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Billy John
GALLOWAY
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
September 8,
1998
Date of birth:
March 22,
1969
Victim profile: David Lawrence Logie
(male, 37)
Method of murder:
Beating with a hammer and a tree limb
Location: Hunt County, Texas, USA
Status: Executed
by lethal injection in Texas on May 13,
2010
Summary:
In 1998 Galloway and his girlfriend, Deannee Bayless, along with
Kevin Scott Varga and his 17 year old girlfriend, Venus Anderson,
all of whom were on probation or parole in South Dakota, gathered
up their belongings and left South Dakota, intending to travel to
Mexico. Along the way, they stopped in Wichita, Kansas, where
Varga beat a man to death with a pole, then robbed him.
They later arrived in Greenville, Texas and
again decided to "roll" someone. They met David Logie in a motel
lounge and convinced him to go eat with them. Along the way,
Bayless pulled over in a deserted area, ostensibly so that she and
Logie could have sex on the hood. Logie exited the car with her.
Varga and Galloway then appeared and began attacking Logie.
Galloway struck him with his fists and knocked him down. He
pleaded for his life for several minutes while Galloway beat him.
Varga then handed Galloway an object, and the beating continued
until Logie was dead. The group took Logie's wallet and credit
cards and dragged his body into the woods. Police found a ball
peen hammer and a tree limb near the body.
Accomplice Anderson was the State's star
witness at trial. Accomplice Galloway was convicted of capital
murder and sentenced to death. He was executed one day before
Galloway. Accomplice Bayless was convicted of murder and sentenced
to 40 years in prison, erligible for parole in 2018. Accomplice
Anderson received limited immunity in exchange for her testimony
against the others. She served seven years in prison.
Citations:
Galloway v. State, Not Reported in S.W.3d, 2003 WL 1712559
(Tex.Crim.App. 2003). (Direct Appeal) Galloway v. Thaler, 344 Fed.Appx. 64 (5th Cir. 2009).
(Habeas)
Final/Special Meal:
Two BLTs; 1 bacon cheeseburger; French fries and ketchup;
chocolate cake; 2 servings of milk; and 2 Mountain Dews.
Last Words:
"If I can go back and change the past, I would. There's nothing I
can do. I'm sorry. I love you, Adonya. That's it."
ClarkProsecutor.org
Name
TDCJ Number
Date of Birth
Galloway, Billy John
999349
03/22/1969
Date Received
Age (when
Received)
Education Level
03/27/2000
31
6
Date of Offense
Age (at the Offense)
County
09/08/1998
29
Hunt
Race
Gender
Hair Color
White
Male
Brown
Height
Weight
Eye Color
5'
11"
175
Blue
Native County
Native State
Prior
Occupation
Onondaga
New
York
Laborer
Prior Prison
Record
South
Dakota Department of Corrections #26628, 12/13/90, 8 year split
sentence (4 years to serve, 4 years suspended) for 1 count of
Grand Theft; paroled on 2/12/ 93; 4/14/93 returned as a parole
violator; paroled 1995; #32021 5 year sentence for 1 count of
Attempted Robbery First Degree 10/16/96; paroled 6/6/98
Summary of
incident
On
09/08/98 in Greenville, Galloway and three co-defendants met a
40 year old white male at his motel room.
They left the motel in
the victim's rented vehicle and traveled 3 blocks from the motel
and turned into a parking lot.
As the victim left the vehicle
Galloway hit him several times with a hammer and one of the co-defendants
hit him several times with a log.
Two other co-defendants moved
the body behind a building and took his wallet. All the
assailants fled in the victim's rented vehicle.
They were
arrested after a routine traffic stop in San Antonio.
Co-defendants
Bayless, Deannee
Ann
Anderson, Venue
Joy
Varga, Kevin
Scott
Race and Gender
of Victim
White
male
Texas
Department of Criminal Justice
Billy John Galloway
Date of Birth: 03/22/1969
DR#: 999349
Date Received: 03/27/2000
Education: 6 years
Occupation: Laborer
Date of Offense: 09/08/1998
County of Offense: Hunt
Native County: Onondaga, New York
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Blue
Height: 5' 11"
Weight: 175
Prior Prison Record: South Dakota Department of
Corrections #26628, 12/13/90, 8 year split sentence (4 years to
serve, 4 years suspended) for 1 count of Grand Theft; paroled on
2/12/ 93; 4/14/93 returned as a parole violator; paroled 1995;
#32021 5 year sentence for 1 count of Attempted Robbery First
Degree 10/16/96; paroled 6/6/98.
Summary of incident: On 09/08/98 in Greenville,
Galloway and three co-defendants met a 40 year old white male at
his motel room. They left the motel in the victim's rented vehicle
and traveled 3 blocks from the motel and turned into a parking lot.
As the victim left the vehicle Galloway hit him several times with
a hammer and one of the co-defendants hit him several times with a
log. Two other co-defendants moved the body behind a building and
took his wallet. All the assailants fled in the victim's rented
vehicle. They were arrested after a routine traffic stop in San
Antonio.
Co-Defendants: Bayless, Deannee Ann, Anderson,
Venue Joy, Varga, Kevin Scott.
Texas Attorney General
Monday, May 6, 2010
Media Advisory: Billy Galloway scheduled for
execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Billy John Galloway, who is
scheduled to be executed after 6 p.m. on Thursday, May 13, 2010.
On March 24, 2000, in Hunt County, Galloway was sentenced to die
for the capital murder of David Lawrence Logie.
FACTS OF THE CRIME
During late summer of 1998, Galloway, his
girlfriend, Deannee Bayless; Galloway’s friend Kevin Varga; and
Varga’s girlfriend, Venus Joy Anderson; were all on probation or
parole with the South Dakota Department of Corrections. On
September 1, 1998, the four gathered their money and belongings,
loaded up Galloway’s car, and left South Dakota.
A few days later, they arrived in Wichita,
Kansas, and checked into a hotel. That evening, after discussing a
plan to lure someone back to the hotel to blackmail or rob him,
Galloway, Anderson, and Bayless went to a bar. There they met
David McCoy. Bayless talked McCoy into returning to the hotel with
them. Once there, the men killed McCoy, wrapped his body in a
blanket, and put it into Galloway’s car. Driving both Galloway’s
and McCoy’s cars, the group left Wichita. After Galloway’s car
broke down, they abandoned it in a parking lot with McCoy’s body
still inside.
On September 7, the group arrived in Greenville,
Texas. Galloway and Varga wanted more money, so they agreed to use
the same pickup scheme that they had used in Kansas. Shortly
thereafter, Bayless and Anderson met David Logie at a motel and
convinced him to go eat with them. With Bayless driving Logie’s
rental car, the three left the Holiday Inn parking lot. Galloway
and Varga surreptitiously followed them in McCoy’s car. Shortly
thereafter, Bayless pulled off the road near a building. Bayless
got out of the car with Logie. Galloway appeared and began cursing
and hitting Logie with his fist, knocking him down. Varga
repeatedly struck Logie with a log, killing him. Bayless took
Logie’s wallet and credit cards. The group burned McCoy’s vehicle
and left Greenville in Logie’s rental car.
The group drove to San Antonio, where Bayless
and Anderson used Logie’s stolen credit cards at a shopping mall.
As they were leaving the mall parking lot, the women saw a police
car behind them, and they pulled into a nearby Wal-Mart parking
lot. The officer approached and separated the two women. After
Anderson confessed to the murders, officers arrested Bayless and
Anderson. Galloway and Varga were arrested later that night. Based
on the information Anderson gave in her confession, the
authorities found Logie’s body near Greenville and told Kansas
authorities about McCoy’s murder.
