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Ruben Montoya CANTU





Classification: Homicide
Characteristics: Juvenile (17) - Robbery
Number of victims: 1
Date of murder: November 8, 1984
Date of birth: December 5, 1966
Victim profile: Pedro Gomez, 25
Method of murder: Shooting (rifle)
Location: Bexar County, Texas, USA
Status: Executed by lethal injection in Texas on August 24, 1993

Ruben Montoya Cantu (December 5, 1966 – August 24, 1993) was a Texan who was executed for a murder which occurred when he was seventeen years old.


Ruben Cantu grew up with his mother and father, until the age of 14, when the couple split up, with Ruben's mother moving 20 miles away, and Ruben and his father continuing to live in a trailer in the crime-ridden south San Antonio barrio. The neighborhood was home to a loose band of tough kids called the Grey Eagles, in which Cantu became a leader, despite being rather small and in special-ed classes at school.

By age 15, he was stealing cars for an organized auto theft ring, often spending days at a time driving stolen cars to Mexico for cash. At a time when the San Antonio Police Department was embroiled in scandal, with vigilantes and drug-dealing officers well known to the community, Cantu was stealing cars and dodging the police. His older brother had been arrested on drug and theft charges, but Ruben was not convicted of the crime.

Convicted of armed robbery and murder

The account of the prosecution at the trial that convicted Ruben Cantu, is summarized as follows: On the night of November 8, 1984, at approximately 11:30 p.m., Ruben Cantu (age 17 at the time) and his friend David Garza (15), broke into a vacant San Antonio house under construction, and robbed two Hispanic males at gunpoint.

The two victims, Pedro Gomez (25) and Juan Moreno (19), had been workmen sleeping on floor mattresses at the construction site, guarding against burglary, as a water heater had been recently stolen from the work site. The two victims were sleeping in their work clothes, with their pockets full of their cash earnings at the time of the robbery.

Cantu and Garza were carrying a rifle, which they used to rob the two men of their wristwatches. As they tried to take their cash, they were interrupted by Gomez's attempt to retrieve a pistol hidden under his mattress. Gomez was shot at least nine times by the boys' rifle, dying instantly, and Moreno was also shot as many as nine times by the same rifle.

Thinking they had killed both men, the two teens then fled the scene. Juan Moreno survived the attack, and was able to leave the house and call for help shortly after the event, though he has lost one lung, one kidney, and part of his stomach.

Juan Moreno, the surviving victim, was the key eyewitness in the trial, eventually identifying Ruben Cantu as the killer in court, only to recant his story a decade after Cantu was executed.

In spite of a lack of physical evidence, no confession and only Moreno's subsequently recanted testimony, Ruben Cantu was convicted by a jury of first degree murder. Shortly after his conviction and sentencing, Cantu wrote the following note to the people of San Antonio: "My name is Ruben M. Cantu and I am only 18 years old. I got to the 9th grade and I have been framed in a capital murder case."

Executed by the state of Texas

On August 24, 1993, at 22 minutes after midnight, Ruben Cantu at the age of 26, died by lethal injection, becoming the fifth teenage offender to be executed by Texas. His final request was for a piece of bubble gum, which was denied.

Police allegedly pressure a witness after a bar fight

According to Juan Moreno, and consistent with police records, he was visited by police in the hospital the day after the shooting. But, due to the severity his wounds, he was unable to speak and could barely move.

Five days later, in a second interview, Moreno gave the police a little bit more information about the killers and was shown a number of photos. Cantu's photo was not included and Moreno did not identify any of the people shown in the photos.

On December 16, detectives visited him again and showed him another array of five photos, including one of Ruben Cantu, who lived across the street from Moreno's job site where the crime occurred. He did not identify Ruben or anyone else from the photos shown to him during that police interview.

The case went cold, and no suspect was arrested. About four months after the robbery-murder, there was an unrelated evening incident at the Scabaroo Lounge, a bar near Cantu's home. Officer Joe De La Luz, an off-duty, plainclothes police officer carrying two concealed weapons, claimed to have been shot by Cantu in an unprovoked incident at that bar.

According to the version given by Cantu and corroborated by others at the scene, a dispute arose over a game of pool, De La Luz threatened him, flashed a pistol, and did not identify himself as a police officer, and Ruben, who was also armed, shot the man. De La Luz survived the shooting, but his friend, Sgt. Bill Ewell, re-opened the Gomez homicide case on the day of that bar shooting.

On the following day, Sgt. Ewell sent an investigator to Juan Moreno a second time, this time showing Cantu's photo along with four others. Again, Juan Moreno did not identify Cantu as one of his attackers. But he did provide Cantu's name.

One day later, a third homicide detective picked up Moreno (an undocumented immigrant from Mexico at the time), drove him to the police station, sat him down and showed him the same group of photos that included Cantu. On that third attempt, Moreno positively identified the photo of Cantu as being one of his attackers.

Juan Moreno says now that he had felt subtle pressure from the police to finger Cantu. He says he knew at the time that the police were determined to charge Cantu with the robbery-homicide, and that Cantu had been involved in shooting a police officer. But Moreno says now that he did the wrong thing in falsely identifying Ruben Cantu as the shooter in his case, and that the person who shot him looked nothing like Ruben Cantu.

David Garza, Cantu's codefendant, has since admitted involvement in the burglary, assault and murder. He says he did go inside the house with another boy, did participate in the robbery, and saw the murder take place, but that his accomplice was not Ruben Cantu. He has given the name of his accomplice to Lise Olsen, reporter for the Houston Chronicle, who has spoken with the named person and believes he has intimate knowledge of the crime.

The Houston Chronicle has made an editorial decision not to publish the name of that person because he has not admitted involvement, and has not yet been charged with the crime. It is unclear whether or not the Houston Chronicle has provided the name of the alleged murderer to the police.


Cantu "shot an officer who worked with me. It was difficult to get (the witness) to make the identification. We weren't able to get him for the police shooting, but we were able to get him for the murder."  — Sgt. Bill Ewell (now retired), who headed the investigation against Cantu. The case against Cantu for the barroom shooting had to be dropped, because police had tainted evidence and illegally searched Cantu's home, rendering the case unprosecutable.

"We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information. The bottom line is, an innocent person was put to death for it. We all have our finger in that."  — Miriam Ward, forewoman of the jury that convicted Cantu.

"It's so questionable. There are so many places where it could break down. We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it's corrupt."  — Sam Millsap Jr., the former district attorney who made the decision to charge Cantu with capital murder. He also indicated he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times.


Ruben Cantu was convicted of capital murder and sentenced to death for the Nov.8, 1984 robbery and shooting that killed Pedro Gomez and wounded Juan Moreno.  Cantu and another teenager, David Garza, 15, robbed Gomez, 35, and Moreno, 18, while they were guarding a house on 605 Briggs Street in San Antonio, Texas.

The two men were guarding the house on Briggs Street that belonged to Eusebio Moreno, Juan’s brother, because burglars had stolen some things while the house was under construction.  Juan Moreno testified that on Nov.8, he was awakened after 10:30 p.m. by Cantu poking him with a rifle.  Moreno said that he recognized both men from seeing them twice before around the neighborhood. 

Moreno said that they were instructed to sit down on the bed and give them their watches and wallets.  They were then instructed to pull back the mattress, which revealed a pistol wrapped in rags.  Before Gomez could grab the pistol, he was shot in the head once and then shot eight more times after he fell, killing him.  Then Moreno was shot several times in the head, neck and chest, somehow surviving the shooting.

