Killer executed for deaths of ex-girlfriend and children

By Michael Graczyk - The Houston Chronicle

January 29, 2009

HUNTSVILLE — Texas has executed a former Houston security guard for gunning down four people, including his ex-girlfriend and her two small children, during a 1996 shooting frenzy. Virgil Martinez, 41, was pronounced dead at 6:50 p.m. CDT Wednesday.

Martinez was the fourth Texas inmate executed this year and the first of two on consecutive nights this week in the nation’s most active death penalty state.

Martinez was condemned for the slayings of Veronica Fuentes, 27; her son, Joshua, 5; her daughter, Casandra, 3, and an 18-year-old neighbor, John Gomez. Gomez, mortally wounded, told a police officer at the slaying scene in October 1996 that Fuentes’ former boyfriend was the gunman.

In a rambling final statement, Martinez told relatives he loved them, then blamed Gomez for three of the slayings. “I know what you’ve been told and that’s all a lie,” he said, looking toward the victims’ relatives watching through a window. “ John Gomez killed your kids and sister. “I wish I would have shot him in the leg, then he would be here. Those investigators were just trying to convict somebody.”

He was recalling the slaying scene when prison officials, who warn condemned inmates they will have only a couple of minutes for their final comments, began pumping in the lethal drugs. Nine minutes later, he was pronounced dead.

Lawyers for Martinez had hoped to get the punishment postponed, raising questions he may be so mentally ill that he could be disqualified for execution. Appeals pending in the federal courts briefly delayed the lethal injection beyond the scheduled 6 p.m. time.

Martinez, who declined to speak with reporters in the weeks preceding his execution date, was picked up by police in Del Rio, ranting about voices telling him to kill. He was taken to the Kerrville State Hospital for a mental evaluation. Two weeks later, authorities determined he had given them a false name and that he was the man wanted for the four slayings 300 miles away in Alvin, just south of Houston.

Prosecutors said Martinez faked the mental illness to avoid police.

Fuentes had been shot 14 times. Her son was shot five times and her daughter three times. Gomez, who had been helping the woman watch her children, was shot eight times. Witnesses testified they saw Martinez shoot Fuentes. Her two children were found dead in their beds, both shot in the head at point-blank range. Gomez was gunned down as he ran to Fuentes’ aid.

“Anybody that saw these two little kids, laying out like cordwood with a bullet in their heads, shot for no reason — that sort of sticks with you,” said Dale Summa, a former Brazoria County district attorney.

In earlier appeals in the courts, lawyers argued unsuccessfully that temporal lobe epilepsy suffered by Martinez was responsible for the shooting spree. “The problem was, it was a bad crime,” said Don Vernay, who handled some of Martinez’s earlier appeals.

At trial, Martinez was defended by Jeri Yenne, who later was elected district attorney in Brazoria County. After she took office, the Texas Attorney General’s Office took over the case, handling all appeals for the state.

In 2004, a federal appeals court ordered a hearing to look into Martinez’s claims that defense lawyers didn’t present enough evidence about his medical condition blamed for the shootings. Lawyers said that would have contradicted Martinez’s stance going into the trial that he didn’t do the shooting.

Prosecutors combined all four slayings into a single capital murder charge. Police concluded a single 9 mm gun fired all the bullets. A holster for the gun was recovered in Martinez’s car, and a box designed to house the same caliber weapon was found in his mother’s Houston home, where he lived. The murder weapon, however, never was recovered. The shootings occurred a short time after Fuentes ended a relationship with Martinez.

On Thursday, Texas prisoner Ricardo Ortiz is set to die for the retaliation killing of Gerardo Garcia, 22, a fellow inmate at the El Paso County Jail, in 1997. Garcia died of a lethal injection of heroin.

Martinez executed for 1996 murders

By Kristin Edwards - ItemOnline.com

January 28, 2009

A man convicted of the murders of four Brazoria County residents was executed Thursday at the Texas Department of Criminal Justice Walls Unit. Virgil Martinez, 41, was the fourth man executed in the state this month — he was pronounced dead at 6:50 p.m. following the denial of his last appeal.

During his last statement, Martinez described in detail what he said was the real series of events which took place on Oct. 1, 1996, the night of the murders. He said the person truly responsible for the murders was one of the people killed, John Gomez. “I know what you’ve been told and that’s all a lie — John Gomez killed your kids and sister,” Martinez said. “I know ya’ll love John Gomez but he was a violent man. I wish I could have shot him in the leg, then he would be here.”

During the statement, Martinez said he had gone to the home of Veronica Fuentes, another of the four people killed, to pick up a book. “Veronica told me to come by and get my herb book,” he said. “John Gomez got on the phone and told me not to come over. She told me to come over, and me being a hot shot, I went over there and I had my gun.”

At 6:41 p.m., while Martinez was still in the process of describing his side of the events, the lethal injection began flowing and taking effect, and Martinez’s statement was cut short approximately three minutes later. Martinez also addressed his personal witnesses, which included several immediate family members and a friend, to tell them he loved them.

According to information released by the Texas Attorney General’s office, Martinez was sentenced to death on April 15, 1998, for four 1996 murders. The four victims, Veronica Fuentes, her 3-year-old daughter Cassandra, her 5-year-old son Joshua and John Gomez, a friend of the family, were killed on Oct. 1. Martinez was 28 at the time of the offense.

A testimony by Sherry Graves, the landlord of the trailer park where Fuentes lived with her husband and her two children, indicated that Fuentes had become estranged from her husband and dated Martinez. Following the relationship, several weeks before the murders took place, Fuentes told Graves she was afraid of Martinez.

On Oct. 1 at approximately 11 p.m., Graves heard banging noises and screaming coming from the direction of Fuentes’ trailer. She heard Fuentes say, “No, Virgil. No. Please, no. Just go. Just go.” When Graves approached the front door and walked into the living room area, Fuentes told her to get help, and Graves left to call the police. Graves then saw Veronica in the Fuentes’ front yard calling Martinez’s name and saying, “No, Virgil.” Graves then saw Martinez shoot Fuentes, who fell to the ground.

After the shooting, Gomez ran towards Martinez, and Martinez also shot him. As Martinez fled the scene, Graves said she saw him wearing a “holster-looking belt.” Two neighbors of the Fuentes family, Robin Johnstone and Keith Burrow, saw people running across the street, heard gunshots and saw Gomez running toward a garage. Burrow also saw Martinez shoot Fuentes.

Police arrived to find Fuentes and her two children dead from multiple gunshot wounds. Fuentes alone had wounds from 10 to 12 bullets. Gomez was found alive with seven gunshot wounds and said an ex-boyfriend of Fuentes’ committed the murders — he later died from his wounds.

Following the shootings, Martinez fled to Del Rio. On Oct. 2, he called paramedics claiming he was hearing voices and needed medical attention. Del Rio officers were dispatched to his location, and his car was eventually found and searched.

While the gun was never found, a gun belt appropriate for holstering a nine millimeter gun was found in Martinez’s car, and a gun box designed for a nine millimeter gun was found in his mother’s home. According to forensic examination, all of the bullets found at the crime scene were fired from a nine millimeter gun.

