Around 8 a.m. Toni Rhodes discovered that her five year old daughter
Maggie was missing from her bed in their apartment at the Arlington
Village Apartment complex.
The window above Maggie’s bed was raised and the
glass pane was broken from the outside. The child’s blood was found
on the window ledge, torn curtains, and on the wall below the window.
Maggie had apparently been abducted from her bed
through the window in the middle of the night.
Maggie's body was found on the side of a road in
Grand Prairie hours later, with tire tracks on the her body.
The cause of death could be attributed to two
sources: being run over by a car and smothering or strangulation.
The medical examiner also determined that Maggie
had been sexually assaulted while alive.
Police learned that on the night of the murder,
Jackie Wilson was driving in his brother-in-law’s red Mercury Cougar
with some friends.
Police recovered the car, and noted that the
tread on tires on the vehicle were consistent with the tread marks
on the child’s body. Investigators found hair inside and under the
car that matched the victim’s.
Fingerprints left on the pieces of glass found
inside and outside the victim’s apartment were positively identified
Wilson v. State, 863 S.W.2d 59 (Tex.Crim.App.1993) (Direct
Wilson v. Cockrell, Not Reported in F.Supp.2d, 2002 WL
Wilson v. Cockrell, 75 Fed.Appx. 983 (5th Cir. 2003) (Habeas)
Cheeseburger, onion rings, a beef enchilada, tea, Coca-Cola, a whole
onion, a whole tomato and lemon pie.
"Honey, I love you. Be strong and take care of yourselves. Thanks
for being there. Thank you for being there for me and all these
people here will find the one who did this damn crime.I am going
home to be with God."
Texas Department of Corrections
Inmate: Jackie Barron Wilson
Date of Birth: 02/12/67
Date Received: 11/21/89
Education: 12 years
Date of Offense: 10/30/88
County of Conviction: Dallas County
Hair Color: Black
Eye Color: Brown
Height: 5 ft 08 in
Texas Attorney General
Friday, April 28, 2006 - Jackie
Barron Wilson Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Jackie Barron Wilson, who is
scheduled to be executed after 6 p.m. Thursday, May 4, 2006.
Wilson was convicted and sentenced to death for
the November 1988 murder of 5-year-old Lottie Margaret Rhodes.
FACTS OF THE CRIME
The body of five-year-old Lottie Margaret Rhodes
(“Maggie”) was found on the side of a road in Grand Prairie on the
morning of November 30, 1988. Police found tire tracks on the
The medical examiner determined that cause of
death could be attributed to two sources: being run over by a car
and smothering or strangulation. The medical examiner also
determined that Maggie had been sexually assaulted while alive.
Around 8 a.m. on the day the child’s body was
found, the victim’s mother, Toni Rhodes, discovered that her
daughter was missing from her bed in their apartment at the
Arlington Village Apartment complex.
The window above Maggie’s bed was raised and the
glass pane was broken from the outside.
The child’s blood was found on the window ledge,
torn curtains, and on the wall below the window. Police learned that
on the night of the murder, Jackie Wilson was driving in his brother-in-law’s
red Mercury Cougar with some friends.
Police recovered the car, and noted that the
tread on tires on the vehicle were consistent with the tread marks
on the child’s body. Investigators found hair inside and under the
car that matched the victim’s.
Fingerprints left on the pieces of glass found
inside and outside the victim’s apartment were positively identified
Wilson was indicted in Dallas County for the
capital murder of Lottie Margaret Rhodes. Wilson was convicted of
capital murder on June 8, 1994, and sentenced to death on June 14,
Wilson’s motion for a new trial was
overruled on June 28, 1994.
The Texas Court of Criminal Appeals affirmed the
judgment and sentence of the trial court on February 12, 1997.
The U. S. Supreme Court denied Wilson’s petition
for writ of certiorari on October 6, 1997.
The Court of Criminal Appeals denied Wilson’s
state application for writ of habeas corpus on March 31, 1999.
Wilson filed his federal application for writ of
habeas corpus on January 11, 2000. A U.S. district court denied
relief on September 23, 2002.
Wilson’s application for certificate of
appealability (COA) was denied by the U.S. district court on
December 11, 2002.
Wilson’s application for COA in the 5th U.S.
Circuit Court of Appeals was denied on July 1, 2003. The Supreme
Court denied certiorari review again on February 23, 2004.
Wilson then sought post-conviction DNA testing
from the state trial court, but his request was denied. The Texas
Court of Criminal Appeals affirmed the state court’s denial on March
1, 2006. An execution was set for May 4, 2006.
PRIOR CRIMINAL HISTORY
During the sentencing proceeding, the State
presented evidence of Wilson’s prior criminal record:
• Wilson was arrested for disorderly conduct as
the result of a domestic dispute. Wilson’s mother called the police
because Wilson was arguing with his sister. Wilson appeared
intoxicated, belligerent, was using loud, abusive language, and
refused to calm down despite warning by the police. After arrest,
Wilson refused to give his name or date of birth, and was verbally
abusive towards the officers.
• Wilson was arrested and charged with a traffic
violation, driving without insurance, driving without an on
operator’s license, and evading arrest as a result of a traffic
stop. Wilson tried to run when a second officer responded to the
scene. The second officer chased Wilson and eventually tackled him.
Wilson resisted while being placed under arrest.
• Wilson was arrested and charged with driving on
the sidewalk, running a stop sign, driving on the wrong side of the
street, a seat belt violation, driving without an operator’s license
or insurance, resisting arrest, and giving a fictitious name.
The arrest resulted after an officer stopped
Wilson for driving erratically. The officer had to chase Wilson for
at least ten blocks, sometimes at high speeds, and had to use the
sirens and lights to get him stopped. Wilson, who did not have a
license or proof of insurance, was uncooperative and verbally
abusive to the officer throughout the encounter. Wilson hit the
officer in the face, twice, breaking her tooth and causing her to
The officer chased Wilson, jumped on his back and
placed a carotid restraint hold on his neck, causing him to
temporarily pass out. Wilson refused to walk back to the car, and
had to be carried back where he behaved more violently and
uncooperative than before. He yelled at the officer and her
assistant in Spanish; tried to kick, head-butt, and spit on them;
and tried to kick the car radio.
Wilson eventually head-butted the assistant, and
knocked her out of the car; the officer had to chase and subdue
Wilson a second time. Wilson had to be carried back to the car again
where he continued to behave violently, and verbally abused the
officer for being a woman. Wilson ceased the abuse once a male
officer arrived and began crying
• Wilson was arrested while riding in the back of
a stolen truck, with three other men. The truck contained items from
a recent burglary of another car. When arrested, Wilson gave the
officers a false name.
The State presented evidence of unadjudicated
criminal activity by Wilson prior to his arrest for the present
• Wilson broke into the home of a friend’s family
and stole a VCR.
• Wilson was observed in the parking lot of the
Arlington Village Apartments unloading guns from his car. Wilson
refused to sell one of the weapons to witness Larry French because
he did not know him, however, Wilson came to French’s apartment
several months later, and offered to sell him marijuana.
• Another witness saw Wilson with a bag of white
powder, some of which he offered to give her.
• A witness testified that in 1984, Wilson
coerced her into leaving a bar with him, and then raped her in the
parking lot. When the woman’s boyfriend tried to save her, Wilson
and two other men threw rocks at him. Wilson and the two other men
put her into a truck and drove around for about fifteen minutes
before letting the victim go. Finally, the State presented evidence
of Wilson’s violent conduct after his arrest and incarceration for
the present offense.
• A female sheriff’s deputy escorting Wilson to a
holdover cell following court proceedings, agreed to change Wilson’s
handcuffs to the front so that he would be more comfortable. After
one cuff was removed, Wilson tried to jerk away from the deputy.
Wilson began screaming and cursing the deputy, and the two engaged
in a “tug of war” over the handcuffs until a male deputy entered the
room. At that time, Wilson allowed himself to be handcuffed, and
laughed at the female deputy. After this incident, only male
officers were permitted to transport Wilson.
• While imprisoned at Ellis One, Wilson was
always kept in a high-security area, and was never allowed in a work-capable
unit. Wilson was known to cause problems for the corrections
officers. Belligerent behavior, such as cursing, was a fairly
regular occurrence with Wilson. Wilson was considered dangerous and
was written up for disciplinary violations on many occasions.
• Wilson received a fifteen-day cell restriction,
a thirty-day property restriction, and a thirty-day commissary
restriction – the maximum punishment allowed – for attacking an
unarmed, helpless inmate with a wooden “shank.”
Wilson stabbed the inmate several times with the
wooden “shank,”which had been sharpened to a point and was
approximately six-and-a-quarter inches long. Wilson refused to drop
the weapon, despite being ordered, and continued to chase after the
other inmate, who received a puncture wound to his side and bruising.
Irving man executed in girl's death
By Juan Lozano - Houston Chronicle
Associated Press - May 4, 2006
HUNTSVILLE - A former laborer was executed
Thursday night for the 1988 rape and murder of a 5-year-old North
Texas girl. "Be strong and take care of yourselves," Jackie Barron
Wilson said to his wife, sister and friends as they watched from a
nearby window. "Thanks for being there. Thank you for being there
for me and all these people here will find the one who did this damn
crime. "I am going home to be with God."
Before he began his last statement, Wilson turned
his head and looked toward the family of his victim. But he did not
acknowledge them again. He was pronounced dead at 6:20 p.m., eight
minutes after the drugs began to flow.
Wilson, 39, was the eighth prisoner put to death
this year in Texas and the first of four this month in the nation's
busiest capital punishment state.
Wilson was condemned for the slaying of Lottie
Margaret Rhodes, known by the nickname "Maggie." After breaking into
her bedroom, he kidnapped Maggie from her Arlington apartment in the
early morning hours of Nov. 30, 1988, then sexually assaulted the
little girl before killing her.
Authorities said Wilson, who lived in nearby
Irving, strangled Maggie before running over her with a car.
Next on the execution schedule is Derrick O'Brien,
one of five gang members condemned for the rape-slayings of two
teenage girls in Houston in 1993. He is set to be executed May 16.
Texas man executed for 1988 murder
Thu May 4, 2006
HUNTSVILLE, Texas (Reuters) - A Texas man was
executed by lethal injection on Thursday for the 1988 murder of a 5-year-old
girl abducted from her bed in Arlington, Texas.
Jackie Wilson, 39, was condemned for taking
Maggie Rhodes to a field on November 30, 1988, and raping and
suffocating her. Wilson then drove over the girl's body.
Wilson has maintained his innocence since being
charged in the crime. Wilson's DNA was found on the girl's body. His
fingerprints were found on the apartment's broken bedroom window and
Rhodes' hair was found in and on the underside of the car Wilson was
Wilson was tried twice for the murder. His first
conviction was thrown out because a juror was improperly dismissed.
On Thursday, in a final statement while strapped
to a gurney in the death chamber, Wilson spoke to his family and
friends while proclaiming his innocence. "Honey, I love you," he
said to his wife, Maria. "Thank you for being there for me and all
these people here will find the one who did this damn crime. I am
going home to be with God."
Wilson was the eighth person executed in Texas
this year and the 362nd put to death since the state resumed capital
punishment in 1982, six years after the U.S. Supreme Court lifted a
national death penalty ban, a total that leads the nation.
For his final meal, Wilson requested a
cheeseburger, onion rings, a beef enchilada, tea, Coca-Cola, a whole
onion, a whole tomato and lemon pie.
Man put to death in girl's killing
By Mark Agee - Fort Worth Star Telegram
Fri, May. 05, 2006
HUNTSVILLE -- His tattooed arms strapped to a
gurney, Jackie Barron Wilson used his last words Thursday night to
deny that he had kidnapped, raped and killed 5-year-old Maggie
Rhodes of Arlington.
Wilson, 40, said he hopes, "all these people here
will find the one who did this damn crime. I am going home to be
During a minute-long speech before the state
executed him for the murder of the Roark Elementary kindergartner,
it was the only time he acknowledged the Rhodes family.
Maggie's mother, Toni Rhodes, watched Wilson die
through reinforced glass, along with her brother and sister and two
police officers who worked the case. "I know he's lying and that he
did do it," Toni Rhodes said later. "If that's how he wanted to go,
then that's his choice."
After being given the lethal injection, Wilson's
breathing slowed and he gasped, "I love you," to family members
before he gurgled and began to fade. His wife, Maria, and two family
members cried and recited the Lord's Prayer.
Wilson was pronounced dead at 6:20 p.m. His last
meal was a cheeseburger, onion rings, Coke and a whole onion.
Mike Bosillo, the lead Arlington detective on the
case 18 years ago, said Wilson looked at him and smirked as he
denied, for the last time, that he killed Maggie. "I expected him to
behave this way," Bosillo said. "Jackie Barron Wilson faced his
death the same way he lived his life -- as a coward."
Wilson was convicted of capital murder in 1989,
but his conviction was overturned by an appeals court because of a
procedural violation. He was convicted again in 1994 and sentenced
In a 1993 interview with The Associated Press,
Wilson denied being the killer. Authorities said Wilson's
fingerprints were found on both sides of broken glass at the scene
of the kidnapping; his DNA was on Maggie's clothes; her DNA was
found on the inside and outside of the car he was driving; and a
rare tire on the car matched a track on Maggie's body. "I'm not
going to die for something I didn't do," Wilson said in 1993. "This
is kind of hard for me to believe." Last week Wilson declined an
interview request from the Star-Telegram.
