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David Leonard WOOD

 
 
 
 
 

 

 

 

 


A.K.A.: "Desert Killer"
 
Classification: Serial killer
Characteristics: Kidnapping - Rape
Number of victims: 6 - 9
Date of murders: May-August 1987
Date of arrest: October 22, 1987
Date of birth: June 20, 1957
Victims profile: Ivy Susanna Williams, 23 (May 30) / Desiree Wheatley, 15 (June 2) / Karen Baker, 20 (June 5) / Angelica Frausto, 17 (Aug. 8) / Rosa Maria Casio, 24 (Aug. 12) / Dawn Marie Smith, 14 (Aug. 28)
Method of murder: Stabbing with knife
Location: El Paso County, Texas, USA
Status: Sentenced to death on January 14, 1993
 
 

 
 
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Texas Attorney General

Media Advisory: David Wood scheduled for execution

August 13, 2009

AUSTIN – Texas Attorney General Greg Abbott offers the following information about David Leonard Wood, who is scheduled to be executed after 6 p.m. on Thursday, August 20, 2009.

Wood was convicted and sentenced to death in a Texas state court for the serial murders of Ivy Williams, Desiree Wheatley, Karen Baker, Angelica Frausto, Rosa Maria Casio, and Dawn Smith. The evidence presented at trial is as follows.

FACTS OF THE CRIME

The six young women disappeared from the El Paso area between May 13, 1987, and August 27, 1987.

Between September 4, 1987, and March 14, 1988, the bodies of these women were found buried in shallow graves in a desert area northeast of El Paso. Five of the bodies were located in the same one by one-half mile area; the sixth was three-quarters of a mile away. All of the bodies were approximately thirty to forty yards from one of the dirt roadways in the desert. Four of the bodies were in various states of undress, indicating that the killer had sexually abused them.

Five of the victims were seen by witnesses on the day of their disappearance accepting a ride from a man with either a red Harley-Davidson motorcycle or a beige pickup truck, matching the two vehicles owned by Wood. Wood’s girlfriend testified that he owned a burnt orange blanket and some shovels, all of which he kept in the back of his pickup truck. A forensic chemist later testified at trial that orange fibers found on the clothing of one of the victims matched orange fibers taken from a vacuum cleaner bag that Wood and his girlfriend had left in their old apartment.

A woman testified that in July 1987, she had been walking outside of a convenience store in the northeast El Paso when a man identified as Wood, and matching his description, asked if she needed a ride. The woman accepted his offer, but Wood did not take her home as directed. Instead, he stopped at an apartment complex and went inside. When he returned, a piece of rope was hanging from one of his pockets. Wood drove northeast of town toward the desert. After driving around the area for a period of time, he stopped the truck, got out, and ordered the woman out as well. She saw him get a “brownish red” blanket and shovel from the back of his truck. After tying the woman to the front of his truck with the rope, Wood proceeded to dig a hole behind some bushes. Ten or fifteen minutes later, he returned with the blanket and began ripping her clothes and forcing her to the ground. Upon hearing what he believed were voices, Wood ordered the woman to get back in the truck.

Wood drove to a different location in the desert where he stopped his truck, ordered the woman out, spread the blanket on the ground, and forced her to remove her clothes. He gagged her, tied her to a bush, and raped her. Immediately afterwards, Wood stated again that he heard voices, and hastily threw his belongings back into the truck and drove away, leaving the woman naked in the desert.

About a month and a half later, the woman called police. On September 22, 1987, she directed them to the scene of the rape in the desert. She also directed them to the area where Wood had done some digging. This area was where the other bodies were located. Wood was ultimately convicted for sexually assaulting the woman.

The admission of the woman's testimony at trial was upheld on appeal because it demonstrated that the offense against her was committed by a method matching that used in the commission of the crimes charged. The Texas Court of Criminal Appeals found that Wood’s method was so distinctive “that it may be considered as the defendant's ‘signature.’” The court pointed to “the obvious similarities between the details of the sexual assault upon the woman and the evidence surrounding the murders,” namely that they all occurred within the same geographical area and the same four month period.

While Wood was serving time for the sexual assault of the woman, he told his cell mate, Randy Wells, that he (Wood) was responsible for these murders. Wood described his victims as topless dancers or prostitutes. Wood told Wells that he would lure each girl into his pickup truck with an offer of drugs, drive out to the desert, tie her to his truck, and dig a grave. Next, he would tie the victim to a tree and rape her. Another cell mate, James Carl Sweeney, Jr., testified that Wood had shown him numerous clippings about the murders and confessed that he was the one who committed them.

PROCEDURAL HISTORY

On July 13, 1990, an El Paso County grand jury indicted Wood for the murders of Ivy Williams, Desiree Wheatley, Karen Baker, Angelica Frausto, Rosa Maria Casio, and Dawn Smith. Wood was set to be tried in El Paso, but on a defense motion for a change of venue, the trial was moved to Dallas. On November 10, 1992, a jury found Wood guilty of the capital murders. Following a separate sentencing hearing , the trial court on November 30, 1992, sentenced Wood to death.

