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Robert Gene GARZA

 
 
 
 
 

 

 

 

 


A.K.A.: "Bones"
 
Classification: Mass murderer
Characteristics: Tri-City Bombers gang member - Drugs robbery
Number of victims: 10
Date of murders: September 5, 2002 / January 5, 2003
Date of arrest: January 26, 2003
Date of birth: May 15, 1982
Victims profile: Maria De La Luz Bazaldua Cobarrubias, Danitzene Lizeth Vasquez Beltran, Celina Linares Sanchez, Lourdes Yesenia Araujo Torres / Jimmy Edward Almendariz, 22; brothers Jerry Eugene Hidalgo, 24, and Ray Hidalgo, 30; half brothers Juan Delgado Jr., 32, and Juan Delgado III, 20; and Ruben Rolando Castillo, 32 (rival gang members)
Method of murder: Shooting
Location: Harris County, Texas, USA
Status: Sentenced to death on December 18, 2003. Executed by lethal injection in Texas on September 19, 2013
 
 
 
 
 
 

photo gallery

 
 
 
 
 

The United States Court of Appeals
For the Fifth Circuit

 

Robert Gene Garza v. Rick Thaler, Director

 
 
 
 
 
 

Name

TDCJ Number

Date of Birth

Garza, Robert

999466

05/15/1982

Date Received

Age (when Received)

Education Level

12/18/2003

20

08

Date of Offense

Age (at the Offense)

County

09/05/2002

20

Harris

Race

Gender

Hair Color

Hispanic

Male

Black

Height

Weight

Eye Color

05'07"

147

Brown

Native County

Native State

Prior Occupation

Hidalgo Co.

Texas

Laborer

Prior Prison Record

#1090018 on a 2 year sentence from Hidalgo County for escape.

Summary of incident


On 09/05/2003, in Hidalgo County, Texas, Garza and co-defendants killed four Hispanic females by firing into the victims' car. 

It was later discovered that Garza and his co-defendants were members of the Tri City Bomber Gang, carrying out orders to murder one of the females who was a witness to their weapons activity.
 

Co-defendants


M. Reyna, G. Guerra, R. Medrano, A. Medrano, J. Cordova, J. Juarez, M. Bocanegra, S. Solis, J. Martinez, J. Ramirez, H. Garza, R. Saucedo, R. Cantu
 

Race and Gender of Victim

Hispanic/Females

 
 
 
 
 
 

Texas Department of Criminal Justice

Offender Information

Name: Garza, Robert
TDCJ Number: 999466
Date of Birth: 05/15/1982
Date Received: 12/18/2003
Age (when Received): 20
Education Level (Highest Grade Completed): 08
Date of Offense: 09/05/2002
Age (at the time of Offense): 20
County: Harris
Race: Hispanic
Gender: Male
Hair Color: Black
Height: 05'07"
Weight: 147
Eye Color: Brown
Native County: Hidalgo Co.
Native State: Texas

Prior Occupation
Laborer

Prior Prison Record
#1090018 on a 2 year sentence from Hidalgo County for escape.

Summary of Incident
On 09/05/2003, in Hidalgo County, Texas, Garza and co-defendants killed four Hispanic females by firing into the victims' car. It was later discovered that Garza and his co-defendants were members of the Tri City Bomber Gang, carrying out orders to murder one of the females who was a witness to their weapons activity.

Co-Defendants
M. Reyna, G. Guerra, R. Medrano, A. Medrano, J. Cordova, J. Juarez, M. Bocanegra, S. Solis, J. Martinez, J. Ramirez, H. Garza, R. Saucedo, R. Cantu

Race and Gender of Victim
Hispanic/Females

 
 

Texas Attorney General

Media Advisory: Robert Gene Garza scheduled for execution

September 17, 2013

AUSTIN – Pursuant to an order entered by the 398th District Court in Hildago County, Robert Gene Garza is scheduled for execution after 6 p.m. on September 19, 2012.

In 2003, a Hildago County jury found Garza guilty of murdering Maria De La Luz Bazaldua Cobbarubias, Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez, and Lourdes Yesenia Araujo Torres.

FACTS OF THE CRIME

The United States Court of Appeals for the U.S. District Court for the Southern District of Texas described the murder as follows:

At around midnight on September 4, 2002, Maria De La Luz Bazaldua Cobbarubias headed home from her job as a barmaid at Garcia’s Bar in Donna, Texas. She offered to give five coworkers – Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez, Lourdes Yesenia Araujo Torres, Karla Espino Ramos and Magda Torres Vasquez – a ride to the mobile home where they all lived. Another woman – Nora Rodriguez – remained behind to close the bar. Ms Cobbarubias did not notice a vehicle following them to their home on Valley View Road. After she parked the car near their trailer, gunfire erupted.

Eyewitnesses saw the vicious assault on Ms. Cobbarubbias’ car, though no one could conclusively identify the shooters. Witnesses saw two men wearing black repeatedly fire into the vehicle. The police later recovered sixty-one spent shell cases from the scene. All but one of the women suffered gunshot wounds. Four of them – Cobbarubias, Beltran, Sanchez, and Torres – died.

After riddling the victims’ car with bullets, the men got into the vehicle that had followed the women and sped away. The gunmen abandoned their vehicle a few miles away after it had run out of gas.

Police investigation uncovered many false leads and unsubstantiated rumors about the four murders. Their attention soon turned to members of a local criminal gang involved in murder, robbery, drug running, assault, and theft. Information led the police to believe that a leader of the [local criminal gang] who was serving time for attempted murder had ordered a hit on Ms. Rodriguez because she had witnessed a shooting in Garcia’s Bar and later testified against him. In carrying out that hit, the gunmen who intended to kill Ms. Rodriguez slaughtered the victims by mistake.

Informants pointed to Garza as a possible gunman. Garza was a member of the [local criminal gang] with tattoos attesting to his gang affiliation. The police believed that Garza had also been involved in the January 4, 2003, gang-related killing of six people in nearby Edinburg, Texas. In that crime – known colloquially as the Edinburg massacre – the [local criminal gang] orchestrated a fake police assault on two houses in a failed attempt to steal drugs.

On January 24, 2003, the police arrested Garza and questioned him about his involvement in the Edinburg massacre. He confessed. Two days later, an officer from the Hidalgo County Sheriff’s Office interviewed him about his role in the Donna killings. Garza wrote a statement confessing that he helped prepare for the murders and followed the gunmen to the trailer house, but he did not admit to being one of the shooters. Garza wrote that he and another man “received instruction[s] to carry out a hit that resulted in the death of four [women]. The hit was organized for us.” After getting vehicles and a gun, Garza followed another car to the crime scene, saw two fellow gang members get out, and “then shots rang out.” The two cars drove away, until the car Garza was in broke down. The gang leader who ordered the hit “was mad ‘cause it wasn’t done right.”

PROCEDURAL HISTORY

In September 2002, a Hildago County grand jury indicted Garza for murdering Maria De La Luz Bazaldua Cobbarubias, Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez, and Lourdes Yesenia Araujo Torres.

A Hildago County jury found Garza guilty of capital murder. After the jury recommended capital punishment, the court sentenced Garza to death. Judgment was entered Dec. 17, 2003.

On April 31, 2007, the Texas Court of Criminal Appeals rejected Garza’s direct appeal and affirmed his conviction and sentence. Garza did not appeal to the United States Supreme Court.

Garza also sought to appeal his conviction and sentence by filing an application for a state writ of habeas corpus with the Texas Court of Criminal Appeals. On Sept. 10, 2008, the high court denied Garza’s application for state habeas relief.

On Oct. 2, 2009, Garza attempted to appeal his conviction and sentence in the federal district court for the Southern District of Texas. The federal district court denied his petition for federal writ of habeas corpus on Sept. 15, 2011.

On Aug. 27, 2012, the U.S. Court of Appeals for the Fifth Circuit denied Garza’s request for certificate of appealabilty on his federal writ of habeas corpus.

On Feb. 19, 2013, the U.S. Supreme Court rejected Garza’s appeal when it denied his petition for a writ of certiorari off federal habeas.