Jim Greenwell, an Arlington police officer who
was a crime scene investigator on the case, attended the execution
and said he wasn't surprised at Wilson's deathbed denial in the face
of overwhelming evidence. "It was his pattern. He lied then, he lied
today, and I'm going to assume that's how he lived his whole life,"
Wilson's attorney, Robin Norris of El Paso, said
his client had a tough childhood, including physical abuse, and had
witnessed the murder of his baby sitter.
Norris filed a request for a new punishment
hearing because evidence of those possibly mitigating factors was
not presented at trial. The Texas Court of Criminal Appeals rejected
that request Monday.
A federal claim filed by the anti-death penalty
Innocence Network, which claimed that lethal injection is cruel and
unusual because the drugs mask horrible pain, was denied a hearing
by the U.S. Supreme Court on Thursday afternoon.
Wilson -- who knew Maggie because he had lived in
the same apartment complex and was a friend of her baby sitter --
broke a window at the ground-floor apartment where the girl slept
early Nov. 30, 1988, police said.
Wilson snatched her from her bed and drove her
from the Arlington Village Apartments near Abram Street and Texas
360 to a field near an abandoned road in Grand Prairie, police said.
Wilson sexually assaulted Maggie and killed her
by driving a red Mercury Cougar over her as he fled, police said.
Maggie's body was found hours later by a truck driver.
She would have turned 23 on Sunday. Rhodes, who
bowed her head during Wilson's final moments, said she was talking
to Maggie. "I said, 'You're free. You can go,'" Rhodes said. "And
then I thanked God for the strength to stand there."
Wilson was the eighth Texas inmate executed this
year and the 363rd since executions resumed in 1982.
Man convicted of killing 5-year-old set to die
By Mark Agee - Fort Worth Star Telegram
Tue, May. 02, 2006
ARLINGTON -- In the cold hours before dawn on a
morning in November 1988, Jackie Barron Wilson broke a window of the
ground-floor apartment where Maggie Rhodes slept.
As the Roark Elementary kindergartner lay next to
her puppy, Wilson pulled her from her bed, which was pushed against
He drove her from the Arlington Village
Apartments near Abram Street and Texas 360 to a field near an
abandoned road in Grand Prairie, said police, who believe that
Maggie was still alive after Wilson sexually assaulted her. Then
Wilson drove the car over Maggie as he fled in the red Mercury
Cougar he had borrowed from his sister's boyfriend.
Maggie's body, clad in shorts and a Muppet T-shirt,
was found hours later by a truck driver just north of the now-closed
International Wildlife Park. Wilson, 40, is set to die by injection
after 6 p.m. Thursday. The execution will come four days after what
would have been Maggie's 23rd birthday.
"I'll just be glad when it's over with," said
Maggie's mother, Toni Rhodes, who lives in Grand Prairie. She plans
to attend the execution. "It will be hard watching someone die. "But
she was only 5 years old. She didn't have a chance to live. He did."
Wilson had two trials. His first capital murder
conviction, in 1989, was overturned on appeal because a juror was
wrongfully dismissed during voir dire, the process in which
prospective jurors are questioned and challenged for bias. Wilson
was tried and convicted again in 1994.
Jerri Sims, then a Dallas County prosecutor who
worked on both trials, said authorities were even more focused on
securing the death penalty the second time around.
Wilson knew how to reach Maggie because he had
lived in the same apartment complex, in the 2700 block of Harriett
Street, and he was friends with her baby sitter. "I don't know that
it makes anything worse," Sims said. "But the fact that he had been
around and watched her play, in my mind that makes it worse."
Wilson's guilt was never in doubt, said Mike Bosillo, who led the
investigation as an Arlington police detective.
Wilson was caught days after the killing. His
fingerprints were on the broken bedroom window, according to police
reports and court testimony. Maggie's hair was in the car, and his
DNA was on her clothes.
Maggie's hair and blood were on the underside of
the car. And a rare Korean tire from the Cougar matched a tire track
on the child's body.
Several women testified at Wilson's trial that he
had raped them or attempted to rape them. "And this has been going
on 18 years now," said Bosillo, who is now deputy chief investigator
for the Dallas County district attorney. "He's gotten a free ride.
But it ends soon."
From his cell on Death Row, Wilson refused an
interview request from the Star-Telegram. His attorney, Robin Norris
of El Paso, said that the Texas Court of Criminal Appeals declined
Monday to hear a petition alleging that Wilson had inadequate
counsel at trial. Norris said Wilson has two avenues left to spare
There is a clemency petition pending before the
parole board, Norris said. And the Innocence Network filed a civil
case on Wilson's behalf in federal court last week claiming that
lethal injection is unconstitutional because it is cruel and unusual,
said David Dow, a professor at the University of Houston Law Center.
Human rights groups have claimed that the drugs used in lethal
injection disguise excruciating pain.
The U.S. Supreme Court heard a similar case from
Florida last week. The Innocence Network's claim was rejected Monday
morning, but Dow said they were appealing to a higher court, hoping
for a stay of execution.
Rhodes said she was asked to write a letter to
the parole board, offering her view on clemency for Wilson. She said
she wrote the letter in one draft. It took just a few minutes. "I
just want to know that my child's death did not go unpunished. I
believe he forfeited his life the day that he took Maggie's life,"
Rhodes wrote of "the man who took my first-born child's life for his
own sick pleasure." "I'm a single mom with three jobs, and I
struggle every day to have what I have," Rhodes said. "It makes me
so mad that my taxes are paying to keep him alive."
Maggie had also been abducted and sexually
assaulted in June 1987 but released within an hour. Investigators
never found a link between that case and Wilson. News stories at the
time said Maggie won a prize for best story in her kindergarten
class and idolized rock star Joan Jett.
She liked pork chops and mustard sandwiches. She
was buried in Minnie Mouse earrings and a blue velvet dress that she
would have unwrapped Christmas morning.
When she died, she had one little brother. Now,
she would have been the oldest of four children. Rhodes has two
daughters, 15 and 10 years old, whom she calls blessings because
they were born after Maggie died. Her son, who was sleeping in the
same room with Maggie the night she was taken, is now 20.
Rhodes remembers him coming to her on the morning
of Nov. 30. "He said, 'Him hit Maggie! Him hit Maggie!'" Rhodes said.
"Maggie did all of his talking for him. I could never understand
what he said, but she always could."
The prosecutors and investigators who worked the
case -- most of whom are in different jobs now -- all remember the
case vividly. Toby Shook, now chief of the Dallas County district
attorney's office's felony division, was the assistant prosecutor in
the second trial. He called the case "every parent's worst nightmare."
"He stole her out of her bed in the middle of the
night and left her on the side of the road like a piece of trash,"
Shook said. "We were all dedicated to putting him on Death Row."
Sims is now the deputy criminal chief over
narcotics and violent crime for the U.S. attorney's office for the
Northern District of Texas. She keeps a photograph of Maggie in her
desk. It's a school picture. On the back, Maggie had written her
name and age.
Bosillo and Arlington police officer Jim
Greenwell, who was the crime scene investigator on the case, plan to
attend the execution. "I saw what that animal did to that girl,"
Greenwell said. "It was a nightmare. I want to see justice played
out. There's no nice way to put this -- it's going to be a good day."
Rhodes has kept in touch with them, often calling
on the anniversary of Maggie's death or on her birthday. "They knew
her very well in death, but they didn't know her in life. I like to
tell them about her," Rhodes said. "It's not just another case to
them." Bosillo said he'll never forget. "At the trial, the
prosecutors talked about the boogeyman -- the bad guy in her dreams,"
Bosillo said. "But to Maggie Rhodes he was real. And he came in the
form of Jackie Barron Wilson."
Lottie Margaret Rhodes was a five-year old
kindergarten student who was known as Maggie.
On the morning of November 30, 1988, Maggie's
body was found face-down on the side of a road in a secluded area of
A truck driver had spotted her body in the bushes
along the street. Her shorts had been pulled down, exposing her
It was immediately apparent that she had been run
over by a car. A further examination revealed that she had been both
vaginally and anally raped, strangled, and suffocated.
There were tire marks on her body which reflected
two distinct tire patterns. A pair of semen-stained panties were
found near Maggie's body.
Investigators discovered Maggie’s identity when
they learned that Maggie, who lived in an apartment complex with her
mother, brother, and a live-in baby sitter, had been reportedly
abducted from her bedroom the night before. The window in her
bedroom had been broken from the outside.
Maggie’s mother had gotten up early to be at work
by 7 am and had found that Maggie was missing after she noticed a
draft in the room. Whoever kidnapped Maggie had put stuffed animals
under her covers to make it appear that she was in bed asleep. The
babysitter had last checked on Maggie around 2 am.
Earlier in the evening, the babysitter had cared
for Maggie and her 3-year-old brother while their mother worked at a
dinner until about 11:30 pm. Maggie’s mother had also checked on her
daughter before going to bed around midnight.
Several pieces of glass recovered from inside and
outside Maggie's bedroom had Jackie Wilson’s fingerprints on them.
Several witnesses testified that they saw Wilson
driving a red spray-painted Mercury Cougar on the night of the
murder, and in a statement he gave police, Wilson admitted to
driving the car that evening.
The two types of tire tracks found on Maggie's
body were consistent with the two types of tires on the Cougar.
Thirty-eight human hairs, which were found to be
microscopically consistent with Maggie's hair, were recovered from
the undercarriage of the Cougar, and fibers mixed in with those
hairs were consistent with the Cougar's carpet fibers.
Nineteen additional hairs were recovered from
inside the Cougar, and they were found to be consistent with
Maggie's hair. A chest or pubic hair recovered from Maggie's
genitalia was consistent with a racial group that includes Hispanics;
Wilson is Hispanic.
Additional evidence involved a similar crime
committed by Wilson the same evening that Maggie was murdered.
Namely, an additional complainant from the same apartment complex
testified that Wilson broke into her apartment and sexually
assaulted her as she slept on the couch. When she awoke, she ordered
Wilson to leave.
The complainant testified that it appeared that
Wilson had entered through a window. He offered her drugs in
exchange for sex; declining, she again ordered Wilson to leave,
which he did.
There was also testimony from several witnesses
who saw Wilson drive toward the apartment complex (instead of
heading home in the other direction) just before midnight the
evening of Maggie's murder. These witnesses further testified that
Wilson had been drinking heavily and using cocaine before he
When investigators were given Wilson’s name by
another child living in the apartment complex, a police officer went
to Wilson’s residence to question him. Upon the officer's arrival,
Wilson was identified as a friend of the Rhodes
family live in babysitter. Friends and neighbors described Maggie as
bright, pretty and outgoing.
In 1987, Maggie had been kidnapped by an unknown
assailant and released. Then aged 4, she had been found wandering
about five miles from her home. She told police that a thin black-haired
man about 19 had kidnapped her from outside her apartment in the
morning of June 22, 1987.
The man released her about an hour later. Medical
evidence indicated that Maggie may have been sexually assaulted in
the first kidnapping, but police never apprehended the perpetrator
in that case.
National Coalition to Abolish
the Death Penalty
Do Not Execute Jackie Wilson!
Jackie Wilson - May 4, 2006 - Texas
Jackie Wilson, a 39-year-old Latino man, is
scheduled to be executed on May 4 for the 1988 murder of Dallas
County resident Lottie Margaret Rhodes. After spending the evening
ingesting alcohol, cocaine, and marijuana, Wilson is alleged to have
broken into Rhodes’ bedroom during the night through her window. He
is said to have abducted her, after which he raped and sodomized her.
Finally, Wilson is alleged to have suffocated
Rhodes before running her over with his car. Whether she died from
asphyxiation or trauma from the car is uncertain.
One point that Wilson argued before the 5th
Circuit Court of Appeals is the prosecution’s failure to prove his
intent to murder Lottie Rhodes.
He claims that reasonable doubt exists as to why
he suffocated and ran over Rhodes. What’s more, he had been
consuming no less than three drugs before the abduction and he was
Not only might this be a mitigating circumstance
in terms of forming intent to commit the abduction and rape, but it
might explain how actions that Wilson did not intend to be fatal
For instance, under the effects of the drugs
Wilson might not have realized how hard he was holding his hand over
Rhodes’ mouth, or his reaction time may have been so reduced as to
make him unable to avoid hitting her when driving away.
Furthermore, the nature of the crime is so
heinous and needlessly violent that it strongly suggests a severe
mental disorder in Wilson. Granted, this may not translate to legal
insanity to the extent that Wilson ought to be found not guilty, but
it is the kind of mitigating factor that can make the difference
between a death sentence and a life sentence.
This kind of diminished intent and mental illness
will not cause Wilson’s guilty verdict to be overturned, nor are
they intended to. Nevertheless, the jury instructions given in this
case did include the line “Unless you find from the evidence beyond
a reasonable doubt that the defendant… specifically intended to kill
the victim… you cannot convict him of the offense of capital murder.”
Additionally, a defendant as deranged as Wilson
ought not to have been given the death penalty. Wilson may be guilty
of murder, but we ought not to let the state put him to death.
Please write to Gov. Rick Perry on behalf of
Irving man executed for rape, murder of 5-year-old
By Tori Brock - Itemonline.com
CNHI News Service
Not only did convicted murder Jackie Barron
Wilson not acknowledge killing 5-year-old Lottie Margaret “Maggie”
Rhodes, he proclaimed his innocence in his final words. Looking at
his family and friends witnessing his execution, Wilson told them to
take care of themselves. “Thank you for being there for me and all
these people here will find the one who did this damn crime,” he
said. “I am going home to be with God.” After the lethal dose began,
he looked at one point at his family and laughed, a short time later,
he sputtered and died. He was pronounced dead at 6:20 p.m., eight
minutes after the drugs began to flow.
