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Gabriel
GONZALES
Classification: Murderer
Characteristics:
Robbery
- CRIPS gang member
Number of victims: 1
Date of murder:
July 20, 1994
Date of birth:
March 22,
1974
Victim profile: Louella Hilton,
57(pawn
and gun shop owner)
Method of murder:
Shooting
Location: Bexar County, Texas, USA
Status: Sentenced to death on March 26, 1997
Campaign for Gabriel Gonzalez
Coalition to Abolish the Death
Penalty e.V.
Gabriel Gonzalez
DoB 03/22/1974
Date of crime 07/20/1994
On death row since 03/26/1997
Previous
ongoings
In July 1994 Gabriel, who
at the time was a CRIPS gang member, met up with his girlfriend
Susie at an apartment that was a common place to meet for the gang
members. Four young men that he barely knew- DeAnthony, Shawntee,
Markett and Sherrard- were around as well, speaking about a
robbery that they were planning.
Gabriel concedes vaguely
overhearing their conversation from a back room, but growing up in
the ghetto and being an active gang member, talk like that was
nothing out of the ordinary for him and thus of no big interest to
him.
On the eve of the robbery
all of them were in Lisa McHenrys apartment, drinking alcohol and
smoking cannabis. Gabriel was drinking and smoking Marijuana until
he was so drunk he could hardly walk. Late at night the guys went
to get something to eat and convinced Gabriel to come along. When
they came back to the apartment between 3 and 4 am, Gabriel was
not with them. Susie, his then girlfriend asked about him and was
told Gabriel was passed out in the car. She went out to him, but
was not able to wake him up from his alcohol and marijuana
inducted sleep.
The crime
On the following morning -
20th July 1994- the four young men, DeAnthony, Markett, Sherrard
and Shawntee drove to a pawnshop. According to the State Gabriel
was the driver of the car. Gabriel himself claims he was still
high and drunk asleep in the back of the car and did not notice
when the others, their faces covered with bandanas, set off for
the pawnshop. At that time the owner of the shop, her daughter, an
employee and a customer were inside the pawnshop. The young men
told them to get down on the floor and when Louella Hilton, the
owner of the shop tried to escape to a room in the back of the
shop, one of the men followed her and several times shot at the
closed door behind which L. Hilton was hiding, deadly injuring her.
Meanwhile the other men
stole 29 weapons in the store and the person who had been shooting
emptied the cash register. All of them drove off in the car to
Lisa McHenrys apartment where they shared the money and the
weapons. Some of the weapons were given to other young men who
came by the house and the car they used for the robbery was
disposed of.
What happened next
During the next 3 days all
of them were arrested.
Gabriel did not tell his
version of what happened and his girlfriend Susie was never
questioned as a witness either. Back then Gabriel was deeply
involved in gang activities and the gang code dictated not to
snitch on one another. He feared for the safety of his three
children and their mothers if he made a statement and for that
reason decided to keep silent.
DeAnthony Walker was the
main witness against Gabriel; he was 14 at the time of the robbery,
also a Crips-member, and just previously released from prison from
robbery. When questioned by police and prosecution DeAnthony made
contradicting statements and they differed strongly from what he
testified in court. He pled guilty for capital murder and
testified against the others. In exchange he got an 18 years
sentence- without this deal he would have faced up to 40 years.
Lisa McHenry, another
important witness, strongly contradicted herself, too, in her
statements.
She was given 5 years
probation to lie against Gabriel because she had been arrested
with a gun used in the robbery and could face the death penalty.
She lied to save herself.
The third witness was an
eyewitness. He claims to have seen the driver of the getaway car’s
profile for a few seconds - across a busy 5 lane highway. He was
not able to identify Gabriel until the third try, two weeks after
the robbery, after Gabriel’s picture had already been all over the
media. Gabriel is Latin and he was the only Latin person at the
line-ups, all the other ones were Black.
There is absolutely no
evidence against Gabriel. No fingerprints of his were found in the
pawnshop or on any of the rediscovered weapons that were stolen
during the robbery, nor was any of the stolen money or weapons
found in Gabriel’s possession.
