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Douglas Alan FELDMAN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Traffic altercation
Number of victims: 2
Date of murders: August 25, 1998
Date of arrest: September 5, 1998
Date of birth: June 19, 1958
Victims profile: Robert Stephen Everett, 36 / Nicolas Velasquez, 62 (truck drivers)
Method of murder: Shooting (9mm pistol)
Location: Dallas County, Texas, USA
Status: Sentenced to death on September 22, 1999. Executed by lethal injection in Texas on July 31, 2013
 
 
 
 
 
 

photo gallery

 
 
 
 
 

The United States Court of Appeals
For the Fifth Circuit

 

Douglas Alan Feldman v. Rick Thaler, Director

 
 
 
 
 
 

Summary:

Feldman was driving his motorcycle in Plano when Robert Everett, 36, driving an eighteen-wheel truck, passed him and suddenly pulled into his lane. Feldman took out a .9mm pistol and fired several shots into the back of Everett's trailer.

According to witnesses, Feldman then reloaded his weapon and pulled up alongside the cab of Everett's truck. He fired several more shots directly at Everett, killing him. Feldman fired a total of twelve gunshots at the truck. He rode into a parking lot, then returned to Everett's truck. Seeing that Everett was dead, Feldman began riding home.

45 minutes after the shooting, Feldman passed by a gas station in Dallas, about eleven miles from where he killed Everett, and saw a gas tanker truck refilling the station's supply. Feldman drove into the station and fired four shots. Two of them hit the driver, Nicolas Velasquez, 62, in the back, killing him. Feldman then returned home.

On 5 September, twelve days after the killings, Feldman was driving past a Dallas fast food restaurant in his Land Rover. He saw Antonio Vega using a pay phone next to a parked truck and shot him three times, seriously injuring him. A bystander noted Feldman's license plate number and gave it to the police.

When police arrested Feldman, they recovered two firearms and hundreds of rounds of ammunition. Ballistics testing showed that one of the guns, a 9mm pistol, was used in all three shootings.

Final/Special Meal:

Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.

Final/Last Words:

"I hereby declare Robert Steven Everett and Nicolas Velasquez guilty of crimes against me, Douglas Alan Feldman. Either by fact or by proxy, I find them both guilty. I hereby sentence both of them to death, which I carried out in August of 1998. As of that time, the State of Texas has been holding me illegally in confinement and by force for fifteen years. I hereby protest my pending execution and demand immediate relief."

ClarkProsecutor.org

 
 
 
 
 
 
Name TDCJ Number Date of Birth
Feldman, Douglas Alan 999326 06/19/1958
Date Received Age (when Received) Education Level
09/22/1999 41 12
Date of Offense Age (at the Offense) County
08/25/1998 40 Dallas
Race Gender Hair Color
White Male Black
Height Weight Eye Color
5' 6" 198 Blue
Native County Native State Prior Occupation
Dallas Texas  laborer
Prior Prison Record


TDCJ-ID #280732 on a 2-year sentence for 1 count of Possession of a Controlled Substance and 1 count of Aggravated Robbery; 03/30/79 released on Mandatory Supervision, 01/23/80 received Mandatory Supervision Discharge.
 

Summary of incident


On 08/24/98, during the nighttime, in Plano, Texas, Feldman fatally shot a male driver as he was driving an 18-wheel truck.

Witnesses observed Feldman ride up beside the truck on a motorcycle and fire multiple shots into the cab of the truck, dropping back and again returning and firing additional shots into the cab of the truck.

Reports indicate that a total of 12 shots were fired into the truck resulting in the death of driver.

Approximately 30 minutes later, in Dallas, Texas, Feldman rode up beside a parked 18-wheel truck and fatally shot a male victim. Four shots were fired on this occasion, resulting in the death of the victim.

On 08/23/98, approximately 9 shots were fired into the Central Volkswagen Dealership in Richardson, Texas, breaking windows and other items.

On 09/05/98, a victim received 2 gunshot wounds in the parking lot of a restaurant in Dallas, Texas. Ballistics reports verified that all of the attacks were performed by the same 9-millimeter weapon that Feldman possessed.
 

Co-defendants
 None
Race and Gender of Victim
 2 males
 
 
 
 
 
 

Texas Department of Criminal Justice

Feldman, Douglas Alan
Date of Birth: 06/19/1958
DR#: 999326
Date Received: 09/22/1999
Education: 12 years
Occupation: Laborer
Date of Offense: 08/25/1998
County of Offense: Dallas
Native County: Dallas
Race: White
Gender: Male
Hair Color: Black
Eye Color: Blue
Height: 5' 06"
Weight: 198

Prior Prison Record: TDCJ-ID #280732 on a 2-year sentence for 1 count of Possession of a Controlled Substance and 1 count of Aggravated Robbery; 03/30/79 released on Mandatory Supervision, 01/23/80 received Mandatory Supervision Discharge.

Summary of Incident:

On 08/24/98, during the nighttime, in Plano, Texas, Feldman fatally shot a male driver as he was driving an 18-wheel truck. Witnesses observed Feldman ride up beside the truck on a motorcycle and fire multiple shots into the cab of the truck, dropping back and again returning and firing additional shots into the cab of the truck. Reports indicate that a total of 12 shots were fired into the truck resulting in the death of driver. Approximately 30 minutes later, in Dallas, Texas, Feldman rode up beside a parked 18-wheel truck and fatally shot a male victim. Four shots were fired on this occasion, resulting in the death of the victim. On 08/23/98, approximately 9 shots were fired into the Central Volkswagen Dealership in Richardson, Texas, breaking windows and other items. On 09/05/98, a victim received 2 gunshot wounds in the parking lot of a restaurant in Dallas, Texas. Ballistics reports verified that all of the attacks were performed by the same 9-millimeter weapon that Feldman possessed. Co-Defendants: None.

 
 

Texas Attorney General

Wednesday, July 24, 2013

Media Advisory: Douglas Alan Feldman scheduled for execution

AUSTIN – Pursuant to a court order by the Criminal District Court No. 3 of Dallas County, Texas, Douglas Alan Feldman is scheduled for execution after 6 p.m. on July 31, 2013. In August 1999, a Dallas County jury found Feldman guilty of capital murder for the killings of Robert Everett and Nick Velasquez.

FACTS OF THE CRIME

The U.S. Court of Appeals for the Fifth Circuit described the facts of the crime as follows: Feldman was riding his motorcycle on the night of August 24, 1998 when Robert Everett, driving an eighteen-wheeler, suddenly passed Feldman and pulled into his lane, missing Feldman’s left hand by inches. Enraged, Feldman took out his firearm and fired several shots into the back of Mr. Everett’s trailer. Feldman then reloaded his weapon and pulled up alongside the cab of Mr. Everett’s truck. He fired several shots directly at Mr. Everett, killing him.

After returning to the scene of the crime to verify that Mr. Everett was dead, Feldman headed home. Approximately 45 minutes after Feldman shot and killed Mr. Everett, and about eleven miles from the scene of the original shooting, Feldman passed an Exxon service station where Nicolas Velasquez, an Exxon tanker truck driver, was refilling the station’s gas supply. Feldman drove into the station and shot Mr. Velasquez twice in the back, killing him. Feldman then returned home.

Over a week later, Feldman shot Antonio Vega while Mr. Vega was standing outside of a Jack-in-the-Box restaurant. Mr. Vega was seriously injured but survived. A bystander noted Feldman’s license plate number and relayed the information to police. When the police apprehended Feldman, they recovered two firearms and hundreds of rounds of ammunition. Testing on one of the weapons and the shell casings found at the scene of the shootings of Messrs. Everett, Velasquez, and Vega confirmed that the weapon had been used at all three locations.

After his arrest but prior to trial, Feldman admitted committing the shootings to a police investigator, stating that they were the consequence of his traffic altercation with Mr. Everett. Feldman also testified to the shootings at his trial, noting that he had not forgiven Mr. Everett for his trespasses. Feldman explained that he had shot Mr. Velasquez because the man was standing beside an eighteen-wheeler, which caused Feldman to “explode[ ] again in anger.”

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment. During the punishment phase of trial, the State introduced Feldman’s juvenile court record into evidence. The record showed that on May 31, 1974, Feldman was found delinquent because of credit card abuse and drug possession offenses. Feldman’s Texas Youth Commission (TYC) records were also admitted into evidence. These records show that less than one day after Feldman was released from TYC custody, he was found in possession of marijuana. The State also introduced penitentiary packs reflecting Feldman’s 1978 convictions for aggravated robbery and narcotics possession.

In addition to the above documentary evidence, the State also presented testimony concerning Feldman’s extraneous offenses. Robbie Harris testified regarding Feldman’s credit card abuse. On January 2, 1974, Harris went to a Shell gas station where Feldman was employed as a cashier. Harris gave Feldman a credit card to pay for a purchase. Later, Harris discovered Feldman had used his credit account to make an unauthorized charge for a substantial amount of money. Given Feldman’s youth at the time, Harris offered to accept repayment to settle the matter. But Feldman acted as if he had done nothing wrong and refused Harris’s offer.

Jadean Jourden testified concerning Feldman’s aggravated robbery conviction. On January 16, 1978, she met a man whom she would later learn was Feldman. That day, Feldman came into the Willow Creek Pharmacy where Jourden was employed and asked if she sold a specific tape. When Jourden turned to get the tape, she heard Feldman open the counter gate. He came up to her and hit her in the head with something that felt like a gun and then ordered her to get face-down on the floor, threatening to kill her. After Jourden got down on the floor, she heard Feldman threaten the store pharmacist, Robert Scarbrough. Scarbrough also identified Feldman as the armed robber who came into his pharmacy that day. During the robbery, Feldman screamed profanities and threatened to shoot Scarbrough and Jourden. Then Feldman grabbed Scarbrough, held a gun to Scarbrough’s head, and ordered Scarbrough to get specific drugs for him, including dilaudid, morphine, percodan, and seconal. Scarbrough filled a bag with the drugs, and Feldman fled with it. Brad Runnels was working as an automotive mechanic at an Exxon gas station situated next to the Willow Creek Pharmacy on the day Feldman committed the armed robbery. Runnels saw Feldman as he fled the pharmacy. When Feldman tried to drive out of the parking lot, his car was trapped by an incoming vehicle. Runnels watched as Feldman got out of his car and pointed a gun at the driver’s window, forcing the other driver to back his vehicle out of Feldman’s path.

Chad Phipps also testified that on May 31, 1996, he noticed Feldman loading a car in a motel parking lot. Phipps told Feldman he was hitting Phipps’s girlfriend’s car. Feldman then slammed his car door into Phipps’s girlfriend’s car, and said, “No. That’s hitting her car door.” Phipps reported the incident and Feldman’s license plate number to the police. During Phipps’s testimony and in the presence of the jury, Feldman called Phipps “a […] liar.”

James Brantley testified about a violent encounter with Feldman that occurred on Dec. 6, 1996. n that date, Brantley was driving his restored 1984 Firebird. As Feldman was driving his Land Rover out of a parking lot, he collided with Brantley’s Firebird but did not stop. When Brantley tried to catch up with Feldman, Feldman repeatedly slammed on his brakes, attempting to cause a collision with Brantley. Eventually, Feldman stopped his car and exited the vehicle holding a ball-peen hammer. Feldman got onto the hood of the Firebird and smashed it with the hammer. After beating the windshield and door with the hammer, Feldman reached into the driver’s side and hit Brantley at least three times with the hammer. Feldman told Brantley to leave him alone or he would kill him. Then Feldman went back to his car and drove it in reverse onto the hood of the Firebird. During the incident, Brantley feared for his life. After Feldman drove away, Brantley reported the incident to the police and gave them Feldman’s license plate number. Two days later, Brantley was hospitalized with an acute scalp contusion. Feldman paid Brantley $6,500 to settle the ensuing lawsuit.

Donna McElroy testified that Feldman assaulted her on May 1, 1998. The assault occurred at Keller’s Hamburgers, where she worked as a carhop. That day, Feldman rode into Keller’s, and McElroy took his food order. When she brought the food to his car and told him the cost, Feldman said he did not have his wallet with him. McElroy told him that he could not have the food without paying for it. Feldman […] told her he was not going to pay for the food. When Feldman reached for something in his car, McElroy backed away, afraid that he was going to shoot her. Instead Feldman drove his car toward her, knocked her down, and ran over her. McElroy was thrown 20 feet, lost consciousness from the impact and had to be taken to the hospital. As a consequence of the attack, McElroy lost teeth and has a burning sensation in her legs.

Antonio Vega testified about the Sept. 5, 1998, Jack-in-the-Box shooting. He recalled that when the incident occurred, he was dialing the phone outside the restaurant. He heard gunfire and then felt a burn in his chest. When Vega turned to run, he saw someone behind him pointing a gun at him. Vega felt a burning feeling in his leg and fell. Vega was shot three times and thought he was going to die.

