Ernest Orville BALDREE
Number of victims: 2
Date of murders:
Date of birth:
Victims profile: Homer Howard and his wife Nancy Howard
Method of murder:
Location: Navarro County, Texas, USA
by lethal injection in Texas on April
This offender declined to make a last statement.
May 5, 1997
What is the single most damaging consequence
of the encroachment of drugs into our society?
Drugs have had so many horrendous effects on
our country that it is hard to decide just which one is the
One likely candidate for the most terrible
result is the waste in human potential.
Talented and once-promising people have been
virtually destroyed - temporarily in some cases and permanently
in others - after they have surrendered control of their lives
to a drug habit. They have no interest in career, family,
friends - they are all-consumed by their lust for drugs.
How about monetary cost to society as a
nomination for most damaging consequence? We pay higher taxes
because of the fight against drugs. We fork over higher car
insurance premiums because of the accidents that have occurred
because of drugs and the cars that have been stolen to buy drugs.
Property insurance, of course, is higher
because of all of the residential burglaries that have been
committed so that burglars can turn a homeowner's possessions
into a quick high. Parents have spent years' worth of
accumulated family savings to pay for drug treatments for an
All of these are horrible results, but we
submit that the worst effect of drugs on our country is how they
have lowered the value of human life.
Ernest Orville Baldree, 55, was executed in
Texas last week for the 1986 shooting deaths of a couple with
whom he had been friends for many years - and to whom he was
related by marriage.
They had been kind to him, and they had tried
to help him. On the day he killed them, they had offered him
After Baldree gunned them down, he stole
money and jewelry from them. He later sold the jewelry for $600,
which prosecutors said he used to buy drugs.
How much is a human life worth? Sadly,
sometimes it is not worth very much when drugs are involved.
99 F.3d 659
Ernest Orville Baldree, Petitioner-Appellant,
Gary L. Johnson, Director, Texas Department
of Criminal Justice, Institutional Division,
Federal Circuits, 5th Cir.
Appeal from the United States
District Court for the Northern District of
Before DAVIS, BARKSDALE
and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Appellant Ernest Orville
Baldree requests a certificate of probable
cause from this Court in order to appeal the
district court's denial of his petition for
writ of habeas corpus. The district court
denied his request for such certificate.
Because Baldree fails to overcome the
presumption of correctness afforded to the
state court's factfinding and, therefore,
could not make a substantial showing of a
denial of his federal rights, we deny
Baldree's application for certificate of
probable cause to appeal.
I. PROCEDURAL HISTORY
AND FACTUAL BACKGROUND
Baldree was convicted of
capital murder by a jury in the 13th
Judicial District Court of Navarro County,
Texas, on December 8, 1986. The jury then
heard testimony and considered evidence in
the penalty phase of the trial. At the
conclusion of this stage of the trial, the
jury imposed the death penalty. The Texas
Court of Criminal Appeals affirmed Baldree's
conviction and sentence, and the United
States Supreme Court denied a subsequent
petition for writ of certiorari from that
decision. Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App.1989)
(en banc), cert. denied,
495 U.S. 940 , 110 S.Ct. 2193, 109
L.Ed.2d 521 (1990). Baldree then
filed two separate state court habeas
petitions under TEX.CODE CRIM.PROC.ANN. art.
11.07 (Vernon 1989). The factfinding judge
for these state habeas petitions was also
the judge who presided over Baldree's trial.
Both of Baldree's state habeas petitions
On November 8, 1991,
Baldree filed his first federal petition for
writ of habeas corpus and application for
stay of execution in the United States
District Court for the Northern District of
Texas. The district court granted a stay of
execution. The district court then referred
the writ of habeas corpus to a magistrate
judge. The magistrate judge issued findings
and conclusions, and recommended that the
certificate of probable cause and the writ
of habeas corpus be denied.
