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Christopher BLACK Sr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide
Number of victims: 3
Date of murder: February 7, 1998
Date of arrest: Same day (surrenders)
Date of birth: August 2, 1959
Victims profile: His estranged wife, his daughter and his step-granddaughter
Method of murder: Shooting (semiautomatic pistol)
Location: Bell County, Texas, USA
Status: Executed by lethal injection in Texas on July 9, 2003
 
 
 
 
 

United States Court of Appeals
For the Fifth Circuit

 
opinion 02-50455
 
 
 
 
 
 

Summary:

In February 1998, angry about the end of his marriage, Christopher Black, Sr., recorded on cassette tapes why he wanted to kill his family and purchased a semiautomatic pistol.

The next day he visited his estranged wife at her home in Killeen, Texas. There, in the presence of Deidre Blackburn, a friend of his wife, he shot his wife ten times and his 19-month-old step-granddaughter once as she sat in a high chair.

He fired one round into his 15 week old infant daughter. Blackburn escaped unhurt to a neighbor's house. All three of the victims died of the gunshot wounds.

Immediately after the killings, Black called 911 and told a police dispatcher that he had just killed his wife, daughter and granddaughter, and that he had "ran out of bullets."

Black claimed he shot and killed his wife because she tormented and belittled him and physically abused his 10-year-old son.

Black was charged, but never tried, in the slayings of his wife and daughter.

Citations:

Black v. State, 26 S.W.3d 895 (Tex.Crim.App.,2000) (Direct Appeal)

Final Meal:

One steak (medium well), fried chicken (wings and thighs), French fries, mushroom gravy, mixed steamed vegetables, chocolate fudge cake, peach cobbler, sweet tea, bread, and chef salad with Italian dressing.

Final Words:

Black made no final statement.

ClarkProsecutor.org

 
 

Texas Attorney General

Media Advisory

Monday, July 7, 2003

Christopher Black, Sr. Scheduled to be Executed.

AUSTIN - Texas Attorney General Greg Abbott offers the following information on Christopher Black, Sr., who is scheduled to be executed after 6 p.m. on Wednesday, July 9, 2003.

On Aug. 10, 1998, Christopher Black, Sr., was sentenced to death for the capital murder of Katrese Houston, his 17-month-old step-granddaughter, which occurred in Killeen, Texas, on Feb. 7, 1998. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

In February 1998, angry about the end of his marriage, Christopher Black, Sr., recorded on cassette tapes why he wanted to kill his family and applied for the purchase of a handgun. A few days later, Black purchased a semiautomatic pistol.

On February 7, the day after he acquired the weapon, Black visited his estranged wife at her home in Killeen, Texas. There, in the presence of Deidre Blackburn, a friend of his wife, he shot his wife and his 19-month-old step-granddaughter as she sat in a high chair; he fired one round into his infant daughter. Blackburn escaped unhurt to a neighbor's house.

All three of the victims died of the gunshot wounds. Immediately after the killings, Black called 911 and told a police dispatcher that he had just killed his wife, daughter and granddaughter.

Black was arrested at the scene and later indicted by a Bell County grand jury for the murder of a person under the age of six years, a capital crime in Texas. Blackburn testified against Black at his trial for this crime.

PROCEDURAL HISTORY

On March 25, 1998, a grand jury in Bell County, Texas, indicted Black for intentionally and knowingly using a firearm to kill Katrese Houston, a child younger than six years of age. Black pleaded "not guilty," but on Aug. 5, 1998, a guilty verdict was returned.

Following a separate punishment hearing, the same jury answered the future dangerousness issue affirmatively and the mitigation issue negatively. In accordance with Texas law, the trial court therefore sentenced Black to the death penalty.

On Sept. 13, 2000, the Texas Court of Criminal Appeals affirmed the conviction and sentence in a published en banc opinion. Black did not seek a writ of certiorari in the Supreme Court at that time.

On June 2, 2000, Black initiated state habeas proceedings by filing an 11-claim petition in the convicting court. On March 7, 2001, the Court of Criminal Appeals denied Black's application for state habeas relief, and the federal district court denied federal habeas relief on Jan. 17, 2002.