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 with 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 penalty phase of Garza’s trial the jury heard that was ordered to the Hidalgo County Youth Village, a residential facility for boys in February 1997. And later that year, Garza was ordered into the custody of the Texas Youth Commission (TYC) for burglary of a habitation. In February 2002, Garza was sent to the Texas Department of Correction (TDC) for escape. Several employees with the Hidalgo County Sheriff’s Department testified to Garza’s attempted escape from county jail in April 2003.

 
 

Texas Man Executed for Ambush That Killed 4 Women

By Michael Graczyk - Associated Press

September 20, 2013

A former South Texas street gang member was executed Thursday evening for his involvement in a gang ambush in which four women were gunned down 11 years ago.

Robert Gene Garza, 30, became the 12th condemned inmate executed this year in Texas, which carries out capital punishment more than any other state.

Garza smiled and blew a kiss to friends and relatives as they entered the death chamber. In a brief final statement, he thanked them for coming and told them he loved them.

"I know it's hard for you," he said. "It's not easy. This is a release. Y'all finally get to move on with your lives."

He took several deep breaths as a lethal dose of pentobarbital began flowing into his arms, then began snoring. All movement stopped within less than a minute. He was pronounced dead 26 minutes later, at 8:41 p.m. CDT.

A member of a Rio Grande Valley gang known as the Tri-City Bombers even before he was a teenager, Garza insisted a statement to police acknowledging his participation in the September 2002 shootings in Hidalgo County was made under duress and improperly obtained.

But prosecutors said Garza orchestrated the gang's plan to silence the women, who Garza thought had witnessed another gang crime, and was present when several gang members opened fire on the women when they arrived at their trailer park home after work at a bar.

"I really didn't have anything to do with the scenario the state was providing," Garza told The Associated Press recently from death row. "I guess since we are gang members, they got me involved through the gang.

"I think they were just trying to close his case ... and they needed somebody."

Evidence later would show the women were killed by mistake. The gang member in the other crime never went to trial because he accepted a plea deal and prison term.

Garza, who was arrested in late January 2003, was convicted under Texas' law of parties, which makes a non-triggerman equally culpable. Evidence showed Garza was a gang leader, told his companions how to do the killings, was present when the shootings took place and "in all likelihood was a shooter but is downplaying his part," Joseph Orendain, the Hidalgo County assistant district attorney who prosecuted him, said this week.

In February, the U.S. Supreme Court refused to review his case. His lawyer, Don Vernay, said appeals were exhausted.

Garza filed his own last-day appeals Thursday to the high court, delaying his punishment by some two hours until the justices ruled. In his appeals, he argued his trial attorneys failed to obtain from his mother testimony jurors should have been allowed to hear that he stayed in the gang because he feared retaliation if he quit. He also contended his trial court judge earlier this week improperly refused his request to withdraw his execution date.

Garza argued the state should assure him the lethal dose of pentobarbital to be used in his punishment was chemically effective and obtained legally. Texas prison officials have said their inventory of pentobarbital is expiring this month.

Texas prison officials said earlier Thursday they will continue to use the same drug but wouldn't say how the state will replace its supply.

"We have not changed our current execution protocol and have no immediate plans to do so," Texas Department of Criminal Justice spokesman Jason Clark said in a statement to The Associated Press.

Garza also was charged but never tried for participating in what became known in the Rio Grande Valley as the Edinburg massacre, the January 2003 slayings of six people at a home in the city.

In the case that sent him to death row, Garza was convicted of two counts of capital murder for the slayings of the four women. Evidence showed they were living in the U.S. without legal permission just outside Donna, about 15 miles southeast of McAllen.

In his statement to investigators, which Garza insisted was coerced, he said he carried out the "hit" with three other gunmen in two vehicles who opened fire on six women in their parked car. Killed were Maria De La Luz Bazaldua Cobbarubias, Dantizene Lizeth Vasquez Beltran, Celina Linares Sanchez and Lourdes Yesenia Araujo Torres. Two others survived.

Another Texas inmate is set to die next week.

 
 

Gang member awaiting Thursday execution: 'I want to live'

MySanAntonio.com

September 19, 2013

Eleven years to the day that four women were gunned down outside their trailer home by several members of one of the most feared gangs in the Rio Grande Valley, one of the men convicted of the crime agreed to talk about his life and the time he had left before his date with the executioner.

Tri-City Bomber Robert “Bones” Garza was convicted in December 2003 of two counts of capital murder for his part in a shooting that killed four women in Donna the year before. Since then, Garza appealed the verdict, getting one of the sentences reduced to life in prison.

The other death sentence remains in effect. The 31-year-old is set to die Thursday evening.

Locked in a small cell with a glass partition, the man known in the streets of Pharr as “Bones” picked up a telephone receiver Sept. 5, 2013, and talked about what he was doing with the time he had left in the infamous death row wing at the Allan B. Polunsky unit in Livingston, Texas.

“My wife and son just left; they had come to visit me a little while ago,” Garza said. “Here I am talking about what I want her to do with my body after I die. It’s hard talking to her about it while my son is right there, and I know I won’t be able to be there for him.”

Not being there for 10-year-old Robert Jr. is his biggest fear because Garza worries that his son will follow in his footsteps.

“My mom was a single mom. I spent a lot of my time out on the street. That’s how I got started in gangs,” he said. “Now my wife (Jennifer) is going to be a single mom, and I won’t be to keep him straight, to show him what’s right.”

On Sept. 5, 2002, six women had finished working their shift at Garcia’s Bar in Donna, where they worked as barmaids and had been paid between $2 to $3 for each beer that a customer bought under their care.

As the women drove home, a small SUV followed them to a mobile park on Valley View Road, about 1 mile south of Business 83. There, the women were ambushed by a man with an AK-47 and a man with a Tec-9 pistol in what would come to be known as the Donna Killings.

“The AK-47 and the Tec-9 were just going off non-stop as they walked towards the car; they riddled that car with bullets,” said Joseph Orendain, an Hidalgo County assistant district attorney who led the prosecution against Garza and worked in the prosecution of several other members of the Tri-City Bombers for their role in the murders.

“We counted close to 70 rounds that had been fired at the vehicle,” Orendain said. “When authorities arrived, there was a body outside the car, and three bodies inside the car on top of the young lady who survived.”

Karla Espino survived three gunshots, while Magda Torres survived the ordeal unscathed and hid until the next day — first under the bodies of her friends, and then under a nearby trailer home.

The women had been killed as part of an ordered hit by TCB member Jesus Carlos “Roach” Rodriguez, who wanted to silence Mercedes “Hilda” Quintero, who was the bar manager and a witness to a shooting, court records show.

Despite the brutality with which the four women were slain, the crime was completely senseless, Orendain said.

“Roach had already cut a deal and pleaded guilty; there was no need to do the hit,” the prosecutor said. “That was the dumbest part in this whole thing. The murder of these women was completely senseless.”

Garza was originally arrested in connection with a Jan. 5, 2003, hit in Edinburg in which several Tri-City Bombers burst into a home and fatally shot six men who were inside. Some of the men were part of a rival street gang. That attack came to be known as the Edinburg Massacre.

During the subsequent investigation, authorities arrested close to a dozen other members of the TCB. Their prosecution and conviction took a considerable amount of planning and strategizing.

“Based on the evidence that we had, we had to decide our best angle to get the strongest case against each defendant,” Orendain said. “Even though we had arrested Bones for the Edinburg Massacre, we ended up dismissing those charges and prosecuting him for the Donna Killings. For example his co-defendant Mark Anthony Reyna, aka Snoop, we dismissed the charges on this case and made him take a life sentence for a series of aggravated robberies.”

As in all cases, prosecutors sought lengthy sentences to get justice for the victims. However, in the Donna Killings, the death penalty was sought against Garza because of the severity of the crime, his criminal history and the fact that he presented a future danger to society, Orendain said.

“I’ve been asked if I feel bad for putting people on death row,” he said. But “I didn’t put them there; their actions did.”

When asked about his lifestyle as a Tri-City Bomber, Garza swelled with pride as he talked about the crazy days of his youth, beginning with elementary school in Pharr. Garza dropped out by seventh grade, already a full-blown gang member.

“We were just kids having fun, hanging out, boosting cars and smoking pot. It wasn’t until I started getting arrested that things got violent,” he said, referring to his time in various juvenile detention centers, including the Evins facility in Edinburg.