During his trial, the state proved Martinez was carrying a metal welding rod in his pants while being escorted from the courthouse and that he had previously stalked a woman named Elvira Soria. Martinez’s threatening behavior while in a hospital — specifically, his approach toward a hospital attendant with a plastic knife — was also mentioned.

Further, Martinez informed a security officer that voices were telling him to buy a gun and shoot people. He also asked an officer to sell him marijuana cigarettes. Finally, Martinez also claimed he had been using PCP, cocaine and alcohol prior to being apprehended by authorities.

Virgil Euristi Martinez

ProDeathPenalty.com

Virgil Euristi Martinez was sentenced to death for murdering his ex-girlfriend Veronica Fuentes; Veronica’s two children, five-year-old Joshua and three-year-old Cassandra; and a bystander John Gomez, 18.

Veronica Fuentes lived in a trailer park in Brazoria County with her husband and their two children, Joshua and Cassandra, ages five and three. The landlord of the trailer park and lived in a house about forty to fifty feet from the Fuentes' trailer. Veronica had been estranged from her husband for two years and at some point dated Martinez, but Veronica and Martinez eventually "broke up." Veronica had been receiving harassing phone calls from Martinez for over a month and blocked phone calls from Martinez at some point.

Several weeks before the murders, Veronica told her landlord Sherry that she was afraid of Martinez, and if Martinez showed up, Veronica wanted her to call the Sheriff's office. On October 1, 1996, at around 11:00 p.m., as Sherry was lying in bed, she heard banging noises and screaming coming from the direction of the Fuentes' trailer. She went to the Fuentes' trailer and listened at the window. She heard Veronica say. "No Virgil. No. Please no. Just go. Just go." An angry male voice referred to "your purse" and also to someone's dad as "a cop."

The landlord went to the front door and walked inside the living room area. She asked Veronica if she was okay. Sounding scared, Veronica responded, "Yes. Sherry, get help. Get help." Sherry told Veronica that she was going to call 911, and she dialed 911 as she walked back toward her house. John Gomez came to the landlord's house and mumbled, "Veronica's gone crazy. Gun at kids' heads." Sherry tried to explain to the 911 operator what was happening.

Sherry then saw Veronica in the Fuentes' front yard calling Virgil's name, saying "No Virgil. Oh my God." She then saw Martinez shoot Veronica and Veronica fall to the ground. At this point, Gomez ran towards Martinez, and Martinez shot him. Sherry ducked inside her home. Martinez ran off, passing within five to ten feet of Graves' window. The floodlights were on, and Graves saw Martinez fiddling with a "holster-looking belt."

A woman and her son who were neighbors of Veronica's heard knocking and went outside to investigate. The woman saw people running across the street, then heard gunshots, and saw Gomez running toward a garage. Then she saw Martinez run in front of Sherry's house. She also noticed that Martinez was wearing a gun holster around his waist. The woman's son saw Martinez shoot Veronica. He saw who Martinez was by looking through a gun scope that made images look nine times closer.

The police arrived to find Veronica and her two children dead from multiple gunshot wounds. The children were found dead in their bed. Veronica was lying in the front yard, with wounds from ten to twelve bullets. The police found Gomez still alive, with seven gunshot wounds. A sergeant asked Gomez, "Who did this?" Gomez replied, "Boyfriend, girlfriend. Boyfriend, girlfriend. Ex-boyfriend." The sergeant repeated the question, and Gomez replied, "Boyfriend, girlfriend, ex-boyfriend." Then the officer asked, "Did the ex-boyfriend do this? Who did that?" and Gomez responded, "Ex-boyfriend." Gomez later died from the gunshot wounds.

Martinez fled to Del Rio. On October 2, 1996, at around 6:00 p.m., he called 911 and gave a fake name, claiming that he was hearing voices telling him to kill and he needed medical attention. Del Rio officers were dispatched to Martinez's location, and he was taken to a hospital.

Martinez's car was later found in Del Rio and searched. Forensic examination and microscopic analysis revealed that all of the bullets found at the crime scene were fired from the same nine millimeter gun. Testimony showed that the magazine clips for this type of gun were capable of holding fifteen bullets apiece. A search of Martinez's room in his mother's home revealed a gun box designed to house a nine millimeter gun. A gun belt appropriate for holstering such a gun was found in Martinez's car along with a switchblade. The gun was never found.

Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App. 2000) (Direct Appeal).

Defendant was convicted in the District Court, Brazoria County, Ogden Bass, J., of three counts of capital murder and was sentenced to death. On automatic direct appeal, the Court of Criminal Appeals, Kellter, J., held that: (1) finding that consent given by defendant's mother to search of defendant's room was voluntary was supported by evidence; (2) officers had probable cause to believe that gun belt they saw sitting on seat of defendant's parked car constituted evidence of crime, as required to support seizure under plain view doctrine; (3) testimony of victim's grandmother about victim's psychiatric condition and history of violence was not admissible reputation or opinion testimony; (4) defendant was not entitled to mistrial based on prosecution's reference to facts outside the record during closing argument; (5) defendant was not entitled to instruction on voluntary intoxication during punishment phase; and (6) any error in allowing prosecutor to argue facts not in evidence was harmless. Affirmed. Womack, J., filed concurring opinion. Price, Holland, and Johnson, JJ., concurred in result.

KELLER, J., delivered the opinion of the Court in which McCORMICK, P.J., and MEYERS, MANSFIELD and KEASLER, JJ., joined.

Appellant was convicted in April 1998 of three counts of capital murder arising from an episode occurring on October 1, 1996. Tex. Penal Code § 19.03(a)(7) & (8).FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g).FN2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises nineteen points of error. We will affirm.

FN1. The offense statute provides, in relevant part: A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and: (7) the person murders more than one person: (A) during the same criminal transaction; or ... (8) the person murders an individual under six years of age.

FN2. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

I. BACKGROUND

Veronica Fuentes lived in a trailer park in Brazoria County with her husband and their two children, Joshua and Cassandra, ages five and three. Sherry Graves was the landlord of the trailer park and lived in a house about forty to fifty feet from the Fuentes' trailer. Veronica became estranged from her husband and at some point dated appellant, but Veronica and appellant eventually “broke up.” Several weeks before the murders from which this prosecution arose, Veronica told Graves that she was afraid of appellant, and if appellant showed up, Graves should call the Sheriff's office.

On October 1, 1996, at around 11:00 p.m., as Graves was lying in bed, she heard banging noises and screaming coming from the direction of the Fuentes' trailer. She went to the Fuentes' trailer and listened at the window. She heard Veronica say. “No Virgil. No. Please no. Just go. Just go.” An angry male voice referred to “your purse” and also to someone's dad as “a cop.” Graves went to the front door and walked inside the living room area. She asked Veronica if she was okay. Sounding scared, Veronica responded, “Yes. Sherry, get help. Get help.” Graves told Veronica that she was going to call 911, and she dialed 911 as she walked back toward her house. John Gomez came to Graves' house and mumbled, “Veronica's gone crazy. Gun at kids' heads.” Graves tried to explain to the 911 operator what was happening.

Graves then saw Veronica in the Fuentes' front yard calling Virgil's name, saying “No Virgil. Oh my God.” Graves then saw appellant shoot Veronica and Veronica fall to the ground. At this point, Gomez ran towards appellant, and appellant shot him. Graves ducked inside her home. Appellant ran off, passing within five to ten feet of Graves' window. The floodlights were on, and Graves saw appellant fiddling with a “holster-looking belt.”