In a published opinion issued on Dec. 11, 2002, the Fifth Circuit Court of Appeals denied Black's request for a certificate of appealability, affirmed the district court's decision and, on Jan. 15, 2003, denied Black's petition for rehearing.

On Feb. 6, 2003, the trial court set Black's execution for July 9, 2003. On Feb. 21, 2003, Black petitioned the Supreme Court for a writ of certiorari. On April 21, 2003, the Supreme Court denied the petition.

CRIMINAL BACKGROUND

Black has no previous criminal record.

 
 

ProDeathPenalty.com

A jury took only 15 minutes Wednesday to convict a man of capital murder in the shooting death of a toddler. The same jury deliberated 7 hours before sentencing him to death.

Christopher Black, 37, of Killeen was convicted of killing 18-month-old Katrease Houston, his wife's granddaughter, on Feb. 7, 1998. Black was also charged with killing his wife, 36-year-old Gwendolyn Black, and the couple's daughter, 15-week-old Christina Black. Relatives claim the triple homicide occurred after Black learned his wife planned to divorce him. Black claimed he shot and killed his wife because she tormented and belittled him and physically abused his 10-year-old son.

UPDATE: A retired Army sergeant was executed Wednesday for shooting his 17-month-old step-granddaughter to death in her high chair during a rampage in which his wife and 5-month-old daughter also were killed.

Christopher Black declined to make any statement before dying by injection. He groaned as the drugs began flowing and was pronounced dead seven minutes later. Black was convicted of killing Katrease Houston at the Killeen home of his estranged wife Gwendolyn Black, the toddler's grandmother. Katrease was found slumped in a high chair, shot five times in the chest. Her grandmother was shot 10 times. Black's daughter, Christina Marie, was shot once. "I ran out of bullets," Black told a 911 operator he called after the Feb. 7, 1998, attack.

The U.S. Supreme Court in April refused to consider Black's appeal and no additional appeals were made, according to his lawyer, Jack Hurley. "We still miss our loved ones but we won't be thinking about him," Mardelouis Hawthorne, Gwendolyn Black's sister, said after watching Black die.

Black bought a 9 mm semiautomatic pistol the day before the shooting. He mailed cassette tapes to relatives explaining plans to kill his 36-year-old wife and anyone else in the house.

The tapes were timed to arrive after the shooting. Relatives said Gwendolyn Black, who worked as an elementary school teacher, was seeking a divorce. It took a jury in Killeen 15 minutes to convict Black of the capital murder of Katrease.

In Texas, murder of a child under the age of 6 can invoke the death penalty, and the jury deliberated about seven hours before choosing that punishment. Black was charged, but never tried, in the slayings of his wife and daughter.

 
 

Texas Execution Information Center by David Carson

Txexecutions.org

Christopher Black Sr., 43, was executed by lethal injection on 9 July 2003 in Huntsville, Texas for killing three members of his family.

On 7 February 1998, Black, then 38, went to the house in Killeen where his wife, Gwendolyn, 36, was living. He shot Gwendolyn ten to twelve times with a 9 mm semi-automatic pistol.

Deidre Blackburn, a friend of Gwendolyn's, was in the house and saw Black shoot his wife. She fled to a neighbor's house after he started shooting. Black then shot his 5-month-old daughter, Christina Marie Black, once. Next, he shot his 17-month-old step granddaughter, Katrese Houston, five times in the chest.

All of his victims died of their wounds. He then called 9-1-1 and told the operator that he had just killed his wife, daughter, and granddaughter. "I ran out of bullets," he said.

When police arrived, Black was unarmed and holding Christina to his chest. Katrese was slumped over in a high chair. "We approached him and he said he wasn't going to put the baby down on the cold ground," officer Eric Bradley said. "As I reached up to grab the baby from him, he said, 'I want to kiss my baby.' I said 'go ahead.'" Bradley said that as he pulled the baby toward him, he saw that she was dead.