Actual state of affairs
The evidence and the
development of the appeals are showing that there are reasonable
doubts of Gabriel’s guilt. He is in county jail awaiting a new
sentencing at the moment.
In the Court of Criminal
Appeals of Texas
AP-73,775
Ex Parte Gabriel Gonzales,
Applicant
On Application for a Writ of
Habeas Corpus
From Bexar County
Womack, J., delivered the opinion of the
Court, in which Meyers, Price, Johnson, Holcomb, and Cochran JJ.,
joined. Cochran J., filed a concurring opinion. Keller, P.J.,
filed a dissenting opinion. Keasler, J., dissented. Hervey, J.,
did not participate.
This is a post-conviction application for a
writ of habeas corpus filed pursuant to Code of Criminal Procedure
article 11.071. On July 20, 1994, the applicant and four other
members of the "Crips" gang committed robbery at a pawn shop to
get firearms and money. Only the applicant and one other suspect
were armed with guns. While his accomplices were smashing display
cases and stealing guns, the applicant chased one of the
proprietors of the shop into the back of the store and shot her.
Then he returned to the cash register and forced an employee to
open it.
(1) On February
19, 1997, he was convicted of capital murder and sentenced to
death. We affirmed his conviction on direct appeal.
(2)
In his writ application, the applicant presents
six "claims" for relief. After a hearing, the convicting court
made findings of fact and conclusions of law, and it recommended
that relief be denied. As to five of the claims, we agree that
relief should be denied in accordance with the findings and
conclusions of the convicting court. We set this case for
consideration of the applicant's claim that his trial counsel
provided ineffective assistance under the Sixth Amendment by
failing to present, at the punishment phase of his trial,
mitigating evidence of the abuse that the applicant suffered at
the hands of his father, and the effects it had on him.
To show that his trial counsel was ineffective,
the applicant must meet the two-pronged test articulated in
Strickland v. Washington.
(3) First, he
must show that his counsel's performance was deficient.
(4) In order to
satisfy this prong, the applicant must demonstrate that counsel's
performance fell below an objective standard of reasonableness,
considering the facts of the particular case and judged at the
time of counsel's conduct.
(5) Second, the
applicant must show that counsel's performance prejudiced his
defense at trial.
(6) In order to
satisfy this prong, an applicant must show there was a reasonable
probability that, absent the errors, the jury would have concluded
that the balance of the aggravating and mitigating circumstances
did not warrant death.
(7) Texas'
capital sentencing scheme does not involve the direct balancing of
aggravating and mitigating circumstances. It asks the jury to
answer a mitigation issue.
(8) We have
adapted the Supreme Court's prejudice test to require a showing
that there is a reasonable probability that, absent the errors,
the jury would have answered the mitigation issue
differently.
(9)
"A reasonable probability is a probability sufficient to undermine
confidence in the outcome."
(10)
Counsel's
Performance
The applicant alleges, and the convicting court
found as a matter of fact, that his father physically and sexually
abused him severely and frequently when he was a small child. As a
result, he suffers from a post-traumatic stress disorder.
(11) None of
these facts were put in evidence at his trial.
(12)
The applicant's father also abused the
applicant's older sister, who eventually reported it to her mother.
The applicant's mother had thought that her husband was sexually
abnormal, and that he used excessive force with the children. When
her daughter reported being sexually abused, she immediately
notified the police and obtained a divorce.
(13)
The defense attorney talked to the mother once
before trial, and to the sister once during trial.
(14)
He did not ask them or the applicant about any specific topics
such as abuse in the applicant's past.
(15)
His interviews with the mother and sister started "globally in
nature," but he "never even dreamed" of the issue of abuse, and he
"certainly didn't really inquire about it."
(16)
He did ask the applicant about how he grew up."I just start from
the beginning, you know, tell me all about you. Where were you
born and so forth, leading them up to -- to this time."
(17)
The applicant did not volunteer any information about abuse.
