Cantu (December 5,
1966 – August 24, 1993) was a Texan who was executed for a murder
which occurred when he was seventeen years old.
Ruben Cantu grew
up with his mother and father, until the age of 14, when the couple
split up, with Ruben's mother moving 20 miles away, and Ruben and
his father continuing to live in a trailer in the crime-ridden south
San Antonio barrio. The neighborhood was home to a loose band of
tough kids called the Grey Eagles, in which Cantu became a leader,
despite being rather small and in special-ed classes at school.
By age 15, he was
stealing cars for an organized auto theft ring, often spending days
at a time driving stolen cars to Mexico for cash. At a time when the
San Antonio Police Department was embroiled in scandal, with
vigilantes and drug-dealing officers well known to the community,
Cantu was stealing cars and dodging the police. His older brother
had been arrested on drug and theft charges, but Ruben was not
convicted of the crime.
armed robbery and murder
The account of the
prosecution at the trial that convicted Ruben Cantu, is summarized
as follows: On the night of November 8, 1984, at approximately 11:30
p.m., Ruben Cantu (age 17 at the time) and his friend David Garza
(15), broke into a vacant San Antonio house under construction, and
robbed two Hispanic males at gunpoint.
The two victims,
Pedro Gomez (25) and Juan Moreno (19), had been workmen sleeping on
floor mattresses at the construction site, guarding against
burglary, as a water heater had been recently stolen from the work
site. The two victims were sleeping in their work clothes, with
their pockets full of their cash earnings at the time of the
Cantu and Garza
were carrying a rifle, which they used to rob the two men of their
wristwatches. As they tried to take their cash, they were
interrupted by Gomez's attempt to retrieve a pistol hidden under his
mattress. Gomez was shot at least nine times by the boys' rifle,
dying instantly, and Moreno was also shot as many as nine times by
the same rifle.
Thinking they had killed both men, the two teens
then fled the scene. Juan Moreno survived the attack, and was able
to leave the house and call for help shortly after the event, though
he has lost one lung, one kidney, and part of his stomach.
Juan Moreno, the
surviving victim, was the key eyewitness in the trial, eventually
identifying Ruben Cantu as the killer in court, only to recant his
story a decade after Cantu was executed.
In spite of a lack
of physical evidence, no confession and only Moreno's subsequently
recanted testimony, Ruben Cantu was convicted by a jury of first
degree murder. Shortly after his conviction and sentencing, Cantu
wrote the following note to the people of San Antonio: "My name is
Ruben M. Cantu and I am only 18 years old. I got to the 9th grade
and I have been framed in a capital murder case."
Executed by the
state of Texas
On August 24,
1993, at 22 minutes after midnight, Ruben Cantu at the age of 26,
died by lethal injection, becoming the fifth teenage offender to be
executed by Texas. His final request was for a piece of bubble gum,
which was denied.
pressure a witness after a bar fight
According to Juan
Moreno, and consistent with police records, he was visited by police
in the hospital the day after the shooting. But, due to the severity
his wounds, he was unable to speak and could barely move.
Five days later,
in a second interview, Moreno gave the police a little bit more
information about the killers and was shown a number of photos.
Cantu's photo was not included and Moreno did not identify any of
the people shown in the photos.
On December 16,
detectives visited him again and showed him another array of five
photos, including one of Ruben Cantu, who lived across the street
from Moreno's job site where the crime occurred. He did not identify
Ruben or anyone else from the photos shown to him during that police
The case went
cold, and no suspect was arrested. About four months after the
robbery-murder, there was an unrelated evening incident at the
Scabaroo Lounge, a bar near Cantu's home. Officer Joe De La Luz, an
off-duty, plainclothes police officer carrying two concealed
weapons, claimed to have been shot by Cantu in an unprovoked
incident at that bar.
According to the
version given by Cantu and corroborated by others at the scene, a
dispute arose over a game of pool, De La Luz threatened him, flashed
a pistol, and did not identify himself as a police officer, and
Ruben, who was also armed, shot the man. De La Luz survived the
shooting, but his friend, Sgt. Bill Ewell, re-opened the Gomez
homicide case on the day of that bar shooting.
On the following
day, Sgt. Ewell sent an investigator to Juan Moreno a second time,
this time showing Cantu's photo along with four others. Again, Juan
Moreno did not identify Cantu as one of his attackers. But he did
provide Cantu's name.
One day later, a
third homicide detective picked up Moreno (an undocumented immigrant
from Mexico at the time), drove him to the police station, sat him
down and showed him the same group of photos that included Cantu. On
that third attempt, Moreno positively identified the photo of Cantu
as being one of his attackers.
Juan Moreno says
now that he had felt subtle pressure from the police to finger
Cantu. He says he knew at the time that the police were determined
to charge Cantu with the robbery-homicide, and that Cantu had been
involved in shooting a police officer. But Moreno says now that he
did the wrong thing in falsely identifying Ruben Cantu as the
shooter in his case, and that the person who shot him looked nothing
like Ruben Cantu.
Cantu's codefendant, has since admitted involvement in the burglary,
assault and murder. He says he did go inside the house with another
boy, did participate in the robbery, and saw the murder take place,
but that his accomplice was not Ruben Cantu. He has given the name
of his accomplice to Lise Olsen, reporter for the Houston Chronicle,
who has spoken with the named person and believes he has intimate
knowledge of the crime.
The Houston Chronicle has made an editorial
decision not to publish the name of that person because he has not
admitted involvement, and has not yet been charged with the crime.
It is unclear whether or not the Houston Chronicle has provided the
name of the alleged murderer to the police.
Cantu "shot an
officer who worked with me. It was difficult to get (the witness) to
make the identification. We weren't able to get him for the police
shooting, but we were able to get him for the murder." — Sgt. Bill
Ewell (now retired), who headed the investigation against Cantu. The
case against Cantu for the barroom shooting had to be dropped,
because police had tainted evidence and illegally searched Cantu's
home, rendering the case unprosecutable.
"We did the best
we could with the information we had, but with a little extra work,
a little extra effort, maybe we'd have gotten the right information.
The bottom line is, an innocent person was put to death for it. We
all have our finger in that." — Miriam Ward, forewoman of the jury
that convicted Cantu.
questionable. There are so many places where it could break down. We
have a system that permits people to be convicted based on evidence
that could be wrong because it's mistaken or because it's corrupt."
— Sam Millsap Jr., the former district attorney who made the
decision to charge Cantu with capital murder. He also indicated he
never should have sought the death penalty in a case based on the
testimony of an eyewitness who identified Cantu only after police
officers showed him Cantu's photo three separate times.
Ruben Cantu was convicted of capital murder and
sentenced to death for the Nov.8, 1984 robbery and shooting
that killed Pedro Gomez and wounded Juan Moreno. Cantu and
another teenager, David Garza, 15, robbed Gomez, 35, and
Moreno, 18, while they were guarding a house on 605 Briggs
Street in San Antonio, Texas.
two men were guarding the house on Briggs Street that
belonged to Eusebio Moreno, Juan’s brother, because burglars
had stolen some things while the house was under
construction. Juan Moreno testified that on Nov.8, he was
awakened after 10:30 p.m. by Cantu poking him with a rifle.
Moreno said that he recognized both men from seeing them
twice before around the neighborhood.
said that they were instructed to sit down on the bed and
give them their watches and wallets. They were then
instructed to pull back the mattress, which revealed a
pistol wrapped in rags. Before Gomez could grab the pistol,
he was shot in the head once and then shot eight more times
after he fell, killing him. Then Moreno was shot several
times in the head, neck and chest, somehow surviving the
a former laborer and ninth grade dropout with a reported IQ
of 78, claimed he was innocent of the robbery and killing.
He claimed to be in Waco, Texas at the time of the
Aurelia Cantu, Ruben’s mother, continued to proclaim her
son’s innocence even after his execution, almost six years
told me he was innocent,” Cantu said, “I truly believed him.”
Aurelia Cantu described her son Ruben as very quiet and
somewhat of a loner. She said that he used to spend nights
at the movies by himself and after it was over she would
pick him up. Aurelia said that Ruben would go to school,
come home and go to work at a little store near their home.