In addition to the police report and Blackburn's testimony, the jury heard some cassette tape recordings Black had made prior to the crime. In these recordings, he stated that he was angry over the end of his marriage and that he planned to kill Gwendolyn and anyone else in the house.

He also explained how he purchased a handgun the day before the murders, after he had filled out an application and waited several days for a background check. He had no prior criminal history. Black mailed the tapes to relatives so that they would receive them after the shooting.

In August 1998, a jury convicted Black of the capital murder of Katrese Houston and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2000. All of his subsequent appeals in state and federal court were denied.

On death row, Black declined to speak with reporters. He did not make a last statement at his execution. He was pronounced dead at 6:19 p.m.

 
 

Killer Who 'Ran Out of Bullets' Silent Before Execution

Houston Cronicle

AP July 9, 2003

HUNTSVILLE -- A retired Army sergeant was executed Wednesday evening for murdering his 17-month-old step-granddaughter in a 1998 massacre in which his wife and 5-month-old daughter also were gunned down. Asked by the warden if he wanted to make a final statement, Christopher Black Sr., said no. As the drugs began flowing, he made a groaning sigh and was pronounced dead at 6:19 p.m., seven minutes later.

Black was convicted of killing Katrease Houston at the Killeen home of his estranged wife Gwendolyn Black, the toddler's grandmother. Katrease was found slumped in a high chair. She had been shot five times in the chest. Her grandmother was shot 10 times. Black's daughter, Christina Marie, was shot once. "I ran out of bullets," Black told a 911 operator he called after the Feb. 7, 1998, attack.

Black is the 18th condemned Texas inmate to receive lethal injection this year and the second in as many weeks. Two more are set to die later this month. The U.S. Supreme Court in April refused to consider Black's appeal and no additional appeals were made, his lawyer, Jack Hurley, said.

Black bought a 9 mm semiautomatic pistol the day before the shooting. He mailed cassette tapes to relatives explaining plans to kill his 36-year-old wife and anyone else in the house. The tapes were timed to arrive after the shooting.

The couple had married just over three years earlier but relatives said Gwendolyn Black, who worked as an elementary school teacher in nearby Copperas Cove after leaving the Army, was seeking a divorce because she received little help from her husband with the children and he had moved out of town to take a security job.

Police who responded to 911 calls from Black and neighbors found him unarmed and holding his daughter to his chest. "We approached him and he said he wasn't going to put the baby down on the cold ground," officer Eric Bradley said. "As I reached up to grab the baby from him, he said: 'I want to kiss my baby.' I said go ahead. "As I pulled the baby toward me, the baby's head kind of just rolled to the left. ... The eyes were open, fixed, no pulse, no respiration, no nothing."

It took a jury in Killeen 15 minutes to convict Black of capital murder of Katrease. In Texas, murder of a child under the age of 6 can be a death penalty case and the same jury deliberated about seven hours before deciding his punishment. "I don't recall a case that was any more aggravated or any more vicious in the way the crime was committed and the consequences," Lon Curtis, the former assistant district attorney in Bell County who prosecuted Black, said this week. "The image of that baby, the little girl, slumped over in her high chair with five rounds in the chest. ... I wish I hadn't been reminded of that."

Black declined to speak from death row with reporters. "My days are long and sad," he wrote on a Web site where inmates seek pen pals. "I do not want romance or money, the only thing that I want is a friend." "He made his choices," Bradley said. "And that's where he's at."

 
 

Man Who Killed Wife, Child and Granddaughter Executed in Texas

TheDeathHouse.com

July 9, 2003

Huntsville - A man who murdered his estranged wife, five-month-old daughter and his step-grandchild was executed by lethal injection at the state prison here Wednesday night. Before the murders, Christopher Black, 43, had mailed a cassette tape to family members explaining why he was going to kill his wife and others in the house. The murders occurred Feb. 7, 1998 in Killeen. Black's wife was going to divorce him, prosecutors said.

