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

[Rick Halperin]

Sept. 21



TEXAS----impending execution

Death In Texas: Michael Richard Scheduled For Execution


Texas Attorney General Greg Abbott offers the following information about
Michael Wayne Richard, who is scheduled to be executed after 6 p.m.
Tuesday, September 25, 2007. Richard was convicted and sentenced to death
for the capital murder of Marguerite Dixon during a burglary of her
Houston-area home in 1986.

FACTS OF THE CRIME

On the afternoon of August 18, 1986 and just 2 months after he had been
paroled from prison, Michael Richard approached Marguerite Dixon's son,
Albert, in front of the Dixon home in Hockley and asked if a yellow van
parked outside the home was for sale. Albert said the vehicle belonged to
his brother who was out of town and suggested that Richard come back
another time. Richard left.

When Albert and his sister, Paula, left a few minutes later, Richard
returned and entered the house. He took two television sets and put them
in the yellow van, sexually assaulted Mrs. Dixon and shot her in the head
with a .25 caliber automatic pistol.

Richard told police he ran out of the house and hot-wired the van, then
drove to Acres Homes. Richard attempted to sell the televisions there, but
ended up just giving the gun to a friend. He drove the van to another
home, where it stopped working. He told his friend there that he would
return shortly for the van, but never did; the owner of the house called a
wrecker the next morning to pick up the vehicle, which led to the police
being called when it was discovered the van had been stripped of several
valuable items and had obviously been hot-wired to get to its present
location.

Mrs. Dixon's children returned home around 9:30 p.m. on the day of the
killing to find the sliding-glass door open and all the lights in the
house turned off. Frightened by the condition of the house, they got a
neighbor, who entered the house with a flashlight and a gun. They
discovered Mrs. Dixon dead in her bedroom.

The next morning, the detective assigned to the case determined the
missing van had been found and interviewed the owner of the home where
Richard left the van and the man to whom Richard tried to sell the
televisions. Based on that information, the police obtained a warrant for
Richard's arrest. Police found Richard at his mother's home the next
evening; Richard admitted he was involved in Mrs. Dixon's murder and
offered to help find the murder weapon. Police found the weapon and
testing revealed it to be the gun that fired the fatal shot.

PRIOR CRIMINAL HISTORY

During the punishment phase of his trial, the state presented evidence of
Richard's 2 prior convictions for burglary of a habitation. Evidence was
also presented of an auto theft charge, committed shortly after the second
burglary, but not prosecuted. Richard murdered Mrs. Dixon less than 2
months after he was released on mandatory supervision for his 2nd burglary
conviction.

PROCEDURAL HISTORY

October 29, 1986 -- A Harris County Grand Jury indicted Richard for the
capital murder of Marguerite Dixon.

September 4, 1987 -- A jury found Richard guilty of capital murder, and he
was sentenced to death.

September 16, 1992 -- The Texas Court of Criminal Appeals reversed
Richard's conviction because of a flaw in the jury instructions.

May 15, 1995 -- Richard's 2nd trial began.

June 15, 1995 -- A 2nd jury found Richard guilty of capital murder, he was
sentenced to death.

June 18, 1997 -- The Texas Court of Criminal Appeals affirmed Richard's
conviction and sentence on direct appeal.

April 3, 1998 -- Richard filed his 1st application for writ of habeas
corpus with the state trial court.

June 26, 1998 -- The U.S. Supreme Court denied Richard's petition for writ
of certiorari.

February 7, 2001 -- The Texas Court of Criminal Appeals denied Richard's
state application for writ of habeas corpus.

February 7, 2002 -- Richard filed a federal petition for writ of habeas
corpus in a Houston federal district court.

December 31, 2002 -- The Federal District Court denied Richard's petition.
June 20, 2003 -- Richard filed a successive state application for the writ
of habeas corpus, alleging he was ineligible to be executed based on
Atkins claim of mental retardation.

June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied Richard
permission to appeal his first federal petition and affirmed the judgment
of the federal district court.

March 21, 2007 -- The Texas Court of Criminal Appeals denied Richard's 2nd
state habeas corpus application.

March 28, 2007 -- Richard filed a motion for authorization to file a
successive federal habeas corpus petition in the 5th U.S. Circuit Court of
Appeals.

May 15, 2007 -- The 5th Circuit Court denied Richard's motion for
authorization to file a successive habeas petition.