(18)
The sister testified at the habeas hearing that she did not
volunteer information about the abuse because she is ashamed of
having been abused and it is not very easy to talk about.
(19)
The applicant's counsel had tried "quite a few
capital cases," and his experience was that evidence of a young
defendant's background would have been very helpful in trying to
get a life sentence instead of a death sentence. In retrospect, he
said, "I really should have pursued this or at least inquired into
it, but I did not."
(20)
His failure to do so was not a strategic or tactical decision, and
he believes it was a mistake on his part.
(21)
The sister did testify at the punishment stage
of the trial that the applicant was bullied in school, that he had
trouble learning, and that he had been diagnosed as being "borderline
retarded" and suffering from epilepsy (as did his father) and
attention-deficit disorder.
(22)
The applicant's mother was not called to testify.
(23)
After the trial and before the habeas hearing,
a board-certified psychiatrist interviewed the applicant and
examined his school records and jail records. His diagnoses were
that the applicant suffers from chronic post-traumatic stress
disorder, attention-deficit disorder with hyperactivity, mixed
personality disorder with explosive and antisocial traits,
hereditary epilepsy, dyslexia and other learning disorders.
(24)
The psychiatrist's version of the applicant's history says:
"From that point [of his parents' divorce] on,
Gabriel had extreme homophobic reactions, especially any
insinuation that he was "Gay" or if he was called "Gay," he
reacted in a very agitated manner. It was this trigger that caused
him to exhibit run-a-way [sic] behavior and exhibit
"macho" behavior and run the streets. He lived twenty-four hours a
day in terror that he would be labeled "gay."
(25)
The psychiatrist's "psychodynamic formulation"
included his opinion that:
This is an individual who at an early age had [neurological
and learning disorders]. He also had stigmata of Post Traumatic
Stress Disorder as a result of extensive sexual abuse and
molestation by his genetic father. He apparently was threatened
with homicidal intention, by the perpetrator, if he revealed to
his mother that this behavior was going on.
This individual also has a Borderline Normal
Intelligence Quotient which would lead to poor processing of
information and probably lower level of control of behaviors which
included antisocial behaviors and impulsive behaviors at an early
age. There was extensive drug abuse at an early age which extended
into adult age with participation in buying and selling drugs.
This is an individual who has received many
educational services, marginal psychiatric services as a child,
and evolved into a very impulsive, angry adult whose trust was
destroyed because of sexual molestation as a child. He, therefore,
was not able to evolve deep interpersonal relationships that are
so important for someone to learn to control and monitor his own
behavior so that he was able to function in a job as a normal
productive citizen.
This individual would require extensive
psychiatric treatment for Post Traumatic Stress Disorder and
Chemical Dependence in order to be rehabilitated in to [sic]
a law-abiding, productive member of society."
(26)
Because trial counsel was not aware, at the
time of trial, that the applicant suffered an abusive childhood,
the issue is not whether he was ineffective for failing to present
evidence of abuse, but rather whether he failed to conduct a
reasonable investigation to uncover mitigating evidence.
(27)
Or, more directly, was the applicant's trial counsel ineffective
for failing to ask the applicant --or his mother or sister -- if
he was abused as a child?
The trial court accepted as true the
applicant's account of the abuse, that the applicant's mother and
sister were aware of the abuse, and that trial counsel did not ask
specific questions about it.
The trial court noted that trial counsel was of
the opinion that he made a mistake, and not a strategic choice, in
failing to ask the applicant and his family about abuse. The trial
court was not persuaded, however, that defense counsel conducted
an unreasonable investigation because "this information was all
known to Applicant, who was legally competent to stand trial, and
he made no mention of it to his trial counsel."
(28)
Defense counsel's failure to investigate the
basis of his client's mitigation defense can amount to ineffective
assistance of counsel.
(29)
In determining whether counsel conducted a reasonable
investigation, an appellate court's initial inquiry is whether a
reasonable investigation should have uncovered the mitigating
evidence.
