[Deathpenalty] death penalty news-----TEXAS

[Rick Halperin]

Oct. 3



TEXAS:

Counsel Not Ineffective Despite Calling Client a Liar During Trial


In a 2-1 decision, the 1st Court of Appeals has affirmed the conviction of
Archie Doyle Martin Jr. for felony driving while intoxicated, overruling
Martin's contention that he received ineffective assistance from his trial
counsel. But the dissenting justice wrote that the defense attorney
"effectively became a second prosecutor in the case."

A key factor in the Sept. 20 majority decision in Martin v. State is the
lack of a record showing whether the actions of the defense counsel at
trial, Houston solo Walter Boyd, were part of his trial strategy. As noted
in the majority opinion, written by Justice Laura Carter Higley, Martin
complained that the defense attorney, while questioning Martin on direct
examination, commented that Martin's life "is a dad-gum mess."

Higley pointed out in the opinion that after the jury found Martin guilty,
Martin did not file a motion for a new trial, which would have required a
hearing at which the reasons for the trial attorney's actions could have
been developed on the record. "We must presume counsel had a plausible
reason for his actions," she wrote.

Justice Sam Nuchia joined Higley in holding that Martin did not receive
ineffective assistance of counsel at trial, as Martin had contended.

But Justice Terry Jennings wrote in his dissenting opinion that Boyd's
conduct constituted ineffective assistance of counsel and "was deficient
to the point that it undermines confidence in the outcome of the trial."

Charles "Chuck" Bubany, an adjunct professor at Texas Tech University
School of Law who teaches criminal law, says Martin v. State demonstrates
the difficulty appellate courts have in evaluating ineffective assistance
claims on direct appeal if it's not apparent from the record of a case why
the defense attorney did what he did.

"The bottom line is it's extremely difficult to successfully make an
ineffective assistance of counsel claim on appeal," Bubany says.

The prosecutor and the defense lawyer involved in Martin on appeal
disagree as to whether Boyd's actions are indicative of a certain trial
strategy.

"There was viable trial strategy that could be imputed to him," says
Shirley Cornelius, the Harris County assistant district attorney who
represents the state in Martin's appeal.

Cornelius says that by bringing up Martin's past wrongdoing, Boyd was
trying to establish the defendant's credibility, show that he was not
hiding anything and prove that he could be believed when he said that he
was not guilty of driving drunk this time.

But Houston solo Jerald Graber, Martin's appellate counsel, says of Boyd,
"There is absolutely no way he could ever come up with a plausible reason
for doing what he did."

Graber says that Boyd called Martin a liar in front of the jury and
paraded a host of Martin's previous convictions before jurors. "He
absolutely didn't get a fair trial," Graber says of Martin.

Boyd, who became Martin's trial counsel after his first counsel withdrew,
says, "This case was a slam dunk for the state on the guilt phase. I did
what I could to take the wind out of the prosecutor's sails and to do my
best to get 1 or 2 jurors to hang up the jury. The defendant received a
minimum sentence of 2 years."

The 1st Court majority opinion provides the following background: Martin
hit another vehicle while driving through an intersection near Crosby in
Harris County, Texas, on Nov. 8, 2004, and was arrested on a DWI charge.
The state indicted Martin for felony DWI, because he had two prior
convictions for drunk driving. Witnesses to the accident and a deputy
sheriff who arrived on the scene moments after the collision testified at
Martin's July 18, 2005, trial that he appeared to be drunk. The deputy
testified that Martin admitted he had taken "three sips of a beer," and
the deputy said he saw an open container of beer on the seat of Martin's
truck. The deputy also testified that he found an unlabeled pill bottle
containing white pills in Martin's pocket.

Martin claimed the pills were a prescription medication he had taken in
the past for back surgeries and that he was taking the pills home to
remove them from his job site. Martin also testified that he took two
breath tests and that his results were "0.00" for both tests.

Higley noted in the opinion that there were no breath test results in
evidence.

According to the majority opinion, the state presented evidence at the
trial that Martin previously had been convicted of DWI in 2000 and 2001.
The trial court instructed the jury that it could find Martin guilty of
having operated a motor vehicle while intoxicated by alcohol, by an
unknown drug or by a combination of both. The jury returned a general
verdict of guilty, without specifying the theory on which it reached that
verdict.

Boyd withdrew as Martin's counsel on Sept. 19, 2005. On Dec. 15, 2005, the
trial court sentenced Martin to 2 years in prison and appointed Graber as
his appellate counsel. Martin appealed to the 1st Court.

