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Classification: Murderer
Characteristics: Robbery - Murder for hire
Number of victims: 3
Date of murders: October 9, 1984
Date of birth: February 23, 1957
Victims profile: Gene Hathorn Sr., 45; his wife, Linda Sue, 34, and their 14-year-old son, Marcus
Method of murder: Shooting
Location: Trinity County, Texas, USA
Status: Executed by lethal injection in Texas on December 9, 1999

death row interview



Date of Execution:
December 9, 1999
Beathard, James #785
Last Statement:

I want to start out by acknowledging the love that I've had in my family. No man in this world has had a better family than me. I had the best parents in the world. I had the best brothers and sisters in the world. I've had the most wonderful life any man could have ever had. I've never been more proud of anybody than I have of my daughter and my son. I've got no complaints and no regrets about that. I love everyone of them and have always been loved all of my life. I've never had any doubts about that. Couple of matters that I want to talk about since this is one of the few times people will listen to what I have to say. The Unites States has gotten to a now where they zero respect for human life. My death is just a symptom of a bigger illness. At some point the government has got to wake up and stop doing things to destroy other countries and killing innocent children. The ongoing embargo and sanctions against places like Iran and Irag, Cuba and other places. They are not doing anything to change the world, but they are harming innocent children. That's got to stop at some point. Perhaps more important in a lot of ways is what we are doing to the environment is even more devastating because as long as we keep going the direction we're going the end result is it won't matter how we treat other people because everybody on the planet will be on their way out. We have got to wake up and stop doing that. Ah, one of the few ways in the world the truth is ever going to get out, or people are ever going to know what's happening as long as we support a free press out there. I see the press struggling to stay existent as a free institution One of the few truly free institutions is the press in Texas. People like the Texas Observer and I want to thank them for the job they've done in keeping me and everybody else informed. I hope people out there will support them, listen to them and be there for them. Without it, things like this are going to happen and nobody will even know. I love all of you. I always have I always will. I would like to address the State of Texas and specially Joe Price, the District Attorney who put me here. I want to remind Mr. Price of the mistake he made at Gene Hawthorn's trial when he said that Gene Hawthorn was telling the truth at my trial. Mr. Price is a one-eyed hunting dog. He in fact is not a one-eyed hunting dog, and in fact Gene Hawthorn lied at my trial. Everybody knew it. I'm dying tonight based on testimony, that all parties, me, the man who gave the testimony, the prosecutor he used knew it was a lie. I am hoping somebody will call him to the floor for recent comments he's made in the newspaper. It's bad enough that a prosecutor can take truth and spin on it and try to re-doctor it. But when they actually make facts up and present to the public as trial's evidence. That goes beyond fail, that's completely unforgivable and I hope somebody makes Mr. Price account for or explain the tennis shoes he is talking about that put me here. I'm still completely lost on that and I'm hoping that somebody will go back and verify the trial record and make him accountable for lying to the public and the press that way. That's really all I have to say except that I love my family. and nobody, nobody has got a better family than me. I love you booger bear. I love doodle bug, too. Don't let them ever forget me. I'll never forget them. I'll see you on the other side, okay. Bye bye Debbie. Bye bro, bye booger bear. Father Mike, Father Walsh, love you all. That's all, sir.


Texas Attorney General

Media Advisory

Wednesday, December 8, 1999

James Lee Beathard Scheduled to be Executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on James Lee Beathard, who is scheduled to be executed after 6 p.m., Thursday, December 9th


James Lee Beathard and Gene Hathorn, Jr., became acquainted while working at the State Hospital at Rusk, Texas. The men continued their friendship after Beathard left his job at the hospital. Recurrent topics of conversation included Hathorn's desire to commit "the perfect murder" and his wish to kill his father, stepmother, and half-brother, a wish motivated by animosity and the prospect of an inheritance.

Hathorn, whose parents lived in a trailer located in an isolated and wooded area of Trinity County, Texas, planned to shoot everyone in the trailer using a number of different weapons, take several items that would be missed, and plant African-American hairs and cigarette butts that had been smoked by African-Americans.

In addition to his plan for the scene of the crime, Hathorn wanted to have an accomplice. The accomplice was to provide an alibi as well as to help with the shootings. Hathorn proposed his plan to a few different people, but Beathard was the only interested party. Beathard requested $12,500 from the proceeds of the estate for his participation in the murders.

On October 9, 1984, Beathard and Hathorn left Rusk and went to Nacogdoches, ostensibly for Beathard to check some books out of the library at Stephen F. Austin University, where Beathard had formerly been a student. The two went to Nacogdoches by way of Gallatin, in Cherokee County. Beathard had relatives who owned property near Gallatin. There, Beathard and Hathorn conducted some target practice with Hathorn's shotgun. When finished, they went on to Nacogdoches. While in Nacogdoches, the two went to several highly visible places in addition to the library. When finished, they drove on to Hathorn's parents' home in rural Trinity County.

Hathorn testified that when he and Beathard arrived at his parents' home he gave Beathard a .380 pistol, a Ruger Mini-14 rifle, and cellophane packets containing the hair and cigarettes butts that they were going to leave at the scene. Hathorn kept the shotgun. Thus armed, the men cut through the woods until they got to the driveway leading to the Hathorns' trailer. The two followed the driveway until they reached the clearing around the trailer.

At this point, they followed the tree line around the clearing to the trailer. Hathorn went behind the trailer, and Beathard went to the back door. Once positioned, Hathorn fired a shot through a large back window. When the shot was fired, Mr. Gene Hathorn Sr. was sitting with his back to the window with his head visible above the top of the sill. Upon hearing the shot, Beathard was to enter the back door with the remaining two weapons in order to finish any job that the shotgun blast failed to do, plant the evidence, and remove agreed upon items of property. Hathorn said that he heard shots fired from inside the trailer. A few minutes later, Beathard came out the front door of the trailer carrying a video cassette recorder, a video disk player, and a number of the Hathorn family's guns. They both loaded the items into the car. Hathorn drove a van belonging to the victims, and Beathard drove the car in which they had arrived.

Hathorn drove to an area of town which was predominantly occupied by African-Americans. There, he left the van on a residential street and joined Beathard in the car they had brought. Next, they drove to Nacogdoches, stopping twice to drop the items removed from the trailer, the pistol, and the rifle off of two different bridges into two different rivers. Arriving in Nacogdoches, they returned to the library to check out an additional book. Completing this, they returned home.

Crime scene investigators and a forensic pathologist testified about the physical evidence discovered. The evidence and testimony of these witnesses corroborated Hathorn's version of the facts. The forensic pathologist testified that all three victims had wounds from a shotgun blast or blasts. In addition, Mr. and Mrs. Hathorn had fragments of glass and other debris in their wounds which would be consistent with a shotgun being fired through a window. He went on to say that, based on his examinations, the shotgun wounds of the victims were the first gunshot wounds to be inflicted.