Wilson, 39, was condemned the rape and murder of
5-year-old Rhodes. After breaking into her bedroom, he kidnapped her
from her home in Arlington in the early morning hours of Nov. 30,
1988, then sexually assaulted the little girl before killing her.
Authorities said Wilson, who lived in nearby Irving, strangled
Maggie before running over her with a car.
Being allowed to say good-bye to his family was
more than he deserved, according to Toni Godbee Latham, mother of
the victim. Latham witnessed the execution and gave a press
conference afterward. “He was able to go to sleep,” she said, her
voice cracking as she fought back tears. “I didn’t see him suffer
any pain or anything remotely (close) to what my daughter went
“He took that right away from her,” she said. “I
am thankful that justice was finally carried out the way it should
be. Her death has not gone unpunished.”
Rhodes’ battered body was found about five miles
from her home a few hours after she was kidnapped. She was face down
in a muddy ditch next to a rural road in Grand Prairie. Wilson has
said he knew Rhodes but denied he kidnapped or killed her.
Next on the execution schedule is Derrick O’Brien,
one of five gang members condemned for the rape-slayings of two
Houston teenage girls in 1993. He is set to be executed May 16.
Man to be executed for rape, murder of 5-year-old
By Juan A. Lozano - Herald Democrat.com
Associated Press - May 4, 2006
HOUSTON — Dressed in Muppets pajamas with her pet
puppy under her arm, 5-year-old Lottie Margaret Rhodes slept in her
North Texas apartment bedroom in the early morning hours of Nov. 30,
1988, unaware of the danger just outside her window.
Fueled by a night of heavy drinking, cocaine and
a failed sexual assault about an hour or so before, Jackie Barron
Wilson broke into the little girl’s room and kidnapped her.
The victim, nicknamed “Maggie,” was sexually
assaulted, suffocated, beaten and run over by a car. Maggie’s
battered body was found a few hours later about five miles from home,
face down in a muddy ditch next to a rural road in Grand Prairie.
The truck driver who found the girl told authorities she looked like
a doll tossed on the side of the road.
Wilson, 39, was convicted of capital murder and
is set to be executed Thursday night in Huntsville. He would be the
eighth prisoner put to death this year in Texas and the first of
four this month in the nation’s busiest capital punishment state.
The condemned inmate was originally convicted and
sentenced to death in September 1989. An appeals court overturned
his conviction on a legal technicality. He was retried in June 1994
and again found guilty and returned to death row.
“It’s just a nightmare scenario of a sleeping
child taken from her bed by a stranger in the dead of night and
brutally murdered and left on the roadside like a piece of trash,”
said Dallas County prosecutor Toby Shook. Maggie’s cause of death
was strangulation and head injuries from being run over by a car.
The vast amount of forensic evidence left no
doubt Wilson committed the crime, Shook said. Several pieces of
glass recovered from inside and outside the girl’s bedroom had
Wilson acknowledged to authorities he drove a red
Mercury Cougar on the night of the murder. The two types of tire
tracks found on Maggie’s body were consistent with the two types of
tires on the vehicle. Police also found human hairs both inside the
car and underneath it that matched the victim.
Shook said just before Wilson kidnapped Maggie,
he had broken into another apartment at the same complex and tried
to sexually assault a woman. She chased him out but did not call
authorities. Wilson declined a recent interview request from The
In a 1993 interview with the AP, Wilson said he
had lived in Maggie’s apartment complex but denied kidnapping and
murdering her. Authorities said Wilson, who lived in nearby Irving
at the time of the slaying, had been in the girl’s apartment before
because he knew her live-in baby sitter. “I’m not going to die for
something I didn’t do. This is kind of hard for me to believe,” he
The Texas Board of Pardons and Paroles on Tuesday
rejected requests to commute Wilson’s sentence to life or halt the
This week, a federal judge in Houston and the 5th
U.S. Circuit Court of Appeals denied a request from his attorneys to
delay the execution by lethal injection because the combination of
drugs constitutes cruel and unusual punishment. Wilson has appealed
to the U.S. Supreme Court. Similar appeals in recent Texas death
penalty cases were unsuccessful.
Robin Norris, one of Wilson’s attorneys, said his
client had an extremely tough childhood, including being neglected
and abused by family members and witnessing the murder of a
Norris asked for a new punishment hearing because
evidence of his client’s personal history, which might have swayed
jurors from handing down a death sentence, wasn’t presented at his
trials. The Texas Court of Criminal Appeals turned down the request
Shook said Wilson’s long history of criminal
violence, including raping a Lubbock woman in 1984 and stabbing an
inmate while he was on death row, show the jury made the right
decision. “He is just a remorseless killer,” he said.
Next on the execution schedule is Derrick O’Brien,
one of five gang members condemned for the savage rape-slayings of
two Houston teenage girls in 1993.
Jackie Barron Wilson - Texas Death Row
Purpose: I hope to gain world-wide attention of
the injustice imposed on me and my case, due to lack of Adequate
Legal Representation and failure to conduct a meaningful
Investigation in my Capital Case. Let me express, "I am not guilty
of this crime." Please help me obtain my freedom.
Hello! I greet any and all of you in peace and
My name is Jackie Barron Wilson, #000957, I'm on
Death Row at Charles Terrell Unit in Livingston, Texas. I'm 33 years
of age, never been married nor have children, arrived here on Death
Row 11/21/89. I was falsely accused and according to the jury "found
guilty" and was sentenced to death.
I'm supposed to be guilty of knowingly and
intentionally causing the death of the victim by striking with motor
vehicle as well as attempting to commit the offense of abduction.
This crime was committed in Dallas County.
The conviction was based on Circumstantial
Evidence. Tests were performed on my clothing and other samples, but
there was no match. I'm not guilty of this crime and desperately
wish to prove my innocence. However, I do not possess the
qualifications or expertise in legal research to develop a proper
Also, due to total isolation and deprivation of
meaningful access to Law Library priveleges (as Death Row is not
allowed to physically enter the Law Library.) and trained Legal
Assistance is impossible to adequetly address a claim of
Insufficient Legal Representation. In addition, my indigent status
prevents me from obtaining a competent (paid) lawyer.
Therefore, I have formed a Legal Defense Fund in
hopes it enables me to hire an attorney that will assist me prove my
innocence but without you it will be impossible to accomplish my
mission. That is why I'm asking for monetary contributions. I will
appreciate any contribution you can send to my defense fund from
$1.00 to any amount you may be able to afford. Please include
Account #004772991647 on check or money order. All monetary
contributions will be used solely for Jackie B Wilson's legal costs.
Receipts and any requested information regarding the use of your
money will gladly be provided by contacting Ms Belcher.
PO Box 170925
Dallas Texas 75217 USA
Please send contributions to :
Bank Of America /Jackie B Wilson Defense Fund
Acct # 004772991647
PO Box 620020
Dallas Texas 75262-0020
Thank you in advance for your generosity. However,
your moral support and prayers will also be acknowledged. My
interests: Reading, writing / reading poetry, painting, and drawing.
I enjoy listening to a wide variety of music from Mozart to Country.
I am friendly and respectful to people, their ideas and opinions.
Since my life is on the hands of the State of Texas, and my time is
running out, I ask that only serious people contact me by writing or
sending email to : Jackwilsonmb4@yahoo.com
TEXAS DEATH ROW
FROM THE EYES AND MIND OF JACKIE WILSON
First, I feel that its of grave importance to
make clear that I'm not guilty of the crime for which the State of
Texas sentenced me to death. Second, let me remind you that this
could happen to you. All it takes is being in the wrong place at the
wrong time, especially if you are poor or a minority. I realize that
there are misconceptions concerning the derath penalty issue and the
living conditions at the prisons. Hopefully, by the time you finish
reading this page, I will have brought awareness concerning the
Death Row living conditions and the Justice System.
I have been on Death Row since 1989. Before I was
accused of the crime I did not committ, my occupation was Brick
Mason and Auto Mechanic. I have never been married nor have children.
I enjoy reading, writing, poetry and doing calisthenics.
I enjoy reading history of my anestors, biography,
and literature. However, my favorites are Archaeology, Astronomy and
Fiction as well as law books. Sports: I like football, basketball
and handball (allowed only to read about.) I also enjoy drawing/painting
with pencil, pen and oils. I'm intelligent, have good sense of
humor, friendly and respectful to people, ideas and opinions.
The living conditions here at the Charles Terrell
Unit in Livingston Texas are not pleasant, contrary to what some
people believe and what politicians say. At this unit most of the
guards and high rank personnel treat us without respect or basic
According to them, they are always right. We are
expected to follow rules or suffer the consequences, but they do not
go by the rules when applying punishment, especially when sending us
to Level II or III.
In these two levels we are deprived of many
things. Radios, typewriters, mirrirs, shaving razors, can goods and
electrical appliances (a small fan in hot weather) are not allowed
in the cell. I will not mention the humiliation we experience
especially when sent to these two levels.
In addition, sometimes we are kept on each level
for longer than three months in total isolation. Also, opposite of
what some people believe, we are not at any time allowed to play
sports, purchase a television, and no longer allowed to build arts
We are expected to recreate by ourselves with no
physical contact. If allowed, we are placed inseperate recreation
rooms or in outdoor wired cages for one hour. I do not understand
the purpose of the deprivation since according to psychologists,
"human contact is vital to maintain sanity."
The media states that a high percentage of
society support the Death Penalty. If the media is correct, I hope
those in support, their children or grandchildren, do not ever face
the nightmare imposed on me. Please keep an open mind concerning my
situation because some of us were wrongfully convicted.
Thank you for your time and God bless you.
Hello! I greet any and all of you in peace and
prosperity! My name is Jackie Barron Wilson, #000957. I am a Death
Row inmate here at the Charles Terrell Unit in Livingston, Texas. I
am 33 years of age, arrived here on 11/21/89. I was falsely accused
and according to the jury "found guilty" and sentenced to death. I
am suppose to be guilty of knowingly and intentionally causing the
death of the victim, by striking her with a motor vehicle and
attempting to commit the offense of abduction. This crime was
committed in Dallas County. The conviction was based on
Tests were done on my clothing and other samples,
but there was no match... Purpose: I hope to gain world-wide
attention of the injustice imposed on me and my case, due to lack of
Adequate Legal Representation and Investigation in my Capital Case.
Let me express, "I am not guilty of this crime." Please help me
obtain my freedom.
Wilson v. State,
863 S.W.2d 59 (Tex.Crim.App.1993) (Direct Appeal)
Defendant was convicted in the Criminal District
Court No. 3, Dallas County, Mark Tolle, J., of capital murder, and
he appealed. The Court of Criminal Appeals, Baird, J., held that:
(1) finding that defendant knowingly and intentionally caused
victim's death was supported by evidence; (2) finding that defendant
caused victim's death in course of committing and attempting to
commit kidnapping was supported by evidence; and (3) grant of
state's challenge for cause on ground that prospective juror could
not affirmatively answer second punishment issue solely on facts
that particular offense was error. Reversed. Miller, J., concurred
and filed an opinion in which Meyers, J., joined. McCormick, P.J.,
and White, J., dissented. Campbell, J., dissented with note.
Appellant was convicted of capital murder pursuant to Tex.Penal Code
Ann. § 19.03(a)(2).FN1 The jury returned affirmative answers to the
two issues submitted pursuant to Tex.Code Crim.Proc.Ann. Art.
37.071(b). FN2 Punishment was assessed at death. Id. at (e). Appeal
to this Court is automatic. Id. at (h). Appellant presents twenty
points of error including a challenge to the sufficiency of the
evidence.FN3 We will reverse.
FN1. Tex.Penal Code Ann. § 19.03 provides in part:
(a) A person commits an offense if he commits murder as defined
under Section 19.02(a)(1) of this code and: (2) the person
intentionally commits the murder in the course of committing or
attempting to commit kidnapping ···
FN2. Appellant was convicted on September 27,
1989. However, on September 1, 1991, Tex.Code Crim.Proc.Ann. art.
37.071 was amended. All references herein will be to the statute as
it appeared at the time of appellant's trial.
The first issue asked: Was the conduct of the
defendant that caused the death of the deceased committed
deliberately and with the reasonable expectation that the death of
the deceased or another would result?
The second issue asked: Is there a probability
that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society?
FN3. Appellant's brief discusses twenty-one
points of error, however, the text omits an eighteenth point of
error. Therefore, we will respond according to the twenty points of
error as numbered in appellant's table of contents.
I. THE FACTS
A thorough review of the record is necessary to
address the points of error raised by appellant. The indictment
alleged in part: [Appellant] knowingly and intentionally cause[d]
the death of [deceased] ··· by CAUSING THE ASPHYXIATION OF THE [Deceased]
IN SOME WAY OR MANNER, AND BY MEANS, INSTRUMENTS, OR WEAPONS THE
EXACT NATURE AND DESCRIPTION WHICH IS TO THE Grand Jurors unknown
and by crush force injury to the [deceased] caused by striking the [deceased]
with a motor vehicle and the [appellant] intentionally did cause the
death of the [deceased] while the said [appellant] was in the course
of committing and attempting to commit the offense of KIDNAPPING [deceased]····”
On November 30, 1988, at approximately 6:55 a.m.,
a truck driver spotted what appeared to be a doll to the side of a
narrow two lane road in Grand Prairie.
Upon closer inspection, the driver discovered the
deceased and stopped a passing school bus, whose driver then
reported the discovery.