Will Prince testified about a shooting incident that happened the day before the Everett murder occurred. On Aug. 23, 1998, Prince received a call near midnight regarding Central Volkswagen, the dealership where Prince was employed. Someone from the alarm company that monitors the dealership asked that he go there to meet the police. Prince arrived at the dealership to find large panes of glass shattered by bullets. The shooter had also fired bullets into several vehicles on the lot and inside the showroom. Overall, the shooter caused $8,000 in damage. Business records showed that Central Volkswagen had worked on Feldman’s vehicle twice in 1986, more than 10 years prior. Lannie Emanuel, a firearms examiner, compared the shell casings and fragments collected from the dealership with the firearm seized from Feldman at the time of his arrest. He concluded that the nine-millimeter cartridge casings were fired by Feldman’s firearm.

Nneka Olan, a Dallas County Sheriff’s Office Clerk, testified that when Feldman was processed into jail after his arrest for the instant offense, money found in his possession was seized for examination. Secret Service Special Agent, T.M. Hiles, testified that he examined the money and found three counterfeit bills.

Elizabeth Garcia testified that she dated and lived with Feldman for six or seven years in the 1980s. They had little contact after their relationship ended; however, while Feldman was held in custody awaiting his capital murder trial, Feldman renewed his contact with Garcia through phone calls and letters. Garcia told an investigator for the district attorney’s office about the 81 letters Feldman had written her from jail and gave the investigator permission to review them. At the conclusion of the State’s case on punishment, portions of these letters were published to the jury. Feldman wrote that he enjoyed killing Everett and Velasquez, and he wanted to see more people get shot. Feldman described fantasizing about walking through Dallas-area stores and shooting at shopkeepers who had angered him in the past. Feldman also fantasized about killing police officers over a prior traffic citation and stated that he had previously been armed at a truck stop and came very close to killing more truck drivers. Feldman explained that he wanted to kill people who disturbed his quiet and then desecrate their corpses. The prosecution closed its case with a letter in which Feldman stated that murder should not be illegal and compared killing humans to hunting game animals.

PROCEDURAL HISTORY

On Sept. 8, 1998, a Dallas County grand jury indicted Feldman for capital murder for the killings of Everett and Velasquez.

On Aug. 25, 1999, a jury convicted Feldman of capital murder. On Aug. 31, 1999, after the jury recommended capital punishment, the trial court sentenced Feldman to death by lethal injection.

On Feb. 20, 2002, the Texas Court of Criminal Appeals affirmed Feldman’s sentence.

On April 18, 2007, the Court of Criminal Appeals denied Feldman’s application for Habeas Corpus.

The Northern District of Texas, Dallas Division, denied his petition for a federal writ of habeas corpus on May 3, 2011.

On Sept. 14, 2012, the U.S. Court of Appeals for the Fifth Circuit affirmed the federal district court’s denial of relief.

On March 18, 2013, the U.S. Supreme Court denied certiorari review.

On Oct. 18, 2012, the Criminal District Court No. 3 of Dallas County scheduled Feldman’s execution to take place on July 31, 2013.

On July 11, 2013, the Texas Court of Criminal Appeals dismissed Feldman's subsequent application for a writ of habeas corpus.

On July 17, 2013, Feldman filed a motion to reconsider in the Texas Court of Criminal Appeals.

On July 29, 2013, a U.S. district court dismissed Feldman's prisoner civil rights lawsuit.

On July 29, 2013, the Board of Pardons and Paroles met and did not recommend clemency for Feldman.

On July 30, 2013, the United States Court of Appeals dismissing Feldman’s most recent successive habeas petition.

On July 31, 2013, Feldman filed a motion for a stay of execution in the U.S. Supreme Court.

 
 

Killer shows anger until death

By Brandon K. Scott - ItemOnline.com

July 31, 2013

Douglas Feldman blamed his victims for their own murders and protested his execution before he became the 11th inmate put to death this year by the state of Texas.

Feldman spoke clearly in his final statement, despite his message striking witnesses as bizarre.

The families of both victims Robert Everett and Nicolas Velasquez were present for the execution, and said they traveled from places like Lubbock and southwest Missouri to see justice carried in the death sentence for Feldman.

The 55-year-old inmate, who was sent to death row September 22, 1999, had his own idea of justice.

“I hereby declare Robert Steven Everett and Nicolas Velasquez guilty of crimes against me, Douglas Alan Feldman,” he said from the death gurney. “Either by fact or by proxy, I find them both guilty. I hereby sentence both of them to death, which I carried out in August of 1998. As of that time, the state of Texas has been holding me illegally in confinement and by force for 15 years.

“I hereby protest my pending execution and demand immediate relief.”

Feldman was pronounced dead 14 minutes later.

Feldman was convicted of killing in a 30-minute time span both men, who were driving 18-wheeler trucks, in the Dallas area in October 1998. Ballistics reports from a 9-millimeter handgun linked Feldman to the murders and two other shootings that did not result in fatalities.

Both families agreed that Feldman showed fear and nervousness, despite his rugged demeanor. Feldman’s right leg was shaking when witnesses entered the death chambers, and he appeared to resist the lethal injection as the Pentobarbital took effect.

John Everett, son of victim Robert Everett, said he believed Feldman’s statement showed what was in his heart.

“Very dark, very evil, very unremorseful,” Everett said. “We were not completely surprised by it.”

“I was prepared for that. I realized he was never going to be remorseful,” said Elizabeth Chavez, Velasquez’s daughter. “I prepared myself for that. I don’t think he ever found peace.”

Robert Everett’s daughter Emily Castillo was 12 years old when her father was killed. Now she’s married with children, but wishes her father could be around to see it.

 “It’s pretty frustrating,” she said. “I just feel like it’s closure. My dad finally has justice after 15 years.”

Jason January, who prosecuted the case against Feldman, said he had never seen anyone as scared as Feldman appeared to be in his final moments.

“I thought he was literally shaking scared when we walked in,” January said. “Having seen a few of them (executions), I’ve never seen anyone that scared. So the guy that talked the toughest was the most cowardly.”

Feldman has often been referred to as “the road rage killer” but January wanted it to be clear that Feldman’s aggression was not momentary.

“Clearly, as we’ve seen from his history, the time he’s been in prison with his hundreds of violations, and today in his final defiant act of insulting the victims on his death gurney; it showed he didn’t have road rage, he had life rage,” January said. “And he was a very dangerous and evil person that needed to be put out of society.”

January also called Feldman “the poster child for the death penalty.”

While in prison, Feldman was recorded for 136 disciplinary cases. He also ripped a telephone from the wall just before a scheduled media visit.

In his final three days, Feldman spent most of the time visiting with friends, eating sandwiches and chips, and taking legal advice.

The families said Feldman looked at them before giving his final statement. Velasquez’s daughter Alice Hagemann said it was difficult listening to Feldman speak about her father without giving a response.

While the families came to the Huntsville “Walls” Unit seeking justice, finding peace continues to be a work in progress.

“We don’t find peace in his death,” John Everett said. “We find peace in day-to-day living.”

 
 

Prosecutors: killer of 2 truckers outlined violent fantasies in letters

By Holly Becka - DallasNews.com

July 30, 2013

As he awaited trial, Douglas Alan Feldman wrote letters from jail expressing general hatred for everyone and violent fantasies of shooting business people he felt had wronged him, prosecutors said Monday.

Parts of his letters noted thoughts of wanting to kill truck drivers he believed ran over deer along highways and polluted the environment with their trucks' fumes.

Mr. Feldman also wrote that he was relieved and felt "absolutely no remorse" for killing truckers Robert Stephen Everett of Missouri and Nicolas Velasquez of Irving, whom he cursed but didn't identify by name.

"I will tell you this: I found it quite pleasurable to kill those two men!" he wrote in December 1998, two months after his arrest. "If you are an angry person and someone provokes you to violence . . . it feels wonderful to cause their death and to watch their pain. . . .

"After the adrenaline is gone, the sense of satisfaction and personal accomplishment is also gone."

Prosecutor Jason January rested the state's punishment case against Mr. Feldman - who faces capital punishment or life in prison - after reading excerpts of letters Mr. Feldman wrote to a former girlfriend.

The same jury that convicted Mr. Feldman of capital murder last week in the August 1998 deaths of Mr. Everett, 36, and Mr. Velasquez, 62, could begin deliberating his fate as soon as Tuesday, prosecutors said.

Defense attorneys sought to contrast the state's letters with testimony from Mr. Feldman's mother and a December 1997 letter he wrote to her in which he said he feared he was becoming "a mental case."

He wrote he was losing his rationale, couldn't handle a "bombardment" of sound and felt like he was drowning while riding an emotional roller coaster.

State District Judge Robert Francis, after dismissing the jury for the day, angrily admonished some spectators who laughed and acted as if they were playing a violin during testimony from Cecie Borschow, Mr. Feldman's mother.

Judge Francis told them that if they could not contain themselves, "being barred from the courtroom will be the best thing you can hope for."

Defense attorney Jim Oatman declined to say whether he would present more witnesses.

Eight months before the truckers were killed, Mr. Feldman wrote to his mother that he felt distracted and unable to sleep, as if he were being "dared to escalate" and "engulfed in an unrealistic euphoria, only to fall into a narcissistic depression."

He had received inpatient psychiatric treatment for drug abuse and paranoia in 1993, and his family urged him to seek help from mental-health experts before the shootings, Ms. Borschow testified.

"It seems like I am taunted to attack things which are so huge they could easily consume all of my energy and time (or end quickly and violently) while simultaneously diverting me from doing something I might actually enjoy," Mr. Feldman wrote. ". . . I do not believe I am going to be OK." In a December 1998 letter to his former girlfriend, Mr. Feldman expressed anger over rude people and the "abusive" noise they cause.

"I have come to hate every single person on this planet with all of my heart and soul," he wrote. ". . . If I had a button which would kill every single person on this planet, I would push it with no hesitation whatsoever!"

He also wrote in November 1998 that before his arrest, he had carried his loaded 9 mm Glock pistol through stores he believed had deceived or cheated him, "looking for the owner or the salesman or the service manager so that I could dispatch them to an early grave."

 
 

Man found guilty in 2 trucker deaths, says he's still angry at victim's driving

By Holly Becka - DallasNews.com

July 30, 2013

Editor's note: this story was originally published in the Aug. 27, 1999, editions of The Dallas Morning News.

A jury needed 24 minutes Thursday to convict a Richardson man of capital murder after hearing his sometimes-angry testimony that he gunned down two truck drivers while consumed with rage last summer.

Douglas Alan Feldman, a 41-year-old former financial analyst, told jurors he remained angry to this day over an August 1998 incident on southbound Central Expressway with trucker Robert Stephen Everett of Missouri.

Mr. Feldman said he was minding his own business, riding his vintage Harley-Davidson in the right half of the right lane, when "this truck came out of nowhere, just flying."

Suddenly, he said, the trailer was 12 to 18 inches from his left handlebar, and he feared for his life.

"I saw those wheels spinning, and I became angry," Mr. Feldman testified. "I chased Mr. Everett down, and I shot him to death."

He said he first fired his handgun into the back of the tractor-trailer "because I felt like I needed to try to stop that man," but the truck drove on.

He said he reloaded and caught up with Mr. Everett, 36, near the Plano-Allen line. This time, he said, "I fired directly into the cab."

Less than 45 minutes later, Mr. Feldman said, he was headed home when he saw Nicolas Velasquez, a 62-year-old Exxon tanker driver, who he conceded did nothing to provoke him.

"All I can say is I saw the man standing by that truck and I exploded again in anger," Mr. Feldman said. "I felt emotionally compelled. I was consumed by anger."

Mr. Feldman opened fire on Mr. Velasquez as he stood beside his truck at a station at Hillcrest and Arapaho roads in Far North Dallas, filling out paperwork.

Mr. Feldman's loved ones, some of whom left in tears during his testimony, were not present when state District Judge Robert Francis read the guilty verdict.

"I love my son. However, I certainly do not condone his actions," Mr. Feldman's mother, Cecie Borschow, said late Thursday. "We are anxious for this to be over. My heart goes out to the families" of the victims.

The punishment phase begins Friday for Mr. Feldman, who faces the death penalty or life in prison.

Alice Hagemann, the youngest of Mr. Velasquez's four children, praised prosecutors and said her family was thankful for the jury's decision.

"The evidence was clear," she said. "Now we just hope and pray on the second phase of the trial they'll decide on what the state is pushing for - the death penalty, which we're all 100 percent backing."

Ms. Hagemann said listening to Mr. Feldman's account was a struggle for both victims' families.

"It was very difficult to have to relive all of that anger of his," she said.

John Everett, Mr. Everett's brother, limited his comments to praising "a good, fair decision - the right decision."

Defense attorney Jim Oatman had argued that jurors should consider Mr. Feldman's state of mind when he shot at Mr. Everett, saying Mr. Feldman felt under attack.

Mr. Everett was driving with a suspended license at the time, Mr. Oatman said. The trucker's license had been suspended twice before, and he had four speeding citations, Mr. Feldman's attorney noted.