June 12, 2007 -- The trial court set Richard's execution date for Tuesday,
September 25, 2007.

MISCELLANEOUS

For additional information and statistics, please go to the Texas
Department of Criminal Justice website, www.tdcj.state.tx.us.

[source: Texas Attorney General]

(source: AllAmericanPatriots)

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Mendoza submits capital murder appeal to court


Moises Sandoval Mendoza will most likely spend several years on Texas
death row before the Texas Court of Criminal Appeals rules on his appeal.

Mendoza's attorney submitted his appeal to the Texas Court of Criminal
Appeals on Wednesday, Sept. 12. He was sentenced to death for the murder
of Rachelle O'Neil Tolleson, 20, of Farmersville, whom he strangled, raped
and stabbed then tried to dispose of her body by burning and dumping it in
an eastern Collin County creek bed in March 2004.

According to the Texas Department of Criminal Justice, Mendoza, 23, who
has been sitting on death row for more than 2 years, became the 12th
defendant sentenced to death in Collin County since 1976.

Mark Adams, deputy clerk for the Texas Court of Criminal Appeals, said it
could take several months for his case to even go before the court.

"In the past, it's taken more than 5 years sometimes," he said. "I think
at this point we're doing them quicker, but they're still not what I would
call quick. I think it would still be at least a year."

The appeal asks the Texas Court of Criminal Appeals to "reverse judgment
of the trial court and remand for a new trial" while the Collin County
District Attorney's Office's rebuttal asks the state court to affirm
Mendoza's conviction and sentence.

The 165-page appeal report filed in the Collin County District Clerk's
Office last April lists a total of 81 issues with the state's case and the
trial held in 401st District Court during the voir dire, trial and
punishment phases. One of the issues states the evidence presented to the
jury was "legally" and "factually insufficient" to support a guilty
verdict of capital murder, according to the report.

The statement of facts for appellant's issue no. 23 states that "there is
no conclusive evidence that Ms. Tolleson was abducted rather than having
left her home on her own volition."

The statement cited testimony from former Farmersville police Officer
Scott D. Collins about the condition of Tolleson's house and Texas Ranger
A.P. Davidson about photographs of the home, one of which depicts a stack
of clothing "as if someone was in the process of moving."

The statement also cites testimony from Tolleson's mother Pam O'Neill who
found Tolleson's infant daughter, Avery, alone on a bed in Tolleson's
bedroom with two pillows "propped up beside the baby," all of which the
statement said does not "suggest that she did not prop the pillows around
the baby and was going to leave her for a short period of time."

The Collin County District Attorney's Office offered its rebuttal to the
appeal in early June. It cites testimony from Davison that Mendoza told
him Tolleson left her home with him to get some more cigarettes even
though there was a pack of cigarettes "three-quarters full" in the house
and a 2nd pack in her car.

The report also claims Mendoza lied about being in Tolleson's home that
night after investigators found Mendoza's bootprint on some divorce
paperwork left in the house, and that the condition of the house was
"uncharacteristic of Rachelle, most importantly that Avery had been left
uncovered and alone on a bed."

(source: McKinney Courier-Gazette)

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Truth Hangs by a Hair----DNA tests sought by the Observer and the
Innocence Project could show whether Texas executed an innocent man.


One strand of hair found on the counter of an East Texas liquor store
whose owner was gunned down in 1989 could help determine whether Texas
executed an innocent man for the killing.

On September 10, a state district judge in San Jacinto County ordered
county officials not to destroy the hair and other evidence used to
convict Claude Howard Jones at his 1990 trial while The Texas Observer,
the Innocence Project, and other criminal justice groups pursue a lawsuit
seeking to have the hair released to a certified private laboratory for
testing.

"If the state of Texas did execute an innocent man, the people of Texas
deserve to know what was done in their name," said Observer Executive
Editor Jake Bernstein. "This case begs for further examination. It's not
as if the Texas Court of Criminal Appeals has an exemplary track record
when it comes to scrutinizing death sentences."

If successful, the lawsuit could not only discover whether Jones was
innocent, but better define the public's right to information that sheds
light on the integrity of the Texas criminal justice system. "It's really
been a source of great frustration for us when we can't get access to
evidence we think could be useful to determine if there's been a
miscarriage of justice," said David Dow, director of the Texas Innocence
Network, a University of Houston law clinic that assists inmates with
innocence claims.