After he broke out of Evins at age 17, he was moved into the adult prison system.

“Inside things are different; it’s no longer about gang colors or friends,” he said. “The rivalries are more serious and pretty violent, both in juvie and then even more in prison.”

Once Garza graduated into adult prisons, his education in the criminal life was accelerated, and soon he was in and out of jail for a plethora of crimes.

In the wake of his capital murder conviction, he has spent 23 hours a day locked in a small cell. He gets one hour of recreation each day.

Asked whether in the past he would’ve returned to gang life had he been exonerated and freed, his response was clear: “Absolutely.”

But despite his pride in the gang life, 10 years on death row appear to have changed the way he sees life and his criminal past.

“If I could go back and do it over, that is one aspect of my life that I would change,” Garza said. “Those guys (TCB members) were my family. As a kid, I spent more time with them than I did at home. I hold no hate to anyone, but I do hate the life that led me here.”

Asked about the Donna Killings and the Edinburg Massacre, Garza maintains his innocence.

“I didn’t kill anybody. I am here because of the actions of others,” he said. “It was never proven that I fired a gun. I am here because someone gave them my name and it fit into the theory that the state presented, but it wasn’t true. I was convicted because I am a gang member.”

When asked what he would say to the relatives of the women who were gunned down — relatives who believe him to be the man who killed their loved one — Garza said he was very sorry.

“I would like to offer an apology, not because I did it but because this whole crime was senseless,” Garza said. “Those women did not deserve to die like that in a senseless fashion.

“I would hope that the family forgives me because hate is a poison,” he said. “If you keep it, it will eat you up from the inside.”

As Garza continued to count the days until his execution, where a lethal injection would make him the 12th inmate to die in death row this year, he said he longed for an opportunity to live on, even if behind bars. Two weeks before his execution date, Garza asked for clemency from Gov. Rick Perry.

His execution is still set for Thursday evening.

“What can be gained from my death, to protect society?” Garza asked. “I have been here 10 years and haven’t hurt anyone. ... I feel that I can help reach those teens out there that look up to me and tell them that it’s not worth it.

“I want to live.”

 
 

Tri-City Bomber captain sentenced for murders

The Monitor

August 16, 2005

Humberto "Gallo" Garza III had hoped that the religion he found during the 2 years he spent waiting for his capital murder trial would save his life.

Instead, a 12-member jury on Wednesday took 3 hours to send the suspected Tri-City Bomber captain to death row for planning the murders of 6 men on Jan. 5, 2003.

One day earlier, the same jury found Garza, 30, guilty on of 1 count murder and one count of capital murder on charges he planned and coordinated a drug raid at 2915 E. Monte Cristo Rd. in Edinburg.

Garza pleaded not guilty to the charges that he planned to steal a large amount of marijuana thought to be in the house, called a group of gang members together and drove them to the house. Police said he waited in a vehicle nearby as the masked men charged the home with assault weapons and shot each of the six men several times.

Family members of Garza and the victims, and even some jurors cried as 370th state District Judge Noe Garza formally sentenced Garza to death row, explaining the sentence allows for an automatic appeal, and Garza will be appointed two new lawyers to help his case. As deputies places handcuffs on Garza, he hugged his attorneys, Ralph Martinez and Keno Vasquez, thanking them.

He then turned around and faced family members who filled the courtroom sobbing.

"I want to tell my family I love them. I love them deeply and I didnt kill nobody," he said. "Dont worry. I have faith in God that Ill be back and I will win this case."

As deputies escorted him out of the courtroom, he smiled at his family members and told them not to worry and to "keep the faith."

They answered that they loved him and that God would have the final say. Martinez gave Garzas mother a handful of letters Garza had written for his relatives.

Jurors had decided that Garza was a continual threat to society and had caused or intended the deaths of the six men. They also did not find any mitigating circumstances to justify giving him a life sentence.

Garza is the 2nd man to receive the death penalty in connection with the slayings. In December, a jury sentenced Juan Raul Navarro Ramirez to die for the slayings. Another man charged in the murder, Robert Gene Garza, is already on death row for killing four Donna women in 2002. That slaying was also connected to the local gang, the Tri-City Bombers. There are six other waiting separate capital murder trials in Hidalgo county jail and two others charged have not been caught.

During the sentencing, Garzas attorneys had argued that Garza had a change of heart and given his life to God while in prison. While others around him argued the fate of his life, Garza spent most of the day with his head bowed, resting on his folded arms.

But Hidalgo County Assistant District Attorneys Murray Moore and Joseph Orendain outlined Garzas criminal history to prove he remained a threat.

Garza first entered the Texas Youth Commission at age 16. In July 1991, he was again arrested 4 days before his 17th birthday for stabbing a man. He was released 3 months later on bond. He pleaded guilty to the stabbing, claiming it was in self-defense against a high school rival who started a fight with him.

He was in prison from 1992 until 2002 on those charges as well as with burglarizing a house.

In April 2002, Garza was released from prison but was to be on parole until 2010.

Jesusa Farias, Garzas parole officer, testified that Garza performed well during his parole up until his arrest and had found a job, started alcohol and substance abuse treatment and had begun paying restitution.

Garza had identified anger problems, a need for companionship and associations with negative influences but never mentioned being a member of a gang or asked for help getting out, she said.

Hidalgo County Detention Center Lt. Jack Alaniz testified that Garza did not identify himself as a gang member and was not classified as a gang member in the detention center. He said Garza frequently participated in Bible studies and prayed with prison ministers.

Moore asked if he had heard the saying that "Jesus and Elvis live at the jail."

Alaniz said it was a familiar phrase to describe inmates who "go to jail, they start reading the Bible and get religious. Thats common."

But Garzas religious devotion appeared sincere, testified several ministers that met with him in the jail. Garza studied the Bible often and had begun a correspondence course learning about scripture, said the jails rehabilitation counselor, Juan Parro.

Baptist minister Eduardo Luna said he met with Garza often to discuss scripture and felt Garzas religious interest was genuine.

"I tend to pull away if I dont see a sincerity," he said.

Even before his arrest for the Edinburg murders, Garza had been attending church, alone or with his mother, said Elodia Davila, who counseled Garza at the substance abuse program required for his parole.

Throughout the trial, Garzas mother, Lydia, prayed for her son outside the courtroom and was allowed to see him briefly before the sentencing hearing.

She testified that she was married to his father, Humberto Garza Jr. for 15 years, most, of which Garzas father spent in prison. Her son did not have a good relationship with his father and did not see him very often.

"He was in prison. I was a single parent. He died in the hospice in a prison," Lydia Garza said. "He wasnt around much for my son or for me."

Lydia Garza said her son was "devastated" about his fathers death, which occured a year before the Edinburg murders.

She said her son went to prison at 16 and was 27 when he came out. She knew his friends before he was jailed and did not know him to be a member of any gang.

"Ive always had a good relationship with him," she said.

Under cross-examination, Lydia Garza said she had tried to obtain counseling for her son when he was in trouble in high school. She allowed him to live with her when he was released from prison and helped him pay for half his payments on a pickup truck.

After his mother testified, she told Garza that she loved him as she exited the courtroom. He looked back with tears in his eyes as she left.

In his closing arguments, Martinez asked the jury to give Garza a life sentence that would make him 71 years old before he would be eligible for parole.

He noted that during the decade Garza spent in prison, he had few behavior problems, and none after 1996. Martinez also pointed out that Garza helped police after his arrest and gave them information that helped them arrest other people involved.

"Maybe the Bible study is a Jesus and Elvis con game, but maybe he feels the moral responsibility," Martinez said.

Prosecutors argued that Garzas religious study made him a hypocrite because he knew right and wrong, yet he went along and planned the Monte Cristo raid.

"Hes worse than the man who pulled the trigger. He executed the plan and he executed the 6 individuals," Orendain said, showing jurors pictures of the victims: brothers Jerry Hidalgo and Ray Hidalgo; half brothers Juan Delgado Jr. and Juan Delgado III; Ruben Castillo and Jimmy Almendariz.

Graciella Delgados son and stepson were killed in the murders. She attended most of the trial.

"Im very content (with the verdict.) Thank God," she said in Spanish.