Robin Johnstone and her son Keith Burrow were neighbors of Veronica. Johnstone heard knocking and went outside to investigate. She saw people running across the street, then heard gunshots, and saw Gomez running toward a garage. Then she saw appellant run in front of Graves' house. She also noticed that appellant was wearing a gun holster around his waist.

Burrow saw appellant shoot Veronica. He saw who appellant was by looking through a gunscope that made images look nine times closer.

The police arrived to find Veronica and her two children dead from multiple gunshot wounds. The children were found dead in their bed. Veronica was lying in the front yard, with wounds from ten to twelve bullets. The police found Gomez still alive, with seven gunshot wounds. Sergeant Thomas Tolson asked Gomez, “Who did this?” Gomez replied, “Boyfriend, girlfriend. Boyfriend, girlfriend. Ex-boyfriend.” Tolson repeated the question, and Gomez replied, “Boyfriend, girlfriend, ex-boyfriend.” Then Tolson asked, “Did the ex-boyfriend do this? Who did that?” and Gomez responded, “Ex-boyfriend.” Gomez later died from the gunshot wounds.

Appellant fled to Del Rio. On October 2, 1996, at around 6:00 p.m., he called 911, claiming that he was hearing voices and he needed medical attention. Del Rio officers were dispatched to appellant's location, and he was taken to a hospital. Appellant's car was later found in Del Rio and searched.

Forensic examination and microscopic analysis revealed that all of the bullets found at the crime scene were fired from the same nine millimeter gun. Testimony showed that the magazine clips for this type of gun were capable of holding fifteen bullets apiece. A search of appellant's room in his mother's home revealed a gun box designed to house a nine millimeter gun. A gun belt appropriate for holstering such a gun was found in appellant's car. The gun was never found.

*****

1. John Gomez's Character

In points of error six and seven, appellant contends that the trial court erred in excluding evidence of John Gomez's history of violence and mental illness. Appellant outlines testimony elicited in bills of exception from two witnesses: Joe Castro, Gomez's uncle, and Juanita Gomez, Gomez's grandmother. Appellant does not point to a particular rule of evidence authorizing this testimony; instead, he merely claims that the State “opened the door” to this evidence.

Initially, we observe that appellant has failed to preserve his claim as to Castro's testimony. After Castro was questioned outside the presence of the jury, the trial court ordered a recess. After the recess, the trial court deferred its ruling:

Counsel, in reference to the request by the defense to question the witness Castro in reference to Mr. Gomez, I'm going to hold my ruling in abeyance and allow you, at a later date, at a later time in this trial, if you call it to my attention, I will determine whether or not I will allow it at that time. But at the present time, I am not overruling, I'm not granting the State's objection they have to it. But I'm not going to allow it at this point in time.

Appellant objected to the trial court's “not making a ruling at this time.”

After the State rested, appellant reminded the trial court of appellant's wish to introduce evidence of Gomez's character for violence. The trial was recessed for the weekend. On Monday, the trial court asked defense counsel what character evidence he wanted to offer regarding Gomez. The trial court stated that it would not allow in juvenile records but would allow appellant to question witnesses, including Castro. Defense counsel responded that the testimony would probably come in through Juanita. Defense counsel made no subsequent attempt to introduce Castro's testimony about Gomez's character.

To preserve error on appeal, a party must obtain a ruling from the trial court or object to the trial court's refusal to rule. Tex.R.App. P. 33.1(a)(2)(A) & (B). The trial court never ruled on the admissibility of Castro's testimony. Although appellant objected to the trial court's refusal to rule at the time,FN6 after the State rested, the trial court gave appellant the opportunity to introduce Castro's testimony. Error with respect to Castro's testimony has not been preserved for review.

FN6. Here, the trial court postponed its ruling and promised to rule at a later point in trial. Due to subsequent events, we need not address whether or not this postponement amounts to a “refusal to rule” that would preserve error under Rule 33.1.

Appellant did properly preserve his claim with respect to Juanita's testimony by eliciting her proposed testimony outside the presence of the jury and obtaining a ruling excluding the evidence. We turn, then, to the merits of his claim with respect to her proposed testimony.

In his brief, appellant claims that the following testimony was improperly excluded (paraphrased and numbering inserted): (1) Juanita denied that she had applied to have her grandson, John Gomez, committed to Harris County Psychiatric Hospital, although she admitted requesting that he receive psychiatric treatment. (2) She denied that she had stated in a sworn pleading that her grandson had hurt people and would do it again because he would not take his medication. (3) She acknowledged that her grandson was committed to the Harris County Psychiatric Hospital and that he had been on medication for several years.(4) She did not know whether her grandson was committed because he would become physically aggressive with other people.(5) She acknowledged that she had sought temporary health services for her grandson. (6) She acknowledged that a defense exhibit eflected that her grandson had been suspended for three days for hitting a girl at school.

Character evidence is ordinarily inadmissible. Tex.R. Evid. 404(a). The defendant is permitted to introduce evidence of a pertinent character trait of the alleged victim of the offense on trial. Rule 404(a)(2). But, such evidence may only take the form of reputation or opinion testimony. Rule 405(a). Items (1), (3), (5), and (6) do not constitute reputation or opinion testimony. Item (4) involves a question that, arguably, might encompass opinion testimony, but the answer does not, as the witness stated she did not know. Item (2) arguably involves an opinion about character but that opinion, expressed in a legal pleading, was hearsay. See Tex.R. Evid. 801 & 802. Juanita was never asked for her opinion as to whether Gomez was a violent person. Nor was she asked whether Gomez had a reputation for being a violent person.FN7 In his brief, appellant also states that John Gomez's mental health records were included in his offer of proof. However, aside from the testimony above, appellant does not point to portions of the records he wished to introduce, what those portions would have said about Gomez's character, or why they would be admissible.

The sole reason advanced by appellant for admitting this testimony is that the State opened the door to this evidence with the following question and answer from Castro: Q. Did he [John Gomez] take care of anyone, there, at that residence? A. He took care of my mom and his mother.FN8 The record indicates that Gomez's mother has Down's Syndrome.

Appellant contends that this testimony created a false impression that “Gomez had never been involved in aggressive and assaultive behavior with his family members” and that appellant was entitled to rebut this “false impression” with Gomez's history of violence and mental illness.

This relatively innocuous testimony does not open the door to the presentation of specific instances of violent conduct or of Gomez's history of mental health treatment. That Gomez took care of family members is hardly evidence of peaceable character. Taking care of a family member does not, in itself, reveal any information about whether the caregiver is peaceful or violent towards those in his care-much less towards others who are not even family members. But even if we were to find that this evidence had some small tendency to falsely confer an impression of peaceful character, the trial court would be well within its discretion in excluding appellant's evidence under Tex.R. Evid. 403.FN9 Points of error six and seven are overruled.

FN9. Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

2. Keith Burrow's Character

In points of error nine and ten, appellant complains that the trial court erred in refusing to permit defense counsel to impeach Keith Burrow with prior extraneous offenses. Appellant claims that he should have been allowed to cross-examine Burrow regarding two events: (1) Burrow's giving a false name after an arrest, and (2) Burrow's shooting his stepfather. Neither of these alleged offenses resulted in a conviction. Appellant claims the extraneous offenses are admissible under Texas Rules of Evidence 401 and 611(b).