The district court
adopted the recommendations of the
magistrate judge. Baldree then appealed to
this Court, where he argues that the
district court erred in failing to order an
evidentiary hearing on four claims: (1) the
prosecution's alleged suppression of
exculpatory evidence; (2) the prosecution's
alleged knowing presentation of false
testimony; (3) the alleged violation of
Baldree's right to counsel in connection
with a confession obtained by a fellow
inmate; and (4) alleged violations of
constitutional rights in connection with
Baldree's oral confession to police.
A petitioner must first
obtain a certificate of probable cause in
order for jurisdiction to vest with this
Court. Washington v. Johnson, 90 F.3d 945,
949 (5th Cir.1996). To obtain a certificate
of probable cause, the petitioner must make
a "substantial showing of the denial of a
federal right." Barefoot v. Estelle, 463 U.S.
880, 892, 103 S.Ct. 3383, 3394, 77 L.Ed.2d
1090 (1983) (internal quotations and
To satisfy this
requirement, petitioner "must demonstrate
that the issues are debatable among jurists
of reason; that a court could resolve the
issues in a different manner; or that the
questions are 'adequate to deserve
encouragement to proceed further.' "
Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at
3394 n. 4 (emphasis original) (quoting
Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)).
Baldree filed his
application for certificate of probable
cause in this case prior to April 24, 1996,
the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA),
Pub.L. No. 104-132, tit. I, § 104 (to be
codified at 28 U.S.C. 2254(e) (1996)). At
oral argument, the state indicated that the
AEDPA would apply to this case but that
nothing in the new law was necessary to
sustain the action of the district court in
this case. If anything, the state contends
that the requirements of the new law may be
more stringent than the old law; but it is
unnecessary for the Court to decide which
law applies in this case. See Drinkard v.
Johnson, 97 F.3d 751, 755-57 (5th Cir.1996)
(recognizing that the standards for
obtaining a Certificate of Probable Cause
and a Certificate of Appealability are the
same and, therefore, applying § 102 of the
Baldree's application for
a certificate of probable cause raises four
issues. First, Baldree argues that the state
court's factfinding procedure was not
adequate to invoke the presumption of
correctness afforded to state court
factfindings under 28 U.S.C. 2254(d)(2).
Second, Baldree maintains that he was denied
a full and fair hearing in accordance with
28 U.S.C. 2254(d)(6). Third, Baldree
contends that he was denied due process of
law in his state habeas proceeding in
violation of 28 U.S.C. 2254(d)(7). Baldree
argues that a favorable resolution of these
issues would be dispositive of all his
claims. Finally, assuming this Court issues
the certificate of probable cause, Baldree
contends that Teague v. Lane, 489 U.S. 288,
109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), does
not bar relief concerning his claims.
The propriety of
Baldree's application for certificate of
probable cause to appeal rests primarily
upon three witnesses, Carl White, and Kyle
Barnett, who testified for the State at
trial, and Larry Bevers, who was a witness
for the State but did not testify. These
individuals later submitted affidavits which
recanted their trial testimony and prior
The new affidavits were
relied upon by Baldree in his second state
habeas proceeding. The affidavits allege
that the police used coercion and threats
which effectively forced these witnesses to
testify against Baldree at trial. Baldree
contends that sections 2254(d)(2), (6), (7)
and (8) were violated because no hearing or
discovery was allowed whereby he could
further develop the facts surrounding the
police coercion and misconduct alleged in
the new affidavits.
Carl White was arrested
on the same day as Baldree. White testified
at trial that Baldree told him that he had
killed two people. White also provided a
written statement to the police which set-out
Baldree's statements to White in some detail.
Baldree's application relies on White's new
affidavit which recants his prior testimony.
White now contends that the police strongly
hinted that he would be indicted under more
serious charges if he did not testify
against Baldree. White further states that
Baldree never told him anything about
Kyle Barnett and Larry
Bevers also allegedly signed new affidavits
stating that the police used coercion by
physical threats and threats of adding more
serious charges to their indictments to
force them to testify against Baldree.
Barnett was incarcerated with Baldree at the
Navarro County jail. He testified at trial
that Baldree admitted to murdering the
Howards. Barnett's new affidavit alleges
that law enforcement agents promised him
lenient treatment in a parole revocation
hearing if he could induce Baldree to
Bevers was a potential
witness who was not called to testify.