According to the majority opinion, Martin contended on appeal that Boyd
was ineffective for failing to investigate and failing to conduct
discovery to find the breath-test results that Martin contended would have
"conclusively" shown he was not intoxicated.

Boyd asked at trial whether the state had a copy of the breath-test
results, but prosecutors said they did not have the results and that
Martin's testimony about those results was false, Higley wrote.

But Martin did take the test. Graber says Cornelius informed him that
prosecutors had discovered Martin's breath-test results after the trial
had ended. "It was 0.00," he says.

Cornelius confirms she found the breath-test results when she took over
the file on appeal. She says a supervising prosecutor had discovered it
shortly after Martin's trial -- it was still in the files at the sheriff's
office substation where Martin was taken following his arrest -- and she
turned that information over to appellant's counsel.

Boyd says, "I don't recall that at all." But he adds that he thinks he got
the test in at trial. "I know I didn't do anything wrong," he says.

Cornelius says that later, when she found the breath-test slip, she then
informed Graber.

Graber says he could not raise the test results as an issue on direct
appeal, because the results were not in the record. By the time he was
appointed to represent Martin, the deadline had passed for filing a motion
for a new trial, Graber says. But the appellate lawyer says Martin will
raise the previously missing test results as an issue in his application
for a writ of habeas corpus.

But, as Higley noted in the 1st Court's opinion, the state contended on
appeal that the jury's general verdict could have been based solely on
intoxication by an unknown drug, and the breath-test results, had they
been available, would not have provided a defense to that. Therefore,
Martin has not shown that if the breath-test results had been admitted
into evidence, there is a reasonable probability that the outcome of his
trial would be different, Higley wrote.

Graber contends that the evidence that Martin took a breath test is
important, because the prosecution contended that Martin was not a
credible person when he testified that his results were 0.00. The results
settle the issue with regard to whether Martin had drunk enough alcohol to
be intoxicated, he says.

Higley pointed out in the opinion that Martin contends that Boyd was
ineffective for permitting the jury to hear evidence of Martin's prior
convictions for theft, DWI, felony possession of controlled substances,
felony delivery of a controlled substance and failure to identify himself
to a police officer. According to the opinion, Martin elected to testify
and told the jury about his prior convictions on direct examination and
under cross-examination.

The 1st Court majority concluded that all but one of Martin's prior
convictions likely were admissible. "Because it also appears that
appellant's candor before the jury concerning his prior convictions was a
strategic attempt to appear open and honest, and to lessen the impact of
any impeachment on the issue, we cannot conclude that his counsel provided
ineffective assistance with regard to the introduction of these
convictions," Higley wrote in the opinion.

According to the majority opinion, Martin also contends that he was denied
effective assistance of counsel because Boyd "acted in a bizarre and
unprofessional manner many times during the trial." Higley wrote that
Martin complained that the trial judge expressed concern to Boyd outside
the jury's presence that if Martin was convicted he could raise an
ineffective assistance of counsel claim against Boyd on appeal, since Boyd
had done nothing to prevent jurors from being prejudiced against Martin
after Martin slept through portions of jury selection. The 1st Court's
majority opinion presented the following complained-of exchange between
the judge and Boyd:

Boyd: "I know when I'm ineffective and when I am not."

Trial court: "Well, unfortunately, you don't get to decide that, the Court
of Appeals gets to decide that."

Boyd: "Well they can take a flying leap, if they want to. I just know I've
already assessed the thing, it's gone through my brilliant mind as to how
I want to handle this, and I would prefer that it just be left alone."

In an interview, Boyd says he believed his comment that the court of
appeals "can take a flying leap" is what "ticked off" Justice Jennings. He
also adds, "This guy [Martin] was so bizarre. When he went to sleep, it
was a blessing for our case."

Martin alleged on appeal, according to the majority opinion, that there
were numerous examples of Boyd's bizarre behavior during the trial. In one
exchange during his direct examination of the defendant, Boyd told Martin
that "you're a liar, you've covered up, you're a thief, you're a drug
dealer, you're all of those things, and you've committed so many dad-gum
crimes you cannot even remember them all," Higley wrote.

But Higley noted that the U.S. Supreme Court examined a similar case,
2003's Yarborough v. Gentry, in which the defense counsel referred to the
defendant as "a bad person, lousy drug addict, stinking thief [and a] jail
bird." The Supreme Court refused to find the defense lawyer ineffective
and explained that by candidly acknowledging his client's shortcomings,
the lawyer might have built credibility with the jury and persuaded it to
focus on the relevant issues in the case.