Juliana Gonzales, Ruben’s aunt, also characterized her
nephew as a quiet and respectful young man. Gonzales said
that he always looked out for others and never wanted to
hurt anyone. Along with Aurelia, Juliana truly believes
that Ruben was innocent and died for a crime he didn’t
wasn’t arrested until four months after the shootings during
a gunfight at a crowded bar with an off-duty veteran police
detective. The officer, Joe De La Luz, then 43, recovered
from the three gunshot wounds.
Texas Court of Criminal Appeals upheld Cantu’s conviction of
capital murder and the U.S. Supreme Court rejected his
appeal in 1987.
26, was asked if he had any last words on the morning of Aug.24,
1993. “No sir,” he replied. At 12:15 a.m. the sodium
thiopental entered his body and he took a deep breath
followed by two shallow gasps, then ceased breathing. Dr.
Charles Rains pronounced him dead at 12:22 a.m.
was the 66th person executed in Texas since the
state resumed capital punishment in 1982. Cantu was also
the youngest prisoner on Texas death row when he was
convicted at the age of 18.
her son’s death, Aurelia has made two trips back to the
prison where her son was executed to visit other inmates.
She said that she still keeps in touch with two inmates and
feels that it helps her deal with Ruben’s death somehow.
miss him so much,” Aurelia said. “It’s not right that
innocent people are killed that didn’t even do anything.”
The Cantu Case: Death and Doubt
Did Texas execute an innocent man?
Eyewitness says he felt influenced by
police to ID the teen as the killer
By lise Olsen - The
July 24, 2006
Texas executed its fifth teenage offender at 22 minutes after
midnight on Aug. 24, 1993, after his last request for bubble gum
had been refused and his final claim of innocence had been
Ruben Cantu, 17 at the time of his crime, had no previous
convictions, but a San Antonio prosecutor had branded him a
violent thief, gang member and murderer who ruthlessly shot one
victim nine times with a rifle before emptying at least nine
more rounds into the only eyewitness — a man who barely survived
Four days after a Bexar County jury delivered
its verdict, Cantu wrote this letter to the residents of San
Antonio: "My name is Ruben M. Cantu and I am only 18 years old.
I got to the 9th grade and I have been framed in a capital
A dozen years after his execution, a Houston
Chronicle investigation suggests that Cantu, a former special-ed
student who grew up in a tough neighborhood on the south side of
San Antonio, was likely telling the truth.
Cantu's long-silent co-defendant, David
Garza, just 15 when the two boys allegedly committed a murder-robbery
together, has signed a sworn affidavit saying he allowed his
friend to be falsely accused, though Cantu wasn't with him the
night of the killing.
And the lone eyewitness, the man who survived
the shooting, has recanted. He told the Chronicle he's sure that
the person who shot him was not Cantu, but he felt pressured by
police to identify the boy as the killer. Juan Moreno, an
illegal immigrant at the time of the shooting, said his damning
in-court identification was based on his fear of authorities and
police interest in Cantu.
Cantu "was innocent. It was a case of an
innocent person being killed," Moreno said.
These men, whose lives are united by nothing
more than a single act of violence on Nov. 8, 1984, both claim
that Texas executed the wrong man. Both believe they could have
saved Cantu if they had had the courage to tell the truth before
he died at 26.
Presented with these statements, as well as
information from hundreds of pages of court and police documents
gathered by the Chronicle that cast doubt on the case, key
players in Cantu's death — including the judge, prosecutor, head
juror and defense attorney — now acknowledge that his conviction
seems to have been built on omissions and lies.
"We did the best we could with the
information we had, but with a little extra work, a little extra
effort, maybe we'd have gotten the right information," said
Miriam Ward, forewoman of the jury that convicted Cantu. "The
bottom line is, an innocent person was put to death for it. We
all have our finger in that."
Sam Millsap Jr., the former Bexar County
district attorney who made the decision to charge Cantu with
capital murder, says he never should have sought the death
penalty in a case based on the testimony of an eyewitness who
identified Cantu only after police officers showed him Cantu's
photo three separate times.
"It's so questionable. There are so many places where it could
break down," said Millsap, now in private practice. "We have a
system that permits people to be convicted based on evidence
that could be wrong because it's mistaken or because it's
No physical evidence
The Chronicle found other problems with
Cantu's case as well. Police reports have unexplained omissions
and irregularities. Witnesses who could have provided an alibi
for Cantu that night were never interviewed. And no physical
evidence — not even a fingerprint or a bullet — tied Cantu to
Worse, some think Cantu's arrest was
instigated by police officers because Cantu shot and wounded an
off-duty officer during an unrelated bar fight. That case
against Cantu was dropped in part because officers overreacted
and apparently tainted the evidence, according to records and
During eight years on death row, Cantu
repeatedly insisted he was innocent of murder. In 1987, he wrote
to the Board of Pardons and Paroles, saying: "I was tried and
convicted on bogus evidence."
But on the day he finally was strapped to a
gurney and readied for a lethal injection, Cantu said nothing as
his attorney watched him die through a special one-way viewing
Outside the prison gates, his mother, Aurelia
Cantu, held a candle in a small crowd of protesters: "He's
resting now, he's free. But he should not have been here in the
That night, in another Texas prison, his old
friend and convicted accomplice, Garza, listened to news reports
of the execution on a radio in his cell and wept for things left
"Part of me died when he died," Garza said in
an interview with the Chronicle. "You've got a 17-year-old who
went to his grave for something he did not do. Texas murdered an
That same day, at his small home on a street
near the railroad tracks in east San Antonio, the surviving
eyewitness got a phone call telling him that the man he had
accused would soon die. But Moreno, a still-scarred robbery
victim who barely survived the 1984 attack, felt no relief. Just
After the Chronicle showed her new statements about the Cantu
case, jury forewoman Ward, who still lives in the suburbs of San
Antonio, said she also is disturbed by her part in his fate: "When
the pieces come together in the wrong way, disaster happens.
That's not the way our legal system is supposed to work. Ruben
Cantu deserved better."
Tough part of town
Almost painfully quiet, Cantu grew up as an
eager-to-please kid who often watched TV until well after
midnight and sucked his thumb far longer than other children.
His mother had married a man 24 years her
senior when she was only 13. Ruben was the fourth of five
children born to Aurelia and Fidencio "Fred" Cantu.
Aurelia raised her boys and a daughter mostly
alone while her husband worked long hours as a maintenance man
at Market Square, a popular tourist attraction. By the time
Ruben turned 14, his mother left her husband and moved 30 miles
away to Floresville, a sleepy, mostly Mexican-American town of
5,000 near her parents' rancho.
His mother asked Ruben to come along, but he
chose to stay with his father in his tiny trailer park on Briggs
Street in the ragged southern fringe of the city, a place where
drug dealers, smugglers, fences and thieves lived and worked in
houses pockmarked with bullet holes.
But while his father worked, often long hours
into the night, Cantu was skipping school and learning different
lessons on the street.
Cantu's south San Antonio neighborhood was
controlled by the so-called Grey Eagles, the tough kids who
roamed it and relentlessly guarded its boundaries. Though small
for his age and slow in school, Cantu became one of the leaders.
He began sampling the drugs readily available through
neighborhood dealers and stole cars for joy rides.
By the time he turned 15, he was recruited
into an auto-theft ring. Sometimes he disappeared for days,
driving hot cars and pickups to the border and coming back with
$2,000 or $3,000 in cash. Surrounded by grinding poverty, Cantu
could spend all he wanted on video games, movies and drugs.
He learned quickly to avoid the San Antonio
police, a force that in some of its darkest days in the 1980s
was plagued by scandals related to drug-dealing officers and
vigilantes who took justice into their own hands.
Cantu grew up believing that no police
officer could be trusted. Already a quiet child, he quickly
mastered the neighborhood code of silence: You never ratted on
anyone — no matter the cost to yourself. Cantu practiced this
art to an extreme. His silence, even in a neighborhood known for
its secrets, remains a local legend.
Neighborhood officers knew and disliked Cantu,
and they had arrested his older brothers on drug and theft
charges. But they had never successfully pinned a crime on Cantu.