Assuming that the shotgun wounds occurred simultaneously, the additional gunshots to Mr. and Mrs. Hathorn, whose bodies were found in the living room, were inflicted next, and the additional wounds to Marcus, the Hathorns' son, whose body was discovered in a bathroom, were inflicted last. Investigators at the crime scene stated that the pattern of buckshot which hit the ceiling and opposite wall of the trailer was consistent with Hathorn having fired his shotgun from the position he testified to at trial. The locations of shell casings found inside the trailer and the projected trajectory of the shots fired would be consistent with an individual entering through and firing from the trailer's back door. Ballistics tests matched the bullets recovered from the bodies to bullets known to have been fired by Hathorn's pistol and rifle.

Beathard testified at trial and denied his complicity in the murders. He admitted that he accompanied Hathorn to Gallatin and to Nacogdoches. However, he said that he agreed to leave Nacogdoches with Hathorn because he was offered an opportunity to make $2,000 by participating in a drug transaction. Beathard's account of the trip to the Hathorn residence coincided with that of Hathorn until the two arrived at their destination.

Beathard said that the two drove all of the way up the driveway and to the trailer. He said that Hathorn instructed him to stay outside while he went into the trailer to conduct his transaction. Hathorn went to the door, knocked, and entered the trailer for a short while. After leaving the trailer, Hathorn went to the car and retrieved the shotgun. Hathorn, who was now wearing rubber gloves, then went to Beathard, who was standing away from the mobile home near a camper trailer parked in the yard, and told him, "I don't want to have to do it this way." Hathorn then rapidly turned and fired the shotgun through the back window "as if he were shooting skeet" and shouted "Mommy and Daddy get down somebody's shooting at us." He then said to [Beathard] "If I go down you go down. Shoot anything that moves" and handed Beathard the shotgun.

According to Beathard, Hathorn then ran off, but Beathard did not see where Hathorn ran because he laid down on the ground. At this point, Beathard said that he did not see Hathorn in possession of any other weapons and had not seen any weapon, other than the shotgun, during the evening. "A few seconds later," Beathard heard three or four shots fired rapidly, a pause, and a similar group of shots. Unsure of what was happening, Beathard said that he crept into the edge of the woods and hid. After a while, Beathard worked his way back to the camper and shouted for Hathorn. Hathorn shouted back for Beathard to get back in the car. From the point Beathard returned to the car, the two men's stories again coincide.

In addition to his own testimony, Beathard also presented the testimony of numerous family members, friends, and co-workers who told the jury that Beathard's character simply was not consistent with the commission of the capital murders of Hathorn's family. Co-workers testified to his competence on the job, honesty, reputation for nonviolence, and above-average intelligence. Several of his co-workers who were psychiatrists and psychologists at Rusk State Hospital testified that Beathard did not exhibit traits of an antisocial personality. One co-worker testified, however, that Beathard exhibited some signs of an antisocial personality. Some of Beathard's co-workers were aware of his drug use, but others were not.

Many witnesses also testified to the bad reputation of Gene Hathorn. Some co-workers were afraid of Hathorn, and described him as short-tempered, dishonest, and violent. Hathorn also had a history of abusing patients. Some co-workers characterized Hathorn as having an antisocial personality.


On November 15, 1984, a grand jury in Trinity County, Texas, indicted Beathard for the capital offense of murdering Marcus Hathorn in the course of committing burglary, which occurred on October 9, 1984. Beathard was tried before a jury upon a plea of not guilty, and on March 4, 1985, the jury found him guilty of the capital offense. Later the same day, following a separate punishment hearing, the jury answered affirmatively the two special sentencing issues submitted pursuant to former Article 37.071 of the Texas Code of Criminal Procedure. In accordance with state law, the trial court assessed Beathard's punishment at death.

Because he was sentenced to death, appeal to the Texas Court of Criminal Appeals was automatic. The Court of Criminal Appeals affirmed Beathard's conviction and sentence on March 8, 1989, and denied rehearing on May 10, 1989. Beathard did not file a petition for writ of certiorari in the United States Supreme Court.

After the convicting court scheduled Beathard's execution for February 13, 1991, Beathard filed an application for state writ of habeas corpus with that court. On May 3, 1993, following an evidentiary hearing, the trial court recommended that relief be denied. On May 26, 1993, the Court of Criminal Appeals denied relief.

On October 14, 1994, Beathard, with the assistance of new counsel, filed a motion for the appointment of counsel in order to assist him with preparing a federal petition for writ of habeas corpus to be filed in the United States District Court for the Eastern District of Texas, Sherman Division. The federal district court granted Beathard's motion, and Beathard thereafter filed his federal petition on April 20, 1995. The district court denied relief on January 29, 1996, and denied Beathard permission to appeal on August 9, 1996. On May 26, 1999, the United States Court of Appeals for the Fifth Circuit granted Beathard permission to appeal but affirmed the district court's denial of habeas corpus relief. The United States Supreme Court denied Beathard's petition for writ of certiorari on October 18, 1999.

On or about November 30, 1999, Beathard filed a second application for state writ of habeas corpus. The Court of Criminal Appeals dismissed that application as an abuse of the writ on December 3, 1999. A clemency petition is pending before the Texas Board of Pardons and Paroles.


No evidence was presented at trial reflecting that Beathard had previous criminal convictions.


No evidence was presented at trial reflecting that drugs or alcohol were used during the commission of the instant offense.


James Beathard

Executed 12/9/99

James Lee Beathard received the death sentence for his role in the 1984 murder of Gene Hathorn Sr., 45, his wife, Linda Sue, 34, and their 14-year-old son, Marcus, while they were watching television in their mobile home outside Groveton, a small town in East Texas.

There was no physical evidence to link Mr. Beathard to the crime -- no fingerprints, no footprints, no blood. After giving investigators several different versions of what happened on the murderous night, Mr. Beathard finally admitted he had been at the mobile home, that he had accompanied Gene Hathorn Jr. on what he thought was a drug deal. When Mr. Hathorn began shooting his family, Mr. Beathard said he ran into the woods and hid.

Mr. Beathard was convicted largely on the testimony of Gene Hathorn Jr., who had wanted his family killed in order to collect a modest inheritance; after the murders, he discovered he had been written out of his father's will.

At Mr. Beathard's trial, Mr. Hathorn testified that he had stood outside the trailer and fired a blast through the window with a shotgun; that had killed his father. Then, Mr. Hathorn -- who hoped that the state would go easier on him if he helped convict Mr. Beathard -- told the jury, Mr. Beathard, 24, a quiet, pot-smoking man who worked at the state mental hospital and had no experience with guns and no record of violence, had gone inside, brandishing a semi-automatic rifle and a semi-automatic pistol, and had finished off the victims.

"Hathorn might be a cold-blooded killer, but there hasn't been any evidence in this courtroom that says he is a liar," the prosecutor, Joe L. Price, told the jurors. "He is telling the truth." Mr. Beathard was convicted and sentenced to die.