 
 

In The Court of Criminal Appeals of Texas

No. AP 74,935 & AP 75,597

Robert Gene Garza, Appellant
v.
The State of Texas

On Direct Appeal from Hidalgo County

Price, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Womack, J., dissented.

O P I N I O N

In December 2003, the appellant was convicted of two counts of capital murder. (1) Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced the appellant to death for each count. (2) Direct appeal to this Court is automatic. (3) The appellant raises five points of error. Finding no merit in any of these points of error, we will affirm the judgment of the trial court with respect to the conviction for capital murder.

STATEMENT OF FACTS

On the evening of September 4, 2002, Maria De La Luz Bazaldua Cobarrubias, Danitzene Lizeth Vasquez Beltran, Celina Linares Sanchez, Lourdes Yesenia Araujo Torres, Karla Espino Ramos, and Magda Torres Vasquez were working at Garcia's Bar in Donna, Texas. When the bar closed at midnight, Cobbarubias gave the other women a ride to their trailer home. She drove south on Business 83, turned onto Valley View Road, and then parked close to the women's trailer. Before anyone had a chance to get out of the vehicle, shots were fired. Cobbarubias, Beltran, Sanchez, and Torres sustained multiple gunshot wounds and died from their injuries. Ramos sustained gunshot wounds to her arm and leg, but survived. Vasquez did not sustain any physical injuries.

Alejandro Martinez of the Donna Police Department was the first officer to arrive at the scene. He determined that the shooting had actually occurred just outside the Donna city limits and contacted the Hidalgo County Sheriff's Office. Several witnesses told Martinez that a Chevrolet Blazer had been parked close to the trailer at the time of the shooting. The vehicle was white, had paper plates, and did not have any hubcaps.

Investigators with the Hidalgo County Sheriff's Office recovered sixty-one spent bullet casings from the trailer park, which were of two different sizes: 9 millimeter and 7.76 x 39 millimeter. Most of the casings were recovered from a driveway located directly behind where the victim's Pontiac Grand Am was parked. Investigators also impounded a Chevrolet Blazer a few miles from the trailer park. The vehicle was white, had paper plates, and did not have any hubcaps. It had been reported stolen a few days earlier. Several items of clothing that did not belong to the vehicle's owner were recovered from the vehicle, including a red bandana with white markings. The vehicle had run out of gas.

Juan Antonio Quintero, a neighbor, testified that he saw two people at the time of the shooting. One of them was short and "chubby" and the other one was tall and "skinny." Both of them were wearing black. He noticed that the short person was holding a gun that "looked like a TEC-9." He testified that he could not see their faces, but thought one of them "resembled" Vasquez's boyfriend, Jesse Munoz.

Carlos Villarreal, J.A. Quintero's guest, told investigators that he saw two people at the time of the shooting. One of them appeared to be between 5'10'' and 5'11'' and 160 pounds. The other person was 5'8'' and 250 pounds. The State introduced the appellant's booking sheet which showed that the appellant was 5'11'' and 160 pounds.

Investigator Juan Sifuentes testified that, because of information they had received, patrons at Garcia's Bar were suspected in the shooting. Ramos told investigators that Abraham Martinez Tienda, who had been in Garcia's Bar on the evening of the shooting, shot the women. Vasquez told investigators that she suspected her boyfriend, Juan Rudolfo Barrones, who had been in Garcia's Bar on the evening of the shooting. Another suspect was Antonio Francisco Conteras, because he had followed the victim's car to the trailer park on the evening of the shooting. Sifuentes testified that they investigated Tienda, Barrones, and Conteras, but could not find any evidence linking them to the shooting. They also investigated several other bar patrons and pursued tips they received from the Crime Stoppers program. However, this investigation did not lead anywhere, and after a few weeks they were left with no suspects.

In January 2003, Abraham Osequera and Marco Antonio Mendez told investigators that they believed that members from their criminal street gang, the TriCity Bombers, the "T.C.B.," could be involved. They gave investigators information pointing towards T.C.B. members Jesus Carlos Rodriguez and Mark Anthony Reyna. Also, investigators received information from J.A. Quintero and his aunt, Mercedes Quintero, implicating the T.C.B. Through further investigation, other T.C.B. members emerged as possible suspects including the appellant, Rudolfo Medrano, Guadalupe Guerra, and Ricardo Martinez.

The State's theory of the case was that J.C. Rodriguez, who was serving time for attempted murder, ordered "a hit" on Nora Rodriguez and M. Quintero because they had been called to testify against him, but that the wrong women were killed by mistake. (4) N. Rodriguez testified that she and M. Quintero witnessed J.C. Rodriguez commit the attempted murder on March 31, 2001, and were called to testify about the incident. To support this theory, the State introduced a judgment showing that J.C. Rodriguez was sentenced to twenty years' imprisonment for an attempted murder committed on March 31, 2001.

On January 26, 2003, the appellant was taken to the Hidalgo County Sheriff's Office. After receiving Miranda warnings and signing a waiver, the appellant gave a statement describing his own involvement in "a hit" which "resulted in the death of four Donna [wo]mans." The appellant explained that the "hit was organized for us" and that someone left a four-door "Cutlas[s] or Regal" at Plaza Mall to be used in "the hit." The appellant was "hoping it would be left alone," but on September 5, 2002, he received instructions "that the hit was to be carried out that day." At approximately 7:00 p.m., Martinez picked up the appellant and Reyna in a four-door vehicle. (5) The appellant saw that Martinez had an AK-47, a TEC-9, and a nine-millimeter handgun in the trunk of the vehicle. They picked up a fourth person, "Manny," and drove "around Donna to see the bar which was located on old [highway] 83." (6) Then they left Donna to pick up a "second vehicle," which had been stolen. The appellant and Reyna got into the second vehicle and waited in the "middle of nowhere" until they saw "them" coming. They saw two vehicles pass by, a "Grand Am" and Manny's and Martinez's vehicle, and followed them to "a big house" or an "apartment complex." Martinez and Manny got out of their vehicle and started shooting. The appellant saw that Manny "shot as he ran" and Martinez shot "as he [stood]." After the shooting, they left the scene and abandoned the four-door vehicle "in the middle of no[w]here." Then they left the weapons in the trash where they could pick them up the next day. They drove around in the second vehicle for a while until it "broke down," and they left on foot. Finally, the appellant stated that: "A[p]parently Rocha was mad 'cause it wasn't done right." (7)

Medrano, who kept weapons for the T.C.B., told investigators that he knew where the weapons used in the Donna shooting were located. He directed investigators to a black box he kept in his grandparents' house. Also, he directed investigators to the residence of fellow T.C.B. member Robert Zamora, Jr. Zamora subsequently took investigators to his friend Nicholas Montez's residence. Firearms specialist Timothy Counce testified that a TEC-9 gun, which had been seized at Medrano's grandparents' house, fired eighteen of the nine-millimeter cartridge casings found at the scene. Further, Counce testified that he had been unable to "identify or eliminate" three Chinese-manufactured SKS military assault rifles, which had been seized at Montez's residence, as having fired the 7.76 x 39 millimeter cartridge casings found at the trailer park. The SKS rifles could appear to be AK-47 rifles to the untrained eye.

Detective Roberto Alvarez testified that the T.C.B. was a highly organized criminal street gang that was connected with various crimes including murder, robbery, assault, burglary, and theft. Members identified themselves by the colors red and black; they often carried red bandannas, drove red cars, and wore red t-shirts. They commonly used a hand symbol and tattoos to show their affiliation with the gang. Alvarez testified that photographs depicting the appellant wearing red shirts and making the T.C.B. hand symbol confirmed his affiliation with the T.C.B., as did photographs of his tattoos. The tattoo photographs showed the words "Tri City Bomber" and the initials "T.C.B." on his chest, the words "tri" and "city" and a bomb with a fuse on his right shoulder blade, the initials "T.C.B." on his right leg, the nickname "bones" and a skull on his right arm, and a small bomb on his left arm. Over counsel's objection, the appellant was required to take off his shirt and display his tattoos to the jury.

