Department of Criminal Justice
Feldman, Douglas Alan
Date of Birth: 06/19/1958
Date Received: 09/22/1999
Education: 12 years
Date of Offense: 08/25/1998
County of Offense: Dallas
Native County: Dallas
Hair Color: Black
Eye Color: Blue
Height: 5' 06"
Prior Prison Record: TDCJ-ID #280732 on a
2-year sentence for 1 count of Possession of a Controlled
Substance and 1 count of Aggravated Robbery; 03/30/79 released on
Mandatory Supervision, 01/23/80 received Mandatory Supervision
Summary of Incident:
On 08/24/98, during the nighttime, in Plano,
Texas, Feldman fatally shot a male driver as he was driving an
18-wheel truck. Witnesses observed Feldman ride up beside the
truck on a motorcycle and fire multiple shots into the cab of the
truck, dropping back and again returning and firing additional
shots into the cab of the truck. Reports indicate that a total of
12 shots were fired into the truck resulting in the death of
driver. Approximately 30 minutes later, in Dallas, Texas, Feldman
rode up beside a parked 18-wheel truck and fatally shot a male
victim. Four shots were fired on this occasion, resulting in the
death of the victim. On 08/23/98, approximately 9 shots were fired
into the Central Volkswagen Dealership in Richardson, Texas,
breaking windows and other items. On 09/05/98, a victim received 2
gunshot wounds in the parking lot of a restaurant in Dallas,
Texas. Ballistics reports verified that all of the attacks were
performed by the same 9-millimeter weapon that Feldman possessed.
Texas Attorney General
Wednesday, July 24, 2013
Media Advisory: Douglas Alan Feldman scheduled
AUSTIN – Pursuant to a court order by the
Criminal District Court No. 3 of Dallas County, Texas, Douglas
Alan Feldman is scheduled for execution after 6 p.m. on July 31,
2013. In August 1999, a Dallas County jury found Feldman guilty of
capital murder for the killings of Robert Everett and Nick
FACTS OF THE CRIME
The U.S. Court of Appeals for the Fifth Circuit
described the facts of the crime as follows: Feldman was riding
his motorcycle on the night of August 24, 1998 when Robert
Everett, driving an eighteen-wheeler, suddenly passed Feldman and
pulled into his lane, missing Feldman’s left hand by inches.
Enraged, Feldman took out his firearm and fired several shots into
the back of Mr. Everett’s trailer. Feldman then reloaded his
weapon and pulled up alongside the cab of Mr. Everett’s truck. He
fired several shots directly at Mr. Everett, killing him.
After returning to the scene of the crime to
verify that Mr. Everett was dead, Feldman headed home.
Approximately 45 minutes after Feldman shot and killed Mr.
Everett, and about eleven miles from the scene of the original
shooting, Feldman passed an Exxon service station where Nicolas
Velasquez, an Exxon tanker truck driver, was refilling the
station’s gas supply. Feldman drove into the station and shot Mr.
Velasquez twice in the back, killing him. Feldman then returned
Over a week later, Feldman shot Antonio Vega
while Mr. Vega was standing outside of a Jack-in-the-Box
restaurant. Mr. Vega was seriously injured but survived. A
bystander noted Feldman’s license plate number and relayed the
information to police. When the police apprehended Feldman, they
recovered two firearms and hundreds of rounds of ammunition.
Testing on one of the weapons and the shell casings found at the
scene of the shootings of Messrs. Everett, Velasquez, and Vega
confirmed that the weapon had been used at all three locations.
After his arrest but prior to trial, Feldman
admitted committing the shootings to a police investigator,
stating that they were the consequence of his traffic altercation
with Mr. Everett. Feldman also testified to the shootings at his
trial, noting that he had not forgiven Mr. Everett for his
trespasses. Feldman explained that he had shot Mr. Velasquez
because the man was standing beside an eighteen-wheeler, which
caused Feldman to “explode[ ] again in anger.”
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent
certain prior criminal acts from being presented to a jury during
the guilt-innocence phase of the trial. However, once a defendant
is found guilty, jurors are presented information about the
defendant’s prior criminal conduct during the second phase of the
trial – which is when they determine the defendant’s punishment.
During the punishment phase of trial, the State introduced
Feldman’s juvenile court record into evidence. The record showed
that on May 31, 1974, Feldman was found delinquent because of
credit card abuse and drug possession offenses. Feldman’s Texas
Youth Commission (TYC) records were also admitted into evidence.
These records show that less than one day after Feldman was
released from TYC custody, he was found in possession of
marijuana. The State also introduced penitentiary packs reflecting
Feldman’s 1978 convictions for aggravated robbery and narcotics
In addition to the above documentary evidence,
the State also presented testimony concerning Feldman’s extraneous
offenses. Robbie Harris testified regarding Feldman’s credit card
abuse. On January 2, 1974, Harris went to a Shell gas station
where Feldman was employed as a cashier. Harris gave Feldman a
credit card to pay for a purchase. Later, Harris discovered
Feldman had used his credit account to make an unauthorized charge
for a substantial amount of money. Given Feldman’s youth at the
time, Harris offered to accept repayment to settle the matter. But
Feldman acted as if he had done nothing wrong and refused Harris’s
Jadean Jourden testified concerning Feldman’s
aggravated robbery conviction. On January 16, 1978, she met a man
whom she would later learn was Feldman. That day, Feldman came
into the Willow Creek Pharmacy where Jourden was employed and
asked if she sold a specific tape. When Jourden turned to get the
tape, she heard Feldman open the counter gate. He came up to her
and hit her in the head with something that felt like a gun and
then ordered her to get face-down on the floor, threatening to
kill her. After Jourden got down on the floor, she heard Feldman
threaten the store pharmacist, Robert Scarbrough. Scarbrough also
identified Feldman as the armed robber who came into his pharmacy
that day. During the robbery, Feldman screamed profanities and
threatened to shoot Scarbrough and Jourden. Then Feldman grabbed
Scarbrough, held a gun to Scarbrough’s head, and ordered
Scarbrough to get specific drugs for him, including dilaudid,
morphine, percodan, and seconal. Scarbrough filled a bag with the
drugs, and Feldman fled with it. Brad Runnels was working as an
automotive mechanic at an Exxon gas station situated next to the
Willow Creek Pharmacy on the day Feldman committed the armed
robbery. Runnels saw Feldman as he fled the pharmacy. When Feldman
tried to drive out of the parking lot, his car was trapped by an
incoming vehicle. Runnels watched as Feldman got out of his car
and pointed a gun at the driver’s window, forcing the other driver
to back his vehicle out of Feldman’s path.
Chad Phipps also testified that on May 31,
1996, he noticed Feldman loading a car in a motel parking lot.
Phipps told Feldman he was hitting Phipps’s girlfriend’s car.
Feldman then slammed his car door into Phipps’s girlfriend’s car,
and said, “No. That’s hitting her car door.” Phipps reported the
incident and Feldman’s license plate number to the police. During
Phipps’s testimony and in the presence of the jury, Feldman called
Phipps “a […] liar.”
James Brantley testified about a violent
encounter with Feldman that occurred on Dec. 6, 1996. n that date,
Brantley was driving his restored 1984 Firebird. As Feldman was
driving his Land Rover out of a parking lot, he collided with
Brantley’s Firebird but did not stop. When Brantley tried to catch
up with Feldman, Feldman repeatedly slammed on his brakes,
attempting to cause a collision with Brantley. Eventually, Feldman
stopped his car and exited the vehicle holding a ball-peen hammer.
Feldman got onto the hood of the Firebird and smashed it with the
hammer. After beating the windshield and door with the hammer,
Feldman reached into the driver’s side and hit Brantley at least
three times with the hammer. Feldman told Brantley to leave him
alone or he would kill him. Then Feldman went back to his car and
drove it in reverse onto the hood of the Firebird. During the
incident, Brantley feared for his life. After Feldman drove away,
Brantley reported the incident to the police and gave them
Feldman’s license plate number. Two days later, Brantley was
hospitalized with an acute scalp contusion. Feldman paid Brantley
$6,500 to settle the ensuing lawsuit.
Donna McElroy testified that Feldman assaulted
her on May 1, 1998. The assault occurred at Keller’s Hamburgers,
where she worked as a carhop. That day, Feldman rode into
Keller’s, and McElroy took his food order. When she brought the
food to his car and told him the cost, Feldman said he did not
have his wallet with him. McElroy told him that he could not have
the food without paying for it. Feldman […] told her he was not
going to pay for the food. When Feldman reached for something in
his car, McElroy backed away, afraid that he was going to shoot
her. Instead Feldman drove his car toward her, knocked her down,
and ran over her. McElroy was thrown 20 feet, lost consciousness
from the impact and had to be taken to the hospital. As a
consequence of the attack, McElroy lost teeth and has a burning
sensation in her legs.
Antonio Vega testified about the Sept. 5, 1998,
Jack-in-the-Box shooting. He recalled that when the incident
occurred, he was dialing the phone outside the restaurant. He
heard gunfire and then felt a burn in his chest. When Vega turned
to run, he saw someone behind him pointing a gun at him. Vega felt
a burning feeling in his leg and fell. Vega was shot three times
and thought he was going to die.
Will Prince testified about a shooting incident
that happened the day before the Everett murder occurred. On Aug.
23, 1998, Prince received a call near midnight regarding Central
Volkswagen, the dealership where Prince was employed. Someone from
the alarm company that monitors the dealership asked that he go
there to meet the police. Prince arrived at the dealership to find
large panes of glass shattered by bullets. The shooter had also
fired bullets into several vehicles on the lot and inside the
showroom. Overall, the shooter caused $8,000 in damage. Business
records showed that Central Volkswagen had worked on Feldman’s
vehicle twice in 1986, more than 10 years prior. Lannie Emanuel, a
firearms examiner, compared the shell casings and fragments
collected from the dealership with the firearm seized from Feldman
at the time of his arrest. He concluded that the nine-millimeter
cartridge casings were fired by Feldman’s firearm.
Nneka Olan, a Dallas County Sheriff’s Office
Clerk, testified that when Feldman was processed into jail after
his arrest for the instant offense, money found in his possession
was seized for examination. Secret Service Special Agent, T.M.
Hiles, testified that he examined the money and found three
Elizabeth Garcia testified that she dated and
lived with Feldman for six or seven years in the 1980s. They had
little contact after their relationship ended; however, while
Feldman was held in custody awaiting his capital murder trial,
Feldman renewed his contact with Garcia through phone calls and
letters. Garcia told an investigator for the district attorney’s
office about the 81 letters Feldman had written her from jail and
gave the investigator permission to review them. At the conclusion
of the State’s case on punishment, portions of these letters were
published to the jury. Feldman wrote that he enjoyed killing
Everett and Velasquez, and he wanted to see more people get shot.
Feldman described fantasizing about walking through Dallas-area
stores and shooting at shopkeepers who had angered him in the
past. Feldman also fantasized about killing police officers over a
prior traffic citation and stated that he had previously been
armed at a truck stop and came very close to killing more truck
drivers. Feldman explained that he wanted to kill people who
disturbed his quiet and then desecrate their corpses. The
prosecution closed its case with a letter in which Feldman stated
that murder should not be illegal and compared killing humans to
hunting game animals.
On Sept. 8, 1998, a Dallas County grand jury
indicted Feldman for capital murder for the killings of Everett
On Aug. 25, 1999, a jury convicted Feldman of
capital murder. On Aug. 31, 1999, after the jury recommended
capital punishment, the trial court sentenced Feldman to death by
On Feb. 20, 2002, the Texas Court of Criminal
Appeals affirmed Feldman’s sentence.
On April 18, 2007, the Court of Criminal
Appeals denied Feldman’s application for Habeas Corpus.
The Northern District of Texas, Dallas
Division, denied his petition for a federal writ of habeas corpus
on May 3, 2011.
On Sept. 14, 2012, the U.S. Court of Appeals
for the Fifth Circuit affirmed the federal district court’s denial
On March 18, 2013, the U.S. Supreme Court
denied certiorari review.
On Oct. 18, 2012, the Criminal District Court
No. 3 of Dallas County scheduled Feldman’s execution to take place
on July 31, 2013.
On July 11, 2013, the Texas Court of Criminal
Appeals dismissed Feldman's subsequent application for a writ of
On July 17, 2013, Feldman filed a motion to
reconsider in the Texas Court of Criminal Appeals.
On July 29, 2013, a U.S. district court
dismissed Feldman's prisoner civil rights lawsuit.
On July 29, 2013, the Board of Pardons and
Paroles met and did not recommend clemency for Feldman.
On July 30, 2013, the United States Court of
Appeals dismissing Feldman’s most recent successive habeas
On July 31, 2013, Feldman filed a motion for a
stay of execution in the U.S. Supreme Court.
Killer shows anger until death
By Brandon K. Scott - ItemOnline.com
July 31, 2013
Douglas Feldman blamed his victims for their
own murders and protested his execution before he became the 11th
inmate put to death this year by the state of Texas.
Feldman spoke clearly in his final statement,
despite his message striking witnesses as bizarre.
The families of both victims Robert Everett and
Nicolas Velasquez were present for the execution, and said they
traveled from places like Lubbock and southwest Missouri to see
justice carried in the death sentence for Feldman.
The 55-year-old inmate, who was sent to death
row September 22, 1999, had his own idea of justice.