Rule 401 defines “relevant evidence,” and Rule 611(b) provides that “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” These rules allow a party to introduce relevant evidence, including evidence regarding credibility, so long as there is no other rule requiring exclusion. In the present case, there is another rule that requires exclusion of the evidence-Texas Rule of Evidence 608.

Rule 608 limits the ability of a party to introduce evidence regarding the character of a witness. “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” Rule 608(b). The evidence appellant wished to offer did indeed constitute specific instances of conduct but were not prior convictions under Rule 609. The trial court properly excluded the evidence. Points of error nine and ten are overruled.

3. Veronica's Out-of-Court Statement

In point of error eleven, appellant contends that the trial court erroneously admitted, in violation of the hearsay rule, Graves' testimony that Veronica told her three weeks before the offense that she (Veronica) was afraid of a man named Virgil, and if anyone saw him, to call the sheriff's department. Appellant contends on appeal that the evidence was inadmissible hearsay. We disagree.

“Hearsay” is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Texas Rule of Evidence 801(d). If an item of evidence fails to meet this definition, then it is not hearsay. There are also hearsay exceptions, for items of evidence which meet the definition of hearsay but are nevertheless admissible. One exception to the hearsay rule is the declarant's then existing mental or emotional condition:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Texas Rule of Evidence 803(3).

There are two aspects of Graves' testimony: (1) Veronica's statement that she was afraid of appellant, and (2) Veronica's plea to Graves to call the sheriff if anyone saw appellant. Veronica's statement that she was afraid of appellant was a statement of the declarant's then existing state of mind, and therefore fell within the Rule 803(3) hearsay exception. Her request to call the sheriff's office, even if it may be characterized as a “verbal expression” under Rule 801(a), was not hearsay. The request was not admitted to show that the sheriff's office was called, but was admitted to show Veronica's fear of appellant. Point of error eleven is overruled.

4. Gomez's Out-of-Court Statement

In point of error twelve, appellant contends that the trial court erroneously admitted, in violation of the hearsay rule, Sergeant Tolson's testimony that Gomez identified the shooter as “Ex-boyfriend.” Appellant contends that the statement does not meet the requirements for an “excited utterance” under Rule 803(2). We need not address whether the statement is an excited utterance, however, because Gomez's statement clearly qualifies as a dying declaration. A statement meets the dying declaration exception to the hearsay rule if the declarant is unavailable at the time of trial and the statement is “[a] statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” Rule 804(b)(2). Gomez was unavailable at trial because he was dead. Rule 804(a)(4). A declarant's belief that death was imminent “may be inferred from the circumstances of the case, such as the nature of the injury, medical opinions stated to him, or his conduct.” Thomas v. State, 699 S.W.2d 845, 853 (Tex.Crim.App.1985). Gomez's statement was made after he had been shot seven times-from which he never recovered-and his statement concerned the identity of the perpetrator. Given the severity of Gomez's injuries and the manner in which they occurred, the circumstances were sufficient for the trial court to have inferred that Gomez believed his death was imminent. The trial court did not abuse its discretion in admitting the evidence. Point of error twelve is overruled.

5. Phone Calls

In points of error thirteen and fourteen, appellant contends that the trial court erroneously denied his motions for mistrial after sustaining his objections to testimony about phone calls.FN10 During the State's direct examination of appellant's mother, the prosecutor asked: “Did you know back on October 1st of 1996 that Veronica's phone was blocked from receiving phone calls from your phone?” Appellant objected that the question assumed facts not in evidence. The trial court sustained the objection and instructed the jury to disregard the question. Appellant's motion for mistrial was denied. Later, during the State's direct examination of Veronica's mother-in-law, the following colloquy occurred:

FN10. These two points are consolidated for argument in appellant's brief. Q. State whether or not, if it's within your personal knowledge, that your daughter ever hung up the phone-daughter-in-law ever hung up the phone on Virgil Martinez. [DEFENSE COUNSEL]: Your Honor, objection. Leading, alleged extraneous matters. THE COURT: Overruled. Let's get the answer. Q. You may answer. A. Yes. She would hang up on him. Q. How did you know she was hanging up on Virgil Martinez? A. I would ask her, who was that you hung up on. [DEFENSE COUNSEL]: Your Honor, object to hearsay at this point in time. THE COURT: Sustained. [DEFENSE COUNSEL]: Ask that the jury be instructed to disregard. THE COURT: Members of the jury, you're instructed to disregard the last question by the prosecutor and the partial answer by the witness. [DEFENSE COUNSEL]: Your Honor, at this time we would move for a mistrial. THE COURT: Denied.

Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000). We see nothing in the record before us to suggest that the questions and answers provided here were of such a nature that they could not be cured by an instruction to disregard.FN11 Points of error thirteen and fourteen are overruled.

FN11. The trial court's instruction to disregard applied only to the prosecutor's last question and the witness' answer concerning how Veronica's mother-in-law knew that Veronica hung up the phone on appellant. But that question and answer suggests that the previous question and answer-that Veronica hung up the phone on appellant-may have been based solely upon hearsay. Assuming arguendo that this testimony was in fact inadmissible hearsay, appellant failed to preserve error. That appellant failed to contemporaneously object on hearsay grounds to this previous question and answer may be excusable, since the prosecutor's question was not obviously designed to elicit hearsay testimony. But, once the hearsay problem with the previous testimony became apparent, appellant was required to object and request curative action to preserve error. Tex.R.App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997)(party must procure an adverse ruling to preserve error); Fuller v. State, 829 S.W.2d 191, 198-199 (Tex.Crim.App.1992)(plurality opinion), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993)(if evidence that appears to be admissible at the time later turns out to be inadmissible, complaining party must move to strike evidence at the time its inadmissibility becomes apparent). Appellant failed to request any curative action for this previous testimony.

*****

In point of error fifteen, appellant complains about the trial court's refusal to grant a mistrial after sustaining a defense objection to a statement made by the prosecutor during argument. The prosecutor argued:

Veronica's not here to tell you the reason why she was afraid and why the police called. But there's evidence before you, she is afraid. And I tell you, common sense dictates, common knowledge that sometimes, spurned lovers kill the other person, particularly, when they come in and, perhaps, see her with another person.

Defense counsel objected: “Object to this. He's arguing outside the record. Not in the evidence.” The trial court sustained the objection and instructed the jury to disregard the prosecutor's last statement. Appellant's motion for mistrial was denied.

Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999). Assuming, without deciding, that the prosecutor's argument was improper, that argument was not so extreme as to render ineffective an instruction to disregard. Accordingly, we find that the trial court's instruction to disregard cured any error. Point of error fifteen is overruled.

III. PUNISHMENT

A. Parole

In points of error three and sixteen, appellant complains about the trial court's refusal to permit the jurors to be informed, during voir dire and in jury instructions, that a capital murder defendant who receives a life sentence will not be eligible for parole for forty years. We have consistently decided this issue adversely to appellant's position, and appellant makes no novel argument that would persuade us to deviate from our precedent. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App.1999); Griffith v. State, 983 S.W.2d 282, 289 (Tex.Crim.App.1998), cert. denied, 528 U.S. 826, 120 S.Ct. 77, 145 L.Ed.2d 65 (1999). Points of error three and sixteen are overruled.

