was mentally retarded, Charlton said. With it being
listed as a mitigating factor, jurors could have thought Penry was
retarded but still given him the death penalty because they believed other
aggravating factors warranted it, he said.
Hon, the state's attorney, argued that mental retardation was correctly
listed as a mitigating factor. He also said it was clear to the jury that
they could not sentence Penry to death if they believed he was mentally
retarded.
The court did not issue a ruling on the case Wednesday. As is customary,
justices will deliberate, then issue an opinion in the coming months.
The justices have 3 basic choices. They can rule no errors were committed;
that errors were committed but were harmless, meaning they would not
affect the outcome of the case; or that harmful errors were committed,
meaning corrective action needs to be taken, such as remanding the case
for a new trial.
(source for both: Waco Tribune-Herald)
********************
Bell will leave death row
A convicted - and previously condemned - Port Arthur killer soon will be
taken from death row and put in the general prison population.
He may even be eligible for parole, Jefferson County District Attorney Tom
Maness said.
The Texas Court of Criminal Appeals Wednesday delivered an opinion
commuting Walter Bell's death sentence to life in prison because it
determined he met the requirements to qualify as mentally retarded.
Bell, 50, was sentenced to death in the July 1974 capital murder of
49-year-old Ferd Chisum, 59. A death sentence in the capital murder of
Irene Chisum was later commuted to life.
In 1991 the Court of Criminal Appeals set aside Bell's death sentence,
ruling that the jury should have been able to consider Bell's possible
mental retardation.
Bell was sentenced to death once again in 1994 for Ferd Chisum's death.
The Chisums were robbed and killed in their Port Arthur home after Ferd
Chisum fired Bell, who had been working in his appliance repair business.
Bell has been on Texas' death row since 1975 - longer than any other
inmate there. Numerous sentence reversals kept his case in the courts
until 2002, when the U.S. Supreme Court ruled that execution of the
mentally retarded is unconstitutional.
In a "concurring and dissenting" opinion, Judge P.J. Keller said that "a
permanent stay of execution - not reformation to a life sentence - is the
appropriate remedy for a mentally retarded death sentence defendant"
because it denies the opportunity for parole as well as keeping the
defendant on death row.
A Texas Department of Criminal Justice spokesman said as soon as his
agency receives documentation from the court, Bell will be processed and
assessed for placement at the appropriate security level.
Maness said Bell is most likely eligible for parole now.
"Whether he is paroled or not is up to the (parole) board, and that's
where that is. The responsibility lies with them now," Maness said.
(source: The Beaumont Enterprise)
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Grand Jury Indicts Man For Perjury In KFC Case
A "prime suspect" in the 1983 Kentucky Fried Chicken murders has been
indicted and arrested after a grand jury investigating the 21-year-old
case found he lied about being in the restaurant. Darnell Hartsfield, 43,
who is serving a sentence in the Texas Department of Criminal Justice
Michael Unit in Tennessee Colony outside of Palestine, was formally
notified of the felony charge by Rusk County District Attorney
Investigator William Brown on Wednesday.
Hartsfield, who is serving time on an unrelated charge, was indicted after
a grand jury hearing testimony in the murders handed up an indictment to
State District Judge Clay Gossett on Tuesday afternoon.
Rusk County District Attorney Kyle Freeman told the Tyler Morning
Telegraph that Hartsfield testified to a grand jury on Sept. 22, 2003 that
he had never been in the eatery, but evidence placed him at the scene.
"He told jurors that he had never been in the KFC restaurant in Kilgore.
This was done under oath and in front of the grand jury during its
investigation and we believe this to be false," he said.
Freeman would not go into specifics, but did say the newspaper had quoted
Rusk County Sheriff Department's Special Investigator George Kieny in an
earlier report as saying, "We have DNA that places several suspects at the
crime scenes."
Freeman said Hartsfield and several others are considered the "prime
suspects" in the murders, but he would not rule out any past suspects in
the case.
Hartsfield is currently imprisoned for delivery of a controlled substance
and engaging in organized criminal activity.
THE MURDERS
On Sept. 23, 1983, unknown suspects made their way into the Kentucky Fried
Chicken restaurant in Kilgore and abducted 5 people.
The suspects then took the five victims to a rural oil field on Walter
King Road, where they shot each victim in the head and left them for dead.
The bodies were discovered the next day by an oil field worker.
Mary Tyler, 37; Opie Ann Hughes, 39; Joey Johnson, 20; David Maxwell, 20;
and Monte Landers, 19, were found shot to death. All 5 victims were shot
at least twice.
The Kilgore Police Depart-ment, Rusk County Sheriff's Office, the FBI, the
Tyler Police Department crime unit, Texas Department of Public Safety
troopers and Texas Rangers all joined in the investigation scouring the
murder scene and the restaurant for clues.
The Kilgore Police Department set up a hotline number, which spawned clues
and tips from all over the nation as the reward money grew larger for
information leading to the arrest of those responsible.