Wood appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed his conviction on December 13, 1995. Wood then filed a state application for writ of habeas corpus in the trial court on December 19, 1997. The trial court entered findings of fact and conclusions of law recommending that Wood be denied relief. The Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Wood habeas relief on September 19, 2001.

Wood filed a federal habeas petition in a Dallas U.S. district on May 6, 2002. On June 4, 2004, a federal magistrate recommended that Wood’s petition be denied. The U.S. district court adopted that recommendation and denied Wood habeas relief on June 2, 2006. Wood then sought permission to appeal from the United States Court of Appeals for the Fifth Circuit, but the appellate court denied Wood permission on October 5, 2007. Wood filed a petition for writ of certiorari in the U.S. Supreme Court on January 3, 2008. The Supreme Court denied the petition on April 14, 2008.

EVIDENCE OF FUTURE DANGEROUSNESS

During the punishment phase of trial, the State presented extensive evidence of Wood’s future dangerousness. First, the State showed that Wood had been previously convicted of indecency with a child, rape of a child, and sexual assault. For those crimes, he received five, twenty, and fifty-year sentences, respectively.

A prostitute testified that on September 19, 1987, Wood offered her money for sex while she was standing on a street corner. She got into Wood’s truck and told him to go to a motel. Instead, he pulled a knife on the prostitute and told her he was going to sexually assault and kill her. The prostitute jumped out while the truck was still moving and injured herself.

A woman testified that when she was thirteen-years-old, Wood grabbed her as she was headed for home on foot and raped her underneath a bridge.

Another woman testified that when she was twelve-years-old, Woods approached her and asked her for help in finding his dog. Wood eventually grabbed her and raped her.

A woman testified that when she was 23, she got a ride home from work with Wood and another man. She said they drove to some apartments, where both men got out. Wood came back to the truck alone and started driving. He pulled off to the side of a road and raped her.

Finally, a psychiatrist, testified that given the facts of the crime and the evidence presented by the State, he believed Wood constituted a future danger to society.


David L. Wood, Convicted Northeast Desert Murders Serial Killer

Date of Interview: 1/2008

Interview: Convicted Serial Killer David L. Wood Claims Innocence

By Dee - AssociatedContenty.com

Back in 1987, several young women between the ages of 14 through 24 were missing from El Paso Texas. The police and officials in El Paso were baffled as to who the killer was, but they felt they were dealing with a serial killer. Bodies of six women were soon found in shallow graves in the desert in El Paso, and the murders became known as The Northeast Desert Murders.

David L. Wood wrote to me and sent paper work about his case. Here is his story, about his case, followed by my interview with David. He alleges that in January of 1987 he was paroled to El Paso from a prison term of 2-20 years for a sexual offense. He says he was picked up by police 4 times in a 3 month period and accused of crimes he didn't commit.

David alleges that when the young women began disappearing he became a prime suspect when one of the missing women, Cheryl Vasquez was said to have been seen with David last, but later reports show Vasquez was at a party after she was seen with Wood. Vasquez was never found. Wood claims because of the high media attention this case was receiving he was under constance surveillance. He was routinely questioned and photographed, including photos of his tattoos. Wood says he cooperated with police and that his truck was broken into and clothes belonging to him were taken, but nothing else. Wood claims he was constantly harassed by police at that time.

David claims that on September 4, 1987, two of the missing girls bodies were found, Maria Casio, and Karen Baker. The following month another search located the bodies of Dawn Smith and Desiree Wheatly. The following month an even larger search of the area produced the body of Angie Frausto. Wood claims the last search "was massive in size" with over 350 people helping out and with search dogs from the police department and Texas's prison system, resulting in no finds. He alleges that police made this fact clear on the news that "there were no more bodies."

Wood alleges that only three days after the last girl was found he was arrested on October 23, 1987, on unrelated charges. He claims he wasn't aware of what he was being arrested for, for almost sixteen hours. He claims he soon found out he was being arrested for 2 warrants which Woods called holdout warrants that police had on him for 2 months. He says the first was for aggravated sexual assault of a women named Judith Brown Kelling. Wood alleges that Kelling was a prostitute with a heroin habit, and a self admitted police informant with a long arrest history.

Wood claims that Kelling gave the date of the alleged crime as "sometime between July and August", Wood claims the statement backfired when it was learned the alleged truck was in a wrecking yard during that time, because it had been in an accident by Wood's brother. Wood's also claims it was then that the date on the indictment was changed to the day before.the accident.