However, he did sign a written statement
explaining how he purchased various pieces
of jewelry from Baldree. Bevers' statement
also explained that, while he was buying
jewelry from Baldree at a hotel, Baldree
also attempted to sell him a white Cadillac
which was parked in the hotel parking lot.
The description of the Cadillac matched the
description of the Cadillac taken from the
Howards' home. Bevers' new affidavit
explained that Billy Dunn had sold the
jewelry to him and that he had never seen a
white Cadillac at the hotel. The new
affidavit also stated that the detectives
threatened Bevers and kept harassing him
until he signed a written statement that
they had prepared.
In response, the State
submitted affidavits of Patrick Batchelor,
the Criminal District Attorney for Navarro
County; John Jackson, the Assistant Criminal
District Attorney for Navarro County in
charge of Baldree's capital murder
prosecution; and Officer Leslie Cotten, the
detective in charge of the investigation
into the Howard murders for Navarro County.
These affidavits told a different story
which contradicted the tales told by White,
Bevers and Barnett in their new affidavits.
The state district court
chose to credit the State's affiants and
denied Baldree's habeas petition without
holding a hearing. 28 U.S.C. 2254(d)
requires that a federal district court
afford a presumption of correctness to the
state court findings of fact which are:
evidenced by a written
finding, written opinion, or other reliable
and adequate written indicia, ... unless the
applicant shall establish or it shall
otherwise appear, or the respondent shall
* * * * * *
(2) that the
factfinding procedure employed by the State
court was not adequate to afford a full and
(6) that the applicant
did not receive a full, fair, and adequate
hearing in the State court proceeding; or
(7) that the applicant
was otherwise denied due process of law in
the State court proceeding....
Baldree relies primarily
upon the exception in § 2254(d)(2),
contending that the state court order,
containing the findings relied upon in this
case, was issued on the same day that the
State filed its response to Baldree's second
state habeas petition, without affording
Baldree with an opportunity to respond.
Baldree maintains that the affidavits of
Bevers, Barnett and White show that the
State knowingly presented false and
misleading testimony in violation of Napue
Baldree also contends that these affidavits
show that the State failed to disclose
evidence relevant to the credibility of
State witnesses in violation of Giglio
Baldree also argues that the district court
should have granted the certificate of
probable cause to appeal and the writ of
habeas corpus because Barnett's affidavit
shows that the State improperly used him as
an undisclosed informant in violation of
Finally, Baldree contends
that the federal district court improperly
applied the presumption of correctness to
the state court's findings that his
confession was voluntary. Because the
affidavits shed light on the police
misconduct that occurred in this case,
Baldree contends that the federal district
court should have held a hearing to test the
validity of the state court's findings that
his confession was voluntary.
In its order, the state
district court explained that "Petitioner
has failed to demonstrate that during the
trial the State's attorney presented to the
jury any false or coerced testimony from
Kyle Barnett or Carl White." The state trial
court also noted that Baldree failed to show
that the State's attorney or law enforcement
officers had exercised any form of threat or
coercion to obtain the testimony or
statements of Carl White.
In essence, the
State court chose to credit the affidavits
presented by the State and relied on the
prior trial testimony of the defense
witnesses to determine that these claims of
police coercion were unfounded. Baldree,
however, contends that, because there was no
hearing, he could not further develop the
facts to show that the testimony of these
witnesses were procured using improper
A factually similar case
was resolved by this Court in Buxton v.
Lynaugh, 879 F.2d 140, 142-46 (5th
Cir.1989), cert. denied,
497 U.S. 1032 , 110 S.Ct. 3295, 111
L.Ed.2d 803 (1990). In Buxton, the
petitioner filed an affidavit of one of his
state trial attorneys. The affidavit alleged
that juror misconduct occurred. In its
response, the State submitted an affidavit
of another trial attorney for the petitioner
which contradicted the story in the
affidavit presented by petitioner.
state habeas proceeding, the state district
court made credibility determinations and
entered findings which credited the
affidavit presented by the State. In the
subsequent federal habeas petition, we
agreed with the federal district court's
application of the presumption of
correctness to the state court factfindings
and found that the factfinding procedure was
adequate to afford the petitioner a full and
fair hearing. Id. at 144.