The trucker's driving that night affected Mr. Feldman, who "perceives things differently than you and I."

"This man has things that have bothered him since 1993," Mr. Oatman said. The night of the killings, he said, Mr. Feldman "thinks his life is in danger and people are after him - and he reacts."

Mr. Feldman testified that he received inpatient treatment, including anti-depressant medication, at Charter Hospital in 1993. The month before the shootings, he said, he went to Parkland Memorial Hospital because his family worried about his extreme stress. He said he didn't stay long enough to be treated because he found the noise level emotionally upsetting.

Lead prosecutor Jason January said anger isn't a valid defense and that Mr. Feldman could have moved away from Mr. Everett's truck "if there was any alleged cutting off, if that indeed happened."

He characterized Mr. Feldman as "the terminator," arguing that Mr. Velasquez was shot in the back and died simply "because Mr. Feldman got angry."

Earlier in the day, under questioning by Mr. January, Mr. Feldman conceded in the packed courtroom that he circled back on Central Expressway to pass Mr. Everett's idle truck because "there was a part of me that wanted to make sure Mr. Everett was dead."

He said he carried his 9 mm Glock handgun with him on motorcycle rides because "I felt like my life was under attack," he said. "If I could have worn that gun on my hip, I would have carried that gun 24 hours a day."

He said he learned Mr. Everett was dead when he watched television news accounts the next night.

His reaction? "I don't know - I was sort of surprised, sort of shocked," he said. Mr. Feldman appeared irritated with some of the prosecutor's questions, accusing Mr. January of misconstruing things he said and insisting he never had a plan to shoot truck drivers.

"I would object to you referring to it as "a job,' " Mr. Feldman said. "It was an event, an act, something that happened."

He bought his handgun through a newspaper ad despite his 1978 conviction for aggravated robbery because he "stringently disagrees" with the state law prohibiting felons from having guns.

 
 

Douglas Feldman, the Plano Terminator, Lived and Died an Evil Bastard

By Brantley Hargrove - DallasObserver.com

Aug. 1 2013

Douglas Alan Feldman, 55, the remorseless, highly intelligent psychopath who terrorized three North Texas counties for more than a week while he went on a shooting rampage, was executed Wednesday. And he shuffled off his mortal coil with the same venom with which he inhabited it.

According to an Associated Press reporter who attended the execution, Feldman was fidgety, his feet moving nervously beneath the sheets in Huntsville's death chamber.

In mock declamation, he recited the names of his victims, pronouncing them guilty. "I have sentenced them both to death. I personally carried out their executions," he said, AP reports. "As of that time, the state of Texas has been holding me illegally in confinement and by force for 15 years.

"I hereby protest my pending execution and demand immediate relief."

Feldman carried out these "executions" back in 1998, beginning with a night ride on his Harley through Plano. He claimed an 18-wheeler nearly ran him off the road. So, he pulled alongside the cab and emptied his clip, killing the driver. On his way home, he pulled off at an Exxon fueling station in Dallas and shot a tanker driver in the back. A week later, he shot and wounded another man at a Jack in the Box simply because he was standing next to a big rig.

A witness got his license plate number. Police later tracked it to a home in Richardson, where they met a financial analyst who had graduated with honors from Southern Methodist University. Inside, they found two guns and some 300 rounds of ammunition. Ballistics tests proved one of the guns was a match.

A jury found him guilty and sentenced him to die. On the inside, Feldman didn't find Jailhouse Jesus. He was irretrievably malevolent. "It feels wonderful to cause their death and to watch their pain," he said in one letter, according to AP.

As I reported recently, he was a troublemaker, and prior to a recent media interview attempted to tear a phone from the wall.

I still wrestle with the death penalty after witnessing an execution. It's the lack of certainty often found in criminal cases that bugs me, and the inherently contradictory nature of it all -- sentencing a man to die for killing to demonstrate that we don't condone killing.

But then the state executes a man like Feldman.

 
 

Road-rage killer of 2 executed

By Michael Graczyk - Associated Press

The Houston Chronicle

July 31, 2013

HUNTSVILLE — A former financial analyst with a history of disruptive behavior was executed Wednesday for the road-rage shooting deaths of two truckers in the Dallas area 15 years ago.

Douglas Feldman, 55, received lethal injection for gunning down Robert Everett, 36, of Marshfield, Mo., and Nicholas Valesquez, 62, of Irving.

Feldman mimicked the announcement a judge or jury makes when announcing a verdict, using the names of his victims and declaring he had found them guilty of crimes against him.

"I have sentenced them both to death. I personally carried out their executions," he said in a loud voice, adding that he carried out their executions in August 1998.

"As of that time, the state of Texas has been holding me illegally in confinement and by force for 15 years," Feldman said. "I hereby protest my pending execution and demand immediate relief."

He appeared very nervous, breathing quickly and his feet twitching under a sheet. As the drug began taking effect, he grimaced twice, took a few deep breaths and began snoring. Then all movement stopped.

Feldman was pronounced dead 13 minutes after the lethal drug was injected at 6:28 p.m. CDT.

Feldman's attorney, Robin Norris, filed a clemency petition with the Texas Board of Pardons and Paroles that was turned down Monday.

Multiple courts, including the U.S. Supreme Court, earlier rejected his appeals on Feldman's behalf. Multiple courts, including the U.S. Supreme Court, earlier rejected his appeals on Feldman's behalf. Feldman, from Richardson, was riding his motorcycle the night of Aug. 24, 1998, and said Everett, driving an 18-wheeler, cut him off on a Dallas County freeway so he took out his 9 mm pistol, pulled up alongside the truck cab and shot him. Feldman testified at his capital murder trial that he was still angry about 45 minutes later when he spotted Valesquez, a gasoline tanker driver filling a Dallas service station, and shot him.

"A security camera catches him shooting the man in cold blood," Jason January, the former Dallas County assistant district attorney who prosecuted him, said. "Several counties were frightened as this unidentified motorcyclist was out acting like 'The Terminator.'"

Feldman was arrested more than a week later, after shooting and wounding a man at a fast-food restaurant and driving off. A bystander saw the shooting and reported his license plate number to police, who tracked him down and found Feldman with two pistols and nearly 300 rounds of ammunition. Ballistics tests confirmed one of the guns was used in all three shootings.

"It feels wonderful to cause their death and to watch their pain," he said in one of 81 letters he wrote to a former girlfriend while awaiting his trial. The writings from the magna cum laude Southern Methodist University graduate were introduced into evidence.

"God forbid I ever had my finger on the button to launch a nuclear explosive device because I guarantee that I would wipe as many of these bastards off the face of the planet as I am able!" he said in another letter.

Without remorse, he also acknowledged the killings while testifying at his capital murder trial.

Evidence showed he got into trouble as a juvenile, had drug possession and selling issues and wound up in state custody. He also had robbery and drug convictions.

While in prison, records show Feldman racked up 136 disciplinary cases, including one for ripping out the phone in a visiting cage where death row inmates are interviewed by reporters. Texas prison officials subsequently refused him media access.

The day before the fatal shootings, evidence showed he shot up a Volkswagen dealership where he once had some work done.

"His statement just showed more of the heart of the man," John Everett said after witnessing the execution of his brother's killer. "Very dark and very evil and very unremorseful."

"I was 12 when it happened," Robert Everett's daughter, Emily, said. "Now I'm grown, married, with kids, and my dad didn't get to see any of that. I feel my dad finally has justice after 15 years."

Feldman became the 11th prisoner executed this year in Texas and third this month. At least seven other inmates are scheduled to die in the coming months in the nation's busiest capital punishment state.

 
 

In the Court of Criminal Appeals of Texas

No. 73,654

Douglas Alan Feldman, Appellant
v.
The State of Texas

On Direct Appeal from Dallas County

Cochran, J., delivered the opinion of the Court, joined by KELLER, P.J., MEYERS, PRICE, WOMACK, KEASLER, HERVEY and HOLCOMB, JJ. JOHNSON, J. concurs.

O P I N I O N

We grant rehearing on our own motion and withdraw our prior opinion. Appellant was convicted of capital murder in August 1999. Tex. Penal Code Ann.§ 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071§ 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071§ 2(h). Appellant raises twenty-one points of error but does not challenge the sufficiency of the evidence at either stage of trial. Appellant's points of error will be addressed in the chronological order of trial, and the facts will be set out only as necessary to address those points. We affirm.

CHALLENGES FOR CAUSE

In his ninth, tenth, and eleventh points of error, appellant complains about the trial court's failure to grant his challenges for cause to venirepersons G. Henry, D. Garcia, and R. Martinez, respectively. Specifically, he complains that each had a bias against some phase of the law upon which he was entitled to rely. Art. 35.16(c)(2).

To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997). The record in this case shows that appellant exhausted all fifteen of his peremptory challenges, requested and received an additional challenge, used that challenge, and again requested, but was denied, further challenges. Appellant then objected to the seating of the twelfth juror, thereby preserving any error for review on appeal.

When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied, 482 U.S. 920 (1987). Because the record reflects that appellant received an extra peremptory challenge in addition to the fifteen he was granted by statute, appellant can only demonstrate harm by showing that at least two of the complained-of challenges were erroneously denied. Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App. 1988).

When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the court's ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). We give great deference to the trial court's decision because the trial judge is present to observe the demeanor of the venireperson and to listen to his tone of voice. Id. Particular deference is given when the potential juror's answers are vacillating, unclear or contradictory. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000).

Appellant may properly challenge any prospective juror who has a bias or prejudice against any phase of the law upon which he is entitled to rely. Art. 35.16(c)(2). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with law. See, e.g., Patrick, 906 S.W.2d at 489; Hughes v. State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992). Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999).

In point of error nine, appellant complains about prospective juror G. Henry. Specifically, he complains that the trial court erred in denying his challenge to Henry because the prospective juror indicated that: 1) he would automatically answer the future dangerousness issue "yes" based upon his finding of guilt; and 2) he would be more inclined to believe a police officer's testimony over that of a lay witness. Article 37.071§ 2(c), requires the State to prove the future dangerousness and "anti-parties" (2)

special issues beyond a reasonable doubt. Any veniremember who would automatically answer either of those special issues in the affirmative or who would place the burden of proof on the defense is challengeable for cause under Article 35.16(c)(2) for having a bias or prejudice against a law applicable to the case upon which the defense is entitled to rely. Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). Further, a juror who cannot impartially judge the credibility of the witnesses is challengeable for cause for having a bias or prejudice in favor of or against the defendant. Art. 35.16(a)(9); see also Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999). We must review the entirety of Henry's voir dire to determine whether there is sufficient evidence to support the court's determination.

The record shows that the prosecutor began Henry's individual voir dire by explaining the process followed at trial and the State's burden of proof. The prosecutor then explained that the procedure at punishment was not to have the jury vote for life or death, but rather to pose to the jurors two questions which they would answer based upon the evidence presented at trial. The prosecutor further explained that the court would then assess punishment based upon the jury's answers to those questions.

As he was explaining the process to Henry, the prosecutor emphasized that answering the future dangerousness issue required a different analysis than finding a defendant guilty. He also commented that finding a person guilty did not mean that a juror should then automatically answer the future dangerousness question "yes." Henry indicated that he understood this concept. During later questioning, Henry again agreed that a juror would have to listen to all of the evidence presented before making a decision on the punishment questions.

During his questioning, however, defense counsel asked:

Now, I want you to assume for a minute that you're sitting on this jury. Okay. I want you to assume for a minute that the State of Texas has proved to you what's on that indictment in front of you, that this man has knowingly and intentionally taken the life of not one person but two people without legal justification or excuse and he either did it one of two ways, either during the same transaction or the same course of conduct or scheme.

* * *

Now, when you look at special issue number one, Mr. Henry, having that type of evidence brought to you that convinces you beyond all reasonable doubt that he is guilty of the indictment, do you know how to answer question number one if you've heard that type of evidence?

Given these facts, Henry responded that he would answer the future dangerousness question "yes." Soon after this exchange, defense counsel stated, "The law looks at it a bit differently" and he explained:

Some people say, well, Mr. Oatman, maybe I'll keep an open mind to the extent that if you, Mr. Oatman, prove to me that he's not a future threat even though he did this, I might be willing to change my mind. Would that be a fair statement?

To this question, Henry responded, "Yes." Defense counsel subsequently asked: "[W]ould it be a fair statement to say if you found that indictment to be true beyond all reasonable doubt that question number one is going to be yes unless I or Mr. Huff or the defense can prove to you that he's not a future threat?" Henry answered, "Yes."

On redirect, the prosecution broached the subject:

Q. [Y]ou understand how the law presumes that question [future dangerousness] to be answered no.

A. Yes, sir.

Q. Okay, just like a person accused of a crime is presumed to be innocent, it's up to us to prove that he isn't innocent. That question is presumed that, even though a person is found guilty of capital murder, that he's not going to be a continuing danger. We have to prove to you that he is.