FACTUAL SUFFICIENCY

In his fourth point of error, the appellant contends that the evidence was factually insufficient to support the jury's finding of guilt. In a factual-sufficiency review, we review all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. (8) A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." (9)

The appellant was indicted for two capital felonies. In count one, he was indicted for knowingly or intentionally causing the deaths of Celina Linares Sanchez, Lourdes Yesenia Araujo Torres, Danitzene Liseth Vasquez Beltran, and Maria De La Luz Bazaldua Cobbarrubias, by shooting them with a firearm, during the same criminal transaction. In count four, he was indicted for knowingly or intentionally causing the death of the same four individuals by shooting them with a firearm during the same criminal transaction as a member of a criminal street gang. The charge authorized the jury to convict the appellant if it found that either he shot the victims with a firearm or he acted with intent to promote or assist Mark Anthony Reyna, Guadalupe Guerra, and Ricardo Martinez in committing capital murder, and the appellant did then and there solicit, encourage, direct, aid or attempt to aid Reyna, Guerra, and Martinez in committing the offense. Because the jury was charged on the law of the parties, proof that the appellant actually fired the fatal shots is not necessary. (10) The appellant argues that the evidence was insufficient because "aside from the tainted and coerced confession, there is no lawfully obtained evidence, physical or otherwise, linking [a]ppellant to the shooting." (11) However, in evaluating whether the evidence is sufficient to sustain a conviction, we consider all the evidence that the trial judge permitted the jury to consider, including erroneously admitted evidence. (12)

In his statement, the appellant admitted that he carried out "a hit" with Martinez, Reyna, and Manny, which "resulted in the death of four Donna [wo]mans." On September 5, 2002, they went to a bar in Donna located "off old [highway] 83." They followed a "Grand Am" to a "big house" or "apartment complex." Martinez and Manny were in a four-door vehicle that had several weapons in its trunk, including an AK-47 and a TEC-9. The appellant and Reyna were in a second, stolen vehicle, which later "broke down." The appellant saw that Manny "shot as he ran" and Martinez "as he [stood]." Afterwards, they left the scene and abandoned both vehicles. They left the weapons in the trash so that they could retrieve them later.

The State presented corroborating evidence that a shooting took place in the early morning hours of September 5, 2002, in a trailer park located in Hidalgo County just outside the Donna city limits. At least sixty-one shots had been fired at a parked Pontiac Grand Am. There were six women inside the vehicle and four of them died. The women worked at Garcia's Bar, located off Business 83 in Donna, and had just returned from work when the shooting occurred.

The forensic evidence also corroborated the appellant's statement. Counce testified that a TEC-9 fired eighteen of the nine-millimeter casings found at the scene. Also, he testified that three SKS rifles, which looked like AK-47 rifles, could have fired some of the 7.76 x 39 millimeter casings found at the scene. This was consistent with the appellant's observation of an AK-47 and a TEC-9 in the shooters' trunk. Also, the State showed that the TEC-9 gun was recovered from T.C.B. member Medrano's grandparents' house and that Medrano stored weapons for the T.C.B.

The appellant complains that witnesses at the scene identified other suspects as the shooters. However, under the law of the parties, the State was not required to prove that the appellant was one of the shooters. Also, the State showed that several of the other suspects were eliminated through further investigation. Finally, the appellant actually matched one of the witness's description of one of the shooters.

The appellant also complains that he stated that they used a four-door Cutlass or Regal, but that the State proved that the shooters used a Chevrolet Blazer. He argues that investigators did not find any evidence linking him to the Chevrolet Blazer. However, the appellant described the use of two vehicles in his statement, and only one of them was identified. The unidentified second vehicle was described as a stolen vehicle that "broke down." The State showed that the Chevrolet Blazer was stolen and had run out of gas. The State also showed that the appellant was a member of the T.C.B., that members of the T.C.B. wore red bandannas to identify themselves, and that a red bandanna not belonging to the vehicle's owner was recovered from the Chevrolet Blazer.

Although the State's evidence does not affirmatively show the appellant fired the fatal shots, at the very least the evidence established beyond a reasonable doubt his participation in the offense as a party. The evidence was not so weak that the verdict is clearly wrong and manifestly unjust, and the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Point of error four is overruled.

ADMISSION OF INVOLUNTARY STATEMENT

In his first point of error, the appellant claims that the trial court erred in denying his pre-trial motion to suppress his statement given to investigators on January 26, 2003. The appellant claims that his statement was obtained in violation of Articles 38.21 and 38.22 of the Texas Code of Criminal Procedure, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, sections 10 and 19 of the Texas Constitution. The appellant argues that the statement was involuntary because it resulted from "several substantial promises made and granted to [a]ppellant by the authorities." He complains about three specific promises purportedly made by investigators: (1) that he would be allowed to make telephone calls; (2) that he would be allowed a private contact visit with his pregnant wife; and (3) that he would be released from "the hole" to the general population.

At a hearing on a motion to suppress, the trial court is the sole and exclusive trier of fact and judge of the credibility of witnesses as well as the weight to be given their testimony. (13) The trial judge may choose to believe or disbelieve any or all of a witness's testimony. (14) This Court is not at liberty to disturb any fact finding that is supported by the record. (15)

At the pre-trial hearing, the following amendment to the appellant's statement, which had been mailed to Investigator Sifuentes on July 24, 2003, was admitted into evidence: (16)

I am adding this to the statement just to make it clear that I did not com[mit] this crime. I only wrote what investigators told me, to get things I wanted. I wrote this statement to get a visit with my wife Jennifer M. Garza in person (contact visit). I got a meal, and I was in the hole like everybody else who got arrested with me on 1-24-03. But I wrote what they told me to write so they could also move me out of the hole to regular population. But I just want to make it clear I don't know nothing about the murders. I only write what investigators told me for my be[n]efits, in exchange. Now I know the [serious]sness of the whole situation and know that it was wrong to write what they told me to get these things that are not a[l]lowed in the jail.

The appellant's testimony at the hearing on the motion to suppress was consistent with his amended statement. He testified that Sifuentes promised that he could make telephone calls from prison, that he could have a private contact visit with his wife, and that he would be transferred from the "hole." He explained that he had taken so long in coming forward with this information because he did not understand the seriousness of the allegations until they brought him to court, but that "[y]ou're talking about my life, you know."

Sifuentes testified at the hearing that he interviewed the appellant between approximately 11:30 a.m., and 1:50 p.m., on January 26, 2003. Before the interview started, Sifuentes read the appellant his rights. The appellant indicated that he understood his rights and signed a written waiver form. Sifuentes listened to what the appellant had to say, but did not write out his statement because the appellant wanted to do that himself. The appellant asked Sifuentes if his wife could come and see him, and Sifuentes told him that he didn't "see any problem" with that. Several times Sifuentes escorted the appellant to a nearby office where he could make telephone calls to his wife, but it took some time before the appellant's wife arrived at Hidalgo County Sheriff's Office. Sifuentes believed "she arrived after [the appellant] finished the statement." At that time, the appellant was allowed some time alone with his wife.

The prosecutor asked Sifuentes if he made any promises in exchange for the statement, and Sifuentes answered "No." The prosecutor specifically asked if he promised the appellant telephone calls or a private contact visit with his wife in exchange for his statement, and Sifuentes answered "No." Defense counsel asked Sifuentes if he promised that the appellant would be moved from "the hole" in exchange for giving the statement. Sifuentes answered "No, huh-uh. That's - that's detention, and we don't have anything to do with that."

In making its determination, the trial court chose to believe Sifuentes's testimony and to disbelieve the appellant's testimony. Because, the trial court's findings are supported by the record, they will not be disturbed on appeal. Point of error one is overruled.

THE APPELLANT'S TATTOOS

In his third point of error, the appellant argues that the trial court erred in requiring him to display his T.C.B. tattoos to the jury because this violated his Fifth Amendment right against self-incrimination. He argues that the State used the tattoos to bolster the testimony of their witness and to make the appellant out to be a "bad person because he is in a gang." However, the trial court did not abuse its discretion by admitting this evidence because the tattoos were admissible to prove the "criminal street gang" element of the offense and their probative value was not outweighed by the danger of unfair prejudice. Also, requiring the appellant to display the tattoos did not violate the Fifth Amendment. (17) Point of error three is overruled.

 INEFFECTIVE ASSISTANCE OF COUNSEL

In his second point of error, the appellant asserts that trial counsel rendered ineffective assistance because he failed to object to hearsay testimony that violated the Confrontation Clause. Specifically, he complains about counsel's failure to object to Sifuentes's testimony about information received from T.C.B. members who did not testify at trial.