Cantu, a former laborer and ninth grade dropout with a reported IQ of 78, claimed he was innocent of the robbery and killing.  He claimed to be in Waco, Texas at the time of the shootings.

Aurelia Cantu, Ruben’s mother, continued to proclaim her son’s innocence even after his execution, almost six years ago. 

“He told me he was innocent,” Cantu said, “I truly believed him.”

Aurelia Cantu described her son Ruben as very quiet and somewhat of a loner.  She said that he used to spend nights at the movies by himself and after it was over she would pick him up.  Aurelia said that Ruben would go to school, come home and go to work at a little store near their home.

Juliana Gonzales, Ruben’s aunt, also characterized her nephew as a quiet and respectful young man.  Gonzales said that he always looked out for others and never wanted to hurt anyone.  Along with Aurelia, Juliana truly believes that Ruben was innocent and died for a crime he didn’t commit.

Cantu wasn’t arrested until four months after the shootings during a gunfight at a crowded bar with an off-duty veteran police detective.  The officer, Joe De La Luz, then 43, recovered from the three gunshot wounds.

The Texas Court of Criminal Appeals upheld Cantu’s conviction of capital murder and the U.S. Supreme Court rejected his appeal in 1987. 

Cantu, 26, was asked if he had any last words on the morning of Aug.24, 1993.  “No sir,” he replied.  At 12:15 a.m. the sodium thiopental entered his body and he took a deep breath followed by two shallow gasps, then ceased breathing.  Dr. Charles Rains pronounced him dead at 12:22 a.m.

Cantu was the 66th person executed in Texas since the state resumed capital punishment in 1982.  Cantu was also the youngest prisoner on Texas death row when he was convicted at the age of 18.

Since her son’s death, Aurelia has made two trips back to the prison where her son was executed to visit other inmates.  She said that she still keeps in touch with two inmates and feels that it helps her deal with Ruben’s death somehow.

“I miss him so much,” Aurelia said.  “It’s not right that innocent people are killed that didn’t even do anything.”


The Cantu Case: Death and Doubt

Did Texas execute an innocent man?

Eyewitness says he felt influenced by police to ID the teen as the killer

By lise Olsen - The Houston Chronicle

July 24, 2006

Texas executed its fifth teenage offender at 22 minutes after midnight on Aug. 24, 1993, after his last request for bubble gum had been refused and his final claim of innocence had been forever silenced.

Ruben Cantu, 17 at the time of his crime, had no previous convictions, but a San Antonio prosecutor had branded him a violent thief, gang member and murderer who ruthlessly shot one victim nine times with a rifle before emptying at least nine more rounds into the only eyewitness — a man who barely survived to testify.

Four days after a Bexar County jury delivered its verdict, Cantu wrote this letter to the residents of San Antonio: "My name is Ruben M. Cantu and I am only 18 years old. I got to the 9th grade and I have been framed in a capital murder case."

A dozen years after his execution, a Houston Chronicle investigation suggests that Cantu, a former special-ed student who grew up in a tough neighborhood on the south side of San Antonio, was likely telling the truth.

Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing.

And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.

Cantu "was innocent. It was a case of an innocent person being killed," Moreno said.

These men, whose lives are united by nothing more than a single act of violence on Nov. 8, 1984, both claim that Texas executed the wrong man. Both believe they could have saved Cantu if they had had the courage to tell the truth before he died at 26.

Second thoughts

Presented with these statements, as well as information from hundreds of pages of court and police documents gathered by the Chronicle that cast doubt on the case, key players in Cantu's death — including the judge, prosecutor, head juror and defense attorney — now acknowledge that his conviction seems to have been built on omissions and lies.

"We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information," said Miriam Ward, forewoman of the jury that convicted Cantu. "The bottom line is, an innocent person was put to death for it. We all have our finger in that."

Sam Millsap Jr., the former Bexar County district attorney who made the decision to charge Cantu with capital murder, says he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times.

"It's so questionable. There are so many places where it could break down," said Millsap, now in private practice. "We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it's corrupt."

No physical evidence

The Chronicle found other problems with Cantu's case as well. Police reports have unexplained omissions and irregularities. Witnesses who could have provided an alibi for Cantu that night were never interviewed. And no physical evidence — not even a fingerprint or a bullet — tied Cantu to the crime.

Worse, some think Cantu's arrest was instigated by police officers because Cantu shot and wounded an off-duty officer during an unrelated bar fight. That case against Cantu was dropped in part because officers overreacted and apparently tainted the evidence, according to records and interviews.

During eight years on death row, Cantu repeatedly insisted he was innocent of murder. In 1987, he wrote to the Board of Pardons and Paroles, saying: "I was tried and convicted on bogus evidence."

But on the day he finally was strapped to a gurney and readied for a lethal injection, Cantu said nothing as his attorney watched him die through a special one-way viewing window.

Outside the prison gates, his mother, Aurelia Cantu, held a candle in a small crowd of protesters: "He's resting now, he's free. But he should not have been here in the first place."

That night, in another Texas prison, his old friend and convicted accomplice, Garza, listened to news reports of the execution on a radio in his cell and wept for things left unsaid.

"Part of me died when he died," Garza said in an interview with the Chronicle. "You've got a 17-year-old who went to his grave for something he did not do. Texas murdered an innocent person."

That same day, at his small home on a street near the railroad tracks in east San Antonio, the surviving eyewitness got a phone call telling him that the man he had accused would soon die. But Moreno, a still-scarred robbery victim who barely survived the 1984 attack, felt no relief. Just unsettling guilt.

After the Chronicle showed her new statements about the Cantu case, jury forewoman Ward, who still lives in the suburbs of San Antonio, said she also is disturbed by her part in his fate: "When the pieces come together in the wrong way, disaster happens. That's not the way our legal system is supposed to work. Ruben Cantu deserved better."

Tough part of town

Almost painfully quiet, Cantu grew up as an eager-to-please kid who often watched TV until well after midnight and sucked his thumb far longer than other children.

His mother had married a man 24 years her senior when she was only 13. Ruben was the fourth of five children born to Aurelia and Fidencio "Fred" Cantu.

Aurelia raised her boys and a daughter mostly alone while her husband worked long hours as a maintenance man at Market Square, a popular tourist attraction. By the time Ruben turned 14, his mother left her husband and moved 30 miles away to Floresville, a sleepy, mostly Mexican-American town of 5,000 near her parents' rancho.

His mother asked Ruben to come along, but he chose to stay with his father in his tiny trailer park on Briggs Street in the ragged southern fringe of the city, a place where drug dealers, smugglers, fences and thieves lived and worked in houses pockmarked with bullet holes.

But while his father worked, often long hours into the night, Cantu was skipping school and learning different lessons on the street.

Bad reputation

Cantu's south San Antonio neighborhood was controlled by the so-called Grey Eagles, the tough kids who roamed it and relentlessly guarded its boundaries. Though small for his age and slow in school, Cantu became one of the leaders. He began sampling the drugs readily available through neighborhood dealers and stole cars for joy rides.

By the time he turned 15, he was recruited into an auto-theft ring. Sometimes he disappeared for days, driving hot cars and pickups to the border and coming back with $2,000 or $3,000 in cash. Surrounded by grinding poverty, Cantu could spend all he wanted on video games, movies and drugs.

He learned quickly to avoid the San Antonio police, a force that in some of its darkest days in the 1980s was plagued by scandals related to drug-dealing officers and vigilantes who took justice into their own hands.

Cantu grew up believing that no police officer could be trusted. Already a quiet child, he quickly mastered the neighborhood code of silence: You never ratted on anyone — no matter the cost to yourself. Cantu practiced this art to an extreme. His silence, even in a neighborhood known for its secrets, remains a local legend.