A. Right.

Q. Okay. It can't be an automatic yes answer.

A. Right.

Q. I know you've heard that a lot of people feel that, you know, if you were to prove a person guilty of killing two people, that they would automatically answer that yes. But people that would automatically answer yes are not going to be qualified for the jury, okay, because the law requires you, after you find a person guilty, to sort of step back, take a breather, come to a stop at this stop sign, and reconsider all the evidence that you've heard both from the first part and then in the second part of the trial before you answer that question. And if you're not convinced beyond a reasonable doubt, you know, you may have a situation here where - again, some of the examples are extreme. But you may have a situation where, yeah, a person did knowingly and intentionally kill two people during a liquor store robbery. But once they came out, say the police shot them and paralyzed them. Well, they are guilty of killing two people, but is that guy going to be any type of a continuing danger to society? Don't think so.

A. No.

Q. So you see that there are situations -

A. Right.

Q. - that come up like that.

On re-cross by defense counsel, the following colloquy occurred:

Q. If they prove to you with the kind of evidence and quality of evidence that convinces you beyond all reasonable doubt that that indictment is true, if you know that much about an individual, you're going to know enough about him to answer question number one yes; is that right?

A. That's what I said.

Q. I'm sorry?

A. I said yes.

Q. And you still feel that way?

A. That's not the law, though, I mean, but that's the way I feel. I'm just saying how I feel.

* * *

Q. And that's what I need to know is, are you going to - The way you personally feel about this, Mr. Henry, is there any way that you're going to be able to set aside your personal feelings?

A. Yes, sir. I've got to go with the law, I mean.

Q. Okay. Tell me how you would ever answer special issue number one no when you have found beyond a reasonable doubt he did what's on the indictment.

A. I don't know. I would have to hear it. I mean I don't know.

Q. Well, because the only thing you've told me was, well, Mr. Oatman, if you proved it to me, it should be no then, right.

A. Right. I mean I'm sure something will come up with witnesses or something. I mean I would just have to hear it, I mean.

The proponent of a challenge for cause has the burden of establishing his challenge is proper. See, e.g., Howard v. State, 941 S.W.2d 102, 128 n.2 (Tex. Crim. App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App. 1989); see also Colella v. State, 915 S.W.2d 834, 846 (Tex. Crim. App. 1995)(Clinton, J., dissenting). The proponent does not meet his burden until he has shown that the venireman understood the requirement of the law and could not overcome his prejudice well enough to follow it. Id.

Although Henry initially indicated that he would answer the special issue "yes" if he found the allegations in the indictment to be true, and then said that he would require a defendant convicted of a multiple homicide theory of capital murder to prove that he was not a future danger, he changed his response after the parties explained the law, and he maintained that he would set aside his personal beliefs and follow the law. And in response to the State's questioning, Henry indicated that there were circumstances in which he could find that such a defendant did not pose a future danger. The trial court was in a position to evaluate Henry's responses and was entitled to believe that he could follow the law.

With respect to Henry's opinion regarding the credibility of police officer witnesses, the record shows that Henry stated that he would "lean towards" believing an officer over a lay person. However, Henry also stated during later questioning that he would have to see both witnesses on the stand. Appellant is entitled to jurors who will be genuinely open-minded and subject to persuasion, with no extreme or absolute positions regarding the credibility of any witness. Jones, 982 S.W.2d at 389. That Henry was simply more or less skeptical of a certain category of witness did not make him subject to a challenge for cause. Id.

Looking at the entirety of the voir dire, we hold that the trial judge did not abuse his discretion in denying appellant's challenge for cause to veniremember Henry. Point of error nine is overruled.

Appellant asserts in his tenth point of error that the trial court erroneously denied his challenge for cause to venireperson D. Garcia. Appellant complains that Garcia, like Henry, indicated her bias against the law when she stated that a guilty verdict would automatically lead her to answer the future dangerousness issue affirmatively. Appellant further complains that Garcia would require him to produce evidence of his innocence at trial.

Looking at the record of Garcia's voir dire, we note that the judge and the prosecutor instructed Garcia on the procedure involved in a capital case; Garcia said that she could follow that procedure. During the State's questioning, the prosecutor again explained the punishment questions and emphasized that a juror must consider those questions with an open mind and answer them according to the evidence. Garcia agreed that she would consider all of the facts and circumstances before answering the future dangerousness question. (3) However, during questioning by defense counsel, Garcia stated that killing two people during the same transaction or course of conduct was an especially heinous crime in her opinion, and that death was the appropriate penalty. Upon clarification by the prosecutor, Ms. Garcia said that she thought that the defense attorney was asking her about her reasoning process if "there was already evidence to prove" future dangerousness. In a colloquy that followed, she reiterated that she would keep an open mind on the future dangerousness issue:

A. So that's why I said yes to the death penalty. But if, okay, he's killed two people, but yet, at this point right now I don't know any evidence, I can say, I can answer either way, yes or no.

* * *

But I don't automatically say kill, I mean.

Q. Okay. That's exactly what the law contemplates, and I wanted to be sure where you're coming from.

A. Right.

Q. So you're not one of those that says automatically kill him because I've already -

A. Because he killed two people, no.

Depending upon who asked the question, Garcia vacillated on whether she would return an affirmative answer to the future dangerousness issue based solely upon the fact that the defendant was found guilty of two murders. When told by the prosecution that the law required her to keep an open mind, she maintained that she would not automatically answer the future dangerousness issue "yes" in a double murder situation. The trial court was in a position to view her testimony and was entitled to believe that she could follow the law.

With regard to appellant's assertion that Garcia would require him to produce evidence of his innocence, the record reveals that Garcia did indeed indicate that she thought appellant should bring forth such proof. However, when the law was explained to her in a way that she could understand, she admitted that she had been confused and said that she could follow the law requiring the State to prove the defendant's guilt.

Given the record, appellant has failed to meet his burden of showing that the venireperson had a bias or prejudice that would substantially impair her ability to carry out her oath and instructions in accordance with law. See Hernandez, 757 S.W.2d at 753. The trial judge did not abuse his discretion in denying appellant's challenge for cause to veniremember Garcia. Point of error ten is overruled.

Because appellant has failed to show that at least two of his complained-of challenges for cause were erroneously denied, he cannot show harm on appeal. Penry, and Martinez, both supra. Point of error eleven is overruled.

Appellant complains in points of error twelve and thirteen that the trial court erred in granting the State's challenge for cause to veniremember D. Dreifke in violation of Article 35.16 because the State failed to state the reason for its challenge and because the venireperson never said that she could not follow the law. In point fourteen, appellant claims that Dreifke was improperly challenged based upon her views against the death penalty. See Wainwright v. Witt, 469 U.S. 412 (1985).

With regard to points twelve and thirteen, even assuming that the trial court erred in its application of Article 35.16(b)(3), appellant has not shown that the error deprived him of a lawfully constituted jury. Without such a showing, reversal is not required. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999). Points of error twelve and thirteen are overruled.

On the other hand, whether a venireperson was properly challenged based upon her views of the death penalty is a matter of constitutional dimension and requires a different analysis. See Jones, 982 S.W.2d at 390-91. Under Wainwright v. Witt, 469 U.S. 412 (1985), a venireperson may be excluded for cause consistent with the Sixth Amendment to the United States Constitution when his views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Clark v. State, 929 S.W.2d 5, 6-7 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1116 (1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992); Moody v. State, 827 S.W.2d 875, 888 (Tex. Crim. App.), cert. denied, 506 U.S. 839 (1992). However, prospective jurors may not be excused merely because their beliefs about the death penalty might influence the decision-making process. Clark, supra. In reviewing such an issue, we give deference to the trial court's decision to exclude a prospective juror and will reverse only for an abuse of discretion. See Rocha v. State, 16 S.W.3d 1, 6 (Tex. Crim. App. 2000). Furthermore, we will uphold the trial court's decision when a prospective juror's answers are "vacillating, unclear, or contradictory." Id.

Approximately a month prior to Dreifke's individual questioning, the trial judge very briefly explained to the entire venire panel the procedural sequence of a death penalty case. On the day that Dreifke appeared for individual examination, the judge first spoke to the group of veniremembers scheduled for questioning that day and explained the process more in depth. The judge stressed to the veniremembers that a Texas jury is never required to assess a sentence of death or life imprisonment. Rather, the jury would be required to answer two questions, and the answers to those questions would dictate to the judge what punishment should be assessed. The judge then paraphrased the two questions the jury would be required to answer.

At the outset of Dreifke's individual questioning, the prosecutor stressed the seriousness of the State's position in asking for the death penalty. He then asked Dreifke in a variety of ways whether she thought that she was an individual who could participate in such a case knowing that the ultimate result might be the execution of another human being. To each question, Dreifke responded that she could serve on such a jury. As the questioning continued, Dreifke noted that she had started thinking about how such a case would affect her, for example, whether it might scare her or cause her to have recurring dreams. However, she maintained that she "could still answer the [punishment] questions in such a way that would result in the execution of another human being[.]" On the other hand, Dreifke also maintained that she thought that she would have doubts about whether she could do the job entrusted to her.

Finally, the prosecutor described the actual procedure involved when a person is executed - from the person's life in a small cell to the process of lethal injection. After he finished his explanation, the prosecutor again asked Dreifke whether she could participate in this process. At this time, the venireperson answered that she did not think that she could and to do so would go against her conscience.

The prosecutor then passed the venireperson and appellant said that he had no questions to ask her. After Dreifke had stepped out of the room, the prosecutor challenged her for cause and the trial judge granted the challenge. Appellant's only response was, "Note our exception, Your Honor."

Because Dreifke vacillated on her ability to follow the law and ultimately told the court that she was not sure whether she could perform the duty entrusted her, the trial judge was within his discretion in determining that her views on capital punishment would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath. Wainwright, supra; see also Rocha, 16 S.W.3d at 6; Colburn v. State, 966 S.W.2d 511, 518 (Tex. Crim. App. 1998). Point of error fourteen is overruled.

LESSER-INCLUDED OFFENSE

In his first two points of error, appellant complains that the trial court erred in refusing to instruct the jury on the lesser-included offense of murder. He asserts that this violated Article 37.08 of the Texas Code of Criminal Procedure and his due process rights under the Fourteenth Amendment to the United States Constitution.

To determine whether a charge on a lesser-included offense should be given, this Court has implemented a two-step test. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981) (plurality opinion). The first step is to decide whether the offense is actually a lesser-included offense of the offense charged. (4) See Art. 37.09; see also, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993); Aguilar, 682 S.W.2d at 558. Murder is a lesser-included offense of capital murder. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); Moore v. State, 969 S.W.2d 4, 12 (Tex. Crim. App. 1998). Hence, the first prong of the test is satisfied.

The second step of the Aguilar/Rousseau test requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Moore, 969 S.W.2d at 8; Rousseau, 855 S.W.2d at 672. In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore, 969 S.W.2d at 8. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000), cert. denied, 121 S.Ct. 1407 (2001). (5)

The evidence in the instant case showed that during the late night hours of August 24, 1998, appellant was riding his motorcycle down Highway 75 in Collin County. Appellant was positioned in the right hand lane near the shoulder when Robert Everett, traveling at least seventy to seventy-five miles per hour in his eighteen-wheeler truck, suddenly passed appellant and then moved into appellant's lane, passing only twelve to eighteen inches from appellant's left hand. Appellant, initially in fear for his life, became enraged and gave chase because he felt that he "needed to stop that man." During the chase, appellant took out a weapon and fired several rounds into the back of Everett's trailer. When Everett continued driving, appellant reloaded his gun, drove along side the truck's cab, and fired several times directly at Everett, killing him.

After the shooting, appellant stopped for a period of time (6) in a mall parking lot off the highway. He then rode back to where Everett's truck had stopped to determine whether Everett was dead. Appellant then headed for home. After riding approximately eleven miles, however, appellant passed an Exxon service station where Nicolas Velasquez, a tanker truck driver for Exxon, was refilling the gas supply for the station. (7) Velasquez had just finished filling the ground tanks and was walking towards the service station entrance when appellant drove into the station area and shot Velasquez twice in the back, killing him. Appellant finally drove home.

Over a week later, Antonio Vega was standing outside a Jack-in-the-Box restaurant at 1:15 p.m. talking on a pay telephone when appellant, driving a silver Land Rover, drove by and opened fire, injuring Vega. A nearby witness noted appellant's license number and reported the information to the police. When officers apprehended appellant, they recovered a loaded nine-millimeter weapon, an additional pistol magazine, a Glock pistol, seventy-five hollow-point bullets, and one hundred ninety four round nose bullets. Another loaded magazine was recovered from appellant's pocket. Testing on the first weapon and on the spent shell casings from the three crime scenes confirmed that this weapon had been used at all three locations.