It was against this backdrop of mutual
suspicion that Cantu soon emerged as a leading suspect after a
violent murder and robbery occurred on Briggs Street on Nov. 8,
That night, Juan Moreno, a skinny, hard-working
teenager fresh from a Mexican rancho in Zacatecas, was camping
out in a house almost directly across the street from Cantu's
Moreno and his friend, Pedro Gomez, had eaten
dinner and gone to sleep inside the virtually empty brick house
they were helping to build for Moreno's brother and his wife.
They were guarding it because burglars recently had stolen a
Inside the shell of a house, there was a pair
of mattresses on the floor in the front room. The only water was
stored in empty beer cans. The only light came from the bare 75-watt
bulb of a single lamp powered by an extension cord connected to
a neighbor's outlet. Both men, Moreno, 19, and Gomez, 25, worked
construction and were paid in cash. That night, they slept in
their clothes with wallets containing a total of about $1,000.
Suddenly, both awoke to the lone light being
switched on by a pair of Latino teenagers; the older of the two
carried a .22-caliber rifle. They demanded money, and Gomez, the
father of three little girls back in Mexico, handed over his
wallet with $600 inside. Then he turned over the mattress, and
reached toward a .38-caliber revolver hidden in rags.
The older teen opened fire, shooting nine
times at Gomez, who fell facedown on the floor. Then the teen
turned his weapon on Moreno and fired again and again. When
Moreno blacked out, the pair fled. Near death, Moreno managed to
stumble outside for help.
At 11:58 p.m., a police officer found Moreno
bleeding on the seat of a pickup in front of the house. His
wallet and his money were untouched. But Moreno could barely
speak. The description he gave of his attackers fit almost all
of the male teens in the neighborhood: two Mexican-Americans who
he thought lived nearby.
Meeting with Moreno
Homicide Detective James Herring, an officer
with 15 years on the force, had only that vague description to
work with when he was assigned the case. And Herring, who knew
no Spanish, needed others to help him speak with Moreno, a
Mexican national who had been in the U.S. less than a year.
Herring first attempted to speak to Moreno at
Wilford Hall Hospital on Lackland Air Force Base the day after
But Moreno remained in critical condition on
a breathing machine — unable to talk and unable to write because
of massive internal injuries. Eventually, he lost a lung, a
kidney and part of his stomach.
In another visit six days after the murder,
Moreno "could barely talk," Herring wrote in his report. But
Moreno gave Herring a few more details on his attackers: two
Latin-American males, one 13 or 14 and the other 19. He said he
had seen the younger teen around the neighborhood. It wasn't
Then a neighborhood beat officer passed along
a rumor from the halls of South San Antonio High School, where
Cantu was in ninth grade. A shop teacher reported that three
kids had been involved in the robbery and murder of Gomez and
that students were saying Cantu had done the killing.
Based on that information, Herring and a
Spanish-speaking detective returned to Moreno on Dec. 16, 1984.
This time, Herring showed Moreno photographs of five Hispanic
men, including Cantu.
Moreno, who still trembled from his injuries
and showed emotion that the officers interpreted as fear, did
not identify Cantu as his attacker.
Police records show that Herring made no more
reports on the case. Near the end of the year, he received a
promotion and transferred out of homicide.
The Gomez murder case appeared closed.
That all changed on March 1, 1985.
After midnight, Cantu was shooting 35-cent
pool games at the Scabaroo Lounge, a fluorescent-lit local
hangout about a mile from his father's home.
An off-duty police officer who was a stranger
to Cantu was playing at another table with a cousin. Officer Joe
De La Luz wore two guns under his civilian clothes, according to
Cantu also was armed. Both had been drinking,
based on court testimony and interviews.
De La Luz later claimed under oath that Cantu
shot him four times in a completely unprovoked attack. "I
remember a person standing in front of me firing an unknown
caliber weapon at me," De La Luz said.
Cantu claimed they argued over the pool game
and he fired only after De La Luz showed him a gun in his
waistband and threatened him. Cantu never denied to his friends
and his family that he shot De La Luz, though he told them he
learned only afterward that De La Luz was a policeman.
Yet Cantu never was convicted of shooting the
officer, despite a bar full of witnesses and his own admissions.
"There was an overreaction, and some of the evidence may have
been tainted. It could not be prosecuted," said former homicide
Sgt. Bill Ewell, who oversaw the investigation. Defense
attorneys claimed that police illegally searched Cantu's home
the night of the shooting.
But Ewell was a friend of De La Luz, the
injured officer, and said the attack prompted him to reopen the
unsolved Briggs Street murder case in which the only surviving
eyewitness had previously failed to identify Cantu.
Cantu "shot an officer who worked with me,"
Ewell told the Chronicle. "It was difficult to get (the witness)
to make the identification. We weren't able to get him for the
police shooting, but we were able to get him for the murder."
For two months, Moreno, recovering at his
brother's home, had received no visits or calls from San Antonio
But on March 2, 1985, Ewell sent a seasoned
bilingual homicide detective to show Cantu's photo to Moreno for
the second time. In the kitchen of his brother's house, Moreno
still did not identify Cantu, though at some point he learned
that Cantu had shot a police officer.
Santos "Sam" Balleza, the now-retired
detective who interviewed Moreno that day, told the Chronicle he
doubted that Moreno could have made a reliable identification:
It had been dark, he had been afraid for his life, and he had
previously declined to identify the same suspect. "It was real
tricky to show the same person a photo array more than once," he
said. "It would look like you were pressuring them."
But the next day, Ewell consulted with De La
Luz and then sent out a different bilingual detective to show
Cantu's photo to Moreno for the third time. This time, the
detective, Edward Quintanilla, brought Moreno, an illegal
immigrant, back to the police station and again showed him
Cantu's photo along with four other mug shots. The officer's
report indicates that this time Moreno picked out Cantu, then
signed and dated the back of the photo.
But the photo submitted into evidence at
trial was not dated on the back, according to a trial transcript.
Nor does Moreno recall that anyone translated for him a
statement in English that identifies Cantu as his attacker and
bears his signature.
Was he pressured?
Quintanilla, the detective who questioned
Moreno on March 3 and obtained the identification, could not be
reached for comment. A San Antonio police spokesman said
department policy does not allow officers to discuss old closed
cases. Balleza, who worked with Quintanilla in homicide, called
the longtime officer a straight shooter. Both he and Quintanilla
later testified that they thought Moreno had been afraid to
At the time, Ewell was a seasoned senior
officer who had recently been promoted to lead the homicide
division. Ewell, who is now retired from the department, told
the Chronicle, "I'm confident the right people were prosecuted."
Moreno said he felt compelled to do what the
officers wanted, even though he knew it was wrong.
"The police were sure it was (Cantu) because
he had hurt a police officer," Moreno said in a recent interview.
"They told me they were certain it was him, and that's why I
testified. ... That was bad to blame someone that was not there."
Bruce Baxter, the prosecutor who handled
Gomez's murder case, said he could believe that Moreno lied
under the circumstances.
However, Baxter, now an attorney in
Washington state, said he privately interviewed Moreno before
the trial in 1985 to try to determine whether he had made the ID
just to please police. At the time, Baxter said he believed
Moreno was sincere.
Baxter's entire case depended on it because
there were no confessions, no murder weapon and no fingerprints
for him to use against Cantu. Garza, the 15-year-old arrested as
Cantu's accomplice, had refused to implicate Cantu even to help
himself. What Baxter had was a one-witness case against a
But Baxter also knew, just as the defense
attorneys feared, that the word of Moreno, then a 19-year-old
who had been badly injured, could sway a jury.
In both a pretrial hearing and during the
trial, Moreno testified over and over that Cantu had shot him
and killed his friend.
"Do you see in the courtroom the man who
poked you with the rifle and woke you up?"
"And where is that person?"
"That is Ruben Cantu."
"Who shot you?"
His emotional testimony in Spanish about how
he watched his friend get killed and nearly died himself was the
key evidence presented against Cantu during the guilt phase of
the July 1985 trial.
'I have been framed'
Defense attorney Andrew Carruthers, an
experienced lawyer though he had never before handled a death
case, tried to discredit the identification without attacking
Moreno, who was a sympathetic witness.
"I'm not saying Juan Moreno is lying; I'm
saying that he did not get a good look at who shot him. He
didn't get a good look at them, and the police tried to
substitute their opinion for his," argued Carruthers, now a
Bexar County magistrate.