At approximately 7:00 a.m., Grand Prairie
motorcycle police officer Kim Wolf arrived at the scene. Wolf
described the location as an isolated area, without houses, and “not
widely traveled or used.” The deceased was very cold and covered
A crime scene technician testified that the
deceased was wearing a tee shirt and shorts. A pair of blood-stained
panties, later identified as belonging to the deceased, was found at
The deceased was lying face down and appeared to
have been run over by an automobile. Distinct tire imprints were
visible across the deceased. The dirt and grass around the deceased
also showed distinct tire tracks.
Dr. M.G.F. Gilliland, medical examiner at the
Southwest Institute of Forensic Sciences, performed an autopsy on
Gilliland observed injuries indicating an
asphyxial injury that came about by either a compression pressure on
the neck, the blocking of the nose or mouth, or some combination of
Gilliland found numerous incidental injuries, all
associated with strangulation or smothering. Gilliland also found
what she described as “extensive breaking of the bones of the skull
··· down, through the base of the skull, which is a fairly dense
Gilliland's testimony also indicated that part of
the brain was torn away and that the deceased had inhaled blood
through a wound to the airway.
The deceased was covered with grease and grime.
Gilliland observed tire tread marks in both the dust on the body and
in the skin. Specifically, Gilliland found a tire mark with a
distinctive “V” pattern on the inside of the deceased's right leg.
Along with the “V” pattern, Gilliland also found
a different set of marks that had “line like,” right angled, marks.
The marks appeared as a “very sharp set of marks, [forming a] very
distinctive pattern” in the deceased's skin.
According to Gilliland, the deceased's vagina had
extensive internal and external injuries, including “a tear up high,
in the vagina, next to the neck of the womb, the cervix.”
The deceased's anus had very extensive bruising
and splitting of the skin as well as evidence of tearing. There was
also bleeding inside the rectum that extended up two inches.
Gilliland testified that the injuries were
consistent with a grown man having anal intercourse with the
deceased and might be consistent with the digital penetration of the
vagina. The injuries occurred before the deceased's death.
Gilliland attributed the deceased's death to
asphyxia and blunt force and crushing injuries to the head and
concluded that either the asphyxia or the head injury could have
caused the deceased's death. According to Gilliland, if one injury
had not caused the deceased's death, the other injury would have.
The injuries were illustrated to the jury through
photographs and diagrams. Carolyn Van Winkle, a forensic serologist
from the Southwest Institute of Forensic Sciences, testified that
spermatozoa were detected on the vaginal and anal swabs from the
deceased even though no seminal fluid was recovered.
However, seminal fluid was recovered from the
deceased's panties, but not in sufficient quantity to analyze.
Officer Jim Greenwell, a member of the crime
scene search unit of the Arlington Police Department, testified that
he went to the Arlington Village Apartments to investigate a report
of a missing five year old girl.
The deceased lived in apartment fourteen, and, as
will be discussed infra, was last seen alive in her bedroom at
approximately 1:30-2:00 a.m. on November 30, 1988.
After hearing of the discovery of the deceased,
Greenwell left the apartment and drove approximately twelve minutes
to the deceased's location. Near the deceased, Greenwell found
“acceleration marks,” described as “the transfer of burnt rubber on
the grass,” just west of a blood spot.
Greenwell testified that someone driving a
vehicle would have enough time and distance to maneuver their
vehicle to avoid hitting the deceased. Several days after the
deceased's death, the police acquired appellant's name and
When appellant was arrested on December 7 at an
Irving apartment, police noticed a red, 1975 Mercury Cougar (hereafter
referred to as “the vehicle”) at that location.
The police obtained a consent to search from the
vehicle's owner, Frank Uriqueza, and impounded the vehicle. The
vehicle had three Eagle G.T. tires and one Nito tire.
Upon a more thorough examination, Greenwell found
the Nito tread pattern appeared consistent with the pattern on the
deceased's leg and the G.T. pattern appeared consistent with the
pattern on the deceased's shoulders.
Greenwell's examination of the undercarriage of
the vehicle discovered hair imbedded in the grease behind the left
front wheel, on the transmission housing between the two front
wheels, near the left rear wheel, the rear axle, and below the
Greenwell also found what appeared to be flesh
and hair near the left rear tire. On the fender just behind the
front left tire, Greenwell found what appeared to be blood.
Evidence from the undercarriage was examined,
photographed, removed where possible, and submitted to the Institute
of Forensic Sciences for examination and analysis. Greenwell
obtained tire tread impressions from the vehicle and testified to
the differences between Nito and G.T. tire treads and to the
placement of the tires on the vehicle.
After examining the exterior, Greenwell
systematically searched and vacuumed the interior of the vehicle.
The search produced loose hairs from the front left quadrant of the
The material Greenwell collected was turned over
to the Institute of Forensic Sciences for analysis. Charles Linch, a
trace evidence analyst with the Southwestern Institute of Forensic
Sciences, testified that he received a number of evidence samples in
connection with the instant case including the samples collected by
Greenwell in the search of the vehicle.
For comparison purposes, Dr. Gilliland submitted
a known “hair standard” from the deceased. Linch compared the
various hair and fiber samples with the known hair standard. Linch
concluded that the hair samples from the vehicle came from the
deceased. Additionally, carpet fibers from inside the vehicle and a
hair from deceased were found in a sample from the vehicle's
Linch agreed that such a finding was consistent
“with the head hair of [deceased] coming into contact at some point
in time, with those [carpet] fibers inside the vehicle.”
Max Courtney, an expert in tire tread comparisons
and impressions, testified concerning the vehicle's tread marks.
Courtney examined the tires on the vehicle and compared their tread
patterns with photographs of the tire tread impressions on the
Courtney concluded that the Nito tire impression
on deceased's leg shared “a correspondence of class characteristics”
with the Nito tire tread pattern on the vehicle. Additionally, all
“observable class characteristics” of the vehicle's Eagle G.T. tires
matched the impressions on the deceased's shoulders.
Class characteristics, those identifying features
common to all tires of that class, were preserved in the deceased's
However, the deceased's body was not conducive to
the preservation of “individual characteristics,” which would
identify which particular tire of a given class actually caused the
Frank Uriqueza, the vehicle's owner, testified
that he bought three Eagle G.T. tires for the vehicle and those
tires had been on the vehicle for two months prior to the search of
Uriqueza testified that appellant borrowed the
vehicle on November 29, 1988, and returned the vehicle and awakened
Uriqueza shortly before 4:40 a.m. on November 30, 1988.
Uriqueza got out of bed and asked appellant where
the vehicle was parked. Appellant responded that the vehicle was
parked in a different place than usual.
The deceased's mother came home from work about
11:20 p.m. on November 29, 1988. Both of her children slept in one
bedroom. Joe Martinez, the live-in babysitter, slept on the couch in
the living room. At midnight, the deceased was asleep in bed.
The deceased's mother testified that the
temperature was warm in the deceased's bedroom, indicating that the
window immediately above the deceased's bed was closed.
The deceased's mother further testified that the
window in the children's room had a lock at the top of the window
that she had installed herself in addition to the regular lock at
the bottom of the window. Additionally, the apartment complex had
repaired the window in the children's bedroom one month prior to the
The deceased's mother had cleaned the deceased's
bedroom before going to work on November 29, and had noticed that
the window was locked. The window had no screen.
Early on November 30, Martinez and two friends
were outside the apartment near the deceased's window. The
deceased's mother talked to Martinez and friends for a “couple of
minutes” through her bedroom window and then saw them leave through
a gate. The deceased's mother went to sleep sometime after 1:25 or
1:30 a.m. after telling Martinez to come inside.
After the deceased's mother awoke at 8:00 a.m.,
she felt a cold draft coming from the children's bedroom, went in to
locate the draft, and realized the deceased was missing.
The deceased's mother noticed that the window
pane by the deceased's bed was broken. The curtains were torn and
“messed up.” When she and Martinez could not find the deceased, she
called the Arlington Police Department.
Arlington police detective Mike Bosillo arrived
at the apartment at 8:40 a.m. and noticed the opened, broken window
pane and bent curtain rod above the deceased's bed. While at the
apartment, Bosillo learned that a young girl's body had been found
in Grand Prairie.
Bosillo carried a photograph of the deceased to
Grand Prairie, nine miles from the deceased's apartment in Arlington,
and identified the body as the deceased. Arlington Police crime
scene search officer Glenn Cole examined the deceased's apartment
The examination revealed fingerprints on several
pieces of broken glass from the bedroom window. Cole found a patent
fingerprint on a piece of glass under a doll beneath the bed
Cole testified the window was broken from the
outside. Outside the deceased's window, Cole collected a piece of
weather stripping pulled from the window and found fingerprints on
several pieces of glass.
FN4. A “patent” fingerprint is one apparent to
the naked eye without need for developing. A “latent” print is one
that must be treated to become visible.
Cole compared the recovered fingerprints to known
fingerprints of appellant and matched the fingerprint on the glass
found in the deceased's bed to appellant. Cole also matched
fingerprints from two other pieces of glass to appellant.
On a piece of glass found outside, Cole
determined that appellant's thumb print appeared on one side of the
fragment and the appellant's index and middle fingerprints appeared
on the other side of the same fragment.
Cole testified that the evidence was consistent
with appellant breaking out a portion of the window, placing his
thumb on one side of a piece of broken glass and his second and
third fingers on the other side of the same piece of glass, and
lifting the glass out of the window.
Along with the broken glass, police also
recovered five blood samples from the apartment area. Cole collected
three suspected blood samples from the window sill in the deceased's
bedroom and one from the wall by the deceased's bed. Cole recovered
a fifth blood sample from the outside window sill.
Cole submitted the samples for analysis, however,
the Institute determined the samples were too small to fully analyze.
Van Winkle, the Institute serologist, testified that examination of
the samples confirmed human blood, but could not reveal any person's
An eleven-year-old witness testified that in June,
1988, appellant and the deceased attended a birthday party at the
During the party, appellant stroked the
deceased's hair and commented on how pretty the deceased's hair was.
Martinez, the deceased's babysitter, testified
that appellant had lived in the apartment complex previously.
According to Martinez, the deceased avoided
appellant when appellant was around the apartment. Martinez last saw
appellant in the complex on Halloween, 1988, approximately one month
before the deceased's death.
Martinez testified that the deceased's mother
returned home from work on November 29 at about 11:30 p.m. Around
11:50, the deceased was asleep in her bed. Martinez left the
When Martinez returned at approximately 2:00
a.m., he noticed that the deceased was uncovered. Martinez covered
the deceased and noticed that the window above the deceased's bed
was closed and locked.
Antonio Lopez testified that appellant and Victor
Herrera arrived at Lopez's apartment on November 29 with a twelve
pack of beer and a bottle of Seagram's liquor. Lopez testified that
appellant and Herrera arrived in the vehicle. Lopez saw appellant
ingest one line of cocaine.
Appellant told Lopez that the vehicle was a “fast
car” before appellant “peeled out” of the parking lot. Lopez
observed the smoke caused by the vehicle's spinning tires at
approximately 10:45 p.m. as appellant and Herrera drove away.
Appellant was driving the vehicle.
Carol Gonzales testified that appellant and
Herrera arrived at her apartment at approximately 11:00 p.m. on
November 29 with beer and Seagram's. Gonzales requested that
appellant leave after appellant became angry and got into an
argument with a friend of Gonzales. Appellant told Gonzales that he
did not feel welcome, and left some time between midnight and 1:00
Appellant “peeled out” when leaving in the
vehicle. Able Loya worked at an Arlington gas station approximately
one mile from Gonzales' apartment and was working his regular shift,
from 4:00 p.m. to midnight, on November 29.
Loya was still at the station at approximately
12:30 a.m. on November 30 when appellant and Herrera drove into the
Loya remembered seeing the vehicle before and
observed that appellant was driving the car when it pulled into the
station. Loya had also seen appellant driving the vehicle on prior
Appellant got out of the car and pumped $2.00
worth of gas. Loya talked to appellant briefly and accepted payment
for the gas. Appellant also gave Loya a beer.
Victor Herrera testified that he was with
appellant on November 29, and that at about 6:30 p.m., appellant
asked Herrera if he wanted to buy some cocaine. Appellant was aware
that Herrera was carrying $110.00.
The two purchased cocaine from a friend of
appellant's and ingested some. Herrera and appellant had used
cocaine and other drugs on previous occasions.
On January 4, 1989, police obtained a warrant to
search appellant's apartment for specific articles of clothing. At
trial, Herrera identified an exhibit as the sweatshirt worn by
appellant on the night of November 29, 1988, and described
However, the described pants were not discovered
in the search of appellant's apartment. Herrera also identified the
vehicle in which Herrera and appellant travelled on November 29.
Herrera testified that appellant was the person
driving the vehicle on the night of November 29 and the morning of
Appellant and Herrera bought beer and Seagram's
at a liquor store. While waiting for Tony Lopez to arrive home, the
two drank beer and liquor and ingested three or four lines of
After Lopez arrived, the trio continued drinking
and ingesting cocaine and marijuana until about 10:30 p.m. Herrera
requested that appellant take him home and the two left.
However, appellant took Herrera to Gonzales'
apartment. Herrera again wanted to leave and go home because he was
bored and did not know any of appellant's friends.
After leaving the apartment, the pair stopped by
a gas station and then appellant took Herrera home. Herrera returned
home at 12:20 a.m.
Susan Jennings, one of the deceased's neighbors,
testified that appellant and two companions came to her apartment
some time after 1:00 a.m. on November 30. A neighbor visiting
Jennings left after appellant appeared.