Neighborhood officers knew and disliked Cantu, and they had arrested his older brothers on drug and theft charges. But they had never successfully pinned a crime on Cantu.

It was against this backdrop of mutual suspicion that Cantu soon emerged as a leading suspect after a violent murder and robbery occurred on Briggs Street on Nov. 8, 1984.

That night, Juan Moreno, a skinny, hard-working teenager fresh from a Mexican rancho in Zacatecas, was camping out in a house almost directly across the street from Cantu's trailer.

Moreno and his friend, Pedro Gomez, had eaten dinner and gone to sleep inside the virtually empty brick house they were helping to build for Moreno's brother and his wife. They were guarding it because burglars recently had stolen a water heater.

Inside the shell of a house, there was a pair of mattresses on the floor in the front room. The only water was stored in empty beer cans. The only light came from the bare 75-watt bulb of a single lamp powered by an extension cord connected to a neighbor's outlet. Both men, Moreno, 19, and Gomez, 25, worked construction and were paid in cash. That night, they slept in their clothes with wallets containing a total of about $1,000.

Suddenly, both awoke to the lone light being switched on by a pair of Latino teenagers; the older of the two carried a .22-caliber rifle. They demanded money, and Gomez, the father of three little girls back in Mexico, handed over his wallet with $600 inside. Then he turned over the mattress, and reached toward a .38-caliber revolver hidden in rags.

The older teen opened fire, shooting nine times at Gomez, who fell facedown on the floor. Then the teen turned his weapon on Moreno and fired again and again. When Moreno blacked out, the pair fled. Near death, Moreno managed to stumble outside for help.

At 11:58 p.m., a police officer found Moreno bleeding on the seat of a pickup in front of the house. His wallet and his money were untouched. But Moreno could barely speak. The description he gave of his attackers fit almost all of the male teens in the neighborhood: two Mexican-Americans who he thought lived nearby.

Meeting with Moreno

Homicide Detective James Herring, an officer with 15 years on the force, had only that vague description to work with when he was assigned the case. And Herring, who knew no Spanish, needed others to help him speak with Moreno, a Mexican national who had been in the U.S. less than a year.

Herring first attempted to speak to Moreno at Wilford Hall Hospital on Lackland Air Force Base the day after the murder.

But Moreno remained in critical condition on a breathing machine — unable to talk and unable to write because of massive internal injuries. Eventually, he lost a lung, a kidney and part of his stomach.

In another visit six days after the murder, Moreno "could barely talk," Herring wrote in his report. But Moreno gave Herring a few more details on his attackers: two Latin-American males, one 13 or 14 and the other 19. He said he had seen the younger teen around the neighborhood. It wasn't much.

Then a neighborhood beat officer passed along a rumor from the halls of South San Antonio High School, where Cantu was in ninth grade. A shop teacher reported that three kids had been involved in the robbery and murder of Gomez and that students were saying Cantu had done the killing.

Based on that information, Herring and a Spanish-speaking detective returned to Moreno on Dec. 16, 1984. This time, Herring showed Moreno photographs of five Hispanic men, including Cantu.

Moreno, who still trembled from his injuries and showed emotion that the officers interpreted as fear, did not identify Cantu as his attacker.

Police records show that Herring made no more reports on the case. Near the end of the year, he received a promotion and transferred out of homicide.

The Gomez murder case appeared closed.

That all changed on March 1, 1985.

After midnight, Cantu was shooting 35-cent pool games at the Scabaroo Lounge, a fluorescent-lit local hangout about a mile from his father's home.

An off-duty police officer who was a stranger to Cantu was playing at another table with a cousin. Officer Joe De La Luz wore two guns under his civilian clothes, according to records.

Cantu also was armed. Both had been drinking, based on court testimony and interviews.

De La Luz later claimed under oath that Cantu shot him four times in a completely unprovoked attack. "I remember a person standing in front of me firing an unknown caliber weapon at me," De La Luz said.

Cantu claimed they argued over the pool game and he fired only after De La Luz showed him a gun in his waistband and threatened him. Cantu never denied to his friends and his family that he shot De La Luz, though he told them he learned only afterward that De La Luz was a policeman.

Yet Cantu never was convicted of shooting the officer, despite a bar full of witnesses and his own admissions. "There was an overreaction, and some of the evidence may have been tainted. It could not be prosecuted," said former homicide Sgt. Bill Ewell, who oversaw the investigation. Defense attorneys claimed that police illegally searched Cantu's home the night of the shooting.

But Ewell was a friend of De La Luz, the injured officer, and said the attack prompted him to reopen the unsolved Briggs Street murder case in which the only surviving eyewitness had previously failed to identify Cantu.

Cantu "shot an officer who worked with me," Ewell told the Chronicle. "It was difficult to get (the witness) to make the identification. We weren't able to get him for the police shooting, but we were able to get him for the murder."

Another visit

For two months, Moreno, recovering at his brother's home, had received no visits or calls from San Antonio police.

But on March 2, 1985, Ewell sent a seasoned bilingual homicide detective to show Cantu's photo to Moreno for the second time. In the kitchen of his brother's house, Moreno still did not identify Cantu, though at some point he learned that Cantu had shot a police officer.

Santos "Sam" Balleza, the now-retired detective who interviewed Moreno that day, told the Chronicle he doubted that Moreno could have made a reliable identification: It had been dark, he had been afraid for his life, and he had previously declined to identify the same suspect. "It was real tricky to show the same person a photo array more than once," he said. "It would look like you were pressuring them."

But the next day, Ewell consulted with De La Luz and then sent out a different bilingual detective to show Cantu's photo to Moreno for the third time. This time, the detective, Edward Quintanilla, brought Moreno, an illegal immigrant, back to the police station and again showed him Cantu's photo along with four other mug shots. The officer's report indicates that this time Moreno picked out Cantu, then signed and dated the back of the photo.

But the photo submitted into evidence at trial was not dated on the back, according to a trial transcript. Nor does Moreno recall that anyone translated for him a statement in English that identifies Cantu as his attacker and bears his signature.

Was he pressured?

Quintanilla, the detective who questioned Moreno on March 3 and obtained the identification, could not be reached for comment. A San Antonio police spokesman said department policy does not allow officers to discuss old closed cases. Balleza, who worked with Quintanilla in homicide, called the longtime officer a straight shooter. Both he and Quintanilla later testified that they thought Moreno had been afraid to identify Cantu.

At the time, Ewell was a seasoned senior officer who had recently been promoted to lead the homicide division. Ewell, who is now retired from the department, told the Chronicle, "I'm confident the right people were prosecuted."

Moreno said he felt compelled to do what the officers wanted, even though he knew it was wrong.

"The police were sure it was (Cantu) because he had hurt a police officer," Moreno said in a recent interview. "They told me they were certain it was him, and that's why I testified. ... That was bad to blame someone that was not there."

Emotional testimony

Bruce Baxter, the prosecutor who handled Gomez's murder case, said he could believe that Moreno lied under the circumstances.

However, Baxter, now an attorney in Washington state, said he privately interviewed Moreno before the trial in 1985 to try to determine whether he had made the ID just to please police. At the time, Baxter said he believed Moreno was sincere.

Baxter's entire case depended on it because there were no confessions, no murder weapon and no fingerprints for him to use against Cantu. Garza, the 15-year-old arrested as Cantu's accomplice, had refused to implicate Cantu even to help himself. What Baxter had was a one-witness case against a teenager.

But Baxter also knew, just as the defense attorneys feared, that the word of Moreno, then a 19-year-old who had been badly injured, could sway a jury.