Then, several months later, Mr. Price tried Mr. Hathorn, who testified only at the punishment phase of his trial, hoping to avoid execution. Now Mr. Price in speaking to the jurors said that if they believed he was telling the truth, "I'm a one-eyed hunting dog."

In his cross-examination of Mr. Hathorn, a man with a violent past and experience with guns, the prosecutor ridiculed the notion that Mr. Beathard, and not Mr. Hathorn, had gone inside and killed the family.

"O.K., and here was this ol' boy that had never shot that pistol before, was not near as familiar as you with weapons, going into a house he had never been in before in his life, to attack two people that had some advance warning that he was coming," the prosecutor said to Mr. Hathorn. "Does that seem a little bit strange to you, Gene?" Mr. Hathorn was also convicted and sentenced to die. He remains on death row.

A year after the trial, Mr. Hathorn recanted his testimony. He said that he had acted alone, that Mr. Beathard had been present but that he had hidden in the woods and had not participated in the killings. Based on this, Mr. Beathard's lawyers asked for a new trial. But the Texas Court of Criminal Appeals turned down the request because a criminal defendant has only 30 days after a judgment is entered against him to present new evidence that might justify a new trial.

That 30-day period in Texas is longer than the 21-day deadline for the introduction of new evidence in Virginia, but it is still one of the shortest time periods in the country. Many states have no deadline.

In a recent interview on death row at Livingston, Tex., Mr. Hathorn did not want to talk about the case. He put most of his answers "off the record," even one on whether he still stuck to his recantation. He left no doubt, however, that he had been the one to go inside the trailer.

Sixteen years after the Beathard trial, Mr. Price, the prosecutor, is still uncertain about what happened on the night of the crime.

"I'll be honest with you," he said, talking in his office in Groveton. "I've vacillated on that one over the years." But he said that it did not matter what roles Mr. Hathorn and Mr. Beathard had played that evening since both were present -- under Texas "law of parties" they were equally guilty -- or even that Mr. Hathorn may have lied on the stand. "Under Texas law my duty is to seek justice, and there is no question in my mind that these two people murdered the family," Mr. Price said.

Not everyone agrees that justice was served.

"Beathard should not have been put to death," said Mr. Burwell, a parole board member who voted with two others to have Mr. Beathard's sentence commuted to life in prison. Mr. Burwell explained why by getting out the Texas Code of Criminal Procedure and reading Article 2.0.1: "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." He made a copy and handed it to a visitor. He had underlined the section, and double-underlined the word "not."

Mr. Burwell believes that overzealous prosecutors are at the core of the problem with the Texas criminal justice system. "If the prosecutor doesn't have integrity, there won't be justice," he said. Another member of the board, Linda Garcia, also voted for clemency. "I don't believe anything improper happened with Beathard," said Ms. Garcia, a former prosecutor. "My doubt is whether he deserved the death penalty."

Two jurors in the case recalled in recent interviews that they had been impressed by Mr. Price -- and less impressed by Mr. Beathard's court-appointed lawyer. "It didn't seem to me like he was very forceful," one of the jurors, Dorothy Cates, said of Mr. Beathard's lawyer.

Heber Taylor covered the Beathard and Hathorn trials for The Lufkin Daily News. Mr. Taylor asked Mr. Hathorn if Mr. Beathard had fired the shot from outside the trailer.

"He just snorted in complete contempt," recalled Mr. Taylor, who is now editor of The Galveston Daily News. Mr. Beathard was too much of a patsy to kill anyone, Mr. Hathorn told Mr. Taylor.

Steven Losch, a lawyer who does death penalty appellate work, said that when he first began working on Mr. Beathard's case he was uncertain whether he was innocent. But by a week before the execution, Mr. Losch had become convinced by Mr. Beathard's version of events.

"This is the type of case that illustrates the risk of innocent people being executed in Texas,' Mr. Losch said.

Mr. Sutton said that Governor Bush "felt there was no reason" not to execute Mr. Beathard. A jury had found that he participated in the murders, the appellate courts had determined that he had a fair trial, and there was "no mitigation" that would warrant not putting him to death, Mr. Sutton said.


James Beathard, 42, 99-12-09, Texas

A former state hospital worker was executed in the Texas death chamber Thursday for his part in a 1984 shooting rampage that left 3 members of a family dead in their East Texas home.

James Beathard, 42, a former psychiatric technician and substance-abuse counselor at the Rusk State Hospital, was pronounced dead at 6:21 p.m. He was the 33rd Texas inmate put to death this year.

In a lengthy final statement, Mr. Beathard expressed love for his family, criticized the death penalty and the government, rebuked his prosecutor and repeated his long-held assertion that his co-defendant's lies led to Mr. Beathard's conviction.

"The United States has gotten to the point now where there is zero respect for human life," he said. "My death is just a symptom of a bigger illness."

After expressing love to his family and questioning the trial evidence, he added: "I'll see you all on the other side."

Then he looked at members of his family watching through a window a few feet away and, smiling, said: "Remember this? 'Help, Mr. Wizard! Help!'"

His unexplained exclamation drew chuckles from his family. As the executioner administered the lethal drugs, Mr. Beathard said, "It's starting. It's finished."

Eight minutes later, he was pronounced dead.

Mr. Beathard was convicted in the death of 14-year-old Marcus Hathorn in an Oct. 9, 1984, shooting rampage that also left the boy's parents, Gene and Linda Hathorn, dead.

Another son, Gene Hathorn Jr., also was convicted in the Trinity County killings and sentenced to death. His case is on appeal.

"I've had 15 years to prepare," Mr. Beathard said in an interview. "I know whatever I have to go to has got to be better than this."

But he said he worried about his mother, his wife and the 20-year-old daughter he saw this year for the 1st time since she was an infant.

The younger Mr. Hathorn and Mr. Beathard worked together at Rusk State Hospital until Mr. Beathard went to college in Nacogdoches at Stephen F. Austin State University.

Court records indicated that Mr. Hathorn supplied Mr. Beathard with illegal drugs that he could sell on commission. During their friendship, Mr. Hathorn talked about his desire to kill his father, stepmother and half-brother.

Mr. Hathorn hoped to collect an inheritance from his father and offered to share it with Mr. Beathard, court documents show. Mr. Hathorn later learned that he would receive nothing from his father's will.

Mr. Beathard acknowledged that he was at the family's mobile home in a remote area near Groveton the night of the slayings but said he did not participate.

"I didn't know anybody was killed," Mr. Beathard said. "I was expecting a drug deal."
Mr. Beathard said that after learning of the deaths, he initially lied to investigators because he feared for the safety of his own family.

Mr. Hathorn testified against Mr. Beathard, saying he had fired the shots and planted false clues to deceive police.

After Mr. Hathorn was convicted, he recanted his testimony, saying Mr. Beathard was innocent.

Trinity County District Attorney Joe Price, who prosecuted both men, said this week he was certain that both were guilty and that the convictions were solid.