“I hereby declare Robert Steven Everett and
Nicolas Velasquez guilty of crimes against me, Douglas Alan
Feldman,” he said from the death gurney. “Either by fact or by
proxy, I find them both guilty. I hereby sentence both of them to
death, which I carried out in August of 1998. As of that time, the
state of Texas has been holding me illegally in confinement and by
force for 15 years.
“I hereby protest my pending execution and
demand immediate relief.”
Feldman was pronounced dead 14 minutes later.
Feldman was convicted of killing in a 30-minute
time span both men, who were driving 18-wheeler trucks, in the
Dallas area in October 1998. Ballistics reports from a
9-millimeter handgun linked Feldman to the murders and two other
shootings that did not result in fatalities.
Both families agreed that Feldman showed fear
and nervousness, despite his rugged demeanor. Feldman’s right leg
was shaking when witnesses entered the death chambers, and he
appeared to resist the lethal injection as the Pentobarbital took
John Everett, son of victim Robert Everett,
said he believed Feldman’s statement showed what was in his heart.
“Very dark, very evil, very unremorseful,”
Everett said. “We were not completely surprised by it.”
“I was prepared for that. I realized he was
never going to be remorseful,” said Elizabeth Chavez, Velasquez’s
daughter. “I prepared myself for that. I don’t think he ever found
Robert Everett’s daughter Emily Castillo was 12
years old when her father was killed. Now she’s married with
children, but wishes her father could be around to see it.
“It’s pretty frustrating,” she said. “I
just feel like it’s closure. My dad finally has justice after 15
Jason January, who prosecuted the case against
Feldman, said he had never seen anyone as scared as Feldman
appeared to be in his final moments.
“I thought he was literally shaking scared when
we walked in,” January said. “Having seen a few of them
(executions), I’ve never seen anyone that scared. So the guy that
talked the toughest was the most cowardly.”
Feldman has often been referred to as “the road
rage killer” but January wanted it to be clear that Feldman’s
aggression was not momentary.
“Clearly, as we’ve seen from his history, the
time he’s been in prison with his hundreds of violations, and
today in his final defiant act of insulting the victims on his
death gurney; it showed he didn’t have road rage, he had life
rage,” January said. “And he was a very dangerous and evil person
that needed to be put out of society.”
January also called Feldman “the poster child
for the death penalty.”
While in prison, Feldman was recorded for 136
disciplinary cases. He also ripped a telephone from the wall just
before a scheduled media visit.
In his final three days, Feldman spent most of
the time visiting with friends, eating sandwiches and chips, and
taking legal advice.
The families said Feldman looked at them before
giving his final statement. Velasquez’s daughter Alice Hagemann
said it was difficult listening to Feldman speak about her father
without giving a response.
While the families came to the Huntsville
“Walls” Unit seeking justice, finding peace continues to be a work
“We don’t find peace in his death,” John
Everett said. “We find peace in day-to-day living.”
Prosecutors: killer of 2 truckers outlined
violent fantasies in letters
By Holly Becka - DallasNews.com
July 30, 2013
As he awaited trial, Douglas Alan Feldman wrote
letters from jail expressing general hatred for everyone and
violent fantasies of shooting business people he felt had wronged
him, prosecutors said Monday.
Parts of his letters noted thoughts of wanting
to kill truck drivers he believed ran over deer along highways and
polluted the environment with their trucks' fumes.
Mr. Feldman also wrote that he was relieved and
felt "absolutely no remorse" for killing truckers Robert Stephen
Everett of Missouri and Nicolas Velasquez of Irving, whom he
cursed but didn't identify by name.
"I will tell you this: I found it quite
pleasurable to kill those two men!" he wrote in December 1998, two
months after his arrest. "If you are an angry person and someone
provokes you to violence . . . it feels wonderful to cause their
death and to watch their pain. . . .
"After the adrenaline is gone, the sense of
satisfaction and personal accomplishment is also gone."
Prosecutor Jason January rested the state's
punishment case against Mr. Feldman - who faces capital punishment
or life in prison - after reading excerpts of letters Mr. Feldman
wrote to a former girlfriend.
The same jury that convicted Mr. Feldman of
capital murder last week in the August 1998 deaths of Mr. Everett,
36, and Mr. Velasquez, 62, could begin deliberating his fate as
soon as Tuesday, prosecutors said.
Defense attorneys sought to contrast the
state's letters with testimony from Mr. Feldman's mother and a
December 1997 letter he wrote to her in which he said he feared he
was becoming "a mental case."
He wrote he was losing his rationale, couldn't
handle a "bombardment" of sound and felt like he was drowning
while riding an emotional roller coaster.
State District Judge Robert Francis, after
dismissing the jury for the day, angrily admonished some
spectators who laughed and acted as if they were playing a violin
during testimony from Cecie Borschow, Mr. Feldman's mother.
Judge Francis told them that if they could not
contain themselves, "being barred from the courtroom will be the
best thing you can hope for."
Defense attorney Jim Oatman declined to say
whether he would present more witnesses.
Eight months before the truckers were killed,
Mr. Feldman wrote to his mother that he felt distracted and unable
to sleep, as if he were being "dared to escalate" and "engulfed in
an unrealistic euphoria, only to fall into a narcissistic
He had received inpatient psychiatric treatment
for drug abuse and paranoia in 1993, and his family urged him to
seek help from mental-health experts before the shootings, Ms.
"It seems like I am taunted to attack things
which are so huge they could easily consume all of my energy and
time (or end quickly and violently) while simultaneously diverting
me from doing something I might actually enjoy," Mr. Feldman
wrote. ". . . I do not believe I am going to be OK." In a December
1998 letter to his former girlfriend, Mr. Feldman expressed anger
over rude people and the "abusive" noise they cause.
"I have come to hate every single person on
this planet with all of my heart and soul," he wrote. ". . . If I
had a button which would kill every single person on this planet,
I would push it with no hesitation whatsoever!"
He also wrote in November 1998 that before his
arrest, he had carried his loaded 9 mm Glock pistol through stores
he believed had deceived or cheated him, "looking for the owner or
the salesman or the service manager so that I could dispatch them
to an early grave."
Man found guilty in 2 trucker deaths, says
he's still angry at victim's driving
By Holly Becka - DallasNews.com
July 30, 2013
Editor's note: this story was originally
published in the Aug. 27, 1999, editions of The Dallas Morning
A jury needed 24 minutes Thursday to convict a
Richardson man of capital murder after hearing his sometimes-angry
testimony that he gunned down two truck drivers while consumed
with rage last summer.
Douglas Alan Feldman, a 41-year-old former
financial analyst, told jurors he remained angry to this day over
an August 1998 incident on southbound Central Expressway with
trucker Robert Stephen Everett of Missouri.
Mr. Feldman said he was minding his own
business, riding his vintage Harley-Davidson in the right half of
the right lane, when "this truck came out of nowhere, just
Suddenly, he said, the trailer was 12 to 18
inches from his left handlebar, and he feared for his life.
"I saw those wheels spinning, and I became
angry," Mr. Feldman testified. "I chased Mr. Everett down, and I
shot him to death."
He said he first fired his handgun into the
back of the tractor-trailer "because I felt like I needed to try
to stop that man," but the truck drove on.
He said he reloaded and caught up with Mr.
Everett, 36, near the Plano-Allen line. This time, he said, "I
fired directly into the cab."
Less than 45 minutes later, Mr. Feldman said,
he was headed home when he saw Nicolas Velasquez, a 62-year-old
Exxon tanker driver, who he conceded did nothing to provoke him.
"All I can say is I saw the man standing by
that truck and I exploded again in anger," Mr. Feldman said. "I
felt emotionally compelled. I was consumed by anger."
Mr. Feldman opened fire on Mr. Velasquez as he
stood beside his truck at a station at Hillcrest and Arapaho roads
in Far North Dallas, filling out paperwork.
Mr. Feldman's loved ones, some of whom left in
tears during his testimony, were not present when state District
Judge Robert Francis read the guilty verdict.
"I love my son. However, I certainly do not
condone his actions," Mr. Feldman's mother, Cecie Borschow, said
late Thursday. "We are anxious for this to be over. My heart goes
out to the families" of the victims.
The punishment phase begins Friday for Mr.
Feldman, who faces the death penalty or life in prison.
Alice Hagemann, the youngest of Mr. Velasquez's
four children, praised prosecutors and said her family was
thankful for the jury's decision.
"The evidence was clear," she said. "Now we
just hope and pray on the second phase of the trial they'll decide
on what the state is pushing for - the death penalty, which we're
all 100 percent backing."
Ms. Hagemann said listening to Mr. Feldman's
account was a struggle for both victims' families.
"It was very difficult to have to relive all of
that anger of his," she said.
John Everett, Mr. Everett's brother, limited
his comments to praising "a good, fair decision - the right
Defense attorney Jim Oatman had argued that
jurors should consider Mr. Feldman's state of mind when he shot at
Mr. Everett, saying Mr. Feldman felt under attack.
Mr. Everett was driving with a suspended
license at the time, Mr. Oatman said. The trucker's license had
been suspended twice before, and he had four speeding citations,
Mr. Feldman's attorney noted.
The trucker's driving that night affected Mr.
Feldman, who "perceives things differently than you and I."
"This man has things that have bothered him
since 1993," Mr. Oatman said. The night of the killings, he said,
Mr. Feldman "thinks his life is in danger and people are after him
- and he reacts."
Mr. Feldman testified that he received
inpatient treatment, including anti-depressant medication, at
Charter Hospital in 1993. The month before the shootings, he said,
he went to Parkland Memorial Hospital because his family worried
about his extreme stress. He said he didn't stay long enough to be
treated because he found the noise level emotionally upsetting.
Lead prosecutor Jason January said anger isn't
a valid defense and that Mr. Feldman could have moved away from
Mr. Everett's truck "if there was any alleged cutting off, if that
He characterized Mr. Feldman as "the
terminator," arguing that Mr. Velasquez was shot in the back and
died simply "because Mr. Feldman got angry."
Earlier in the day, under questioning by Mr.
January, Mr. Feldman conceded in the packed courtroom that he
circled back on Central Expressway to pass Mr. Everett's idle
truck because "there was a part of me that wanted to make sure Mr.
Everett was dead."
He said he carried his 9 mm Glock handgun with
him on motorcycle rides because "I felt like my life was under
attack," he said. "If I could have worn that gun on my hip, I
would have carried that gun 24 hours a day."
He said he learned Mr. Everett was dead when he
watched television news accounts the next night.
His reaction? "I don't know - I was sort of
surprised, sort of shocked," he said. Mr. Feldman appeared
irritated with some of the prosecutor's questions, accusing Mr.
January of misconstruing things he said and insisting he never had
a plan to shoot truck drivers.
"I would object to you referring to it as "a
job,' " Mr. Feldman said. "It was an event, an act, something that
He bought his handgun through a newspaper ad
despite his 1978 conviction for aggravated robbery because he
"stringently disagrees" with the state law prohibiting felons from
Douglas Feldman, the Plano Terminator, Lived
and Died an Evil Bastard
By Brantley Hargrove - DallasObserver.com
Aug. 1 2013
Douglas Alan Feldman, 55, the remorseless,
highly intelligent psychopath who terrorized three North Texas
counties for more than a week while he went on a shooting rampage,
was executed Wednesday. And he shuffled off his mortal coil with
the same venom with which he inhabited it.
According to an Associated Press reporter who
attended the execution, Feldman was fidgety, his feet moving
nervously beneath the sheets in Huntsville's death chamber.
In mock declamation, he recited the names of
his victims, pronouncing them guilty. "I have sentenced them both
to death. I personally carried out their executions," he said, AP
reports. "As of that time, the state of Texas has been holding me
illegally in confinement and by force for 15 years.
"I hereby protest my pending execution and
demand immediate relief."
Feldman carried out these "executions" back in
1998, beginning with a night ride on his Harley through Plano. He
claimed an 18-wheeler nearly ran him off the road. So, he pulled
alongside the cab and emptied his clip, killing the driver. On his
way home, he pulled off at an Exxon fueling station in Dallas and
shot a tanker driver in the back. A week later, he shot and
wounded another man at a Jack in the Box simply because he was
standing next to a big rig.
A witness got his license plate number. Police
later tracked it to a home in Richardson, where they met a
financial analyst who had graduated with honors from Southern
Methodist University. Inside, they found two guns and some 300
rounds of ammunition. Ballistics tests proved one of the guns was
A jury found him guilty and sentenced him to
die. On the inside, Feldman didn't find Jailhouse Jesus. He was
irretrievably malevolent. "It feels wonderful to cause their death
and to watch their pain," he said in one letter, according to AP.
As I reported recently, he was a troublemaker,
and prior to a recent media interview attempted to tear a phone
from the wall.
I still wrestle with the death penalty after
witnessing an execution. It's the lack of certainty often found in
criminal cases that bugs me, and the inherently contradictory
nature of it all -- sentencing a man to die for killing to
demonstrate that we don't condone killing.
But then the state executes a man like Feldman.
Road-rage killer of 2 executed
By Michael Graczyk - Associated Press
The Houston Chronicle
July 31, 2013
HUNTSVILLE — A former financial analyst with a
history of disruptive behavior was executed Wednesday for the
road-rage shooting deaths of two truckers in the Dallas area 15
Douglas Feldman, 55, received lethal injection
for gunning down Robert Everett, 36, of Marshfield, Mo., and
Nicholas Valesquez, 62, of Irving.
Feldman mimicked the announcement a judge or
jury makes when announcing a verdict, using the names of his
victims and declaring he had found them guilty of crimes against
"I have sentenced them both to death. I
personally carried out their executions," he said in a loud voice,
adding that he carried out their executions in August 1998.