In both a pretrial hearing and during the trial, Moreno testified over and over that Cantu had shot him and killed his friend.

"Do you see in the courtroom the man who poked you with the rifle and woke you up?"


"And where is that person?"

"That is Ruben Cantu."

"Who shot you?"


His emotional testimony in Spanish about how he watched his friend get killed and nearly died himself was the key evidence presented against Cantu during the guilt phase of the July 1985 trial.

'I have been framed'

Defense attorney Andrew Carruthers, an experienced lawyer though he had never before handled a death case, tried to discredit the identification without attacking Moreno, who was a sympathetic witness.

"I'm not saying Juan Moreno is lying; I'm saying that he did not get a good look at who shot him. He didn't get a good look at them, and the police tried to substitute their opinion for his," argued Carruthers, now a Bexar County magistrate.

But it was Moreno's damning words that resonated with jurors. They found Cantu guilty.

Then in the punishment phase of the trial, prosecutors presented another star witness — De La Luz, the officer shot by Cantu three months after the Gomez murder. Without that bar shooting, prosecutors would have been left to try to argue for death based on street rumors about Cantu's gang activities and a pending marijuana-possession charge.

But De La Luz testified that Cantu had shot him without provocation. It was all that the jurors really needed to convince them that Cantu, though still a teenager, was so dangerous that he should be put to death.

Cantu's attorneys did not want him to testify, and so Cantu, as had been his custom nearly all of his life, sat silently before his accusers. He wept only after prosecutors asked the jury to sentence him to die.

Days later, he wrote the letter that he addressed to the "Citizens of San Antonio."

"I have been framed in a capital murder case. I was framed because I shot an off-duty police officer named Joe De La Luz."

For years, defense attorneys who handled Cantu's appeals attacked the reliability of Moreno's identification, insisting that police inappropriately influenced him.

On the first round of appeals, even the Texas Court of Criminal Appeals ruled that the identification process was improperly suggestive, though the court upheld the in-trial identification and did not overturn Cantu's conviction. "In the abstract the process of showing Juan several arrays on different occasions, all containing the appellant's photograph is a suggestive procedure. Such procedure tends to highlight a particular defendant since the witness sees the same face repeatedly. Such reoccurrence of one particular face might suggest to the witness that the police think the defendant is the culprit," a February 1987 opinion read.

But none of the defense attorneys who represented Cantu during his appeals ever attempted to find Moreno, who they assumed had returned to Mexico.

Still feeling pain

Moreno had moved on — but only to another neighborhood in San Antonio.

In two decades, his life has morphed from that of a traumatized newly arrived Mexican teenager into that of an independent Texas contractor, husband and father of a teenager of his own. Moreno now insists a Hispanic teen with very curly hair shot him. Police never showed him a photo of that man, he said. Moreno said police never threatened him but influenced him in subtle ways.

In his heart, though, he always knew what he was doing was "bad," he said. His wife, Anabel, who met and married him years after the attack, said that when she asked about his scars, he always told her that the wrong man had been sent to death row.

Moreno did not know Cantu or his family before the time of the murder trial in 1985. In the years after the attack, Moreno said, he has had no contact with them or anyone connected with the case. He said he thinks that someone from Cantu's family tried to telephone him around the time of the 1993 execution, but he was not at home.

Moreno says he has nothing to gain by talking about the attack. The horror of the night that he watched his friend Gomez die facedown in a pool of blood has not left him. He still feels pain from his own injuries. Despite that, he said, he is no longer afraid to speak because he wants people to know the truth about Cantu.

"I'm sure it wasn't him," Moreno said. "It was a case where the wrong person was executed."


TDCJ Number
Date of Birth
Cantu, Ruben Montoya 804 12/5/66
Date Received
Age (when Received)
Education Level
9/10/85 18 9 years
Date of Offense
Age (at the Offense)
11/8/84 17 Bexar
Hair Color
Hispanic Male Black
Eye Color
5-10 142 Brown
Native County
Native State
Prior Occupation
Bexar Texas Laborer
Prior Prison Record
Summary of incident

On 11/8/1984 at approximately 11:30 p.m., Cantu and one co-defendant broke into a home in San Antonio.  They awakened two hispanic males who were in the home and robbed them.  Each victim sustained nine gunshot wounds.  One victim died at the scene, and the other victim survived to testify against Cantu and his co-defendant.

David Garza 
Race and Gender of Victim
Hispanic male
Photograph of Offender

 picture of offender



967 F.2d 1006

Ruben Montoya CANTU, Petitioner-Appellant,
James A. COLLINS, Director, Texas Department of Corrections,

United States Court of Appeals, Fifth Circuit.

July 22, 1992

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

Before GARWOOD, JONES, and DUHE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Ruben Montoya Cantu challenges his murder conviction and death sentence. His application for a writ of habeas corpus was denied by the district court, but the court granted a certificate of probable cause.


A Bexar County, Texas grand jury convicted petitioner for the November 8, 1984 murder of Pedro Gomez during the commission of a robbery, in violation of § 19.03(a)(2) of the Texas Penal Code (Vernon Supp.1984). The murder took place at the house of Eusebio Moreno in San Antonio.

The house was under construction, and because Moreno had been experiencing numerous incidents of theft from the building site, his brother, Juan Moreno, and brother-in-law, Pedro Gomez, were sleeping in the house to prevent any further loss. Some time after 10:30 p.m., Gomez and Juan Moreno were awakened by two intruders: a man who was poking Moreno with a rifle, whom he later identified as the petitioner, and an accomplice.1

Cantu and his companion took wristwatches from Moreno and Gomez, as well as Gomez's wallet. Cantu then told Gomez to pull back the mattress on one of the beds, under which a pistol owned by Eusebio Moreno was wrapped in a rag. According to Moreno, as Gomez was handing the bundle to the petitioner, Cantu shot him once in the head. Gomez fell to the ground, and Cantu shot him eight more times. Petitioner next trained his rifle on Juan Moreno, shooting him eight or nine times.

Gomez died from multiple gunshot wounds to the body and head. Juan Moreno survived.

On November 14, two detectives from the San Antonio Police Department visited Juan Moreno at the intensive care unit at Wilford Hall Medical Center. The detectives showed him photographs of possible suspects. Cantu's photograph was not in the photo spread, and Moreno did not identify any of the photos.

On December 16, detectives again visited Juan Moreno at Wilford Hall and showed him a photo array, which this time included a photo of Cantu. Moreno did not identify Cantu and did not look at his photograph. The detectives later testified that Moreno avoided looking at petitioner's picture, adding that it was their opinion that he knew more than he was saying.

According to one of the detectives, when asked if he was afraid to identify the assailant, Moreno replied, "Yeah." Both detectives who visited Moreno at Wilford Hall on that day testified that he appeared to be frightened as he looked through the photo spread.2

Detective Garza added that Moreno did recognize some of the other men in the photo lineup, "but he advised me that these people were just from the neighborhood and they were not any of the individuals involved in the shooting of him or Pedro Gomez." Moreno also for the first time offered a general description of his assailants: two Hispanic males, one about 13 or 14 years old, the other about 19 and wearing blue jeans.

Four months later, on March 1, 1985, petitioner was involved in a bar shooting with an off-duty San Antonio police officer, Joe De La Luz. At the time of the De La Luz shooting, Cantu was already a suspect in the murder of Pedro Gomez. Because Cantu was a suspect in both cases, San Antonio police renewed their efforts to obtain a positive identification in the Gomez murder investigation.