"Not one of us has ever questioned this for a moment," he said. "Everything raised now has been raised for years and has been spoken for in the state and federal courts."


James Lee Beathard

Texas Execution Information Center by David Carson

James Lee Beathard, 42, was executed by lethal injection on 9 December 1999 in Huntsville, Texas, for murdering three people for money.

In October 1984, Gene Wilford Hathorn Jr., then 24, resolved to kill his father, stepmother, and half-brother. He was motivated both by animosity and the prospect of an inheritance of around $150,000. He planned to go to the trailer home where his family lived, shoot them, take some valuable items, and plant hairs and cigarette butts from other people, in the hopes of making the crime look like a burglary perpetrated by blacks. He sought the assistance of a few different people, and found an interested party in James Beathard, then 27. Hathorn and Beathard were friends and former co-workers.

On the day of the murders, Hathorn and Beathard went to the library and checked out some books. They then went to Hathorn's parents' trailer. According to Hathorn's account, he had agreed to pay $12,500 from the proceeds of the estate for Beathard's assistance. He took a shotgun to a back window of the trailer, while Beathard took a .380 pistol, a Ruger Mini-14 rifle, and some packets containing the hair and cigarette butts to the back door. Hathorn fired the shotgun into the trailer, through the window. Beathard then entered through the back door, fired more gunshots, planted the evidence, and stole some guns and two VCRs. They put the stolen items into their car, and Beathard drove away. Hathorn drove away in his parents' van.

The two men drove to a black neighborhood and left the van there. Next, they made two stops at bridges and dumped the pistol, the rifle, and all of the stolen items into two different rivers. They then went to the library again and checked out another book. After this, they went home.

Beathard testified that although he did go to the trailer with Hathorn, he thought he was accompanying him on a drug deal, and he knew nothing of his plans to murder his family. He testified that he waited outside the trailer the whole time, and that the only weapon he saw was Hathorn's shotgun. When Hathorn started firing, he threw himself to the ground, then ran and hid in the woods. When the shooting stopped and Hathorn called out for him, he came back and got into the car.

A forensic pathologist testified that all three victims had wounds from a shotgun blast or blasts. Gene Hathorn Sr., 45, and Linda Sue Hathorn, 35, had fragments of glass in their wounds, which would be consistent with a shotgun being fired through a window. The shot patterns on the walls and ceiling of the trailer indicated that the shotgun was fired from the window. However, the pathologist testified that all three victims also had bullet wounds, which were inflicted after the shotgun wounds. The shell casings and projected trajectories of these shots were consistent with a shooter who entered from the trailer's back door. Furthermore, Marcus Hathorn, 14, was shot in the bathroom, which indicated that the shooter entered the trailer, rather than just firing through a window from outside.

A jury convicted James Beathard of the capital murder of Marcus Hathorn in March 1985 and sentenced him to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence in March 1989. All of his subsequent appeals in state and federal court were denied.

Gene Hathorn Jr. was also convicted of capital murder and sentenced to death. He has been on death row since 1985. His case was affirmed on direct appeal in October 1992. His habeas corpus appeals are still pending.

At his execution, Beathard began his lengthy last statement by expressing love to his family. He then spoke out against the ills of society. "My death is just a symptom of a bigger illness," he said. Beathard spoke against the U.S. government's sanctions against Iran, Iraq, and Cuba, and its destruction of the environment. He also praised the free press, saying, "one of the few ways in the world the truth is ever going to get out, or people are ever going to know what's happening, as long as we support a free press out there."

Beathard then addressed Joe Price, the district attorney of Trinity County. "Gene Hathorn lied at my trial," he said. "Everybody knew it. I'm dying tonight based on testimony that all parties -- me, the man who gave the testimony, the prosecutor who used it -- knew it was a lie. ... I hope somebody makes Mr. Price account for or explain the tennis shoes he is talking about that put me here. I'm still completely lost on that and I'm hoping that somebody will go back and verify the trial record and make him accountable for lying to the public and the press that way." Beathard finished his last statement with some more loving remarks made to his family. The lethal injection was then administered, and he was pronounced dead at 6:21 p.m.

Texas has once again shown its ability to ignore the truth in its zeal to executte at all cost.

Yesterday convicted death row inmate James Beathard was put to death in Texas. To most, just another routine execution in a long assembly line of those being put to death. At least for me, this particular execution was painful. Painful because I believe Mr. James Beathard could have very well been factually innocent.

James' co-defendant at a hearing in Trinity County (Groveton, Texas) admitted that his testimony implicating James Beathard was perjured -- motivated by a promised "deal" by Trinity County Officials not to seek the death penalty against Mr. Gene Hathorn in exchange for testimony implicating a 2nd gunman. Mr. Beathard's purported accomplice therefore testified at Mr. Beathard's trial that he (James Beathard) aided and abetted in the commission of the crime. The crime was the murder of Mr. Gene Hathorn's family members.

This sad and tragic case illustrates what is wrong with capital punishment in America. ALl that is required to put someone in fear of a conviction and sentence of death is the legal jargon "beyond a reasonable doubt." While the United States Supreme Court has previously ruled in Herrera vs. Collins that it is no longer unconstitutional to execute an innocent person provided they were given a "fair and impartial trial," to untangle oneself from a wrongful conviction, "Clear and compelling evidence" is required.
Indeed, in the ultra conservative appellate system, an almost impossible threshold to reach. In other words, the same evidence that was able to put Mr. Beathard on death row and take his life, undone and shown to be false could not free him from it.

The public cheers the death penalty, but if they only knew the truth of what really goes on. I wonder if such extraordinary support would exist. Fortunately for me, after having spent 21 years on Texas death row innocent for a crime I did not commit (with recent DNA test results further echoing my innocence and exoneration), I won't have to anguish with that nightmare any longer.

Unfortunately, the Beathards of America's death rows do.

(source: Kerry Cook)



Texas Kills Another Innocent Man

by Jonathan Wallace

In March 1995 I published a piece entitled Texas Kills An Innocent Man, describing how Texas executed Jesse Dewayne Jacobs for firing a bullet that the state also convicted his sister of firing. Since they both could not have fired the same bullet, and the sister was convicted after him, I wrote that Texas had killed an innocent man.

I suggested in that article that convicting multiple people of the same act was probably business as usual for Texas prosecutors. In the New York Times for May 14, 2000, in an article on Texas executions, I found another example ("A Closer Look at Five Cases That Resulted in Executions of Texas Inmates," p. 30).

In 1984, a man named Gene Hathorn Jr. took a friend named James Lee Beathard to visit the Hathorn family. Hathorn's father, mother and brother ended up dead of shotgun blasts.

Beathard was tried first and Hathorn took the stand to testify that after Hathorn fired the initial blast through a window, Beathard went inside and finished the victims off. Beathard testified that he thought he was accompanying Hathorn on a drug deal and that when he fired into the house, Beathard ran away and hid in the woods. For the record, the name of the ingenious prosecutor in Beathard's case and Hathorn's was Joe L. Price, who told the jury:

"Hathorn might be a cold-blooded killer, but there hasn't been any evidence in this courtroom that says he is a liar. He is telling the truth."