The case, though gaining national attention, soon grew cold.
Over the years the case has been revisited several times and in 1995 one
suspect was indicted on 5 counts of capital murder.
However, in 2002 the suspect's record was expunged and he was cleared of
the charges.
In 2001 evidence obtained from the Texas Attorney General's office was fed
into a computer program called CODIS (Combined DNA Index System), and
Kieny reported seeing matches almost immediately.
CODIS is a nationwide DNA database, which indexes violent criminals' DNA
and crime scene DNA from all states except Mississippi, and allows
investigators to enter data and search for any possible matches.
In 2003 another grand jury heard evidence and testimony in the case. Those
testifying ranged from inmates to decorated lawmen and other witnesses.
ATTORNEY GENERAL COMMENTS
"Darnell Hartsfield is charged with aggravated perjury, which was a third
degree felony," said Jerry Strickland, press secretary for the Texas
Attorney General. "Basically, he lied under oath to the grand jury. The
Texas Attorney General served an arrest warrant on him at 11:15 a.m. today
at the Michael Unit.
"This, by no means, is the end of our investigation," he said. "This is
part of the investigative process and our work."
Punishment ranges for conviction range from 25 to 99 years in prison.
"We have six enhancements, basically six prior convictions," he said.
"Grand jury proceedings are secret by law so we are unable to comment
further" on exactly what was said to the panel.
Michelle Lyons, spokesperson for the Texas Department of Criminal Justice,
reported Harts-field is housed in the Michael Unit in Tennessee Colony.
Several people of interest to authorities were asked in recent years to
submit DNA samples, which were compared to evidence collected from the
scene.
Those donors are still considered "prime suspects," the district attorney
said.
They include Romeo Pinker-ton, 46, who is located in the Hamilton Unit in
Bryan; Aaron Lamon Muse, 34, who is in Henderson County on a bench
warrant; Gregory Eugene Muse, 40, who is in the Beto Unit in Tennessee
Colony; and Robert Louis Waters, 46, who is located in the Daniel Unit in
Snyder.
Hartsfield, Waters and Pinkerton all appear on the original suspect list
obtained by the Morning Telegraph in the early stages of the
investigation.
Freeman said there was no set date for the grand jury hearing KFC evidence
to return. However, he did say he believed more indictments would be
forthcoming.
"I think before this grand jury ends, which is on Jan 29, 2005, we will
get more indictments in this case," he said.
(source: Tyler Morning Telegraph)
*************************
Mom says she destroyed gun-----Brother-in-law testifies that Walter
confessed to killings
The mother of the suspected Outback Steakhouse trigger man testified
Wednesday that she destroyed a gun that may have been used to kill three
managers of the Texarkana restaurant.
In other compelling testimony, the suspect's sister admitted lying to a
Bowie County grand jury about the alibi she provided for her brother.
Through tears, a frail Delinda Roever testified for Bowie County
prosecutors that she found a .38-caliber pistol that she worried her son,
Stephon Lavelle Walter, used to kill Matthew Hines, Rebecca Shifflett and
Chrystal Willis on Sept. 1, 2003.
Walter, 25, of Texarkana, Texas, is on trial in Collin County for capital
murder. If he is convicted, prosecutors will seek the death penalty.
Roever told jurors that during a jailhouse meeting with her son after his
arrest, he told her he was "the mastermind behind the crime."
But she denied being given details of the crime. She also denied ever
being threatened by prosecutors.
Roever recalled she had been in shock on Labor Day 2003 when she learned
of the crimes.
"I thought 'how could someone do this?' We couldn't believe that someone
could be that hard-hearted," Roever testified.
Three days later her son was arrested. Since then, Roever indicated that
her son's ordeal has taken a toll on her.
"There were so many thoughts going through my head. 'Terrified' was at the
top of the list. I have not eaten. I have not slept. I have lost 60
pounds," Roever testified.
Bowie County Assistant District Attorney Mike Shepherd asked about her
reaction when she found out that one of the victims, Shifflett, was six
months pregnant at the time of the slaying.
"I thought that they (whoever was responsible) should burn for that,"
Roever testified.
On Sept. 4, 2003, Roever was at work when her family arrived and told her
that Walter, a son she saw every few weeks, had been held responsible for
the slayings.
She testified that she was in disbelief.
"They had the wrong person ... that my son was not the cold-hearted
killer. That was not in his character. They're still my feelings," Roever
testified.
Roever testified that Billy Ray "Belile" Johnson, the common-law husband
of her daughter, Torian "Taz" Hill, also of Texarkana, gave her some
information that her son may indeed have had some involvement.
Johnson told jurors that he gave a .38-pistol to Walter the day before the
shootings.
According to the testimony, Walter told Johnson he needed some protection
from break-ins and home invasions that were occurring where he lived.
Shortly after Johnson handed the gun over to Walter, Johnson testified
that Walter told him he had other ideas.
"He told me that he should 'do' Outback," Johnson testified, clarifying
that "do" means rob.