B. Voluntary Intoxication

In point of error seventeen, appellant contends that the trial court erred in refusing to submit in the punishment phase jury charge an instruction on voluntary intoxication as a mitigating factor. Appellant cites evidence presented in the punishment phase that he had admitted to consuming alcohol, PCP, and cocaine before he was picked up by the authorities, and that a psychiatrist subsequently prescribed for him Haldol, an anti-psychotic drug. But no evidence was presented that appellant used these drugs at or before the time of the offense or that he was intoxicated at the time of the offense. Absent such evidence, appellant was not entitled to a charge on intoxication as a mitigating factor.FN14 Rodriguez v. State, 899 S.W.2d 658, 668 (Tex.Crim.App.), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995). Point of error seventeen is overruled.

FN14. A defendant is entitled to a mitigation instruction on intoxication in the punishment phase of a trial if there is evidence of temporary insanity caused by intoxication: (b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried. (c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section. Texas Penal Code § 8.04(b) & (c).

In points of error eighteen and nineteen, appellant contends that the trial court erred in overruling his objections to State's arguments involving matters outside the record. Appellant's complaint involves the following colloquies: PROSECUTOR: And based on this evidence, this-this rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the State of Texas. DEFENSE COUNSEL: Objection, your honor. That's not in the record. THE COURT: Stay in the record, counsel. PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family-the victims themselves, they cry out to you, for the death penalty in this case. There's no more- DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that. THE COURT: Overruled. PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case. You know, think about the nurses in the penitentiary. Think about the secretaries. Think about the guards. DEFENSE COUNSEL: Objection, your Honor. Nothing in the record about nurses and secretaries. THE COURT: Overruled. PROSECUTOR: Think about the other people this defendant is going to come into contact with. Think about the other people that you can protect by giving the death penalty in this case.

There are two prosecutorial comments that appellant claims are outside the record: (1) that the victims and their families cry out for the death penalty, and (2) that prisons are staffed by nurses and secretaries. Appellant is correct that neither of those items appear in the record, but the comments can arguably be justified on other grounds: comment (1) as a plea for law enforcement and comment (2) as a statement of matters within the realm of common knowledge. See Guidry, 9 S.W.3d at 154 (Tex.Crim.App.1999)(pleas for law enforcement permissible); Nenno v. State, 970 S.W.2d 549, 559 (Tex.Crim.App.1998) (common knowledge is an exception to the prohibition against arguing facts outside the record). However, we will assume, without deciding, that the comments are not covered by these arguable justifications, and address the issue of harm.

The first question is whether to assess harm under the standard for constitutional errors or for nonconstitutional errors. For arguments that strike over the shoulders of counsel, we have held that the harm standard for nonconstitutional errors-found in Texas Rule of Appellate Procedure 44.2(b)-applies. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Mosley 's holding suggests that most comments that fall outside the areas of permissible argument will be considered to be error of the nonconstitutional variety. Comments upon matters outside the record, while outside the permissible areas of jury argument, do not appear to raise any unique concerns that would require us to assign constitutional status. We shall therefore apply the standard of harm for nonconstitutional errors.

Rule 44.2(b) provides that a nonconstitutional error “that does not affect substantial rights must be disregarded.” In Mosley, we held that determining harm under that standard in improper argument cases requires balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, (3) the certainty of conviction absent the misconduct. Id. Appellant argues that this test applies to punishment, except that the third factor would involve the certainty of “the punishment assessed.” We agree that the Mosley test would apply to punishment, at least in a capital case, with the third factor so modified. We proceed to analyze the comments under the Mosley factors.

The degree of misconduct, if any, was relatively mild in the present case. The prosecutor's comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims' families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims' deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement.

The prosecutor's comment that appellant could be a threat to nurses and secretaries was also, at most, mildly improper. That prisons would employ personnel to treat medical problems and clerical workers to handle paperwork is a matter of common knowledge. Whether such persons would be nurses and secretaries or would be other personnel performing such functions is of little significance. The prosecutor's main point-that appellant would be a threat to non-prisoners in prison-was an entirely legitimate point to make. The first Mosley factor carries very little weight in the present case.

The second factor may be quickly dispensed with. There was no curative instruction, and the State did nothing to emphasize the allegedly erroneous comments made. The comments were a very small portion of the State's entire argument at punishment.

The third factor weighs heavily in the State's favor. Appellant's crime was especially egregious. He killed not just one, but four people, including two small children. The apparent motive for these killings was jealousy over an ex-girlfriend. A former girlfriend testified at the punishment stage that appellant had exhibited aberrant behavior after their relationship ended: calling her names when she broke the relationship off, subsequently leaving messages on her voice mail at work, and calling her at home numerous times after she told him not to call. She also testified about a disturbing incident in which appellant came into her house uninvited with pizza for her children, slammed his fist on her kitchen table while uttering profanities about someone he used to date, and finally stormed back out after being asked several times to leave. After his arrest appellant threatened hospital attendants with a heavy plastic table knife, and appellant was caught concealing a welding rod while being transported during trial. There was also evidence at trial that appellant had attempted to fake insanity after he was arrested for the present offense. This evidence shows a volatile, obsessive, and non-repentant individual who would resort to violence-even extreme violence-when his relationships with women did not work out.FN15 We note that the jury's verdict on punishment was delivered within an hour and a half after deliberations began.

Given the mildness of the prosecutor's comments and the strength of the evidence supporting appellant's death sentence, we find that any errors associated with those comments were harmless. Points of error eighteen and nineteen are overruled. The judgment of the trial court is affirmed.

*****

WOMACK, J., filed a concurring opinion. PRICE, HOLLAND, and JOHNSON, JJ., concurred in the result.

I join the judgment of the court and, except as to points of error 18 and 19, its opinion. In my view there was no error as to those points, and therefore the issue of harmless error need not be reached.

Martinez v. Quarterman, 481 F.3d 249 (5th Cir. 2007) (Habeas).

Background: State prisoner who had previously been convicted of multiple murders and sentenced to death filed petition for federal habeas relief, on theory that he was denied “effective assistance of counsel” when his trial attorneys decided to limit their investigation into his temporal lobe epilepsy (TLE) as possible mitigating factor at punishment phase of case. The United States District Court for the Southern District of Texas, Samuel B. Kent, J., 2006 WL 305666, granted habeas petition, and appeal was taken.

Holdings: The Court of Appeals, Prado, Circuit Judge, held that: (1) defense counsel made reasonable professional judgment to limit their investigation into defendant's TLE as mitigating evidence at punishment phase; and (2) defendant could not show that this strategic decision by defense counsel had prejudiced him, as required to establish that he had received “ineffective assistance of counsel.” Reversed.