The 1-inch hair of ambiguous origin was the only piece of physical
evidence that purportedly linked Jones to the November 14, 1989, murder of
Allen Hilzendager in Point Blank, about 85 miles north of Houston. Jones
was put to death by lethal injection on December 7, 2000, the last
execution conducted under former Gov. George W. Bush.

Jones, a multiple felon who was 61 when he was executed, maintained his
innocence until his death. No DNA testing was conducted on the hair, which
has remained in the files of the San Jacinto District Court clerk's
office. At Jones' trial, a state expert who examined the hair by
microscope testified that of all the people known to have been in the
liquor store on the day of the murder, the stray hair most closely
resembled Jones'.

Because of lingering questions about his guilt, on September 4 the
Observer, the New York-based Innocence Project, the Innocence Project of
Texas, and the Texas Innocence Network filed a public records request with
San Jacinto County asking that the hair be preserved and be turned over to
an independent lab certified by the state Department of Public Safety for
mitochondrial DNA testing. It is apparently the 1st time Texas open
records laws have been used to seek release of physical evidence in a
death penalty case.

"It is haunting to consider that the state may have executed an innocent
man, but DNA testing should be conducted to get to the truth," said
Innocence Project co-founder Barry Scheck. The bottom line is that Claude
Jones was convicted based on the hair evidence ... and DNA testing on the
hair could definitely show whether Claude Jones was guilty."

In response to the open records request, San Jacinto County District
Attorney Bill Burnettwho was not in office when Jones was prosecutedwould
make no commitment to preserve the hair, according to William H. Knull, an
attorney with the international law firm Mayer Brown. Knull is
representing the Observer and other groups. Burnett did not return phone
calls from the Observer seeking comment.

Mayer Brown lawyers won a temporary restraining order from District Judge
Elizabeth Coker protecting all evidence in the case. Coker scheduled a
hearing for October 3 to decide whether to issue a temporary injunction
extending the preservation order while the lawsuit is pressed.

"My understanding is that the hair is the only piece of physical evidence
that ties Mr. Jones to the crime," Knull said. "If that single piece of
physical evidence is destroyed, Im not aware of any other basis with which
to go forward with this investigation."

Court records and opinions written by appellate judges clearly indicate
that the hair was the most damning piece of evidence against Jones.
Without it, prosecutors had only inconclusive eyewitness testimony and
statements made by 2 co-defendants who said Jones was the killer. The
co-defendants escaped death sentences.

Hilzendager, the 44-year-old owner of Zell's liquor store on state Highway
150 near Lake Livingston, was shot 3 times with a .357-caliber magnum.

Jones, whose criminal record included prison stints in Texas and Kansas
for robbery, burglary, theft, assault, and murder, had recently been
released on parole. He was in the area hanging around with two other men,
Kerry Dixon and Timothy Mark Jordan, the alleged owner of the gun used to
kill Hilzendager.

Witnesses agreed that in the early evening of November 14, 1989, two men
in a pickup truck similar to Dixon's pulled up at the liquor store. One
man went inside, 3 shots were fired, and the men drove away. Descriptions
of the men varied, and neither of the 2 eyewitnesses who were across the
highway at the time was able to positively identify the man who entered
the store.

When picked up by police, Dixon and Jordan both told police Jones was the
killer. Jones was arrested on a bank robbery charge in early December in
Florida and sent back to Texas. All 3 men were charged with capital
murder. Dixon received a 60-year sentence. Jordan agreed to a 10-year
sentence in a plea bargain.

At Jones' trial, a hair found on the liquor-store counter proved crucial
to the prosecution. Stephen Robertson, a DPS forensics expert, testified
that the hair was a potential match to Jones, but said, "Technology has
not advanced where we can tell you that this hair came from that person.
Can't do that. We can tell you that this hair matches this person in all
characteristics and could be his."

The Court of Criminal Appeals upheld Jones' conviction in 1994 in a
sharply divided 3-2 ruling. Both sides placed great weight on the hair,
but reached different conclusions. The 3-judge majority upheld the
conviction partly because Jones "was the only person with access to the
pistol whose hair sample matched the one discovered at the murder scene."

2 dissenting judges said Robertsons analysis of the hair was
"insufficient" to connect Jones to the murder, and criticized the majority
for "carelessly reading the record or deliberately mischaracterizing the
record."