Beathard was convicted and sentenced to die. There was no physical evidence connecting him to the crimes; he was sentenced entirely on Hathorn's testimony.

Several months later, the ingenious Joe L. Price tried Hathorn, who took the stand in the penalty phase of the trial and testified again that Beathard had finished off the victims. Now Price told the jurors, if Beathard was telling the truth, "then I'm a one-eyed hunting dog."

He cross-examined Hathorn with extreme sarcasm, attacking his story about Beathard: "Ok, and here was this ol' boy that had never shot that pistol before....going into a house he had never been in before in his life, to attack two people that had some advance warning he was coming....Does that seem a little bit strange to you, Gene?"

Hathorn was also convicted and sentenced to die. A year later he recanted and supported Beathard's account, that Beathard had run into the woods when the shooting started. But Beathard couldn't get a new trial because Texas has a rule that new evidence can only be introduced up to thirty days after the original conviction.

James Beathard was executed last December 9 and Hathorn remains on death row.

I find little moral distinction between the ingenious Joe L. Price and Gene Hathorn when it comes to their regard for the truth. Hathorn tossed Price a lie and Price ran it into the end zone. That Price knew it was a lie became evident at Hathorn's trial when he told the jury it was. Both Hathorn and Price killed people; Hathorn used a gun, Price used the state of Texas to do it.

The governor of Illinois recently declared a moratorium on executions, though he is not against the death penalty. He saw too many flaws in his state's process, too many innocents convicted. Contrast Governor Bush, who says, "I'm confident that every person that has been put to death in Texas, under my watch"--that's an incredible 127--"has been guilty of the crime charged, and has had full access to the courts." But in his great state, the death penalty resource center was defunded by the Republican congress in 1996 and never replaced with anything by the state.

Few Texas counties have public defenders; instead, defense attorneys are local lawyers, often inexperienced and incompetent, who are appointed on a patronage basis by the judge. Such lawyers rarely give the accused an aggressive defense. On three occasions, Texas courts have refused to grant death row inmates a new trial even when it was proved that their attorneys slept through the proceedings. Last year, Governor Bush vetoed a bill which would have given counties authority to set up public defender offices and would have curtailed the patronage system of appointments. On a recent episode of Meet the Press, the governor said he did not remember vetoing the bill and said he was for public defenders.

Texas specializes in killing marginal people who get themselves into ambiguous circumstances. And it does so with little regard for the truth.


177 F.3d 340

James Beathard, Petitioner-appellant,
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee

No. 96-40760

United States Court of Appeals, Fifth Circuit.

May 26, 1999

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:


Appellant-Petitioner James Beathard ("Beathard") seeks a Certificate of Probable Cause1 to appeal the district court's grant of summary judgment in favor of Respondent Gary Johnson ("the State") in Beathard's federal writ of habeas corpus attacking his Texas capital murder conviction. We grant the Certificate of Probable Cause to Appeal. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Because both Beathard and the State have briefed and argued the merits of Beathard's appeal, we proceed directly to disposition of the appeal.


On March 4, 1985, Beathard was convicted for the capital murder of Marcus Lee Hathorn in the course of burglary after a jury trial in the 258th Judicial District Court of Trinity County, Texas. The jury affirmatively answered the two special sentencing issues submitted pursuant to former TEX.CRIM. PROC.CODE ANN. 37.071(b)(West 1984), and the state trial court assessed Beathard's punishment at death. The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal. See Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App.1989).

Beathard filed an application for writ of habeas corpus in state court, pursuant to TEX.CRIM. PROC.CODE ANN. 11.07 (West 1984), which was denied by order dated May 26, 1993. On October 17, 1994, Beathard filed an application for federal habeas corpus relief pursuant to 28 U.S.C. 2254. The district court granted summary judgment for the State, denying that application. We affirm.

A. Beathard's trial

The following version of the facts was developed by the evidence, including codefendant Gene Hathorn, Jr.'s ("Hathorn") testimony, at Beathard's trial.

Beathard became friends with his accomplice, Gene Hathorn, Jr., when they were employed as psychiatric security technicians at Rusk State Hospital in Rusk, Texas. In January 1984, Beathard left Rusk State Hospital and enrolled in classes at Stephen F. Austin University in Nacogdoches, Texas. Gene Hathorn, Jr. supplied Beathard, now unemployed, with small quantities of marijuana and cocaine to sell for a commission. During the spring and summer of 1984, they spent many evenings together, often discussing Gene Hathorn, Jr.'s desire to kill his father, stepmother, and half-brother.

Gene Hathorn, Sr., his wife, Linda Hathorn and son Marcus Hathorn lived in a trailer on eight acres in rural Trinity County, Texas. In 1983, Gene Hathorn, Sr. received a $150,000 settlement on an injury claim. Gene Hathorn, Jr. decided to kill his family out of animosity over a borrowed truck and because he believed he would inherit the settlement money. Gene Hathorn, Jr. described to Beathard his plan to commit "the perfect murder," which required an accomplice who could provide a false alibi. The plan included leaving clues to convince the police that the family had been killed during a burglary by "a bunch of drug crazed niggers."

In July 1984, Gene Hathorn, Jr. offered to give Beathard a $12,500 share of the expected inheritance to help him murder his family. Beathard agreed to do it because he needed the money to pay off a child support arrearage.

On October 9, 1984, Gene Hathorn, Jr. and Beathard left Rusk at 3:00 p.m. in a borrowed Dodge Colt. Gene Hathorn, Jr. supplied three murder weapons, ammunition, gloves, some Negroid hairs gathered from a barber shop and some butts of cigarettes that had been "smoked by black people." The two men went to the library at Stephen F. Austin University and stopped at other public places to create an alibi. They then drove to a rural area to do some target practice with the sawed-off shotgun.

After nightfall, they arrived at Gene Hathorn, Sr.'s trailer house. Gene Hathorn, Jr. fired the shotgun through a picture window, hitting Gene Hathorn, Sr. and Marcus Hathorn. Beathard entered through the back door and shot all three victims with a pistol. Gene Hathorn, Sr. was then shot in the head with a rifle. They planted the Negroid hairs and cigarette butts at the crime scene and stole several items, including some guns, a video cassette recorder and the family's van. The van was driven to a nearby African American community and abandoned. The other stolen items and two of the murder weapons were dumped into a river.

Beathard returned to his girlfriend's house at approximately 12:30 a.m. on October 10, 1984. Beathard was wearing overalls and was visibly upset. Although law enforcement officers requested that Beathard produce the overalls several days later, they were never recovered.

Beathard testified at the guilt-innocence stage of his trial that he was present at the scene of the murders, but that he was tricked into being there and that he hid outside while Gene Hathorn, Jr. fired all of the shots.