Black made no last statement before being put to death. The lethal injection began at 6:12 p.m. and Black was pronounced dead at 6:19 p.m. Black had requested a last meal which included steak, fried chicken with mushroom gravy and chocolate fudge cake. A family member and several of Black's friends, along with several member of the victims' family, were on hand to witness the execution.

When authorities arrived at the Bell County home, Black was holding his five-month-old daughter, Christiana, in his arms. He had just shot and killed the child, along with his wife, Gwendolyn and step-grandchild, Katrease Houston, 17-months.

Black had called police after the slayings to tell them what he had just done. Prosecutors said Black became angry at the end of his marriage. Court documents stated that Black recorded a cassette tape of why he wanted to kill his family and bought a gun a day before the shooting.

Black became the 18th condemned killer put to death in Texas in 2003 - the highest number in the nation. Black was a retired Army sergeant.

 
 

Deathrow.at

Execution date set for July 09, 2003

I am death row prisoner on Texas death row since 1998. My days are long and sad. The only thing that kept me living until yet was writing. I do not want romance or money, the only thing that I want is a friend. A friend to dream with, to talk to, to have fun with etc. I am interesseted in literature, sports, jazz music, family, animals (cats), day dreaming and a lot more. I would like everybody who writes to me and I am thankful if YOU write to me. I will answer all your letters. It does not matter if you are female or male. People with ideas and who are interesting are my friends. Do not think, that you might be not interesting. If you have sometimes strange ideas about future, religions, cooking and the world, please do not be shy and write to me. I hope to hear soon from you out there in the living world. Your new friend Christopher.

Christopher Black Senior # 999277
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351 USA

 
 

Killeen Man Executed for 1998 Triple Killings

By Brian Lacy - The Huntsville Item

July 9, 2003

Christopher Black was executed Wednesday night inside the Huntsville "Walls" Unit for the 1998 murder of his wife, 5-month-old daughter and 17-month-old granddaughter. Black did not have a final statement. After the lethal dose began he made a snoring sound before exhaling one last time. He was pronounced dead at 6:19 p.m.

Black was convicted of killing Katrease Houston, the 17-month-old, at the Killeen home of his estranged wife, Gwendolyn Black. Katrease was found slumped in a high chair. She had been shot five times in the chest. Gwendolyn Black was shot 10 times, and her daughter, Christina Marie, was shot once. ''I ran out of bullets,'' Black told a 911 operator he called after the Feb. 7, 1998, attack.

At a press conference after the execution, Gwendolyn's family was asked if they were disappointed Black did not acknowledge them or have anything to say. "I personally was not disappointed," said Mardelouis Hawthorne, Gwendolyn's sister. "Other family members have other feelings. I'm glad it went as well as it did. We were well-prepared for it and that helped minimize the emotion and anxiety we experienced. "I really didn't want to see him. We're all here to support our parents who wanted to be here." ''It's really not satisfaction, really a kind of feeling you can bring it to closure, but really won't be closure,'' added her brother, Alvin Prigett, who wore a T-shirt with Gwendolyn's picture on it. ''It'll always be on your mind and you think about it from time to time.''

Black bought a 9 mm semiautomatic pistol the day before the shooting. He mailed cassette tapes to relatives explaining plans to kill his 36-year-old wife and anyone else in the house. The tapes were timed to arrive after the shooting.

The couple had married just three years earlier, but relatives said Gwendolyn Black, who worked as an elementary school teacher in nearby Copperas Cove after leaving the Army, was seeking a divorce because she received little help from her husband with the children and he had moved out of town to take a security job.

Police who responded to 911 calls from Black and neighbors found him unarmed and holding his daughter to his chest. ''We approached him and he said he wasn't going to put the baby down on the cold ground,'' officer Eric Bradley said. ''As I reached up to grab the baby from him, he said: 'I want to kiss my baby.' I said 'go ahead.' ''As I pulled the baby toward me, the baby's head kind of just rolled to the left. The eyes were open, fixed, no pulse, no respiration, no nothing.''