Wood alleges the second warrant was for the alleged attempted kidnapping of Gina Gallegos. Wood says she was also a prostitute. He claims that his trial for the Kelling case was to begin on March, 15, 1988, and that he was going to be tried as a habitual offender, and that if he was convicted he would face a life sentence.

Wood claims the day before his trial another body, Ivy Williams, was found in the same area as the "massive search" that had previously taken place. He claims this story made headline news the day before his trial. Wood wondered, "How could they have missed this body?" He says it's "No Way" they could have missed this body then find it the day before his trial. He claims the pathologist said this girl could have been out in the desert for more than a year, and Wood says, that was before he had been paroled from prison.

Wood claims about three weeks before the trial was to begin his attorney informed him that he was going to be charged with the rape of a sixteen year old girl who lived in his area. He claims this was one of the cases he was picked up and questioned about right after he was paroled. Wood claims the headlines read "Rape victim identifies desert suspect through voice lineup." Wood claims their was much publicity about this case, and samples had been taken from him and sent to the DPS lab for comparison with a rape kit taken from the victim. Wood claims when the test came back about a week later, he was cleared 100%. Wood alleges that district attorney Richard Jukes told the judge that he was completely cleared but he asked the judge to order that the results be kept out of the media. Wood says they did not want the media to know that he was cleared, and called this "an example of dirty politics." Wood was sentenced to 50 years for "non-aggraved " and claims after his conviction the charges with the Gallegos case were dropped, and feels that she was just backup if they needed it. Woods claims that Kelling's pending charges were dropped.

Wood claims while in prison serving the 50 year term, Steve Simmons the head DA tried to get him indicted on the Northeast Murders, but was twice denied by the grand jury. Woods states that he had given 6 vials of blood, head and pubic hair, fingernail clippings, skin scrapings, and saliva, all before he was even charged with these murders. He alleges that every scientific test known in 1987 had been done to him, his truck, (taking dirt and rocks from his tires), to compare to samples taken from the crime scenes. Woods claims he has FBI and DPS lab reports of tests that had been conducted and that in his words "Could not find one single match of evidence from me and the evidence found with any of the six victims."

There was questions about what police described as orange fiber, that Wood's claims he can explain. Woods claims the orange fiber in question came from the Wheatly crime scene. Woods claims that when Wheatly was found buried, the detectives set up around the crime scene, did a preliminary search, exhumed the body, and left. He claims the police work was incompetent, and that the grave site was left open to the public for 8 days before they returned to look for evidence. He claims one of the four that went to look for evidence was from the bomb squad, one was an ID sergeant, and none were the detectives that were working on the case.

Woods claims that 3 days after Wheatly was found and he was arrested they impounded his truck and totally dismantled it, including taking the seat out of the truck and placing it in the evidence room. Five days later Woods claims that when 4 police sergeants returned to the Wheatly crime scene to look for evidence they found a clump of fibers, and found another clump of fibers the following day. Woods also claims that during his murder trial the states own expert witness testified that it is unusual to find that amount of fibers at a crime scene. He says this is in his trial records.

Woods alleges that they made a link between the orange fibers and himself, and claims they said the alleged fibers came from underneath his car seat. He says it did not come from the wall to wall shag carpet, the seat covers, or the numerous other fibers througout his truck. He claims this orange fiber was only found at the Wheatly crime scene. Because they had no warrant to cover it in the search of his truck, Wood's said the fibers could not be used as evidence, and he alleges they came up with another plan.

Wood's alleges that on November 28, Detective Guerrero got a warrant to search the garage where he had been living with his girlfriend. He found several items and left. A couple of days later the land lady called him to tell him about a Hoover vacuum she had found in the garage. Wood claims the detective got another warrant, returned to the garage and took only the vacuum cleaner bag. Wood's claims there were no fingerprints taken to determine if the vacuum cleaner belonged to him. Woods said "Well, magic, as only cops can do, the orange fiber miraculously turned up in the vacuum cleaner bag." He goes on to say that the "really odd thing about this is that this was a full sized stand up vacuum cleaner," He states that none can explain how one kind of fiber got from underneath his truck seat, and into a full size, stand up vacuum cleaner.

Wood's states that three years later a reward was being offered to find the murderer of these girls. Wood's states the total reward money was $26,000. Wood's alleges that this was when jail house informers came into the picture. Wood's claims that James Carl Sweeny and Randy Lee Wells both ex-cons, and both were cell mates of his while he was serving the 50 year sentence. Wood's alleges that Sweeny was doing a 69 year sentence for drug possession and forgery. Woods states that Sweeny was a self proclaimed jail house lawyer who did legal work for inmates, and offered to do legal work about his case, and file a civil rights lawsuit for him. Wood's alleges that Sweeny wanted all his information, and also said he had to pay him. Wood's alleges that he found out Sweeny had contacted a DA in Dallas about another inmates case he was working on. He alleges that Sweeny tried to get help on his own prison sentence but the DA didn't want to be bothered.Woods claims that one day in the cell Sweeny was reading about the $26,000 reward on the Northeast desert Murder cases, and allegedly said "Well, your screwed now because there's going to be a witness against you." Woods claims the very next day when Sweeny went to work and the warden was called. He states the warden then called the detectives. Wood's claims that after Sweeny talked to detectives, they started looking up all the "cellies" he had, and that is when they found Randy Lee Wells.