"As of that time, the state of Texas has been
holding me illegally in confinement and by force for 15 years,"
Feldman said. "I hereby protest my pending execution and demand
He appeared very nervous, breathing quickly and
his feet twitching under a sheet. As the drug began taking effect,
he grimaced twice, took a few deep breaths and began snoring. Then
all movement stopped.
Feldman was pronounced dead 13 minutes after
the lethal drug was injected at 6:28 p.m. CDT.
Feldman's attorney, Robin Norris, filed a
clemency petition with the Texas Board of Pardons and Paroles that
was turned down Monday.
Multiple courts, including the U.S. Supreme
Court, earlier rejected his appeals on Feldman's behalf. Multiple
courts, including the U.S. Supreme Court, earlier rejected his
appeals on Feldman's behalf. Feldman, from Richardson, was riding
his motorcycle the night of Aug. 24, 1998, and said Everett,
driving an 18-wheeler, cut him off on a Dallas County freeway so
he took out his 9 mm pistol, pulled up alongside the truck cab and
shot him. Feldman testified at his capital murder trial that he
was still angry about 45 minutes later when he spotted Valesquez,
a gasoline tanker driver filling a Dallas service station, and
"A security camera catches him shooting the man
in cold blood," Jason January, the former Dallas County assistant
district attorney who prosecuted him, said. "Several counties were
frightened as this unidentified motorcyclist was out acting like
Feldman was arrested more than a week later,
after shooting and wounding a man at a fast-food restaurant and
driving off. A bystander saw the shooting and reported his license
plate number to police, who tracked him down and found Feldman
with two pistols and nearly 300 rounds of ammunition. Ballistics
tests confirmed one of the guns was used in all three shootings.
"It feels wonderful to cause their death and to
watch their pain," he said in one of 81 letters he wrote to a
former girlfriend while awaiting his trial. The writings from the
magna cum laude Southern Methodist University graduate were
introduced into evidence.
"God forbid I ever had my finger on the button
to launch a nuclear explosive device because I guarantee that I
would wipe as many of these bastards off the face of the planet as
I am able!" he said in another letter.
Without remorse, he also acknowledged the
killings while testifying at his capital murder trial.
Evidence showed he got into trouble as a
juvenile, had drug possession and selling issues and wound up in
state custody. He also had robbery and drug convictions.
While in prison, records show Feldman racked up
136 disciplinary cases, including one for ripping out the phone in
a visiting cage where death row inmates are interviewed by
reporters. Texas prison officials subsequently refused him media
The day before the fatal shootings, evidence
showed he shot up a Volkswagen dealership where he once had some
"His statement just showed more of the heart of
the man," John Everett said after witnessing the execution of his
brother's killer. "Very dark and very evil and very unremorseful."
"I was 12 when it happened," Robert Everett's
daughter, Emily, said. "Now I'm grown, married, with kids, and my
dad didn't get to see any of that. I feel my dad finally has
justice after 15 years."
Feldman became the 11th prisoner executed this
year in Texas and third this month. At least seven other inmates
are scheduled to die in the coming months in the nation's busiest
capital punishment state.
In the Court
of Criminal Appeals of Texas
Douglas Alan Feldman,
Appeal from Dallas County
The State of Texas
delivered the opinion of the Court, joined by KELLER, P.J.,
MEYERS, PRICE, WOMACK, KEASLER, HERVEY and HOLCOMB, JJ.
JOHNSON, J. concurs.
O P I N I O N
We grant rehearing on our own motion and withdraw our prior
opinion. Appellant was convicted of capital murder in August 1999.
Tex. Penal Code Ann.§ 19.03(a). Pursuant to the jury's answers to
the special issues set forth in Texas Code of Criminal Procedure
article 37.071 §§ 2(b) and 2(e), the trial judge sentenced
appellant to death. Art. 37.071§ 2(g).
(1) Direct appeal
to this Court is automatic. Art. 37.071§ 2(h). Appellant raises
twenty-one points of error but does not challenge the sufficiency
of the evidence at either stage of trial. Appellant's points of
error will be addressed in the chronological order of trial, and
the facts will be set out only as necessary to address those
points. We affirm.
CHALLENGES FOR CAUSE
In his ninth,
tenth, and eleventh points of error, appellant complains about the
trial court's failure to grant his challenges for cause to
venirepersons G. Henry, D. Garcia, and R. Martinez, respectively.
Specifically, he complains that each had a bias against some phase
of the law upon which he was entitled to rely. Art. 35.16(c)(2).
error on denied challenges for cause, an appellant must
demonstrate on the record that: 1) he asserted a clear and
specific challenge for cause; 2) he used a peremptory challenge on
the complained-of venireperson; 3) all his peremptory challenges
were exhausted; 4) his request for additional strikes was denied;
and 5) an objectionable juror sat on the jury. Green v. State,
934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied,
520 U.S. 1200 (1997). The record in this case shows that appellant
exhausted all fifteen of his peremptory challenges, requested and
received an additional challenge, used that challenge, and again
requested, but was denied, further challenges. Appellant then
objected to the seating of the twelfth juror, thereby preserving
any error for review on appeal.
trial judge errs in overruling a challenge for cause against a
venireperson, the defendant is harmed if he uses a peremptory
strike to remove the venireperson and thereafter suffers a
detriment from the loss of the strike. Demouchette v. State,
731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied,
482 U.S. 920 (1987). Because the record reflects that appellant
received an extra peremptory challenge in addition to the fifteen
he was granted by statute, appellant can only demonstrate harm by
showing that at least two of the complained-of challenges
were erroneously denied. Penry v. State, 903 S.W.2d 715,
732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995);
Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App.
reviewing a trial court's decision to grant or deny a challenge
for cause, we look at the entire record to determine if there is
sufficient evidence to support the court's ruling. Patrick v.
State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996). We give great deference to the
trial court's decision because the trial judge is present to
observe the demeanor of the venireperson and to listen to his tone
of voice. Id. Particular deference is given when the
potential juror's answers are vacillating, unclear or
contradictory. King v. State, 29 S.W.3d 556, 568 (Tex.
Crim. App. 2000).
may properly challenge any prospective juror who has a bias or
prejudice against any phase of the law upon which he is entitled
to rely. Art. 35.16(c)(2). The test is whether the bias or
prejudice would substantially impair the prospective juror's
ability to carry out his oath and instructions in accordance with
law. See, e.g., Patrick, 906 S.W.2d at 489; Hughes v.
State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992). Before a
prospective juror can be excused for cause on this basis, however,
the law must be explained to him and he must be asked whether he
can follow that law regardless of his personal views. Jones v.
State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998), cert.
denied, 528 U.S. 985 (1999).
In point of error nine, appellant complains
about prospective juror G. Henry. Specifically, he complains that
the trial court erred in denying his challenge to Henry because
the prospective juror indicated that: 1) he would automatically
answer the future dangerousness issue "yes" based upon his finding
of guilt; and 2) he would be more inclined to believe a police
officer's testimony over that of a lay witness. Article 37.071§
2(c), requires the State to prove the future dangerousness and "anti-parties"
special issues beyond a reasonable doubt. Any
veniremember who would automatically answer either of those
special issues in the affirmative or who would place the burden of
proof on the defense is challengeable for cause under Article
35.16(c)(2) for having a bias or prejudice against a law
applicable to the case upon which the defense is entitled to rely.
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999),
cert. denied, 529 U.S. 1070 (2000). Further, a juror who
cannot impartially judge the credibility of the witnesses is
challengeable for cause for having a bias or prejudice in favor of
or against the defendant. Art. 35.16(a)(9); see also Jones v.
State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998), cert.
denied, 528 U.S. 985 (1999). We must review the entirety of
Henry's voir dire to determine whether there is sufficient
evidence to support the court's determination.
The record shows that the prosecutor began
Henry's individual voir dire by explaining the process followed at
trial and the State's burden of proof. The prosecutor then
explained that the procedure at punishment was not to have the
jury vote for life or death, but rather to pose to the jurors two
questions which they would answer based upon the evidence
presented at trial. The prosecutor further explained that the
court would then assess punishment based upon the jury's answers
to those questions.
As he was explaining the process to Henry, the
prosecutor emphasized that answering the future dangerousness
issue required a different analysis than finding a defendant
guilty. He also commented that finding a person guilty did not
mean that a juror should then automatically answer the future
dangerousness question "yes." Henry indicated that he understood
this concept. During later questioning, Henry again agreed that a
juror would have to listen to all of the evidence presented before
making a decision on the punishment questions.
During his questioning, however, defense
Now, I want you to assume for a minute that
you're sitting on this jury. Okay. I want you to assume for a
minute that the State of Texas has proved to you what's on that
indictment in front of you, that this man has knowingly and
intentionally taken the life of not one person but two people
without legal justification or excuse and he either did it one of
two ways, either during the same transaction or the same course of
conduct or scheme.
* * *
Now, when you look at special issue number one,
Mr. Henry, having that type of evidence brought to you that
convinces you beyond all reasonable doubt that he is guilty of the
indictment, do you know how to answer question number one if
you've heard that type of evidence?
Given these facts, Henry responded that he
would answer the future dangerousness question "yes." Soon after
this exchange, defense counsel stated, "The law looks at it a bit
differently" and he explained:
Some people say, well, Mr. Oatman, maybe I'll
keep an open mind to the extent that if you, Mr. Oatman, prove to
me that he's not a future threat even though he did this, I might
be willing to change my mind. Would that be a fair statement?
To this question, Henry responded, "Yes."
Defense counsel subsequently asked: "[W]ould it be a fair
statement to say if you found that indictment to be true beyond
all reasonable doubt that question number one is going to be yes
unless I or Mr. Huff or the defense can prove to you that he's not
a future threat?" Henry answered, "Yes."
On redirect, the prosecution broached the
Q. [Y]ou understand how the law presumes that
question [future dangerousness] to be answered no.
A. Yes, sir.
Q. Okay, just like a person accused of a crime
is presumed to be innocent, it's up to us to prove that he isn't
innocent. That question is presumed that, even though a person is
found guilty of capital murder, that he's not going to be a
continuing danger. We have to prove to you that he is.
Q. Okay. It can't be an automatic yes answer.
Q. I know you've heard that a lot of people
feel that, you know, if you were to prove a person guilty of
killing two people, that they would automatically answer that yes.
But people that would automatically answer yes are not going to be
qualified for the jury, okay, because the law requires you, after
you find a person guilty, to sort of step back, take a breather,
come to a stop at this stop sign, and reconsider all the evidence
that you've heard both from the first part and then in the second
part of the trial before you answer that question. And if you're
not convinced beyond a reasonable doubt, you know, you may have a
situation here where - again, some of the examples are extreme.
But you may have a situation where, yeah, a person did knowingly
and intentionally kill two people during a liquor store robbery.
But once they came out, say the police shot them and paralyzed
them. Well, they are guilty of killing two people, but is that guy
going to be any type of a continuing danger to society? Don't
Q. So you see that there are situations -
Q. - that come up like that.
On re-cross by defense counsel, the following
Q. If they prove to you with the kind of
evidence and quality of evidence that convinces you beyond all
reasonable doubt that that indictment is true, if you know that
much about an individual, you're going to know enough about him to
answer question number one yes; is that right?
A. That's what I said.
Q. I'm sorry?
A. I said yes.
Q. And you still feel that way?
A. That's not the law, though, I mean, but
that's the way I feel. I'm just saying how I feel.
* * *
Q. And that's what I need to know is, are you
going to - The way you personally feel about this, Mr. Henry, is
there any way that you're going to be able to set aside your
A. Yes, sir. I've got to go with the law, I
Q. Okay. Tell me how you would ever answer
special issue number one no when you have found beyond a
reasonable doubt he did what's on the indictment.
A. I don't know. I would have to hear it. I
mean I don't know.
Q. Well, because the only thing you've told me
was, well, Mr. Oatman, if you proved it to me, it should be no
A. Right. I mean I'm sure something will come
up with witnesses or something. I mean I would just have to hear
it, I mean.
The proponent of a challenge for cause has the
burden of establishing his challenge is proper. See, e.g.,
Howard v. State, 941 S.W.2d 102, 128 n.2 (Tex. Crim. App.
1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App.
1989); see also Colella v. State, 915 S.W.2d
834, 846 (Tex. Crim. App. 1995)(Clinton, J., dissenting). The
proponent does not meet his burden until he has shown that the
venireman understood the requirement of the law and could not
overcome his prejudice well enough to follow it. Id.
Although Henry initially indicated that he
would answer the special issue "yes" if he found the allegations
in the indictment to be true, and then said that he would require
a defendant convicted of a multiple homicide theory of capital
murder to prove that he was not a future danger, he changed his
response after the parties explained the law, and he maintained
that he would set aside his personal beliefs and follow the law.
And in response to the State's questioning, Henry indicated that
there were circumstances in which he could find that such a
defendant did not pose a future danger. The trial court was in a
position to evaluate Henry's responses and was entitled to believe
that he could follow the law.
With respect to Henry's opinion regarding the
credibility of police officer witnesses, the record shows that
Henry stated that he would "lean towards" believing an officer
over a lay person. However, Henry also stated during later
questioning that he would have to see both witnesses on the stand.