It took a jury in Killeen 15 minutes to convict Black of capital murder of Katrease. In Texas, murder of a child under the age of 6 can be a death penalty case and the same jury deliberated about seven hours before deciding his punishment. "I don't recall a case that was any more aggravated or any more vicious in the way the crime was committed and the consequences,'' Lon Curtis, the former assistant district attorney in Bell County who prosecuted Black, said this week. ''The image of that baby, the little girl, slumped over in her high chair with five rounds in the chest ... I wish I hadn't been reminded of that.''

Black declined to speak from death row with reporters. ''My days are long and sad,'' he wrote on a Web site where inmates seek pen pals. ''I do not want romance or money, the only thing that I want is a friend.'' ''He made his choices,'' Bradley said. "And that's where he's at.'' (The Associated Press contributed to this story.)

 
 

Texas Man Who Killed Three Family Members Executed

CNN News

July 10, 2003

HUNTSVILLE, Texas (AP) -- A retired Army sergeant was executed Wednesday for shooting his 17-month-old step-granddaughter to death in her high chair during a rampage in which his wife and 5-month-old daughter also were killed. Christopher Black declined to make any statement before dying by injection. He groaned as the drugs began flowing and was pronounced dead seven minutes later.

Black was convicted of killing Katrease Houston at the Killeen home of his estranged wife Gwendolyn Black, the toddler's grandmother. Katrease was found slumped in a high chair, shot five times in the chest. Her grandmother was shot 10 times.

Black's daughter, Christina Marie, was shot once. "I ran out of bullets," Black told a 911 operator he called after the February 7, 1998, attack.

Black is the 18th Texas inmate to die by injection this year and the second in as many weeks. Two more are scheduled for execution later this month. The U.S. Supreme Court in April refused to consider Black's appeal and no additional appeals were made, according to his lawyer, Jack Hurley.

"We still miss our loved ones but we won't be thinking about him," Mardelouis Hawthorne, Gwendolyn Black's sister, said after watching Black die. Black bought a 9 mm semiautomatic pistol the day before the shooting. He mailed cassette tapes to relatives explaining plans to kill his 36-year-old wife and anyone else in the house. The tapes were timed to arrive after the shooting. Relatives said Gwendolyn Black, who worked as an elementary school teacher, was seeking a divorce.

It took a jury in Killeen 15 minutes to convict Black of the capital murder of Katrease. In Texas, murder of a child under the age of 6 can invoke the death penalty, and the jury deliberated about seven hours before choosing that punishment. Black was charged, but never tried, in the slayings of his wife and daughter.

 
 

National Coalition to Abolish the Death Penalty

Christopher Black (TX) - July 9, 2003

The state of Texas is scheduled to execute Christopher Black July 9 for fatally shooting his wife, daughter, and step granddaughter in 1997. Black, an African American man, apparently called 911 shortly after the murders and told a police dispatcher that he had just killed three of his family members.

Prior to the murders, Black had a distinguished military record and no prior history of criminal activity. A psychiatrist testified at trial that Black’s violent, destructive episode resulted from distress over his marital problems. Although Black claims he wanted to testify himself at the penalty phase, his attorneys chose not to put him on the stand; on appeal, he has argued that this constituted ineffective assistance of counsel.

Few questions linger concerning the events of Feb. 7, 1998, when Black’s shooting spree left a 36-year-old woman and two small children dead. However, his case displays the unnecessary nature of capital punishment in modern society.

Black, who did very well in the military, would likely have no problem adjusting to a prison environment, where he could begin a process of healing and reconciliation. Instead, he is enduring the psychological torture of awaiting execution.

The institution of the death penalty has long been hiding behind the false justifications of deterrence and protection. The reality is that it has little to do with these abstractions; capital punishment is about revenge.

This pending execution is a product of the state’s idea that violence is a suitable solution to the problem of crime. Texas has executed more than 300 people since the reinstatement of capital punishment in 1976, and its flawed system continues to reveal itself through the fact that the federal courts regularly intervene on eve-of-execution appeals due to oversights and mistakes in the process. Please contact Gov. Rick Perry to protest the scheduled execution of Christopher Black and request a re-evaluation of the Texas death penalty system.