PUNISHMENT-RELATED EVIDENCE
At sentencing, the State introduced evidence
that while awaiting trial, Galloway had assaulted a guard and had
escaped from Hunt County Jail. The State also offered testimony
from victims’ relatives. And the State introduced evidence that in
Sioux Falls, South Dakota, in 1996, Galloway had been involved in
a car chase with police that led to a crash. Galloway was charged
with driving while intoxicated and drug possession. He also had
been arrested in South Dakota for resisting arrest, causing
disturbances, possession of a concealed weapon, and for repeatedly
threatening police officers, and had spent time in the South
Dakota Prison system.
PROCEDURAL HISTORY
Nov. 19, 1999 – A Hunt County grand jury
indicted Galloway for capital murder.
March 21, 2000 – After a trial in the 354th District Court of Hunt
County, the jury found Galloway guilty of capital murder.
March 24, 2000 – After a hearing, the court sentenced Galloway to
death.
Jan. 29, 2003 – On appeal, the Texas Court of Criminal Appeals
affirmed the conviction and sentence.
Oct. 6, 2003 – The U.S. Supreme Court denied certiorari review.
Jan. 21, 2004 – The Texas Court of Criminal Appeals denied
Galloway’s application for state habeas corpus relief
Dec. 3, 2008 – A Dallas U.S. district court denied federal habeas
corpus relief.
Jan. 5, 2009 – The federal district court denied Galloway’s
request for permission to appeal.
Sept. 18, 2009 – The United States Court of Appeals for the Fifth
Circuit denied Galloway’s request for permission to appeal.
April 5, 2010 – The Supreme Court denied Galloway’s petition for
writ of certiorari.
Killer executed for '98 robbery-slaying near
Dallas
A day before, South Dakota parolee's ex-cellmate
was put to death for same crime
By Michael Graczyk - The Houston Chronicle
Associated Press May 13, 2010
HUNTSVILLE — A South Dakota parolee condemned
for killing an Army officer during a robbery and beating in Texas
was put to death Thursday evening, a day after his former cellmate
was executed for the same crime.
Billy Galloway had a long, violent history
culminating in the slaying of David Logie, 37, in September 1998.
The Army major from Fayetteville, N.C., was bludgeoned with a
hammer and a tree limb behind a building in Greenville, about 50
miles northeast of Dallas. It was one of two slayings blamed on
Galloway and Kevin Varga during a weeklong cross-country crime
spree.
Varga, 41, received lethal injection Wednesday
evening. Twenty-four hours later, Galloway, also 41, was belted to
the same gurney, had needles inserted into his heavily tattooed
arms and became the ninth prisoner executed this year in the
nation's most active death penalty state.
“If I can go back and change the past, I would,”
Galloway said, looking at Logie's father and widow, who were among
people watching through a window. “There's nothing I can do. I'm
sorry.” He looked toward another window, where his father and
stepmother stood in an adjacent room with a friend. He told the
friend that he loved her. “That's it,” Galloway said. He gasped
slightly, then began snoring quietly. Ten minutes later, at 6:19
p.m. CDT, as his pale skin turned purple, he was pronounced dead.
“If our beloved David had to die, we are glad
it was in Texas where justice is their main goal,” Logie's widow,
Diann, said. “His death left a void in our lives and hearts that
can never be filled. Our lives will never be the same for as long
as we live.” Logie's father, Jack, dismissed Galloway's apology
and Varga's more extensive but similar comments from the death
house Wednesday. “I cannot forgive,” he said.
Galloway's appeals to the courts were exhausted
and no last-day legal actions were filed. “I guess I've come to
the realization that this is it,” Galloway recently told The
Associated Press.
Galloway and Varga met in prison in South
Dakota. Varga was paroled in May 1998 after serving about half of
a 10-year term for grand theft. Galloway, originally from Onondaga,
N.Y., was paroled a month later. He served time for theft, parole
violation and attempted robbery. Galloway credited his charisma
and what he called his “Manson complex” for being able to persuade
his girlfriend, Deannee Bayless, Varga and Varga's 17-year-old
girlfriend, Venus Joy Anderson, to make a road trip from South
Dakota to Mexico. Z
Anderson testified that Varga proposed they
would finance the trip using a scam in which the women offered sex
to men along the way. Then, Galloway and Varga would ambush and
rob the victims. Their first target was David McCoy, 48, in
Wichita, Kan. McCoy's body was found wrapped in sheets in
Galloway's SUV abandoned a few blocks from where he was beaten to
death. The group wasn't tried for his slaying. A day later, they
robbed and killed Logie, an aviation analyst at Fort Bragg, N.C.,
who was in Texas on business.
Testimony showed Anderson and Bayless
propositioned Logie at a Holiday Inn bar in Greenville. When they
went to a deserted area behind a building, Galloway and Varga
showed up. Police said a hammer and bloody tree limb were found
near Logie's battered body, which the four dragged into some woods
and set on fire.
“A pretty violent son of a gun, a nasty dude,”
prosecutor Keith Willeford, a former Hunt County district attorney,
said of Galloway. “These were brutal, horrible murders, just
absolutely disgusting.” Authorities eventually arrested the four
in San Antonio after a routine police license check showed their
car was stolen.
Anderson, from Revillo, S.D., served a reduced
seven-year prison term in exchange for her testimony. Bayless,
from Sioux Falls, is serving 40 years for murder. She's not
eligible for parole until 2018.
While awaiting trial, Galloway escaped from the
county jail. He was captured about 90 minutes later. During the
break, Willeford said Galloway stabbed an officer numerous times
with a shank but that the officer's bulletproof vest prevented
serious injury. “People are trying to make me a monster,” Galloway
said. “I'm not a monster. I made some bad decisions in my life.”
At least eight other Texas inmates have
execution dates approaching. Next week, Rogelio Cannady, 37, is
set to die for killing a fellow Texas inmate while already locked
up for a double murder.
Second S.D. ex-con in 2 days executed for
1998 murder
By Mary Rainwater - The Huntsville Item
May 14, 2010
HUNTSVILLE — Former South Dakota resident Billy
John Galloway had few words to say before he was executed Thursday
for the 1998 robbery-slaying of Maj. David Logie in Greenville.
Galloway, 41, was the second death row inmate in as many days to
be put to death by lethal injection for the murder of Logie, an
army officer from Fayetteville, N.C. Another former South Dakotan,
Kevin Scott Varga, also 41, was executed for his role in the crime
at the Huntsville Unit on Wednesday.
“If I can go back and change the past I would,”
Galloway said from the gurney of the cell-sized execution room,
addressing Logie’s father, Jack Logie, and his widow, Diann Logie.
“There’s nothing I can do. I am sorry.” Galloway then turned his
attention to his family, father William Galloway, step mother Mary
Galloway, friend Adonya Buzinis and spiritual advisor Kathryn Cox.
“I love you, Adonya,” he said. “That’s it.”
Galloway kept eye contact with his family as
the lethal injection began to flow through his system, beginning
at 6:09 p.m., and concluding five minutes later, at 6:14 p.m. He
was pronounced dead at 6:19 p.m., the same time Varga was
pronounced just 24-hours prior.
Galloway’s execution gave Logie’s family some
closure for the tragic death of their loved one, they said, but
was little consolation for the fact that Logie was no longer with
them. “The fate of these individuals was determined by them,”
Diane Logie said about Galloway and Varga during a press
conference after the execution. “They are solely responsible for
the reason we are all gathered here.”
Diann Logie went on say that their experience
in dealing with her husband’s death changed their perspective on
how they view the death penalty. “(Galloway and Varga experienced)
a much more humane death than they inflicted on their victims,”
she said. “They (were) able to say good-bye to their families and
express their love, which is more than what was granted for us.
“If our beloved David had to die, we are glad it was in Texas
where justice is their main goal.”
When asked their feelings on Galloway’s apology
and Varga’s request for forgiveness, Jack Logie did not hesitate
to respond with, “I cannot forgive them.” Logie’s mother, Norma
Logie, felt differently, silently mouthing the words, “I can.”