Appellant is entitled to jurors who will be genuinely open-minded
and subject to persuasion, with no extreme or absolute positions
regarding the credibility of any witness. Jones, 982 S.W.2d
at 389. That Henry was simply more or less skeptical of a certain
category of witness did not make him subject to a challenge for
Looking at the entirety of the voir dire, we
hold that the trial judge did not abuse his discretion in denying
appellant's challenge for cause to veniremember Henry.
Point of error nine is overruled.
Appellant asserts in his tenth point of error
that the trial court erroneously denied his challenge for cause to
venireperson D. Garcia. Appellant complains that Garcia, like
Henry, indicated her bias against the law when she stated that a
guilty verdict would automatically lead her to answer the future
dangerousness issue affirmatively. Appellant further complains
that Garcia would require him to produce evidence of his innocence
Looking at the record of Garcia's voir dire, we
note that the judge and the prosecutor instructed Garcia on the
procedure involved in a capital case; Garcia said that she could
follow that procedure. During the State's questioning, the
prosecutor again explained the punishment questions and emphasized
that a juror must consider those questions with an open mind and
answer them according to the evidence. Garcia agreed that she
would consider all of the facts and circumstances before answering
the future dangerousness question.
during questioning by defense counsel, Garcia stated that killing
two people during the same transaction or course of conduct was an
especially heinous crime in her opinion, and that death was the
appropriate penalty. Upon clarification by the prosecutor, Ms.
Garcia said that she thought that the defense attorney was asking
her about her reasoning process if "there was already evidence to
prove" future dangerousness. In a colloquy that followed, she
reiterated that she would keep an open mind on the future
A. So that's why I said yes to the death
penalty. But if, okay, he's killed two people, but yet, at this
point right now I don't know any evidence, I can say, I can answer
either way, yes or no.
* * *
But I don't automatically say kill, I mean.
Q. Okay. That's exactly what the law
contemplates, and I wanted to be sure where you're coming from.
Q. So you're not one of those that says
automatically kill him because I've already -
A. Because he killed two people, no.
Depending upon who asked the question, Garcia
vacillated on whether she would return an affirmative answer to
the future dangerousness issue based solely upon the fact that the
defendant was found guilty of two murders. When told by the
prosecution that the law required her to keep an open mind, she
maintained that she would not automatically answer the future
dangerousness issue "yes" in a double murder situation. The trial
court was in a position to view her testimony and was entitled to
believe that she could follow the law.
With regard to appellant's assertion that
Garcia would require him to produce evidence of his innocence, the
record reveals that Garcia did indeed indicate that she thought
appellant should bring forth such proof. However, when the law was
explained to her in a way that she could understand, she admitted
that she had been confused and said that she could follow the law
requiring the State to prove the defendant's guilt.
Given the record, appellant has failed to meet
his burden of showing that the venireperson had a bias or
prejudice that would substantially impair her ability to carry out
her oath and instructions in accordance with law. See
Hernandez, 757 S.W.2d at 753. The trial judge did not abuse
his discretion in denying appellant's challenge for cause to
veniremember Garcia. Point of error ten is overruled.
Because appellant has failed to show that at
least two of his complained-of challenges for cause were
erroneously denied, he cannot show harm on appeal. Penry,
and Martinez, both supra. Point of error
eleven is overruled.
Appellant complains in points of error twelve
and thirteen that the trial court erred in granting the State's
challenge for cause to veniremember D. Dreifke in violation of
Article 35.16 because the State failed to state the reason for its
challenge and because the venireperson never said that she could
not follow the law. In point fourteen, appellant claims that
Dreifke was improperly challenged based upon her views against the
death penalty. See Wainwright v. Witt, 469 U.S. 412
With regard to points twelve and thirteen, even
assuming that the trial court erred in its application of Article
35.16(b)(3), appellant has not shown that the error deprived him
of a lawfully constituted jury. Without such a showing, reversal
is not required. Jones v. State, 982 S.W.2d 386, 394 (Tex.
Crim. App. 1998), cert. denied, 528 U.S. 985 (1999).
Points of error twelve and thirteen are overruled.
On the other hand, whether a venireperson was
properly challenged based upon her views of the death penalty is a
matter of constitutional dimension and requires a different
analysis. See Jones, 982 S.W.2d at 390-91. Under
Wainwright v. Witt, 469 U.S. 412 (1985), a venireperson may
be excluded for cause consistent with the Sixth Amendment to the
United States Constitution when his views on capital punishment
are such that they would "prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Clark v. State, 929 S.W.2d 5,
6-7 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1116
(1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex. Crim.
App.), cert. denied, 506 U.S. 997 (1992); Moody v.
State, 827 S.W.2d 875, 888 (Tex. Crim. App.), cert.
denied, 506 U.S. 839 (1992). However, prospective jurors may
not be excused merely because their beliefs about the death
penalty might influence the decision-making process. Clark,
supra. In reviewing such an issue, we give deference to the
trial court's decision to exclude a prospective juror and will
reverse only for an abuse of discretion. See Rocha v. State,
16 S.W.3d 1, 6 (Tex. Crim. App. 2000). Furthermore, we will uphold
the trial court's decision when a prospective juror's answers are
"vacillating, unclear, or contradictory." Id.
Approximately a month prior to Dreifke's
individual questioning, the trial judge very briefly explained to
the entire venire panel the procedural sequence of a death penalty
case. On the day that Dreifke appeared for individual examination,
the judge first spoke to the group of veniremembers scheduled for
questioning that day and explained the process more in depth. The
judge stressed to the veniremembers that a Texas jury is never
required to assess a sentence of death or life imprisonment.
Rather, the jury would be required to answer two questions, and
the answers to those questions would dictate to the judge what
punishment should be assessed. The judge then paraphrased the two
questions the jury would be required to answer.
At the outset of Dreifke's individual
questioning, the prosecutor stressed the seriousness of the
State's position in asking for the death penalty. He then asked
Dreifke in a variety of ways whether she thought that she was an
individual who could participate in such a case knowing that the
ultimate result might be the execution of another human being. To
each question, Dreifke responded that she could serve on such a
jury. As the questioning continued, Dreifke noted that she had
started thinking about how such a case would affect her, for
example, whether it might scare her or cause her to have recurring
dreams. However, she maintained that she "could still answer the [punishment]
questions in such a way that would result in the execution of
another human being[.]" On the other hand, Dreifke also maintained
that she thought that she would have doubts about whether she
could do the job entrusted to her.
Finally, the prosecutor described the actual
procedure involved when a person is executed - from the person's
life in a small cell to the process of lethal injection. After he
finished his explanation, the prosecutor again asked Dreifke
whether she could participate in this process. At this time, the
venireperson answered that she did not think that she could and to
do so would go against her conscience.
The prosecutor then passed the venireperson and
appellant said that he had no questions to ask her. After Dreifke
had stepped out of the room, the prosecutor challenged her for
cause and the trial judge granted the challenge. Appellant's only
response was, "Note our exception, Your Honor."
Because Dreifke vacillated on her ability to
follow the law and ultimately told the court that she was not sure
whether she could perform the duty entrusted her, the trial judge
was within his discretion in determining that her views on capital
punishment would have prevented or substantially impaired the
performance of her duties as a juror in accordance with her
instructions and her oath. Wainwright, supra; see also Rocha,
16 S.W.3d at 6; Colburn v. State, 966 S.W.2d 511, 518 (Tex.
Crim. App. 1998). Point of error fourteen is overruled.
In his first two points of error, appellant
complains that the trial court erred in refusing to instruct the
jury on the lesser-included offense of murder. He asserts that
this violated Article 37.08 of the Texas Code of Criminal
Procedure and his due process rights under the Fourteenth
Amendment to the United States Constitution.
To determine whether a charge on a lesser-included
offense should be given, this Court has implemented a two-step
test. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.
Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.
Crim. App. 1981) (plurality opinion). The first step is to decide
whether the offense is actually a lesser-included offense of the
Art. 37.09; see also, e.g., Rousseau v. State, 855 S.W.2d
666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919
(1993); Aguilar, 682 S.W.2d at 558. Murder is a lesser-included
offense of capital murder. See Cardenas v. State, 30 S.W.3d
384, 392 (Tex. Crim. App. 2000); Moore v. State, 969 S.W.2d
4, 12 (Tex. Crim. App. 1998). Hence, the first prong of the test
The second step of the Aguilar/Rousseau
test requires that the record contain some evidence that would
permit a rational jury to find that the defendant is guilty
only of the lesser offense. Moore, 969 S.W.2d at 8;
Rousseau, 855 S.W.2d at 672. In other words, there must
be some evidence from which a rational jury could acquit the
defendant of the greater offense while convicting him of the
lesser-included offense. Moore, 969 S.W.2d at 8. The
evidence must establish the lesser-included offense as a valid
rational alternative to the charged offense. Wesbrook v. State,
29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000), cert. denied,
121 S.Ct. 1407 (2001).
The evidence in the instant case showed that
during the late night hours of August 24, 1998, appellant was
riding his motorcycle down Highway 75 in Collin County. Appellant
was positioned in the right hand lane near the shoulder when
Robert Everett, traveling at least seventy to seventy-five miles
per hour in his eighteen-wheeler truck, suddenly passed appellant
and then moved into appellant's lane, passing only twelve to
eighteen inches from appellant's left hand. Appellant, initially
in fear for his life, became enraged and gave chase because he
felt that he "needed to stop that man." During the chase,
appellant took out a weapon and fired several rounds into the back
of Everett's trailer. When Everett continued driving, appellant
reloaded his gun, drove along side the truck's cab, and fired
several times directly at Everett, killing him.
After the shooting, appellant stopped for a
period of time
(6) in a mall
parking lot off the highway. He then rode back to where Everett's
truck had stopped to determine whether Everett was dead. Appellant
then headed for home. After riding approximately eleven miles,
however, appellant passed an Exxon service station where Nicolas
Velasquez, a tanker truck driver for Exxon, was refilling the gas
supply for the station.
(7) Velasquez had
just finished filling the ground tanks and was walking towards the
service station entrance when appellant drove into the station
area and shot Velasquez twice in the back, killing him. Appellant
finally drove home.
Over a week later, Antonio Vega was standing
outside a Jack-in-the-Box restaurant at 1:15 p.m. talking on a pay
telephone when appellant, driving a silver Land Rover, drove by
and opened fire, injuring Vega. A nearby witness noted appellant's
license number and reported the information to the police. When
officers apprehended appellant, they recovered a loaded nine-millimeter
weapon, an additional pistol magazine, a Glock pistol, seventy-five
hollow-point bullets, and one hundred ninety four round nose
bullets. Another loaded magazine was recovered from appellant's
pocket. Testing on the first weapon and on the spent shell casings
from the three crime scenes confirmed that this weapon had been
used at all three locations.
Appellant was indicted for killing Nicolas
Velasquez by shooting him with a firearm and, during the same
criminal transaction, killing Robert Stephen Everett by shooting
him with a firearm. In the alternative, appellant was indicted for
killing Nicolas Velasquez by shooting him with a firearm and,
during a different criminal transaction but pursuant to the same
scheme and course of conduct, killing Robert Stephen Everett by
shooting him with a firearm.
After his arrest, but prior to trial, appellant
admitted responsibility for the shootings in letters that he
mailed from jail to a police detective and to one of the
prosecutors working on the case. In the letter to the police
detective, appellant stated that the murders resulted from a
traffic altercation with Everett, "after which [appellant] erupted
in rage and subsequently committed the attacks[.]"
Appellant also testified at trial and admitted
shooting the victims. Appellant told the jury about the traffic
altercation with Everett and his decision to shoot Everett instead
of allowing him to go speeding down the highway. He noted that he
returned to Everett's truck because, "There was a part of me that
wanted to make sure Mr. Everett was dead." Even as he testified at
trial, appellant admitted that he was still angry about the
incident. He explained that he shot Velasquez because he saw him
standing beside an eighteen-wheeler, and "I exploded again in
Appellant was charged at trial with both
alternative theories alleged in the indictment and the jury found
him guilty "as charged in the indictment." See Tex. Penal
Code § 19.03(a)(7)(A) and (a)(7)(B). When the State has tried a
defendant on an indictment in which alternative theories of
capital murder are alleged, the defendant is entitled to a
requested lesser-included offense charge if a rational jury could
convict him only on the lesser-included offense after considering
each of the alternative theories of commission. See Arevalo v.
State, 970 S.W.2d 547, 548-49 (Tex. Crim. App. 1998).
Under the first theory alleged, the jury was
authorized to convict appellant if it found that he had murdered
both victims during the same criminal transaction. See
Tex. Penal Code § 19.03(a)(7)(A). Although the legislature did not
define the term "same criminal transaction" in the statute, this
Court has interpreted that phrase to mean "a continuous and
uninterrupted chain of conduct occurring over a very short period
of time . . . in a rapid sequence of unbroken events." Jackson
v. State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000); Rios
v. State, 846 S.W.2d 310, 311-312 (Tex. Crim. App. 1992),
cert. denied, 507 U.S. 1051 (1993); Vuong v. State,
830 S.W.2d 929, 941 (Tex. Crim. App. 1992), cert. denied,
506 U.S. 997 (1992).
At trial, the evidence showed that appellant
became enraged by Everett's driving and proceeded to chase him
down and shoot him. He then went to a parking lot for a while
before returning to the scene to see if his victim was dead. After
this, appellant, by his own claim, started to drive home. It was
only when he saw a tanker truck parked at a service station along
the way that appellant again lashed out in anger, killing another
person. The total amount of time between the two murders was
approximately 45 minutes. From this evidence, a rational juror
could have concluded that there was in fact a sufficient break
between the two murders such that they did not occur in a "sequence
of unbroken events." Hence, a rational jury could have acquitted
appellant of this theory of capital murder under these facts.
