Texas Department of Criminal
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
Hair Color: Black
Eye Color: Brown
Native County: Hidalgo Co.
Native State: Texas
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.
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
Texas Attorney General
Media Advisory: Robert Gene Garza scheduled for
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 –
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
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.”
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,
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
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
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
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
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
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
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'
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
“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
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
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
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
“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
“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
“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
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
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
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
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
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
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
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,
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,"
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
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,"
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
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
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
"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
"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
The State of Texas
Appeal from Hidalgo County
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
(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.
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.
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.
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.
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.
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.
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."
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.
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.
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
(8) A clearly
wrong and unjust verdict occurs where the jury's finding is "manifestly
unjust," "shocks the conscience," or "clearly demonstrates bias."
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.
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
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
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.
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.
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.
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.
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.
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.
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
(14) This Court
is not at liberty to disturb any fact finding that is supported by
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:
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.
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,
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.
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."
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.
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.
ASSISTANCE OF COUNSEL
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.
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.
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
(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
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
Mindful of our inherent constitutional
authority as a direct appeals court in capital death penalty cases
to entertain unassigned error of a fundamental nature,
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),
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.
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
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
(31) Chapter 12
classifies felonies into five categories: capital felonies,
felonies of the first, second, or third degree, and state-jail
(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
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.
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
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
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.
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[.]"
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"
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
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."
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.
January 31, 2007
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
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).
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,
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 §
28. Heckert v. State,
612 S.W.2d 549, 552 (Tex. Crim. App. 1981).
29. Tex. Pen. Code §
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 §
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 §
37. See Acts 1977,
65th Leg., p. 922, ch. 346, § 1, eff. June 10, 1977.
Hearings on Tex. S.B. 151 Before the Conference Committee on Crime,
65th Leg., R.S. (May 25, 1977), available at
39. Tex. Gov't Code §
40. Tex. Gov't Code §
41. Tex. Gov't Code §
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
48. See Tex.Code
Crim. Proc. art. 44.29(b).
United States Court of Appeals, Fifth Circuit
ROBERT GENE GARZA,
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.
August 27, 2012.
Before: JOLLY, SOUTHWICK, and
HAYNES, Circuit Judges.
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
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.
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)).
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.
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
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.
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.
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.
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
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.
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."
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.
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.
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.