Billy Galloway had a long, violent history
culminating in the slaying of David Logie, 37, in September 1998.
The Army major was bludgeoned with a hammer and a tree limb behind
a building in Greenville. Galloway and Varga met in prison in
South Dakota. Varga was paroled in May 1998 after serving about
half of a 10-year term for grand theft. Galloway, originally from
Onondaga, N.Y., was paroled a month later. He served time for
theft, parole violation and attempted robbery.
Galloway credited his charisma and what he
called his “Manson complex” for being able to persuade his
girlfriend, Deannee Bayless, Varga and Varga’s 17-year-old
girlfriend, Venus Joy Anderson, to make a road trip from South
Dakota to Mexico.
Anderson testified that Varga proposed they
would finance the trip using a scam in which the women offered sex
to men along the way. Then, Galloway and Varga would ambush and
rob the victims. Their first target was David McCoy, 48, in
Wichita, Kan. McCoy’s body was found wrapped in sheets in Galloway’s
SUV abandoned a few blocks from where he was beaten to death. The
group wasn’t tried for his slaying. A day later, they robbed and
killed Logie, who was in Texas on business. Authorities eventually
arrested the four in San Antonio after a routine police license
check showed their car was stolen.
Anderson, from Revillo, S.D., served a reduced
seven-year prison term in exchange for her testimony. Bayless,
from Sioux Falls, is serving 40 years for murder. She’s not
eligible for parole until 2018.
While awaiting trial, Galloway escaped from the
county jail. He was captured about 90 minutes later. During the
break, Galloway stabbed an officer numerous times with a shank but
the officer’s bulletproof vest prevented serious injury.
Executions fit a heinous crime
RapidCityJournal.com
May 14, 2010
As the end neared, his mother's prayers and
pleas for mercy fell on deaf ears. Kevin Varga was executed by
lethal injection Wednesday for the 1998 murder of David Logie, who
was beaten to death with a hammer and a tree limb. The brutal
slaying took place four months after Varga was released from the
South Dakota penitentiary. Billy Galloway, who met Varga in prison
and lent a hand in Logie's murder, was executed yesterday.
Varga made a lot of bad choices throughout his
life, including the location of his most heinous crime. Texas is
known for its liberal use of the death penalty. Varga was the
eighth death row inmate to be executed there, this year. Galloway
yesterday became the ninth, with two more planned before month's
end. Varga also was the 455th person to die by lethal injection in
Texas since the U.S. Supreme Court reinstated the death penalty in
1982.
South Dakota, where both men lived prior to the
Texas murder, has executed only one person is the last six decades.
Not that we're judging the consequence of their heinous acts,
which also included the murder of another man in Kansas the day
before Logie's death. If ever a crime called for the death penalty,
the cruel and senseless murder of Logie would be among them.
Of course, Texas is bigger and more heavily
populated than South Dakota, and therefore has more crime and
violence. All things considered, though, Texas seems to prefer
retribution when it comes to punishing murderers. Whether you
favor the death penalty or not, any death is a tragedy for the
grief-stricken families left behind.
Varga is survived by a son, a stepson, and his
mother, Beth, who lives in Rapid City. All of them spent time with
Varga before he died. His mother was there when he took his last
breath. We extend our condolences to them, and to the victim's
family. Logie's father also was on hand to witness the executions
of Varga and Galloway.
If that gave him any sense of closure or some
small bit of peace, it's the least he and the rest of his family
deserve. The executions rid the world of two murderers who, in
death, met the same fate they imposed on their victims. There's no
joy in that, but justice has been served.
Billy John Galloway
ProDeathPenalty.com
During the late summer of 1998, Billy Galloway,
his girlfriend, Deannee Bayless, Galloway's friend Kevin Varga,
and Varga's girlfriend, Venus Joy Anderson, were all on probation
or parole with the South Dakota Department of Corrections. On
September 1, 1998, the four gathered their money and belongings,
loaded up Galloway's automobile, and left South Dakota.
A few days later, the group arrived in Wichita,
Kansas, and checked into a hotel. That evening, after discussing a
plan to lure someone back to the hotel to blackmail or rob them,
Galloway, Anderson, and Bayless went to a bar. According to
Anderson, the group discussed "rolling" someone. When she asked
what this meant, her cohorts explained that it entailed enticing
an older man with money back to a hotel room and then blackmailing
him after the others caught him in a compromising position. At the
bar, the three met David McCoy, and Bayless talked him into
returning to the hotel with them. Once there, the men killed McCoy,
wrapped his body in a blanket, and loaded it into Galloway's
vehicle. Driving both Galloway's vehicle and McCoy's car, the
group headed out of Wichita. After Galloway's automobile stopped
running, they abandoned it in a parking lot with McCoy's body
still inside.
The group arrived in Greenville, Hunt County,
Texas, September 7, 1998. Galloway and Varga wanted more money, so
they agreed to engage in the same pickup scheme that they had used
in Kansas. Shortly thereafter, Bayless and Anderson met David
Logie at the Holiday Inn and convinced him to go eat with them.
With Bayless driving Logie's rental car, the three left the
Holiday Inn parking lot. Galloway and Varga surreptitiously
followed them in McCoy's car. Shortly thereafter, Bayless pulled
off the road near a building. Bayless got out of the car with
Logie and told Anderson that she and Logie were going to have sex
on the hood of his car. About this time, Galloway appeared and
began cursing and hitting Logie with his fist, knocking him down.
Varga repeatedly struck Logie with a log, killing him. Bayless
took Logie's wallet and credit cards. The group burned McCoy's
vehicle and left Greenville in Logie's rental car.
The group traveled to San Antonio, where
Bayless and Anderson used the credit cards Bayless had stolen from
Logie at a local mall. As they were leaving the mall parking lot,
the women noticed a police car behind them, and they pulled into a
nearby Wal-Mart parking lot. The officer approached and separated
the two women. After Anderson confessed to the murders, officers
arrested Bayless and Anderson. Galloway and Varga were arrested
later that night. Based on the information Anderson gave in her
confession, the authorities located Logie's body near Greenville
and notified Kansas authorities about McCoy's murder. Galloway's
accomplice Kevin Varga is scheduled to be executed the previous
day.
UPDATE: “If I can go back and change the past,
I would,” Galloway said, looking at Logie's father and widow, who
were among people watching through a window. “There's nothing I
can do. I'm sorry.” He looked toward another window, where his
father and stepmother stood in an adjacent room with a friend. He
told the friend that he loved her. “That's it,” Galloway said. He
gasped slightly, then began snoring quietly. Ten minutes later, at
6:19 p.m. CDT, as his pale skin turned purple, he was pronounced
dead. “If our beloved David had to die, we are glad it was in
Texas where justice is their main goal,” Logie's widow, Diann,
said. “His death left a void in our lives and hearts that can
never be filled. Our lives will never be the same for as long as
we live.” Logie's father, Jack, dismissed Galloway's apology and
Varga's more extensive but similar comments from the death house
Wednesday. “I cannot forgive,” he said.
In the Court of Criminal
Appeals of Texas
No. 73,766
Billy Galloway, Appellant v.
The State of Texas
On Direct Appeal from Hunt County
JOHNSON, J., delivered
the opinion of the Court, joined by
KELLER, P.J., and PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and
COCHRAN, JJ. MEYERS, J., filed an opinion dissenting to point
of error number seven.
O P I N I O N
In March 2000, a Hunt County jury convicted appellant of capital
murder. 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, sections 2(b) and 2(e), the trial court
sentenced appellant to death. Art. 37.071, § 2(g).
(1) Direct appeal
to this Court is automatic. Art. 37.071, § 2(h). Appellant raises
ten points of error. We affirm.