Martin "has not demonstrated that his counsel, by acknowledging the
shortcomings that [Martin] had placed before the jury through his own
testimony, was deficient in his performance," Higley wrote.

TRIAL STRATEGY

In his dissenting opinion, Jennings described Boyd's questioning of Martin
as "hostile and antagonistic" to Martin's case. "He aligned himself with
the State, treated appellant [Martin] as a hostile witness, and called him
"a 'liar' when appellant's case depended upon his credibility," Jennings
wrote in reference to Boyd.

Jennings contended in his dissenting opinion that the majority misapplied
the Supreme Court's opinion in Yarborough v. Gentry. Jennings wrote that
in Gentry, the Supreme Court rejected the concerns raised by the 9th U.S.
Circuit Court of Appeals that defense counsel had taken "a gratuitous
swipe" at his client's character in his closing argument. The Supreme
Court had concluded that an attorney's tactical decisions in his closing
argument are "particularly important because of the broad range of
legitimate defense strategy at that stage" of a trial, Jennings noted in
his dissent.

Jennings wrote that Boyd was not making a closing argument and was not
persuading the jury to focus on other relevant issues. "His treatment of
his client as a hostile witness on direct examination, re-emphasizing the
State's impeachment of his credibility, can in no rational sense be
considered sound trial strategy," Jennings wrote.

Boyd says in an interview that his strategy was to show that Martin had
"lied about everything else" but that Martin did not lie when he testified
he was not driving drunk at the time of the 2004 accident. "I recommend to
Justice Jennings that he read the majority opinion," Boyd says.

Bubany says the remedy now for Martin is to seek a writ of habeas corpus
to have the trial court develop the record and determine whether trial
counsel had a strategy.

Notes Bubany, "If the record is inadequate on direct appeal, then you need
to have a proceeding in which the facts are developed, and that would be
the case if he files a petition for writ of habeas corpus."

(source: Texas Lawyer)

*****************

Edinburg man charged with murder in pregnant common-law wife----South
Texas man charged with capital murder


A South Texas man was charged with capital murder Tuesday in the
strangling of his pregnant common-law wife, police said.

Nelson Garcia, 44, remained in Hidalgo County Jail on a $1 million bond
Tuesday night, accused of strangling Claudia Zamora, 33. Her 3-month-old
fetus also died.

Police said Zamora claimed to have ended her pregnancy to make Garcia mad
during an argument Sunday after she found out he was having an affair.

"The victim was expecting, and that is why (the charge) is capital
murder," Edinburg Police Chief Quirino Munoz said in a story in today's
Monitor in McAllen.

Police said Garcia confessed to the crime and told investigators that he
crashed his car early Monday, hoping emergency crews would think Zamora
died in the wreck.

(source: San Antonio Express-News)

****************************

HPD'S war on crime goes into overtime


Crunching police OT surge numbers Police Chief Harold Hurtt set an
ambitious goal to reduce violent crime in Houston by at least 10 percent
during the next three years under a new staffing strategy he outlined
Tuesday with Mayor Bill White.

Hurtt announced the goal at a news conference where White committed to
spend an additional $24 million on overtime pay through 2010. The money
would continue to bolster an understaffed force as police commanders try
to increase their ranks.

While providing extra money for overtime, White also promised an
aggressive hiring commitment that could add 564 officers to the
4,880-member force by 2010.

"With these additional resources, I will set a goal for the Houston Police
Department to drive down violent crime past 10 percent," said Hurtt,
flanked by police brass, community activists and the head of the HPD's
largest union. "We should be able to do that within the next two to three
years."

The chief recently announced a roughly 5 percent decrease in the rate of
homicides, aggravated assaults, rapes and robberies from January to
August, compared with the same period last year.

The city's overall crime rate, which also factors in burglaries, thefts
and auto thefts, increased less than 1 percent during this period, police
statistics show.

More police for 'hot spots'

The planned overtime during the three years would be the equivalent of
500,000 police hours. Hurtt said he hoped that time and the hiring
strategy would allow the department to increase the number of officers
working in vice, Westside patrol and traffic enforcement, among other
areas. He also touted a new 60-member crime reduction unit that will serve
as a citywide tactical squad.

The police chief said the effort will put more officers to work
immediately in troubled areas of the city such as Acres Homes, where the
bodies of seven women have been found in the past 2 years.

"Today we're warning criminals that there's going to be even more police
on the streets and doing investigations to lower the crime rates in
Houston," White said.

The crime rate, particularly for violent offenses, has been a source of
concern for White and Hurtt since the latter part of 2005, when an influx
of hurricane evacuees increased the city's population by more than
100,000, and incidents spiked in certain neighborhoods.