 
 

Black v. State, 26 S.W.3d 895 (Tex.Crim.App.,2000) (Direct Appeal)

Defendant was convicted in the District Court, Bell County, Joe Carroll, J., of capital murder and was sentenced to death. On automatic appeal, the Court of Criminal Appeals held that: (1) child capital-murder provision did not violate equal protection on ground that it created a capital-murder offense which did not require proof of an aggravating element or defendant's knowledge of that element, and (2) trial court could sua sponte excuse a prospective juror with hearing impairment out of defendant's presence. appellant raises five points of error, but does not challenge the sufficiency of the evidence to support the verdict. We shall affirm. Meyers, J., filed a concurring opinion in which Price and Johnson, JJ., joined.

 
 

314 F.3d 752

Christopher Black, Sr., Petitioner-Appellant,
v.
Janie Cockrell, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 02-50455

Federal Circuits, 5th Cir.

January 15, 2003

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher Black was sentenced to death upon his conviction by a Texas jury of capital murder. In February 1998, angry at the end of his marriage, Black recorded on cassette tapes why he wanted to kill his family, applied for the purchase of a handgun, and some days later purchased a semi-automatic pistol.

The next day he went to the house where his wife was living. There in the presence of Deidre Blackburn, a friend of his wife,1 he shot his wife twelve times, his infant daughter as she sat in a high chair, and fired five rounds at point blank range into the chest of his step granddaughter, then seventeen months old. All died of the gunshot wounds.

He then immediately called 911 and told a police dispatcher that he had just killed his wife, daughter, and granddaughter. Arrested at the scene, he was indicted by a Bell County grand jury for the murder of a person under the age of six years, a capital crime in Texas.

The Texas courts rejected his direct appeal and habeas attack upon his conviction and sentence. The United States District Court for the Western District of Texas in turn rejected his federal petition filed under 28 U.S.C. 2254 on the merits and denied his request for a certificate of appealability. Today he requests from this court a certificate of appealability upon claims of ineffective assistance of counsel: that his counsel denied him the right to testify in the punishment phase or was ineffective in adopting a trial strategy with which he did not agree, and that the state trial judge denied him the right to counsel by excusing a member of the venire outside the presence of all counsel and Black. We pay the deference due the decisions of the state courts and conclude that Black has failed to make a substantial showing of denial of a constitutional right. We deny his request for a certificate of appealability.

* Our standard of review is settled. Black filed his federal habeas petition in 2001, and hence his claims are governed by the Antiterrorism and Effective Death Penalty Act of 1996. A certificate of appealability is a prerequisite to our jurisdiction, and can be granted only upon a substantial showing that Black was denied a constitutional right, and if we conclude that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."2

In affirming Black's conviction and sentence on direct appeal,3 the Texas Court of Criminal Appeals rejected the second claim he presents here, the excusing of the venire member by the presiding trial judge. Then, in a March 7, 2001 unpublished order, the Texas Court of Criminal Appeals rejected Black's collateral attack. This order denied any relief to Black upon his first claim of ineffective assistance of counsel. As we will explain, the state trial judge conducted an evidentiary hearing on Black's habeas petition and filed detailed findings of fact and conclusions of law, the basis for the denial of habeas relief by the Court of Criminal Appeals and its rejection of Black's claim of ineffective assistance of counsel.

II

A claim of ineffective assistance of counsel must be judged with eyes directly upon the reality of the situation facing defense counsel at the time of the acts and not years later. This discipline best assures faithful application of the objective measure of whether the decisions of defense counsel are within the range of those a reasonably competent lawyer might have made under those same facts and circumstances. It also takes us far along in judging its prejudice, if that inquiry is required. We begin with that important setting.

Judge Joe Carroll of the 27th Judicial District Court of Bell County presided at trial and at the later evidentiary hearing on Black's state habeas petition. At the outset of the case Judge Carroll appointed Frank Holbrook and Bob Odom, criminal defense lawyers with combined experience of more than sixty years, as counsel to Black. Faced with little or nothing with which to challenge the state's case at the guilt stage, their efforts at trial were directed toward avoiding the death penalty.