STATEMENT OF FACTS
During the
late summer of 1998, appellant, his girlfriend, Deannee Bayless,
appellant's friend Kevin Varga, and Varga's girlfriend, Venus Joy
Anderson, were all on probation or parole with the South Dakota
Department of Corrections. On September 1, 1998, the four gathered
their money and belongings, loaded up appellant's automobile, and
left South Dakota.
A few days later, the group arrived in Wichita, Kansas, and
checked into a hotel. That evening, after discussing a plan to
lure someone back to the hotel to blackmail or rob them, appellant,
Anderson, and Bayless went to a bar.
(2) At the bar,
the three met David McCoy, and Bayless talked him into returning
to the hotel with them. Once there, the men killed McCoy, wrapped
his body in a blanket, and loaded it into appellant's vehicle.
Driving both appellant's vehicle and McCoy's car, the group headed
out of Wichita. After appellant's automobile stopped running, they
abandoned it in a parking lot with McCoy's body still inside.
The group
arrived in Greenville, Hunt County, Texas, September 7, 1998.
Appellant and Varga wanted more money, so they agreed to engage in
the same pickup scheme that they had used in Kansas. Shortly
thereafter, Bayless and Anderson met David Logie at the Holiday
Inn and convinced him to go eat with them. With Bayless driving
Logie's rental car, the three left the Holiday Inn parking lot.
Appellant and Varga surreptitiously followed them in McCoy's car.
Shortly
thereafter, Bayless pulled off the road near a building. Bayless
got out of the car with Logie and told Anderson that she and Logie
were going to have sex on the hood of his car. About this time,
appellant appeared and began cursing and hitting Logie with his
fist, knocking him down. Varga repeatedly struck Logie with a log,
killing him. Bayless took Logie's wallet and credit cards. The
group burned McCoy's vehicle and left Greenville in Logie's rental
car.
The group
traveled to San Antonio, where Bayless and Anderson used the
credit cards Bayless had stolen from Logie at a local mall. As
they were leaving the mall parking lot, the women noticed a police
car behind them, and they pulled into a nearby Wal-Mart parking
lot. The officer approached and separated the two women. After
Anderson confessed to the murders, officers arrested Bayless and
Anderson. Appellant and Varga were arrested later that night.
Based on the information Anderson gave in her confession, the
authorities located Logie's body near Greenville and notified
Kansas authorities about McCoy's murder.
SUFFICIENCY OF THE EVIDENCE
Appellant's
fifth point of error asserts that the evidence was legally and
factually insufficient to show that he participated in any of the
alleged conduct in Kansas and Texas or that he was guilty as a
party to the offense of capital murder, and that the jury finding
was irrational because it could not have found the essential
elements of the crime beyond a reasonable doubt.
Specifically,
he asserts that: 1) the evidence is legally and factually
insufficient to show that he participated in any of the alleged
conduct in Kansas and Texas; 2) the evidence is insufficient to
show that he acted as a party to the offense; 3) the pleading
created a fatal variance of proof in that the indictment alleged
no principal actor and, therefore, the state could not show that a
principal formed the intent to kill or that appellant joined in on
that intent; and 4) the evidence is insufficient because the
accomplice-witness testimony is not sufficiently corroborated.
This single point encompasses numerous theories of law, and is
therefore multifarious. Tex. R. App. P. 38.1(h); see also Wood
v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000).
However, because of the gravity of the penalty imposed in this
case, we will address the legal and factual sufficiency of the
evidence and the accomplice-witness corroboration rule.
Article
38.14 states, "A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission
of the offense." In conducting a sufficiency review under the
accomplice-witness rule, the reviewing court must eliminate the
accomplice testimony from consideration and then examine the
remaining evidence to determine whether there is sufficient
evidence that "tends to connect" the accused with the commission
of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.
Crim. App. 2001).
We have held
that "a defendant's presence at the scene and participation in the
underlying offense [is] sufficient to connect him to the capital
murder for accomplice-witness rule purposes." Id. at 362.
We have also held that evidence that the defendant "was in the
company of the accomplice at or near the time or place of the
offense is proper corroborating evidence." McDuff v. State,
939 S.W.2d 607, 613 (Tex. Crim. App.), cert. denied,
522 U.S. 844 (1997). If sufficient evidence exists which tends to
connect appellant with the commission of the crime, the Court then
reviews the legal sufficiency of the evidence by looking at all of
the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979).
Non-accomplice
evidence in the instant case showed that authorities found
appellant's SUV with David McCoy's body in the back of it in a
parking lot near the motel in Kansas where McCoy had been murdered.
Hunt County authorities found David Logie's body near McCoy's
burned-out car. The police in San Antonio recovered Logie's rental
car from two of appellant's co-defendants. They also found
appellant's belongings in the trunk of Logie's car and in the same
hotel where the other three defendants were staying.
At the time
of his arrest, Varga was wearing shoes that had on them blood from
both McCoy and Logie. At the time of his arrest, appellant was
wearing a new pair of shoes which matched a pair purchased in San
Antonio with Logie's credit card. The group paid for the San
Antonio hotel room where appellant and his co-defendants stayed
with Logie's credit card. All of this non-accomplice evidence
tended to connect appellant to this offense. See Trevino v.
State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)(holding
presence of defendant's blood on victim's panties and defendant's
pant fibers on victim's clothes tended to connect defendant to
crime); Gosch v. State, 829 S.W.2d 775, 782 (Tex. Crim.
App. 1991), cert. denied, 509 U.S. 922 (1993)(holding
non-accomplice evidence sufficient to "tend to connect" defendant
where, among other evidence, defendant was arrested after police
found clothes in his possession which were splattered with blood
of same type as that of victim). There is sufficient non-accomplice
evidence to connect appellant with the commission of the offense
and to corroborate the accomplice testimony. Viewing all of the
evidence in the light most favorable to the verdict, we hold that
the evidence is legally sufficient to support the jury's verdict
of guilty.
In reviewing
factual sufficiency, we view all of the evidence, not in the "light
most favorable to the verdict" perspective, but rather in a
neutral light favoring neither side. Vasquez v. State, 67
S.W.3d 229, 236 (Tex. Crim. App. 2002); Wesbrook v. State,
29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 944 (2001); Kutzner v. State, 994 S.W.2d 180,
184 (Tex. Crim. App. 1999). A reviewing court that conducts a
factual sufficiency review of the elements of a criminal offense "asks
whether a neutral review of all of the evidence, both for and
against the finding, demonstrates that the proof of guilt is so
obviously weak as to undermine confidence in the jury's
determination, or the proof of guilt, although adequate if taken
alone, is greatly outweighed by contrary proof." Johnson v.
State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
After
reviewing the evidence in the requisite neutral light, we find
that evidence that tends to prove appellant's guilt is strong, and
we have found no record evidence that tends to disprove his guilt;
we cannot conclude that the guilty verdict is clearly wrong or
manifestly unjust. Therefore, we hold that the evidence is
factually sufficient. Ladd v. State, 3 S.W.3d 547, 557 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000).
After finding the evidence legally and factually sufficient to
sustain appellant's conviction, we overrule point of error five.
In his sixth
point of error, appellant complains that the evidence is legally
and factually insufficient "to show that Appellant knew that co-actor
Kevin Varga was in possession of a deadly weapon at the time of
the commission of the offense, such that Appellant could not have
known or anticipated that a life would be taken." Non-accomplice
proof or corroboration of accomplice testimony regarding a
specific fact is not required under the law as long as sufficient
evidence is presented to prove each element of a crime beyond a
reasonable doubt. See point of error five, supra,
and Jackson v. Virginia, 443 U.S. 307 (1979). Point of
error six is overruled.