Appellant was indicted for killing Nicolas Velasquez by shooting him with a firearm and, during the same criminal transaction, killing Robert Stephen Everett by shooting him with a firearm. In the alternative, appellant was indicted for killing Nicolas Velasquez by shooting him with a firearm and, during a different criminal transaction but pursuant to the same scheme and course of conduct, killing Robert Stephen Everett by shooting him with a firearm. (8)

After his arrest, but prior to trial, appellant admitted responsibility for the shootings in letters that he mailed from jail to a police detective and to one of the prosecutors working on the case. In the letter to the police detective, appellant stated that the murders resulted from a traffic altercation with Everett, "after which [appellant] erupted in rage and subsequently committed the attacks[.]"

Appellant also testified at trial and admitted shooting the victims. Appellant told the jury about the traffic altercation with Everett and his decision to shoot Everett instead of allowing him to go speeding down the highway. He noted that he returned to Everett's truck because, "There was a part of me that wanted to make sure Mr. Everett was dead." Even as he testified at trial, appellant admitted that he was still angry about the incident. He explained that he shot Velasquez because he saw him standing beside an eighteen-wheeler, and "I exploded again in anger[.]"

Appellant was charged at trial with both alternative theories alleged in the indictment and the jury found him guilty "as charged in the indictment." See Tex. Penal Code § 19.03(a)(7)(A) and (a)(7)(B). When the State has tried a defendant on an indictment in which alternative theories of capital murder are alleged, the defendant is entitled to a requested lesser-included offense charge if a rational jury could convict him only on the lesser-included offense after considering each of the alternative theories of commission. See Arevalo v. State, 970 S.W.2d 547, 548-49 (Tex. Crim. App. 1998). (9)

Under the first theory alleged, the jury was authorized to convict appellant if it found that he had murdered both victims during the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A). Although the legislature did not define the term "same criminal transaction" in the statute, this Court has interpreted that phrase to mean "a continuous and uninterrupted chain of conduct occurring over a very short period of time . . . in a rapid sequence of unbroken events." Jackson v. State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000); Rios v. State, 846 S.W.2d 310, 311-312 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1051 (1993); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992), cert. denied, 506 U.S. 997 (1992).

At trial, the evidence showed that appellant became enraged by Everett's driving and proceeded to chase him down and shoot him. He then went to a parking lot for a while before returning to the scene to see if his victim was dead. After this, appellant, by his own claim, started to drive home. It was only when he saw a tanker truck parked at a service station along the way that appellant again lashed out in anger, killing another person. The total amount of time between the two murders was approximately 45 minutes. From this evidence, a rational juror could have concluded that there was in fact a sufficient break between the two murders such that they did not occur in a "sequence of unbroken events." Hence, a rational jury could have acquitted appellant of this theory of capital murder under these facts.

However, a finding that the murders could have been committed during different criminal transactions does not mean that the jury could have found appellant guilty only of murder. The jury in the instant case was also authorized to convict appellant of capital murder if it found that the murders were committed during different transactions, but pursuant to the same scheme or course of conduct. See Tex. Penal Code § 19.03(a)(7)(B). Hence, to be entitled to a lesser-included offense charge of murder in this case, appellant must also show that the record contains some evidence that would have allowed a rational jury to find that he did not murder Velasquez and Everett pursuant to the same scheme or course of conduct. See Arevalo, 970 S.W.2d at 549 (to be entitled to lesser-included, defendant must point to evidence that negates every alternate theory of liability for the greater offense). Appellant agrees with this proposition of law. His contention is that there was some evidence from which a rational jury could have concluded that the two murders were not part of the same scheme or course of conduct.

This Court noted in Corwin v. State, 870 S.W.2d 23, 28 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 826 (1994), that the sponsors of the bill that became this penal provision intended subsection (B) to embrace "serial" murders. The Revised Bill Analysis for the legislation gave as an example of same scheme or course of conduct one who, "e.g. kills all Senators over the course of a year for snubbing his legislation." Id. The evidence in this case shows that appellant became enraged because of a truck driver's behavior and so he killed him. Appellant's own testimony then indicated that he became enraged anew when he saw the second truck driver later that same night and, therefore, he killed him. The jury was then presented with evidence of a third attack a little more than a week later on a person appellant thought was a truck driver. (10)

Appellant points to his trial testimony that he killed the first truck driver because that driver almost ran him down, but that he had no motive at all for killing the second truck driver. Therefore, he argues, his testimony of the second "motiveless" murder is "some evidence" from which a rational trier of fact could rationally conclude that these two murders were not committed pursuant to the same scheme or course of conduct. We disagree. The appellant did not dispute that he killed both truck drivers in the same evening with the same gun while out on a single car trip. He shot and killed the first truck driver with four gunshots to the chest and back and the second victim with two gunshots to the chest and back. He admitted that he shot the first truck driver in a fit of rage for "what he did," and that when he saw the second truck driver he "exploded in anger" again and drove by and shot him as well.

Given this evidence, a rational jury could only conclude that appellant's behavior in killing both truck drivers was committed pursuant to the same over-arching objective or motive and, hence, was committed pursuant to the same scheme or course of conduct. See Corwin, 870 S.W.2d at 28. As such, the jury could not have rationally acquitted appellant of capital murder and convicted him only of murder. See Arevalo, 970 S.W.2d at 548-49; see also Wesbrook, 29 S.W.3d at 113-14; Moore, 969 S.W.2d at 8. Because appellant has failed to satisfy the second prong of the Aguilar/Rousseau test, the trial court did not err in refusing his request for a lesser-included offense charge of murder. Appellant's first two points of error are overruled.

EVIDENCE OF EXTRANEOUS ACTS

Appellant complains in his third, fourth, and fifth points of error that the trial court erred by allowing the State to introduce evidence during the guilt/innocence phase of an unadjudicated extraneous offense that appellant committed just over a week after the offense alleged in the indictment. Specifically, appellant complains about testimony concerning the aggravated assault of Antonio Vega.

Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a person's character or that a person acted in conformity with that character. However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Faced with an objection, the proponent of such evidence must satisfy the trial court that the extraneous act has relevance apart from its tendency to prove character conformity. (11) See Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997); McFarland v. State, 845 S.W.2d 824, 837-838 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). If the proponent succeeds in his task, then the trial court has discretion to admit the evidence. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g ). If, however, the trial court determines that the proponent has not met his burden or decides that the evidence has no relevance apart from character conformity, then the evidence is not admissible, and the trial court has no discretion in the matter. Id.

While the trial court may decide that the evidence is admissible under Rule 404(b), it may nevertheless exclude that evidence if it determines that the probative value of the extraneous act evidence is substantially outweighed by unfair prejudice. Tex. R. Evid. 403. However, the trial court need not engage in this balancing test unless the opponent of the evidence further objects based upon Rule 403. Montgomery and McFarland, both supra. When the trial court balances probativeness and prejudice, a presumption exists favoring probative value. Montgomery, 810 S.W.2d at 389.

So long as the trial judge "operates within the boundaries of [his] discretion," an appellate court should not disturb his decision, whatever it may be. Montgomery, 810 S.W.2d at 390. In other words, as long as the trial court's ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling. Montgomery, 810 S.W.2d at 391.

Appellant conceded in the instant case that he killed the two victims named in the indictment. However, he disputed that he committed the murders in the same criminal transaction or during the same scheme or course of conduct. In presenting evidence about the Vega assault/attempted murder, the State was able to present to the jury evidence that made the existence of this fact more probable by revealing appellant's common "anti-truck driver" motive or a common scheme behind the shootings.

Further, the record reveals that early in the State's case-in-chief, the prosecutor read to the jury a letter appellant had written and sent to Detective Phil Harding with the Dallas Police Department. Appellant stated in this letter:

I am responsible for the criminal mischief which occurred at Central Volkswagen on 8/23/98 (shooting of windows & vehicles), as well as the shooting deaths (murder) of Mr. Robert Stephen Everett (8/24/98) and Mr. Nicolas Velasquez (8/25/99) [sic] as well as the attempted murder of Mr. Antonio Vega (9/5/98).

I have no excuse for my actions other than that I was in a state of extreme emotional distress at the time. I had an altercation in traffic with Mr. Everett, after which I erupted in rage & subsequently committed the attacks mentioned above.

This admission, along with the minimal evidence of the facts and circumstances of the Vega assault which the State later admitted through the testimony of an eyewitness, made the fact that the Everett and Velasquez murders were committed during the same transaction or scheme or course of conduct more likely. Hence, the evidence had relevance apart from character conformity, and the judge acted within his discretion in allowing it. Montgomery, supra.

While we recognize that evidence of an extraneous offense will usually be somewhat prejudicial, we cannot say, given the totality of the evidence in the instant case, that the testimony was substantially more prejudicial than probative. Because the trial judge was not outside the zone of reasonable disagreement in allowing the testimony, we will not disturb his ruling on appeal. Montgomery, supra. Points of error three through five are overruled.

Towards the end of the guilt/innocence phase of trial, appellant took the stand in his own defense. He now advances in points of error six through eight that the trial court erred in allowing the State to cross-examine him about extraneous offenses which he committed more than twenty years before the offense for which he was currently on trial. A defendant who takes the witness stand may be cross-examined and impeached in the same manner as any other witness. Huffman v. State, 746 S.W.2d 212, 219 (Tex. Crim. App. 1988). Indeed, a defendant may be contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness. Id. Furthermore, an appellant who "opens the door" to otherwise inadmissible evidence risks having that evidence admitted and used against him. However, the party offering the evidence may not "stray beyond the scope of the invitation." See Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997).

In the instant case, the following exchange occurred between appellant and his trial counsel:

[BY DEFENSE COUNSEL:]

Q. At some point in time the next day [the day after the shootings for which appellant was indicted], you were questioned by the Richardson Police Department; is that right?

A. I was.

Q. You had shaved your beard.

A. I had.

Q. Had you cut your hair?

A. No.

Q. No doubt about it, you were trying to change your appearance.

A. That's correct.

Q. Why?

A. I've been in trouble before and I was concerned that, you know, I was in serious trouble.

Q. Did you know you had done something wrong?

A. I felt that way, yes.

Before the prosecutor conducted cross-examination, the court took a recess and discussed a motion in limine in which defense counsel sought to limit questioning about matters not in issue in the case. Specifically, counsel sought to prohibit the State from asking appellant any questions likely or designed to elicit testimony about extraneous offenses. The State specifically sought to ask the defendant to "explain his statement to the jury that he'd 'been in trouble before.'" The trial court overruled defense counsel's objections at that time, instructed the prosecutor to proceed with caution, and granted defense counsel a continuing objection on the subject. A short way into cross-examination, the prosecutor asked appellant:

[BY THE PROSECUTOR:]

Q. Now, earlier you told this jury here that you'd been in trouble before; is that correct?

A. That's correct.

Q. Can you explain that for us?

A. I was arrested in 1978 on an aggravated robbery charge in possession of narcotics. I was 19 years old. I got a two-year sentence and served it, as well as a ten-year probation which I served and discharged.

Upon further cross-examination, appellant told the prosecutor and the jury about his juvenile arrests, an arrest for driving while intoxicated when he was eighteen, running away from home when he was young, forging credit card receipts and selling marijuana when he was sixteen or seventeen, and an aggravated robbery charge on his adult record.

Given the totality of the record, we conclude that the trial court did not abuse its discretion in allowing this testimony. See, e.g., Schutz, 957 S.W.2d at 71; Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Norris v. State, 902 S.W.2d 428, 442 (Tex. Crim. App. 1995). The State's question asking appellant to explain his previous statement about being in trouble did not exceed the scope of the invitation appellant initially gave. Furthermore, every time appellant volunteered additional information, the State was justified in asking for clarification. Appellant's sixth through eighth points of error are overruled.

PAROLE LAW

In his fifteenth point of error, appellant complains that the trial court erred when it informed the jury about the forty year minimum for parole eligibility if a life sentence were assessed, but then further instructed the jury not to consider that minimum in answering the future dangerousness issue. See Art. 37.071 § 2(b). Appellant concedes that he failed to object to these instructions, but argues that the "error" caused him egregious harm, necessitating reversal under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). This Court has repeatedly held that parole eligibility is not a proper subject for the jury to consider at the sentencing phase of a capital case. See, e.g., Colburn v. State, 966 S.W.2d 511, 516 (Tex. Crim. App. 1998); see also, Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000), cert. denied, 121 S.Ct. 1407 (2001). Even if we were to assume that the trial court committed error, there is no possibility that the parole instructions caused appellant egregious harm because parole was not an issue applicable to appellant's case. See, e.g, Collier v. State, 959 S.W.2d 621, 623 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 929 (1998). Point of error fifteen is overruled.

CONSTITUTIONALITY OF ARTICLE 37.071

In his sixteenth point of error, appellant contends that the trial court failed to define in the punishment charge the terms "probability," "criminal acts of violence," and "continuing threat to society." See Art. 37.071 §§ 2(b) and (e). Appellant argues that this failure rendered the charge unconstitutionally vague.

This Court has held repeatedly that the trial court need not define such terms because the jury is presumed to understand them without instruction. See, e.g., Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). Appellant has given us no reason to revisit these holdings. Point of error sixteen is overruled.