B. Gene Hathorn, Jr.'s trial

Gene Hathorn, Jr. was separately tried, convicted and sentenced to death for murdering his father in the course of a burglary. Hathorn's testimony at Beathard's trial was read to the jury at his own trial and Hathorn repeated the identical story on the witness stand. Hathorn claimed that he only fired one shot at his father through the window and that Beathard repeatedly shot the three victims in the house, stole their property and planted the false clues to deceive the police. When Trinity County District Attorney Joe Price ("Price") cross-examined Hathorn at Hathorn's trial, he accused Hathorn of being the inside man while Beathard fired the shotgun through the window from outside the trailer.

C. Beathard's Motion for New Trial

Beathard filed an out-of-time motion for a new trial after Hathorn was convicted and sentenced to death, while his own direct appeal was pending. Hathorn testified at the evidentiary hearing on Beathard's motion for new trial that Beathard was not involved in the murder of his family, giving a version of the facts that supported the version of events given by Beathard at Beathard's trial. The trial court denied Beathard's out-of-time motion for new trial from the bench without making any findings of fact or conclusions of law.

D. State Habeas Proceeding

Beathard filed a petition for habeas corpus in state court, setting out numerous claims for relief. On August 29, 1991, the trial court conducted an evidentiary hearing on Beathard's state habeas application, limited to Beathard's claims that his first attorney, Hulon Brown ("Brown"), had a conflict of interest that adversely affected his performance and that Price, the prosecutor, knowingly failed to correct Hathorn's false testimony at Beathard's trial. The trial court issued written findings of fact and conclusions of law, but made no recommendation to the Texas Court of Criminal Appeals concerning whether Beathard was entitled to habeas corpus relief.

The trial court found that Brown withdrew shortly after he became aware of the conflict of interest growing out of representing both Beathard and Hathorn. Concerning Hathorn's allegedly false testimony at Beathard's trial, the trial court found that Price took three different positions about the roles that Beathard and Hathorn played in the murders: 1) Price argued at Beathard's trial that Beathard "entered the trailer and killed the family while Hathorn remained outside;" 2) Price argued at Hathorn's trial that Hathorn probably entered the trailer and killed his family while Beathard remained outside; and 3) at the state habeas hearing, Price took the position that Beathard fired one shot through the window at Hathorn's father with a shotgun and both men fired shots inside of the house. The trial court found that Beathard "probably was the person who fired the first shot from outside the trailer into the head of Gene Hathorn, Sr., with the shotgun."

The Texas Court of Criminal Appeals held that all of Beathard's claims for relief were without merit in a one page order. Two judges dissented without written opinion.

E. Federal Habeas Proceeding

The district court denied Beathard's requests for discovery and a federal evidentiary hearing and, finding no genuine issue of material fact, granted the State's motion for summary judgment. Beathard appealed.


Beathard presents nine issues in his request for certificate of probable cause to appeal:

1. Whether a federal evidentiary hearing on Beathard's attorney conflict of interest claim is mandatory because the state courts did not resolve material questions of fact about the credibility of witnesses who testified at the state court hearing on that claim.

2. Whether Beathard is entitled to habeas relief on his attorney conflict of interest claim because the prosecutor told the jury that his first lawyer was the same "crooked" attorney who intended to have him give perjured testimony in his co-indictee's fraudulent civil rights case.

3. Whether a federal evidentiary hearing on Beathard's claim that the prosecutor knowingly used his co-indictee's false testimony about their roles in the murder is mandatory under the first Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), circumstance because the state courts did not decide whether the prosecutor had knowledge of the lie.

4. Whether a federal evidentiary hearing on Beathard's unexhausted Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claim is mandatory because the state courts did not resolve a credibility contest between his trial counsel and the district attorney about whether the exculpatory statement of a prosecution witness was suppressed.

5. Whether a federal evidentiary hearing on Beathard's Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), claim is mandatory because the state courts did not resolve material questions of fact about the claim at the state court hearing.

6. Whether Beathard is entitled to discovery on his Giglio claim.

7. Whether the federal district court erroneously granted the State's motion for summary judgment of five of Beathard's claims without obtaining a relevant part of the state court record.

8. Whether the trial court's refusal to instruct the jury that no adverse inference could be drawn from Beathard's decision not to testify at the punishment stage of his trial was not harmless.

9. Whether the prosecutors urged the jury to draw an unconstitutional adverse inference from Beathard's decision not to testify at the punishment stage of his trial.

Beathard's seven substantive claims have been properly exhausted. At the direction of this court, the State filed a reply brief focusing on Points of Error Three and Five.


A. Attorney conflict of interest

1. Background and district court ruling

Beathard was arrested for the triple murder of the Hathorn family on November 3, 1984. Beathard retained attorney Hulon Brown on November 5, 1994. Brown had been representing Hathorn for several months in two separate criminal charges and a civil rights action against the local police department. Brown did not represent Hathorn in connection with the instant murder charges. Beathard was indicted ten days later, on November 15, 1985. Brown realized that Beathard and Hathorn had antagonistic positions and therefore ceased to represent Beathard when he was indicted. However, because he had never made a notice of appearance in the case, he never filed a motion to withdraw. Beathard then retained David Sorrels, who represented him throughout the remainder of the trial proceedings. Beathard asserts that Brown's representation of Hathorn in the unrelated matters created a conflict of interest which resulted in ineffective assistance of counsel during the ten days he represented Beathard and infected the entire trial.

A petitioner claiming ineffective assistance of counsel must demonstrate:

first ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted in a breakdown of the adversarial process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In some cases, prejudice in ineffective assistance of counsel claims is presumed. "One such circumstance is present when counsel is burdened by an actual conflict of interest." Beets v. Collins, 986 F.2d 1478, 1483 (5th Cir.1993). However, in the context of these proceedings, when a claim of ineffective counsel in based on an alleged conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The district court identified the proper legal inquiry, reviewed the proceedings of the evidentiary hearing held in state court and concluded: 1) Brown was not aware of a conflict of interest until Beathard was indicted for capital murder; 2) Brown became aware that Hathorn and Beathard had antagonistic positions only after Beathard gave several conflicting statements against Brown's advise, at which time Brown withdrew; 3) there is no evidence that Brown gave advice inconsistent with Beathard's best interests and Brown's representation of Beathard was not adversely affected by any conflict. Based on these conclusions, the district court held that Brown's representation did not amount to ineffective assistance of counsel.

2. Denial of Federal Hearing

(Point of Error 1)

Beathard's first point of error urges this court to reverse the summary judgment entered in favor of the State because he was entitled to, but was denied, an evidentiary hearing in federal court on his ineffective assistance of counsel claim. We will reverse for a federal evidentiary hearing if we find 1) that Beathard has alleged facts that would entitle him to relief if they were true, see Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.1996); 2) there is some basis in the record to conclude that such facts are disputed, see Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990); and 3) the merits of the factual dispute were not resolved in the state hearing. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)(the first Townsend situation in which a federal evidentiary hearing is mandatory).