Shortly before his execution, Jones filed an appeal seeking DNA testing of
the hair using methods not available at the time of his trial. Coker
rejected the request, ruling that Jones had used up his chances to appeal
his conviction. The Court of Criminal Appeals also rejected the
last-minute plea for DNA testing.

The day he was set to die, Jones appealed to Bush for a 30-day stay of
execution to buy time for DNA testing. Typically in death penalty cases,
the governor's office of general counsel prepares a memo summarizing the
appeal and making a recommendation as to whether the governor should grant
a stay.

In Jones's case, the 4-page staff memo provided to Bush made no mention of
the possibility that DNA testing might shed light on Jones' guilt.
Instead, it summarized the prosecution's case and recommended that Bush
reject the request. Bush had earlier granted a stay for another death-row
inmate seeking DNA testing, saying "anytime DNA testing can be used in its
context and can be relevant as to the guilt or innocence of a person on
death row, we need to use it."

Although it was clearly spelled out in the stay request filed by Jones's
lawyerand a lawyer in Bush's office apparently contacted Robertson to talk
about the hairBush was apparently unaware of the DNA question. He rejected
the plea, and Jones was executed hours later.

Since Jones' death, DNA testing has emerged as a powerful tool in freeing
the innocent and exposing fallibilities in the criminal justice system.
The Innocence Project, founded in affiliation with the Benjamin Cardozo
School of Law in 1992 to pursue such cases, counts 207 inmates who have
been freed from prison when DNA testing proved their innocence, including
15 who were sent to death rows across the country. In 77 cases, DNA
testing also helped identify the guilty party.

DNA testing after an inmate has been executed is rare, but not without
precedent. In Virginia, widespread speculation about the possible
innocence of Roger Coleman, executed in 1992 for the rape and murder of
his sister-in-law, led to DNA testing of a semen sample 13 years after he
was put to death. Despite Coleman's vigorous protestations of innocence,
the test confirmed his guilt, showing a 1-in-19 million chance that the
semen belonged to someone else.

In Georgia, Ellis Wayne Felker was executed in 1996 for the rape and
murder of a 19-year-old student. Evidence against him was largely
circumstantial. 4 years later, DNA tests on fingernail scrapings found on
the victims body were inconclusive.

Whether or not DNA testing bolsters Jones' innocence claim, resolving
lingering questions about the case is crucial, Knull said. "We all have an
interest in knowing that our state and its mechanisms are working
properly, especially in issues involving life and death," he said.

Texas has an established track record of sending innocent men to death
row. SomeClarence Brandley, Randall Dale Adams, and Kerry Max Cook among
themhave escaped execution and eventually been freed on appeal.

But substantive questions remain about how many innocent inmates the state
might have executed. In about a half-dozen cases, serious indications have
arisen after the fact that point to an executed inmate's innocence.

Perhaps the most notorious case was that of Cameron Todd Willingham,
executed in 2004. Willingham was convicted of setting a fire that killed
his 3 children, a 2-year-old girl and 1-year-old twins. Experts who later
scrutinized evidence in the case concluded that the fire probably was not
arson.

Other questionable cases have involved inmates largely implicated on the
testimony of accomplices who escaped death sentences themselves, a botched
crime-scene investigation that destroyed evidence, and an incompetent
defense attorney who failed to present a case for his client.

State public records laws apparently have never before been used to obtain
physical evidence for independent testing. In the lawsuit, the Observer
and other plaintiffs argue that testing the hair in the Jones case is a
logical extension of the public's right to access. Prosecutors and the
courts no longer have any use for the hair, the lawsuit argues, leaving no
reason why it cannot be tested.

With limited exceptions, the evidence used to convict someone is
considered public record, enjoying a "powerful and historic presumption in
favor of public access," the lawsuit argues.

The Texas Innocence Network has filed public records requests for evidence
in noncapital cases, but has always been turned down, Dow said. The public
access question has never been litigated, he said.

"Under any circumstances, (this case) will clarify what the public's right
is when it comes to having access to evidence used to obtain a criminal
conviction," he said.

(source: Texas Observer)

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Texas attorney general's office won't appeal ruling overturning Coble
death sentence


The Texas attorney generals office will not appeal last months ruling by
the 5th Circuit Court of Appeals that overturned triple murderer Billie
Wayne Coble's death sentence.

That decision paves the way for Coble to be returned to Waco for a new
punishment trial.