VALIDITY OF THE INDICTMENT AND JURISDICTION
Appellant
alleges in his first point of error that an attorney who was not a
proper representative of the state presented the indictment to the
grand jury. Specifically, he asserts that the attorney purporting
to represent the state in the grand jury worked for the District
Attorney elected in the 196th Judicial District and, as
such, he was not authorized to appear before the grand jury of the
354th Judicial District which indicted appellant.
Appellant asserts that because the prosecutor was not entitled to
appear before a grand jury in the 354th Judicial
District, the indictment is therefore void. See Tex.
Gov't Code §§ 24.375 ("The 196th Judicial District is
composed of Hunt County"), 24.500 ("The 354th Judicial
District is composed of Hunt and Rains counties), and 43.164 ("The
voters of the 196th Judicial District elect a district
attorney").
The grand jury, not the district attorney, is ultimately
responsible for the return of a "true bill" or a "no-bill" in a
case. State ex rel. Holmes v. Salinas, 784 S.W.2d 421,
426 (Tex. Crim. App. 1990). Further, the grand jury has the
authority to review matters that have not been presented by the
state but are known about by some member of the panel. Id.
That an improper person may have questioned witnesses in front of
the grand jury in violation of Articles 20.03 and 20.04 did not
render the subsequent indictment void. Rather, this issue is
subject to a harm analysis. See Sanders v. State, 978 S.W.2d
597, 599-600 (Tex. App.- Tyler 1997, pet. ref'd) and Smith v.
State, 36 S.W.3d 134, 136-38 (Tex. App.-Houston [14th Dist.]
2000, pet. ref'd); see also Cain v. State, 947 S.W.2d
262, 264 (Tex. Crim. App. 1997)(holding that, except for certain
federal constitutional errors labeled by the United States Supreme
Court as "structural," no error is categorically immune to a
harmless error analysis). Because of the independent nature of the
grand jury, the record does not support a finding of harm in this
case, even assuming that error occurred. The grand jury's
subsequent presentment of the indictment to the trial court
invested that court with jurisdiction of this cause. Tex. Const.
art. V, § 12(b); see also Art. 20.01, et sec.
Appellant's first point of error is overruled.
(3)
In his
second point of error, appellant argues that the second paragraph
of the indictment against him fails to allege an offense and, in
fact, alleges a legal impossibility. Thus, he submits that the
trial court erred in failing to quash the second paragraph.
The second
paragraph of appellant's indictment reads as follows:
On or about
the 8th day of September 1998, in the County of Hunt
and the State of Texas, [appellant], acting together with Kevin
Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did then
and there intentionally and knowingly cause the death of an
individual, David Lawrence Logie, by striking and beating the said
David Lawrence Logie about the head with a hammer, and/or by
striking and beating the said David Lawrence Logie about the head
with a tree limb or tree limbs, and/or by striking and beating the
said David Lawrence Logie about the head and neck with fists and
feet, and the said [appellant], acting together with Kevin Scott
Varga, Deannee Ann Bayless and Venus Joy Anderson, did murder
another person during a different criminal transaction but
pursuant to the same scheme or course of conduct in that on or
about the 6th day of September, 1998, in Sedgwick [C]ounty,
State of Kansas, [appellant], acting together with Kevin Scott
Varga, Deannee Ann Bayless and Venus Joy Anderson, did
intentionally and knowingly cause the death of an individual,
David L. McCoy, by striking and beating the said David L. McCoy
about the head with a metal rod or pole, and/or by striking and
beating the said David L. McCoy about the head and neck with fists
and feet; against the peace and dignity of the State.
In his point
of error, appellant claims that the language of this paragraph is
"repugnant on [its] face."
Without
citing any authority in support of his proposition, appellant
asserts that it is both legally and factually impossible for the
defendants to be convicted of committing two murders during the
same scheme or course of conduct when one of those murders was
committed two days earlier in another state. See Tex.
Penal Code § 19.03(a)(7)(B). Appellant insists that "[i]f the
state is to allege the same scheme or course of conduct
transaction, it must first allege the first predicate murder and [then]
allege the second subsequent murder." He also contends that in
order to allege that two murders were committed during the same
scheme or course of conduct, the state must allege the murders as
they chronologically occurred, but that in the instant case the
state was barred from doing so because the first murder was
committed outside the state of Texas, i.e. in Kansas. Appellant
asserts that, because evidence of a Kansas murder was presented
during guilt/innocence, he was "irreparably prejudiced" and "[t]he
indictment should be quashed and the case reversed and remanded to
the trial court."
Nothing in
the statute requires that the murders occur in a certain time
frame or in a geographically limited area. See Corwin v. State,
870 S.W.2d 23, 28 (Tex. Crim. App. 1993), cert. denied,
513 U.S. 826 (1994). Corwin involved the murders, during
the same scheme or course of conduct, of three women in three
different counties over the course of nine months. We held that
the evidence was sufficient for a rational jury to find that
Corwin committed the murders pursuant to the same course of
conduct even though they occurred over a period of several months
and in various geographic locations. Id. at 28-29. We do
not agree that the second paragraph in appellant's indictment
fails to allege an offense or alleges a legal impossibility as
asserted by appellant's second point. Point of error two is
overruled.
In his third
point of error, appellant asserts that the trial court had no
jurisdiction to consider paragraph two of the indictment, which
should have been quashed, because the second murder alleged in the
paragraph occurred not only outside of the borders of the county
but indeed outside of the borders of the state; and that the trial
court should have therefore quashed the indictment. Appellant is
mistaken in his interpretation of the paragraph.
Texas Penal Code section 19.03 defines the offense of capital
murder as murder plus some aggravating element. See,
e.g., Patrick v. State, 906 S.W.2d 481, 491 (Tex.
Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996);
Hughes v. State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994),
cert. denied, 514 U.S. 1112 (1995). Section
19.03(a)(7)(B) defines one form of capital murder as the murder of
one person plus the additional murder of a second person, which
murder was committed during a different criminal transaction but
pursuant to the same scheme or course of conduct as the charged
murder. Appellant is charged under this provision of the statute
with the murder of David Logie (committed in Hunt County, Texas)
aggravated by the additional murder of David McCoy (committed
outside of Texas, but pursuant to the same scheme or course of
conduct as Logie's murder). Because the primary murder occurred in
Hunt County, Texas, this state has the authority to prosecute the
offense even though some of the elements of the aggravating
offense occurred outside the state's boundaries. The statute
explicitly authorizes prosecution for murder in the county in
which the body was found. See Art. 13.05.
(4) Logie's body
was found in Hunt County. Appellant's third point of error is
overruled.
EQUAL PROTECTION
In his fourth point of error, appellant argues that his
prosecution for capital murder and exposure to a potential death
sentence was based solely upon his gender, thus denying him Equal
Protection under the Fourteenth Amendment to the United States
Constitution. Appellant notes that, while the state tried,
convicted, and sentenced him to death for his involvement in the
instant offense, the prosecution gave both of the women involved
plea bargains for a lesser charge and punishment.
(5) He asserts
that this evidence establishes gender discrimination in the
exercise of prosecutorial discretion.
The United States Supreme Court has stated that "the decision to
prosecute may not be 'deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification
. . ..'" Wayte v. United States, 470 U.S. 598, 608
(1985)(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).
However, an appellant who raises the issue of equal protection in
this context has the burden of proving the existence of purposeful
discrimination by providing "exceptionally clear evidence" that
the state decided to prosecute for an improper reason. Green
v. State, 934 S.W.2d 92, 102-03 (Tex. Crim. App. 1996)(quoting
County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App.
1989)). Appellant has not provided exceptionally clear evidence
for his claim, nor does the record support it.
(6) The evidence
presented throughout the instant case showed that the four persons
involved in the charged offense acted with varying degrees of
involvement. The differences in charging and punishment indicate
that the prosecutor weighed each individual's culpability as well
as the state's ability to prove each case when making the decision
about whom to prosecute and for what. Appellant has not shown
discriminatory intent on the part of the prosecutor. Appellant's
fourth point of error is overruled.