But it was Moreno's damning words that
resonated with jurors. They found Cantu guilty.
Then in the punishment phase of the trial,
prosecutors presented another star witness — De La Luz, the
officer shot by Cantu three months after the Gomez murder.
Without that bar shooting, prosecutors would have been left to
try to argue for death based on street rumors about Cantu's gang
activities and a pending marijuana-possession charge.
But De La Luz testified that Cantu had shot
him without provocation. It was all that the jurors really
needed to convince them that Cantu, though still a teenager, was
so dangerous that he should be put to death.
Cantu's attorneys did not want him to testify,
and so Cantu, as had been his custom nearly all of his life, sat
silently before his accusers. He wept only after prosecutors
asked the jury to sentence him to die.
Days later, he wrote the letter that he
addressed to the "Citizens of San Antonio."
"I have been framed in a capital murder case.
I was framed because I shot an off-duty police officer named Joe
De La Luz."
For years, defense attorneys who handled
Cantu's appeals attacked the reliability of Moreno's
identification, insisting that police inappropriately influenced
On the first round of appeals, even the Texas
Court of Criminal Appeals ruled that the identification process
was improperly suggestive, though the court upheld the in-trial
identification and did not overturn Cantu's conviction. "In the
abstract the process of showing Juan several arrays on different
occasions, all containing the appellant's photograph is a
suggestive procedure. Such procedure tends to highlight a
particular defendant since the witness sees the same face
repeatedly. Such reoccurrence of one particular face might
suggest to the witness that the police think the defendant is
the culprit," a February 1987 opinion read.
But none of the defense attorneys who
represented Cantu during his appeals ever attempted to find
Moreno, who they assumed had returned to Mexico.
Still feeling pain
Moreno had moved on — but only to another
neighborhood in San Antonio.
In two decades, his life has morphed from
that of a traumatized newly arrived Mexican teenager into that
of an independent Texas contractor, husband and father of a
teenager of his own. Moreno now insists a Hispanic teen with
very curly hair shot him. Police never showed him a photo of
that man, he said. Moreno said police never threatened him but
influenced him in subtle ways.
In his heart, though, he always knew what he
was doing was "bad," he said. His wife, Anabel, who met and
married him years after the attack, said that when she asked
about his scars, he always told her that the wrong man had been
sent to death row.
Moreno did not know Cantu or his family
before the time of the murder trial in 1985. In the years after
the attack, Moreno said, he has had no contact with them or
anyone connected with the case. He said he thinks that someone
from Cantu's family tried to telephone him around the time of
the 1993 execution, but he was not at home.
Moreno says he has nothing to gain by talking
about the attack. The horror of the night that he watched his
friend Gomez die facedown in a pool of blood has not left him.
He still feels pain from his own injuries. Despite that, he said,
he is no longer afraid to speak because he wants people to know
the truth about Cantu.
"I'm sure it wasn't him," Moreno said. "It
was a case where the wrong person was executed."
Date of Birth
Cantu, Ruben Montoya
Date of Offense
(at the Offense)
Prior Prison Record
Summary of incident
On 11/8/1984 at approximately 11:30 p.m., Cantu and one co-defendant
broke into a home in San Antonio. They awakened two
hispanic males who were in the home and robbed them.
Each victim sustained nine gunshot wounds. One victim
died at the scene, and the other victim survived to testify
against Cantu and his co-defendant.
Race and Gender of Victim
Photograph of Offender
967 F.2d 1006
James A. COLLINS, Director, Texas
Department of Corrections,
United States Court of Appeals,
July 22, 1992
Appeal from the United States
District Court for the Western District of
Before GARWOOD, JONES, and DUHE, Circuit
EDITH H. JONES, Circuit Judge:
his murder conviction and death sentence.
His application for a writ of habeas corpus
was denied by the district court, but the
court granted a certificate of probable
FACTS AND PROCEDURAL HISTORY
County, Texas grand jury convicted
petitioner for the November 8, 1984 murder
of Pedro Gomez during the commission of a
robbery, in violation of § 19.03(a)(2) of
the Texas Penal Code (Vernon Supp.1984). The
murder took place at the house of Eusebio
Moreno in San Antonio.
was under construction, and because Moreno
had been experiencing numerous incidents of
theft from the building site, his brother,
Juan Moreno, and brother-in-law, Pedro Gomez,
were sleeping in the house to prevent any
further loss. Some time after 10:30 p.m.,
Gomez and Juan Moreno were awakened by two
intruders: a man who was poking Moreno with
a rifle, whom he later identified as the
petitioner, and an accomplice.1
Cantu and his
companion took wristwatches from Moreno and
Gomez, as well as Gomez's wallet.
Cantu then told
Gomez to pull back the mattress on one of
the beds, under which a pistol owned by
Eusebio Moreno was wrapped in a rag.
According to Moreno, as Gomez was handing
the bundle to the petitioner,
Cantu shot him once
in the head. Gomez fell to the ground, and
Cantu shot him
eight more times. Petitioner next trained
his rifle on Juan Moreno, shooting him eight
or nine times.
from multiple gunshot wounds to the body and
head. Juan Moreno survived.
November 14, two detectives from the San
Antonio Police Department visited Juan
Moreno at the intensive care unit at Wilford
Hall Medical Center. The detectives showed
him photographs of possible suspects.
was not in the photo spread, and Moreno did
not identify any of the photos.
December 16, detectives again visited Juan
Moreno at Wilford Hall and showed him a
photo array, which this time included a
photo of Cantu.
Moreno did not identify
Cantu and did not look at his
photograph. The detectives later testified
that Moreno avoided looking at petitioner's
picture, adding that it was their opinion
that he knew more than he was saying.
to one of the detectives, when asked if he
was afraid to identify the assailant, Moreno
replied, "Yeah." Both detectives who visited
Moreno at Wilford Hall on that day testified
that he appeared to be frightened as he
looked through the photo spread.2
Garza added that Moreno did recognize some
of the other men in the photo lineup, "but
he advised me that these people were just
from the neighborhood and they were not any
of the individuals involved in the shooting
of him or Pedro Gomez." Moreno also for the
first time offered a general description of
his assailants: two Hispanic males, one
about 13 or 14 years old, the other about 19
and wearing blue jeans.
months later, on March 1, 1985, petitioner
was involved in a bar shooting with an off-duty
San Antonio police officer, Joe De La Luz.
At the time of the De La Luz shooting,
Cantu was already a
suspect in the murder of Pedro Gomez.
Because Cantu was a
suspect in both cases, San Antonio police
renewed their efforts to obtain a positive
identification in the Gomez murder
Accordingly, the day after the De La Luz
shooting, an officer was assigned to
interview Juan Moreno at his home. The
officer, Detective Ballesa, showed Moreno
five photographs different from those which
he had viewed on December 16, except for the
photo of Cantu,
which appeared in both arrays. Once again,
Moreno did not identify anyone in the
Ballesa then engaged Moreno in a discussion,
advising him that he had to identify the
assailants if he knew their identity. Moreno
then provided the name of
when viewing his picture but did not
identify him as Gomez's murderer.3
day, on March 3, 1985, a different officer,
Detective Quintanilla, went to the home of
Eusebio Moreno for the specific purpose of
taking Juan Moreno to the police station to
show him the photo spread once more. At the
station, Detective Quintanilla showed Juan
Moreno the same photo spread containing the
picture of petitioner that had been shown to
him the day before by Detective Ballesa.
This time, Moreno identified
Cantu's photo as
representing the man who had shot him and
Quintanilla testified that when he asked
Juan Moreno why he had failed to identify
Moreno replied that "he had recognized the
photo the day before; he just was afraid,
At trial, Juan Moreno identified
Cantu in court,
adding that he had recognized him in the
photo line-ups he viewed on December 16,
1984, and March 2, 1985, but did not
identify his photo on those occasions
because, "I didn't want to get into any
addition to Juan Moreno's trial testimony,
the state's witnesses included Dr. Suzana
Dana, a forensic pathologist and the deputy
chief medical examiner of Bexar County. Dr.