The city fought crime increases in these "hot spots" by assigning officers
to work additional shifts funded, in part, by large federal grants. Those
grants are expected to dwindle by the end of next year.

The $24 million announced Tuesday would come from local tax revenues and
would supplement the grants until the number of officers reaches 5,400 by
2010, said Joseph Fenninger, HPD's chief financial officer.

Hurtt said he hoped the overtime and additional officers would allow the
department to think differently about fighting crime. He emphasized a
desire to reduce burglaries and thefts, which were up 11 percent during
the first 8 months of 2007 over the same period last year.

"We will have officers out in the community being very visible, stopping
in and talking to people when they do not need a police officer, to
enhance our relationships," he said.

That was good news for some community activists who attended the
announcement.

"We're very happy," said the Rev. Kevin Collins, a priest at the
Immaculate Conception Church and leader with The Metropolitan
Organization.

The new strategy, however, will not come cheap.

The department's roughly $600 million annual budget already has grown
about 20 % under White. That is about a third of the city's tax-funded
general operations budget.

The planned new officers would increase that annual commitment tens of
millions of dollars in the coming years.

The overtime money, which will not require a tax increase, is possible
thanks to the city's robust growth. Both sales and property tax revenues
are projected to grow, city officials said, even with a planned
quarter-cent cut in the property tax rate.

Staying under revenue cap

The most recent sales tax figures available, for July, show a 12 percent
increase over the same month last year. Property tax revenues are expected
to increase more than 3 % over what the City Council had budgeted for this
summer, perhaps as much as $25 million.

The city operates under a voter-approved revenue cap intended to limit
property tax-related spending. White, who has cut the property tax rate
and senior homestead exemption each year of his tenure, last year
persuaded voters to make an exception for some public safety spending,
however.

City officials said the extra money they anticipate from property taxes
would comply with the cap, but did not make their figures available
Tuesday.

The city's staffing strategy drew praise from rank-and-file officers.

"The bottom line is that this is boots on the ground," said Houston Police
Officers Union president Hans Marticiuc, who attended the meeting and has
long advocated adding officers to the force. "This is welcome news for
every Houston police officer."

(source: Houston Chronicle)

*************************

Condemned inmate loses appeal in double slaying


A Houston man on death row for a botched robbery in which a police officer
was among two people killed lost his appeal Wednesday before the Texas
Court of Criminal Appeals.

Elijah Dwayne Joubert was 1 of 2 men condemned for the 2003 holdup of a
check-cashing store where clerk Alfredia Jones, 27, and Houston Officer
Charles Clark, 45, were fatally shot.

Evidence showed Joubert killed Jones and a partner, Alfred Dewayne Brown,
shot Clark, who had responded to a robbery report.

At his trial 3 years ago, jurors deliberated only 1 hour before finding
Joubert guilty. Brown, at a separate trial in 2005, also was convicted and
condemned.

Joubert, 28, could still have a round of federal appeals to pursue. He
does not have an execution date.

In his appeal to Texas's highest criminal court, Joubert raised seven
points of error. All were rejected.

Among the arguments was a claim that testimony from a 3rd participant in
the robbery was not sufficiently corroborated to support Joubert's
conviction. The third robber, Dashan Glaspie, testified against Joubert
and Brown in a deal with prosecutors in which he pleaded guilty to
aggravated robbery and took a 30-year prison term.

Court documents identified Glaspie as the man who recruited Joubert, a
longtime friend, and Brown, another friend, for a robbery. With Glaspie as
a lookout, the 2 other men approached the owner of a check-cashing place,
but the owner pulled a gun, prompting them to abandon that attempt. Then
they went to a second store where Joubert pulled a gun on Jones, a single
mother of 2, as she walked inside. Glaspie and Brown followed her.

Jones told them she had to call another store to tell them she was opening
the safe and in her phone call delivered a coded distress message that
alerted police.

When Clark showed up, Joubert accused Jones of summoning police and shot
her, testimony showed. Brown then shot Clark, who was 1 day short of
marking 20 years with the police department. Evidence showed Clark got off
one shot at the robbers before his gun jammed.

Joubert, Glaspie and Brown were arrested less than 3 days later. In a
statement to detectives, Joubert acknowledged being at the store but
denied participating in the shootings.

Other points of error rejected in Joubert's appeal dealt with the wording
of his indictment, jury selection, Glaspie's plea deal and jury
instructions.