At the guilt phase, defense counsel worked with their eyes on the punishment phase, attempting to elicit testimony on cross that might suggest or support the picture they hoped they would later be able to paint, a picture of a man with a distinguished military record distraught over his marital problems who erupted in an episode so horrendous and self-destructive as to itself suggest that it was not the act of a man likely to be dangerous in a prison environment.

Their judgment was that an effort to resist a verdict of guilt would risk loss of their credibility with the jury and make more difficult the task facing them at the inevitable punishment phase. This they did, even waiving argument. The jury found Black guilty of capital murder in a matter of minutes, circled the table in the vernacular, but deliberated over seven hours before returning its answer to the three questions required to be asked at the punishment phase by Article 37.071, Texas Code of Criminal Procedure.

After the trial, Judge Carroll appointed John R. Duer as appellate counsel. Following his direct appeal, Black filed his application for a writ of habeas corpus, and on October 17, 2000, Judge Carroll conducted an evidentiary hearing. At its outset the trial judge observed: "The issues designated for hearing this morning are, one, did the applicant's attorneys refuse to allow him to testify at his trial; number two, did the applicant's attorneys follow a trial strategy that he did not consent to or agree with; and number three, did the applicant's attorneys follow a trial strategy that was forced upon him."

There were three witnesses: Black, Holbrook, and Odom. Black was asked directly why he did not testify. He responded, "For several reasons. One, the attorneys were relying heavily on the testimony of Dr. Reid." Dr. Reid, a psychiatrist, testified at the punishment phase as a defense witness. Black testified that he told Holbrook and Odom that he could "rebut" the testimony of his ex-wife by denying that he ever hit her, or that he used her alien status by threatening to report her to the INS; he could have denied that he pointed his gun at Deidre Blackburn, who was in the house when he shot his wife and who testified against him in the guilt stage. He also testified that he wanted to explain the tapes that had been introduced at the guilt stage, although he was unclear what his explanation would have been. Black denied that his counsel told him he had a right to testify, or that he was otherwise aware of his right to do so.

Holbrook and Odom had a very different recall of these events. Both testified that they had explained Black's rights to him at length and that he understood them; that the decision to not testify was made by Black. On November 28th, Judge Carroll filed detailed findings of fact and conclusions of law rejecting Black's version of events and finding "that the Applicant's attorneys did not refuse to allow him to testify at the guilt/innocence or punishment stage of his trial, but advised him that testifying would not be in his best interest." He also found "that the ... attorneys discussed with [Black] on more than one occasion the law of the case, the State's burden in the case, and their trial strategy; and that he understood this strategy and it was not forced upon him in any way."

These findings were adopted by the Texas Court of Criminal Appeals. In turn, the reviewing federal court was required to presume that they are correct absent any "clear and convincing" evidence that would show otherwise.4 Black's first claim is without merit and reasonable jurists would not disagree with its rejection by the state court and the court below.

III

Black claims constitutional error in Judge Carroll's decision to excuse out of his and all counsel's presence a late arriving member of the venire who asked not to serve because she was hard of hearing. The argument is that he was thus deprived of counsel in violation of the teachings of United States v. Cronic.5 Black's counsel objected to the release of the member of the venire in their absence.

Judge Carroll immediately explained, "There was a lady that came up and couldn't hear. And she said she had a doctor's excuse with her. I interviewed her and determined she couldn't hear and so I let her go. And she promised me that she would bring her excuse back. And I am sorry that I didn't do that in the presence in here awhile ago. It just caught me off-guard." He later found in his habeas findings of fact and conclusions of law that "[s]ince a Trial Court has broad discretion to excuse jurors for other than economic reasons without the parties being present, the trial court did not abuse its discretion in granting a juror's request that she be excused because she could not hear out of the presence of counsel for either side or the applicant."6 The judge also pointed out that she was accompanied by a caretaker companion. Since Black cannot show prejudice, his contention must persuade that this is a Cronic case and not a Strickland case.7