(30)
The Supreme Court held in 1989 that the
application of Texas' capital sentencing statute was in violation
of the Cruel and Unusual Punishments Clause because "the jury was
not provided with a vehicle for expressing its reasoned moral
response to … evidence [of a capital defendant's mental
retardation] in rendering its sentencing decision."
(31)
Thereafter, many defendants who had been sentenced to death
without such a "vehicle" raised such claims. Many of the claims
failed because the mitigating evidence could have been given
effect under the statute, or because there was no evidence of a
nexus between the evidence and the commission of the offense.
(32)
In other cases, we found a violation of the
Eighth Amendment. These included a case in which a defendant
presented evidence of sociopathic personality brought on by
childhood abuse,
(33)
and a case in which there was evidence of a defendant's low IQ,
poverty and parental mistreatment.
(34)
In 1991, the statute was amended to comprise a
much broader range of mitigating evidence, namely, "all of the
evidence, including the circumstances of the offense, the
defendant's character and background, and the personal moral
culpability of the defendant."
(35)
These developments in constitutional and
statutory law have made it necessary to consider mitigating
evidence in preparation for the trial of a capital case. Such
evidence could include the circumstances of the defendant's
childhood and his physical and mental health. We think that, at
the time of the applicant's trial, an objective standard of
reasonable performance for defense counsel in a capital case would
have required counsel to inquire whether the defendant had been
abused as a child. Counsel's performance fell below this standard.
Prejudice
Having established that the performance of the
applicants trial counsel fell below reasonable standards, the
applicant also must demonstrate that his counsel's performance
prejudiced his defense, in order to establish a Sixth Amendment
violation.
(36) Under
Strickland, an applicant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.
(37) A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.
(38) In cases
such as the one at hand, where there is no lower court decision
with regard to prejudice, we will ourselves evaluate the evidence
in aggravation and the available mitigating evidence, in order to
determine how a jury might reasonably answer the mitigation
special issue.
(39) In doing so,
we consider the totality of the evidence, "both that adduced at
trial, and the evidence adduced in the habeas proceeding[s]."
(40)
The aggravating evidence presented by the State
at the original punishment hearing can be divided into three
general categories. The first category was a recitation of the
applicant's prior offenses, including a 1991 conviction for
criminal trespass, convictions in 1993 for burglary of a vehicle
and unlawful carrying of a weapon, an arrest in 1993 for
possession of cocaine and possession of marijuana, and his
apparent involvement in a 1993 pawn shop robbery with similar
characteristics to the robbery in this case. The State also proved
that the applicant had violated the terms of his probation by
absconding from a court-ordered drug treatment facility. The
second category was evidence of the applicant's various
disciplinary infractions while residing in Bexar County detention
facilities. Finally, the third category of aggravating evidence
involved witnesses called to testify to the existence and nature
of gang activity in Texas prisons. Through these witnesses'
testimony, the State argued that the applicant's affiliation with
the Crips would allow him to continue committing criminal and
potentially violent acts even while incarcerated. The State
bolstered this point by showing the jury a letter that the
applicant had written from his jail cell to a fellow Crip, in
which the applicant offers to murder rivals on behalf of the
letter's recipient once he gets to prison. In total, the State
called nineteen witnesses during its punishment case-in-chief.
In his own punishment case-in-chief, the
applicant called one witness: his sister, Demeris Gonzalez.
Gonzalez testified that, in school, the applicant was always "a
slow learner" who was often placed in special education classes.
She said that he was often bullied because he was a small child,
and that he was always more of a follower than a leader. She said
that he was diagnosed with epilepsy, attention deficit disorder,
and clinical depression. She said that their family situation was
difficult because the family moved several times, and because of
their parents' marital problems. She testified that both she and
the applicant dropped out of high school before graduating, in his
case because he had difficulties at school and because he was
tired of being bullied. She said their parents divorced after
their father had started to become physically abusive towards
their mother, and that the applicant attempted to live with his
father but that his father rejected him. Gonzalez also testified
that the applicant became involved with gangs at the age of
eighteen, after being initiated simultaneously with their younger
brother. She said that the applicant often expressed a desire to
leave the gang, beginning about three months after he first joined
when he realized the things the gang was doing, but that he was
too scared to do so.