"I can't get into the reason why we didn't appeal the ruling. It is just a
decision from our attorneys here  a legal decision that we can't go into,"
said Lauri Saathoff, a spokeswoman for the Texas attorney generals office.

The attorney general's office represents the state in death row inmates'
federal appeals. U.S. District Judge Walter S. Smith Jr. received the
order from the New Orleans-based appellate court earlier this month and is
expected to sign an order in compliance with the ruling granting Coble a
new trial for punishment only.

Coble, now 58, has been on death row since his 1990 conviction in the
August 1989 shooting deaths of his estranged wife's parents, Robert and
Zelda Vicha, of Axtell, and her brother, Waco police Sgt. Bobby Vicha,
also of Axtell.

Coble will remain on death row until Smith signs the order granting him a
new trial in state district court and 54th State District Judge Matt
Johnson signs a warrant to have Coble returned to the McLennan County Jail
to await trial, state and local officials said.

Coble will return to Waco still guilty of the triple murder because a
three-judge panel on the federal appellate court only reversed his death
penalty. A new jury in his retrial will be instructed that he is guilty,
leaving his punishment the only issue to be decided. He faces the death
penalty again or life in prison.

In a 28-page opinion issued Aug. 14, the appellate court said the 2
special issues that Coble's McLennan County jury had to answer for the
death penalty to be assessed  whether he committed the murder deliberately
and whether he would constitute a future danger to society  were
unconstitutional as they were applied to him.

The special issues posed to the jury came from instructions under the
Texas death penalty statute at the time. The 5th Circuit's ruling reflects
changes made since then that limit the scope of the death penalty and
allow a life sentence to be imposed if Texas juries believe there is
sufficient mitigating evidence to preclude the imposition of the death
penalty.

Coble's appellate attorney, Richard Ellis, of Mill Valley, Calif.,
described Coble as "content" after the ruling.

"Mr. Coble has never really focused on his case," Ellis said. "He is more
interested in helping other people with their cases or sending baskets of
crafts he made to underprivileged schoolchildren when he was allowed to do
that.

"He has become quite a jail-house lawyer."

Coble's son, Gordon Coble, said he tried to visit his dad on death row
after the ruling but was unable to get in to see him because he had
already had his allotted number of visitors that month.

"We are all in pretty good spirits about it," said the 34-year-old auto
mechanic. "I would like to see him live out his days without having to go
back through the death row thing again. That would be so nice."

Coble, despondent over the breakup of his 3rd marriage, drove to Axtell to
convince his wife, Karen Vicha Coble, to give him another chance,
according to trial testimony.

He first shot Robert Vicha in his home while looking for Karen. Coble then
went down the street to Bobby Vicha's house, where he ambushed him in the
garage as the police sergeant was getting out of his car.

Vicha was able to shoot Coble in the hand before Coble fatally shot him
several times, according to testimony.

Officials say Zelda Vicha was shot after she arrived home. Coble then went
to Karens home nearby, tied up Bobby Vichas son, J.R. Vicha, and his 3
cousins and told Karens three daughters to tell their mother goodbye.

He kidnapped Karen before getting into a high-speed chase and wrecking in
Bosque County.

Prosecutor Crawford Long said it is too early in the process to know when
Cobles retrial will be held.

(source: Waco Tribune-Herald)

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Death penalty may be sought after all in 1990 murder trial----DA's office
puts execution back on table in death of cabdrivers.


This summer, Travis County prosecutors announced in court that District
Attorney Ronnie Earle had decided not to seek the death penalty against
Alberto Garcia, 42, accused of killing two Austin cabdrivers in 1990.

But after defense lawyers filed a motion last month to have the two murder
cases tried separately, Assistant District Attorney Darla Davis put the
death penalty back on the table.

Davis said the move is necessary to gain any conviction in the cases, but
on Thursday, Garcia's defense lawyers filed a motion accusing the state of
"prosecutorial vindictiveness" and claimed that prosecutors have made an
arbitrary and unconstitutional use of the death penalty. State District
Judge Mike Lynch set a hearing on the motion for Oct. 9.

The pretrial wrangling is the latest development in a case that has taken
many turns since December 1990, when drivers Eleazar Hinojosa, 57, and
John Parrish, 41, were found fatally shot in their cabs within days of
each other. Another man, Paul Mitchell Vallejo, was charged with
Hinojosa's death, but he was acquitted at a 1993 trial.