Dana testified that she performed the
autopsy on Pedro Gomez, who had nine gunshot
wounds to the body, including a "defensive"
wound to the left forearm that was
consistent with the victim attempting to
shield his face or body with his hands.
killed by shots from a rifle, Dr. Dana
continued, because there was no powder
tattooing as would typically have been
present had the shots been fired by a weapon
with a shorter muzzle, such as a handgun.
This and other forensic evidence suggested
that the victim was probably shot from one
and one-half to two feet away.
also analyzed gunpowder traces on the palms
of Gomez's hands, comparing them to the
relative absence of gunpowder particles on
the backs of his hands. She concluded that
these findings were consistent with "a gun
being fired at the hands, or with the hands
open simply because the levels are higher on
the palms than on the backs."
response to questions from defense counsel,
Dr. Dana opined that it was unlikely that
Gomez had fired a weapon at
Cantu because that
would have left gunpowder residue on the
backs of Gomez's hands; clutching the gun
would have shielded his palms from gunpowder.6
Cantu did not
testify at the guilt-innocence phase of the
trial. Other than recall Juan Moreno and the
police officers who conducted the
photographic lineups in an attempt to
discredit Moreno's identification testimony,
the only other witness offered by the
defense provided an alibi for
punishment phase of the trial, the
prosecution presented five witnesses who
testified to Cantu's
bad reputation in the community. Officer De
La Luz also testified that he was in the
Scabaroo Lounge in San Antonio on the night
of March 1, 1985, when
Cantu shot him several times without
Cantu then offered
the testimony of six San Antonio police
officers in an attempt to discredit De La
Luz's testimony. The defense also recalled
De La Luz to the stand and questioned him
further about the shooting at the Scabaroo
point, the defense sought to have
Cantu testify for
the limited purpose of rebutting De La Luz's
version of Cantu's
assault on him. The trial court sustained
the government's objection to this proposal,
ruling that "when Ruben
Cantu takes the
stand, he is subject to the same grounds,
the same areas of cross-examination as any
other witness." In response to questions
from defense counsel, the trial court added:
The ruling is that you may offer any and all
evidence that you care to offer through this
witness. If you want to limit it to exactly
what he said on your direct, that's fine;
but when you pass him for cross-examination,
he will be subject to cross-examination to
the same [sic] as all other witnesses, only
exceptions are any and all rules of evidence
that apply to any and all witnesses,
regarding the admissibility of evidence.
defense declined to put
Cantu on the stand under the
conditions set by the court but did perfect
a bill of exception at which
outside the presence of the jury.
claimed that De La Luz provoked the
confrontation which led to the Scabaroo
Lounge shooting, adding that he shot De La
Luz with a pistol Cantu
had purchased outside the bar earlier that
Cantu was convicted
of capital murder and sentenced to death on
July 30, 1985. He appealed to the Texas
Court of Criminal Appeals, which on February
4, 1987 affirmed his conviction and sentence.
Cantu v. State, 738
S.W.2d 249 (Tex.Crim.App.1987). That court
later denied Cantu's
motion for rehearing, and the Supreme Court
denied certiorari. Cantu
v. Texas, 484 U.S. 872, 108 S.Ct. 203, 98
L.Ed.2d 154 (1987).
Cantu was slated to
be executed on or before sunrise on January
8, 1988. He filed a post-conviction habeas
application, which the Texas Court of
Criminal Appeals denied.
Cantu then filed a federal habeas
application and motion for stay of execution,
which was granted on January 7, 1988. After
an evidentiary hearing, a federal magistrate
recommended that habeas corpus relief be
denied. The district court later accepted
the magistrate's report and denied the writ,
prompting this appeal.
brief, petitioner raises seven challenges to
his conviction and death sentence, framing
them as follows:
Texas capital sentencing statutes precluded
the jury from giving full effect to Mr.
evidence of youth, in violation of the
Eighth and Fourteenth Amendments.
Petitioner was deprived of his
constitutional rights under the Fifth,
Eighth and Fourteenth Amendments by the
trial court's refusal to instruct the jury
on the lesser included offense of voluntary
in-court identification of petitioner
deprived him of due process of law under the
Fifth and Fourteenth Amendments as the
procedures employed by the San Antonio
police departments were so impermissibly
suggestive as to lead to a very substantial
likelihood of irreparable misidentification.
Petitioner was denied effective assistance
of counsel at trial in violation of the
Sixth and Fourteenth Amendments because
trial counsel failed to request the services
of an expert witness on the issue of
Petitioner was denied his Sixth and
Fourteenth Amendment rights to the effective
assistance of counsel through the punishment
phase of his criminal trial.
Petitioner was denied his Sixth and
Fourteenth Amendment right to the effective
assistance of counsel on appeal.
Petitioner's constitutionally protected
right to present evidence to the jury in
mitigation of his sentence of death was
impermissibly chilled by the Texas state
rule which precludes a defendant, who
testifies at the penalty phase of his trial,
from challenging the sufficiency of the
evidence in support of his guilt or the
admissibility of the identification evidence.
We address each argument
first contends that the Texas capital
sentencing statute did not provide a vehicle
by which the jury could consider and give
mitigating effect to his youth.7
Petitioner admits that his trial counsel did
"argue the issue of Mr.
Cantu's youth ... as a basis for
references to Cantu's
age surfaced repeatedly during the
punishment phase of his trial. At one point,
for instance, Cantu's
counsel told the jury: "I think that when a
man is on trial for his life, and even more
so when a boy is on trial for his life, that
it warrants a substantial investment of
of its request for an affirmative finding on
the second special issue, the state argued
along the following lines: "He's been
referred to as a boy, a kid, a young man,"
the prosecutor noted at one point. "Well, he
was an 18 year old with 18 rounds of
ammunition, and he used them all."8
Notwithstanding the numerous references to
the petitioner's age, he insists that the
jury's consideration of mitigating evidence
of his youth was unconstitutionally
circumscribed by Art. 37.071(b).
Specifically, he maintains that while the
second special issue allowed the prosecution
to use his youth as a sword against him--by
drawing the jury's attention to his
potential for future dangerousness--it
effectively prevented him from using his
youth as a shield against a death sentence.
Thus, petitioner's brief continues, "the
jury was left with no vehicle through which
it might express a 'reasoned moral response'
that, because of Mr. Cantu's
youth, he should not be condemned to die."9
Cantu grounds his
theory that Art. 37.071 failed to permit the
jury to consider mitigating evidence of his
youth on Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934, 106 L.Ed.2d 256 (1989). We have,
however, in an en banc decision recently
rejected the theory that Penry calls into
question the constitutionality of the Texas
death penalty statute as applied to the
arguably mitigating circumstance of youth.
v. Collins, 950 F.2d 1009, 1017 (5th
Cir.1992) (en banc), cert. granted, --- U.S.
----, 112 S.Ct. 2937, 119 L.Ed.2d 563
(1992), we concluded "that Penry does not
invalidate Texas's statutory scheme, ... in
instances where no major mitigating thrust
of the evidence is substantially beyond the
scope of all the special issues." Id. at
See also Black v. Collins, 962 F.2d 394 (5th
Cir.1992); Holland v. Collins, 962 F.2d 417
(5th Cir.1992); and Romero v. Collins, 961
F.2d 1181 (5th Cir.1992). Graham held: "At
the very least, Jurek must stand for the
proposition that these mitigating factors--relative
youth and evidence reflecting good character
traits such as steady employment and helping
others--are adequately covered by the second
special issue." Id. at 1029.11
Cantu's case, we
agree with Graham that [t]o the extent that
conduct was a product of his youth, he was
for that reason not only less culpable but,
to the same extent, also less likely to be
dangerous when no longer young. To the
criminal conduct was not attributable to his
youth, his youth neither reduced his
culpability nor his future dangerousness.
Nothing in the present record suggests that
the jury here might have viewed the matter
in any other light.
1031 (footnote omitted).
Cantu's youth could adequately be
taken into account as a mitigating factor in
answering the special issues, particularly
the second. Graham, 950 F.2d at 1033.12
next contends that the state trial court
erred when it refused to include in its jury
charge petitioner's requested instruction on
the lesser included offense of voluntary
manslaughter. At the conclusion of the
evidence, his counsel requested that the
jury be so instructed, but the trial court
sustained the state's objection.