PRADO, Circuit Judge:

Respondent-Appellant Nathaniel Quarterman (“Quarterman”) appeals the opinion and order of the district court granting Petitioner-Appellee Virgil Euristi Martinez's (“Martinez”) petition for a writ of habeas corpus based on a claim of ineffective assistance of counsel. Martinez alleged, and the district court agreed, that his trial attorneys, Jerri Yenne and Stan McGee, provided ineffective assistance of counsel by inadequately investigating temporal lobe epilepsy (“TLE”) as mitigating evidence at the punishment phase of his trial. However, we conclude that reasonable professional judgments supported counsel's limited investigation into TLE and that Martinez failed to establish prejudice as a result of counsel's limited investigation. The Texas Court of Criminal Appeals's denial of Martinez's application for habeas relief was not “objectively unreasonable.” We therefore REVERSE.

I. FACTUAL AND PROCEDURAL HISTORY

This is the second time that this court has considered Martinez's petition for habeas corpus.FN1 Martinez alleges that his counsel provided ineffective assistance at the punishment phase of his trial because they failed to fully investigate TLE as mitigating evidence. Martinez contends that the TLE evidence “would have rebutted the State's case of future dangerousness, provided the jury with a vehicle to spare his life, both in terms of future dangerousness and mitigation, and provided an explanation for his behavior and violent crime.” 111 Fed.Appx. at 225. In support of his claim, Martinez submitted affidavits from Drs. Theodore Pearlman and Anand Mehendale, in which the doctors opined that TLE played a role in Martinez committing the murders. Although the state habeas record contained affidavits from Martinez's trial counsel, those affidavits did not clearly demonstrate the extent of counsel's investigation into and knowledge of TLE.

FN1. A jury convicted Martinez of murdering his ex-girlfriend Veronica Fuentes; Veronica's two children, five-year-old Joshua and three-year-old Cassandra; and a bystander John Gomez. The jury subsequently sentenced Martinez to death. Martinez properly pursued and exhausted his state remedies. The Texas Court of Criminal Appeals ultimately denied Martinez's application for habeas relief. Our previous opinion contains a fuller account of the factual and procedural history. See Martinez v. Dretke, 111 Fed.Appx. 224 (5th Cir.2004) ( Martinez I ).

Given the indeterminacy of the record, we vacated the district court's denial of habeas and remanded for further development of the record. We instructed the district court to conduct an evidentiary hearing to determine “whether counsel's investigation of Martinez's temporal lobe epilepsy was unreasonably deficient and, if so, whether counsel's failure to investigate this condition and produce evidence relating to it amounted to ineffective assistance of counsel.” Martinez 111 Fed.Appx. at 230. Specifically, we asked the district court to clarify: (1) how much of the information in Dr. Pearlman's February 27, 1997, report did Yenne learn in her investigation, and whether the report should have triggered further investigation; (2) whether Dr. Mehendale told Yenne that Martinez suffered from TLE or about that condition's effect on aggressive behavior; and (3) whether Yenne read Martinez's school records and considered how TLE might relate to the behavioral problems noted therein. Id. at 227-28.

A magistrate judge held a two-day hearing on June 6-7, 2005, and the parties submitted additional deposition evidence to the court. The magistrate judge determined that Yenne read Dr. Pearlman's report and knew of his diagnosis of TLE. The report and recommendation concluded that Yenne did not understand the relationship between TLE and post-seizure aggression or Martinez's future dangerousness because she failed to ask Dr. Mehendale his medical opinion on these subjects. The magistrate judge also found that, though Yenne read the school records, she never asked either Dr. Pearlman or Dr. Mehendale about how TLE might explain Martinez's behavioral problems in school. According to the magistrate judge, counsel's failure to further investigate TLE constituted ineffective assistance of counsel. The report and recommendation concluded that counsel's failure to fully investigate TLE prejudiced Martinez because, with further investigation, counsel could have rebutted much of the State's aggravating evidence and could have given the jury an explanation for Martinez's crime. Accordingly, on November 9, 2005, the magistrate judge issued a report and recommendation advising that the district court grant habeas relief.

On February 7, 2006, the district court issued an opinion and order accepting the magistrate judge's report and recommendation and granted Martinez's petition for habeas relief. Quarterman now appeals the district court's opinion and order.

II. STANDARD OF REVIEW

In a habeas appeal, this court reviews the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standards to the state court's decision as did the district court. Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004).

Martinez filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254; therefore, AEDPA governs this appeal. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, this court may not grant habeas relief on a claim that a state court has adjudicated on the merits “unless the adjudication of the claim ... 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.” Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002) (quoting 28 U.S.C. § 2254(d)(1)) (internal quotations omitted). A state court's decision is “contrary to” clearly established federal law if “it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.” Busby, 359 F.3d at 713 (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A decision constitutes an “unreasonable application” of clearly established federal law if it is “objectively unreasonable.” Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir.2003). The decision of the state court might be incorrect, but still fall below the “objectively unreasonable” threshold. See Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002). This court must presume that a state court's findings of fact are correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Ten years after AEDPA's enactment, its standards are by now familiar, but Quarterman vigorously objects that neither the magistrate judge nor the district court applied AEDPA deference. We need not decide this particular issue because we are persuaded that, irrespective of AEDPA deference, the district court erred in finding ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III. DISCUSSION

In Strickland, the Supreme Court articulated the standard for establishing an ineffective assistance of counsel claim. Martinez must demonstrate both that: (1) his counsel's performance was deficient; and (2) counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Counsel's performance is deficient if it “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. The Supreme Court has instructed that judicial scrutiny of counsel's performance must be “highly deferential.” Id. at 689, 104 S.Ct. 2052. A reviewing court should make every effort “to eliminate the distorting effects of hindsight” and to “evaluate the conduct from counsel's perspective at the time.” Id. Further, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052 (emphasis added).

In addition to deficient performance, Martinez must demonstrate prejudice. Deficient performance results in prejudice when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. More precisely, in a capital case such as this one, the standard is “whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052.

1. Deficient Performance and Inadequate Investigation

The gravamen of Martinez's ineffective assistance of counsel claim is that his counsel prejudiced his defense by failing to conduct a reasonably adequate investigation of TLE as mitigating evidence. The magistrate judge found that counsel read Dr. Pearlman's report and knew of Dr. Pearlman's opinion that Martinez committed murder during the course of a TLE-induced seizure. Nevertheless, both Martinez and the district court fault counsel for not further investigating TLE and discovering the links between TLE and post-seizure aggression, TLE and Martinez's poor disciplinary record at school, and how TLE could have explained Martinez's bizarre and, at times, violent behavior at the Kerrville State Hospital. However, Strickland does not require counsel to fully investigate all mitigating evidence. The Strickland Court recognized there would be times when “reasonable professional judgments support[ed] limitations on investigation.” 466 U.S. at 690-91, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“In assessing the reasonableness of an attorney's investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”). Certainly counsel did not fully explore TLE, but we must decide whether counsel's decision to forego further investigation was based on reasonable professional judgments.

Without a doubt, Dr. Pearlman's report brimmed with information which could have been useful to Martinez's mitigation case, but it also teemed with damaging information which convinced counsel not to pursue TLE any further. FN2 Pearlman's report contained information which counsel rightly did not want the jury to hear. First and foremost, counsel thought that it would be more harmful than beneficial for the jury to learn that Martinez had a mental disorder which, in Dr. Pearlman's words, caused “savage and uncontrolled” aggressiveness. Yenne Dep. Vol. 8 at 160-61. Counsel believed that this might cause the jury to believe that Martinez was a “complete danger to society” and that he was “incapable of controlling any of his behavior.” Id. at 161.FN3 Counsel thought that evidence of Martinez's aggressiveness, even if it were caused by a physical condition, would not sit well with a Brazoria County jury. Id. at 161-62. The evidence for Martinez's TLE embodies the type of “double-edged” evidence which this circuit has repeatedly stated that counsel may elect not to present to the jury. Martinez v. Dretke, 404 F.3d 878, 889 (5th Cir.2005) ( Martinez II); Johnson, 306 F.3d at 253.