Appellant and his companions chatted in
Jennings's apartment for a few minutes before Jennings asked them to
leave. Jennings locked the door behind the trio, but did not check
her window which she knew was locked before appellant arrived. After
appellant left, Jennings laid down fully clothed on her couch and
went to sleep.
Jennings awakened when she realized someone was
fondling her. At first, Jennings thought it was her husband, but
when she awakened from her “groggy” state, she recognized appellant
and started screaming.
Jennings noticed that her window was up.
Appellant began claiming that Jennings had let him in. Jennings
became more irate and ordered appellant out of the apartment.
Appellant offered Jennings some “speed” in return
for sexual favors. Jennings again ordered appellant out of her
apartment and noticed that appellant headed in the direction of
deceased's apartment. Jennings was unaware of any other incident
until the next morning, when the Arlington police came to her door
to inquire about Jennings' knowledge of the missing deceased.
II. SUFFICIENCY OF THE EVIDENCE
In points of error one, two and thirteen,
appellant contends the evidence is insufficient: a) to show that he
knowingly and intentionally caused the death of the deceased; b) to
show that he caused the death in the course of committing and
attempting to commit kidnapping; and c) to support an affirmative
finding to the first punishment issue.FN5
FN5. Appellant's first point of error states: The
evidence is insufficient to establish that appellant knowingly and
intentionally caused the death of the decedent. Appellant's second
point of error states: The evidence is insufficient to establish
that appellant caused the death of the decedent while appellant was
in the course of committing and attempting to commit the offense of
kidnapping. Appellant's thirteenth point of error states: The
evidence was insufficient to support the jury's finding as to the
first special issue.
To determine the sufficiency of the evidence,
appellate courts must determine whether, after viewing the evidence
in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316-319, 99
S.Ct. 2781, 2783-2788, 61 L.Ed.2d 560 (1974); Butler v. State, 769
S.W.2d 234, 239 (Tex.Cr.App.1989).
Cases based on circumstantial evidence are
reviewed under the same standard as direct evidence cases. Butler,
769 S.W.2d at 238; Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983).
If the reviewing court finds a reasonable
hypothesis other than the guilt of the accused, the reviewing court
cannot say that the guilt was proven beyond a reasonable doubt.
Willis v. State, 785 S.W.2d 378, 380 (Tex.Cr.App.1989) (and cases
However, as we said in Carlsen: It is not
required that the circumstances should, to a moral certainty,
actually exclude every hypothesis that the act may have been
committed by another person, but that the hypothesis is a reasonable
one consistent with the circumstances and the facts proved. [citations
Each fact need not point directly and
independently to the guilt of the accused, as the cumulative effect
of all the incriminating facts may be sufficient to support the
evidence. [citations omitted.] However, proof which amounts only to
a strong suspicion or mere probability is insufficient. [Emphasis
FN6. We are using the Carlsen standard because
this case was tried prior to our decision in Geesa v. State, 820 S.W.2d
154 (Tex.Cr.App.1991). Carlsen, 654 S.W.2d at 447.
Finally, in reviewing the sufficiency of the
evidence, an appellate court's role is not to reweigh the evidence
as the thirteenth juror. Blankenship v. State, 780 S.W.2d 198, 207 (Tex.Cr.App.1990)
(op. on reh'g.).
A. Knowingly and Intentionally Cause The Death
The evidence clearly establishes that appellant
drove the vehicle from the night of November 29, 1988, until shortly
before 4:40 a.m. on November 30, 1988, within the time frame of the
deceased's disappearance and death.
Appellant was in the deceased's apartment complex
some time after 1:00 a.m. on November 30, when Jennings threw
appellant out of her apartment. Jennings last saw appellant heading
towards the deceased's apartment. The deceased was last seen safely
in her bed as late as 2:00 a.m. on November 30, 1988.
The evidence demonstrates that appellant broke
the deceased's bedroom window leaving his fingerprints on various
pieces of glass, including one found in the deceased's bed. The
carpet fiber and hair comparisons establish that the deceased was
inside the vehicle.
The evidence shows the person driving the vehicle
would have had enough time and distance to avoid running over the
deceased. Gilliland testified that the deceased's death was caused
by either asphyxiation or blunt trauma to the head, or both.
The hair samples from the undercarriage of the
vehicle and the vehicle's two different tire imprints found on the
deceased establish that the deceased was struck by the vehicle.
The only reasonable hypothesis from the record
before us is that appellant knowingly and intentionally ran over the
deceased with the vehicle causing the blunt trauma which resulted in
the deceased's death.
After viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
Jackson, 443 U.S. 307, 316-319, 99 S.Ct. 2781, 2787-2788, 61 L.Ed.2d
560 (1974); Butler, 769 S.W.2d 234, 239 (Tex.Cr.App.1989). Indeed,
we find that a rational trier of fact could not have found another
hypothesis consistent with the facts proved. Appellant's first point
of error is overruled.
B. The Kidnapping
Appellant's second point of error contends the
evidence is insufficient to demonstrate that the deceased died while
appellant was in the course of committing or attempting to commit
the offense of kidnapping.
A person commits the offense of kidnapping if he
intentionally or knowingly abducts another person. Tex.Penal Code
Ann. § 20.03(a). “Abduct” means to restrain a person with intent to
prevent his liberation by: (A) secreting or holding him in a place
where he is not likely to be found; or, (B) using or threatening to
use deadly force. Tex.Penal Code Ann. § 20.01(2). “Restrain” means
to restrict a person's movements without consent, so as to interfere
substantially with his liberty, by moving him from one place to
another or by confining him. Tex.Penal Code Ann. § 20.01(1).
Restraint is without consent if it is accomplished by: (A) force,
intimidation, or deception; or, (B) any means, including
acquiescence of the victim, if he is a child less than fourteen
years of age or an incompetent person and the parent, guardian, or
person or institution acting in loco parentis has not acquiesced in
the movement or confinement. Tex.Penal Code Ann. § 20.01(1).
The law imposes no minimum requirement for
restraint other than that the interference with the person's liberty
be substantial. Rogers v. State, 687 S.W.2d 337, 342 (Tex.Cr.App.1985).
Where a defendant forcibly drives another person
to various parts of a city and keeps that person isolated with
intent to prevent liberation by anyone who might be capable of
helping the person, abduction is proven.
In such a situation, the claim that the person
was not secreted or held in a place where the person was not likely
to be found is of no importance. Fann v. State, 696 S.W.2d 575 (Tex.Cr.App.1985).
We hold that the evidence in the case at bar is
sufficient to establish that appellant kidnapped the deceased.
The evidence establishes that appellant abducted
the deceased by intentionally restraining her in a place where she
was not likely to be found, namely by taking her from her bedroom in
Arlington to an isolated area of Grand Prairie.
The deceased could not consent to the restraint
because she was under the age of fourteen and the deceased's mother
did not consent to appellant taking the deceased from the apartment.
See, Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991).
The only reasonable hypothesis from the record is
that appellant removed the deceased from her bedroom and drove the
deceased to the isolated area of Grand Prairie where her body was
When viewed in the light most favorable to the
verdict, we find the evidence sufficient to establish beyond a
reasonable doubt that appellant caused the death of the deceased
while in the course of committing and attempting to commit the
offense of kidnapping. Jackson, 443 U.S. 307, 316-319, 99 S.Ct.
2781, 2787-2788, 61 L.Ed.2d 560 (1974); Butler, 769 S.W.2d 234, 239
(Tex.Cr.App.1989). Therefore, appellant's second point of error is
C. The First Punishment Issue
The first punishment issue under Tex.Code
Crim.Proc.Ann. art. 37.071(b)(1) asks: Whether the conduct of the
defendant that caused the death of the deceased was committed
deliberately and with the reasonable expectation that the death of
the deceased or another would result; Both appellant and the State
rely primarily on their arguments in the first point of error.
As noted in part I. of this opinion, Dr.
Gilliland observed an asphyxial injury that was caused by either a
compression pressure on the neck, the blocking of the nose or mouth,
or some combination of the two.
Gilliland also found numerous injuries associated
with strangulation or smothering. Furthermore, the deceased suffered
extensive breaking of the bones of the skull, down through the base
of the skull.
According to Gilliland the deceased's death was
caused by either the asphyxia or the head injury. If one injury had
not caused death, the other injury would have. In short, the record
reveals the defendant inflicted injuries sufficient to cause the
death in either of two ways.
He caused the death by smothering the deceased
and running over her with the vehicle. When viewed in the light most
favorable to the jury's answer to the first punishment issue, we
find the evidence sufficient to establish beyond a reasonable doubt
that appellant's conduct in causing the death was committed
deliberately and with the expectation that the death of the deceased
would occur. See, Milton v. State, 599 S.W.2d 824 (Tex.Cr.App.1980).
Appellant's thirteenth point of error is overruled.
III. VENIRE MEMBER LEWIS
Appellant's contends, in his fourteenth point of
error, that the trial judge erred in granting the State's challenge
for cause to venire member Boyd Lewis.FN7 During its voir dire
examination, the State inquired whether Lewis could answer the
second punishment issue affirmatively based solely on the facts of
the case before him: FN7.
Specifically, appellant's Fourteenth Point of
Error states: The trial court erred in granting the State's
challenge to juror Boyd Lewis for cause where there was no showing
that the juror would be biased against the law that the State was
entitled to rely on.
STATE: ··· The law contemplates that a juror
could answer that question yes, based just on the facts of the crime
itself, the one he's on trial for. In other words, that a jury could
learn enough about an individual from that one period of time there
that he's on trial for to answer that question yes. In other words,
how he acted, the type of victim he chose, how unnecessarily violent
or cruel was the killing, how he acted afterwards. Do you think that
can be done; or would you think that you would have to see some kind
of prior track record or history, as you say, to answer that? How
would you feel about that, if all the evidence you had were just the
facts of the offense itself? LEWIS: No, I don't think so. I couldn't
come to a conclusion. STATE: Okay. You would have to know how a
person lived their life up until that point and then, as you said,
even afterwards? LEWIS: Yes. STATE: Okay. You know, its possible-And
the law contemplates this also. -that you could have a defendant
found guilty of capital murder that had no prior bad acts at all,
had been a choir boy up until then···· Let's say you heard about a
horrible crime, the facts were very bad, but you were to hear during
punishment from either the State or the defense that the defendant
had never been in trouble before, there's no one to come in and tell
you he's got a bad reputation. If you didn't hear anything like that
and even though the facts of the crime itself were very bad, do you
think that you could never answer that question yes? Or tell me what-how
you feel about that? LEWIS: You're talking about Question Number 2;
right? STATE: Yes, sir. LEWIS: Okay. An act of violence-of criminal
violence, with just the act itself- STATE: Yes, sir. LEWIS: -and
proven that it was committed, you can come to a conclusion, yes or
no. Yes. STATE: Okay. So, you think you could answer that question.
If the person had no prior history, or no prior criminal record or
bad acts, you could base your answer and answer it yes in some
circumstances on just the facts of the case itself, just the facts
you had heard about the killing in question. LEWIS: You could answer
the question, but you-it's a decision you would have to make. You
can't-And you could be wrong or you could be right because you
cannot-Well, I could not say that because an individual committed a
crime once that they would do it again; so, I-I couldn't answer it.
It would just be a judgment. Both the judge and the State continued
this line of questioning. Lewis restated he could, with evidence
additional to the facts of the instant case, affirmatively answer
the second issue. The State inquired further: STATE: What I'm
wanting to know is would you always require-before you could ever
answer that second question yes, would the State have to bring you
some type of prior history or criminal record of the defendant for
you to answer it yes? LEWIS: And after the-the criminal offense had
been committed. I cannot say that someone would be a continuing
threat to society····
* * * * * *
STATE: ··· Do you think that you could say-or
answer that question that there's a probability that he'll
constitute a continuing threat to society if you had the facts of
the case and you also had a prior history, like you knew he had been
in trouble before? Are there some situations that you believe that
question-you could answer that question? LEWIS: Yes. Yes. Lewis
later stated he could affirmatively answer the second issue if the
State provided sufficient evidence “without a reasonable doubt,”
that appellant was guilty and capable of committing other acts of
violence against society. 
After the conclusion of Lewis' voir dire, the
State challenged Lewis for cause because he could not answer the
second issue solely based upon the circumstances of the offense
before him. The State argued: ··· He stated he could never answer
that question-we could never prove to him to his satisfaction that
he would be a-that the defendant would be a future danger and
continuing threat unless we brought to him prior-in fact, he stated
prior history and then history after the offense, that he could
never answer that question based on the facts and circumstances
* * * * * *
··· That's what he's going to require as proof.
Obviously, if we prove that to him and give him that type of
evidence he can answer it yes, but up until then he will-he says he
cannot answer that question. Although the State failed to articulate
a legal basis for the challenge at the time of the voir dire
examination, the State now contends the challenge was proper under
Tex.Code Crim.Proc.Ann. art. 35.16. Art. 35.16 provides, in part:
(b) A challenge for cause may be made by the State for any of the
following reasons: 3. That he has a bias or prejudice against any
phase of the law upon which the State is entitled to rely for
conviction or punishment. Appellant's attorney objected to the
State's challenge for cause. The trial judge overruled the objection
and Lewis was excused.
Appellant contends Lewis specifically stated that
he could consider evidence of appellant's continuing threat to
society and could, with sufficient evidence, answer the second issue
Appellant further contends while a jury may
consider the evidence of the instant offense sufficient to
affirmatively answer the second issue, the law does not require that
the juror must consider the evidence of the offense sufficient
without hearing additional testimony.
The State contends the trial judge properly
granted the State's challenge for cause because Lewis could never
answer the issue affirmatively based only on the facts of the case.