However, a finding that the murders could have
been committed during different criminal transactions does not
mean that the jury could have found appellant guilty only
of murder. The jury in the instant case was also authorized to
convict appellant of capital murder if it found that the murders
were committed during different transactions, but
pursuant to the same scheme or course of conduct. See Tex.
Penal Code § 19.03(a)(7)(B). Hence, to be entitled to a lesser-included
offense charge of murder in this case, appellant must also show
that the record contains some evidence that would have allowed a
rational jury to find that he did not murder Velasquez and Everett
pursuant to the same scheme or course of conduct. See Arevalo,
970 S.W.2d at 549 (to be entitled to lesser-included, defendant
must point to evidence that negates every alternate theory of
liability for the greater offense). Appellant agrees with this
proposition of law. His contention is that there was
some evidence from
which a rational jury could have concluded that the two murders
were not part of the same scheme or course of conduct.
This Court noted in Corwin v. State,
870 S.W.2d 23, 28 (Tex. Crim. App. 1993), cert. denied,
513 U.S. 826 (1994), that the sponsors of the bill that became
this penal provision intended subsection (B) to embrace "serial"
murders. The Revised Bill Analysis for the legislation gave as an
example of same scheme or course of conduct one who, "e.g. kills
all Senators over the course of a year for snubbing his
legislation." Id. The evidence in this case shows that
appellant became enraged because of a truck driver's behavior and
so he killed him. Appellant's own testimony then indicated that he
became enraged anew when he saw the second truck driver later that
same night and, therefore, he killed him. The jury was then
presented with evidence of a third attack a little more than a
week later on a person appellant thought was a truck driver.
Appellant points to his trial testimony that he
killed the first truck driver because that driver almost ran him
down, but that he had no motive at all for killing the second
truck driver. Therefore, he argues, his testimony of the second "motiveless"
murder is "some evidence" from which a rational trier of fact
could rationally conclude that these two murders were not
committed pursuant to the same scheme or course of conduct. We
disagree. The appellant did not dispute that he killed both truck
drivers in the same evening with the same gun while out on a
single car trip. He shot and killed the first truck driver with
four gunshots to the chest and back and the second victim with two
gunshots to the chest and back. He admitted that he shot the first
truck driver in a fit of rage for "what he did," and that when he
saw the second truck driver he "exploded in anger" again and drove
by and shot him as well.
Given this evidence, a rational jury could only
conclude that appellant's behavior in killing both truck drivers
was committed pursuant to the same over-arching objective or
motive and, hence, was committed pursuant to the same scheme or
course of conduct. See Corwin, 870 S.W.2d at 28. As such,
the jury could not have rationally acquitted appellant of capital
murder and convicted him only of murder. See Arevalo,
970 S.W.2d at 548-49; see also Wesbrook, 29 S.W.3d at
113-14; Moore, 969 S.W.2d at 8. Because appellant has
failed to satisfy the second prong of the Aguilar/Rousseau
test, the trial court did not err in refusing his request for a
lesser-included offense charge of murder. Appellant's
first two points of error are overruled.
EVIDENCE OF EXTRANEOUS ACTS
Appellant complains in his third, fourth, and
fifth points of error that the trial court erred by allowing the
State to introduce evidence during the guilt/innocence phase of an
unadjudicated extraneous offense that appellant committed just
over a week after the offense alleged in the indictment.
Specifically, appellant complains about testimony concerning the
aggravated assault of Antonio Vega.
Texas Rule of Evidence 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to
prove a person's character or that a person acted in conformity
with that character. However, such evidence may be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Faced with an objection, the proponent of such evidence
must satisfy the trial court that the extraneous act has relevance
apart from its tendency to prove character conformity.
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App.
1997); McFarland v. State, 845 S.W.2d 824, 837-838 (Tex.
Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). If
the proponent succeeds in his task, then the trial court has
discretion to admit the evidence. Montgomery v. State,
810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g ). If,
however, the trial court determines that the proponent has not met
his burden or decides that the evidence has no relevance apart
from character conformity, then the evidence is not admissible,
and the trial court has no discretion in the matter. Id.
While the trial court may decide that the
evidence is admissible under Rule 404(b), it may nevertheless
exclude that evidence if it determines that the probative value of
the extraneous act evidence is substantially outweighed by unfair
prejudice. Tex. R. Evid. 403. However, the trial court need not
engage in this balancing test unless the opponent of the evidence
further objects based upon Rule 403. Montgomery and
McFarland, both supra. When the trial court balances
probativeness and prejudice, a presumption exists favoring
probative value. Montgomery, 810 S.W.2d at 389.
So long as the trial judge "operates within the
boundaries of [his] discretion," an appellate court should not
disturb his decision, whatever it may be. Montgomery, 810
S.W.2d at 390. In other words, as long as the trial court's ruling
is within the zone of reasonable disagreement, an appellate court
will not disturb that ruling. Montgomery, 810 S.W.2d at
Appellant conceded in the instant case that he
killed the two victims named in the indictment. However, he
disputed that he committed the murders in the same criminal
transaction or during the same scheme or course of conduct. In
presenting evidence about the Vega assault/attempted murder, the
State was able to present to the jury evidence that made the
existence of this fact more probable by revealing appellant's
common "anti-truck driver" motive or a common scheme behind the
Further, the record reveals that early in the
State's case-in-chief, the prosecutor read to the jury a letter
appellant had written and sent to Detective Phil Harding with the
Dallas Police Department. Appellant stated in this letter:
I am responsible for the criminal mischief
which occurred at Central Volkswagen on 8/23/98 (shooting of
windows & vehicles), as well as the shooting deaths (murder) of Mr.
Robert Stephen Everett (8/24/98) and Mr. Nicolas Velasquez
(8/25/99) [sic] as well as the attempted murder of Mr. Antonio
I have no excuse for my actions other than that
I was in a state of extreme emotional distress at the time. I had
an altercation in traffic with Mr. Everett, after which I erupted
in rage & subsequently committed the attacks mentioned above.
This admission, along with the minimal evidence
of the facts and circumstances of the Vega assault which the State
later admitted through the testimony of an eyewitness, made the
fact that the Everett and Velasquez murders were committed during
the same transaction or scheme or course of conduct more likely.
Hence, the evidence had relevance apart from character conformity,
and the judge acted within his discretion in allowing it.
While we recognize that evidence of an
extraneous offense will usually be somewhat prejudicial, we cannot
say, given the totality of the evidence in the instant case, that
the testimony was substantially more prejudicial than probative.
Because the trial judge was not outside the zone of reasonable
disagreement in allowing the testimony, we will not disturb his
ruling on appeal. Montgomery, supra. Points of
error three through five are overruled.
Towards the end of the guilt/innocence phase of
trial, appellant took the stand in his own defense. He now
advances in points of error six through eight that the trial court
erred in allowing the State to cross-examine him about extraneous
offenses which he committed more than twenty years before the
offense for which he was currently on trial. A defendant who takes
the witness stand may be cross-examined and impeached in the same
manner as any other witness. Huffman v. State, 746 S.W.2d
212, 219 (Tex. Crim. App. 1988). Indeed, a defendant may be
contradicted, impeached, discredited, attacked, sustained,
bolstered, made to give evidence against himself, cross-examined
as to new matters, and treated in every respect as any other
witness. Id. Furthermore, an appellant who "opens the
door" to otherwise inadmissible evidence risks having that
evidence admitted and used against him. However, the party
offering the evidence may not "stray beyond the scope of the
invitation." See Schutz v. State, 957 S.W.2d 52, 71 (Tex.
Crim. App. 1997).
In the instant case, the following exchange
occurred between appellant and his trial counsel:
[BY DEFENSE COUNSEL:]
Q. At some point in time the next day [the day
after the shootings for which appellant was indicted], you were
questioned by the Richardson Police Department; is that right?
A. I was.
Q. You had shaved your beard.
A. I had.
Q. Had you cut your hair?
Q. No doubt about it, you were trying to change
A. That's correct.
A. I've been in trouble before and I was
concerned that, you know, I was in serious trouble.
Q. Did you know you had done something wrong?
A. I felt that way, yes.
Before the prosecutor conducted cross-examination,
the court took a recess and discussed a motion in limine in which
defense counsel sought to limit questioning about matters not in
issue in the case. Specifically, counsel sought to prohibit the
State from asking appellant any questions likely or designed to
elicit testimony about extraneous offenses. The State specifically
sought to ask the defendant to "explain his statement to the jury
that he'd 'been in trouble before.'" The trial court overruled
defense counsel's objections at that time, instructed the
prosecutor to proceed with caution, and granted defense counsel a
continuing objection on the subject. A short way into cross-examination,
the prosecutor asked appellant:
[BY THE PROSECUTOR:]
Q. Now, earlier you told this jury here that
you'd been in trouble before; is that correct?
A. That's correct.
Q. Can you explain that for us?
A. I was arrested in 1978 on an aggravated
robbery charge in possession of narcotics. I was 19 years old. I
got a two-year sentence and served it, as well as a ten-year
probation which I served and discharged.
Upon further cross-examination, appellant told
the prosecutor and the jury about his juvenile arrests, an arrest
for driving while intoxicated when he was eighteen, running away
from home when he was young, forging credit card receipts and
selling marijuana when he was sixteen or seventeen, and an
aggravated robbery charge on his adult record.
Given the totality of the record, we conclude
that the trial court did not abuse its discretion in allowing this
testimony. See, e.g., Schutz, 957 S.W.2d at 71; Green
v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1200 (1997); Norris v. State, 902
S.W.2d 428, 442 (Tex. Crim. App. 1995). The State's question
asking appellant to explain his previous statement about being in
trouble did not exceed the scope of the invitation appellant
initially gave. Furthermore, every time appellant volunteered
additional information, the State was justified in asking for
clarification. Appellant's sixth through eighth points of
error are overruled.
In his fifteenth point of error, appellant
complains that the trial court erred when it informed the jury
about the forty year minimum for parole eligibility if a life
sentence were assessed, but then further instructed the jury not
to consider that minimum in answering the future dangerousness
issue. See Art. 37.071 § 2(b). Appellant concedes that he
failed to object to these instructions, but argues that the
"error" caused him egregious harm, necessitating reversal under
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
This Court has repeatedly held that parole eligibility is not a
proper subject for the jury to consider at the sentencing phase of
a capital case. See, e.g., Colburn v. State, 966 S.W.2d
511, 516 (Tex. Crim. App. 1998); see also, Wesbrook v. State,
29 S.W.3d 103, 121 (Tex. Crim. App. 2000), cert. denied,
121 S.Ct. 1407 (2001). Even if we were to assume that the trial
court committed error, there is no possibility that the parole
instructions caused appellant egregious harm because parole was
not an issue applicable to appellant's case. See, e.g, Collier
v. State, 959 S.W.2d 621, 623 (Tex. Crim. App. 1997),
cert. denied, 525 U.S. 929 (1998). Point of error
fifteen is overruled.
CONSTITUTIONALITY OF ARTICLE 37.071
In his sixteenth point of error, appellant
contends that the trial court failed to define in the punishment
charge the terms "probability," "criminal acts of violence," and "continuing
threat to society." See Art. 37.071 §§ 2(b) and (e).
Appellant argues that this failure rendered the charge
This Court has held repeatedly that the trial
court need not define such terms because the jury is presumed to
understand them without instruction. See, e.g., Ladd v. State,
3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1070 (2000). Appellant has given us no reason to revisit
these holdings. Point of error sixteen is overruled.
In his seventeenth, eighteenth, and nineteenth
points of error, respectively, appellant argues that the "12/10
Rule" of Article 37.071 §§ 2(d)(2) and 2(f)(2) is unconstitutional
and that the death penalty scheme allows the jury unlimited
discretion in violation of the federal and state constitutions. We
have previously addressed and rejected these contentions.
Appellant raises no new arguments here. See, e.g., Wright v.
State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert.
denied, 121 S.Ct. 885 (2001); Shannon v. State, 942
S.W.2d 591, 600 (Tex. Crim. App. 1996); Lawton v. State,
913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied,
519 U.S. 826 (1996). Points of error seventeen through
nineteen are overruled.
Appellant asserts in his twentieth and twenty-first
points of error that the "cumulative effect" of all of the above
errors denied him due process under the federal constitution and
due course of law under the Texas constitution. A number of errors
may be found harmful in their cumulative effect. Chamberlain
v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 1082 (2000). However, cumulative error
has not been shown here. See Wright, 28 S.W.3d at 537.
Points of error twenty and twenty-one are overruled.
We affirm the judgment of the trial court.
Delivered: February 20, 2002
1. Unless otherwise
indicated all future references to Articles refer to the Code of
2. The "anti-parties"
special issue is set out in art. 37.071,§ 2(b)(2):
[I]n cases in which the jury charge at the
guilt or innocence stage permitted the jury to find the defendant
guilty as a party under Sections 7.01 and 7.02, Penal Code,
whether the defendant actually caused the death of the deceased or
did not actually cause the death of the deceased but intended to
kill the deceased or another or anticipated that a human life
would be taken.
3. For example, when the
prosecutor asked Ms. Garcia if she could keep an "open mind as to
either option depending on the facts," she responded:
Well, I guess I have to know what led to all
this before I decide death or life.
. . .