In his seventeenth, eighteenth, and nineteenth points of error, respectively, appellant argues that the "12/10 Rule" of Article 37.071 §§ 2(d)(2) and 2(f)(2) is unconstitutional and that the death penalty scheme allows the jury unlimited discretion in violation of the federal and state constitutions. We have previously addressed and rejected these contentions. Appellant raises no new arguments here. See, e.g., Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert. denied, 121 S.Ct. 885 (2001); Shannon v. State, 942 S.W.2d 591, 600 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996). Points of error seventeen through nineteen are overruled.

CUMULATIVE EFFECT

Appellant asserts in his twentieth and twenty-first points of error that the "cumulative effect" of all of the above errors denied him due process under the federal constitution and due course of law under the Texas constitution. A number of errors may be found harmful in their cumulative effect. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). However, cumulative error has not been shown here. See Wright, 28 S.W.3d at 537. Points of error twenty and twenty-one are overruled.

We affirm the judgment of the trial court.

Delivered: February 20, 2002

Publish

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

2. The "anti-parties" special issue is set out in art. 37.071,§ 2(b)(2):

[I]n cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

3. For example, when the prosecutor asked Ms. Garcia if she could keep an "open mind as to either option depending on the facts," she responded:

Well, I guess I have to know what led to all this before I decide death or life.

. . .

I mean he just killed two people, but to me, I don't automatically think he should die unless I hear all the evidence.

4. Article 37.09 defines a lesser-included offense:

An offense is a lesser included offense if:

  • it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
     

  • it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
     

  • it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
     

  • it consists of an attempt to commit the offense charged or an otherwise included offense.

5. In Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997), this Court explained why the evidence raising a lesser-included must provide a viable and rational alternative to the greater offense:

The second prong of the test preserves the integrity of the jury as the factfinder by ensuring that the jury is instructed as to a lesser included offense only when that offense constitutes a valid, rational alternative to the charged offense. If a jury were instructed on a lesser included offense even though the evidence did not raise it, then the instruction "would constitute an invitation to the jury to return a compromise or otherwise unwarranted verdict."

6. The evidence showed that the total elapsed time between the two murders was 45 minutes.

7. Appellant was apparently in Dallas County at that time.

8. Under either theory, appellant would be guilty of capital murder for killing two different people under Tex. Penal Code §19.03(a)(7) either:

  • "during the same transaction; or

  • during different transactions but the murders are committed pursuant to the same scheme or course of conduct."

    9. As this Court explained in Arevalo:

    In the instant case, the State presented evidence on all three theories of aggravation [from sexual assault to aggravated sexual assault], and the jury charge required the jury to find only one of the three to convict of aggravated sexual assault. If the evidence was disputed on only one of those theories and the evidence on the remaining two was uncontested, the jury could not rationally find Appellant guilty only of the lesser. Therefore, we hold that if sufficient evidence of more than one theory of the greater offense is presented to allow the jury to be charged on alternate theories, the second prong of the Royster/Aguilar test is satisfied only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater. See Schweinle v. State, 915 S.W.2d 17, 19-20 (Tex.Cr.App.1996). Only if every theory properly submitted is challenged would the jury be permitted to find the defendant guilty only of the lesser offense.

    970 S.W.2d at 548-49.

    10. Appellant testified that he saw a diesel truck parked near where Vega was using the phone. Therefore, appellant thought that he might be a truck driver.

    11. "Relevant evidence" is evidence which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R. Evid. 401. Evidence which is not relevant is not admissible. Tex. R. Evid. 402.

 
 

United States Court of Appeals, Fifth Circuit.

No. 11-70013.

Douglas Alan FELDMAN, Petitioner-Appellant,
v.
Rick THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-Appellee.

September 14, 2012.

Robin Norris, Law Office of Robin Norris, El Paso, TX, for Petitioner-Appellant.
Stephen M. Hoffman, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Petitioner-appellant Douglas Alan Feldman was convicted and sentenced to death in Texas for the 1998 murders of Robert Everett and Nicolas Velasquez. Feldman challenged his death sentence in habeas proceedings under 28 U.S.C. § 2254. The district court denied relief and Feldman now seeks a certificate of appealability. We deny Feldman's request.

I.

The facts of Feldman's crimes are essentially undisputed.1 Feldman was riding his motorcycle on the night of August 24, 1998 when Robert Everett, driving an eighteen-wheeler, suddenly passed Feldman and pulled into his lane, missing Feldman's left hand by inches. Enraged, Feldman took out his firearm and fired several shots into the back of Mr. Everett's trailer. Feldman then reloaded his weapon and pulled up alongside the cab of Mr. Everett's truck. He fired several shots directly at Mr. Everett, killing him.

After returning to the scene of the crime to verify that Mr. Everett was dead, Feldman headed home. Approximately 45 minutes after Feldman shot and killed Mr. Everett, and about eleven miles from the scene of the original shooting, Feldman passed an Exxon service station where Nicolas Velasquez, an Exxon tanker truck driver, was refilling the station's gas supply. Feldman drove into the station and shot Mr. Velasquez twice in the back, killing him. Feldman then returned home.

Over a week later, Feldman shot Antonio Vega while Mr. Vega was standing outside of a Jack-in-the-Box restaurant. Mr. Vega was seriously injured but survived. A bystander noted Feldman's license plate number and relayed the information to police. When the police apprehended Feldman, they recovered two firearms and hundreds of rounds of ammunition. Testing on one of the weapons and the shell casings found at the scene of the shootings of Messrs. Everett, Velasquez, and Vega confirmed that the weapon had been used at all three locations.

After his arrest but prior to trial, Feldman admitted committing the shootings to a police investigator, stating that they were the consequence of his traffic altercation with Mr. Everett. Feldman also testified to the shootings at his trial, noting that he had not forgiven Mr. Everett for his trespasses. Feldman explained that he had shot Mr. Velasquez because the man was standing beside an eighteen-wheeler, which caused Feldman to "explode[] again in anger."

Feldman was convicted of capital murder in a Texas trial court and sentenced to death on August 31, 1999. Feldman appealed to the Texas Court of Criminal Appeals ("the CCA"), which ultimately affirmed his conviction in a published opinion issued on February 20, 2002.2 Feldman did not seek review by petition of certiorari in the United States Supreme Court.

While his direct appeal was still pending, Feldman filed for state habeas relief under Article 11.071 of the Texas Code of Criminal Procedure. In accordance with Article 11.071, the convicting state trial court received briefs and supplemental affidavits from both Feldman and the state. However, the court denied Feldman's request for an additional evidentiary hearing to develop facts related to his habeas claims. The convicting trial court then issued findings of fact and conclusions of law on Feldman's habeas claims,3 which the CCA ultimately adopted in an unpublished opinion denying Feldman's request for habeas relief.4

Feldman filed his federal habeas petition on April 17, 2008. The district court denied both habeas relief and a certificate of appealability with respect to all of Feldman's claims.5 Feldman now seeks to appeal three of the four claims the district court rejected. First, Feldman argues that his death sentence violates his Sixth Amendment right to counsel, as his trial counsel rendered ineffective assistance by failing to present readily available evidence of Feldman's bipolar disorder.6 Next, Feldman claims that his trial denied him due process under the Fourteenth Amendment, as the trial judge refused to instruct the jury on the lesser-included offense of simple murder.7 Finally, Feldman claims that his trial denied him an impartial jury and due process in violation of the Sixth and Fourteenth Amendment, as the trial judge wrongfully excluded a qualified venire member merely because of her conscientious scruples about the death penalty.8

II.

Before a § 2254 petitioner can appeal, he must obtain a certificate of appealability ("COA").9 To obtain a COA, the petitioner must make "a substantial showing of the denial of a constitutional right."10 Where, as here, "a district court has rejected the constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."11 In death penalty cases, "any doubts as to whether a COA should issue must be resolved in the petitioner's favor."12

The CCA adjudicated all of the claims Feldman seeks to appeal on the merits. Consequently, the district court's review of Feldman's claims was governed by 28 U.S.C. § 2254(d) and (e). Under § 2254(d), the district court could not grant habeas relief unless the CCA's adjudication (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."13 Moreover, under § 2254(e)(1), which supplements § 2254(d)(2) with an "arguably more deferential" standard of review for state court findings of fact,14 the district court was obliged to presume that the CCA's factual findings were correct unless Feldman furnished "clear and convincing evidence" otherwise.15

Hence, in determining whether a COA should issue in this case, the question is not whether reasonable jurists could debate the correctness of the CCA's rejection of Feldman's claims, but whether reasonable jurists could debate the district court's denial of habeas relief under the deferential standard of review mandated by § 2254(d) and (e).16

We examine Feldman's claims in turn and deny his request for a COA with respect to each claim.

III.

Feldman seeks to appeal the claim that his conviction requires reversal under Strickland v. Washington, arguing that his trial counsel's failure to present readily available mitigating evidence of Feldman's bipolar disorder amounted to deficient representation.

To prove that a conviction requires reversal under Strickland, a petitioner must show both that his trial counsel's performance was deficient and that the defense suffered prejudice as a consequence.17 To be cognizable under Strickland, trial counsel's error must be "so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment."18 An error will meet this high standard if "counsel's representation fell below an objective standard of reasonableness."19 However, because of the risk that hindsight bias will cloud a court's review of counsel's trial strategy, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."20

Our evaluation of the appealability of Feldman's ineffective assistance claim requires a brief foray into the facts of the state proceedings below.21 In anticipation of the punishment phase of Feldman's trial, his defense counsel, James Oatman, retained a forensic psychiatrist and a psychologist to evaluate Feldman's mental condition.22 Feldman was uncooperative during the evaluation and the experts were unable to render a diagnosis.23 Concluding that the evaluation produced no mitigating evidence and actually disclosed facts harmful to Feldman, Mr. Oatman did not introduce evidence of the evaluation at trial.24

Nevertheless, Mr. Oatman's mitigation strategy rested on proving that Feldman had some form of mental deficiency that rendered him incapable of controlling his conduct.25 To make his case, Mr. Oatman relied on vague appeals to circumstantial evidence.26 Unsurprisingly, the prosecution rejoined that if Feldman truly suffered from a mental disorder, Mr. Oatman would have presented expert testimony.27 The prosecution also averred that if Feldman did suffer from any mental instability, it was due to his own voluntary drug use.28

In the subsequent habeas proceedings before the CCA, Feldman submitted evidence that Dr. Jeffrey Glass had diagnosed him with bipolar II disorder in 1997, about one year before the murders for which Feldman was convicted.29 Feldman also submitted evidence that his mother, Cecile Borshaw, had informed Mr. Oatman's investigator of Dr. Glass's 1997 diagnosis prior to trial, in accordance with Mr. Oatman's instructions to provide the investigator with all information relevant to the defense.30 Finally, Feldman introduced evidence of a post-conviction Bipolar I diagnosis obtained by his habeas counsel.31 In its answer, the prosecution submitted an affidavit from Mr. Oatman in which he generally explained his trial strategy but made no mention of the 1997 diagnosis.32

On the basis of this new evidence, Feldman claimed that Mr. Oatman's failure to procure and present expert testimony confirming Feldman's bipolar disorder constituted deficient representation under Strickland. Pointing to the post-conviction Bipolar I diagnosis obtained by habeas counsel and the pre-conviction Bipolar II diagnosis rendered by Dr. Glass, Feldman argued that Mr. Oatman clearly could have found a favorable expert had he been diligent.33

The CCA rejected Feldman's theory of deficiency, concluding that Feldman failed to overcome Strickland's "strong presumption" that trial counsel's representation was reasonable.34 The CCA reasoned that Mr. Oatman had diligently sought an experienced team of mitigation experts to evaluate Feldman's mental health, and that Mr. Oatman's representation was not deficient under Strickland merely because he did not "canvas the field to find a more favorable defense expert."35 Moreover, it reasoned that Mr. Oatman's decision not to obtain further evaluations could have been a reasonable strategic choice: even if he had been able to obtain a diagnosis akin to that obtained by Feldman's habeas counsel, the diagnosis would have been "double edged," demonstrating Feldman's future dangerousness.36

In the district court, Feldman argued that the CCA had erred for two reasons. First, he obliquely reasserted that reasonable trial counsel would have managed to procure and present a favorable mental health evaluation.37 In the alternative, he argued that Mr. Oatman still clearly erred by failing to introduce existing evidence of the 1997 diagnosis rendered by Dr. Glass.38

The district court rejected both of Feldman's theories of error under § 2254(d). First, it upheld as reasonable the CCA's conclusion that Strickland was not triggered by Mr. Oatman's failure to seek additional evaluations.39 Second, it concluded that Feldman's novel argument relating to the 1997 diagnosis ignored the "double edged" nature of the diagnosis as well as the fact that Mr. Oatman would have needed to find an expert willing to sponsor the diagnosis to present it to the jury.40

In his petition for a COA, Feldman claims that the district court erred in its analysis relating to Dr. Glass's 1997 diagnosis.41 Perhaps wisely, he does not resuscitate his claim that Mr. Oatman unreasonably failed to find an expert willing to render a new diagnosis.42 Consequently, we address only the former argument in this opinion.