The State contends they are entitled to rely on
law that holds that the second issue can be proved based on the
facts of the charged offense alone. Substantial case law allows the
facts of a particular capital case, if “severe enough,” to support
an affirmative jury verdict on the second punishment issue. Garrett
v. State, 851 S.W.2d 853, 859 (Tex.Cr.App.1993), and cases cited
therein. However, there is no requirement that an individual juror
answer the second issue affirmatively solely on the facts of that
particular offense. Id. ··· [T]hat the law permits jurors to find
future dangerousness in some cases on the facts of the offense alone
does not mean that all jurors must do so, or even consider doing so.
A particular juror's understanding of proof
beyond a reasonable doubt may lead him to require more than the
legal threshold of sufficient evidence to answer the second special
issue affirmatively···· [A]n individual juror must determine what
proof beyond a reasonable doubt means to him, for the law does not
tell him. Id., at 859.
··· That an individual venireman would set his
threshold of reasonable doubt higher than the minimum required to
sustain a jury verdict does not indicate he has a bias or prejudice
against the law. Id., at 860.  As we recently held in Garrett, a
venireman is not subject to challenge for cause because he believed,
under the reasonable doubt standard, evidence in addition to the
offense before him was needed to answer the second punishment issue
affirmatively. Garrett, at 860. Error in granting a State's
challenge for cause in a capital case is reversible.
It is irrelevant whether the State had peremptory
challenges remaining at the conclusion of the voir dire. Grihalva v.
State, 614 S.W.2d 420 (Tex.Cr.App.1981), Bell v. State, 724 S.W.2d
780 (Tex.Cr.App.1986). Garrett, at 861.
Finding the disposition of this case controlled
by Garrett, the judgment is reversed and the cause is remanded to
the trial court. McCORMICK, P.J., and WHITE, J., dissent. CAMPBELL,
J., dissents for the reasons stated in his dissenting opinion in
Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993).
MILLER, Judge, concurring.
I agree with the majority opinion that the fourteenth point of error
in this cause is governed by our recent pronouncement in Garrett v.
State, 851 S.W.2d 853 (Tex.Crim.App.1993), motion for reh'g denied.
This cause is factually indistinguishable from Garrett, and thus the
legal result the same. I therefore join the majority opinion. I
write separately to articulate my reasoning on this point.
In Garrett, the State challenged for cause a
prospective juror who stated he could not answer affirmatively the
second punishment issue based on the facts of the capital offense
alone. The trial judge granted the State's challenge, which ruling
the defendant objected to at trial and challenged on appeal.
On direct appeal, the State relied upon case law
from this Court FN1 addressing the sufficiency of the evidence to
support the jury's affirmative answer to the second punishment issue
and held that the facts of the offense, if severe enough, will
support a jury's affirmative answer on this issue.
The Court noted that this is an appellate
standard of review, the minimum legal threshold of sufficient
evidence to answer the second punishment issue, and it was not error
for a prospective juror to require more evidence than that in his
understanding of proof beyond a reasonable doubt. Id., at p. 859.
Thus, the Court held the trial judge reversibly
erred in granting the State's challenge for cause. After
reconsidering the Garrett opinion in the cause at bar, I am
convinced its reasoning is sound. FN1. See Garrett, at p. 859, n. 3,
Our interpretation of Texas' sentencing statute
recognizes that more evidence than the mere facts of the offense may
be necessary for the State to prove beyond a reasonable doubt that
there is a probability that the defendant would commit criminal acts
of violence that would constitute a continuing threat to society.
The “facts of the offense” is the minimum amount
of evidence the State must present to legally obtain an affirmative
answer to the second special issue. A juror does not evidence a bias
against the law upon which the State is entitled to rely merely
because he would require more than the minimum amount of
As the juror in this cause and in Garrett
indicated, they could consider the death penalty as an appropriate
punishment for one convicted of capital murder but they needed more
evidence than just the facts of the case to determine that the
convicted defendant deserved the death penalty.
These prospective jurors did not reveal an
inability to follow the law and their oath. Neither did their
viewpoint of when the death penalty would be appropriate punishment
substantially impair their ability to serve as jurors in a capital
case. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d
The juror who requires more evidence than the
facts of the offense in order to answer special issue # 2
affirmatively does not show an inability to consider the entire
range of punishment (life or death) in the capital case; this type
juror just needs more evidence to make a reasoned decision regarding
the ultimate penalty. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989); Jurek v. Texas, 428 U.S. 262, 96 S.Ct.
2950, 49 L.Ed.2d 929 (1976).
FN2. At the punishment phase of a capital murder
trial, the State (and the defendant) may present evidence “as to any
matter that the court deems relevant to sentence[.]” Art. 37.071, §
2, V.A.C.C.P. This evidence may include the prior criminal record of
the defendant, his general reputation, his character, psychiatric
The State may, however, choose not to introduce
any evidence at punishment but merely re-offer its evidence from
guilt/innocence. In my view, a venireperson who would require
evidence that falls outside the realm of evidence that the State
generally is allowed to bring (i.e. that the defendant testify or
that matters privileged under Article V of the Rules of Criminal
Evidence be introduced) probably does evidence a bias against the
law upon which the State is entitled to rely.
The same is true where a venireperson requires
evidence that constitutes another crime, e.g., where the
venireperson requires in a Penal Code § 19.03(a)(2) capital murder
case that the State show a serial killing as contemplated by §
The State is not entitled to a death sentence
upon the defendant's conviction for capital murder. Nor is the State
entitled to twelve jurors who would only require the legal, minimum
quantum of evidence for assessment of the death penalty.FN3
The State is only entitled to jurors who can
consider the entire range of punishment in an appropriate case, and
the jurors' concept of an appropriate case may encompass evidence
that the State is permitted to introduce at trial, such as prior
criminal record, character evidence, etc.
Neither the juror in this case nor in Garrett
expressed during his voir dire examination an inability to assess
the death penalty per se; each merely expressed his opinion that a
person who commits capital murder does not, without more, merit a
finding that he will be a continuing threat to society as
contemplated by special issue # 2. I find no bias against the law on
the part of these prospective jurors; indeed, I believe that they
would be thoughtful, conscientious jurors.
FN3. The State may, however, peremptorily strike
those prospective jurors who could give the death penalty (i.e.
answer the punishment issues affirmatively) but only on a greater
quantum of proof. With these comments, I join the majority opinion.
MEYERS, J., joins this opinion.
Wilson v. Cockrell,
Not Reported in F.Supp.2d, 2002 WL 32590134(N.D.Tex.,2002) (Habeas)
r making an independent review of the pleadings, files and records
in this case, and the findings, conclusions and recommendation of
the United States Magistrate Judge, the Court finds that the
findings and conclusions of the Magistrate Judge are correct and
they are adopted as the findings and conclusions of the Court.
Petitioner's objections to the findings and conclusions of the
Magistrate Judge are overruled.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
STICKNEY, Magistrate J.
This cause of action was referred to the United States Magistrate
Judge pursuant to the provisions of Title 28, United States Code,
Section 636(b), implemented by an order of the United States
District Court for the Northern District of Texas. The Findings,
Conclusions, and Recommendation of the United States Magistrate
I. NATURE OF THE CASE
A state prison inmate has filed a petition for
writ of habeas corpus pursuant to Title 28, United States Code,
Petitioner, Jackie Barron Wilson,
is an inmate in the custody of the Texas Department of Criminal
Justice, Institutional Division (TDCJ-ID). Respondent is the
Director of TDCJ-ID.
III. PROCEDURAL HISTORY
A jury convicted Petitioner of capital murder,
and his punishment was assessed at death by lethal injection. State
v. Wilson, Cause No. F89-96282-J (Criminal District Court No. 3 of
Dallas County, Tex. June 14, 1994).
The case was appealed to the Texas Court of
Criminal Appeals, and the Court of Criminal Appeals affirmed the
conviction and death sentence in an unpublished opinion. Wilson v.
State, No. 71,947 (Tex.Crim.App. Feb. 12, 1997), cert. denied,522
U.S. 829 (1997).
Petitioner subsequently filed a state application
for writ of habeas corpus on June 2, 1997.
The Court of Criminal Appeals denied relief in a
written order, based upon the trial court's findings of fact and
conclusions of law and its own review of the record. Ex parte
Wilson, No. 40,438-01 (Tex.Crim.App. March 31, 1999).
Petitioner filed his initial federal petition for
writ of habeas corpus on January 11, 2000, and a supplemental brief
on April 28, 2000. Respondent filed an answer and motion for summary
judgment on September 25, 2000, and furnished the state court
records, and Petitioner filed a reply brief on November 14, 2000.
IV. RULE 5 STATEMENT
Respondent states that
Petitioner has exhausted all of his state court remedies.
In eight claims for relief,
Petitioner raises the following six allegations: A. Petitioner's
conviction and sentence violate the Equal Protection clause of the
Fourteenth Amendment to the U.S. Constitution because the parties
agreed to excuse most minorities from the jury panel over
Petitioner's objection; B. The evidence is insufficient to support
Petitioner's capital murder conviction; C. The evidence is
insufficient to support Petitioner's death sentence because the
evidence is insufficient to support the jury's finding that he
deliberately killed the victim; D. Petitioner was denied effective
assistance of counsel at trial in violation of the Sixth Amendment
to the U.S. Constitution; E. Petitioner was denied effective
assistance of counsel on appeal in violation of the Sixth Amendment
to the U.S. Constitution; and F. Petitioner's constitutional rights
under the Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution were violated because the jury was not informed about
Petitioner's parole eligibility if given a life sentence.
Moreover, Petitioner argues that he is entitled
to an evidentiary hearing in this court with respect to his first
ground for relief.
* * *
VII. FACTUAL BACKGROUND
The evidence presented at trial established that
the victim, five-year-old Lottie Maggie Rhodes (“Maggie”), was
kidnapped from her bedroom in the middle of the night, sexually
assaulted, strangled, and run over by a car.
Her body was found in a field in a remote area of
Dallas County early in the morning of November 30, 1988, by a truck
driver who was driving by on a nearby road. (R. 77:14-18, 35).
Petitioner knew the victim as he had lived until
recently in the same apartment complex as the victim's family and
was a friend of the victim's live-in babysitter, Joe Martinez. (R.
Petitioner's fingerprints were found on pieces of
glass found both inside and outside of the victim's broken bedroom
window. (R. 78:291-93, 306, 331-36).
The two tire tracks on the victim's body matched
two distinct types of tires that were on the car that Petitioner was
seen driving and that Petitioner himself acknowledged driving the
night before and early morning of the murder. (R. 79:498, 505, 562,
580, 709, 742-43; 81: 971-74, 1039-47, 1134-38, 1144-49).
Hair found on the undercarriage of the car had
the same characteristics as the victim's hair, and carpet fibers
from underneath the car matched those from the carpet inside of the
car. (R. 82:1183-89, 1202-03).
Finally, DNA testing on seminal fluid found on
the victim revealed that 1 in 2083 Hispanic males shared the DNA
characteristics found on the anal swab and that Petitioner could not
be excluded as the contributor of this DNA. (R. 82:1255-62).
VIII. EXAMINATION OF THE ISSUES - A. Voir Dire
In his first ground for relief, Petitioner claims
that his rights under the Fourteenth Amendment were violated by an
agreement between the prosecution and the defense to exclude the
majority of minority veniremembers from the jury.
Respondent argues in response that Petitioner is
procedurally barred from raising this issue because he did not
object at trial, that Petitioner does not have standing to assert a
violation of the constitutional rights of the excused minority
jurors, and that Petitioner has failed to prove that any jurors were
excused on the basis of their race.
The record before this Court, as evidenced by the
pleadings filed in state habeas court, their supporting exhibits,
and the record of the trial itself, indicates that the defense
counsel and prosecutors in the instant case entered into various
agreements to exclude certain potential jurors from the jury panel
either before the jurors were individually questioned by the
attorneys in the voir dire process or during the individual
questioning of the jurors.
With both his state habeas application and his
federal habeas petition, Petitioner has submitted as exhibits two
affidavits from law school students who examined all of the
questionnaires that were completed by potential jurors that were
called and reported for jury service in this case as well as the
record of the trial.
These two individuals swear in their affidavits,
and their statements have not been contradicted by either the State
at the state level or Respondent before this Court, that copies of
the jury questionnaires were provided to them by one of Petitioner's
trial attorneys, and that there were 840 individuals who comprised
the venire in the instant case, 166 of whom listed their race as
black or African-American on their questionnaires, forty who listed
themselves as Hispanic, ten who indicated that they were members of
another minority group, and twenty people who did not indicate their
race on their questionnaires.
These two individuals further state in their
sworn affidavits that the State and the defense agreed to excuse 775
of the 840 people in the venire, that 211 of the 216 minority
members of the venire were excused by agreement, rather than
peremptorily struck or successfully challenged for cause, that the
State removed the remaining two African-Americans by way of
peremptory challenges, that the State further successfully
challenged for cause one of the three remaining Hispanics on the
panel, and that defense counsel successfully challenged for cause
the final two remaining Hispanic veniremembers for cause. Thus, the
jury that decided Petitioner's case was an all-white jury. (Petition,
exhibits A & B).
As exhibits filed along with its response to the
state habeas application, the State submitted affidavits from all
three prosecutors in the case, one of the two defense attorneys, and
the trial judge who presided over the voir dire process. All of
these people state that they were unaware of any agreement between
the parties to excuse people from the jury panel on the basis of
The two prosecutors who primarily conducted the
voir dire process on behalf of the State both state in their sworn
affidavits that the 775 people who were excused from the jury panel
were excused because of their beliefs about the death penalty as
evidenced in their answers to certain questions in the questionnaire
or because of other answers given, not on the basis of their race.