Black's contention relies upon a dubious principle of law. At the least, it is by no means clearly established. Cronic speaks to the absence of counsel at a critical stage of a trial. It is not clear that here recognizing an inability of the prospective member of the venire to sit on any jury because of a physical disability was such a critical stage. Judges by practical necessity summon large numbers of persons as members of a venire where they hear such petitions of delay and relief from service entirely out the presence of any lawyers. This because a panel from which a petit jury will be selected is often cut from a large pool periodically summoned. That pool may be summoned and qualified for jury service by a presiding judge before an indictment is even drawn for cases to come. Where the critical stage in a trial is reached in this progression from the first pool to the panel for a particular case is uncertain. At the least, extending Cronic to this circumstance would call forth a new and Teague-barred rule.8

Requests for COA are rejected, and the judgment of the district court dismissing the petition for federal habeas is AFFIRMED.

To sustain a claim of inadequate assistance of counsel, a defendant usually must meet the standards of Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052 (1984)], which requires proof that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense" so gravely as to "deprive the defendant of a fair trial, a trial whose result is reliable." "There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." United States v. Cronic, [466 U.S. 648, 658 (1984).] In such cases, where the defendant is constructively denied assistance of counsel, prejudice is automatically assumed and need not be proven.

Johnson v. Cockrell, 301 F.3d 234, 237-38 (5th Cir.2002) (some citations omitted); cf. Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (en banc) (upholding a Cronic claim in a case where the defendant's lawyer was asleep during parts of the trial because "[u]nconscious counsel equates to no counsel at all. Unconscious counsel does not analyze, object, listen or in any way exercise judgment on behalf of the client"), cert. denied, ___ U.S. ___, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002).

8 Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

*****

ON PETITION FOR REHEARING

Jan. 15, 2003.

PER CURIAM:

The petition for rehearing for Christopher Black is GRANTED in part and DISMISSED in part.

* The opinion will be modified to reflect that John R. Duer was counsel of record in the direct appeal in state court.

II

Petitioner reurges his claim of error in disqualifying Wilma McKenney Bonds, a prospective member of the venire, outside the presence of all counsel. Specifically, he argues that the disqualification came at trial and not at a stage preliminary to voir dire in the case at which the general qualifications of persons to serve as a juror was decided. We again reject his contention.

The record reflects that Bonds was summoned to appear at 9:00 a.m., for Bell County jury service. As we have explained, she did not appear until the noon recess when the trial judge excused her outside the presence of counsel. Before Bonds arrived, the trial judge spent the morning deciding "exemptions or disqualifications," a culling process of those who did report timely, leading to a list of venire persons he certified as meeting the legal requirements for jury service.

Judge Carroll then gave the members of the certified venire general instructions about jury service and ordered them to again report to the courthouse four days later. Only on the return of the venire did the focus turn to qualification to serve in this case and only then was the venire introduced to the case. That is, this is when voir dire began, a phase transcribed as "individual voir dire proceedings," four days after the exemptions and qualification stage at which Judge Carroll had excused Bonds.

In sum, the jury in this case was the product of two distinct phases. At the exemption and disqualification stage Judge Carroll explained the general qualifications for jury service, including inquiry into whether any person had committed a felony, was over the age of 70, or had other hardships. Ms. Bonds arrived at the courthouse at noon at the end of this phase. She was never certified as part of the venire from which the petit jury would be selected.

We do not gainsay the centrality of voir dire in the trial of a criminal case nor a defendant's right to counsel at that juncture. Whether a preliminary inquiry into general qualifications for jury service leading to a venire certified to meet statutory qualifications to serve on any jury is such a component of trial such as to trigger the right to be present with counsel is uncertain. It has not been established by decisions of this court or the United States Supreme Court. Its procrustean fit across the myriad means throughout the country of gathering citizens to form a venire aside, we are not persuaded that such a rule of Constitution law is dictated by precedent. We cannot then announce such a rule in a habeas case.

 
 


Christopher Black Sr. at Death Row

 

 

 
 
 
 
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