At first blush, it appears difficult to reconcile Mr. Oatman's omission of the 1997 diagnosis with his mitigation strategy, particularly in light of the prosecution's response.43 However, Strickland requires a reviewing court "not simply to give [Mr. Oatman] the benefit of the doubt... but to affirmatively entertain the range of possible reasons [he] may have had for proceeding as [he] did."44 In this case, there are at least two plausible grounds for Mr. Oatman's omission.45 First, Mr. Oatman might have reasonably feared that introducing evidence of the 1997 diagnosis — which, as Feldman acknowledges, would have required the assistance of an expert sponsor46 — posed too great a risk of damaging cross examination by the prosecution.47 More importantly — and as Feldman conceded in habeas proceedings before the CCA — putting an expert on the stand to explain the diagnosis would have opened the door to the prosecution to bring in its own expert on rebuttal.48 As Mr. Oatman's own experts could not make a favorable diagnosis, he would have been foolhardy to ignore the risk that the prosecution could produce an adverse expert.49

In light of the sparse record evidence on the circumstances surrounding Mr. Oatman's omission of the 1997 diagnosis, the CCA was plainly justified in concluding that Feldman failed to overcome Strickland's "strong presumption" that Mr. Oatman's omission "might be considered sound trial strategy."50 Because jurists of reason could not debate the district court's denial of habeas relief under § 2254(d), we deny Feldman's application for a COA on his ineffective assistance claim.

IV.

Feldman also seeks to appeal his claim that the trial court violated his Fourteenth Amendment rights under Beck v. Alabama by refusing to instruct the jury on the lesser-included offense of simple murder.

Beck invalidated an Alabama statute that created a blanket ban prohibiting trial judges in capital murder trials from instructing a jury on the lesser-included offense of felony murder, even if there existed evidence of the lesser crime.51 The Supreme Court reasoned that the statute created a constitutionally impermissible risk that juries would return guilty verdicts not because they had found a defendant guilty of a capital crime, but because they believed a defendant to be guilty of some lesser-included crime and felt that he should be punished rather than set free.52

The Fifth Circuit has held that Beck requires a state trial court to give a lesser-included offense instruction "if the jury could rationally acquit on the capital crime and convict for the noncapital crime."53 Under Texas state law — which the Fifth Circuit has found consistent with Beck54 — the defendant is entitled to a requested lesser-included offense charge only if "the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, and not the greater offense."55

Under the Texas Penal Code, a defendant is guilty of capital murder if he commits more than one murder either "during the same criminal transaction ... or ... pursuant to the same scheme or course of conduct."56 The CCA has held that the latter category of capital murder includes "serial" murders.57 At trial, the prosecution charged Feldman with capital murder under both of the alternative routes available under the Penal Code, and the trial judge refused Feldman's request for a jury instruction on the lesser-included offense of simple murder.

In his direct appeal to the CCA, Feldman argued that Beck obligated the trial judge to instruct the jury on the lesser-include offense of simple murder. In rejecting Feldman's claim, the CCA conceded that a rational jury could have found that the murders did not occur "during the same criminal transaction," reasoning that the evidence showed a geographic and temporal gap between the two killings.58 However, it determined that a rational jury had to conclude that Feldman committed the murders "pursuant to the same scheme or course of conduct" — that is, that his murders were "serial" — noting that Feldman committed the murders "on the same evening with the same gun while out on a single car [sic] trip," and that Feldman himself had testified that he committed both killings in a fit of rage triggered by his initial traffic altercation with Mr. Everett.59 Though Feldman argued that his second murder was "motiveless," the CCA rejected this argument as having no basis in the record.60

In habeas proceedings before the district court, Feldman offered two theories as to why the CCA's adjudication of his Beck claim was unreasonable. First, Feldman made a conclusory assertion that the CCA erred in finding that no rational jury could acquit him of capital murder.61 Second, Feldman argued that because the CCA determined that a rational jury could have acquitted him on one of the two theories of capital murder charged by the prosecution, Beck required the CCA to hold that the trial court erred in not issuing an instruction for simple murder.62

In reviewing the CCA's decision, the district court began by observing that "Beck, strictly speaking, holds only that a state cannot impose a blanket ban on the giving of lesser-included offense instructions in a capital case."63 However, it found that "the Fifth Circuit has consistently applied Beck's holding when the state trial court refuses a lesser-included-offense instruction," and evaluated the CCA's decision under Fifth Circuit precedent.64

The district court rejected Feldman's first theory of error under § 2254(d), agreeing with the CCA that the record contained no evidence upon which a rational jury could have acquitted Feldman of capital murder.65 Proceeding to Feldman's second theory of error, that Beck mandates a simple murder instruction whenever a rational jury could acquit a defendant on one theory of capital murder, the district court held that Feldman's novel interpretation of Beck was clearly precluded by § 2254(d)(1).66

Feldman argues that reasonable jurists could dispute the district court's decision on both counts. We disagree. Even assuming that the district court was correct to evaluate Feldman's Beck claim under Fifth Circuit precedent,67 it was plainly justified in rejecting both of Feldman's theories under § 2254(d).68

As the CCA noted, Feldman's first theory of error — which amounts to little more than a conclusory assertion that a rational juror could have acquitted him of capital murder69 — is controverted by his testimony that he killed both Messrs. Everett and Velasquez in a fit of rage ignited by the initial traffic altercation with Mr. Everett. It is also controverted by Feldman's brief to this court, in which he concedes that he killed Mr. Velasquez because "[his] anger was unexpectedly rekindled by the sign of an Exxon truck driver refilling the fuel supply at a roadside gas station."70 Feldman's brief points to no evidence which would tend to show that the CCA's determination was incorrect, let alone unreasonable.71 Nor can we find any such evidence in the record.

Feldman's second theory of error relies on a tortured reading of Beck plainly precluded by § 2254(d)(1). Feldman claims that Beck mandates a lesser-included offense instruction whenever a rational juror could acquit the defendant on any one theory of capital murder. This reading of Beck ignores the case's underlying logic: where, as in this case, a defendant has been charged with capital murder under two separate theories, the Beck dilemma — that a jury might be coerced into returning an erroneous guilty verdict on a capital crime merely to avoid setting the defendant free — arises only if a rational jury could acquit the defendant on both theories.72 Feldman's incoherent reading of Beck cannot possibly be considered "clearly established Federal law" within the meaning of 2254(d)(1).73

V.

Finally, Feldman seeks to appeal the claim that his trial violated the Sixth and Fourteenth Amendment, arguing that the trial judge wrongfully excluded Ms. Diane Dreifke from the jury merely on the basis of her conscientious scruples against the death penalty.

In Witherspoon v. State of Illinois, the Supreme Court struck down a state statute that permitted the for-cause exclusion from a capital case of any juror who voiced "conscientious scruples against capital punishment."74 The Court reasoned that the statute impermissibly tilted juries in favor of capital punishment in violation of a defendant's Sixth and Fourteenth Amendment right to an impartial jury.75 However, in Wainwright v. Witt, the Supreme Court clarified that a juror could be excluded whenever his views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."76

Wainwright also emphasized that an exclusion order is not improper merely because the paper record fails to demonstrate a potential juror's bias with "unmistakable clarity."77 Because "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear," reviewing courts should generally defer to the determination of the trial judge, who sees and hears the juror.78 "[W]here ... there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion."79

To assess the appealability of Feldman's claim, we briefly review the evidence in the record. At the beginning of the voir dire, Ms. Dreifke repeatedly stated that she supported the death penalty and could impose it in accordance with Texas law:

Q: "I want to know, is there anything about [Feldman], the way he looks, anything that you may think that would prevent you from assessing the death penalty if we prove our case to you?" A: "No." Q: "Because now is the time to tell us." A: "No." Q: "Some people say, yeah, I just — I can't do it. Do you feel like you're the type of individual that could be involved with a situation, knowing what our position is, and participating and being responsible for ultimately the execution of another human being?" A: "Yes, if that's what is proven to me."80

However, under subsequent questioning by the prosecution, Ms. Dreifke admitted that she had not given the death penalty much thought and began expressing doubts:

Q: "Have you given [the death penalty] much thought prior to filling out the questionnaire?"

A: "Not prior to filling out the questionnaire."

Q: What about since?" A: "Since then, yes ... I've thought about how it would affect me afterwards... [h]ow it would, maybe psychologically and scare me, things like that, would I have recurring dreams, things like that."81

Moreover, once the prosecutor graphically described the execution process to Ms. Dreifke, she repeatedly stated that she did not think she could participate in a course of action that would result in the execution of another human being:

Q: "... do you think you're the type of individual that could answer the questions, knowing that will result in the execution of another man?

A: "I don't think I could. I don't think I could." * * *

Q: "So again, you're telling me that you couldn't participate in it?"

A: "I don't think I could do it." * * *

Q: "Just so the record is clear, Ms. Dreifke, you understand if you took the oath to follow the law, if the evidence is there, basically, if we convinced you, we have the evidence, that would be something you would have to do, and it would just go against your conscience, basically; right?

A: "Right."

Q: "A burglary case or some other case where the death penalty is not an issue, it sounds like you would be a fine juror, but it's just this issue of being required, if the evidence is there, to basically —

A: "Sentence someone to ending their life, yes."82

After the prosecution had finished questioning Ms. Dreifke, the trial judge gave the defense an opportunity to rehabilitate her. It declined.83

On direct appeal to the CCA, Feldman argued that the trial judge's exclusion of Ms. Dreifke from the jury violated Witherspoon and its progeny. The CCA rejected Feldman's claim, observing that "[b]ecause Dreifke vacillated on her ability to follow the law and ultimately told the court that she was not sure whether she could perform the duty entrusted her, the trial judge was within his discretion in determining that her views on capital punishment would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath."84

In his brief to the district court, Feldman conceded that Ms. Dreifke found the prospect of imposing a death sentence emotionally difficult, but argued that her voir dire testimony — viewed as a whole — clearly indicates that she was willing and able to serve as a capital juror.85 After carefully examining the voir dire transcript, the district court upheld the CCA's determination as reasonable and denied habeas relief under § 2254(d).86

As the trial court's decision to exclude Ms. Dreifke was made after a thorough and fair voir dire process that included lengthy questioning by the prosecution and an opportunity for the defense to rehabilitate, the CCA would have been entitled to defer to that decision even if the printed record was ambiguous;87 as Feldman acknowledges in his brief, vacillating answers are a sufficient ground for exclusion.88 This, however, is a case where the printed record clearly supports a finding that Ms. Dreifke's views would have substantially impaired her ability to impose a capital sentence. Viewed chronologically, the record paints the picture of a juror who not only vacillated about her ability to impose a death sentence, but of one who — on gaining full information about the execution process — concluded that she was likely incapable of doing so.89

The CCA's rejection of Feldman's Witherspoon claim was thus plainly reasonable, and no jurist of reason could debate the district court's denial of habeas relief under § 2254(d).90

VI.

The motion for a certificate of appealability is DENIED.

Footnotes

1. Petitioner-Appellant's Brief in Support of Application for Certificate of Appealability at 3, Feldman v. Thaler, No. 11-70013 (5th Cir. Aug. 29, 2011). The Texas Court of Criminal Appeals aptly summarized the relevant facts. See Feldman v. State, 71 S.W.3d 738, 751-53 (Tex.Crim.App.2002).

2. See Feldman v. State, 71 S.W.3d 738 (Tex. Crim.App.2002).

3. See Court's Findings of Fact and Conclusions of Law, Ex parte Feldman, 2007 WL 1139450, No. WR-66691-01 (Tex.Crim.App. Dec. 28, 2006).

4. See Ex parte Feldman, No. WR-66691-01, 2007 WL 1139450, at *1 (Tex.Crim.App. Apr. 18, 2007).

5. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at *13 (N.D.Tex.2011).

6. Petitioner-Appellant's Brief, supra note 1, at 1.

7. Id. at 2.

8. Id. at 1-2.

9. See 28 U.S.C. § 2253(c)(1)(A).

10. Id. § 2253(c)(2).

11. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

12. Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (internal quotation marks and alterations omitted).

13. See 28 U.S.C. § 2254(d).

14. Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010).

15. See 28 U.S.C. § 2254(e)(1).

16. See Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005) ("In determining whether the district court's denial of [petitioner's] petition was debatable, we must keep in mind the deferential standard of review that the AEDPA requires a district court to apply when considering a petition for habeas relief.").

17. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011).

18. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

19. Id. at 688, 104 S.Ct. 2052.

20. Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

21. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.").

22. Court's Findings of Fact and Conclusions of Law, supra note 3, at 16-17.

23. Id. at 21.

24. Id. at 21-22.

25. Mr. Oatman argued that because Feldman "had been a successful, contributing member of society from 1979 to 1993 ... his mental-health problems were the only way to explain his subsequent descent into lawlessness." See Court's Findings of Fact and Conclusions of Law, supra note 3, at 25. Mr. Oatman also claimed that Feldman "had inherited his mother's mental-health problems," reasoning that otherwise "there was no rational explanation for his behavior." Id.