FN2. In the words of Stan McGee, “my sense of our investigation about mitigation and future dangerousness was everything that we came up with or everything that Ms. Yenne came up with seemed to me to be-it hurt more than it helped.” McGee Dep. at 47.

FN3. Admittedly, Dr. Pearlman's report states that with treatment “there is no likelihood that [Martinez] will commit future acts of dangerousness to society,” but it is counsel's decision to decide whether, on balance, the TLE evidence was more helpful than harmful. See Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir.2002) (noting decision not to present double-edged testimony even less susceptible to judicial second-guessing). Furthermore, Dr. Pearlman's opinion as to future dangerousness was based, in part, on his belief that Martinez lacked either a criminal history or a prior history of catastrophic violence. Yenne, however, knew that Dr. Pearlman was unaware of some of Martinez's prior bad acts, such as his history of stalking women, and she wanted to avoid exposing Dr. Pearlman to this potential line of cross-examination. Yenne Dep. Vol. 8. at 162, 142 (mentioning history of stalking women).

The TLE evidence failed to impress counsel not only because it suggested that Martinez was prone to aggressiveness, but also because counsel feared that the jury simply would not believe it. Counsel suspected that the jury would not accept that epilepsy caused the murders because epilepsy is a fairly common disorder and, in most people's experience, does not result in such catastrophic violence. Yenne Dep. Vol. 6. at 33.FN4 Further, Yenne believed that Martinez's lack of violent incidents in jail was inconsistent with someone who could not control his behavior. Id. Vol. 6 at 38. Counsel were also skeptical of Dr. Pearlman's opinion that Martinez committed the murders while having a seizure.FN5 McGee questioned how a seizure could last long enough to encompass four murders in which the victims were shot multiple times, requiring Martinez to reload. McGee Dep. at 64-65. The law permits counsel to question Dr. Pearlman's conclusions based on their review of the evidence. See Riley v. Dretke, 362 F.3d 302, 305-06 (5th Cir.2004) (allowing counsel not to put on evidence of mental retardation where counsel's subjective belief that his client was not retarded based on counsel's observations of the client, information from the family, and school records).

FN4. Martinez and the district court accuse counsel of not understanding the distinction between TLE and other types of epilepsy or the relationship between TLE and violence. These objections are overstated because, as will be discussed in the section on prejudice, scientists currently do not have a complete understanding of how TLE relates to violence, especially the catastrophic violence of this case.

FN5. Counsel's skepticism about Dr. Pearlman's explanation for the murders was reasonable, for Dr. Mehendale also disagrees with it.

In addition to suggesting that Martinez was prone to aggressiveness, Dr. Pearlman's report was based, in part, on school records which showed that Martinez engaged in antisocial behavior from a young age. Counsel feared that letting Dr. Pearlman testify about TLE would open the door to Martinez's troubling school records. A fairly representative sample of those records noted that Martinez (1) exhibited “explosive behavior,” (2) “thinks about and plans what he can do to get back at those who have bothered him,” and (3) once brought live .22 caliber cartridges to class. Res. Ex. Vol. 1 Tab E at 666, 676, & 625. Dr. Pearlman's report gave no indication that TLE caused or contributed to these behavioral problems. Even if Dr. Pearlman's report had suggested that TLE was the cause, such evidence would have been double-edged.

Finally, Dr. Pearlman's report contained information which counsel believed undermined their overall trial strategy. The report referenced a quotation from Martinez's mother in which she stated that Martinez was jealous in his love for Veronica Fuentes. Counsel concluded, not unreasonably, that this provided the State with a motive for the murders where before it did not have one. Yenne Dep. Vol. 8 at 158. Counsel believed that evidence of jealousy or stalking would have cinched the death penalty for Martinez. Id. at 177. The report also mentioned Martinez's confession to Pearlman that he had killed John Gomez.FN6 Counsel believed that conceding Martinez had killed Gomez would have conflicted with their strategy of arguing mistaken identity at the guilt/innocence phase of the trial. While there is certainly no formal rule against switching theories between the punishment and guilt/innocence phases of the trial, in this case, counsel believed that switching theories would make them lose credibility with the jury and appear hypocritical. Yenne Dep. Vol. 8 at 151. Indeed, Stan McGee testified that, in his experience, juries did not react well to a switch in theories between the different phases of the trial. Counsel chose to argue residual doubt rather than presenting inconsistent theories to the jury. See e.g., Moore v. Johnson, 194 F.3d 586, 618 (5th Cir.1999) (noting that this circuit has held that arguing residual doubt may be a reasonable, even highly beneficial, strategy in a capital case).

FN6. Counsel also worried that it would come out that Dr. Pearlman did not believe Martinez's account of the murders. Yenne Dep. Vol. 8 at 153.

After reading Dr. Pearlman's report, counsel knew that Dr. Pearlman believed that Martinez suffered from a mental disorder which made him prone to aggressive behavior and that Martinez committed the murders during a seizure. FN7 Therefore, this case is unlike Lockett v. Anderson, in which we found that counsel provided ineffective assistance where counsel failed to discover evidence of brain abnormalities because counsel did not follow up on evidence which suggested psychological problems. 230 F.3d 695 (5th Cir.2000). Given all of the damaging information contained in Dr. Pearlman's report, counsel made a reasonable professional judgment to limit their investigation into TLE as mitigating evidence.

FN7. The district court found that counsel “simply did not know the link between TLE and violence.” R. Excerpts Tab E at 5. This finding of fact is clearly erroneous because it is not supported by the record. While it is true that counsel did not know the relationship between TLE and post-seizure aggression, after reading Dr. Pearlman's report, counsel knew that Dr. Pearlman believed Martinez committed murder while having a seizure and that TLE caused aggressive behavior.

Despite counsel's reasonable reservations about presenting TLE to the jury, counsel did make some attempts to follow up on the TLE evidence discovered in Dr. Pearlman's report. Jerri Yenne met with Dr. Mehendale and asked the doctor what he thought of Dr. Pearlman's opinion that Martinez committed the murders during an epileptic seizure. Dr. Mehendale responded that he believed it was unlikely that Martinez committed the murders while Martinez was having a seizure. Faced with conflicting expert testimony about the role that TLE played in the commission of the crimes, it was reasonable for counsel to conclude that TLE was not worth pursuing. Counsel believed that it made no sense to put on experts with different opinions. Yenne Dep. Vol. 8 at 160.