In 2004, Austin police cold case detectives linked the fingerprints of
Garcia, at the time in federal prison for bank robbery, to prints from the
crime scenes.

He was indicted on a capital murder charge killing 2 people in the same
scheme and course of conduct  in October 2004.

Later, as he does in all capital murder cases, Earle convened a panel of
his top assistants to discuss whether he should seek the death penalty.
They said he shouldn't, and Earle agreed.

But then lawyers in the case realized that under state law in 1990, when
the crimes were committed, prosecutors could not waive the death penalty
in a capital case, as they often do now. So if they were to proceed on the
capital murder indictment, the jury in the case would have to be given the
option of the death penalty if they convicted Garcia.

Because they did not want to seek the death penalty, prosecutors in July
sought and secured 2 indictments against Garcia on charges of murder, a
1st-degree felony.

Last month, prosecutors filed a notice that they would try both murder
cases at the same time. Garcia's lawyers responded by filing a motion for
severance, essentially demanding two trials. Under state law, when a
defendant asks for two trials in such a case, he must get them, lawyers
said.

Davis said that if the severance were granted, the state would go to trial
not on either murder charge but on the original capital murder indictment.

"The death penalty is supposed to be imposed in situations where the state
has decided carefully to seek it," Linda Icenhauer-Ramirez, one of
Garcia's lawyers, said outside court Thursday.

Earle referred questions on the case to Davis, who said later Thursday
that the decision is Garcia's: Either go to trial on a capital murder
count and face a possible death sentence or be tried in 2 murder cases and
face up to life in prison.

Davis said that because of the nature of the evidence, which she would not
describe, "we have to try these murders in the same trial, and the only
way to do that at this point is to proceed on the indictment in which the
law requires the jury to be the ones to decide between life and death."

University of Houston Law Professor David Dow, who specializes in capital
cases, said that prosecutors often use the death penalty as a tool to
extract concessions from defendants.

"Perhaps morally objectionable," he said, "but it's legally permissible."

Dow noted that it appears to be a smart move for prosecutors to want to
try the 2 murder cases together, assuming that Garcia left either
fingerprints or DNA in both cabs.

In a separated case, Dow said, Garcia could argue that he was in the cab
as a customer before the driver was killed. If he tried to argue that that
happened twice, it might be too big a coincidence for a jury to dismiss,
Dow said.

University of Texas law professor Rob Owen, co-director of the school's
Capital Punishment Clinic, said that changing course in the pursuit of the
death penalty could erode public confidence in Earle's office.

"The public trusts the district attorney's office to be exceedingly
judicious in their use of the death penalty and only to seek the death
penalty when it's clear that no other punishment will protect the public,"
Owen said. "It's very troubling ... that the state is using the death
penalty here for bargaining leverage."

(source: Austin American-Statesman)

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Officer's slaying spurred HPD's focus on searches----In year since, HPD
has focused on proper pat-down methods and revised immigrant policy


Family of slain officer marks a difficult anniversary In the year since
Houston police officer Rodney Johnson was shot dead by a man cuffed in the
back seat of his patrol car, the department revised its policy on
processing illegal immigrants, explored bullet-resistant shields for
patrol vehicles and considered requiring 2 officers per car.

But while each of those measures has merit, the real key to ensuring the
tragedy that befell Johnson is not repeated may be the new emphasis
trainers at the academy are putting on the right way to search a suspect.

That search is what Johnson likely did wrong the afternoon of Sept. 21
last year after stopping Juan Quintero in his car near Hobby Airport.
Johnson cuffed him and put him in the back of his patrol car.

Minutes later, the friendly, 12-year veteran police officer and father of
5 was dead, shot four times with a 9 mm pistol he missed. "Unfortunately,
he (Johnson) made a mistake" said Hans Marticiuc, a close friend of
Johnson's and president of the Houston Police Officers' Union. "He missed
a gun."

Rick Hartley, executive director of the 100 Club, agreed, describing the
apparent error as a "frailty of being human."

Quintero was in the U.S. illegally. The Mexican national, 32, was deported
in 1999 after being charged here with indecency with a child, but returned
to the Houston area.

He was charged with capital murder in Johnson's death, for which he faces
the death penalty and is awaiting trial. He has confessed to the shooting
and is "incredibly remorseful," said his attorney Danalynn Recer.

In the weeks after Johnson's death, HPD officials said the department
would review certain procedures to see if there was anything it could do
to prevent such incidents.