Wood's claims Wells was a habitual offender with a long record. Wood's alleges Wells was told he would get his charges dropped to a lesser crime, the $26,000 reward money, and the rights to any book or movie deal that may come out of his testimony against him. Wood's stated that he feels the last promise was laughable but that it can be verified in trial transcripts. Woods claims that Sweeny and Wells were moved into a protective cell together for 5 days. Wood's claims they were both taken to the crime scene, both visited detectives together, and all before they went before the Grand jury. Wood's said "They were practically handed a script to read from." It was at this point that Wood's was finally indicted for the Northeast Desert Murders. He was found guilty and is now residing on Texas 's death row, Polunsky Unit. David has an enormous amount of paper work concerning his case, and documents to prove what he has said. He proclaims his innocence.

The following is my interview with David. l. Wood. Some of his answers have already been answered in the above summary of his case, but I wanted to show the complete interview

What were you convicted for and what is your sentence?

I was convicted for (6) six murders in El Paso Texas and I was given the death penalty.

Did you have any prior record, and what what it for?

I have two prior prison sentences both for sexual offenses. (Actually it was three/ but one of those was the Kelling case which in tied with this case.)

Could you tell us a little about the case?

The bio included with this letter will explain the circumstances involved with this case and no one knows what actually happened to the victimes including the police. There was only one that they suspected was stabbed. In one of the cases the body 'and all her cloths were destroyed 'before' evidence could be taken from them.

Are you innocent?

Am I innocent? Damn right! But let my case speak for itself! If people will only listen to what is actually involved they'll see the case for what it really is. A 'built" case from nothing! As for proof there is NO proof in a 'circumstantial case. Either against the defendant or the defendant trying to clear himself. That is 'why' it is so easy to get a conviction and given the death penalty. Again if ALL of the facts are included and listened too then 'that' should be enough to 'presume' innocence.

Do you have any thoughts on who might have done this crime and why?

"I" have no thoughts as to who may have been involved or no idea of why they were done.

How did they get the conviction and the death penalty?

I was tried convicted and sentenced to death on the testimony of (3) informants working for the state prosecutors for favoritism in their own legal situations. Also I was tried for ALL six cases in the same trial it is a part of my trial transcripts that the head DA Steve Simmons quoted in a memo to the D.A.'s over my case "There is only one way to get any convictions on Wood we need to try all the cases at once in .the same trial for the prejudice (or prejudicial) factor and we also need to do it with 'inmate testimony, (known as jail house snitches) Also I had two court appointed attorneys who were more worried about 'offending' the people they work with then defending me and there is some proof to that issue. Also my case was moved to Dallas Texas highly against my wishes because at the time Dallas was the leading city in the country for handing out the death penalty. I even refused to participate in my trial because of this move.

What has it been like on death row all these years?

Being on death row has been one of the hardest experiences I've ever known not only for the factor that I did NOT kill these people/ and I have been turned down at every turn for justice from the courts but the conditions, here are the worst that I have ever seen in the prison system. I've been told that I had aged twenty years in eight years and there are many here who have become the same way. I have been on death row since early 1993 but we have been here on the Polunsky lock down segregation unit going on nine years now.

At what point is your appeals at?

MY appeals are at the Supreme court level, and this is my last shot at hope before they execute me. Every court before them have all turned me down NOT on evidence but false testimony given by criminals. 90% of the people involved in this case had some type of criminal record. Also the courts have stated"That even though they agree that inmate testimony tainted it is still evidence in the court of law, and it is the burden of the defendant to 'prove that said testimony is false." This in itself is an almost impossible act to achieve if the snitch) is protected by the state and he won't admit his testimony is a lie how can the defendant prove it is?

How can the public help you?

Wow this is the question isn't it? They say that once you get to the supreme court on your case thats pretty much it if they don't want to help you. I would like to think and hope that is not the case. Before I am executed for this crime I would at least like to have to chance to have all the facts an issues heard. About how it got started how it progressed how I was arrested. tried, and convicted. The rules of Police conduct and rules of law did not come into effect in this case. This is a border town that is used to doing things their own way without any outside help. In fact in this case they 'refused outside help from other agencies including the FBI. I would like enough attention on my case that it would bring enough pressure to my lawyers to do their job the way their suppose too also enough attention needs to be brought against El Paso in this case and have it investigated for the police corruption and corrupted coercion tactics they used to get statements, and people involved. They should at least be investigated for their illegal and lack of use of proper police procedures. I might not be liked because of my past crimes but 'if' I did not commit these murders then the state should not be allowed to so easily pass out the death penalty. This is the final punishment if later it was found out that someone was innocent theres no correcting it. its to late for that.