Nevertheless, the district court and Martinez both fault counsel for not asking Dr. Mehendale about post-seizure aggression or how TLE might explain Martinez's poor behavioral record at school and at the Kerrville state hospital. To fault counsel for not asking these particular questions is to engage in the kind of hindsight second-guessing that Strickland warned against. 466 U.S. at 689, 104 S.Ct. 2052. Perhaps different counsel might have asked those questions, but this does not mean that Martinez's counsel's actions “fell below an objective standard of reasonableness” because they failed to do so. Id. at 688, 104 S.Ct. 2052. Yenne pointedly asked Dr. Mehendale to evaluate Dr. Pearlman's opinion that Martinez committed the murders during a seizure and Dr. Mehendale rejected that position. In a forty-five minute conversation with Yenne, Dr. Mehendale never suggested that, while it was unlikely Martinez committed the murders during a seizure, post-seizure aggression could have accounted for the murders. Mehendale Dep. at 59. Yenne is a lawyer, not a medical doctor. Yenne and McGee's personal experiences with and knowledge of epilepsy did not put them on notice of post-seizure aggression. McGee Dep. at 64-65; Yenne Dep. Vol. 6 at 52; see also Martinez II, 404 F.3d at 886 (taking into account counsel's personal and professional experience in evaluating whether counsel should have been put on notice to investigate further). Further, and perhaps more importantly, there was simply nothing in Dr. Pearlman's report which would have alerted counsel to the possibility of post-seizure aggression or to a link between Martinez's behavioral problems in school and TLE.FN8 The relationship between TLE and Martinez's behavioral problems in school is far from self-evident. Dr. Mehendale believes that TLE contributed to Martinez's antisocial behavior in an “obtuse way,” but Dr. Pearlman does not agree that Martinez's childhood behavior was caused by or a sign of TLE. Mehendale Dep. at 29; Pearlman Dep. at 100-01.

Instead of pursuing TLE, counsel made the strategic choice to argue residual doubt at the punishment phase. Counsel believed that they had a strong chance of prevailing on a direct appeal with respect to some exclusion of evidence issues. Yenne Dep. Vol. 8 at 168. Counsel also supposed that they might prevail on direct appeal because of insufficient evidence to conclude that Martinez murdered the children. Id. Vol. 6 at 41. Counsel concluded that having Dr. Pearlman testify would be counter-productive to this potential appeal because he would have to admit that Martinez confessed to killing Gomez and, more importantly, the TLE testimony would have suggested that TLE-induced aggression also prompted Martinez to kill the children. The district court attempted to discount this strategic choice when it notes that Martinez “was convicted with the support of significant eyewitness testimony concerning the identity of the murderer.” R. Excerpts Tab E at 6. While this may have been true with respect to Veronica Fuentes and John Gomez, this was not true for the children, who were killed in a trailer away from the eyes of witnesses. Residual doubt, especially as it concerns the children, was therefore a strategic choice entitled to deference. See Moore, 194 F.3d at 618.

After the evidentiary hearing, there is no doubt that counsel both knew of Dr. Pearlman's opinion that TLE played a role in the commission of the murders and failed to fully investigate TLE. However, Supreme Court precedent does not require a full investigation into all mitigating evidence. Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). After reading Dr. Pearlman's report and discussing it with each other, counsel had sufficient information to determine that TLE was not worth pursuing. Counsel's decision is entitled to deference and was not deficient.

2. Prejudice

Martinez cannot prove that his counsel's decision not to fully investigate TLE resulted in prejudice. In determining prejudice, we must decide “whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Our duty requires us to “compare the evidence actually presented at sentencing with all the mitigating evidence contained in the postconviction [sic] record.” Neal, 286 F.3d at 241; see also Williams, 529 U.S. at 397-98, 120 S.Ct. 1495 (reviewing court must re-weigh the totality of the mitigating evidence against the aggravating evidence). The district court described the mitigating evidence in this case as “potentially of significant help” to Martinez. R. Excerpts Tab E at 6. We disagree with this conclusion. The magistrate judge's report and the district court's opinion focus too narrowly on the beneficial aspects of the TLE evidence, while overlooking its many drawbacks. Looking at all the mitigating evidence contained in the post-conviction record, the TLE evidence would not have been a significant help to Martinez. As a whole, the evidence was not so compelling that there was a reasonable probability that the sentencer would have determined that death was an inappropriate sentence.

First, as has been previously discussed, rather than cutting solely in favor of Martinez, the TLE evidence was double-edged. As the Supreme Court has noted, “[m]itigation, after all, may be in the eye of the beholder.” Burger, 483 U.S. at 794, 107 S.Ct. 3114 (citations omitted). The jury could have felt that TLE made Martinez a future danger because it inclined him toward uncontrolled aggression, or the jury could have accepted TLE as evidence that Martinez acted with diminished capacity.

The TLE evidence also suffered from the fact that Martinez's experts disagreed over significant aspects of the TLE evidence. Drs. Pearlman and Mehendale broadly agree that TLE-fueled aggression played a role in Martinez's commission of the murders, but the devil is in the details. First, Dr. Pearlman believes that Martinez committed the murders while having a seizure, but Dr. Mehendale believes that scenario is unlikely. Instead, Dr. Mehendale opines that Martinez murdered while experiencing post-seizure aggression. Second, Dr. Pearlman does not believe that TLE contributed to Martinez's antisocial behavior in school, whereas Dr. Mehendale contends that TLE was obtusely related to those behaviors. Finally, Dr. Pearlman's report states that with treatment, “there is no likelihood that [Martinez] will commit future acts of dangerousness to society.” Dr. Mehendale's affidavit is less definitive, stating that Martinez's future dangerousness could be “somewhat diminished” with treatment. Further, at his deposition, Dr. Mehendale conceded that there was a possibility that Martinez's TLE disorder could not be controlled-there were no guarantees. Mehendale Dep. at 56. Faced with significant disagreement between Martinez's experts, a jury might well have been unimpressed with TLE as mitigating evidence.

Of course, counsel could have elected to present only one expert to the jury, but a jury would have had sufficient reason to find each expert's testimony less than compelling. We have already noted the potential pitfalls of putting Dr. Pearlman on the stand in the section addressing whether counsel's performance was deficient. Putting Dr. Mehendale on the stand would have been even less beneficial to Martinez. As we have already seen, though Dr. Mehendale opines that Martinez's capacity for future dangerousness could be reduced with treatment, he conceded that there was a possibility that Martinez's TLE could not be controlled with treatment. Unfortunately for Martinez, that was not the last of Dr. Mehendale's damaging admissions. Although there is a link between TLE and violence, Dr. Mehendale, on a couple of occasions, stated that there is no data quantifying the degree of violence associated with TLE. Mehendale Dep. at 20-21 & 53. In fact, Dr. Mehendale reports that in a study of 5400 epileptics “none of them committed murder.” Id. at 77. He stated that although epileptics have “bad brains” their actions very rarely result “in a horrid tragedy like this.” Id. Dr. Mehendale concluded by saying that the reason most epileptics stop short of committing murder is because “epileptic brains have [a] conscience, and [Martinez] didn't.” Id. at 78. Dr. Mehendale, Martinez's own expert, would have undermined any argument by Martinez that TLE reduced his moral culpability for the murders. Surely, this is not compelling mitigation testimony which undermines the outcome of the state trial.

After considering all of the mitigating evidence, we hold that the additional mitigating evidence was not so compelling, especially in light of the horrific facts of the crime, that the sentencer would have found a death sentence unwarranted. At the very least, the Texas Court of Criminal Appeals's decision finding no ineffective assistance of counsel was not “objectively unreasonable.”

IV. CONCLUSION