We reached this decision
by relying on the fact that the state judge,
who reviewed the affidavits relating to the
state habeas petition, was the same state
judge who presided over petitioner's trial
and sentencing. Id. at 146. We reasoned that
when a state trial judge is also the judge
hearing the state habeas claim, that judge
is in an optimal position to assess the
credibility of the affidavits. Id.
true because the state judge had the benefit
of observing the witnesses and attorneys and
hearing testimony at trial. The state trial
judge could make credibility determinations
of the affidavits based on the demeanor of
the witnesses he heard at trial, without
holding a separate hearing to take live
testimony from the witnesses. Buxton, 879
F.2d at 146. In the subsequent federal
habeas petition, we held that the state
court's factfindings on this type of "paper
record" were entitled to the presumption of
correctness under 28 U.S.C. 2254(d). Id. at
Baldree has presented
nothing to indicate that the presumption of
correctness afforded to state court findings
of fact under § 2254(d) should not attach to
the findings in this case. In these
situations, it is not necessary for us to
hold a full-blown trial-type hearing to
satisfy the requirements of section 2254(d).
See James v. Collins, 987 F.2d 1116, 1122
(5th Cir.), cert. denied,
509 U.S. 947 , 114 S.Ct. 30, 125 L.Ed.2d
780 (1993); May v. Collins, 955 F.2d
299, 310 (5th Cir.), cert. denied,
504 U.S. 901 , 112 S.Ct. 1925, 118
L.Ed.2d 533 (1992).
This Court has held on
many occasions that a state court "paper
hearing" is sufficient to allow a federal
court to invoke the § 2254(d) presumption of
correctness to the state court's findings
when the state habeas judge also presided
over the petitioner's trial. See Perillo v.
Johnson, 79 F.3d 441, 446 (5th Cir.1996);
Vuong v. Scott, 62 F.3d 673, 683-84 (5th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct.
557, 133 L.Ed.2d 458 (1995); Armstead v.
Scott, 37 F.3d 202, 208 (5th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 1709, 131
L.Ed.2d 570 (1995). Here, the state district
court heard all the witnesses at trial and
was in an optimal position to judge their
demeanor and make credibility determinations.
which recant witnesses' trial testimony are
viewed with extreme suspicion by the courts.
May v. Collins, 955 F.2d at 314; Williams v.
State, 375 S.W.2d 449, 451-52 (Tex.Crim.App.1964).
As we explained in May v. Collins:
The level of insulation
the law grants to a skeptical trial judge's
assessment of recanting affidavits reflects
the notion that trial judges are in the best
position to compare a witness's earlier
testimony with his new version of the facts.
Thus, the concerns about the inadequacy of a
"trial by affidavit" are even more
diminished in the context of a factual
dispute rooted in witness's claims that they
perjured themselves at trial.
May, 955 F.2d at 314-15.
The "paper hearing"
Baldree received on his state habeas claim
was full and fair, notwithstanding the state
court's decision not to hold an evidentiary
hearing to resolve disputed issues of fact.
The trial judge, having heard the testimony
at trial, could determine the credibility of
the new affidavits without holding a hearing
as to Baldree's claims regarding the alleged
suppression exculpatory evidence,
presentation of false testimony, and use of
a jailhouse informant.
In addition, the federal
district court was entitled to give the
presumption of correctness to the trial
court findings that Baldree's oral
confession was voluntary. These findings
followed an evidentiary hearing on Baldree's
motion to suppress. Therefore, Baldree has
failed to make a "substantial showing of the
denial of a federal right."
For the foregoing reasons,
the application for certificate of probable
cause is DENIED, and the appeal DISMISSED.