In argument, the State spoke of the applicant's
prior offenses and stressed the likelihood that the applicant
would continue his criminal gang activity while in prison. The
State also suggested the applicant lacked remorse, as shown by the
statement he reportedly made immediately after the crime at hand:
"I smoked that white bitch." Finally, the State noted that the
applicant's mitigation evidence consisted only of his sister's
testimony, who understandably would be quite sympathetic to him.
The applicant's argument reiterated his
sister's testimony, and attacked a few points made by the State's
witnesses. The applicant also pointed out that two of his
accomplices, who testified against him at trial, themselves
received life sentences for participating in the same criminal
transaction for which he had been convicted. Additionally, the
applicant recalled firearm expert testimony from the guilt-innocence
phase of trial that called into question whether the applicant
actually could have shot the victim in this case.
The evidence and arguments at the punishment
hearing would have been significantly different with the
mitigating evidence adduced at the applicant's habeas hearing. The
habeas court accepted as true that the applicant's father forced
him to perform oral sex on him weekly beginning when the applicant
was less than six years old, and that his father had anal
intercourse with the applicant weekly from the time he was seven
years old. The applicant's father was also physically abusive
towards the applicant if he resisted, and would threaten to kill
the applicant, as well as the applicant's mother, if the applicant
ever told anyone about the abuse. The applicant's father also
sexually molested the applicant's sister numerous times during her
childhood. It is not clear from the record when the abuse ended,
but the applicant lived with his father until his parents divorced
in 1988, when the applicant was fourteen years old.
The habeas court accepted as true the
conclusions of Dr. Raymond D. Potterf, a board-certified
psychiatrist who examined the applicant and diagnosed him as
suffering from Post-Traumatic Stress Disorder due to the repeated
physical and sexual abuse he suffered. Dr. Potterf also concluded
that the applicant had a "Borderline Normal Intelligence Quotient
which would lead to poor processing of information and probably
lower level of control of behaviors which included antisocial
behaviors and impulsive behaviors at an early age."
(41) The
habeas court accepted Dr. Potterf's conclusion that, if given
extensive psychiatric treatment for Post-Traumatic Stress Disorder
and Chemical Dependence, the applicant could perhaps become a
productive, law abiding member of society.
(42)
None of this evidence was presented during the applicant's trial.
We believe
the mitigating evidence presented at the habeas hearing is
substantially greater and more compelling than that actually
presented by the applicant at his trial. We cannot say with
confidence that the facts of the capital murder and the
aggravating evidence originally presented by the State would
clearly outweigh the totality of the applicant's mitigating
evidence if a jury had the opportunity to evaluate it again. In
short, we conclude that the applicant's available mitigating
evidence, taken as a whole, "might well have influenced the jury's
appraisal" of the applicant's moral culpability.
(43)
Therefore, there is at least a reasonable probability that, had
this mitigating evidence been available at the applicant's
original punishment hearing, a different result would have
occurred, such that it undermines our confidence in the outcome.
Conclusion
The
application for relief from the punishment portion of the judgment
is granted. The applicant is remanded to the trial court for a new
punishment hearing or other proceedings consistent with this
opinion.
Delivered
October 18, 2006.
Publish.
*****
1. See Gonzales v. State, No. 72,804 (Tex. Cr. App.
September 16, 1998) (not designated for publication), at 3-4.
8. "Whether, taking into
consideration all of the evidence, including the circumstances of
the offense, the defendant's character and background, and the
personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death sentence be
imposed." Tex. Code Crim. Proc. art. 37.071, §
2(e)(1).
9. Where a defendant
challenges his death sentence on the ground of ineffective
assistance of counsel at the punishment phase, the Supreme Court's
test for prejudice is whether there is a reasonable probability
that, absent the errors, the jury would have concluded that the
balance of the aggravating and mitigating circumstances did not
warrant death. See Strickland, 466 U.S., at 695. We have
adjusted this test to accommodate the Texas capital sentencing
scheme, which does not involve the direct balancing of aggravating
and mitigating circumstances. See Ex parte Davis, 866 S.W.2d
234, 239 (Tex. Cr. App. 1993).