David ended his letter with these words "Thats about all I can give you for now if you have any questions and I mean anything don't hesitate to ask. because I'm suppose to be a professional liar and con I don't expect you to just 'believe' what I have to say so what ever you ask and will send whatever 'proof' that I can with that answer. I do have police reports supplements, DNA reports at least everything 'they' wanted us to have. Again thank you, and take care.

David can produce documents, newspaper clippings, paperwork, etc. for all he has said, and can be reached at this address:

David Wood #999051
Polunsky Unit Death row
3872 FM 350 South
Livingston
Texas, 77351

Source:

Letters from David Wood, Documents and legal paperwork, with written permission from Wood to use


David Leonard Wood

El Paso, like so many other cities in America, has seen its share of runaways in recent years. With drugs and broken homes, the promise of excitement to be found in other cities, other states, uncounted teens have fled their homes and schools to search for fame and fortune on the road. A few make good, some wander back in time, but nearly all leave tokens of themselves behind, some indication of their motive for departure.

During 1987, though, a rash of disappearances around El Paso baffled parents and police as normal, well-adjusted girls and women dropped from sight, without a trace.

Fourteen-year-old Marjorie Knox was the first to go, reported missing from nearby Chaparral, New Mexico, on February 14, 1987. Three weeks later, on March 7, 13-year-old Melissa Alaniz vanished from El Paso, police noting that both girls had parents working at the Rockwell plant, outside of town.

Desiree Wheatly, 15, disappeared in El Paso on June 7, last seen in the company of a man with heavily-tattooed arms. Three days later, Karen Baker's disappearance seemed to break the pattern. At 20, she was a legal adult, but police learned that her mother worked in the same Rockwell plant, with a nodding acquaintance to Marjorie Knox. Was there some hidden link between the missing girls, thus far unknown to the police?

On June 28, 19-year-old Cheryl Vasquez-Dismukes vanished from El Paso, followed on July 3 by 17-year-old Angela Frausto. Maria Casio, age 24, was staying with friends when she failed to come home on the night of August 19. They reported her missing next day, and her car was found on August 21, without a trace of the missing woman.

On August 28, 14-year-old Dawn Smith left her El Paso home, promising to "keep in touch," and abruptly dropped out of sight. On September 4, utility workers unearthed Maria Casio's remains in the desert northwest of El Paso. Police were summoned to the scene, and they soon found Karen Baker buried in a shallow grave 100 yards away. With no obvious wounds on either body, the cause of death for both victims was listed as "apparent strangulation."

On October 20, 1987, hikers found the remains of Desiree Wheatly and Dawn Smith within a mile of the other grave sites. Two weeks later, desert prospectors found Angela Frausto in a nearby shallow grave. Marjorie Knox, Melissa Alaniz and Cheryl Vasquez-Dismukes are still missing, but all are now presumed dead by authorities. Police, meanwhile, have focused their attention on a suspect in the case.

On September 19, 1987, an El Paso prostitute complained to police that one of her "tricks" had driven her into the desert, near the grave sites, where he pulled a knife and threatened her before she fled on foot. Another hooker, raped some weeks before, came forward after the report was published, both women remarking on their assailant's numerous tattoos.

A search of police tattoo files led to the October 22 arrest of David Leonard Wood, an ex-convict with a history of violence against females. Born in 1957, Wood logged his first arrest at age 19, for the attempted rape of a 12-year-old girl. In court, he pled guilty to a reduced charge of indecency with a minor and spent three years in prison, paroled in January 1980.

Four months later, he raped a 13-year-old stranger and a 19-year-old acquaintance, the latter mistake earning him concurrent prison terms of 20 years on each charge. He was paroled again in January 1987, days before El Paso's string of deaths and disappearances began.

Wood denies any involvement in the spate of murders, and he has never been charged in the case. (Conviction of kidnapping and rape, in March 1988, has returned him to prison with a new 50-year sentence.)

In the absence of an indictment, authorities note that Woods - and his tattoos - perfectly match descriptions of the man last seen with Desiree Wheatly in June 1987. He was also seen riding a motorcycle with Karen Baker, several months before she died, and witnesses have placed Woods at a local convenience store where Cheryl Vasquez-Dismukes was last seen alive on June 28. (Wood admits hearing "rumors" that Cheryl's family suspected him of her murder, and claims he "went searching" for her, all in vain.)