I mean he just killed two people, but to me, I
don't automatically think he should die unless I hear all the
4. Article 37.09 defines a
An offense is a lesser included offense if:
it is established by proof of the same or
less than all the facts required to establish the commission of
the offense charged;
it differs from the offense charged only in
the respect that a less serious injury or risk of injury to the
same person, property, or public interest suffices to establish
it differs from the offense charged only in
the respect that a less culpable mental state suffices to
establish its commission; or
it consists of an attempt to commit the
offense charged or an otherwise included offense.
5. In Arevalo v. State,
943 S.W.2d 887, 889 (Tex. Crim. App. 1997), this Court explained
why the evidence raising a lesser-included must provide a viable
and rational alternative to the greater offense:
The second prong of the test preserves the
integrity of the jury as the factfinder by ensuring that the jury
is instructed as to a lesser included offense only when that
offense constitutes a valid, rational alternative to the charged
offense. If a jury were instructed on a lesser included offense
even though the evidence did not raise it, then the instruction "would
constitute an invitation to the jury to return a compromise or
otherwise unwarranted verdict."
6. The evidence showed that
the total elapsed time between the two murders was 45 minutes.
7. Appellant was apparently
in Dallas County at that time.
8. Under either theory,
appellant would be guilty of capital murder for killing two
different people under Tex. Penal Code §19.03(a)(7) either:
"during the same transaction; or
during different transactions but the murders
are committed pursuant to the same scheme or course of conduct."
9. As this Court explained
instant case, the State presented evidence on all three theories
of aggravation [from sexual assault to aggravated sexual assault],
and the jury charge required the jury to find only one of the
three to convict of aggravated sexual assault. If the evidence
was disputed on only one of those theories and the evidence on
the remaining two was uncontested, the jury could not rationally
find Appellant guilty only of the lesser. Therefore, we hold
that if sufficient evidence of more than one theory of the
greater offense is presented to allow the jury to be charged on
alternate theories, the second prong of the Royster/Aguilar
test is satisfied only if there is evidence which, if believed,
refutes or negates every theory which elevates the offense from
the lesser to the greater. See Schweinle v. State, 915
S.W.2d 17, 19-20 (Tex.Cr.App.1996). Only if every theory
properly submitted is challenged would the jury be permitted to
find the defendant guilty only of the lesser offense.
970 S.W.2d at 548-49.
10. Appellant testified
that he saw a diesel truck parked near where Vega was using the
phone. Therefore, appellant thought that he might be a truck
11. "Relevant evidence"
is evidence which has "any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." Tex.R. Evid. 401. Evidence which is not relevant is
not admissible. Tex. R. Evid. 402.
United States Court of Appeals, Fifth
Douglas Alan FELDMAN, Petitioner-Appellant,
Rick THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-Appellee.
September 14, 2012.
Robin Norris, Law Office of
Robin Norris, El Paso, TX, for Petitioner-Appellant.
Stephen M. Hoffman, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.
Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Petitioner-appellant Douglas Alan Feldman was convicted and
sentenced to death in Texas for the 1998 murders of Robert Everett
and Nicolas Velasquez. Feldman challenged his death sentence in
habeas proceedings under 28 U.S.C. § 2254. The district court
denied relief and Feldman now seeks a certificate of appealability.
We deny Feldman's request.
The facts of Feldman's crimes are essentially undisputed.1 Feldman
was riding his motorcycle on the night of August 24, 1998 when
Robert Everett, driving an eighteen-wheeler, suddenly passed
Feldman and pulled into his lane, missing Feldman's left hand by
inches. Enraged, Feldman took out his firearm and fired several
shots into the back of Mr. Everett's trailer. Feldman then
reloaded his weapon and pulled up alongside the cab of Mr.
Everett's truck. He fired several shots directly at Mr. Everett,
After returning to the scene of the
crime to verify that Mr. Everett was dead, Feldman headed home.
Approximately 45 minutes after Feldman shot and killed Mr.
Everett, and about eleven miles from the scene of the original
shooting, Feldman passed an Exxon service station where Nicolas
Velasquez, an Exxon tanker truck driver, was refilling the
station's gas supply. Feldman drove into the station and shot Mr.
Velasquez twice in the back, killing him. Feldman then returned
Over a week later, Feldman shot Antonio
Vega while Mr. Vega was standing outside of a Jack-in-the-Box
restaurant. Mr. Vega was seriously injured but survived. A
bystander noted Feldman's license plate number and relayed the
information to police. When the police apprehended Feldman, they
recovered two firearms and hundreds of rounds of ammunition.
Testing on one of the weapons and the shell casings found at the
scene of the shootings of Messrs. Everett, Velasquez, and Vega
confirmed that the weapon had been used at all three locations.
After his arrest but prior to trial, Feldman admitted committing
the shootings to a police investigator, stating that they were the
consequence of his traffic altercation with Mr. Everett. Feldman
also testified to the shootings at his trial, noting that he had
not forgiven Mr. Everett for his trespasses. Feldman explained
that he had shot Mr. Velasquez because the man was standing beside
an eighteen-wheeler, which caused Feldman to "explode again in
Feldman was convicted of capital murder
in a Texas trial court and sentenced to death on August 31, 1999.
Feldman appealed to the Texas Court of Criminal Appeals ("the CCA"),
which ultimately affirmed his conviction in a published opinion
issued on February 20, 2002.2 Feldman did not seek review by
petition of certiorari in the United States Supreme Court.
While his direct appeal was still pending, Feldman filed for state
habeas relief under Article 11.071 of the Texas Code of Criminal
Procedure. In accordance with Article 11.071, the convicting state
trial court received briefs and supplemental affidavits from both
Feldman and the state. However, the court denied Feldman's request
for an additional evidentiary hearing to develop facts related to
his habeas claims. The convicting trial court then issued findings
of fact and conclusions of law on Feldman's habeas claims,3 which
the CCA ultimately adopted in an unpublished opinion denying
Feldman's request for habeas relief.4
filed his federal habeas petition on April 17, 2008. The district
court denied both habeas relief and a certificate of appealability
with respect to all of Feldman's claims.5 Feldman now seeks to
appeal three of the four claims the district court rejected.
First, Feldman argues that his death sentence violates his Sixth
Amendment right to counsel, as his trial counsel rendered
ineffective assistance by failing to present readily available
evidence of Feldman's bipolar disorder.6 Next, Feldman claims that
his trial denied him due process under the Fourteenth Amendment,
as the trial judge refused to instruct the jury on the
lesser-included offense of simple murder.7 Finally, Feldman claims
that his trial denied him an impartial jury and due process in
violation of the Sixth and Fourteenth Amendment, as the trial
judge wrongfully excluded a qualified venire member merely because
of her conscientious scruples about the death penalty.8
Before a § 2254 petitioner can
appeal, he must obtain a certificate of appealability ("COA").9 To
obtain a COA, the petitioner must make "a substantial showing of
the denial of a constitutional right."10 Where, as here, "a
district court has rejected the constitutional claims on the
merits, ... [t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong."11 In death penalty
cases, "any doubts as to whether a COA should issue must be
resolved in the petitioner's favor."12
adjudicated all of the claims Feldman seeks to appeal on the
merits. Consequently, the district court's review of Feldman's
claims was governed by 28 U.S.C. § 2254(d) and (e). Under §
2254(d), the district court could not grant habeas relief unless
the CCA's adjudication (1) "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," or (2) "resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."13 Moreover,
under § 2254(e)(1), which supplements § 2254(d)(2) with an
"arguably more deferential" standard of review for state court
findings of fact,14 the district court was obliged to presume that
the CCA's factual findings were correct unless Feldman furnished
"clear and convincing evidence" otherwise.15
Hence, in determining whether a COA should issue in this case, the
question is not whether reasonable jurists could debate the
correctness of the CCA's rejection of Feldman's claims, but
whether reasonable jurists could debate the district court's
denial of habeas relief under the deferential standard of review
mandated by § 2254(d) and (e).16
Feldman's claims in turn and deny his request for a COA with
respect to each claim.
Feldman seeks to appeal the claim that his conviction requires
reversal under Strickland v. Washington, arguing that his trial
counsel's failure to present readily available mitigating evidence
of Feldman's bipolar disorder amounted to deficient
To prove that a conviction
requires reversal under Strickland, a petitioner must show both
that his trial counsel's performance was deficient and that the
defense suffered prejudice as a consequence.17 To be cognizable
under Strickland, trial counsel's error must be "so serious that
counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment."18 An error will meet this high
standard if "counsel's representation fell below an objective
standard of reasonableness."19 However, because of the risk that
hindsight bias will cloud a court's review of counsel's trial
strategy, "a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy."20
evaluation of the appealability of Feldman's ineffective
assistance claim requires a brief foray into the facts of the
state proceedings below.21 In anticipation of the punishment phase
of Feldman's trial, his defense counsel, James Oatman, retained a
forensic psychiatrist and a psychologist to evaluate Feldman's
mental condition.22 Feldman was uncooperative during the
evaluation and the experts were unable to render a diagnosis.23
Concluding that the evaluation produced no mitigating evidence and
actually disclosed facts harmful to Feldman, Mr. Oatman did not
introduce evidence of the evaluation at trial.24
Nevertheless, Mr. Oatman's mitigation strategy rested on proving
that Feldman had some form of mental deficiency that rendered him
incapable of controlling his conduct.25 To make his case, Mr.
Oatman relied on vague appeals to circumstantial evidence.26
Unsurprisingly, the prosecution rejoined that if Feldman truly
suffered from a mental disorder, Mr. Oatman would have presented
expert testimony.27 The prosecution also averred that if Feldman
did suffer from any mental instability, it was due to his own
voluntary drug use.28
In the subsequent habeas
proceedings before the CCA, Feldman submitted evidence that Dr.
Jeffrey Glass had diagnosed him with bipolar II disorder in 1997,
about one year before the murders for which Feldman was
convicted.29 Feldman also submitted evidence that his mother,
Cecile Borshaw, had informed Mr. Oatman's investigator of Dr.
Glass's 1997 diagnosis prior to trial, in accordance with Mr.
Oatman's instructions to provide the investigator with all
information relevant to the defense.30 Finally, Feldman introduced
evidence of a post-conviction Bipolar I diagnosis obtained by his
habeas counsel.31 In its answer, the prosecution submitted an
affidavit from Mr. Oatman in which he generally explained his
trial strategy but made no mention of the 1997 diagnosis.32
On the basis of this new evidence, Feldman claimed that Mr.
Oatman's failure to procure and present expert testimony
confirming Feldman's bipolar disorder constituted deficient
representation under Strickland. Pointing to the post-conviction
Bipolar I diagnosis obtained by habeas counsel and the
pre-conviction Bipolar II diagnosis rendered by Dr. Glass, Feldman
argued that Mr. Oatman clearly could have found a favorable expert
had he been diligent.33
The CCA rejected
Feldman's theory of deficiency, concluding that Feldman failed to
overcome Strickland's "strong presumption" that trial counsel's
representation was reasonable.34 The CCA reasoned that Mr. Oatman
had diligently sought an experienced team of mitigation experts to
evaluate Feldman's mental health, and that Mr. Oatman's
representation was not deficient under Strickland merely because
he did not "canvas the field to find a more favorable defense
expert."35 Moreover, it reasoned that Mr. Oatman's decision not to
obtain further evaluations could have been a reasonable strategic
choice: even if he had been able to obtain a diagnosis akin to
that obtained by Feldman's habeas counsel, the diagnosis would
have been "double edged," demonstrating Feldman's future
In the district court, Feldman
argued that the CCA had erred for two reasons. First, he obliquely
reasserted that reasonable trial counsel would have managed to
procure and present a favorable mental health evaluation.37 In the
alternative, he argued that Mr. Oatman still clearly erred by
failing to introduce existing evidence of the 1997 diagnosis
rendered by Dr. Glass.38
The district court
rejected both of Feldman's theories of error under § 2254(d).
First, it upheld as reasonable the CCA's conclusion that
Strickland was not triggered by Mr. Oatman's failure to seek
additional evaluations.39 Second, it concluded that Feldman's
novel argument relating to the 1997 diagnosis ignored the "double
edged" nature of the diagnosis as well as the fact that Mr. Oatman
would have needed to find an expert willing to sponsor the
diagnosis to present it to the jury.40
petition for a COA, Feldman claims that the district court erred
in its analysis relating to Dr. Glass's 1997 diagnosis.41 Perhaps
wisely, he does not resuscitate his claim that Mr. Oatman
unreasonably failed to find an expert willing to render a new
diagnosis.42 Consequently, we address only the former argument in
At first blush, it appears
difficult to reconcile Mr. Oatman's omission of the 1997 diagnosis
with his mitigation strategy, particularly in light of the
prosecution's response.43 However, Strickland requires a reviewing
court "not simply to give [Mr. Oatman] the benefit of the doubt...
but to affirmatively entertain the range of possible reasons [he]
may have had for proceeding as [he] did."44 In this case, there
are at least two plausible grounds for Mr. Oatman's omission.45
First, Mr. Oatman might have reasonably feared that introducing
evidence of the 1997 diagnosis — which, as Feldman acknowledges,
would have required the assistance of an expert sponsor46 — posed
too great a risk of damaging cross examination by the
prosecution.47 More importantly — and as Feldman conceded in
habeas proceedings before the CCA — putting an expert on the stand
to explain the diagnosis would have opened the door to the
prosecution to bring in its own expert on rebuttal.48 As Mr.