Subsequently, during the charge conference
at the penalty phase of the trial,
petitioner's counsel asked the court to
submit Special Issue No. 3 as provided by
prosecution did not object to this requested
submission, despite its earlier opposition
to a voluntary manslaughter instruction
during the guilt/innocence phase of the
trial. Citing this asserted inconsistency,
petitioner argues that the third special
issue would not have been submitted at the
penalty phase unless the evidence in the
record suggested that the killing occurred
in response to provocation by the deceased.13
evidence presented at his trial,
could have supported a verdict that he was
guilty only of voluntary manslaughter, and
the trial court's refusal to give such
instruction therefore violated his
standard first announced in Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980), "the jury [in a capital case] must
be permitted to consider a verdict of guilt
of a noncapital offense 'in every case' in
which 'the evidence would have supported
such a verdict.' " Hopper v. Evans, 456 U.S.
605, 610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d
367 (1982) (citing Beck, 447 U.S. at 627,
100 S.Ct. at 2384).
a defendant is entitled to instruction on a
lesser included offense only "if the
evidence would permit a jury rationally to
find him guilty of the lesser offense and to
acquit him of the greater." Id. 100 S.Ct. at
2388 (quoting Keeble v. United States, 412
U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d
844 (1973)). See also Lincecum v. Collins,
958 F.2d 1271 (5th Cir.1992); and Cordova v.
Lynaugh, 838 F.2d 764 (5th Cir.), cert.
denied, 486 U.S. 1061, 108 S.Ct. 2832, 100
L.Ed.2d 932 (1988).14
voluntary manslaughter statute, Tex.Penal
Code Ann. § 19.04, provides in relevant part:
(a) A person commits an
offense if he causes the death of an
individual under circumstances that would
constitute murder under Section 19.02 of
this code, except that he caused the death
under the immediate influence of sudden
passion arising from an adequate cause.
passion is defined as "passion directly
caused by and arising out of provocation by
the individual killed or another acting with
the person killed which passion arises at
the time of the offense and is not solely
the result of former provocation." Tex.Penal
Code Ann. § 19.04(b). Adequate cause is
defined as "cause that would commonly
produce a degree of anger, rage, resentment,
or terror in a person of ordinary temper,
sufficient to render the mind incapable of
cool reflection." Tex.Penal Code Ann. §
with the district court and with the state
courts that no rational jury could conclude
that Cantu shot
Gomez under the influence of sudden passion,
thereby warranting an instruction of
voluntary manslaughter. Juan Moreno, the
only witness who testified at trial as to
what happened at the time of the shooting,
stated that Pedro Gomez did not fire the .38
caliber handgun he was attempting to hand
over to Cantu.
Petitioner's attempt to characterize police
testimony as supporting his claim that some
of the bullet holes in the wall were caused
by a .38 caliber gun, instead of the .22
caliber murder weapon, does not accurately
reflect what the investigating officer said.
the officer stated that he was unsure
whether the bullet holes, or slugs found at
the scene, were .38 caliber. Nor has
Cantu offered a
plausible explanation linking this physical
evidence to his claim that he acted in self-defense.
His unsupported conjecture is hardly
probative on the issue of whether he acted
under the immediate influence of sudden
passion. See, e.g., Hobson v. State, 644 S.W.2d
473, 478 (Tex.Crim.App.1983).
assuming for the sake of argument that
Cantu acted upon
sudden passion within the meaning of §
19.04(b), that passion did not arise from an
adequate cause as required by § 19.04(c).
See Hobson, id. It is undisputed that
Cantu initiated the
criminal episode in question when he and an
accomplice entered Eusebio Moreno's house,
awakened Gomez and Juan Moreno at gunpoint,
robbed them, and repeatedly shot them with a
rifle at point-blank range, killing one man
and seriously wounding the other.
recently noted that "Texas law plainly does
not consider adequate cause to arise under
these circumstances." Lincecum, 958 F.2d at
See also Penry v. State, 691 S.W.2d 636 (Tex.Crim.App.1985),
cert. denied, 474 U.S. 1073, 106 S.Ct. 834,
88 L.Ed.2d 805 (1986); and Goff v. State,
681 S.W.2d 619 (Tex.App.--Houston [14th
Dist.] 1983), aff'd, 720 S.W.2d 94 (Tex.Crim.App.1986).
Because state law prevented the jury from
finding that Cantu
committed voluntary manslaughter, the trial
court's failure to instruct the jury on this
offense was not constitutional error.
next takes issue with the identification
procedures used by the San Antonio Police
Department. Specifically, he contends that
the repeated showing of his photograph to
Juan Moreno was so impermissibly suggestive
as to create a very substantial likelihood
of irreparable misidentification. Simmons v.
United States, 390 U.S. 377, 384, 88 S.Ct.
967, 971, 19 L.Ed.2d 1247 (1968). Even
unnecessarily suggestive procedures do not
automatically require suppression, however,
if the witness's identification is reliable
under the totality of the circumstances.
Manson v. Braithwaite, 432 U.S. 98, 114, 97
S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977).
state court proceedings,
Cantu moved to suppress the in-court
identification, arguing that Moreno had been
unfairly influenced by police officers. The
trial court disagreed, finding that the
photo array containing
Cantu's picture was not unduly
suggestive, nor was Moreno's identification
in any way tainted.16
the suppression motion, the court ruled that
Moreno's testimony "established that he knew
who the defendant was, what the defendant
looked like, and was able to identify him
without the aid of any photograph to assist
him in his recollection of who the person
was who shot him...."
appeal, the Texas Court of Criminal Appeals
acknowledged that the repeated showing of
during the photo arrays was suggestive.
Cantu v. State, 738
S.W.2d 249 (Tex.Crim.App.1987). However,
that court rejected the petitioner's
contention that the suggestive procedures
tainted Moreno's in-court identification so
as to create a substantial likelihood of
irreparable misidentification. Id. at 252.
U.S.C. § 2254(b), state court factfindings
are entitled to a presumption of correctness
absent one of eight statutory exceptions.
Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764,
66 L.Ed.2d 722 (1981). Petitioner insists
that the presumption of correctness should
not be afforded here because the state
factfinding was insufficient. According to
presumption does not apply because "the
trial court made no factual findings
regarding the identification process, or the
procedures employed, but merely arrived at a
specifically faults the trial court for
failing to make explicit factfindings on
several issues, such as the brightness of
the lighting in the room at the time of the
murder, which he insists should bear on
whether Moreno correctly identified
Cantu as his and
Petitioner's argument is totally without
merit. That the trial court did not make
explicit fact findings on every issue does
not mean the court "merely arrived at a
legal conclusion" unworthy of the
presumption of correctness. Both implied and
explicit factfindings fall within the ambit
of § 2254(d). Marshall v. Lonberger, 459 U.S.
422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d
646 (1983); McCoy v. Cabana, 794 F.2d 177,
182 (5th Cir.1986); Armstead v. Maggio, 720
F.2d 894, 896 (5th Cir.1983).
instance, the state court, after weighing
the evidence, found that Juan Moreno had
sufficient opportunity to view
Cantu on the night
of the shooting. Cantu,
738 S.W.2d at 253. As the state correctly
observes, petitioner cannot avoid the
binding effect of the state court findings
merely by referring to snippets of testimony
from a voluminous record. "One of the
purposes of § 2254(d) was to prevent
precisely this kind of parsing of trial
court transcripts to create problems on
collateral review where none were seen at
trial." Wainwright v. Witt, 469 U.S. 412,
435, 105 S.Ct. 844, 858, 83 L.Ed.2d 841
(1984). Because § 2254(d) is controlling
here, the district court properly relied on
the presumption of correctness to reject
to the state court factual findings on the
asserts that his state trial and appellate
counsel were constitutionally ineffective on
several grounds. We review a claim of
ineffective assistance of counsel at a
capital sentencing trial under the familiar
standards of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). As this court has recently noted:
First, a defendant must
show that "counsel's representation fell
below an objective standard of
reasonableness," with reasonableness judged
under professional norms prevailing at the
time counsel rendered assistance. Id. at
688, 104 S.Ct. at 2064. This is a standard
which requires us to be "highly deferential,"
as it is extremely difficult for reviewing
courts to place themselves in counsel's
position and evaluate the choices he or she
should have made....