In his fifth point of error, the appellant asserts that trial counsel rendered ineffective assistance because he failed to provide or offer any mitigating evidence during the punishment phase of the trial. The appellant contends that there were several witnesses available to provide mitigating evidence, but they were not called to testify. Also, he argues that trial counsel was supposed to provide mitigating evidence regarding his mental capacity during punishment but never did.

To succeed on an ineffective-assistance claim, the defendant must show that: (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. (18) To show deficient performance, the defendant must prove by a preponderance of the evidence that his counsel's representation fell below the standard of professional norms. (19) To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (20)

Appellate review of trial counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. (21) If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. (22)

Counsel's reasons for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. Without more, we must defer to counsel's decisions and deny relief. Points of error two and five are overruled.

UNASSIGNED ERROR

Mindful of our inherent constitutional authority as a direct appeals court in capital death penalty cases to entertain unassigned error of a fundamental nature, (23) after original submission of the cause we ordered the parties to file supplemental briefs addressing two additional issues that concerned us following our preliminary review of the record. (24) Those briefs have been filed, and we turn next to a discussion of those issues. Both issues arise from the fact that the State secured a second death penalty for the offense of engaging in organized criminal activity under Section 71.02 of the Penal Code. (25) First, does Section 71.02 define organized criminal activity as an offense susceptible to capital punishment when the "offense" that the accused "commits" "as a member of a criminal street gang" is capital murder, which is one of the offenses enumerated in Subsection (1)(a)? Second, if so, does it violate the multiple-punishment prohibition of the Double Jeopardy Clause of the Fifth Amendment to assess the death penalty against him both for the capital murder itself and for committing capital murder as a member of a criminal street gang? After careful consideration, we hold that capital punishment is not available under these circumstances. However, we also conclude that it does not violate double jeopardy to try and to punish the appellant in a single proceeding for both the capital murder offense and the organized criminal activity offense.

A. A Capital Felony?

According to Section 1.05(b) of the Texas Penal Code, certain sections of the Code Construction Act apply in construing its provisions. (26) Among those sections of the Code Construction Act is Section 311.021(2), (27) which provides that "[i]n enacting a statute, it is presumed that . . . the entire statute is intended to be effective[.]" We must presume that "in enacting a statute, the Legislature intends the entire statute to be effective[,]" and did not intend a useless thing. (28) The Legislature expressly included capital murder among the offenses that, if committed as a member of a criminal street gang, constitutes an offense under Section 71.02(a)(1) of the Penal Code. We cannot read those words out of the statute in keeping with the presumption of the Code Construction Act that some effect must be given to every word of a statute.

While it is thus clear that the statute makes a capital murder committed as a member of a criminal street gang an offense, far less clear from the face of the statute is how to classify that offense within the scheme identified in the Penal Code itself. Under the Penal Code, persons adjudged guilty of an offense are to be punished in accordance with the provisions of Chapter 12. (29) Offenses added to the Penal Code after its original promulgation, as Section 71.02 was, (30) are also to be classified for punishment purposes in accordance with Chapter 12. (31) Chapter 12 classifies felonies into five categories: capital felonies, felonies of the first, second, or third degree, and state-jail felonies. (32) At the time of the offense, a capital felony was punishable by life imprisonment or death. (33) There is no felony that is classified in Chapter 12 as higher than a capital felony.

Subsection (b) of Section 71.02 defines the classification of an offense committed under Subsection (a), at least for those instances in which the theory of the offense is that the defendant actually "committed" the underlying offense listed in Subsection (a)(1), rather than that he "conspired to commit" the underlying offense. (34) According to Subsection (b), the general rule is that when a defendant has committed the offense of organized criminal activity by actually committing one of the enumerated underlying offenses, the offense is classified "one category higher than the most serious offense" listed in subsection (a)(1) "that was committed." The exception to this general rule is "that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree." Neither the general rule, however, nor the exception directly speaks to the classification that should apply for the commission of organized criminal activity in which a capital murder is committed. Capital murder is a capital felony, already the highest punishment classification under Chapter 12. Because there is no higher category than "the most serious offense" actually committed, it is logically absurd to try to apply the plain and literal language of the general rule. And because capital murder is not a first-degree felony, the exception also does not expressly apply.

In its supplemental brief, the State essentially concedes that the Legislature simply provided no range of punishment for the offense of capital murder committed as a member of a criminal street gang. See State's Brief at 18-19. The State prays that we vacate the appellant's second death sentence and remand the cause to the trial court for alternative sentencing. Id. at 39-41. Left unexplained in the State's brief is under what punishment category the trial court should sentence the appellant on remand under Section 71.02 (b), if not the death penalty. This Court is not bound by the State's confession of error, if that is what it is. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). We hold that the appellant is punishable as a first-degree felon, and will remand for reassessment of punishment under that range.

We know that the Legislature intended that capital murder committed while a member of a criminal street gang should constitute an offense. But applying the plain language of Subsection (b) to classify that offense would lead to an absurd result, since there is no category higher than a capital felony. We do not think it possible that the Legislature intended such an absurdity; therefore, we must look beyond the plain language of the statute. (35)

One of the considerations that may inform our construction of a code provision is its legislative history. (36) Chapter 71 of the Penal Code was originally enacted by the 65th Legislature in 1977. (37) It began as Senate Bill 151, which had its genesis in an interim report in 1976, before the legislative session began. In this original Senate incarnation, the organized criminal activity statute would have made "criminal homicide" an underlying offense (which would have included capital murder). It would have classified every commission of the offense of organized criminal activity (including cases in which criminal homicide, including capital murder, was the underlying offense) as a first-degree felony, without exception. The bill was amended in the House, however, and in this amendment, "criminal homicide" was dropped as an underlying offense, and replaced with "murder." Moreover, the punishment provision was modified to make a conviction for organized criminal activity "the same degree of felony or class of misdemeanor as" the underlying offense, again without exception. The Senate rejected the House amendment, and the bill was referred to a conference committee.

The version that was reported out of the conference committee was essentially the final version that was enacted. It expressly added "capital murder" as an underlying offense, and changed the punishment provision to an enhancement provision, making commission of organized criminal activity punishable as one category higher than the underlying offense, with the exception that first-degree felonies would remain first-degree felonies. At no time during this process was there any indication that a conviction for organized criminal activity should carry a punishment range any higher than a first-degree felony, even in cases in which capital murder is the underlying offense. This conclusion is bolstered by testimony at a conference committee hearing on May 25, 1977. (38)

Accordingly, we construe the exception contained in Section 71.02(b) to provide that a conviction for the offense of organized criminal activity in which the most serious underlying offense is at least a first-degree felony is punishable as a first-degree felony. Such a construction of the statute is consistent with our statutory principles of code construction. First and foremost, it gives effect to the Legislature's plain inclusion of capital murder as one of the underlying offenses supporting a conviction for organized criminal activity. (39) To read subsection (b) as simply providing no punishment category for the commission of capital murder as a member of a criminal street gang abrogates this legislative intent, which is an unacceptable "consequence[ ] of [that] particular construction[.]" (40) Moreover, our construction is consistent with the legislative intent, apparent from the statute's inception, and enduring through the amendatory process, that under no circumstances should a conviction for organized criminal activity carry any greater punishment than as a first-degree felony, regardless of the underlying offense. Finally, this construction achieves "a result feasible of execution" (41)-at least aside from whatever potential it may have to violate principles of double jeopardy. We turn next, then, to the question of whether it violates the Fifth Amendment protection against multiple punishments to assess separate punishments against the appellant in a single prosecution for both capital murder and capital murder as a member of a criminal street gang.

B. Double Jeopardy Violation?

In its supplemental brief, the State concedes that, as pled, proven, and charged to the jury, the capital murder and the offense of engaging in organized criminal activity by committing capital murder as a member of a criminal street gang are the "same offense" under a Blockburger analysis. (42) We agree. The first count of the indictment alleged the same theory of capital murder of the same victims on the same day and place, and by the same manner and means, as the capital murder alleged in the fourth count. The only additional element added to the fourth count was that the appellant committed that same capital murder "as a member of a criminal street gang." Thus, the two offenses are clearly the "same" under any reading of Blockburger. (43) However, in the context of multiple punishments arising from a single prosecution, we agree with the State that this does not end the jeopardy analysis.