Oatman's own experts could not make a favorable diagnosis, he
would have been foolhardy to ignore the risk that the prosecution
could produce an adverse expert.49
In light of
the sparse record evidence on the circumstances surrounding Mr.
Oatman's omission of the 1997 diagnosis, the CCA was plainly
justified in concluding that Feldman failed to overcome
Strickland's "strong presumption" that Mr. Oatman's omission
"might be considered sound trial strategy."50 Because jurists of
reason could not debate the district court's denial of habeas
relief under § 2254(d), we deny Feldman's application for a COA on
his ineffective assistance claim.
Feldman also seeks to appeal his claim that the trial court
violated his Fourteenth Amendment rights under Beck v. Alabama by
refusing to instruct the jury on the lesser-included offense of
Beck invalidated an Alabama
statute that created a blanket ban prohibiting trial judges in
capital murder trials from instructing a jury on the
lesser-included offense of felony murder, even if there existed
evidence of the lesser crime.51 The Supreme Court reasoned that
the statute created a constitutionally impermissible risk that
juries would return guilty verdicts not because they had found a
defendant guilty of a capital crime, but because they believed a
defendant to be guilty of some lesser-included crime and felt that
he should be punished rather than set free.52
The Fifth Circuit has held that Beck requires a state trial court
to give a lesser-included offense instruction "if the jury could
rationally acquit on the capital crime and convict for the
noncapital crime."53 Under Texas state law — which the Fifth
Circuit has found consistent with Beck54 — the defendant is
entitled to a requested lesser-included offense charge only if
"the evidence of the lesser offense would be sufficient for a jury
rationally to find that the defendant is guilty only of that
offense, and not the greater offense."55
the Texas Penal Code, a defendant is guilty of capital murder if
he commits more than one murder either "during the same criminal
transaction ... or ... pursuant to the same scheme or course of
conduct."56 The CCA has held that the latter category of capital
murder includes "serial" murders.57 At trial, the prosecution
charged Feldman with capital murder under both of the alternative
routes available under the Penal Code, and the trial judge refused
Feldman's request for a jury instruction on the lesser-included
offense of simple murder.
In his direct appeal
to the CCA, Feldman argued that Beck obligated the trial judge to
instruct the jury on the lesser-include offense of simple murder.
In rejecting Feldman's claim, the CCA conceded that a rational
jury could have found that the murders did not occur "during the
same criminal transaction," reasoning that the evidence showed a
geographic and temporal gap between the two killings.58 However,
it determined that a rational jury had to conclude that Feldman
committed the murders "pursuant to the same scheme or course of
conduct" — that is, that his murders were "serial" — noting that
Feldman committed the murders "on the same evening with the same
gun while out on a single car [sic] trip," and that Feldman
himself had testified that he committed both killings in a fit of
rage triggered by his initial traffic altercation with Mr.
Everett.59 Though Feldman argued that his second murder was
"motiveless," the CCA rejected this argument as having no basis in
In habeas proceedings before the
district court, Feldman offered two theories as to why the CCA's
adjudication of his Beck claim was unreasonable. First, Feldman
made a conclusory assertion that the CCA erred in finding that no
rational jury could acquit him of capital murder.61 Second,
Feldman argued that because the CCA determined that a rational
jury could have acquitted him on one of the two theories of
capital murder charged by the prosecution, Beck required the CCA
to hold that the trial court erred in not issuing an instruction
for simple murder.62
In reviewing the CCA's
decision, the district court began by observing that "Beck,
strictly speaking, holds only that a state cannot impose a blanket
ban on the giving of lesser-included offense instructions in a
capital case."63 However, it found that "the Fifth Circuit has
consistently applied Beck's holding when the state trial court
refuses a lesser-included-offense instruction," and evaluated the
CCA's decision under Fifth Circuit precedent.64
The district court rejected Feldman's first theory of error under
§ 2254(d), agreeing with the CCA that the record contained no
evidence upon which a rational jury could have acquitted Feldman
of capital murder.65 Proceeding to Feldman's second theory of
error, that Beck mandates a simple murder instruction whenever a
rational jury could acquit a defendant on one theory of capital
murder, the district court held that Feldman's novel
interpretation of Beck was clearly precluded by § 2254(d)(1).66
Feldman argues that reasonable jurists could dispute the district
court's decision on both counts. We disagree. Even assuming that
the district court was correct to evaluate Feldman's Beck claim
under Fifth Circuit precedent,67 it was plainly justified in
rejecting both of Feldman's theories under § 2254(d).68
As the CCA noted, Feldman's first theory of error — which amounts
to little more than a conclusory assertion that a rational juror
could have acquitted him of capital murder69 — is controverted by
his testimony that he killed both Messrs. Everett and Velasquez in
a fit of rage ignited by the initial traffic altercation with Mr.
Everett. It is also controverted by Feldman's brief to this court,
in which he concedes that he killed Mr. Velasquez because "[his]
anger was unexpectedly rekindled by the sign of an Exxon truck
driver refilling the fuel supply at a roadside gas station."70
Feldman's brief points to no evidence which would tend to show
that the CCA's determination was incorrect, let alone
unreasonable.71 Nor can we find any such evidence in the record.
Feldman's second theory of error relies on a tortured reading of
Beck plainly precluded by § 2254(d)(1). Feldman claims that Beck
mandates a lesser-included offense instruction whenever a rational
juror could acquit the defendant on any one theory of capital
murder. This reading of Beck ignores the case's underlying logic:
where, as in this case, a defendant has been charged with capital
murder under two separate theories, the Beck dilemma — that a jury
might be coerced into returning an erroneous guilty verdict on a
capital crime merely to avoid setting the defendant free — arises
only if a rational jury could acquit the defendant on both
theories.72 Feldman's incoherent reading of Beck cannot possibly
be considered "clearly established Federal law" within the meaning
Finally, Feldman seeks to appeal the claim that his trial violated
the Sixth and Fourteenth Amendment, arguing that the trial judge
wrongfully excluded Ms. Diane Dreifke from the jury merely on the
basis of her conscientious scruples against the death penalty.
In Witherspoon v. State of Illinois, the Supreme Court struck down
a state statute that permitted the for-cause exclusion from a
capital case of any juror who voiced "conscientious scruples
against capital punishment."74 The Court reasoned that the statute
impermissibly tilted juries in favor of capital punishment in
violation of a defendant's Sixth and Fourteenth Amendment right to
an impartial jury.75 However, in Wainwright v. Witt, the Supreme
Court clarified that a juror could be excluded whenever his views
would "prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
Wainwright also emphasized that an
exclusion order is not improper merely because the paper record
fails to demonstrate a potential juror's bias with "unmistakable
clarity."77 Because "many veniremen simply cannot be asked enough
questions to reach the point where their bias has been made
unmistakably clear," reviewing courts should generally defer to
the determination of the trial judge, who sees and hears the
juror.78 "[W]here ... there is lengthy questioning of a
prospective juror and the trial court has supervised a diligent
and thoughtful voir dire, the trial court has broad discretion."79
To assess the appealability of Feldman's claim, we briefly review
the evidence in the record. At the beginning of the voir dire, Ms.
Dreifke repeatedly stated that she supported the death penalty and
could impose it in accordance with Texas law:
"I want to know, is there anything about [Feldman], the way he
looks, anything that you may think that would prevent you from
assessing the death penalty if we prove our case to you?" A: "No."
Q: "Because now is the time to tell us." A: "No." Q: "Some people
say, yeah, I just — I can't do it. Do you feel like you're the
type of individual that could be involved with a situation,
knowing what our position is, and participating and being
responsible for ultimately the execution of another human being?"
A: "Yes, if that's what is proven to me."80
However, under subsequent questioning by the prosecution, Ms.
Dreifke admitted that she had not given the death penalty much
thought and began expressing doubts:
you given [the death penalty] much thought prior to filling out
A: "Not prior to filling out the
Q: What about since?" A: "Since then, yes ...
I've thought about how it would affect me afterwards... [h]ow it
would, maybe psychologically and scare me, things like that,
would I have recurring dreams, things like that."81
Moreover, once the prosecutor graphically described the execution
process to Ms. Dreifke, she repeatedly stated that she did not
think she could participate in a course of action that would
result in the execution of another human being:
Q: "... do you think you're the type of individual that could
answer the questions, knowing that will result in the execution of
A: "I don't think I could. I don't think I
could." * * *
Q: "So again, you're telling me that you
couldn't participate in it?"
A: "I don't think I could do it." * * *
Q: "Just so the record is clear, Ms. Dreifke,
you understand if you took the oath to follow the law, if the
evidence is there, basically, if we convinced you, we have the
evidence, that would be something you would have to do, and it
would just go against your conscience, basically; right?
Q: "A burglary case or some other case where
the death penalty is not an issue, it sounds like you would be a
fine juror, but it's just this issue of being required, if the
evidence is there, to basically —
A: "Sentence someone to ending their life,
After the prosecution had finished
questioning Ms. Dreifke, the trial judge gave the defense an
opportunity to rehabilitate her. It declined.83
On direct appeal to the CCA, Feldman argued that the trial judge's
exclusion of Ms. Dreifke from the jury violated Witherspoon and
its progeny. The CCA rejected Feldman's claim, observing that "[b]ecause
Dreifke vacillated on her ability to follow the law and ultimately
told the court that she was not sure whether she could perform the
duty entrusted her, the trial judge was within his discretion in
determining that her views on capital punishment would have
prevented or substantially impaired the performance of her duties
as a juror in accordance with her instructions and her oath."84
In his brief to the district court, Feldman conceded that Ms.
Dreifke found the prospect of imposing a death sentence
emotionally difficult, but argued that her voir dire testimony —
viewed as a whole — clearly indicates that she was willing and
able to serve as a capital juror.85 After carefully examining the
voir dire transcript, the district court upheld the CCA's
determination as reasonable and denied habeas relief under §
As the trial court's decision to
exclude Ms. Dreifke was made after a thorough and fair voir dire
process that included lengthy questioning by the prosecution and
an opportunity for the defense to rehabilitate, the CCA would have
been entitled to defer to that decision even if the printed record
was ambiguous;87 as Feldman acknowledges in his brief, vacillating
answers are a sufficient ground for exclusion.88 This, however, is
a case where the printed record clearly supports a finding that
Ms. Dreifke's views would have substantially impaired her ability
to impose a capital sentence. Viewed chronologically, the record
paints the picture of a juror who not only vacillated about her
ability to impose a death sentence, but of one who — on gaining
full information about the execution process — concluded that she
was likely incapable of doing so.89
rejection of Feldman's Witherspoon claim was thus plainly
reasonable, and no jurist of reason could debate the district
court's denial of habeas relief under § 2254(d).90
The motion for a certificate of
appealability is DENIED.
1. Petitioner-Appellant's Brief in Support of Application for
Certificate of Appealability at 3, Feldman v. Thaler, No. 11-70013
(5th Cir. Aug. 29, 2011). The Texas Court of Criminal Appeals
aptly summarized the relevant facts. See Feldman v. State, 71
S.W.3d 738, 751-53 (Tex.Crim.App.2002).
Feldman v. State, 71 S.W.3d 738 (Tex. Crim.App.2002).
3. See Court's Findings of Fact and Conclusions of Law, Ex parte
Feldman, 2007 WL 1139450, No. WR-66691-01 (Tex.Crim.App. Dec. 28,
4. See Ex parte Feldman, No. WR-66691-01,
2007 WL 1139450, at *1 (Tex.Crim.App. Apr. 18, 2007).
5. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at
Brief, supra note 1, at 1.
7. Id. at 2.
8. Id. at 1-2.
9. See 28 U.S.C. § 2253(c)(1)(A).
10. Id. § 2253(c)(2).
11. Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
12. Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (internal
quotation marks and alterations omitted).
See 28 U.S.C. § 2254(d).
14. Wood v. Allen, 558
U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010).
15. See 28 U.S.C. § 2254(e)(1).
16. See Pippin
v. Dretke, 434 F.3d 782, 787 (5th Cir.2005) ("In determining
whether the district court's denial of [petitioner's] petition was
debatable, we must keep in mind the deferential standard of review
that the AEDPA requires a district court to apply when considering
a petition for habeas relief.").
17. Cullen v.
Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557
18. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
19. Id. at 688, 104 S.Ct. 2052.
20. Id. at 689,
104 S.Ct. 2052 (internal quotation marks omitted).
21. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029,
154 L.Ed.2d 931 (2003) ("The COA determination under § 2253(c)
requires an overview of the claims in the habeas petition and a
general assessment of their merits.").
Court's Findings of Fact and Conclusions of Law, supra note 3, at
23. Id. at 21.
25. Mr. Oatman argued that because
Feldman "had been a successful, contributing member of society
from 1979 to 1993 ... his mental-health problems were the only way
to explain his subsequent descent into lawlessness." See Court's
Findings of Fact and Conclusions of Law, supra note 3, at 25. Mr.
Oatman also claimed that Feldman "had inherited his mother's
mental-health problems," reasoning that otherwise "there was no
rational explanation for his behavior." Id.
Mr. Oatman's evidence included: (1) testimony from Feldman's
mother that Feldman "was a runaway child and that he suffered
emotional and physical abuse from a hot-tempered father," id. at
22, (2) a 1993 memorandum written by Feldman to his attorney, in
which Feldman "exhibits what can only be described as extremely
paranoid thought patterns," id. at 23, and (3) a December 2007
letter from Feldman to his mother in which he "states that he
feels like he is becoming a mental case, that noises bother him,
that he has insomnia, and that he cannot concentrate or read well
anymore," that "he is slowly drowning, unrealistically euphoric
one moment and then narcissistically depressed the next," that "he
is continually being set up," that "people do not respect the
things he says and laugh at him behind his back," that "the world
seems to be driving him insane just for fun and enjoyment," and
that "he is slowly losing the ability to take care of himself,"
id. at 24-25.