Accordingly, the day after the De La Luz shooting, an officer was assigned to interview Juan Moreno at his home. The officer, Detective Ballesa, showed Moreno five photographs different from those which he had viewed on December 16, except for the photo of Cantu, which appeared in both arrays. Once again, Moreno did not identify anyone in the photographs.

Detective Ballesa then engaged Moreno in a discussion, advising him that he had to identify the assailants if he knew their identity. Moreno then provided the name of Ruben Cantu when viewing his picture but did not identify him as Gomez's murderer.3

The next day, on March 3, 1985, a different officer, Detective Quintanilla, went to the home of Eusebio Moreno for the specific purpose of taking Juan Moreno to the police station to show him the photo spread once more. At the station, Detective Quintanilla showed Juan Moreno the same photo spread containing the picture of petitioner that had been shown to him the day before by Detective Ballesa. This time, Moreno identified Cantu's photo as representing the man who had shot him and Gomez.

Quintanilla testified that when he asked Juan Moreno why he had failed to identify Cantu previously, Moreno replied that "he had recognized the photo the day before; he just was afraid, scared."4 At trial, Juan Moreno identified Cantu in court, adding that he had recognized him in the photo line-ups he viewed on December 16, 1984, and March 2, 1985, but did not identify his photo on those occasions because, "I didn't want to get into any problems."5

In addition to Juan Moreno's trial testimony, the state's witnesses included Dr. Suzana Dana, a forensic pathologist and the deputy chief medical examiner of Bexar County. Dr. Dana testified that she performed the autopsy on Pedro Gomez, who had nine gunshot wounds to the body, including a "defensive" wound to the left forearm that was consistent with the victim attempting to shield his face or body with his hands.

Gomez was killed by shots from a rifle, Dr. Dana continued, because there was no powder tattooing as would typically have been present had the shots been fired by a weapon with a shorter muzzle, such as a handgun. This and other forensic evidence suggested that the victim was probably shot from one and one-half to two feet away.

Dr. Dana also analyzed gunpowder traces on the palms of Gomez's hands, comparing them to the relative absence of gunpowder particles on the backs of his hands. She concluded that these findings were consistent with "a gun being fired at the hands, or with the hands open simply because the levels are higher on the palms than on the backs."

In response to questions from defense counsel, Dr. Dana opined that it was unlikely that Gomez had fired a weapon at Cantu because that would have left gunpowder residue on the backs of Gomez's hands; clutching the gun would have shielded his palms from gunpowder.6

Cantu did not testify at the guilt-innocence phase of the trial. Other than recall Juan Moreno and the police officers who conducted the photographic lineups in an attempt to discredit Moreno's identification testimony, the only other witness offered by the defense provided an alibi for Cantu.

At the punishment phase of the trial, the prosecution presented five witnesses who testified to Cantu's bad reputation in the community. Officer De La Luz also testified that he was in the Scabaroo Lounge in San Antonio on the night of March 1, 1985, when Cantu shot him several times without provocation.

Cantu then offered the testimony of six San Antonio police officers in an attempt to discredit De La Luz's testimony. The defense also recalled De La Luz to the stand and questioned him further about the shooting at the Scabaroo Lounge.

At this point, the defense sought to have Cantu testify for the limited purpose of rebutting De La Luz's version of Cantu's assault on him. The trial court sustained the government's objection to this proposal, ruling that "when Ruben Cantu takes the stand, he is subject to the same grounds, the same areas of cross-examination as any other witness." In response to questions from defense counsel, the trial court added:

THE COURT: The ruling is that you may offer any and all evidence that you care to offer through this witness. If you want to limit it to exactly what he said on your direct, that's fine; but when you pass him for cross-examination, he will be subject to cross-examination to the same [sic] as all other witnesses, only exceptions are any and all rules of evidence that apply to any and all witnesses, regarding the admissibility of evidence.

The defense declined to put Cantu on the stand under the conditions set by the court but did perfect a bill of exception at which Cantu testified outside the presence of the jury. Cantu essentially claimed that De La Luz provoked the confrontation which led to the Scabaroo Lounge shooting, adding that he shot De La Luz with a pistol Cantu had purchased outside the bar earlier that evening.

Cantu was convicted of capital murder and sentenced to death on July 30, 1985. He appealed to the Texas Court of Criminal Appeals, which on February 4, 1987 affirmed his conviction and sentence. Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). That court later denied Cantu's motion for rehearing, and the Supreme Court denied certiorari. Cantu v. Texas, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987).

Cantu was slated to be executed on or before sunrise on January 8, 1988. He filed a post-conviction habeas application, which the Texas Court of Criminal Appeals denied. Cantu then filed a federal habeas application and motion for stay of execution, which was granted on January 7, 1988. After an evidentiary hearing, a federal magistrate recommended that habeas corpus relief be denied. The district court later accepted the magistrate's report and denied the writ, prompting this appeal.

In his brief, petitioner raises seven challenges to his conviction and death sentence, framing them as follows:

I. The Texas capital sentencing statutes precluded the jury from giving full effect to Mr. Cantu's mitigating evidence of youth, in violation of the Eighth and Fourteenth Amendments.

II. Petitioner was deprived of his constitutional rights under the Fifth, Eighth and Fourteenth Amendments by the trial court's refusal to instruct the jury on the lesser included offense of voluntary manslaughter.

III. The in-court identification of petitioner deprived him of due process of law under the Fifth and Fourteenth Amendments as the procedures employed by the San Antonio police departments were so impermissibly suggestive as to lead to a very substantial likelihood of irreparable misidentification.

IV. Petitioner was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments because trial counsel failed to request the services of an expert witness on the issue of eyewitness identification.

V. Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel through the punishment phase of his criminal trial.

VI. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel on appeal.

VII. Petitioner's constitutionally protected right to present evidence to the jury in mitigation of his sentence of death was impermissibly chilled by the Texas state rule which precludes a defendant, who testifies at the penalty phase of his trial, from challenging the sufficiency of the evidence in support of his guilt or the admissibility of the identification evidence.

We address each argument in turn.


Petitioner first contends that the Texas capital sentencing statute did not provide a vehicle by which the jury could consider and give mitigating effect to his youth.7 Petitioner admits that his trial counsel did "argue the issue of Mr. Cantu's youth ... as a basis for compassion."

Indeed references to Cantu's age surfaced repeatedly during the punishment phase of his trial. At one point, for instance, Cantu's counsel told the jury: "I think that when a man is on trial for his life, and even more so when a boy is on trial for his life, that it warrants a substantial investment of time."

In support of its request for an affirmative finding on the second special issue, the state argued along the following lines: "He's been referred to as a boy, a kid, a young man," the prosecutor noted at one point. "Well, he was an 18 year old with 18 rounds of ammunition, and he used them all."8

Notwithstanding the numerous references to the petitioner's age, he insists that the jury's consideration of mitigating evidence of his youth was unconstitutionally circumscribed by Art. 37.071(b). Specifically, he maintains that while the second special issue allowed the prosecution to use his youth as a sword against him--by drawing the jury's attention to his potential for future dangerousness--it effectively prevented him from using his youth as a shield against a death sentence. Thus, petitioner's brief continues, "the jury was left with no vehicle through which it might express a 'reasoned moral response' that, because of Mr. Cantu's youth, he should not be condemned to die."9

Cantu grounds his theory that Art. 37.071 failed to permit the jury to consider mitigating evidence of his youth on Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We have, however, in an en banc decision recently rejected the theory that Penry calls into question the constitutionality of the Texas death penalty statute as applied to the arguably mitigating circumstance of youth.