Second, "[t]he defendant
must show that 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." Id. at 694, 104 S.Ct. at 2068. A
court evaluating a claim of ineffective
assistance need not address the
reasonableness component first, and if a
defendant fails on one part, it need not
address the other. Id. at 697, 104 S.Ct. at
Cantu insists that
his trial counsel erred during the guilt-innocence
phase of the trial by failing to secure the
services of an expert witness to contest the
testimony of eyewitness Juan Moreno.
According to Cantu,
because no expert witness testified, "the
jury was deprived of a way to intelligently
evaluate the testimony of Juan Moreno."
argument is specious. While petitioner is
correct that the admission of expert
testimony regarding eyewitness
identifications is proper, see, e.g., United
States v. Moore, 786 F.2d 1308, 1312-13 (5th
Cir.1986), he cites no authority to support
the theory that his trial counsel was
required to call an expert witness to
challenge Moreno's testimony.
counsel testified at the evidentiary hearing
that he considered seeking the services of
an expert witness on the issue of eye-witness
identification but decided against it based
on his belief that his cross-examination of
Moreno would be sufficient to refute the
accuracy of the identification.18
next contends that his trial counsel was
ineffective during the punishment phase.
Counsel, he maintains, acted
unprofessionally by failing to present
evidence of Cantu's
"low IQ, emotional immaturity, troubled
youth, trauma as a result of his parents'
divorce, and appearance of neglect." While
counsel did not seek a psychiatric
examination, nothing at the time of trial
indicated that Cantu
was insane when the offense occurred.19
that he was denied effective assistance of
counsel by his attorney's failure to
introduce evidence that he appeared to be a
child who was either neglected or abandoned
is specious. The evidence does not indicate
that the petitioner was neglected or
abandoned. At best, it shows he might have
felt rejected and abandoned, which was
assertedly manifested by the fact that he
sometimes watched television until the early
hours of the morning and engaged in fantasy.
likewise no merit to petitioner's claim to
have been traumatized by his parents'
divorce or by his family's socio-economic
counsel thoroughly investigated these claims,
consulting with his client as well as
Cantu's father and
brother for possible mitigating evidence.
ultimately decided not to introduce this
information because of his concern that the
state would use it against his client.
Introducing the testimony of family members
would have allowed the state to
cross-examine them about
Cantu's reputation in the community,
including both his membership in the Grey
Eagles and his personal notoriety for theft,
violence and drug use. Counsel was not
incompetent in his approach to mitigating
challenges his appellate counsel's
representation as constitutionally deficient.
Both the issues he faults appellate counsel
for failing to raise--a challenge to the
constitutionality of the Texas Sentencing
Statute and the trial court's refusal to
charge the jury on the lesser included
offense of voluntary manslaughter--were
raised and considered both on state habeas
and in the present federal proceedings and
were determined to be meritless.
appellate counsel's effectiveness is judged
by the same standard as that of trial
counsel, see Sharp v. Puckett, 930 F.2d 450,
452 (5th Cir.1991), petitioner's assertion,
which fails even to allege that he was
prejudiced by appellate counsel's
performance, is frivolous.
LIMITATIONS ON PETITIONER'S TESTIMONY DURING
THE PUNISHMENT PHASE
did not testify at the guilt-innocence phase
of his trial. However, his counsel attempted
to call him as a witness during the
punishment phase so that
Cantu could testify on the limited
issue of whether he shot Officer De La Luz
in self-defense. The trial court refused to
allow petitioner to testify on such a
limited basis, ruling that if
Cantu took the
stand, he would be subject to cross-examination
the same as any other witness. Petitioner
then chose not to testify and offered a bill
of exception, out of the presence of the
jury, in which he testified that he shot
Officer De La Luz in self-defense.
now contends that the trial court's decision
impermissibly chilled his right to present
mitigating evidence. Specifically,
petitioner challenges the Texas requirement
that a defendant who testifies only at the
punishment phase of the trial, and who
admits guilt during such testimony,20
waives the right to challenge the
sufficiency of the evidence as to guilt and
waives any evidentiary objections made
during the guilt-innocence phase. See, e.g.,
Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981)
(en banc ).
to petitioner, Mr. Cantu
was faced with a Hobson's choice at the
punishment phase of his trial. Mr.
Cantu could, on the
one hand, testify at the punishment phase
and risk waiving his substantial appellate
issues as to the sufficiency of the evidence
and the legality of the in-court
identification; or, as he chose to do, allow
the jury to impose sentence without the
benefit of his version of the De La Luz
shooting.... Because of Texas' peculiar
procedural rule, Mr. Cantu's
constitutionally protected right to present
mitigating evidence in favor of a sentence
less than death was unconstitutionally
argues that Cantu
has waived this argument because it is
raised for the first time on appeal, and we
agree. See Buxton v. Collins, 879 F.2d 140,
148 (5th Cir.1989), cert. denied, --- U.S.
----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990)
(Penry claim may not be considered for the
first time on appeal). In the alternative,
petitioner is asking this court to announce
and apply retroactively on collateral review
what amounts to a new rule of constitutional
law, a request foreclosed by Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
We decline to review this issue.
foregoing reasons, the judgment of the
district court denying habeas relief is
The accomplice was later
identified as David Garza, a juvenile.
According to evidence adduced at trial, the
room in which Juan Moreno and Gomez were
sleeping was equipped with a 75-watt bulb,
which lighted the room well. The lamp had
been turned off when the two men went to
sleep, but was on later that night when
Moreno. Moreno testified that the lamp
illuminated the faces of
Cantu and his accomplice, and that he
knew Cantu because
he had seen him in the neighborhood before
One of the officers,
Detective Garza, conversed with Moreno in
Spanish. Garza testified that when he asked
Moreno, "Are you afraid to identify the guy
who did this?" Moreno replied, "Yeah." Garza
said he was prompted to ask the question
because Moreno "completely avoided the
photograph, and you could see it in his face
that he was scared." The second officer,
Detective Herring, testified that when
Moreno "reached Mr. Cantu's
picture, he completely didn't look at it. He
just passed it up twice." Herring added that
out of the five photographs he viewed,
Cantu's was the
only picture that Moreno avoided. As Herring
testified at trial:
Q. So [Moreno] did not
treat any of the other photographs the way
he treated Mr. Cantu's
A. No, sir, he did not.
Q. Now, based on your
experience, Detective Herring, have you had
experienced before when people declined to
pick out a photograph when you have reason
to believe that they know who the person is?
A. Many times.
Q. And is what you saw on
December 16, regarding Mr. Moreno's behavior,
consistent with that pattern that you
A. Yes, sir, it is.
As Detective Ballesa
testified at trial:
Q. Had you mentioned
Cantu's name to
A. No, sir.
Q. But he told you that
Cantu had shot him?
A. Yes, sir.
Q. What did he say when
he got to Ruben
A. Well, he didn't say
anything. He mentioned the name after--after
the array had been shown to him, you know,
and after there was some discussion on the
matter is when he came up with the name.
Q. And what was this
A. Well, the discussion
centered around I was trying to make the man
comfortable; he was scared and visibly
shaken; he didn't want to identify the
photograph, and it became rather obvious
that that was the problem. So, you know, he
was trying to--to get me to say that we'd be
able to protect him, things of this nature,
if he identified the picture. He said, "Look,
if I give you the name, why isn't that good
enough?" I said, "Well, that isn't." I said,
"You have to identify the photograph," and
he wouldn't do it, but, you know, he
definitely gave me the name.
explained that he understood Moreno's fear
belonged to the "Grey Eagles," a youth gang
known for violent behavior
As described by the Texas
Court of Criminal Appeals:
Juan testified that he
had recognized appellant in the photographs
that were shown to him on all the occasions.
He did not tell the police that it was
appellant because he did not want appellant
to know where he and his family lived. He
was afraid for his life and the lives of his
family. He said the police never told him
they knew appellant was the one who shot him.
He also stated that he knew appellant by
sight because he had seen him two or three
times before the night of the murder.