In the multiple punishment context:

[T]he Blockburger test is no more than a rule of statutory construction, useful in discerning the legislative intent as to scope of punishment where the intent is not otherwise manifested. The Blockburger test does not operate, however, to trump "clearly expressed legislative intent." (44)

The State argues that the Legislature had clearly indicated its intention that defendants be susceptible to punishment both for organized criminal activity and for any underlying offense they may commit. Again, we agree.

Section 71.03(3) of the Penal Code provides that "[i]t is no defense to prosecution under Section 71.02 that . . . a person has been charged with, acquitted, or convicted of any offense listed in Subsection (a) of Section 71.02[.]" Several courts of appeals have construed this provision as a clear legislative expression of an intent that defendants charged with both engaging in organized criminal activity and commission of the underlying offense be punished for both, notwithstanding their "sameness." (45) We express no opinion whether this provision may operate constitutionally to authorize multiple prosecutions for the same offense as determined by a Blockburger analysis, since that question is not before us in this particular case. (46) But in the context of multiple punishments deriving from a single prosecution, we do not hesitate to agree with the courts of appeals that the Legislature has indicated with sufficient clarity its intention that a defendant charged with engaging in organized criminal activity may also be charged (at least in the same proceeding) with the underlying offense and punished for both.

We therefore conclude that the trial court did not err to instruct the jury that it could convict the appellant for both the offense of capital murder and the separate offense of engaging in organized criminal activity by committing capital murder as a member of a criminal street gang and that it could punish the appellant for both. However, the trial court did err to sentence the appellant to death for the latter. Accordingly, we affirm the appellant's conviction and sentence of death for capital murder under Section 19.03 of the Penal Code, but we vacate his sentence of death for organized criminal activity under Section 71.02 of the Penal Code, (47) and remand the latter cause to the trial court for re-sentencing as a first-degree felony in accordance with this opinion. (48)

Delivered: January 31, 2007

Publish

*****

1. Tex. Penal Code § 19.03(a). The appellant was also convicted and sentenced to death for engaging in organized criminal activity under Texas Penal Code § 71.02. We will address the propriety of this second death penalty at the end of our opinion.

2. Art. 37.071, § 2(g). Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

3. Art. 37.071, § 2(h)

4. Nora Rodriguez was the manager of Garcia's Bar and was not related to J.C. Rodriguez.

5. It is unclear if this is the four-door Regal or Cutlass previously mentioned.

6. The record is not clear as to the identity of "Manny."

7. The record is not clear as to the identity of Rocha. However, J.C. Rodriguez's nickname was "Roach."

8. Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997).

9. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

10. Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992).

11. In a single point, the appellant challenges the sufficiency of both capital charges. Because he does not distinguish them, neither shall we.

12. Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996); Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990).

13. Green v. State, 943 S.W.2d 92, 98 (Tex. Crim. App. 1996).

14. Id.

15. Id.

16. This amended statement was admitted into evidence at the pre-trial hearing, but was not admitted at trial.

17. See Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003).

18. Strickland v. Washington, 466 U.S. 668, 687 (1984).

19. Id. at 688.

20. Id. at 694.

21. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995).

22. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002).

23. Carter v. State, 656 S.W.2d 468 (Tex. Crim. App. 1983).

24. See Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006) (in exercising authority to entertain unassigned error, direct appeals court is obligated to remand to the parties for briefing under some circumstances, and in any event it may always do so at its discretion).

25. See note 1, ante.

26. Tex. Penal Code § 1.05(b) ("Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code.")

27. Tex. Gov't Code § 311.021.

28. Heckert v. State, 612 S.W.2d 549, 552 (Tex. Crim. App. 1981).

29. Tex. Pen. Code § 12.01(a).

30. The Texas Penal Code was enacted in 1973, effective January 1, 1974. See Acts 1973, 63rd Leg., ch. 399, p. 883, § 1, eff. Jan. 1, 1974. The offense of engaging in organized criminal activity was added as Title 11, Chapter 71, in 1977. See Acts 1977, 65th Leg., ch. 346, p. 922, § 1, eff. June 10, 1977.

31. Tex. Pen. Code § 12.01(b).

32. Tex. Pen. Code § 12.04.

33. Tex. Pen. Code § 12.31, prior to amendment in Acts 2005, 79th Leg., ch. 787, p. 2705, § 1, eff. Sept. 1, 2005. Under the 2005 amendment, the applicable range of punishment for a capital felony is life without parole or death.

34. For instances in which it is alleged and proven that the defendant "conspired to commit" the underlying offense, the punishment classification which the violation of Section 71.02 will fall under is determined by Subsection (c) of Section 71.02.

35. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

36. Tex. Gov't Code § 311.023(3).

37. See Acts 1977, 65th Leg., p. 922, ch. 346, § 1, eff. June 10, 1977.

38. See Hearings on Tex. S.B. 151 Before the Conference Committee on Crime, 65th Leg., R.S. (May 25, 1977), available at http:www.tsl.state.tx.us/ref/senatetapes/65/index.htm#conf.

39. Tex. Gov't Code § 311.021(2).

40. Tex. Gov't Code § 311.023(5).

41. Tex. Gov't Code § 311.021(4).

42. Blockburger v. United States, 284 U.S. 299 (1932).

43. See Parish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).

44. Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992), quoting Blockburger, supra, at 368.

45. Crumpton v. State, 977 S.W.2d 763, 770 (Tex. App.--Fort Worth 1998, no pet.); Reina v. State, 940 S.W.2d 770, 775-76 (Tex. App.--Austin 1997, pet. ref'd).

46. See, e.g., Lam v. State, 17 S.W.3d 381, 384-85 (Tex. App.--Amarillo 2000, pet. ref'd); McGee v. State, 909 S.W.2d 516, 519 (Tex. App.--Tyler 1995, pet. ref'd).

47. The trial court entered separate judgments for the capital murder conviction and the organized criminal activity conviction. Each judgment reflects the same cause number (CR-0945-03-I) but a different Texas Registration Number (TRN 904 007 9706 A001 for the capital murder conviction and TRN 904 007 9706 A004 for the engaging in organized criminal activity conviction). We have assigned separate cause numbers in this Court for the two convictions. The capital murder conviction carries our cause number AP-74,935. The conviction for organized criminal activity carries our cause number AP-75,597. In AP-74,935, we affirm the conviction and death sentence for capital murder. In AP-75-597, we affirm the conviction for engaging in organized criminal activity, but vacate the death sentence and remand the cause to the trial court for re-sentencing as a first-degree felony.

48. See Tex.Code Crim. Proc. art. 44.29(b).

 
 

United States Court of Appeals, Fifth Circuit

No. 11-70029.

ROBERT GENE GARZA, Petitioner-Appellant,
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

August 27, 2012.

Before: JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Robert Gene Garza was convicted of murder in Texas state court and sentenced to death. The district court denied habeas relief and refused to certify any issues for appeal. Garza is now before this court seeking a certificate of appealability (COA) for his claim that his trial counsel rendered ineffective assistance. Because we conclude that reasonable jurists could not find debatable the district court's conclusion that the state habeas court did not unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), to the record before it, Garza's request for a COA is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Garza was convicted by a jury of capital murder for his involvement in the September 2002 shooting death of four women outside Donna, Texas. After a separate punishment hearing, Garza received a death sentence. In 2007, the Texas Court of Criminal Appeals affirmed Garza's conviction and sentence on direct appeal. Garza applied for state habeas corpus relief. Following an evidentiary hearing, the state habeas court entered a 448-page opinion recommending Garza's application be denied. In 2008, the Court of Criminal Appeals adopted the recommendation and denied relief.

Garza then sought federal habeas relief. In his petition before the district court, Garza presented nine claims challenging the validity of his conviction and sentence. The district court granted summary judgment against Garza on the merits and held sua sponte that Garza was not entitled to a COA on any issue. Garza is now before this court requesting a COA on two of the claims he presented to the district court, both of which assert violations of his constitutional right to effective trial counsel. Specifically, Garza alleges his trial counsel rendered ineffective assistance by failing to: (1) challenge aggravating punishment evidence the State could have offered, but did not, and (2) present any mitigating evidence at the punishment phase of his trial.