In Graham v. Collins, 950 F.2d 1009, 1017 (5th Cir.1992) (en banc), cert. granted, --- U.S. ----, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992), we concluded "that Penry does not invalidate Texas's statutory scheme, ... in instances where no major mitigating thrust of the evidence is substantially beyond the scope of all the special issues." Id. at 1027.10 See also Black v. Collins, 962 F.2d 394 (5th Cir.1992); Holland v. Collins, 962 F.2d 417 (5th Cir.1992); and Romero v. Collins, 961 F.2d 1181 (5th Cir.1992). Graham held: "At the very least, Jurek must stand for the proposition that these mitigating factors--relative youth and evidence reflecting good character traits such as steady employment and helping others--are adequately covered by the second special issue." Id. at 1029.11

In Cantu's case, we agree with Graham that [t]o the extent that [Cantu's] criminal conduct was a product of his youth, he was for that reason not only less culpable but, to the same extent, also less likely to be dangerous when no longer young. To the extent [Cantu's] criminal conduct was not attributable to his youth, his youth neither reduced his culpability nor his future dangerousness. Nothing in the present record suggests that the jury here might have viewed the matter in any other light.

Id. at 1031 (footnote omitted). Cantu's youth could adequately be taken into account as a mitigating factor in answering the special issues, particularly the second. Graham, 950 F.2d at 1033.12


Petitioner next contends that the state trial court erred when it refused to include in its jury charge petitioner's requested instruction on the lesser included offense of voluntary manslaughter. At the conclusion of the evidence, his counsel requested that the jury be so instructed, but the trial court sustained the state's objection. Subsequently, during the charge conference at the penalty phase of the trial, petitioner's counsel asked the court to submit Special Issue No. 3 as provided by Art. 37.071(b)(3).

The prosecution did not object to this requested submission, despite its earlier opposition to a voluntary manslaughter instruction during the guilt/innocence phase of the trial. Citing this asserted inconsistency, petitioner argues that the third special issue would not have been submitted at the penalty phase unless the evidence in the record suggested that the killing occurred in response to provocation by the deceased.13

The evidence presented at his trial, Cantu contends, could have supported a verdict that he was guilty only of voluntary manslaughter, and the trial court's refusal to give such instruction therefore violated his constitutional rights.

Under the standard first announced in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), "the jury [in a capital case] must be permitted to consider a verdict of guilt of a noncapital offense 'in every case' in which 'the evidence would have supported such a verdict.' " Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) (citing Beck, 447 U.S. at 627, 100 S.Ct. at 2384).

Under Beck, a defendant is entitled to instruction on a lesser included offense only "if the evidence would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater." Id. 100 S.Ct. at 2388 (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)). See also Lincecum v. Collins, 958 F.2d 1271 (5th Cir.1992); and Cordova v. Lynaugh, 838 F.2d 764 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932 (1988).14

The voluntary manslaughter statute, Tex.Penal Code Ann. § 19.04, provides in relevant part:

§ 19.04 Voluntary Manslaughter

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

Sudden passion is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex.Penal Code Ann. § 19.04(b). Adequate cause is defined as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex.Penal Code Ann. § 19.04(c).

We agree with the district court and with the state courts that no rational jury could conclude that Cantu shot Gomez under the influence of sudden passion, thereby warranting an instruction of voluntary manslaughter. Juan Moreno, the only witness who testified at trial as to what happened at the time of the shooting, stated that Pedro Gomez did not fire the .38 caliber handgun he was attempting to hand over to Cantu.

Petitioner's attempt to characterize police testimony as supporting his claim that some of the bullet holes in the wall were caused by a .38 caliber gun, instead of the .22 caliber murder weapon, does not accurately reflect what the investigating officer said.

In fact, the officer stated that he was unsure whether the bullet holes, or slugs found at the scene, were .38 caliber. Nor has Cantu offered a plausible explanation linking this physical evidence to his claim that he acted in self-defense. His unsupported conjecture is hardly probative on the issue of whether he acted under the immediate influence of sudden passion. See, e.g., Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983).

Yet even assuming for the sake of argument that Cantu acted upon sudden passion within the meaning of § 19.04(b), that passion did not arise from an adequate cause as required by § 19.04(c). See Hobson, id. It is undisputed that Cantu initiated the criminal episode in question when he and an accomplice entered Eusebio Moreno's house, awakened Gomez and Juan Moreno at gunpoint, robbed them, and repeatedly shot them with a rifle at point-blank range, killing one man and seriously wounding the other.

We have recently noted that "Texas law plainly does not consider adequate cause to arise under these circumstances." Lincecum, 958 F.2d at 1277.15 See also Penry v. State, 691 S.W.2d 636 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); and Goff v. State, 681 S.W.2d 619 (Tex.App.--Houston [14th Dist.] 1983), aff'd, 720 S.W.2d 94 (Tex.Crim.App.1986). Because state law prevented the jury from finding that Cantu committed voluntary manslaughter, the trial court's failure to instruct the jury on this offense was not constitutional error.


Petitioner next takes issue with the identification procedures used by the San Antonio Police Department. Specifically, he contends that the repeated showing of his photograph to Juan Moreno was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Even unnecessarily suggestive procedures do not automatically require suppression, however, if the witness's identification is reliable under the totality of the circumstances. Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977).

During the state court proceedings, Cantu moved to suppress the in-court identification, arguing that Moreno had been unfairly influenced by police officers. The trial court disagreed, finding that the photo array containing Cantu's picture was not unduly suggestive, nor was Moreno's identification in any way tainted.16

In denying the suppression motion, the court ruled that Moreno's testimony "established that he knew who the defendant was, what the defendant looked like, and was able to identify him without the aid of any photograph to assist him in his recollection of who the person was who shot him...."

On direct appeal, the Texas Court of Criminal Appeals acknowledged that the repeated showing of Cantu's picture during the photo arrays was suggestive. Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). However, that court rejected the petitioner's contention that the suggestive procedures tainted Moreno's in-court identification so as to create a substantial likelihood of irreparable misidentification. Id. at 252.

Under 28 U.S.C. § 2254(b), state court factfindings are entitled to a presumption of correctness absent one of eight statutory exceptions. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Petitioner insists that the presumption of correctness should not be afforded here because the state factfinding was insufficient. According to Cantu, the presumption does not apply because "the trial court made no factual findings regarding the identification process, or the procedures employed, but merely arrived at a legal conclusion."

He specifically faults the trial court for failing to make explicit factfindings on several issues, such as the brightness of the lighting in the room at the time of the murder, which he insists should bear on whether Moreno correctly identified Cantu as his and Gomez's assailant.

Petitioner's argument is totally without merit. That the trial court did not make explicit fact findings on every issue does not mean the court "merely arrived at a legal conclusion" unworthy of the presumption of correctness. Both implied and explicit factfindings fall within the ambit of § 2254(d). Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983); McCoy v. Cabana, 794 F.2d 177, 182 (5th Cir.1986); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983).

Thus, for instance, the state court, after weighing the evidence, found that Juan Moreno had sufficient opportunity to view Cantu on the night of the shooting. Cantu, 738 S.W.2d at 253. As the state correctly observes, petitioner cannot avoid the binding effect of the state court findings merely by referring to snippets of testimony from a voluminous record. "One of the purposes of § 2254(d) was to prevent precisely this kind of parsing of trial court transcripts to create problems on collateral review where none were seen at trial." Wainwright v. Witt, 469 U.S. 412, 435, 105 S.Ct. 844, 858, 83 L.Ed.2d 841 (1984). Because § 2254(d) is controlling here, the district court properly relied on the presumption of correctness to reject Cantu's challenge to the state court factual findings on the identification issue.17


Petitioner asserts that his state trial and appellate counsel were constitutionally ineffective on several grounds. We review a claim of ineffective assistance of counsel at a capital sentencing trial under the familiar standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As this court has recently noted:

First, a defendant must show that "counsel's representation fell below an objective standard of reasonableness," with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688, 104 S.Ct. at 2064. This is a standard which requires us to be "highly deferential," as it is extremely difficult for reviewing courts to place themselves in counsel's position and evaluate the choices he or she should have made....

Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. A court evaluating a claim of ineffective assistance need not address the reasonableness component first, and if a defendant fails on one part, it need not address the other. Id. at 697, 104 S.Ct. at 2069.

Black, 962 F.2d at 401.

First, Cantu insists that his trial counsel erred during the guilt-innocence phase of the trial by failing to secure the services of an expert witness to contest the testimony of eyewitness Juan Moreno. According to Cantu, because no expert witness testified, "the jury was deprived of a way to intelligently evaluate the testimony of Juan Moreno."

This argument is specious. While petitioner is correct that the admission of expert testimony regarding eyewitness identifications is proper, see, e.g., United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986), he cites no authority to support the theory that his trial counsel was required to call an expert witness to challenge Moreno's testimony.

Indeed, Cantu's trial counsel testified at the evidentiary hearing that he considered seeking the services of an expert witness on the issue of eye-witness identification but decided against it based on his belief that his cross-examination of Moreno would be sufficient to refute the accuracy of the identification.18

Petitioner next contends that his trial counsel was ineffective during the punishment phase. Counsel, he maintains, acted unprofessionally by failing to present evidence of Cantu's "low IQ, emotional immaturity, troubled youth, trauma as a result of his parents' divorce, and appearance of neglect." While counsel did not seek a psychiatric examination, nothing at the time of trial indicated that Cantu was insane when the offense occurred.19

Moreover, Cantu's assertion that he was denied effective assistance of counsel by his attorney's failure to introduce evidence that he appeared to be a child who was either neglected or abandoned is specious. The evidence does not indicate that the petitioner was neglected or abandoned. At best, it shows he might have felt rejected and abandoned, which was assertedly manifested by the fact that he sometimes watched television until the early hours of the morning and engaged in fantasy.

There is likewise no merit to petitioner's claim to have been traumatized by his parents' divorce or by his family's socio-economic background. Cantu's counsel thoroughly investigated these claims, consulting with his client as well as Cantu's father and brother for possible mitigating evidence.

Counsel ultimately decided not to introduce this information because of his concern that the state would use it against his client. Introducing the testimony of family members would have allowed the state to cross-examine them about Cantu's reputation in the community, including both his membership in the Grey Eagles and his personal notoriety for theft, violence and drug use. Counsel was not incompetent in his approach to mitigating evidence.

Cantu also challenges his appellate counsel's representation as constitutionally deficient. Both the issues he faults appellate counsel for failing to raise--a challenge to the constitutionality of the Texas Sentencing Statute and the trial court's refusal to charge the jury on the lesser included offense of voluntary manslaughter--were raised and considered both on state habeas and in the present federal proceedings and were determined to be meritless.

Because appellate counsel's effectiveness is judged by the same standard as that of trial counsel, see Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir.1991), petitioner's assertion, which fails even to allege that he was prejudiced by appellate counsel's performance, is frivolous.


Petitioner did not testify at the guilt-innocence phase of his trial. However, his counsel attempted to call him as a witness during the punishment phase so that Cantu could testify on the limited issue of whether he shot Officer De La Luz in self-defense. The trial court refused to allow petitioner to testify on such a limited basis, ruling that if Cantu took the stand, he would be subject to cross-examination the same as any other witness. Petitioner then chose not to testify and offered a bill of exception, out of the presence of the jury, in which he testified that he shot Officer De La Luz in self-defense.

Petitioner now contends that the trial court's decision impermissibly chilled his right to present mitigating evidence. Specifically, petitioner challenges the Texas requirement that a defendant who testifies only at the punishment phase of the trial, and who admits guilt during such testimony,20 waives the right to challenge the sufficiency of the evidence as to guilt and waives any evidentiary objections made during the guilt-innocence phase. See, e.g., Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981) (en banc ).

According to petitioner, Mr. Cantu was faced with a Hobson's choice at the punishment phase of his trial. Mr. Cantu could, on the one hand, testify at the punishment phase and risk waiving his substantial appellate issues as to the sufficiency of the evidence and the legality of the in-court identification; or, as he chose to do, allow the jury to impose sentence without the benefit of his version of the De La Luz shooting.... Because of Texas' peculiar procedural rule, Mr. Cantu's constitutionally protected right to present mitigating evidence in favor of a sentence less than death was unconstitutionally chilled.

The state argues that Cantu has waived this argument because it is raised for the first time on appeal, and we agree. See Buxton v. Collins, 879 F.2d 140, 148 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990) (Penry claim may not be considered for the first time on appeal). In the alternative, petitioner is asking this court to announce and apply retroactively on collateral review what amounts to a new rule of constitutional law, a request foreclosed by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).21 We decline to review this issue.


For the foregoing reasons, the judgment of the district court denying habeas relief is AFFIRMED.



The accomplice was later identified as David Garza, a juvenile. According to evidence adduced at trial, the room in which Juan Moreno and Gomez were sleeping was equipped with a 75-watt bulb, which lighted the room well. The lamp had been turned off when the two men went to sleep, but was on later that night when Cantu awakened Moreno. Moreno testified that the lamp illuminated the faces of Cantu and his accomplice, and that he knew Cantu because he had seen him in the neighborhood before


One of the officers, Detective Garza, conversed with Moreno in Spanish. Garza testified that when he asked Moreno, "Are you afraid to identify the guy who did this?" Moreno replied, "Yeah." Garza said he was prompted to ask the question because Moreno "completely avoided the photograph, and you could see it in his face that he was scared." The second officer, Detective Herring, testified that when Moreno "reached Mr. Cantu's picture, he completely didn't look at it. He just passed it up twice." Herring added that out of the five photographs he viewed, Cantu's was the only picture that Moreno avoided. As Herring testified at trial:

Q. So [Moreno] did not treat any of the other photographs the way he treated Mr. Cantu's picture?

A. No, sir, he did not.

Q. Now, based on your experience, Detective Herring, have you had experienced before when people declined to pick out a photograph when you have reason to believe that they know who the person is?

A. Many times.

Q. And is what you saw on December 16, regarding Mr. Moreno's behavior, consistent with that pattern that you experienced before?

A. Yes, sir, it is.


As Detective Ballesa testified at trial:

Q. Had you mentioned Ruben Cantu's name to [Moreno]?

A. No, sir.

Q. But he told you that Ruben Cantu had shot him?

A. Yes, sir.

Q. What did he say when he got to Ruben Cantu's photograph?

A. Well, he didn't say anything. He mentioned the name after--after the array had been shown to him, you know, and after there was some discussion on the matter is when he came up with the name.

Q. And what was this discussion?

A. Well, the discussion centered around I was trying to make the man comfortable; he was scared and visibly shaken; he didn't want to identify the photograph, and it became rather obvious that that was the problem. So, you know, he was trying to--to get me to say that we'd be able to protect him, things of this nature, if he identified the picture. He said, "Look, if I give you the name, why isn't that good enough?" I said, "Well, that isn't." I said, "You have to identify the photograph," and he wouldn't do it, but, you know, he definitely gave me the name.