Because Quintero fired the pistol through an air vent in the shield
separating the front and back seats of Johnson's patrol car, a
bullet-resistant partition probably would not have saved his life. But, in
an effort to improve officer safety in patrol cars, HPD has been exploring
the option for months.

HPD Captain Bruce Williams said it is a "possibility" that the department
will purchase the shields for all patrol cars.

"If it saves lives and if it's functional, I don't think they're going to
let cost be an obstacle," said Williams.

Johnson's death also expedited a revision, already in the works before the
killing, of a different and controversial aspect of department policy -
how HPD handles illegal immigrants who break the law.

Now, all people arrested are asked at booking whether they are U.S.
citizens and if they were born here. Also, most non-U.S. citizens who are
flagged, or wanted, by federal officials are transferred into the custody
of the U.S. Immigration and Customs Enforcement.

"If you've been flagged, you're not going to get out because you're on a
criminal hold with ICE," said Craig Ferrell, general counsel for HPD. The
department referred more than 140 cases involving illegal immigrants to
ICE from Oct. 10, 2006, to July 31, 2007, HPD said.

Punishment in Texas

The policy revision also calls for criminal prosecution by the U.S.
Attorney's Office of any illegal immigrant in possession of a firearm or
any previously deported illegal immigrant, Ferrell said. Those criminals
must serve their punishment in Texas before being deported to their native
country, he said.

"If they have killed a police officer, they should face Texas justice,"
Ferrell said.

Having another officer in the patrol car helping Johnson manage a busy
scene might have made a difference, Marticiuc said.

"He's concentrating on not only the person he has in custody, but the
other people in the car, the traffic, the pedestrians," Marticiuc said.
"Another officer might have saved him."

HPD acknowledged that two officers in each patrol car would be ideal but,
"given the staffing constraints we have, it would be unrealistic,"
Williams said.

Quintero's trial begins in March. His defense is being paid by taxpayers
on both sides of the border, with the Mexican government picking up
Recer's fees. Harris County District Attorney Chuck Rosenthal will lead
the prosecution.

(source: Houston Chronicle)

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Oshinsky poses moral questions to students


As part of the University Lecture Series directed at incoming freshman,
Pulitzer Prize winner professor David Oshinski spoke about the moral and
racial issues related to the death penalty at the Frank Irwin Center
Wednesday evening.

The U.S. has used capital punishment since the settlement of Jamestown in
1608, a UT history professor said in a Wednesday night lecture at the
Frank Erwin Center.

David Oshinsky discussed the history of capital punishment in the U.S. and
whether the practice is fading. The professor won the Pulitzer Prize last
year for his book on the campaign to wipe out polio.

Oshinky said race, fairness and deterrence are three issues surrounding
the death penalty debate.

He also outlined the rules of who can be executed and how executions have
evolved over time. In 1977, it was made illegal to execute someone for
rape, he said. Laws have also made it illegal to execute people who are
young and/or mentally deficient.

Oshinsky said polls show that most Americans believe the death penalty is
flawed.

"Can it be fixed?" Oshinsky said. "It depends on what you mean. If your
standard is never again killing an innocent man, no."

People who hold such a standard should support abolishing the death
penalty, he said.

Throughout his lecture, the professor highlighted both sides of the debate
to illustrate the opposing views on capital punishment.

He said three studies since the year 2000 paired a high execution rate
with a low homicide rate. Wealthy people avoid death row by hiring
expensive lawyers, he said.

He also spoke about capital punishment practices within Texas.

Since 1972, when states began making their own capital punishment laws,
1/3 of the 1,100 executions nationwide have taken place in Texas, he said.
About one-third of the Texas executions occurred in Harris County, where
Houston is located.

He used statistics and historical cases to frame his lecture. Members of a
discussion panel offered their death penalty views then answered students'
questions on the issue.

In closing his lecture, Oshinsky asked the audience to consider their own
moral and religious convictions on the issue.

The lecture was the third in a series designed to engage freshman from
different disciplines in discussions about contemporary social issues.

"They have done a good job with having a wide variety of topics and
different perspectives," said Talia Katz, an undeclared freshman attending
her 3rd lecture. She also said she thought they presented the
controversial issues well without pushing ideas on the audience. "They
give us the ideas and allow us to work it out in our own minds and form
our own opinions."