Finally, friends of Wood have identified photos of Maria Casio and Dawn Smith as friends of the suspect, a claim Wood dismisses as simple "mistaken identity." Hanging tough in the face of mounting suspicion, Wood granted an interview to local journalists in March 1988, prior to his sentencing on the kidnap and rape charges. Avoiding the question of guilt or innocence, he harped on the killer's apparent carelessness in disposing of victims. "If I am going to kill somebody," he declared, "I'm going to put them 15 feet under, up in the mountains, where the coyotes can't get to them."

 


United States Court of Appeals
For the Fifth Circuit

WOOD v. QUARTERMAN

David Leonard WOOD, Petitioner-Appellant,
v.
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-Appellee.

No. 06-70027.

October 05, 2007

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

Michael Dennis Samonek, John Thomas Haughton, Law Office of John T. Haughton, Denton, TX, for Wood.Woodson Erich Dryden, Asst. Atty. Gen., Austin, TX, for Quarterman.

This case involves an application for a certificate of appealability (“COA”) filed by Petitioner David Leonard Wood (“Petitioner”) to appeal the district court's denial of habeas corpus relief under 28 U.S.C. § 2254.   Petitioner seeks a COA to appeal the denial of his claims that (1) the indictment was defective because it did not state a capital offense;  (2) trial and appellate counsel provided ineffective assistance of counsel;  and (3) the trial court erred in admitting evidence of an extraneous offense during the guilt phase of the trial.   Because we conclude that Petitioner has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a COA.

I. BACKGROUND

The district court set forth the relevant facts as follows:

This case stems from the disappearances of six women from the El Paso, Texas area between May 13, 1987 and August 27, 1987.   Between September 4, 1987 and March 14, 1988, the bodies of these women were found buried in shallow graves in the same desert area northeast of El Paso.   Five of the bodies were located in the same one by one-half mile area;  the sixth was three-quarters of a mile away.   All of the bodies were approximately 30 to 40 yards from one of the dirt roadways in the desert.   Four of the bodies were in various states of undress, indicating that the killer had sexually abused them.   Five of the victims were seen by witnesses on the day of their disappearance accepting a ride from a man with either a red Harley-Davidson motorcycle or a beige pickup truck, matching the two vehicles owned by Petitioner.   Petitioner's girlfriend testified that he owned a burnt orange blanket and some shovels, all of which he kept in the back of his pickup truck.   A forensic chemist later testified at trial that orange fibers found on the clothing of one of the victims matched orange fibers taken from a vacuum cleaner bag which Petitioner and his girlfriend had left in their old apartment.

Petitioner's cell mate, Randy Wells, testified that Petitioner told him about the murders, describing his victims as topless dancers or prostitutes.   Petitioner told him that he would lure each girl into his pickup truck with an offer of drugs, drive out to the desert, tie her to his truck, and dig a grave.   Next, he would tie the victim to a tree and rape her.   Another cell mate, James Carl Sweeney, Jr., testified at Petitioner's trial that Wood had shown him numerous clippings about the El Paso, Texas murders and had confessed to him that he was the one who had committed the murders.

The testimony of Judith Kelly (“Kelly”) regarding an extraneous criminal offense committed by Petitioner played a crucial role at the guilt phase of the trial and in the opinion of the Court of Criminal Appeals.   Kelly, a prostitute and heroin addict, testified that in July 1987 she had been walking outside of a convenience store in the northeast part of El Paso when a man identified as Wood, and matching his description, asked if she needed a ride.   She accepted his offer but Wood did not take her home as directed.   Instead, he stopped at an apartment complex and went inside.   When he returned, a piece of rope was hanging from one of his pockets.   Petitioner drove northeast of town toward the desert, and after driving around the area for a period of time, stopped the truck, got out, and ordered Kelly out as well.   She saw him get a “brownish red” blanket and shovel from the back of his truck.   After tying her to the front of his truck with the rope, Petitioner proceeded to dig a hole behind some bushes.   Ten or fifteen minutes later he returned with the blanket and began ripping her clothes and forcing her to the ground.   Upon hearing voices, Petitioner ordered Kelly to get back in the truck.   Wood drove to a different location in the desert where he stopped his truck again, ordered Kelly out, spread the blanket on the ground, and forced the victim to remove her clothes.   He gagged her, tied her to a bush, and raped her.   Immediately afterwards, Petitioner stated that he heard voices, and hastily threw his belongings back into the truck and drove away, leaving Kelly naked in the desert.   His final words to her were, “Always remember, I'm free.”

Wood v. Dretke, 2006 WL 1519969, **1-2 (N.D.Tex. Jun. 2, 2006).