VICTIM-IMPACT AND MITIGATION EVIDENCE
Appellant
submits in his seventh point of error that the trial court erred
in failing to strike victim-impact testimony from the jury's
consideration and in failing to grant a mistrial. Specifically,
appellant asserts that the state submitted victim-impact testimony
in rebuttal of appellant's mitigation evidence, but that appellant
had not placed any mitigation before the jury, nor had he
indicated his intent to do so. Thus, appellant contends, the court
should have excluded the victim-impact testimony as irrelevant.
Article 37.071, section 2(a)(1), states that "evidence may be
presented by the state and the defendant or the defendant's
counsel as to any matter that the court deems relevant to
sentence . . .." (Emphasis added.) In Mosley v. State,
this Court held that "[b]oth victim impact and victim character
evidence are admissible, in the context of the mitigation special
issue, to show the uniqueness of the victim, the harm caused by
the defendant, and as rebuttal to the defendant's mitigating
evidence." Mosley v. State, 983 S.W.2d 249, 262 (Tex.
Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999).
(7)
The Mosley Court noted that, in Powell v. State,
897 S.W.2d 307 (Tex. Crim. App. 1994)(plurality), the Court had
held that the former issue of deliberateness could not be waived,
even at the defendant's request, because a jury finding that the
state had proved the issue of deliberateness beyond a reasonable
doubt was required before a death sentence could be assessed.
Id at 316. (Clinton, J., concurring). In Mosley, the
Court distinguished mitigation from deliberateness; under
Penry v. State, 903 S.W.2d 715, 766 (Tex. Crim.App.),
cert. denied, 516 U.S. 977 (1995), the mitigation issue
carries no burden of proof for the state. Id. at 766. The
Court also indicated that a defendant could render the state's
victim-impact and character evidence irrelevant and therefore
inadmissible by affirmatively and expressly waiving the
submission of the mitigation issue. Mosley, 983 S.W.2d at
263-64.
(8) The appellant
in
Mosley, however, had
not waived the mitigation issue, and the question was not before
the Court.
In Tong v. State, 25 S.W.3d 707, 711-12 (Tex.
Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001), we
explicitly stated that we had not yet decided whether a capital
defendant can waive the mitigation special issue and that
Mosley's holding involved the admissibility of victim-impact
evidence, "not whether the special issue can be waived." Our
opinion in Ripkowski v. State, 61 S.W.3d 378, 391 n.48 (Tex.
Crim. App. 2001), noted that, while Mosley had suggested
that a defendant may have a right to insist upon waiving the
submission of mitigation special issue, "[t]hat question would be
ripe only in a case in which the trial court refused [such] a
requested waiver."
We find nothing in the record to support a finding that appellant
affirmatively waived submission of the mitigation issue.
(9) The trial
court was therefore within its discretion in determining that the
victim-impact testimony was relevant to the question of mitigation.
Point of error seven is overruled.
IMPROPER ARGUMENT
Appellant argues in his eighth point of error that
the prosecutor improperly played a videotape during his final
argument at punishment.
(10) Toward
the end of his closing argument, the prosecutor began to play a
portion of the video for the jury. Appellant objected that,
because the prosecution did not play the tape for the jury when
the trial court admitted it, the jury should review it only on
their own, should they want to see it. Appellant asserts that the
use of the videotape in closing arguments "was inflammatory,
prejudicial, and reversible error" because the tape had never been
affirmatively linked to appellant and the state failed to
otherwise show that he subscribed to the tenets or beliefs
represented in the tape, nor that it pertained to any matters
relevant to the murder. Appellant insists that the trial court "erred
by not stopping the improper argument and by refusing to grant a
limiting instruction concerning the tape." He also seems to
suggest that the videotape should not have even been allowed into
evidence over his objection.
Among the
proper subjects of jury argument are: (1) summation of the
evidence presented at trial, (2) reasonable deduction drawn from
that evidence, (3) answer to the opposing counsel's argument, or
(4) a plea for law enforcement. See, e.g., Jackson v. State,
17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Playing a videotape
that was admitted at trial with no restrictions is, in effect, a
summation of that evidence; the prosecutor did not engage in
improper argument. In addition, the record does not reflect that
appellant requested any limiting instruction when he objected to
the tape being used in the jury argument. The trial court did not
err in not granting "a limiting instruction concerning the tape"
when appellant failed to request such.
Appellant's
complaint about the trial court admitting the videotape into
evidence over his objection is multifarious and inadequately
briefed. See, e.g., Dunn, 951 S.W.2d at 480. However,
again because of the gravity of the punishment imposed, we will
address the merits of this complaint.
As stated
previously, Article 37.071, section 2(a)(1), states that in the
punishment phase of a capital murder trial "evidence may be
presented by the state and the defendant or the defendant's
counsel as to any matter that the court deems relevant to sentence
. . .." We review a trial court's decision to admit or exclude
evidence under an abuse of discretion standard, and will not
reverse such a ruling which was within the zone of reasonable
disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex.
Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997).
The record
reflects that the videotape in question was found by police in a
nylon zipper bag with other items, including prescription pills "that
had [appellant's] name on it." We conclude that there was no abuse
of discretion in admitting the videotape into evidence over
appellant's objection. Accordingly, point of error eight is
overruled.
CONSTITUTIONALITY OF STATUTES
In his ninth point of error, appellant complains that the
imposition of the death penalty violated the Eighth Amendment's
prohibition of cruel and unusual punishment in that the anti-parties
special issue operated unconstitutionally as applied to him.
Specifically, appellant alleges that the state did not show that
he actually caused the death of the deceased, intended to kill the
deceased, or anticipated that a life would be taken, and thus he
was less morally blameworthy than his co-defendants.
(11)See
Art. 37.071, § 2(b)(2).
As he did in
point of error five, supra, appellant asserts that,
because the accomplice-witness testimony regarding his actions
during the instant offense was not sufficiently corroborated, the
jury could not have reasonably found that appellant himself caused,
intended, or anticipated the death of the deceased. However, as we
held in point of error five, the evidence was sufficiently
corroborated. Thus, the jury appropriately could use all of the
evidence presented, including the accomplice-witness testimony, to
determine whether appellant himself intended the death of the
victim.
Because the
jury could look only at appellant's participation in and
culpability for the offense, the requirements of Enmund v.
Florida were met, and the statute did not cause appellant to
suffer cruel and unusual punishment under the Eighth Amendment.
Enmund v. Florida, 458 U.S. 782, 797 (1982)(holding that
the Eighth Amendment does not permit imposition of the death
penalty "on one ... who aids and abets a felony in the course of
which a murder is committed by others but who does not himself
kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed.") Point of error nine is overruled.
Appellant
asserts in his tenth point of error that Texas Penal Code,
§19.03(a)(7)(B), operated unconstitutionally as to him because he
did not "ha[ve] notice prior to being indicted in Texas that his
conduct in Kansas could make him liable for prosecution in Texas
for a subsequent murder committed two days after the Kansas murder
. . .." Nothing in state or federal law requires that a person
have such specific notice before being indicted for a crime. If a
person is formally charged with a crime, the indictment is the
instrument through which he is given notice of the charge against
him. The indictment must be sufficiently specific to allow him to
meaningfully defend himself. See generally, Tex. Code
Crim. Pro. Chapter 21; see also, e.g., Gollihar v. State,
46 S.W.3d 243 (Tex. Crim. App. 2001).
The state
charged appellant with committing murder in Hunt County, Texas.
Further, the indictment against him gave him notice of every
element of that offense which the state was required to prove.
That the aggravating element which raised the murder to a capital
murder was committed partly or entirely outside of Texas does not
render the indictment, or the penal provision on which it was
based, unconstitutional, nor does its use violate due process.