(source: The Daily Texan)

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

Court allows appeal: improper evidence given to jury


Appeals will be allowed to continue for a man on Texas death row over a
1998 fatal stabbing -- to steal the victim's gold watch.

A federal appeals court in New Orleans says the matter involves a written
statement that wasn't supposed to be allowed into evidence at the trial of
Samuel Bustamanate.

That statement mistakenly was given to the jury anyway.

Authorities say the item banned by the judge -- ended up with the same
exhibit number as one that was correctly to be given to the panel.

Bustamante is a former oilfield worker from El Campo who was condemned for
the 1998 slaying of 27-year-old Rafael Alvarado.

Records show Alvarado was stabbed at least 10 times after he was picked up
by Bustamante and 3 friends in Rosenberg.

Prosecutors had described the outing as a "shopping" trip to rob illegal
immigrants.

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

Inmate appeals based on evidence wrongly given to jury


An inmate on death row for fatally stabbing a man during an attempted
robbery is appealing his conviction because a written statement that
wasn't allowed into evidence was mistakenly given to jurors during
deliberations.

Samuel Bustamante, a former oilfield worker from El Campo, was condemned
for the 1998 slaying of Rafael Alvarado, 27. Alvarado was stabbed at least
10 times after he was picked up by Bustamante and three friends in
Rosenberg during what was described as a "shopping" trip to rob illegal
immigrants.

In his appeal to the 5th U.S. Circuit Court of Appeals, Bustamante argued
the statement police took from his brother, Bill, prejudiced jurors
because they learned from it that he had "gone shopping" before and had
told his brother he intended to rob someone. Bill Bustamante, charged with
murder in another case, had refused to testify. Prosecutors had attempted
to have the statement read into testimony by a police officer, but the
trial judge refused.

Samuel Bustamante also contended in his appeal to a 3-judge panel of the
New Orleans-based 5th Circuit Court that his trial lawyers were deficient
because they didn't inspect the exhibits before they were given to the
jury and recognize that an improper exhibit was among them.

2 items carried the same exhibit number 107, one of them the statement not
allowed into evidence and the other a chart or graph that was admitted
properly.

The panel, in a ruling late Thursday, agreed and granted Bustamante a
certificate of appealability, meaning he can pursue the issue in
additional appeals in the courts.

Jurors inspecting evidence at the 2001 trial discovered the statement and
sent a note to the judge, who then questioned them individually. 3 jurors
said they had read at least portions of the statement and 9 said they
heard at least some of it read aloud. All 12 said they could disregard the
statement if instructed to.

State District Judge Thomas Culver III gave them that instruction and
refused a mistrial request from Bustamante's lawyers.

"I felt no way they could do that, no way they could disregard it after
having seen and discussed it," Mike Fosher, one of Bustamante's trial
lawyers, said Friday, calling the appeals court ruling "good news."

The jury found Bustamante guilty of capital murder and in a later
deliberation decided he should be put to death.

Bustamante's lawyers didn't dispute that he killed Alvarado but insisted
the victim wasn't robbed, meaning it shouldn't be a capital offense
punishable by death.

Alvarado was attacked while riding in the back of a pickup truck. He
apparently managed to climb from the moving truck as it drove down a
deserted road and his body was found the next morning. He still had his
money and his jewelry.

The Texas Court of Criminal Appeals, with one judge dissenting, upheld the
conviction and death sentence in 2003.

Alvarado had been offered a ride by Bustamante and his companions some
time after 2 a.m., outside a bar in Rosenberg, near Houston. Their scheme
was to pick up illegal immigrants after the bars closed and rob them.

Court records show Alvarado, a construction worker living in adjacent
Richmond, was singled out because his clothes were in good condition and
he was wearing a gold watch. Court records did not indicate his
immigration status.

Bustamante and his brother also were charged with the murder a month later
of homeless man in Wharton County. Bill Bustamante agreed to a plea
bargain in that case and went to prison for 40 years.

Bustamante, 39, is known on death row as "Fat Boy," according to a Web
site where he seeks pen pals. His prison record lists him at 5-feet-7 and
264 pounds. He had a previous record for forgery in North Carolina, where
he served 6 months of a 1-year prison term.

In Texas, he received 5 years in Wharton County for burglary, was released
on parole but returned with another 4-year term for possession of a
prohibited weapon. He was paroled from that conviction in 1991.

(source for both: Associated Press)