On November 30, 1992, Petitioner was convicted by a jury of capital murder and was sentenced to death by lethal injection.   He appealed his conviction and sentence to the Texas Court of Criminal Appeals (“TCCA”), which affirmed his conviction and death sentence in an unpublished opinion.   See Wood v. State, No. 71,594 (Tex.Crim.App. Dec. 13, 1995).   He then filed a state application for writ of habeas corpus on December 19, 1997.   The TCCA denied relief in an unpublished order.   See Ex Parte Wood, No. 45,746-01 (Tex.Crim.App. Sept. 19, 2001).   On May 6, 2002, Petitioner filed an initial federal petition for writ of habeas corpus and an amended petition on October 2, 2002.   In his amended petition, he argued, inter alia, that (1) his indictment was constitutionally defective, (2) trial and appellate counsel were ineffective by failing to object to the alleged technical defects in the indictment;  and (3) the trial court erred in admitting evidence of an extraneous offense.   The district court denied each claim on the merits and subsequently denied a COA.   Petitioner filed a notice of appeal and the instant application for a COA.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.”  Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)).  According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ”   Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).   As the Supreme Court explained:

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.   We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason.   This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.   In fact, the statute forbids it.   When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.

Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2002).

In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA.   Id. at 337, 123 S.Ct. 1029.   In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief.   Id.  Instead, “where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward:  The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.”   Id. at 338, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595).

For claims that were adjudicated on the merits in state court, deference to the state court's decision is required unless the adjudication was “contrary to, or involved an unreasonable application of, clearly establish Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”  28 U.S.C. § 2254(d)(2);  see also Ladd v. Cockrell, 311 F.3d 349, 357 (5th Cir.2002).

III. ANALYSIS

A. Sufficiency of the Indictment Claim

The first issue raised by Petitioner is whether the indictment in this case is constitutionally defective.   This court has held that “[t]he sufficiency of a state indictment is not a matter of federal habeas relief unless it can be shown that the state indictment is so defective that it deprives the state court of jurisdiction.”  McKay v. Collins, 12 F.3d 66, 68 (5th Cir.1994) (citation omitted);  see also Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993);  Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.1985).   That question is foreclosed to federal habeas review, however, if “the sufficiency of the [indictment] was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case.”  Millard v. Lynaugh, 810 F.2d 1403, 1407 (5th Cir.1987) (quoting Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984)).   Here, the sufficiency of the indictment was squarely presented to the TCCA, which adopted the state habeas court's express findings that the indictment was not fundamentally defective and that even if the indictment failed to allege a necessary element, it was still an indictment under state law.1  Because the sufficiency of the indictment was squarely presented to the highest state court and that court held that the trial court had jurisdiction over this case, this claim is foreclosed to federal habeas review.  Millard, 810 F.2d at 1407 (quoting Liner, 731 F.2d at 1203).

Even if we were to reach this issue on the merits, we would find it beyond debate that Petitioner has failed to make a substantial showing of the denial of a constitutional right.   Texas law defines murder as “intentionally or knowingly caus[ing] the death of an individual.”  Tex. Penal Code § 19.02(b)(1).   A person commits capital murder if he or she “murders more than one person ․ during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.”  Tex. Penal Code § 19.03(a)(7)(B).  The indictment charges Petitioner with “unlawfully, intentionally and knowingly caus[ing] the death of more than one person, during different criminal transactions, pursuant to the same scheme and course of conduct.”   It then lists the six victims and the manner, if known, in which they were killed.   We simply fail to see how the indictment is insufficient in charging Petitioner with capital murder.   See McKay, 12 F.3d at 69 (“An indictment should be found sufficient unless no reasonable construction of the indictment would charge the offense for which the defendant has been convicted.”) (citing United States v. Salinas, 956 F.2d 80, 82 (5th Cir.1992)).   Accordingly, we conclude that it is beyond debate that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to his sufficiency of the indictment claim.

B. Ineffective Assistance of Counsel Claim

The second issue raised by Petitioner is whether trial and appellate counsel provided ineffective assistance by failing to object to the alleged technical defect in the indictment.   Petitioner frames the issue as follows:  “Did Mr. Wood's trial and appellate counsel provide ineffective assistance within the meaning of Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App.2005)?”   We first note that “federal habeas corpus relief does not lie for errors of state law.”  Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)).   As the Supreme Court emphasized, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”  Id. at 67-68, 112 S.Ct. 475.

Assuming that Petitioner intended to raise a federal claim for ineffective assistance of counsel, the Supreme Court has set forth a familiar two-prong test for examining such claims:

First, the defendant must 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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  see also Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.2007).