Beathard contends that the state court, although presented with the question, did not decide when Brown became subjectively aware of his actual conflict of interest. The state habeas trial court found that "Brown withdrew from representing Mr. Beathard shortly after learning that there was a conflict." Ex parte Beathard, Writ. No. 22, 106-01, at 5-6 Texas Court of Criminal Appeals, May 3, 1993 (unpublished). Beathard contends that this finding of fact is equivalent to no finding because it is too indefinite and that the state court should have found that Brown knew about the conflict on November 5, 1984, after his first meeting with Beathard. Further, Beathard argues that he is entitled to an evidentiary hearing to establish that Brown chose to forego certain defense strategies as a result of his conflict of interest, and to explore whether the prosecutor would have been receptive to a plea bargain during Brown's ten days of representation but for the fruits of Brown's conflict.

Beathard's claim fails because he has not asserted facts that, if established, entitle him to relief. See Perillo, 79 F.3d at 444. Assuming that Brown had an actual conflict of interest beginning on November 5, 1984, Beathard has not pleaded facts that meet the adverse effect prong of Cuyler. See Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. "[T]o show adverse effect, a petitioner must demonstrate that some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest." See Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir.1996). Beathard proposes in this appeal four defense strategies that were not pursued: 1) Brown failed to advise Beathard to try to make a deal to testify against Hathorn; 2) Brown did not stay in the room while District Attorney Price interrogated Beathard on November 5, 1984; 3) Brown did not adequately prepare Beathard to testify in the grand jury on November 14, 1984; and 4) Brown did not interview Hathorn about the murders during his ten day representation of Beathard.

It is undisputed that, during the ten days between arrest and indictment, Brown gave sound advice to Beathard (do not talk to the law enforcement authorities, but if you choose to make a statement, tell the truth) which Beathard ignored. It is also undisputed that Beathard told conflicting stories to Brown, to the police and to the grand jury during this time period. Given the specific circumstances of Brown's representation, including Beathard's refusal to follow his counsel's advise, his lying, the short window of time Brown remained involved in Beathard's representation and the pre-indictment stage of the proceedings, we do not find that Beathard has demonstrated any plausible alternative defense strategy or tactics that might have been pursued, but were not, due to Brown's conflict of interest. We therefore do not find it necessary to remand this case to district court for further evidentiary development.

3. Guilt by association with Brown

(Point of error 2)

Beathard, in his second point of error, contends he is entitled to habeas corpus relief even without an evidentiary hearing because Brown's conflict of interest left the jury with the impression that Beathard was guilty simply because of his association with Brown. Evidence admitted during Beathard's trial established that Beathard was involved as a witness in the civil case Brown had filed for Hathorn, that Hathorn believed Brown was "crooked" and "money hungry," and that Beathard met with Brown during the early stages of the capital murder prosecution.

It is well established that the government may not attempt to prove a defendant's guilt by showing that he associates with "unsavory characters." See United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. Unit A June 1981)(finding plain error where the prosecutor asked the defendant whether he associated with felons). Guilt-by-association evidence is excludable because it lacks relevance or is unduly prejudicial. See United States v. Polasek, 162 F.3d 878, 884 n. 2 (5th Cir.1998). Normally, rulings concerning the admissibility of evidence are entrusted to the discretion of the trial court, see id. at 883, and such errors do not rise to the level of constitutional violations.

Beathard does not attempt to argue that the evidence was inadmissible due to relevance or undue prejudice, but rather that he received ineffective assistance because the evidence raises the specter of guilt simply by his association with Brown. Beathard cites no authority, and we are aware of none, for the proposition that when the allegedly unsavory person with whom one associated is one's lawyer, that lawyer's assistance is per se constitutionally ineffective.2 This contention is without merit.B. Prosecutor's Use of Co-indictee's False Testimony

1. Which man entered the trailer?

(Point of Error 3)

Beathard urges this court to reverse the summary judgment for the state and remand for a federal evidentiary hearing on his claim that the prosecutor knowingly failed to correct Hathorn's false testimony at Beathard's trial. In his third point of error, Beathard alleges that his Fourteenth Amendment right to due process of law was violated when Hathorn testified that Beathard was the "inside man" during the murders and prosecutor Price not only failed to challenge him, but also argued this version of the facts to the jury in closing argument in spite of Price's personal belief that Beathard was the "outside man."

The record from Beathard's trial reveals that the jury heard Beathard's version of the facts (that he remained outside, while Hathorn went into the trailer) and Hathorn's version of the facts (that Hathorn shot through the window and Beathard entered the trailer.) Price presented essentially the same two versions of the facts at Hathorn's trial, with the exception that he cross-examined Hathorn concerning whether or not he entered the trailer, rather than presenting Beathard's live testimony to that effect. Hathorn denied it, and stuck to his story presented in Beathard's trial. Price's questions do not amount to evidence. Beathard emphasizes the fact that Price adopted one theory of the case in closing argument at Beathard's trial and a different theory in closing argument at Hathorn's trial. Again, closing arguments are not evidence. Moreover, a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause. See Nichols v. Scott, 69 F.3d 1255, 1274 (5th Cir.1995). Beathard's due process claim is premised on the Fourteenth Amendment's prohibition against the knowing use of perjured testimony. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The record does not support such a claim. Price had two live eyewitnesses to the crime, both charged with capital murder and both accusing the other of being the most culpable. Each jury heard both stories. Price, as well as every juror involved, knew that both of the stories could not have been true. Further development in a federal evidentiary hearing of who Price personally believed to be telling the truth will not establish a violation of Beathard's due process rights. In addition, Hathorn's recantation of his earlier statements, made after both trials were completed, which is inconsistent with his own statements, with Beathard's versions of the events and with other evidence, does not raise a fact question requiring a federal evidentiary hearing on Beathard's due process claim.

2. Had Hathorn been offered a deal in exchange for testimony?

(Points of error 5 and 6)

Beathard's fifth and sixth points of error make the related arguments that he is entitled to discovery and to a federal evidentiary hearing to establish that the prosecutor allowed Hathorn to testify falsely that he had not been promised anything for his cooperation with the state. The prosecutor testified in the state habeas evidentiary hearing that there was no deal between Hathorn and the State. During the state habeas corpus hearing, Beathard offered the affidavit of Walter Shiver, a felon and former mental patient at Rusk State Hospital and friend of Hathorn, stating that, at the prosecution's direction, he had promised Hathorn that Hathorn would not be charged with capital murder if he testified at Beathard's trial.3 The district court did not err in denying a federal evidentiary hearing on the issue of Hathorn's putative deal with the prosecution when the only basis offered to establish a disputed fact question was an inadmissible affidavit.


(Point of error 4)

Beathard contends that he is entitled to a federal evidentiary hearing on his claim that Price failed to disclose two pieces of Brady material4 which could have been used to create a reasonable doubt about whether his crime was a capital offense. There is no dispute that, prior to either trial, Price had garnered statements from two individuals, Shiver and Larry Brown.