See arts. 13.01 and 13.05. Point of error ten is overruled.
We affirm
the judgment of the trial court.
Johnson, J.
Delivered:
January 29, 2003
En banc
Do Not
Publish
*****
1. Unless otherwise
indicated all future references to Articles refer to the Code of
Criminal Procedure.
2. According to Anderson, the group
discussed "rolling" someone. When she asked what this meant, her
cohorts explained that it entailed enticing an older man with
money back to a hotel room and then blackmailing him after the
others caught him in a compromising position.
3.
Appellant further asserts in this same point of
error that because the attorney purporting to represent the state
worked for the District Attorney elected in the 196th
Judicial District, he had no authority to prosecute the case in
the 354th Judicial District Court. Because the issue of
a person's authority to prosecute a case encompasses a different
area of the law than the validity of an indictment and who may
appear before a grand jury, we hold that the remainder of his
point is multifarious, and we will not address it. See
Tex. R. App. P. 38.1; see also Dunn v. State, 951 S.W.2d
478, 480 (Tex. Crim. App. 1997).
The offense of
criminal homicide committed wholly or in part outside this [s]tate,
under circumstances that give this [s]tate jurisdiction to
prosecute the offender, may be prosecuted in the county where the
injury was inflicted, or in the county where the offender was
located when he inflicted the injury, or in the county where the
victim died or the body was found. (Emphasis added.)
5.
The state also tried Varga, the other male involved,
for capital murder. The jury convicted Varga and, as required by
the jury's findings on the special issues, the court sentenced him
to death.
6. In his brief, appellant
directs us to a volume and page numbers (specifically "CRR-Vol.
32, pages 54-59") where his motion underlying this point of error
was argued. A review of the cited section does not show a hearing
on such a motion, nor could we find a record of such a hearing
elsewhere. The absence of any reference to the motion in the
reporter's record raises the question of whether the motion was
presented to the trial court. This, in turn, raises the question
of whether the asserted error was preserved. See Tex. R.
App. P. 33.1.
7. We further held that
Texas Rule of Evidence 403 (prejudice v. probativeness) limits the
admissibility of such evidence when the evidence predominantly
encourages comparisons based upon the greater or lesser worth or
morality of the victim. Mosley, supra at 262.
See also, Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App.
2002). Appellant has not made a Rule 403 claim on appeal.
8. In Jackson v. State,
33 S.W.3d 828, 833 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 1068 (2001), we considered appellant's claim of
ineffective assistance of counsel for failing to object to
prosecutorial argument that urging the jury to consider victim-impact
evidence in answering the future dangerousness special issue. We
stated that Mosley held that victim-impact evidence of
which a defendant was aware at the time he committed the crime is
necessarily relevant to his future dangerousness and moral
culpability. We also explicitly said that "victim impact and
character evidence is relevant only insofar as it relates to the
mitigation issue" and "is patently irrelevant, for example, to a
determination of future dangerousness." Mosley, supra
at 263.
9. Appellant does not assert
that he affirmatively waived submission of the mitigation special
issue; rather, he asserts that the state's introduction of the
complained-of victim impact evidence was erroneous because it was
proffered before he had introduced any mitigation evidence himself.
10. The video appears to be
a commercially produced recording of heavy metal concerts.
11. The wording of
appellant's point suggests that he may be arguing sufficiency of
the anti-parties charge at punishment. However, because he cites
only Enmund v. Florida, 458 U.S. 782 (1982), as his
primary authority, we will confine our analysis of this point to
the Eighth Amendment question addressed in Enmund and
hold that any other complaint within this point is inadequately
briefed. See Tex. R. App. P. 38.1.
Galloway v. Thaler, 344 Fed.Appx. 64
(5th Cir. 2009). (Habeas)
Background: Following capital murder conviction
and sentence of death, petition for writ of habeas corpus was
filed. The United States District Court for the Northern District
of Texas, A. Joe Fish, J., 2008 WL 5091748, denied the petition.
Petitioner sought certificate of appealability (COA).
Holdings: The Court of Appeals held that: (1)
defense counsel's failure to present mitigating evidence that was
available was not deficient assistance, and (2) defense counsel's
failure to discover mitigation evidence was not deficient
assistance. Denied.
PER CURIAM:
Pursuant to 5th Cir. R. 47.5, the court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5th
Cir. R. 47.5.4.
Petitioner Billy John Galloway, convicted of
capital murder and sentenced to death in Texas state court, seeks
a certificate of appealability (“COA”) to appeal the district
court's order dismissing his petition for writ of habeas corpus
under 28 U.S.C. § 2254. Galloway alleges he received ineffective
assistance of counsel because his trial counsel failed to
investigate and present mitigating evidence during the punishment
phase of trial. The district court held that Galloway had not
shown deficient performance of counsel and prejudice resulting
therefrom. Because jurists of reason would not find debatable the
district court's ruling, Galloway's application for a COA is
DENIED.
I. BACKGROUND
Galloway was convicted and sentenced to death
for the 1998 murder of David Logie in Hunt County, Texas. The
evidence presented to the jury included evidence of the following
basic facts. Galloway, his friend Kevin Varga, and two women, all
of whom were on probation or parole with the South Dakota
Department of Corrections, determined to bring in some money by
robbery or extortion. The women met Logie, the victim, at a hotel
and convinced him to leave with them in Logie's rental car.
Galloway and Varga followed in a car obtained from a man Varga had
previously killed. When Logie's car stopped, Galloway and Varga
beat, killed, and robbed Logie.
Galloway gave specific instructions to his
trial attorneys. He stated he did not want to “punk out” or lose
his “tough-guy” image, and that his attorneys were not to present
any evidence that shifted blame to Varga. He also told his
attorneys not to present evidence that would cast his father in a
negative light, though mitigation evidence often concerns
circumstances of childhood. His attorneys presented no mitigation
evidence at sentencing, and later stated that this was for various
reasons, some of which were related to Galloway's instructions.
After Galloway was convicted and sentenced to death, he filed a 28
U.S.C. § 2254 petition alleging ineffective assistance of counsel
based on the alleged failure of his counsel to properly present
and investigate mitigation evidence. The district court denied
Galloway's petition, and he now seeks a COA from this court.
II. STANDARD OF REVIEW
Because Galloway filed his 28 U.S.C. § 2254
petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
110 Stat. 1214, his petition is governed by the procedures and
standards provided therein. See Parr v. Quarterman, 472 F.3d 245,
251-52 (5th Cir.2006). Under the AEDPA, a petitioner must obtain a
COA before appealing the district court's denial of habeas relief.
28 U.S.C. § 2253(c)(1)(A). This is a jurisdictional prerequisite.
See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003).
A COA will be granted only if the petitioner
makes “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). While this threshold inquiry calls
for “an overview of the claims in the habeas petition” and “a
general assessment of their merits,” the court is not allowed to
engage in “full consideration of the factual or legal bases
adduced in support of the claims.” Miller-El, 537 U.S. at 336, 123
S.Ct. 1029. Rather, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” Id. at 338, 123
S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000)). Any doubt regarding whether to
grant a COA requires resolution in favor of the petitioner, and
the court may consider the severity of the penalty in making that
determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th
Cir.1997).
III. DISCUSSION
Galloway asserts that his attorneys failed to
present mitigation evidence in their possession, and failed to
conduct a more thorough investigation into other possible
mitigation evidence. We discuss each argument in turn.
A. Standard for ineffective assistance of
counsel
To succeed on his ineffective assistance claim,
Galloway had to satisfy the two-prong test established in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). He was required to prove by a preponderance of the
evidence that: (1) his attorneys' performance was deficient; and
(2) the deficient performance prejudiced his defense. Id. at 687,
104 S.Ct. 2052. The first prong requires Galloway to prove that
his attorneys' representation fell below an objective standard of
reasonableness. Id. at 688, 104 S.Ct. 2052. When a petitioner
argues that his attorney failed to adequately investigate
mitigation evidence, the proper inquiry is “not whether counsel
should have presented a mitigation case, ... [but] whether the
investigation supporting counsel's decision not to introduce
mitigating evidence of [the defendant's] background was itself
reasonable.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003).