LEGAL STANDARDS

Before appealing a district court's denial of habeas relief, a state prisoner must obtain a COA from a circuit justice or judge. 28 U.S.C. § 2253(c)(1). Until a COA has been issued, federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a COA, the petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has stated that "[a] petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327.

In determining whether jurists of reason could disagree with the district court's resolution of constitutional claims, we "view[ ] the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). "Under § 2254(d), when reviewing a claim adjudicated by a state court on the merits, we pay deference to the state court's decision regarding that claim, unless the decision [is] contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. (alterations in original) (quoting 28 U.S.C. § 2254(d)(1) & (2)). "Factual findings are presumed to be correct, and a petitioner has the burden of rebutting this presumption with clear and convincing evidence." Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (citing 28 U.S.C. § 2254(e)(1)).

Garza's ineffective-assistance-of-counsel claim is governed by the clearly established law set forth in Strickland v. Washington, 466 U.S. 668 (1984). Pursuant to Strickland, to have been entitled to relief from the Texas Court of Criminal Appeals, Garza had to
show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687.

"[T]he proper standard for attorney performance is that of reasonably effective assistance." Id. Thus, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. "Strategic choices" by counsel, however, "after thorough investigation of law and facts relevant to plausible options[,] are virtually unchallengeable." Id. at 690. And "the failure to present a particular line of argument or evidence is presumed to have been the result of strategic choice." Taylor v. Maggio, 727 F.2d 341, 347 (5th Cir. 1984).

To demonstrate prejudice, petitioner "must show . . . a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. And the "likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 131 S.Ct. 770, 792 (2011) (citation omitted).

Lastly,"[t]he pivotal question" for federal court review is "whether the state court's application of the Strickland standard was unreasonable. This [question] is different from asking whether defense counsel's performance fell below Strickland's standard." Id. at 785. Thus, we will only issue a COA if jurists of reason could disagree with the district court's conclusion that the state court's application of Strickland was reasonable.

DISCUSSION

Garza first contends his trial counsel rendered ineffective assistance by failing to challenge aggravating punishment evidence the State could have offered but ultimately did not. Included in the State's notice of offenses it planned to introduce at trial was Garza's apparent involvement in the January 2003, gang-related murder of six people in Edinburg, Texas, known locally as the "Edinburg massacre." While under interrogation for the Edinburg crime, Garza made statements to police indicating that he had been involved in the murders. Garza maintains that before he made the statements, police had ignored his invocation of his right to counsel. Though at Garza's trial for the murders in nearby Donna the State did not mention the Edinburg massacre or Garza's statements about his involvement, Garza contends his trial counsel should have investigated the voluntariness of the statements and filed a motion in limine to prevent their admission.

The district court held that the state habeas court's conclusion that Garza had not effectively invoked his right to counsel during the interrogation was reasonable. Accordingly, because Garza's trial counsel had no valid basis to challenge the statements' admissibility, the district court found that counsel's performance was not deficient. The district court also held that Garza was not prejudiced because he had not shown that a successful attack on his confession would have prevented the State from proving his involvement in the Edinburg crime.

Based on our review, we conclude that Garza has not demonstrated that reasonable jurists would find debateable the district court's decision about prejudice. Therefore, we need not address any other part of the analysis. Although Garza clearly was not prejudiced by the Edinburg confession itself because it never came before the jury, he may be attempting to allege that the potential of its admission had a chilling effect on his evidence presentation. Even were that his argument, he has not shown that his statements were the only evidence the State could have introduced to show his involvement in the Edinburg murders. The district court found, and Garza does not challenge on appeal, that the record left open the possibility that Garza's participation in the Edinburg crimes could have been shown through eyewitness testimony. Moreover, there was DNA evidence that placed Garza at the scene in Edinburg as revealed in a co-defendant's case.

Garza needed to convince the state habeas court that, but for counsel's alleged failure to investigate the voluntariness of his statements or challenge their admission, that the "likelihood of a different result was substantial." We conclude that fairminded jurists would not find debatable the district court's holding that the state habeas court was not unreasonable in denying relief on this basis under Strickland.

Garza next contends his trial counsel rendered ineffective assistance by failing to present any mitigating evidence at the punishment phase of his trial. Garza contends that in the light of the overwhelming aggravating evidence presented by the State — e.g., Garza was a member of a street gang, had an extensive juvenile record, and had attempted to escape custody during his trial — trial counsel should have, at a minimum, called to testify two psychologists who had examined Garza and whose appointment trial counsel had requested for preparing a mitigation defense. Garza asserts that presenting no evidence on mitigation cannot be considered a "strategic decision" exempt from challenge under Strickland.

The district court construed Garza's claim as contending only that counsel was ineffective for failing to present mitigating evidence, not that counsel failed to conduct a sufficient investigation for mitigation evidence. Relying on the "well-developed record," particularly affidavits and testimony from Garza's trial counsel before the state habeas court, the court rejected Garza's claim. According to Garza's trial counsel, once the State rested its case without presenting evidence of Garza's extensive criminal history or his stated involvement in the Edinburg massacre, counsel decided, with Garza's consent, not to offer any mitigation evidence. The decision was made out of fear that the State would use cross-examination to bring the more egregious crimes before the jury. Also, in addition to discovering potentially mitigating evidence, Garza's psychologists had identified offenses and bad acts — e.g., sexual assault and murder as a youth — that had not been included in the State's notice of offenses for introduction at trial. Accordingly, the district court concluded that "the state habeas court reasonably found that trial counsel made a well-supported strategic decision to forgo the presentation of mitigation evidence."

We conclude that fairminded jurists could not take issue with the court's assessment of this claim. First, we think proper, and Garza does not dispute, the district court's treatment of his claim as one for failure to present mitigating evidence, rather than failure to investigate mitigating evidence. The record demonstrates that trial counsel conducted a thorough investigation for mitigating evidence, including interviewing several family members and successfully moving for the appointment of two psychologists to assist in developing a mitigation defense. We also find correct the district court's reliance on the affidavits and testimony from Garza's trial counsel to find that considerable thought and discussion went into the decision not to present mitigating evidence. Although Garza now faults his trial counsel's decision not to present evidence on mitigation, he does not dispute that the decision was made after his trial counsel considered the issue.

Finally, reasonable jurists would not debate the district court's conclusion that trial counsel's decision not to present mitigating evidence was a strategic choice unchallengeable under Strickland. Strickland does not "require defense counsel to present mitigating evidence at sentencing in every case." Wiggins v. Smith, 539 U.S. 510, 533 (2003); Smith v. Quarterman, 515 F.3d 392, 405 (5th Cir. 2008) ("Trial counsel's failure to present mitigating evidence during the penalty phase is not per se ineffective assistance."). Rather, "failure to present mitigating evidence, if based on an informed and reasoned practical judgment, is well within the range of practical choices not to be second-guessed" under Strickland. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (quotation marks and citation omitted). Garza's trial counsel held a legitimate fear that offering mitigating evidence could result in the jury being presented with evidence of, among other things, Garza's stated involvement with the Edinburg massacre. And Garza does not dispute the likeliness of this occurring had trial counsel decided to offer mitigating evidence. As we have held, "a tactical decision not to pursue and present potential mitigating evidence on the grounds that it is double-edged in nature is objectively reasonable, and therefore does not amount to deficient performance." Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997); see, e.g., St. Aubin v. Quarterman, 470 F.3d 1096, 1102-03 (5th Cir. 2006) (in life-imprisonment case, counsel's not presenting evidence of mental-health history as mitigating evidence was reasonable because it would have opened door to numerous violent incidents not previously introduced); Riley v. Dretke, 362 F.3d 302, 306 (5th Cir. 2004) (in capital case, counsel's not presenting evidence of mental retardation as mitigating evidence was reasonable to prevent negative jury finding on issue of future dangerousness).

Because we conclude that reasonable jurists could not find debatable the district court's conclusion that the state court did not unreasonably apply Strickland to Garza's ineffective-assistance-of-counsel claims, Garza's request for a COA is DENIED.

FootNotes

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

 

 

 
 
 
 
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