"At that time, I didn't take it that serious," Johnson said.
When Walter visited Johnson's home again, he reiterated his statement
about robbing the Outback.
"I said, 'I see you are entertaining that thought. Maybe I should get the
gun back,'" Johnson testified.
Johnson said that same day, Walter's co-defendant, Markeil Henson, had
been at his home.
Johnson gave Henson marijuana in exchange for food. Walter, however, did
not routinely drink alcohol or do drugs. Later, after Sunday drifted to 1
a.m. Monday, Walter allegedly returned to the home that Johnson and Hill
shared.
"He sat on the edge of my bed. He explained that he had robbed and killed
someone at Outback," Johnson testified.
Johnson said he told him he was stupid.
"I believe he said 3 got killed. He said Markeil went with him," Johnson
testified Wednesday. "I had told him that Markeil was going to tell. He
said 'He's not going to tell.' I said he should have did Markeil because
he was going to tell," Johnson told jurors, clarifying that "did" meant
killing Henson.
Jeff Harrelson, Walter's court-appointed lawyer, questioned Johnson under
cross-examination.
"You were offended by his robbing someone but you advocated killing
someone?" Harrelson asked.
At first, Johnson did not respond to the question, but later said that is
what he told Walter.
According to testimony, Roever and Johnson later went to Walter's
apartment in Stevens Courts, a Texarkana public housing complex, to clean
it out after they were given clearance by police.
They had maintained rent and utilities on the apartment for two months in
hopes of Walter's release. But after his indictment by the Bowie County
grand jury in October 2003, they decided to clear the apartment.
According to testimony, Roever was removing a large painting on the wall
by lifting it from the bottom. As she did so, a gun fell out of the back
of the painting's frame.
While on the witness stand, she was asked by prosecutors if she had found
"the gun." She said she had found "a gun."
But after further questioning from Shepherd, Roever testified that she
believed it was "the gun" that may have been used in the crime.
She said she and Johnson were both in shock.
"I told my son-in-law Billy not to touch it. I didn't touch it," Roever
testified. "I knew your gun (murder weapon), according to the paper, that
your gun had not been found yet."
Roever and Johnson took the gun to her home where they tried, at first
unsuccessfully, to destroy it. According to testimony, they tried to burn
it, which amounted to melting the grip. Later they tried to dismantle it
with a hammer. When both methods failed, they went to a pawn shop and
bought a grinder.
On her kitchen floor on a bedsheet, they ground the gun into dime-sized
and quarter-sized bits, according to testimony. Two parts of the gun were
not able to be ground very small, including what she thinks may have been
the trigger part. All pieces were wrapped in newspaper and strewn randomly
in a drive in the country.
A ballistics expert linked an unfired bullet found in Walter's home to
another spent bullet found at the scene. The casings had the same
markings, as if they were at one time in the same chamber of a .38 pistol.
However, not all bullets could be matched because of incomplete markings.
Roever's daughter, Torian Hill, also testified on Wednesday.
She admitted to jurors that she lied in her first visit to the Bowie
County grand jury by saying she assisted her brother when his vehicle ran
out of gas.
On Wednesday, however, she testified that while indeed her brother called
and said he ran out of gas, that neither she nor Johnson left their house
to help him. She testified she helped him with an alibi because she loved
him.
But under cross-examination, she admitted that in the hours before the
killings, she and others at her house were drinking and smoking marijuana.
She testified that she passed out and did not know if her husband left.
Hill was arrested but has not been indicted on an aggravated perjury
charge as a result of lying to the grand jury to give her brother an
alibi.
She served 7 days in jail and if indicted and convicted, she would not get
to see her 2 children and could not enlist in the military. She agreed
with Harrelson that if prosecutors move forward to pursue a felony
conviction against her, it would affect her future.
Calls Walter made from the jailhouse phone to the home that Hill and
Johnson shared were taped. Although the conversations that included Hill
were not played for the jury, excerpts of calls between Johnson and Walter
were played.
In one part, the 2 men discussed their mutual affection for each other
before Walter said, "I should have listened to you. I should have listened
to you."
At that point of Wednesday testimony, Walter hung his lead and leaned over
and spoke to his lawyers.
"I tried to evade it at first because I knew phone calls were being
taped," Johnson testified.
Johnson has prosecutorial immunity given to him in exchange for his
testimony regarding possible charges of tampering with physical evidence,
lying to the 1st grand jury and failing to register as a sex offender.
However, he acknowledged there is no immunity from any future or possible
prosecution for aggravated robbery or murder for his supplying a gun to
Walter, which prosecutors say was used to commit the robbery and triple
homicide.
The case could go to the jury today after a medical examiner testifies for
prosecutors and Harrelson and co-counsel Ray Keith put on their case. As
court ended on Wednesday, both sides were readying jury instructions.
Fifth District Judge Ralph Burgess of Texarkana presides over the case,
having moved it from Bowie County to Collin County to ensure that Walter
got a fair trial.
(source: Texarkana Gazette)