26. Mr. Oatman's evidence included: (1) testimony from Feldman's mother that Feldman "was a runaway child and that he suffered emotional and physical abuse from a hot-tempered father," id. at 22, (2) a 1993 memorandum written by Feldman to his attorney, in which Feldman "exhibits what can only be described as extremely paranoid thought patterns," id. at 23, and (3) a December 2007 letter from Feldman to his mother in which he "states that he feels like he is becoming a mental case, that noises bother him, that he has insomnia, and that he cannot concentrate or read well anymore," that "he is slowly drowning, unrealistically euphoric one moment and then narcissistically depressed the next," that "he is continually being set up," that "people do not respect the things he says and laugh at him behind his back," that "the world seems to be driving him insane just for fun and enjoyment," and that "he is slowly losing the ability to take care of himself," id. at 24-25.

27. See Reporter's Record, vol. 41, at 74, Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. Jan. 12, 2000).

28. See id. at 74-76.

29. The evidence consists of unsigned notes apparently written by Dr. Glass, dated December 11, 1997, diagnosing Feldman with bipolar II disorder. See Application for Writ of Habeas Corpus, Ex parte Feldman, No. WR-66691-01, 2007 WL 1139450, Exhibit D, Progress Notes of Dr. Jeffrey Glass (Tex.Crim. App. May 29, 2001).

30. See id., Exhibit E, Affidavit of Cecile Borschow.

31. See id., Exhibit B, Affidavit of Dr. Paula Lundberg-Love, Ph.D. In her affidavit, Dr. Lundberg-Love states that she believes Feldman suffers from Bipolar I disorder and indicates that she bases her diagnosis in part on her review of Dr. Glass's records. See id.

32. See State's Original Answer to Application for Writ of Habeas Corpus, Ex parte Feldman, No. WR-66691-01, 2007 WL 1139450, Exhibit A, Affidavit of Jim Oatman (Tex.Crim.App. Nov. 9, 2001).

33. See id. at 43-44, 48.

34. See Court's Findings of Fact and Conclusions of Law, supra note 3, at 19, 26-27. The CCA also determined that Feldman could not show prejudice in light of the overwhelming evidence of his guilt and prior bad acts. See id. at 37-46. We do not address the correctness of the CCA's prejudice determination in this opinion, as the district court upheld the CCA's opinion on the threshold ground that its deficiency determination was reasonable. See Feldman v. Thaler, 2011 WL 1666937, No. 3:07-CV-1284-P, at *19-20 (N.D.Tex.2011).

35. See Court's Findings of Fact and Conclusions of Law, supra note 3, at 20 (quoting Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000)).

36. See id. at 33.

37. See Brief in Support of Petition for Writ of Habeas Corpus, Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937 (N.D.Tex. Apr. 17, 2008), at 19.

38. See id. at 22-23.

39. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at *11 (N.D.Tex.2011).

40. See id.

41. See Petitioner-Appellant's Brief, supra note 1, at 34-36.

42. See id. at 6-7, 32-40.

43. The district court suggested that Mr. Oatman could have omitted the 1997 diagnosis as "double edged" evidence that tended to demonstrate Feldman's future dangerousness, but Mr. Oatman's mitigation evidence already risked the boomerang effect to which the district court alludes. See supra nn. 25-26. Indeed, as then-Judge McConnell of the Tenth Circuit suggested in a 2008 opinion, while presenting generalized evidence of a defendant's mental disorder risks merely underlining his future dangerousness, introducing evidence of a specific diagnosis — particularly of a treatable condition like bipolar disorder — can avoid this danger by demonstrating that defendant's disorder is remediable with appropriate medication. See Wilson v. Sirmons, 536 F.3d 1064, 1093-94 (10th Cir.2008).

44. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011) (internal quotation marks and citations omitted).

45. It bears mentioning that Mr. Oatman was a veteran criminal defense lawyer at the time he represented Feldman, having served as lead counsel in hundreds of jury trials. See State's Original Answer to Application for Writ of Habeas Corpus, supra note 32, Exhibit A, Affidavit of Jim Oatman. Before Mr. Oatman became a defense attorney, he spent nine years as a Dallas County Assistant District Attorney. Id. Mr. Oatman has prosecuted and defended a number of death penalty cases. Id.

46. See Petitioner-Appellant's Brief, supra note 1, at 36, 39; see also Richard G. Dudley, Jr. & Pamela Blume Leonard, Getting It Right: Life History Investigation as the Foundation for a Reliable Mental Health Assessment, 36 Hofstra L.Rev. 963, 984 ("Rendering a diagnosis ... is virtually never a sufficient response to the legal question(s) presented to a mental health expert who testifies [in a death penalty case]. Although supplemental experts might only be asked to render or confirm a specific diagnosis, at least one of the mental health experts will need to then link that diagnosis to the legal questions posed."); John M. Fabian, Death Penalty Mitigation and the Role of the Forensic Psychologist, 27 Law & Psychol. Rev. 73, 80, 87 (2003) (emphasizing that death penalty counsel seeking to use a defendant's mental disorder as mitigating evidence must have an expert to define and explain the diagnosis to the jury and associate it with the defendant's crime).

47. For example, cross-examination could have revealed the potentially harmful fact that Feldman refused medication after his 1997 diagnosis. See Court's Findings of Fact and Conclusions of Law, supra note 3, at 16-17; cf. Smith v. Quarterman, 471 F.3d 565, 576 (5th Cir.2006) (holding that trial counsel reasonably omitted mitigating expert testimony, as the expert "would have been subject to damaging cross examination"); Paul J. Bruno, The Mitigation Specialist, Champion Magazine, June 2010, at 26, available at http://www.nacdl.org/Champion.aspx?id=14626 (noting that putting a mitigation specialist on the stand will generally "open up his or her entire work product to discovery by the prosecution" and may expose the expert to damaging cross-examination.) In this regard, we note that Feldman never claims Dr. Glass would have been available to testify to his 1997 diagnosis at trial. See Petitioner-Appellant's Brief, supra note 1, at 35-36, 39. Indeed, Feldman's brief appears to concede that trial counsel would have had to obtain a different expert to sponsor the diagnosis. See id.

48. See Application for Writ of Habeas Corpus, supra note 29, at 52; Soria v. State, 933 S.W.2d 46, 54 (Tex.Crim.App.1996) ("By introducing psychiatric testimony obtained by the defense from a psychiatric examination of the defendant, the defense constructively puts the defendant on the stand and therefore the defendant is subject to psychiatric examination by the State in the same manner." (quoting Battie v. Estelle, 655 F.2d 692, 702 n. 22 (5th Cir.1981))); Smith v. Quarterman, 471 F.3d 565, 576 (5th Cir.2006) (holding that trial counsel reasonably omitted mitigating expert testimony, as the expert "would have been subject to damaging cross examination," and as it "would have led to rebuttal and more damaging evidence" from the state); see also ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.11.G (rev. ed. Feb. 2003) ("In determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution's presentation of otherwise inadmissible aggravating evidence.").

49. Indeed, on January 16, 2001, shortly after Feldman's habeas counsel procured a Bipolar I diagnosis, a Texas Department of Corrections clinician administering a follow-up psychiatric evaluation concluded Feldman showed no signs of a mental disorder. See State's Original Answer to Application for Writ of Habeas Corpus, supra note 32, Exhibit B, TDC Psychiatric Notes. The clinician noted that "when told that [his habeas counsel's] tests had reportedly shown that he had a bipolar disorder [Feldman] was quite surprised and did not know why he was being called that." Id. After speaking with Feldman about his difficult childhood, his history of substance abuse and mental health issues, and his current life in prison, the clinician concluded: "no chronic symptoms of psychosis or emotional illness noted. Memory intact, no signs of mania and no signs of depression noted, cooperative, pleasant, groomed appropriately, thoughts goal directed. Insight and abilities for reasoning and judgment are all within normal limits ... no diagnosis." Id.

50. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

51. See Beck v. Alabama, 447 U.S. 625, 642-43, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

52. Id.

53. See East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995).

54. See Aguilar v. Dretke, 428 F.3d 526, 531 & n. 2 (5th Cir.2005).

55. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993).

56. See Tex. Penal Code § 19.03(a)(7).

57. See Corwin v. State, 870 S.W.2d 23, 28 (Tex.Crim.App.1993).

58. See Feldman v. State, 71 S.W.3d 738, 753-54 (Tex.Crim.App.2002). The CCA explained that it had previously defined the statutory phrase "same criminal transaction" as "a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events." See id. at 752-53.

59. See id. at 754.

60. See id. at 753-54.
61. See Brief in Support of Petition for Writ of Habeas Corpus, supra note 37, at 9 ("The truth is that the jury might well have had doubts about whether Feldman's conduct was a part of one `scheme or course of conduct' based on a common understanding of the phrase.").

62. Id. at 9-11.

63. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at *4 (N.D.Tex.2011) (quoting Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.1988)) (internal quotation marks omitted).

64. See id. at *4.

65. See id. at *5-6.

66. See id. at *6.

67. Cf. Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) ("[C]ircuit precedent does not constitute clearly established law as determined by the Supreme Court") (internal quotation marks omitted).

68. Indeed, and though we need not decide for purposes of this opinion, the district court should arguably have reviewed Feldman's claim under the more deferential standard of § 2254(e)(1). The CCA made a factual determination that the evidence required a rational juror to conclude that Feldman's murders were "pursuant to the same scheme or course of conduct." Cf. De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir.1987) (holding that the determination of whether a reasonable juror could have found an element of a crime satisfied is "primarily factual"). Arguably, the CCA's determination should have thus enjoyed a presumption of correctness rebuttable only by clear and convincing evidence of error. See 28 U.S.C. § 2254(e)(1).

69. See Brief for Petitioner-Appellant, supra note 1, at 21 ("In the present context, [the] question is simply whether rational jurors could have believed from the uncontroverted evidence of Feldman's conduct that he did not commit `serial' murders or that the murders he committed were not otherwise pursuant to a single `scheme o[r] course of conduct.' The question practically answers itself. Not only were the jurors authorized by the court's charge to do just that; it was also well within rational discretion for them to do so in fact, based on the ordinary or technical meaning of the applicable words and phrases.").

70. See id. at 4.

71. See id. at 21.

72. See Beck v. Alabama, 447 U.S. 625, 642-43, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

73. In fact, Feldman's interpretation of Beck conflicts directly with Texas and Fifth Circuit precedent. See Arevalo v. State, 970 S.W.2d 547, 549 (Tex.Crim.App.1998) (holding that a defendant is not entitled to a lesser-included offense instruction unless "there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater"); East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995) (holding that defendant is only entitled to a lesser-included offense instruction "if the jury could rationally acquit on the capital crime and convict for the noncapital crime").

74. See 391 U.S. 510, 512, 523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

75. See id. at 518, 523, 88 S.Ct. 1770.

76. See 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

77. Id. at 424-26, 105 S.Ct. 844.

78. Id. (internal quotation marks omitted).

79. Uttecht v. Brown, 551 U.S. 1, 20, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007).

80. Reporter's Record, supra note 27, vol. 21, at 114.

81. Id. at 115.

82. Id. at 129-30.

83. Id. at 130.

84. See Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002).

85. Brief in Support of Petition for Writ of Habeas Corpus, supra note 37, at 19.

86. See Feldman v. Thaler, No. 3:07-CV-1284-P, 2011 WL 1666937, at *8-9 (N.D.Tex.2011).

87. See Uttecht v. Brown, 551 U.S. 1, 8-9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007).

88. See Petitioner-Appellant's Brief, supra note 1, at 28-29; see also Gomez v. Quarterman, 529 F.3d 322, 332 (5th Cir.2008) (upholding state court's exclusion of juror who gave inconsistent responses).

89. Cf. United States v. Jackson, 549 F.3d 963, 973 (5th Cir.2008) (upholding federal district court's exclusion of juror, as though juror's voir dire responses were initially inconsistent, she ultimately stated that she would not vote for death).

90. In fact, the Third Circuit has held that the arguably more deferential § 2254(e)(1) standard applies to a trial court's determination of jury bias. See Martini v. Hendricks, 348 F.3d 360, 363 (3d Cir.2003). Indeed, the Supreme Court's pre-§ 2254(e)(1) jurisprudence suggests that § 2254(e)(1) should apply. See Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (holding that a trial judge's findings relating to juror bias "are presumptively correct under 28 U.S.C. § 2254(d)"). But see Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (holding that juror bias is a "mixed [question of] law and fact" and that therefore the federal habeas court must "independently evaluate the voir dire testimony"). However, as we find that jurists of reason could not debate the district court's denial of relief under § 2254(d), we do not determine whether the district court should have applied § 2254(e)(1).

 

 

 
 
 
 
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