Detective Ballesa explained that he understood Moreno's fear because Cantu belonged to the "Grey Eagles," a youth gang known for violent behavior


As described by the Texas Court of Criminal Appeals:

Juan testified that he had recognized appellant in the photographs that were shown to him on all the occasions. He did not tell the police that it was appellant because he did not want appellant to know where he and his family lived. He was afraid for his life and the lives of his family. He said the police never told him they knew appellant was the one who shot him. He also stated that he knew appellant by sight because he had seen him two or three times before the night of the murder.

Cantu, 738 S.W.2d at 251.


The detective who investigated the murder scene recovered eleven .22 caliber shell casings and some slugs. The detective testified that there were a number of bullet holes in the walls of the house, adding that two of the slugs found at the scene may have been larger than .22 caliber slugs. In his brief to this court, the petitioner suggests that these two slugs were fired from a .38 caliber handgun such as that hidden by Eusebio Moreno under the mattress. Petitioner strongly implies that this evidence supports his claim that he shot Moreno and Gomez in self-defense. This assertion is tenuous at best, however, both because the detective could not identify the slugs as .38 caliber, and because investigators recovered no .38 caliber shell casings


Texas Code Crim.Pro.Ann. Art. 37.071 (Vernon Supp.1985) provides in relevant part:

(b) On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with a reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence which would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

In May 1991, the Texas legislature passed two bills amending art. 37.071(b). However, these changes, which were later enacted into law, apply only to offenses committed on or after September 1, 1991. See Graham v. Collins, 950 F.2d 1009, 1012 n. 1 (5th Cir.1992) (en banc), cert. granted, --- U.S. ----, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992).


While Cantu was 18 years old at the time of his state criminal trial, he was 17 at the time of the murder. We reject Cantu's assertion that the state's argument amounted to a claim that the special issues, or any of them, should be answered in the affirmative because of Cantu's youth. The most reasonable characterization of the state's argument is that Cantu was streetwise and hardened beyond his chronological age, and that in this particular setting his chronological age was not a reasonable basis on which to return a negative answer to any of the special issues


The district court found that petitioner had procedurally defaulted this claim for federal habeas review because of his failure to raise it at trial. However, in light of the Texas Court of Criminal Appeals' decision in Selvage v. Collins, 816 S.W.2d 390 (Tex.Crim.App.1991) (en banc), which called into question whether a procedural bar would apply in such cases, the state briefed the merits of Cantu's claim on this issue


Like Cantu, Graham was 17 years old at the time the offense was committed. Id. at 1015 n. 9. The Court's grant of certiorari in a capital case does not cause us to deviate from circuit law, nor is it grounds for a stay of execution. See Johnson v. McCotter, 804 F.2d 300, 301 (5th Cir.1986), cert. denied, Johnson v. Lynaugh, 481 U.S. 1042, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987)


See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (sustaining the constitutionality of the Texas capital sentencing scheme). Moreover, Graham noted that both before and after Penry, the Texas Court of Criminal Appeals has continued to hold that the second special issue provides an adequate vehicle for the jury to take into account the defendant's youth. 950 F.2d at 1031. See Roney v. State, 632 S.W.2d 598, 603 (Tex.Crim.App.1982); Robinson v. State, 548 S.W.2d 63, 64 (Tex.Crim.App.1977); Earvin v. State, 582 S.W.2d 794, 798-99 (Tex.Crim.App.1979), repudiated on other grounds, Mercado v. State, 615 S.W.2d 225, 227 n. 1 (Tex.Crim.App.1981); Brasfield v. State, 600 S.W.2d 288, 293 n. 3 (Tex.Crim.App.1980), overruled on other grounds, Janecka v. State, 739 S.W.2d 813 (Tex.Crim.App.1987); Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987); Ex Parte McGee, 817 S.W.2d 77, 80 (Tex.Crim.App.1991); Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1991); Trevino v. State, 815 S.W.2d 592, 622 (Tex.Crim.App.1991), reversed on other grounds, Trevino v. Texas, --- U.S. ----, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). See also DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989) (habeas corpus)


While petitioner focuses on the second special issue, we also agree with the state's contention that the first special issue permitted Cantu to present mitigating evidence of "a youthful tendency to act rashly," and therefore not deliberately. Unlike Penry, Cantu's ability to think about the consequences of his actions was markably different from Penry's evidence of mental retardation, which he contended made it uniquely difficult to control his impulses or to evaluate the consequences of his conduct. Penry, 492 U.S. at 324, 109 S.Ct. at 2949


Petitioner argues that in Texas, voluntary manslaughter is considered a lesser included offense of murder. See Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978). Braudrick was later questioned by an en banc panel of that court. Bradley v. State, 688 S.W.2d 847 (Tex.Crim.App.1985) (en banc). Bradley held that voluntary manslaughter may be properly considered a lesser included offense of murder only if the evidence raises the issue of sudden passion. Id. at 851. Because Cantu argued the sudden passion issue at trial, we agree that voluntary manslaughter was properly treated as a lesser included offense in this case


"Although Beck itself spoke only to a statute under which the judge could not give the requested instruction, [its] rationale applies equally to cases in which a trial judge refuses to give an instruction which is available under state law." Lincecum, 958 F.2d at 1275


In Lincecum, the petitioner invoked Beck to support his claim that the trial court erred by refusing to instruct the jury on voluntary manslaughter. Lincecum was convicted of capital murder for killing Kathy Ann Coppedge during the course of a kidnapping, robbery and attempted sexual assault. Evidence adduced at trial indicated that after robbing Coppedge and ordering her to take off her clothes, Coppedge managed to grab Lincecum's knife and stab him in the side. On collateral appeal, Lincecum insisted that in light of this evidence, a voluntary manslaughter instruction was constitutionally required. In rejecting this claim, this court noted that even assuming Lincecum acted under sudden passion, he lacked adequate cause because he initiated the criminal episode in which the stabbing occurred. 958 F.2d at 1277


Among other things, the court noted that Moreno had initially made a sign of recognition when first shown Cantu's photograph. Moreno's obvious unease when shown the photo adequately accounted for his initial uncertainty in identifying him. Additionally, the trial court found that the in-court identification was separate from the photo line-up and was based on Moreno's recollection of the shooting


Petitioner emphasizes that unlike its factual findings, the state court's legal conclusions are not entitled to the presumption of correctness. This is undoubtedly true, and indeed the state concedes as much. But it yields nothing more than a hollow victory for petitioner given that the district court applied the presumption of correctness only to the state court's factfindings and not to its legal conclusions


Moreover, even had Cantu's counsel proffered an expert witness to testify on this issue, the trial court would have had discretion whether to admit such testimony. Pierce v. State, 777 S.W.2d 399, 414-16 (Tex.Crim.App.1989), cert. denied, Pierce v. Texas, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990). The Texas rule is also consistent with federal practice. In Moore, we held that the decision whether to admit expert testimony "is squarely within the discretion of the trial judge," adding that "there is no federal authority for the proposition that such testimony must be admitted." 786 F.2d at 1312-13 (emphasis added)


Compare Bouchillon v. Collins, 907 F.2d 589, 597-98 (5th Cir.1990) (Where defendant apprised his counsel of mental problems prior to plea hearing, counsel's failure to perform any investigation whatsoever for a possible insanity defense violated Strickland ); and Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir.1987) (counsel's failure to present an insanity defense, despite his knowledge that defendant had been previously adjudicated insane and had escaped from a mental institution at the time he committed the crime, held unreasonable)


Cantu has never suggested that his testimony in the punishment phase would have admitted guilt


While petitioner has not briefed the Teague issue, we agree with the state that none of the Teague exceptions apply here



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