27. See Reporter's Record, vol.
41, at 74, Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. Jan. 12,
28. See id. at 74-76.
29. The evidence consists of unsigned notes apparently written by
Dr. Glass, dated December 11, 1997, diagnosing Feldman with
bipolar II disorder. See Application for Writ of Habeas Corpus, Ex
parte Feldman, No. WR-66691-01, 2007 WL 1139450, Exhibit D,
Progress Notes of Dr. Jeffrey Glass (Tex.Crim. App. May 29, 2001).
30. See id., Exhibit E, Affidavit of Cecile Borschow.
31. See id., Exhibit B, Affidavit of Dr. Paula Lundberg-Love,
Ph.D. In her affidavit, Dr. Lundberg-Love states that she believes
Feldman suffers from Bipolar I disorder and indicates that she
bases her diagnosis in part on her review of Dr. Glass's records.
32. See State's Original Answer to
Application for Writ of Habeas Corpus, Ex parte Feldman, No.
WR-66691-01, 2007 WL 1139450, Exhibit A, Affidavit of Jim Oatman (Tex.Crim.App.
Nov. 9, 2001).
33. See id. at 43-44, 48.
34. See Court's Findings of Fact and Conclusions of Law, supra
note 3, at 19, 26-27. The CCA also determined that Feldman could
not show prejudice in light of the overwhelming evidence of his
guilt and prior bad acts. See id. at 37-46. We do not address the
correctness of the CCA's prejudice determination in this opinion,
as the district court upheld the CCA's opinion on the threshold
ground that its deficiency determination was reasonable. See
Feldman v. Thaler, 2011 WL 1666937, No. 3:07-CV-1284-P, at *19-20
35. See Court's Findings of Fact
and Conclusions of Law, supra note 3, at 20 (quoting Dowthitt v.
Johnson, 230 F.3d 733, 748 (5th Cir.2000)).
See id. at 33.
37. See Brief in Support of
Petition for Writ of Habeas Corpus, Feldman v. Thaler, No.
3:07-CV-1284-P, 2011 WL 1666937 (N.D.Tex. Apr. 17, 2008), at 19.
38. See id. at 22-23.
39. See Feldman v. Thaler,
No. 3:07-CV-1284-P, 2011 WL 1666937, at *11 (N.D.Tex.2011).
40. See id.
41. See Petitioner-Appellant's
Brief, supra note 1, at 34-36.
42. See id. at
43. The district court suggested
that Mr. Oatman could have omitted the 1997 diagnosis as "double
edged" evidence that tended to demonstrate Feldman's future
dangerousness, but Mr. Oatman's mitigation evidence already risked
the boomerang effect to which the district court alludes. See
supra nn. 25-26. Indeed, as then-Judge McConnell of the Tenth
Circuit suggested in a 2008 opinion, while presenting generalized
evidence of a defendant's mental disorder risks merely underlining
his future dangerousness, introducing evidence of a specific
diagnosis — particularly of a treatable condition like bipolar
disorder — can avoid this danger by demonstrating that defendant's
disorder is remediable with appropriate medication. See Wilson v.
Sirmons, 536 F.3d 1064, 1093-94 (10th Cir.2008).
44. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1407,
179 L.Ed.2d 557 (2011) (internal quotation marks and citations
45. It bears mentioning that Mr.
Oatman was a veteran criminal defense lawyer at the time he
represented Feldman, having served as lead counsel in hundreds of
jury trials. See State's Original Answer to Application for Writ
of Habeas Corpus, supra note 32, Exhibit A, Affidavit of Jim
Oatman. Before Mr. Oatman became a defense attorney, he spent nine
years as a Dallas County Assistant District Attorney. Id. Mr.
Oatman has prosecuted and defended a number of death penalty
46. See Petitioner-Appellant's Brief,
supra note 1, at 36, 39; see also Richard G. Dudley, Jr. & Pamela
Blume Leonard, Getting It Right: Life History Investigation as the
Foundation for a Reliable Mental Health Assessment, 36 Hofstra
L.Rev. 963, 984 ("Rendering a diagnosis ... is virtually never a
sufficient response to the legal question(s) presented to a mental
health expert who testifies [in a death penalty case]. Although
supplemental experts might only be asked to render or confirm a
specific diagnosis, at least one of the mental health experts will
need to then link that diagnosis to the legal questions posed.");
John M. Fabian, Death Penalty Mitigation and the Role of the
Forensic Psychologist, 27 Law & Psychol. Rev. 73, 80, 87 (2003)
(emphasizing that death penalty counsel seeking to use a
defendant's mental disorder as mitigating evidence must have an
expert to define and explain the diagnosis to the jury and
associate it with the defendant's crime).
For example, cross-examination could have revealed the potentially
harmful fact that Feldman refused medication after his 1997
diagnosis. See Court's Findings of Fact and Conclusions of Law,
supra note 3, at 16-17; cf. Smith v. Quarterman, 471 F.3d 565, 576
(5th Cir.2006) (holding that trial counsel reasonably omitted
mitigating expert testimony, as the expert "would have been
subject to damaging cross examination"); Paul J. Bruno, The
Mitigation Specialist, Champion Magazine, June 2010, at 26,
available at http://www.nacdl.org/Champion.aspx?id=14626 (noting
that putting a mitigation specialist on the stand will generally
"open up his or her entire work product to discovery by the
prosecution" and may expose the expert to damaging
cross-examination.) In this regard, we note that Feldman never
claims Dr. Glass would have been available to testify to his 1997
diagnosis at trial. See Petitioner-Appellant's Brief, supra note
1, at 35-36, 39. Indeed, Feldman's brief appears to concede that
trial counsel would have had to obtain a different expert to
sponsor the diagnosis. See id.
Application for Writ of Habeas Corpus, supra note 29, at 52; Soria
v. State, 933 S.W.2d 46, 54 (Tex.Crim.App.1996) ("By introducing
psychiatric testimony obtained by the defense from a psychiatric
examination of the defendant, the defense constructively puts the
defendant on the stand and therefore the defendant is subject to
psychiatric examination by the State in the same manner." (quoting
Battie v. Estelle, 655 F.2d 692, 702 n. 22 (5th Cir.1981))); Smith
v. Quarterman, 471 F.3d 565, 576 (5th Cir.2006) (holding that
trial counsel reasonably omitted mitigating expert testimony, as
the expert "would have been subject to damaging cross
examination," and as it "would have led to rebuttal and more
damaging evidence" from the state); see also ABA Guidelines for
the Appointment and Performance of Defense Counsel in Death
Penalty Cases 10.11.G (rev. ed. Feb. 2003) ("In determining what
presentation to make concerning penalty, counsel should consider
whether any portion of the defense case will open the door to the
prosecution's presentation of otherwise inadmissible aggravating
49. Indeed, on January 16, 2001,
shortly after Feldman's habeas counsel procured a Bipolar I
diagnosis, a Texas Department of Corrections clinician
administering a follow-up psychiatric evaluation concluded Feldman
showed no signs of a mental disorder. See State's Original Answer
to Application for Writ of Habeas Corpus, supra note 32, Exhibit
B, TDC Psychiatric Notes. The clinician noted that "when told that
[his habeas counsel's] tests had reportedly shown that he had a
bipolar disorder [Feldman] was quite surprised and did not know
why he was being called that." Id. After speaking with Feldman
about his difficult childhood, his history of substance abuse and
mental health issues, and his current life in prison, the
clinician concluded: "no chronic symptoms of psychosis or
emotional illness noted. Memory intact, no signs of mania and no
signs of depression noted, cooperative, pleasant, groomed
appropriately, thoughts goal directed. Insight and abilities for
reasoning and judgment are all within normal limits ... no
50. See Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674
51. See Beck v. Alabama, 447 U.S. 625,
642-43, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
53. See East v. Scott, 55 F.3d 996, 1005
54. See Aguilar v. Dretke, 428
F.3d 526, 531 & n. 2 (5th Cir.2005).
Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993).
56. See Tex. Penal Code § 19.03(a)(7).
Corwin v. State, 870 S.W.2d 23, 28 (Tex.Crim.App.1993).
58. See Feldman v. State, 71 S.W.3d 738, 753-54
(Tex.Crim.App.2002). The CCA explained that it had previously
defined the statutory phrase "same criminal transaction" as "a
continuous and uninterrupted chain of conduct occurring over a
very short period of time ... in a rapid sequence of unbroken
events." See id. at 752-53.
59. See id. at 754.
60. See id. at 753-54.
61. See Brief in Support of Petition for Writ of Habeas Corpus,
supra note 37, at 9 ("The truth is that the jury might well have
had doubts about whether Feldman's conduct was a part of one
`scheme or course of conduct' based on a common understanding of
62. Id. at 9-11.
63. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at
*4 (N.D.Tex.2011) (quoting Cordova v. Lynaugh, 838 F.2d 764, 767
(5th Cir.1988)) (internal quotation marks omitted).
64. See id. at *4.
65. See id. at *5-6.
66. See id. at *6.
67. Cf. Parker v. Matthews,
___ U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) ("[C]ircuit
precedent does not constitute clearly established law as
determined by the Supreme Court") (internal quotation marks
68. Indeed, and though we need not
decide for purposes of this opinion, the district court should
arguably have reviewed Feldman's claim under the more deferential
standard of § 2254(e)(1). The CCA made a factual determination
that the evidence required a rational juror to conclude that
Feldman's murders were "pursuant to the same scheme or course of
conduct." Cf. De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th
Cir.1987) (holding that the determination of whether a reasonable
juror could have found an element of a crime satisfied is
"primarily factual"). Arguably, the CCA's determination should
have thus enjoyed a presumption of correctness rebuttable only by
clear and convincing evidence of error. See 28 U.S.C. §
69. See Brief for
Petitioner-Appellant, supra note 1, at 21 ("In the present
context, [the] question is simply whether rational jurors could
have believed from the uncontroverted evidence of Feldman's
conduct that he did not commit `serial' murders or that the
murders he committed were not otherwise pursuant to a single
`scheme o[r] course of conduct.' The question practically answers
itself. Not only were the jurors authorized by the court's charge
to do just that; it was also well within rational discretion for
them to do so in fact, based on the ordinary or technical meaning
of the applicable words and phrases.").
id. at 4.
71. See id. at 21.
72. See Beck v. Alabama, 447 U.S. 625, 642-43, 100 S.Ct. 2382, 65
L.Ed.2d 392 (1980).
73. In fact, Feldman's
interpretation of Beck conflicts directly with Texas and Fifth
Circuit precedent. See Arevalo v. State, 970 S.W.2d 547, 549
(Tex.Crim.App.1998) (holding that a defendant is not entitled to a
lesser-included offense instruction unless "there is evidence
which, if believed, refutes or negates every theory which elevates
the offense from the lesser to the greater"); East v. Scott, 55
F.3d 996, 1005 (5th Cir.1995) (holding that defendant is only
entitled to a lesser-included offense instruction "if the jury
could rationally acquit on the capital crime and convict for the
74. See 391 U.S. 510, 512,
523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
See id. at 518, 523, 88 S.Ct. 1770.
76. See 469
U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
77. Id. at 424-26, 105 S.Ct. 844.
(internal quotation marks omitted).
v. Brown, 551 U.S. 1, 20, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007).
80. Reporter's Record, supra note 27, vol. 21, at 114.
81. Id. at 115.
82. Id. at 129-30.
83. Id. at 130.
84. See Feldman v. State, 71
S.W.3d 738, 750 (Tex.Crim.App.2002).
in Support of Petition for Writ of Habeas Corpus, supra note 37,
86. See Feldman v. Thaler, No.
3:07-CV-1284-P, 2011 WL 1666937, at *8-9 (N.D.Tex.2011).
87. See Uttecht v. Brown, 551 U.S. 1, 8-9, 127 S.Ct. 2218, 167
L.Ed.2d 1014 (2007).
Petitioner-Appellant's Brief, supra note 1, at 28-29; see also
Gomez v. Quarterman, 529 F.3d 322, 332 (5th Cir.2008) (upholding
state court's exclusion of juror who gave inconsistent responses).
89. Cf. United States v. Jackson, 549 F.3d 963, 973 (5th Cir.2008)
(upholding federal district court's exclusion of juror, as though
juror's voir dire responses were initially inconsistent, she
ultimately stated that she would not vote for death).
90. In fact, the Third Circuit has held that the arguably more
deferential § 2254(e)(1) standard applies to a trial court's
determination of jury bias. See Martini v. Hendricks, 348 F.3d
360, 363 (3d Cir.2003). Indeed, the Supreme Court's pre-§
2254(e)(1) jurisprudence suggests that § 2254(e)(1) should apply.
See Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982) (holding that a trial judge's findings relating
to juror bias "are presumptively correct under 28 U.S.C. §
2254(d)"). But see Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct.
1639, 6 L.Ed.2d 751 (1961) (holding that juror bias is a "mixed
[question of] law and fact" and that therefore the federal habeas
court must "independently evaluate the voir dire testimony").
However, as we find that jurists of reason could not debate the
district court's denial of relief under § 2254(d), we do not
determine whether the district court should have applied §