These two people explain in their affidavits that
the two parties would have conferences in which they would agree to
excuse both “State-minded” and “defense-minded” jurors as evidenced
by their beliefs about the death penalty, to trade other jurors
based on answers given to other questions posed in the
questionnaires, and to question some jurors. Both of the prosecutors
who participated in the voir dire process swear that these excusals
were all based on the jurors' answers to questions on the
questionnaires, not on the jurors' races. (SHTr.:231-35).
Defense attorney Doug Parks states in his
affidavit that neither he nor his co-counsel Wayne Huff ever
conspired with the State's attorneys or the trial judge to
discriminate against the veniremembers on the basis of race and that
all decisions regarding voir dire matters were made with
Petitioner's advice and consent. (SHTr.:242-43).
Finally, both the lead prosecutor in the case and
the trial judge who presided over the voir dire process state in
their affidavits that they did not collude to excuse any
veniremembers on the basis of race and were unaware of any such
agreement. Judge John Bradshaw, the presiding judge during the voir
dire process, further states in his sworn affidavit that he would
not have tolerated or condoned any such agreement. (SHTr.:237-41).
* * *
B. Sufficiency of Evidence-Guilt
In his second ground for relief, Petitioner
asserts that the evidence is insufficient to support his guilty
verdict. Specifically, Petitioner argues that the evidence presented
at trial is insufficient to prove that Petitioner committed capital
murder because the evidence is insufficient to prove that Petitioner
actually intended to kill the victim by either asphyxiating her or
by running her over with a car when he choked her and ran over her
with a car.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), the Supreme Court enunciated the
standard of review when a state prisoner challenges the sufficiency
of the evidence in a federal habeas corpus proceeding.
The Court defined the issue to be, “whether after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. at 320. In applying
this standard, all of the evidence is to be considered in the light
most favorable to the prosecution. Id.
The Supreme Court went further to state that,
“[t]his familiar standard gives full play to the responsibility of
the trier of fact to fairly resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Id. And, this Court must give great weight
to the state courts' determinations that the evidence was sufficient
to support the jury's verdict. Parker v. Procunier, 763 F.2d 665
(5th Cir.1985), cert. denied,474 U.S. 855, 106 S.Ct. 159, 88 L.Ed.2d
Petitioner contends that, although all of the
evidence presented by the State is consistent with its theory that
Petitioner intended to kill Maggie Rhodes, the evidence is not
legally sufficient to prove Petitioner's intent to kill the victim
because “[a]ny number of other scenarios are equally plausible given
the State's evidence.” (Petition at 36).
Petitioner suggests that he may have smothered
Maggie with his hand in an effort to quiet her while he sexually
assaulted her, but did not intend to kill her, and he may have run
her over with the car in an effort to leave the scene quickly but
again without the intent to kill her. (Petitioner at 37).
Contrary to this argument, however, under the
Jackson standard, a federal habeas court may find sufficient
evidence to support a conviction even though the facts may also
support another reasonable hypothesis consistent with a claim of
innocence. Gibson v. Collins, 947 F.2d 780, 783 (5th Cir.1991).
In the instant case, there was evidence presented
through the testimony of the medical examiner that the victim had a
fatal head injury, that there were tire tracks across her the back
of her shoulder and one of her legs, that she was run over while she
was lying down on her stomach, and that she was alive when she was
run over by a car. (R. 80:818-24).
The medical examiner also testified that the
victim was strangled because there were hemorrhages at her eyelids,
there were mouth injuries including a split lip, and there was
bruising inside of the neck. (R. 80:825-26).
The medical examiner could not, however,
determine whether the victim was smothered with someone's hands or
with a pillow or some other object. (R. 80:828). But, the medical
examiner testified that the injuries from both the strangulation and
the car were fatal on their own. (R. 80:818-19, 878).
There was also testimony presented that a truck
driver discovered the victim's body at 6 A.M. on November 30, 1988,
in a field by an isolated road with little or no traffic and that
there was frost on her body, indicating that she had been there for
some time. (R. 77:15, 33-5, 68).
Through photographs and a diagram admitted into
evidence at trial, it was established that the victim's body was
found approximately nine feet south of the nearby road, Oakdale, and
that the tire burn caused by the back tires on the car Petitioner
was driving was twenty-eight feet and nine inches west of the
location of the victim's body. (R. 87:State's ex. # 1, 3, 6, 7, 8,
Finally, there was evidence presented that the
victim was anally raped, that the DNA evidence extracted from the
sexual assault kit matched Petitioner's DNA blood test, and that
Petitioner knew the victim as he had recently lived in the apartment
complex in which she lived and was a friend of her babysitter. (R.
77:122-27; 78:437-42; 82:1255-62).
The jury in Petitioner's case was instructed that,
in order to find Petitioner guilty of capital murder, the jury had
to find beyond a reasonable doubt that, in the course of committing
or attempting to commit the offense of kidnapping, Petitioner caused
the death of the victim by asphyxiating her or by striking her with
a motor vehicle and that he specifically intended to kill her when
he asphyxiated her or struck her with a motor vehicle. (Tr.:29).
Viewing the evidence presented at trial in the
light most favorable to the jury's verdict, as is required under the
Jackson v. Virginia standard, any rational jury could have found
beyond a reasonable doubt that Petitioner, when he kidnapped a girl
who knew him in the middle of the night from her home, anally raped
her either before or after he took her to a remote location with
little or no traffic, suffocated her so severely that the
suffocation in and of itself was fatal, placed her in a grassy field
several feet from the nearest road either before or after
suffocating her, and ran her over with a car parked several feet
from her body in such a manner that the vehicle left tire marks on
both her shoulder and her leg and caused a fatal wound to her head,
intended for her to die either by suffocation or by being hit by his
On direct appeal, the Court of Criminal Appeals
held that the evidence is legally sufficient to prove that
Petitioner intended to kill Maggie Rhodes either by strangulation or
running her over with a car. Wilson, slip op. at 2. This is not an
unreasonable application of the Jackson v. Virginia standard.
Accordingly, Petitioner's second ground for relief is without merit,
and it is recommended that it be denied.
C. Sufficiency of Evidence-Punishment
In his third ground for relief, Petitioner
contends that his federal constitutional rights under the Fourteenth
Amendment have been violated because the evidence does not support
the jury's finding at the punishment phase of the trial that he
killed the victim deliberately.
Specifically, Petitioner asserts that, even if
the evidence is deemed legally sufficient to support his conviction
for the intentional murder during the course of a kidnapping, there
is insufficient evidence to sustain the jury's determination that he
not only intentionally killed the victim, but also killed her in a
deliberate manner. FN2 Respondent contends that Petitioner is
procedurally barred from raising this issue, that this issue is not
cognizable on federal habeas review, and that at any rate
Petitioner's claim is without merit.
FN2. Pursuant to state law, the jury in
Petitioner's case was required to answer the following three
questions at the punishment phase of the trial: Was the conduct of
the defendant that caused the death of the deceased committed
deliberately and with the reasonable expectation that the death of
the deceased or another would result? Is there a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society?
Taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, is there a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment rather
than a death sentence be imposed? (Tr.:46). SeeTex.Code Crim. Proc.
Ann. art. 37.0711 § 3(b)(e) (Vernon Supp.1993).
The jury in this case answered the first two
questions “yes” and the third “no,” thereby assessing a death
sentence. In this ground for relief, Petitioner alleges that the
evidence is legally insufficient to support the jury's unanimous
“yes” answer to the first question.
Respondent initially asserts that Petitioner is
procedurally barred from raising this issue because the state habeas
court decided this claim on an independent and adequate state
The state habeas court, before denying this claim
on its merits, concluded that Petitioner was procedurally barred
from raising this issue on state habeas review because it was not,
and should have been, raised on direct appeal, and because a
sufficiency of the evidence claim was not cognizable at the state
habeas level. (SHTr.:323).
A federal habeas court is precluded from
addressing a claim made by a state prisoner when a state court
decided the claim on an independent and adequate state procedural
ground. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991).
To satisfy the independent and adequate
requirements, the dismissal of a claim must “clearly and expressly”
indicate that it rests on state grounds which bar relief, and the
bar must be strictly and regularly followed by state courts and
applied to the majority of similar claims. Finley v. Johnson, 243
F.3d 215, 218 (5th Cir.2001), citing Amos v.. Scott, 61 F.3d 333,
338-39 (5th Cir.1995).
Petitioner does not argue that the state habeas
court failed to clearly and expressly state that its decision rested
on a state ground that barred relief, but Petitioner does contend
that Texas does not strictly and regularly follow the state
procedural ground and contends instead that Texas does not have a
“well-settled” procedural default rule regarding federal
constitutional claims not raised on direct appeal. (Petitioner's
Reply at 13).
But, contrary to this argument, the Fifth Circuit
has held that Texas' procedural bar against raising legal
sufficiency arguments at the state habeas level and its requirement
instead that such claims be raised, if at all, on direct appeal is
an independent and adequate state procedural ground. West v. Johnson,
92 F.3d 1385, 1398 n. 18 (5th Cir.1996); Renz v. Scott, 28 F.3d 431,
432 (5th Cir.1994).
This Court is, of course, bound by Fifth Circuit
precedent holding that the procedural ground on which the state
habeas court relied is an independent and adequate ground.
Accordingly, unless Petitioner can establish both
cause for failing to raise this issue on direct appeal in state
court and prejudice as a result of the alleged violation of federal
law or establish that a fundamental miscarriage of justice would
occur if this Court did not address the merits of Petitioner's third
ground for relief, federal habeas review of this claim is barred.
Coleman v. Thompson, 501 U.S. at 750.
Petitioner has failed to allege, much less argue,
that either cause and prejudice for his procedural default has been
shown or that a fundamental miscarriage of justice will occur if
this Court does not address Petitioner's claim that the evidence is
insufficient to support the jury's answer to the first punishment
special issue. Accordingly, Petitioner is procedurally barred from
obtaining federal habeas relief based on this claim.
Moreover, even if Petitioner had not defaulted
this claim, it is without merit.FN3 When the Fifth Circuit has
analyzed a claim that the evidence is insufficient to support a
death sentence because the evidence is insufficient to establish
that a defendant killed a victim deliberately, the Court has noted
that, in order to prove that a murder was committed deliberately,
the State is not required to prove that a capital murder defendant
carefully weighed, considered, or studied the situation immediately
before killing the victim, but instead there must be a “moment of
deliberation and determination on the part of the actor to kill.”
Moreover, this determination “must necessarily be
found from the totality of the circumstances.” Johnson v. Collins,
964 F.2d 1527, 1530-1 (5th Cir.1992), citing Cannon v. State, 691
S.W.2d 664, 677 (Tex.Crim.App.1985); see also Hughes v. Johnson, 191
F.3d 607, 619 (5th Cir.1999).
FN3. Respondent further argues that a claim that
the evidence to support a death sentence is legally insufficient is
not constitutionally required and therefore not cognizable on
federal habeas review. When the Fifth Circuit was most recently
confronted with this argument, the Court noted that it had, on
several occasions, addressed the legal sufficiency of the evidence
supporting a death sentence.
The Fifth Circuit then assumed, without deciding,
that such a claim was cognizable on federal habeas corpus review and
preceded to address a claim that the evidence was not legally
sufficient to support a jury's finding that the murder was committed
deliberately. Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir.1999).
Following the Fifth Circuit's lead, this Court will also assume that
such a claim is a cognizable one on federal habeas review.
When the state habeas court decided the merits of
this claim, that court, citing state cases that speak about the time
and effort required to strangle someone to death, concluded that the
evidence was legally sufficient to support the jury's unanimous
finding that Petitioner deliberately caused the victim's death. (SHTr.:325).
This is not an unreasonable application of the
Jackson v. Virginia standard. The sole basis for Petitioner's
argument is that, because the evidence is insufficient to establish
that he intentionally killed the victim, and deliberately means
something more than intentional, see Nichols v. State, 754 S.W.2d
185, 201 (Tex.Crim.App.1988), the evidence is therefore insufficient
to prove that he deliberately killed the victim. (Petition at 42).
But, as this Court found earlier, the state
court's determination that the evidence is sufficient to support a
conviction for capital murder is not an unreasonable application of
federal law. And, from the evidence presented at trial any
reasonable jury could have concluded beyond a reasonable doubt not
only that Petitioner intentionally killed Maggie Rhodes, but that he
also deliberately caused her death.
The medical examiner testified at trial that the
victim, when hit by the car, tumbled underneath the car for a time,
that during that time her shoulder and back were run over by a tire
of a car, as was her leg, and that she was lying down when she was
struck. (R. 80:818-23).
The medical examiner further testified that the
victim's skull was crushed and the brain was torn. (R. 80:825). From
this testimony, any reasonable jury could conclude beyond a
reasonable doubt that Petitioner ran over the victim with his car in
a deliberate manner, such that her skull was crushed and this caused
Moreover, as noted by the state habeas court, to
kill someone, even a child, by strangling her takes both time and
effort. Given that Petitioner not only took the time to suffocate
the victim to death but also ran over her with his car such that she
sustained injuries from the car ranging from the fatal injury to her
head to the tire track visible on her leg, when the jury verdict is
viewed in the light most favorable to the verdict, the evidence is
sufficient to support the jury's finding that Petitioner
deliberately killed the victim. Petitioner's third ground for relief
is without merit, and it is recommended that it be denied.