Shiver told Price that Hathorn called him on the day after the murders because he was looking for a place to hide from the police, and confided that he "got a piece of the gold" or "a piece of the money." Shiver stated that he took this to mean that Hathorn stole money from his father's wallet after the murder. Beathard asserts that Price did not disclose this statement prior to trial and that the defense might have used the statement to impeach Hathorn's testimony that he never entered the trailer or saw his father's wallet on the night of the murders and in obtaining further evidence that Hathorn was the inside man. See Giles v. State of Md., 386 U.S. 66, 74, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967)("[T]he defense might have made effective use of the report at the trial or in obtaining further evidence....")

Brown testified at Beathard's trial that Hathorn had attempted to recruit him as an accomplice in his plan to kill his family and that Hathorn planned "to shoot through windows and walls" without indicating who would do the shooting. Brown's pretrial statement to Price was more specific, stating that Hathorn had said, "all you have to do is walk up and shoot through the window," from which, according to Beathard's argument, a juror could have inferred that Hathorn planned for an accomplice to be the outside man.

The district court found this claim without merit on three separate bases: 1) the prosecution turned the statements over prior to trial; 2) even if they were not turned over, no habeas relief is warranted because the statements were not favorable to the accused; and 3) the statements were not material and would have had no effect on the results of the trial or the preparation or presentation of the defendant's case.

Beathard contends that he is entitled to a federal evidentiary hearing because the state court did not make a finding of fact concerning whether or not Price turned the two statements over to Beathard prior to trial. However, we conclude that because the statements were not favorable to Beathard and would have had no effect on the outcome of the trial, the district court did not err in finding this claim with merit. Beathard is therefore not entitled to remand for a federal evidentiary hearing concerning whether the statements were turned over to Beathard prior to trial as Price testified at the state habeas evidentiary hearing.


(Point of Error 7)

Beathard complains that the district court rejected the factual allegations made in his federal habeas petition without reviewing the record of Hathorn's trial. Because of the importance of reviewing capital sentences on a complete record, see Dobbs v. Zant, 506 U.S. 357, 358, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993), Beathard urges us to reverse the order for summary judgment and remand this case to the district court to reconsider in light of the relevant part of Hathorn's record. Beathard contends that his due process claim on suppression of Brady material and the conflicting positions taken by the prosecutor can only be evaluated after a detailed comparison of the Beathard's trial and Hathorn's trial. Even assuming the truth of the facts asserted (i.e. that Price did not turn over two witness statements and that Price argued in Hathorn trial a theory of the case inconsistent with the theory the State relied on in Beathard's trial), we have determined that there is no basis for reversing the district court's decision. We therefore find it unnecessary to remand this case to the district court for review of Hathorn's record.


(Points of Error 8 and 9)

Beathard testified that he was innocent at the guilt phase of his trial and exercised his Fifth Amendment right not to take the stand at the punishment phase. Beathard argues that the penalty stage of his trial was tainted by a double violation of his right against self incrimination. The trial court declined, over Beathard's objection, to instruct the jury that no adverse inference could be drawn from his silence at the penalty stage. During closing arguments, the prosecution referred to Beathard's failure to demonstrate remorse or guilt and to his perjury during the guilt phase.

Upon request of a defendant, a trial court shall instruct jurors that they may not draw any adverse inference from a defendant's failure to testify at the guilt-innocence stage of trial. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). This rule also applies to the punishment phase if a defendant requests the instruction. See United States v. Flores, 63 F.3d 1342, 1376 (5th Cir.1995). However, failure to give the instruction may be harmless error. See id. On direct appeal, the Texas Court of Criminal Appeals recognized that Beathard was entitled to a no adverse inference instruction at the punishment phase of his trial. See Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App.1989). However, it found the error to be harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Beathard, 767 S.W.2d at 433. Beathard argues here that the refusal to give the instruction was a violation of his Fifth Amendment right against self-incrimination and was not harmless.

The district court concluded that Beathard could not demonstrate that he was in any way harmed by the failure of the trial court to issue a no adverse inference instruction during punishment. Given the fact that Beathard had testified at the guilt phase and the fact that the trial court instructed each juror individually prior to trial on Beathard's right not to testify, the district court held that the error in failing to give the instruction was harmless. We agree.

Finally, Beathard contends that the prosecutor's comments violated the Fifth Amendment prohibition against a prosecutor commenting either directly or indirectly on a defendant's decision not to testify at trial. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In determining if a comment made in closing argument is a comment on the defendant's decision not to testify, a court must determine if the prosecutor's intention was to comment on the defendants decision or was of such a character that it would be construed as such by the jury. See United States v. Smith, 890 F.2d 711, 717 (5th Cir.1989). The comments made by the prosecutors do not show an intent to comment on defendant's failure to testify nor were they of such a character that they could be construed as such by the jury. The comments were directed at Beathard's various statements given prior to trial and to his testimony at trial. The comments could not reasonably be construed as comments upon Beathard's failure to testify during the punishment stage. We therefore hold that Beathard's claim that his Fifth Amendment right to self incrimination was violated is without merit.


Based on the foregoing, we grant Beathard's motion for certificate of probable cause to appeal and affirm the district court's grant of summary judgment for the State.

Certificate of probable cause to appeal GRANTED. Summary judgment AFFIRMED.



This case is governed by the standards for federal collateral review of state court convictions that applied before the habeas corpus statutes were amended by the Antiterrorism and Effective Death Penalty Act of 1996 because Beathard's federal habeas corpus petition was filed before the effective date of the act. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)


Beathard cites Dawan v. Lockhart, 31 F.3d 718 (8th Cir.1994), to support his argument. In that case, Dawan's attorney also represented a co-defendant who implicated Dawan in a robbery and then entered a plea bargain. That attorney continued to represent Dawan, offering the co-defendant's testimony (contradictory to his prior statement) to exonerate Dawan. The prosecutor cross-examined the co-defendant, vilifying the still-mutual attorney. The Eighth Circuit held that Dawan had shown actual conflict and adverse effect, sufficient under Cuyler to merit habeas relief on the basis of ineffective assistance of counsel. Dawan is factually and legally distinguishable from the present case. Beathard was only briefly associated with Brown, and Brown never represented Hathorn in this case. Further, the statements at issue had nothing to do with Brown's decisions in Beathard's case. Further, the Eighth Circuit's grant of relief was based on a classic conflict-and-adverse-effect analysis of the ineffective assistance of counsel claim rather than an "association-with-unsavory-characters" claim. For these reasons, we do not find it persuasive


The state trial court initially sustained the state's hearsay objections to the affidavit, but noted that it would be included in the record forwarded to the Court of Criminal Appeals as Beathard's offer of proof. Later, the court indicated that it would admit the affidavit. However, in its final order, the court stated that it had sustained the state's objection to the Shiver affidavit


See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)(requiring disclosure to defendant of material in possession of the prosecution that is favorable to the defense and material to guilt or punishment)



Jaames Lee Beathard



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