About 2 weeks before the shootings, Joubert was freed on bond on drug and
evading arrest charges. At the time of that arrest, he was free on bond
after being charged with felony weapons possession. Records showed Glaspie
had posted the bond for Joubert on the drug and evading arrest charges.
Joubert earlier served four years in prison for aggravated assault.

(source: Associated Press)

********************

Slain officer's partner recalls night he died----'Let's go help them out,'
he remembers Jackson saying near shift's end


Dallas police Officer Brian Jackson didn't have to answer the domestic
disturbance call that left him mortally wounded in the early hours of Nov.
13, 2005. But with only 20 minutes left in his shift, he eagerly responded
anyway.

"He said, 'Let's go help them out,' " recalled Officer Brad Ellis, who had
to pause to compose himself while testifying Tuesday in the capital murder
trial of Juan Lizcano, who is accused of killing Officer Jackson.

Officer Ellis served as Officer Jackson's partner every Saturday - the
only day their shifts overlapped. The 2 had been assisting homicide
detectives in tracking down two murder suspects blocks from the home of a
woman who twice called 911 to say her former boyfriend was threatening her
with a gun at her Old East Dallas residence.

Officers Jackson and Ellis were about to return to the police station to
close out their shift when the woman's 2nd call came in and they headed
there instead.

When they arrived at Marta Cruz's home, Officer Ellis stayed with Ms. Cruz
and Officer Jackson joined the search for Ms. Cruz's former boyfriend, Mr.
Lizcano.

According to testimony, Mr. Lizcano fired at three other officers, who
were not hit. Then a short time later, Officer Jackson was shot. The
bullet entered his underarm, an area not protected by his vest.

The next time he saw his partner, Officer Ellis said, Officer Jackson was
lying in the yard while officers took off his shirt and protective vest
and tried to resuscitate him.

Officer Ellis said he got down on the ground by Officer Jackson to help.

"I was telling him not to give up," he said. "I thought I heard a gurgle
at a point. But he never said anything."

Prosecutors said Officer Jackson returned fire when he was shot by Mr.
Lizcano but lost consciousness after about 15 seconds.

Mr. Lizcano was arrested after he lay down on the ground about 20 feet
from Officer Jackson.

Prosecutors are seeking the death penalty for Mr. Lizcano if he is
convicted; it's the 1st death penalty case since District Attorney Craig
Watkins took office in January.

Mr. Lizcano came to the U.S. from Mexico illegally about 5 years ago.

5 weeks before Officer Jackson was killed, Mr. Lizcano was arrested on a
misdemeanor charge of making a terroristic threat after being accused of
threatening his girlfriend with a knife. Days later, he was arrested on a
charge of driving while intoxicated.

Tuesday was the 2nd day of the trial. Testimony will continue today with
the prosecution calling additional officers who were there when Officer
Jackson was killed.

Prosecutors Patrick Kirlin, Kim Judin and Josh Healy told state District
Judge Andy Chatham that they could rest their case as soon as Thursday.

(source: Dallas Morning News)

*****************

Lecture series to focus on criminal justice


Innocent people spend five, 10 or even 20 years in a prison cell, trapped
by the powerful grip of the very system meant to save them. Victims who
suffer at the hands of criminals become lost in the array of prosecutors
and defense attorneys.

The presentation, focusing on ways to better serve victims, is a part of
the department's "Brown Bag Lecture Series" this semester.

"This lecture series will give students theory knowledge and practical
knowledge about the criminal justice system," Stickels said.

Stickels is board certified as a criminal law expert and currently
represents three inmates on death row. He has been prosecuting and
defending clients for 25 years, he said.

Crime and victimization relates to everyone, and learning more about the
system may raise awareness, criminal justice senior Shahrzad Pakbin said.

"A victim could be anyone," Pakbin said. "The sooner we expand our
knowledge, the better chance we have of saving more innocent lives. The
more knowledge we have about the system, the lesser chance we have of
becoming a victim."

The Student Advisory Committee initiated the lecture series, asking
professors to present research topics, said department chair Dr. Alejandro
del Carmen.

"I felt it was a good idea to have that kind of connection with the
students," del Carmen said.

The committee keeps students and faculty active in the department and
offers a broader perspective, said Donna Salazar, student advisory
committee chairperson.

"The idea is to grow to a point where we are integrating community
professionals with students and faculty, and that's what will set us
aside," Salazar said.

With several publications to his credit, del Carmen will introduce his new
book about racial profiling Oct. 17. John Rodriguez will present his
research on gangs and gang violence Nov. 7. The presenter for Nov. 21 has
not been announced.

(source: The (University of Texas at Arlington) Shorthorn