738 S.W.2d at 251.
The detective who
investigated the murder scene recovered
eleven .22 caliber shell casings and some
slugs. The detective testified that there
were a number of bullet holes in the walls
of the house, adding that two of the slugs
found at the scene may have been larger than
.22 caliber slugs. In his brief to this
court, the petitioner suggests that these
two slugs were fired from a .38 caliber
handgun such as that hidden by Eusebio
Moreno under the mattress. Petitioner
strongly implies that this evidence supports
his claim that he shot Moreno and Gomez in
self-defense. This assertion is tenuous at
best, however, both because the detective
could not identify the slugs as .38 caliber,
and because investigators recovered no .38
caliber shell casings
Texas Code Crim.Pro.Ann.
Art. 37.071 (Vernon Supp.1985) provides in
(b) On conclusion of the
presentation of the evidence, the court
shall submit the following three issues to
(1) whether the conduct
of the defendant that caused the death of
the deceased was committed deliberately and
with a reasonable expectation that the death
of the deceased or another would result;
(2) whether there is a
probability that the defendant would commit
criminal acts of violence which would
constitute a continuing threat to society;
(3) if raised by the
evidence, whether the conduct of the
defendant in killing the deceased was
unreasonable in response to the provocation,
if any, by the deceased.
In May 1991, the Texas
legislature passed two bills amending art.
37.071(b). However, these changes, which
were later enacted into law, apply only to
offenses committed on or after September 1,
1991. See Graham v. Collins, 950 F.2d 1009,
1012 n. 1 (5th Cir.1992) (en banc), cert.
granted, --- U.S. ----, 112 S.Ct. 2937, 119
L.Ed.2d 563 (1992).
Cantu was 18 years old at the time of
his state criminal trial, he was 17 at the
time of the murder. We reject
that the state's argument amounted to a
claim that the special issues, or any of
them, should be answered in the affirmative
because of Cantu's
youth. The most reasonable characterization
of the state's argument is that
streetwise and hardened beyond his
chronological age, and that in this
particular setting his chronological age was
not a reasonable basis on which to return a
negative answer to any of the special issues
The district court found
that petitioner had procedurally defaulted
this claim for federal habeas review because
of his failure to raise it at trial. However,
in light of the Texas Court of Criminal
Appeals' decision in Selvage v. Collins, 816
S.W.2d 390 (Tex.Crim.App.1991) (en banc),
which called into question whether a
procedural bar would apply in such cases,
the state briefed the merits of
Cantu's claim on
Cantu, Graham was 17 years old at the
time the offense was committed. Id. at 1015
n. 9. The Court's grant of certiorari in a
capital case does not cause us to deviate
from circuit law, nor is it grounds for a
stay of execution. See Johnson v. McCotter,
804 F.2d 300, 301 (5th Cir.1986), cert.
denied, Johnson v. Lynaugh, 481 U.S. 1042,
107 S.Ct. 1988, 95 L.Ed.2d 827 (1987)
See Jurek v. Texas, 428
U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976) (sustaining the constitutionality of
the Texas capital sentencing scheme).
Moreover, Graham noted that both before and
after Penry, the Texas Court of Criminal
Appeals has continued to hold that the
second special issue provides an adequate
vehicle for the jury to take into account
the defendant's youth. 950 F.2d at 1031. See
Roney v. State, 632 S.W.2d 598, 603 (Tex.Crim.App.1982);
Robinson v. State, 548 S.W.2d 63, 64 (Tex.Crim.App.1977);
Earvin v. State, 582 S.W.2d 794, 798-99 (Tex.Crim.App.1979),
repudiated on other grounds, Mercado v.
State, 615 S.W.2d 225, 227 n. 1 (Tex.Crim.App.1981);
Brasfield v. State, 600 S.W.2d 288, 293 n. 3
(Tex.Crim.App.1980), overruled on other
grounds, Janecka v. State, 739 S.W.2d 813 (Tex.Crim.App.1987);
Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987);
Ex Parte McGee, 817 S.W.2d 77, 80 (Tex.Crim.App.1991);
Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1991);
Trevino v. State, 815 S.W.2d 592, 622 (Tex.Crim.App.1991),
reversed on other grounds, Trevino v. Texas,
--- U.S. ----, 112 S.Ct. 1547, 118 L.Ed.2d
193 (1992). See also DeLuna v. Lynaugh, 890
F.2d 720, 722 (5th Cir.1989) (habeas corpus)
While petitioner focuses
on the second special issue, we also agree
with the state's contention that the first
special issue permitted
Cantu to present mitigating evidence
of "a youthful tendency to act rashly," and
therefore not deliberately. Unlike Penry,
Cantu's ability to
think about the consequences of his actions
was markably different from Penry's evidence
of mental retardation, which he contended
made it uniquely difficult to control his
impulses or to evaluate the consequences of
his conduct. Penry, 492 U.S. at 324, 109
S.Ct. at 2949
Petitioner argues that in
Texas, voluntary manslaughter is considered
a lesser included offense of murder. See
Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978).
Braudrick was later questioned by an en banc
panel of that court. Bradley v. State, 688
S.W.2d 847 (Tex.Crim.App.1985) (en banc).
Bradley held that voluntary manslaughter may
be properly considered a lesser included
offense of murder only if the evidence
raises the issue of sudden passion. Id. at
851. Because Cantu
argued the sudden passion issue at trial, we
agree that voluntary manslaughter was
properly treated as a lesser included
offense in this case
"Although Beck itself
spoke only to a statute under which the
judge could not give the requested
instruction, [its] rationale applies equally
to cases in which a trial judge refuses to
give an instruction which is available under
state law." Lincecum, 958 F.2d at 1275
In Lincecum, the
petitioner invoked Beck to support his claim
that the trial court erred by refusing to
instruct the jury on voluntary manslaughter.
Lincecum was convicted of capital murder for
killing Kathy Ann Coppedge during the course
of a kidnapping, robbery and attempted
sexual assault. Evidence adduced at trial
indicated that after robbing Coppedge and
ordering her to take off her clothes,
Coppedge managed to grab Lincecum's knife
and stab him in the side. On collateral
appeal, Lincecum insisted that in light of
this evidence, a voluntary manslaughter
instruction was constitutionally required.
In rejecting this claim, this court noted
that even assuming Lincecum acted under
sudden passion, he lacked adequate cause
because he initiated the criminal episode in
which the stabbing occurred. 958 F.2d at
Among other things, the
court noted that Moreno had initially made a
sign of recognition when first shown
Moreno's obvious unease when shown the photo
adequately accounted for his initial
uncertainty in identifying him. Additionally,
the trial court found that the in-court
identification was separate from the photo
line-up and was based on Moreno's
recollection of the shooting
that unlike its factual findings, the state
court's legal conclusions are not entitled
to the presumption of correctness. This is
undoubtedly true, and indeed the state
concedes as much. But it yields nothing more
than a hollow victory for petitioner given
that the district court applied the
presumption of correctness only to the state
court's factfindings and not to its legal
Moreover, even had
proffered an expert witness to testify on
this issue, the trial court would have had
discretion whether to admit such testimony.
Pierce v. State, 777 S.W.2d 399, 414-16 (Tex.Crim.App.1989),
cert. denied, Pierce v. Texas, 496 U.S. 912,
110 S.Ct. 2603, 110 L.Ed.2d 283 (1990). The
Texas rule is also consistent with federal
practice. In Moore, we held that the
decision whether to admit expert testimony "is
squarely within the discretion of the trial
judge," adding that "there is no federal
authority for the proposition that such
testimony must be admitted." 786 F.2d at
1312-13 (emphasis added)
Compare Bouchillon v.
Collins, 907 F.2d 589, 597-98 (5th Cir.1990)
(Where defendant apprised his counsel of
mental problems prior to plea hearing,
counsel's failure to perform any
investigation whatsoever for a possible
insanity defense violated Strickland ); and
Profitt v. Waldron, 831 F.2d 1245, 1248-49
(5th Cir.1987) (counsel's failure to present
an insanity defense, despite his knowledge
that defendant had been previously
adjudicated insane and had escaped from a
mental institution at the time he committed
the crime, held unreasonable)
has never suggested that his testimony in
the punishment phase would have admitted
While petitioner has not
briefed the Teague issue, we agree with the
state that none of the Teague exceptions