27. "Counsel has a duty to
make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Strickland,
466 U.S., at 691.
29. See Williams v.
Taylor, 529 U.S. 362, 395-97 (2000) (reaffirming state trial
court's decision to grant new sentencing trial on ground that
counsel provided ineffective assistance by failing to uncover
certain mitigating evidence).
30. See Baxter v.
Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995).
32. See, e.g.,
Richardson v. State, 879 S.W.2d 874 (Tex. Cr. App. 1993) (mother
in and out of penal institutions, never knew father, raised in
poverty with little supervision, sometimes went hungry, sometimes
stole food, went to state institutions for children, illiterate,
stuttered, slow learner); Chambers v. State, 866 S.W.2d 9
(Tex. Cr. App. 1993) (father never home, father blew marihuana
smoke in face, violence toward women at home, mother remarried,
dropped out of school, attempted suicide, denied assistance by
MHMR, almost froze, never been convicted of felony); Elliott
v. State, 858 S.W.2d 478 (Tex. Cr. App. 1993) (dropped out of
school, raised by single parent in housing project, behaved well
in jail, had religious conversion); Zimmerman v. State,
860 S.W.2d 89 (Tex. Cr. App. 1993) (twice abandoned as child, some
child abuse, good to mom, metal plate in skull, low-average IQ,
paranoid personality); Gunter v. State, 858 S.W.2d 430 (Tex.
Cr. App. 1993) (age 20, abandoned by mother, adopted by strict
parents, emotional and behavioral problems, hearing impairment,
learning disorder); Satterwhite v. State, 858 S.W.2d 412
(Tex. Cr. App. 1993) (inadequate parenting, father absent, mother
alcoholic, poverty, IQ of 74); Ex parte Kunkle, 852 S.W.2d
499 (Tex. Cr. App. 1993) (youth, use of drugs and alcohol at time
of crime, depressed parents, and expulsion from home); Muniz
v. State, 851 S.W.2d 238 (Tex. Cr. App. 1993) (raised in
poverty by single parent, religious, generous and loving, good son
and brother, involved in church activities, and had developed
artistic abilities); Johnson v. State, 853 S.W.2d 527 (Tex.
Cr. App. 1992) (absence of violent behavior, record of hard work,
an impeachment of State's expert witness of future dangerousness);
Ex parte Baldree, 810 S.W.2d 213 (Tex. Cr. App. 1991);
Black v. State, 816 S.W.2d 350 (Tex. Cr. App. 1991),(good
employee, boy scout leader, good child, helpful adult, veteran);
Ex parte Bower, 823 S.W.2d 284 (Tex. Cr. App. 1991) (good
and non-violent character, good deeds, no criminal record);
Boyd v. State, 811 S.W.2d 105 (Tex. Cr. App. 1991) (good work
record, weeping when arrested, polite and helpful, respectful,
helped his sister, considerate to girlfriend and child, had a
stepfather, took care of his mom); Ex parte Ellis, 810
S.W.2d 208 (Tex. Cr. App. 1991) (drug problem, suicide attempt,
lack of education, close family ties); Lackey v. State,
816 S.W.2d 392 (Tex. Cr. App. 1991) (low IQ, troubled childhood,
age 23, voluntary intoxication, and history of periodic drinking
with blackouts); Richardson v. State, 886 S.W.2d 769 (Tex.
Cr. App. 1991) (voluntary service and kindness to others, artistic
and poetic talent, strict discipline by father, difficulty in
learning to read, racial strife in childhood, religious devotion);
Lewis v. State, 815 S.W.2d 560 (Tex. Cr. App. 1991) (unhappy
childhood); Boggess v. State, 855 S.W.2d 645 (Tex. Cr.
App. 1991) (vision problems in childhood).
33. Richard v. State,
842 S.W.2d 279 (Tex. Cr. App. 1992)