The second prong of Strickland requires
Galloway to show that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct.
2052. Inherent within the prejudice requirement is an element of
causation. “It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the
proceeding. Virtually every act or omission of counsel would meet
that test, ... and not every error that conceivably could have
influenced the outcome undermines the reliability of the result of
the proceeding.” Id. at 693, 104 S.Ct. 2052.
When deciding prejudice in the context of
capital sentencing, the court must “weigh the quality and quantity
of the available mitigating evidence, including that presented in
post-conviction proceedings, along with ... any aggravating
evidence.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th
Cir.2008). The question is then “whether the changes to the
mitigation case would have a reasonable probability of causing a
juror to change his or her mind about imposing the death penalty.”
Id.
B. Failure to present evidence already
available
Galloway's petition asserts that ample
mitigation evidence was available to his attorneys, which should
have been presented at sentencing but was not. This evidence
showed a troubled childhood, abuse at the hands of his father, and
his drug use since age twelve. The district court determined that
Galloway could not claim ineffective assistance based on counsel's
failure to present mitigation evidence because Galloway had
instructed them not to present certain evidence, and any evidence
not prohibited by Galloway's instructions would not have caused a
juror to change his or her mind about imposing the death penalty.
Galloway's attorneys presented several
justifications for their inaction. The trial team consisted of two
attorneys, Jerry Davis and Dennis Davis (no relation), and their
senior legal assistant, Paula Malacek. All three were deposed in
prior Texas habeas proceedings. The attorneys stated they believed
that evidence of Galloway's drug use would not have had a
mitigating effect in Hunt County, Texas, and in fact may have
prejudiced the jurors against Galloway. Furthermore, the attorneys
stated that they did not offer the expert testimony of Dr.
Hopewell, a psychologist hired by the defense to evaluate Galloway,
because: (1) Galloway did not cooperate with the evaluation, and
the testimony would therefore be limited in nature; and (2) had
Hopewell testified, the prosecution would have been entitled to
examine Galloway with their own psychologist, which could have
been highly prejudicial to Galloway's case.
With regard to evidence of childhood abuse,
Galloway has asserted that his attorneys should have ignored his
instructions and presented a mitigation case. He hinges this
argument on the 2003 and 1989 editions of the American Bar
Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (“Guidelines”).FN1 See 2003
Guidelines § 10.5 commentary (2003) (“Some clients will initially
insist that they want to be executed ... some clients will want to
contest their guilt but not present mitigation.... It is
ineffective assistance for counsel to simply acquiesce to such
wishes”); id. § 10.7(A)(2) (“The investigation regarding penalty
should be conducted regardless of any statement by the client that
evidence bearing upon penalty is not to be collected or presented.”);
1989 Guidelines § 11.4.2 commentary (“Capital counsel frequently
must not only struggle against the public and prosecution but
against the self-destructive behavior of the client as well.” (internal
quotation marks omitted)). The district court considered
Galloway's arguments based on the Guidelines, and rejected them in
light of Fifth Circuit precedent.FN2
FN1. Although the Supreme Court has endorsed
various sets of ABA Guidelines as instructive on the issue of
reasonableness in representation, see Strickland, 466 U.S. at
688-89, 104 S.Ct. 2052, neither the Supreme Court nor this court
have ever found the Guidelines to be dispositive of a claim of
ineffective assistance, see id. (noting that the Guidelines “are
guides to determining what is reasonable, but they are only guides
” (emphasis added)); Ransom v. Johnson, 126 F.3d 716, 723 (5th
Cir.1997) (finding that a failure to meet the standards of the
Guidelines is not per se ineffective assistance of counsel).
FN2. The district court referred to our
precedents holding that a criminal defendant cannot prevent his
attorney from presenting evidence and later allege ineffective
assistance. See, e.g., Wood v. Quarterman, 491 F.3d 196, 203 (5th
Cir.2007) (“[T]his court has held on several occasions that a
defendant cannot instruct his counsel not to present evidence at
trial and then later claim that his lawyer performed deficiently
by following these instructions.”), cert. denied, --- U.S. ----,
128 S.Ct. 1087, 169 L.Ed.2d 825 (2008); Nixon v. Epps, 405 F.3d
318, 325-26 (5th Cir.2005) (finding that counsel was not
ineffective for failing to present additional mitigating evidence
over the defendant's objection); Autry v. McKaskle, 727 F.2d 358,
361 (5th Cir.1984) (“By no measure can [the defendant] block his
lawyer's efforts and later claim the resulting performance was
constitutionally deficient.”).
The attorneys also asserted that they did not
want to go against Galloway's instructions because they were
afraid that Galloway would react negatively and possibly disrupt
the proceeding (and, presumably, thereby hurt his own case) or
attempt to harm the attorneys. Malacek stated in her deposition,
however, that Galloway never explicitly said anything to indicate
he might become violent, and Jerry Davis claimed he was never
afraid of Galloway.
Having considered Galloway's arguments under
the Miller-El standard, we conclude that he is not entitled to a
COA on this ground. Reasonable jurists could debate the
constitutional appropriateness of withholding evidence out of
simple fear that Galloway would harm his attorneys. The district
court, however, also considered independent justifications for the
attorneys' decisions, based on their conclusions that the
potential mitigation evidence could hurt Galloway's case, and on
the possibility that Galloway would disrupt the proceedings if his
instructions were not followed and thereby “portray him [self] to
the jury as a danger to society.” Considering all of the offered
bases for withholding the evidence, on their merits and in light
of the prejudice requirement, Galloway has not established “that
reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” Miller-El, 537 U.S.
at 338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct.
1595). Accordingly, we deny Galloway's request for a COA on the
issue of failure to present mitigation evidence.
C. Failure to investigate potential
mitigation evidence
Galloway has also alleged that trial counsel
failed to conduct adequate investigation into mitigation evidence,
thus leaving valuable evidence undiscovered. Galloway claims his
attorneys would have discovered evidence of childhood physical
abuse, sexual abuse, educational problems, psychological disorders,
and alleged head trauma from a childhood car accident.
With respect to evidence regarding Galloway's
childhood abuse, educational problems, and the car accident, the
district court held that Galloway had not shown a reasonable
probability that the evidence, had it been admitted, would have
caused a juror to reconsider his or her decision regarding the
death penalty. It also noted that such evidence would necessarily
have cast Galloway's father in a negative light, and would have
been contrary to Galloway's instructions. Therefore, even if the
attorneys had discovered this evidence, it concluded they still
might not have been able to utilize this evidence during
sentencing.
With regard to the evidence of Galloway's
alleged sexual abuse at the hands of a neighbor, the district
court found that counsel was not deficient in failing to discover
the information. The court noted that Galloway himself was the
only person with knowledge of the sexual abuse, and that Galloway
failed to disclose any such evidence to his attorneys despite
their efforts to talk with him.
Finally, the district court held that the
attorneys were not deficient in failing to investigate Galloway's
psychological issues. The attorneys in fact hired a psychologist,
Dr. Hopewell, in an attempt to discover potentially mitigating
evidence of psychological disorders, but Galloway did not
cooperate with the evaluation.
Having considered the arguments, we conclude
that Galloway has not met his burden of showing “that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Miller-El, 537 U.S. at
338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct.
1595). Accordingly, we deny Galloway's request for a COA on the
issue of his attorneys' failure to investigate.
IV. CONCLUSION
Jurists of reason would not find it debatable
whether the district court was correct in its ruling. Accordingly,
Galloway's request for a COA is DENIED.