This court has held, however, that “[f]ailure to raise meritless objections is not ineffective lawyering;  it is the very opposite.”  Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994);  see also Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990) (“This Court has made clear that counsel is not required to make futile motions or objections.”).   Because we find that Petitioner's sufficiency of the indictment claim plainly lacks merit, the performance of his trial and appellate counsel cannot be considered constitutionally deficient for failing to raise the same claim at trial and on appeal.2

C. Due Process Claim

The third and final issue raised by Petitioner is whether the trial court erred in admitting evidence of an extraneous offense during the guilt phase of the trial.   Although Petitioner alludes to a due process violation, his central argument is that the admission of Judith Kelly's testimony violated Texas law.  “Such an inquiry, however, is no part of a federal court's habeas review of a state conviction.”  McGuire, 502 U.S. at 67, 112 S.Ct. 475;  see also Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.1992) (“Errors of state law, including evidentiary errors, are not cognizable in habeas corpus.”);   Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983) (“We have repeatedly admonished that we do not sit as a super state supreme court on a habeas corpus proceeding to review error under state law.”) (quoting Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.1981)).   Instead, the only relevant inquiry is whether the admission of this testimony violated Petitioner's federal constitutional rights.   Id.  Moreover, the TCCA has already held that the admission of this testimony was not erroneous under Texas law.   The Supreme Court has “repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”  Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (citing McGuire, 502 U.S. at 67-68, 112 S.Ct. 475;  Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)).   Thus, the issue of whether the admission of Kelly's testimony violated Texas law is simply not before us and has already been answered by the TCCA.

According to the Supreme Court, the admission of evidence may violate the Due Process Clause of the Fourteenth Amendment if the evidence is “so unduly prejudicial that it renders the trial fundamentally unfair.”   Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986));  see also Porter, 709 F.2d at 957 (quoting Mendiola, 635 F.2d at 491).   This court has stated that “[a]n extraneous offense may be admitted into evidence without violating the due process clause if the government makes a ‘strong showing that the defendant committed the offense’ and if the extraneous offense is ‘rationally connected with the offense charged.’ ”  Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991) (quoting Enriquez v. Procunier, 752 F.2d 111, 115 (5th Cir.1984)).   Still, “the erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant's conviction.”  Neal v. Cain, 141 F.3d 207, 214 (5th Cir.1998).   Finally, “[a]ssuming arguendo that the admission of [this evidence] was constitutional error, [the] claim still fails [if the petitioner] has not shown that the testimony had a ‘substantial and injurious effect or influence in determining the jury's [ ] verdict.’ ”  Janecka v. Cockrell, 301 F.3d 316, 328-29 (5th Cir.2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

As previously noted, Judith Kelly, a prostitute and heroin addict, testified that she accepted a ride from Petitioner, but that he instead took her to the desert, tied her to his truck, and proceeded to dig a hole.   She further testified that after hearing voices, Petitioner moved her to another location, gagged her, tied her to a bush, and raped her.   In addressing the admissibility of this evidence, the TCCA found that Kelly's testimony tended to demonstrate that Petitioner had a unique system of committing criminal acts.   The TCCA emphasized the striking similarities between the Kelly rape and the six murders, including the proximity of the found bodies to the area where Kelly was raped, the use of a beige truck to transport the victim, the evidence of sexual abuse of the several victims, the use of a blanket and rope, and the fact that Petitioner dug a hole prior to raping Kelly.   The TCCA also noted the similarities between the Kelly rape and testimony given by one of Petitioner's cell mates that Petitioner described all of his victims as topless dancers and prostitutes, that he would tie the women to his truck while he dug a grave and then tie them to a tree and rape them, and that he was worried about his tattoos because one girl had escaped.   Finally, the TCCA held that any prejudicial effect of admitting the testimony did not substantially outweigh its probative value because identity was a hotly contested issue, the evidence that Petitioner raped Kelly was “unassailable,” the evidence of rape was much less severe than the murders, the amount of time presenting the evidence was minimal in relation to the entire length of the trial, and the evidence was extremely important to the state's case.

Because the state has made a strong showing that Petitioner committed the extraneous offense-Petitioner does not deny raping Kelly-and because the extraneous offense is rationally connected to the offense charged, the admission of Kelly's testimony did not violate Petitioner's due process rights.  Story, 920 F.2d at 1254 (quoting Enriquez, 752 F.2d at 115).   Thus, we conclude that it is beyond debate that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to his due process claim.

IV. CONCLUSION

For the foregoing reasons, the application for a COA is denied.

FOOTNOTES

1.   The Texas Constitution provides that the “presentment of an indictment or information to a court invests the court with jurisdiction of the cause.”  Texas Constitution, Art. 5, § 12(b).  Based on this provision, Texas courts have held that “failure to include an essential element of the crime charged, which constitutes a defect of substance, does not deprive the trial court of jurisdiction.”  McKay, 12 F.3d at 69 (citing Studer v. Texas, 799 S.W.2d 263 (Tex.Crim.App.1990)).

2.   We also note that trial counsel filed two motions to quash the indictment on the bases that it did not allege the cause of death of five of the victims and did not allege what different criminal transactions occurred or what acts constituted the same scheme or course of conduct.   Trial counsel also filed a motion to dismiss the indictment on the basis that it did not define “criminal transactions” or “same scheme or course of conduct.”   Thus, we agree that trial counsel provided reasonably effective assistance of counsel by attacking the validity of the indictment on several grounds.

DENNIS, Circuit Judge

 

 

 
 
 
 
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