* * *
Petitioner has failed to make a substantial
showing of the denial of a federal right. The state court
adjudication on the merits neither resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States, nor resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. Petitioner's petition for a
writ of habeas corpus should be DENIED. N.D.Tex.,2002.
Wilson v. Cockrell,
75 Fed.Appx. 983 (5th Cir. 2003) (Habeas)
After federal habeas relief was denied Texas
state prisoner Jackie Barron Wilson, concerning a Texas capital
murder conviction for which he received a death sentence, the
district court declined to grant him a Certificate of Appealability
(COA). See28 U.S.C. § 2253(c).
Accordingly, Wilson seeks a COA from this court,
asking that we certify five issues for appeal: (1) whether the
district court erred in not conducting an evidentiary hearing to
determine whether agreed-prospective-juror excusals, pursuant to
Texas law, violated the Equal Protection Clause of the Fourteenth
Amendment and (2) whether such agreed conduct violated that clause;
(3) whether the evidence was legally sufficient to show specific
intent to cause death; and (4) at trial and (5) on appeal, whether
Wilson received ineffective assistance of counsel. Each COA request
is DENIED. I.
Early on the morning of 30 November 1988, the
body of a five-year-old girl was found in a remote area. She had
been kidnapped from her bedroom earlier that morning; sexually
assaulted (including anally-raped and some form of vaginal
penetration); asphyxiated (smothered or strangled); and run over by
Around 8:00 a.m. that day, the victim's mother
discovered her daughter was missing. The window above the child's
bed was raised and the glass pane broken.
The medical examiner determined that the cause of
death could be attributed to: a major crush-force injury to the head,
caused by the tire of an automobile running over it; and
asphyxiation from smothering or strangulation. Either was sufficient
to cause her death. Bruising indicated the victim was still alive
both when sexually-assaulted and when run over by the vehicle.
Wilson knew the victim. He had recently lived in
the apartment complex (the apartments) where the victim lived with
her mother, brother, and live-in babysitter. Wilson was an
acquaintance of both the mother and the babysitter. (Wilson was not
living at the apartments at the time of the murder.)
On 29 November, the evening prior to the victim's
death, Wilson consumed alcohol, marijuana, and cocaine.
Later that evening, Wilson was seen driving an
automobile in the direction of, and was placed at, the apartments,
including in one of them, after midnight (early morning of 30
November; the victim was found later that morning).
Wilson's fingerprints were found on both sides of
pieces of glass from the victim's broken bedroom window. Tire tracks
on the victim's body matched two distinct types of tires that were
on the automobile Wilson admitted to driving the night before, and
early morning of, the murder.
Hair found on the undercarriage of the vehicle
and inside it had the same characteristics as the victim's hair, and
carpet fibers from underneath the automobile matched those from the
carpet inside it. Wilson, a Hispanic male, could not be excluded as
the contributor of DNA found on the victim (one in 2083 Hispanic
males shared characteristics of DNA found on anal swab).
A chest or pubic hair recovered from the victim's
genital area was determined to be Mongoloid, a racial group that
Wilson was convicted on 27 September 1989 of
murder in the course of a kidnapping, a capital offense under Texas
Penal Code § 19.03(a)(2); he was sentenced to death.
The Texas Court of Criminal Appeals reversed the
conviction and remanded the case for a new trial. Wilson v. State,
863 S.W.2d 59 (Tex.Crim.App.1993) (State's challenge-for-cause of
venire member constituted reversible error).
At the remand trial in 1994, Wilson was again
convicted and sentenced to death. The Court of Criminal Appeals
affirmed. Wilson v. State, No. 71,947 (Tex.Crim.App. 13 Feb.), cert.
denied,522 U.S. 829, 118 S.Ct. 93, 139 L.Ed.2d 49 (1997). Wilson
filed a state habeas application in June 1997.
The next February, finding no controverted,
previously unresolved facts, the convicting court entered an order,
inter alia, denying Wilson an evidentiary hearing; that September
(1998), it adopted the State's proposed findings of fact and
conclusions of law in their entirety.
The Court of Criminal Appeals, adopting the
convicting court's recommended findings and conclusions, denied
relief. Ex Parte Wilson, No. 40,438-01 (Tex.Crim.App. 31 Mar. 1999).
Wilson filed for 28 U.S.C. § 2254 federal habeas
relief in January 2000. Following the State's moving for summary
judgment, the matter was referred to a magistrate judge, who
submitted an extremely comprehensive report, with a recommended
denial of habeas relief. Wilson v. Cockrell, No. 3:99-CV-809,
Findings, Conclusions, and Recommendation of the Magistrate Judge (N.D.
Tex. 31 July 2002) (Magistrate Judge's Report).
The district court adopted that report and denied
relief. Wilson v. Cockrell, No. 3:99-CV-809, Order Adopting Findings,
Conclusions, and Recommendation of U.S. Magistrate Judge (N.D. Tex.
25 Sept. 2002). In December 2002, the district court denied Wilson's
* * *
Wilson next requests a COA for whether the
evidence was legally sufficient to show specific intent to cause
death; such intent must be proved beyond a reasonable doubt for a
capital murder conviction.
The evidence at trial demonstrated, inter alia:
the victim was kidnapped from her bedroom and viciously raped; the
victim knew (and could identify) Wilson, because he had lived in the
apartments, was an acquaintance of the victim's mother and
babysitter, and at a birthday party earlier that year, had touched
the victim's hair and spoken to her (causing her to jerk away); the
cause of death was both asphyxiation and a major crush force injury
to the head, caused by an automobile tire running over it; the
victim was found in a remote, secluded area; the asphyxiation and
major crush force injury were “fairly close together in time”; the
body was directly in front of the vehicle prior to being run over;
the rear tires of the vehicle left an acceleration mark
approximately 29 feet from a pool of blood (where the victim's head
was located), in a direct line with the victim's body; and the
police believed that, from this distance, the driver would have had
ample time to avoid an object.
Wilson contends the evidence was not legally
sufficient to prove his intent to kill the victim because, given the
evidence, any number of other scenarios are equally plausible.
He notes that the State was unable to prove the
exact circumstances surrounding the death and suggests he may have
smothered the victim with his hand in an effort to quiet her while
he sexually assaulted her (but did not intend to kill her) and may
have run over her with his automobile in an effort to leave the
scene quickly (again, without intent to kill her).
Wilson first raised this claim on direct appeal.
Applying Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979) (establishing standard for sufficiency), the Court of
Criminal Appeals, viewing the evidence “in the [requisite] light
most favorable to the verdict”, had “no trouble concluding that any
rational trier of fact could conclude beyond a reasonable doubt that
[Wilson] intentionally caused the death of the victim either by
strangulation or running over the victim with [an automobile]”.
Wilson, No. 71,947 at 1-2.
Wilson raised the same issue in his state habeas
proceeding. The Court of Criminal Appeals determined, as a matter of
law, that, because it had already considered and rejected this issue
on direct appeal, Wilson was procedurally barred from raising it in
his state habeas application. Nevertheless, it likewise determined,
as a matter of law, that the evidence was legally sufficient on the
issue of intent.
The district court noted that, “under the Jackson
standard, a federal habeas court may find sufficient evidence to
support a conviction even though the facts may also support another
reasonable hypothesis consistent with a claim of innocence”. See
Magistrate Judge's Report at 16 (citing Gibson v. Collins, 947 F.2d
780, 783 (5th Cir.1991), cert. denied,506 U.S. 833, 113 S.Ct. 102,
121 L.Ed.2d 61 (1992)). It determined, under that standard:
[A]ny rational jury could have found beyond a
reasonable doubt that [Wilson], when he kidnapped a girl who knew
him in the middle of the night from her home, anally raped her
either before or after he took her to a remote location with little
or no traffic, suffocated her so severely that the suffocation in
and of itself was fatal, placed her in a grassy field several feet
from the nearest road either before or after suffocating her, and
ran her over with a car parked several feet from her body in such a
manner that the vehicle left tire marks on both her shoulder and her
leg and caused a fatal wound to her head, intended for her to die
either by suffocation or by being hit by his car. Id. at 17-18.
Observing that the Court of Criminal Appeals, on
direct appeal, had held the evidence legally sufficient on intent to
kill, the district court concluded this was not an unreasonable
application of the Jackson standard. See id. at 18.
Wilson contends the district court failed to
address his contention that, when the circumstantial evidence is
“ambiguous” with respect to the applicable culpable mental state,
rather than in conflict ( i.e., where there is circumstantial
evidence to support more than one inference), and the State presents
no further circumstantial evidence that, if credited, would resolve
the ambiguity, due process will not tolerate a capital conviction.
He contends the State failed in its burden of production on the
issue of intent, as well as in its overall burden of proof.
Again, the State need not disprove every
hypothesis, so long as it produces evidence that allows a reasonable
jury to infer the elements of a crime beyond a reasonable doubt. See,
e.g., Gibson, 947 F.2d at 783. Jackson instructs that “a federal
habeas court faced with a record of historical facts that supports
conflicting inferences must presume-even if it does not
affirmatively appear in the record-that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to
that resolution”. 443 U.S. at 326.
Wilson offers no legal theory or factual basis to
support a distinction between “conflicting” and “ambiguous” evidence.
Jurists of reason would not debate the district court's
determination that the Court of Criminal Appeals reasonably applied
In other words, reasonable jurists would agree
with the district court's determination that the Court of Criminal
Appeals was reasonable in determining that the evidence, viewed in
the light most favorable to the conviction, was sufficient to allow
a reasonable juror to find, beyond a reasonable doubt, the requisite
intent to kill.
* * *
On direct appeal, the Court of Criminal Appeals
held the trial court erred at the guilt phase by admitting evidence
of Wilson's extraneous misconduct on the night of the offense.
Specifically, it held erroneous the admission of
the testimony of an adult resident of the apartments that Wilson
broke into her apartment that night through a window, began to
fondle her, and offered her drugs in exchange for sex. It held this
admission was violative of Rule 404(b) of the former Texas Rules of
Criminal Evidence. Wilson, No. 71, 947 at 33-37. Nevertheless, it
concluded that other substantial evidence supported the conviction
and held the error was harmless beyond a reasonable doubt under
Tex.R.App. P. 81(b)(2). Id.
Wilson's counsel did not seek rehearing following
this appellate ruling. Wilson bases ineffective assistance of
counsel on counsel's not doing so. (The State maintains Wilson had
no constitutional right to the assistance of counsel for such
rehearing request; we assume arguendo that he did.)
Wilson contends that, when conducting this harm
analysis on direct appeal, the Court of Criminal Appeals
mischaracterized the other evidence presented by the State and these
mischaracterizations led to that court's conclusion that such other
evidence was more substantial than it was.
The claimed misstatements were: (1) Wilson gave a
written confession-instead, he gave a written statement but did not
confess to the crime; (2) Wilson's blood and fingerprints were found
inside and outside the victim's bedroom window-instead, the victim's
blood was found in the bedroom along with Wilson's fingerprints on
the inside and outside of the window; (3) there were two distinct
sets of tires-instead, there were three tires of one type and one of
another; (4) hair, blood, and tissue samples from the undercarriage
of the vehicle were matched to the victim-instead, hair and hair
pieces found were consistent with the victim's hair; and (5) the
victim was strangled-instead, asphyxiation could have been due to
either smothering or strangulation. See id. at 36-37.
Therefore, Wilson claims: a properly conducted
harm analysis may have yielded a determination that the extraneous
misconduct error was not harmless (resulting in a new trial); and,
accordingly, appellate counsel was ineffective by failing, through a
request for rehearing, to bring these distortions to the attention
of the appellate court.
On state habeas review, the Court of Criminal
Appeals concluded that Wilson failed to establish a valid Strickland
claim. It determined there was no deficient performance: Wilson
received meaningful appellate review (appellate brief presenting 45
points of error, motion to supplement record, supplemental brief
with additional points of error, and petition for writ of certiorari
with the Supreme Court of the United States); appellate counsel
submitted a credible affidavit stating that, although the harm
analysis did contain a few inaccuracies, he made a reasoned judgment
that they were not significant enough to change the outcome of the
appeal (especially because the Court of Criminal Appeals had heard
the appeal twice and was familiar with the facts), so he focused
instead on the certiorari petition; and the alleged
mischaracterizations were reasonable deductions from the evidence,
such that a motion for rehearing would have been an exercise in
The Court of Criminal Appeals also determined
Wilson had suffered no prejudice because he had failed to show a
different outcome would have resulted had appellate counsel
The district court determined that the
performance by Wilson's appellate counsel was not deficient and that
Wilson did not suffer prejudice from the alleged omission. See
Magistrate Judge's Report at 36-40. According to the district court,
Wilson failed to show the strategy described in his counsel's
affidavit was not reasonable. See id. at 36-37.
In addition, he failed to establish a reasonable
probability that the result would have differed had these
inaccuracies been brought to the attention of the Court of Criminal
Appeals by a rehearing request. See id. at 37.
The district court noted that, even when the
misstatements were corrected, overwhelming evidence of guilt
remained. See id. at 37-39. Therefore, it concluded that the state
habeas court's application of both prongs of Strickland was
reasonable. See id. at 36.
Reasonable jurists would agree that the district
court was correct in holding that the Court of Criminal Appeals'
application of Strickland was reasonable.
In other words, they would not debate whether
appellate counsel rendered deficient performance by not seeking
rehearing, nor would they debate whether not seeking rehearing
caused prejudice to Wilson.
For the foregoing reasons, the COA requests are
The victim, Lottie Margaret Rhodes, 7