Martinez and Sandra Walton had dated briefly and during the
relationship he loaned her $1,000. When they broke up, he demanded
repayment quickly. Walton gave him a promissory note, but told
friends Martinez continued to harass and threaten her. Walton
filed numerous police reports against Martinez but was unable to
get a protective order.
Walton was shot at least nine times as she
returned home from a late-night fast-food run. Michael Humphreys,
from Arlington, was hit eight times. At the shooting scene,
authorities found 27 shell casings from a high-powered Austrian-made
On the night of the murders, Martinez called
Casey Ashford, a long-time friend, several times. Martinez drove
to the farm where Ashford was staying to deliver a black canvas
bag for Ashford to keep. Ashford looked in the bag and saw the
rifle later determined to be the murder weapon, among other items.
He buried the bag, but later disclosed its location to police.
Inside a storage bin Martinez rented, detectives found more than
3,000 rounds of ammunition, bomb-making components, pistols,
illegal knives, illegally modified firearms and books on killing
techniques and body disposal.
Martinez v. State, Not Reported in S.W.3d, 2003 WL 22508081
(Tex.Cr.App. 2003) (Direct Appeal).
Martinez v. Dretke, 173 Fed.Appx. 347 (5th Cir. 2006)
Three chili cheese hot dogs with extra cheese on the side, fried
okra with ketchup on the side, french fries with ketchup on the
side and vanilla coke or regular coke.
Martinez told his mother and sister, who were watching through a
nearby window, that he loved them and thanked them for everything
they had done for him. “I hope y’all can move on after this. I’ll
be fine. I’m fine.” Martinez told them all again that he loved
them and added, “Take care, OK?” He then told the warden he had
nothing else to say.
Texas Department of Criminal Justice
James Edward Martinez
Date of Birth: 06/09/1974
Date Received: 02/13/2002
Education: 11 years (GED)
Occupation: welder, laborer
Date of Offense: 09/21/2000
County of Offense: Tarrant
Native County: Tarrant
Hair Color: Black
Eye Color: Brown
Height: 5' 6"
Prior Convictions: none
Summary of incident: On 09/21/2000 in Fort
Worth, Martinez fired 20 shots into the vehicle of the victims,
resulting in the death of a 20 year old white male and and 29 year
old white female.
Texas Attorney General
Monday, March 9, 2009
Media Advisory: James Martinez Scheduled For
AUSTIN -- Texas Attorney General Greg Abbott
offers the following information on James Edward Martinez, who is
scheduled to be executed after 6 p.m. on Tuesday, March 10, 2009.
Martinez was found guilty on January 30, 2002, of the September
21, 2000, capital murders of Sandra Walton and Michael Humphreys,
and was sentenced to death by the jury on February 1, 2002. A
summary of the evidence presented at trial follows.
FACTS OF THE CRIME
In the early morning hours of Sept. 21, 2000,
James Martinez shot Sandra Walton and Michael Humphreys to death
outside Walton's condominium in Fort Worth. When police arrived,
they found Walton's body in the driver's seat of her car and
Humphreys lying face down on the ground 10 to 12 feet from the
car. Walton had been shot nine or 10 times and Humphreys had been
shot about eight times. Police determined that the bullets had
been fired from a rifle owned by Martinez, a Steyr/Aug .223
After the murders, Martinez met a friend and
told him to keep a black canvas bag for him. The friend eventually
told police where the bag was located, and officers found the
Steyr/Aug assault rifle used in the murders.
The State presented evidence at trial that
Martinez had a history of stalking, harassing, and threatening
Sandra Walton, and claiming that she owed him money after their
brief relationship. In May 2000, Walton made out a promissory note
to Martinez in the amount of one-thousand dollars, and Martinez
began demanding repayment from Walton by stalking and directly
threatening her. On the night of her murder, Martinez pounded on
her door, staying outside for 20 or 30 minutes, and told Ms.
Walton, "Your time is almost up."
After the murders, police found the promissory
note written and signed by Sandra Walton in a storage unit rented
During the punishment phase of Martinez's trial,
the State introduced testimony concerning what was recovered from
the storage unit: bomb-making components, over three-thousand
rounds of various types of ammunition, two pistols, several
illegal knives, an illegally modified Mossberg shotgun, an
illegally modified single-shot shotgun, an illegally modified .22
rifle, an HK-91 assault rifle, and an AK-47 assault rifle with
bayonet. Also found at the storage unit were four books, Be Your
Own Undertaker: How to Dispose of a Dead Body; Death Touch:
Unarmed Killing Techniques; 21 Techniques of Silent Killing; and
Dragon's Touch: Weaknesses of the Human Anatomy, all four of which
had been signed "completed reading by James Martinez." The State
then offered the victim impact testimony of Mike Humphreys' father,
mother, and stepmother, along with the testimony of Sandra
Walton's mother, each of whom spoke briefly about the impact the
murders had on them and their families.
December 20, 2000 -- Martinez was indicted by
a Tarrant County grand jury for the capital murders of Sandra
Walton and Michael Humphreys.
January 30, 2002 -- Martinez was found guilty
of capital murder.
February 1, 2002 -- Following a separate
punishment hearing, Martinez was sentenced to death.
November 5, 2003 -- The Texas Court of
Criminal Appeals affirmed Martinez's conviction and sentence on
October 4, 2004 -- Martinez's petition for
writ of certiorari was denied by the U.S. Supreme Court.
October 22, 2003 -- Martinez filed an
application for writ of habeas corpus with the state trial court.
December 9, 2003 -- Martinez then filed a
motion to supplement his state application attempting to add two
more claims to his habeas application.
June 2, 2004 -- The state trial court entered
findings of fact and conclusions of law recommending that relief
be denied on Martinez's original claims, and that his
supplemental claims be dismissed as a subsequent application.
September 22, 2004 -- The Texas Court of
Criminal Appeals ultimately adopted the trial court's findings
and conclusions, and denied Martinez's state habeas application.
February 28, 2005 -- Martinez's second
petition for writ of certiorari was denied by the U.S. Supreme
January 10, 2005 -- Martinez filed a federal
petition for writ of habeas corpus in a Fort Worth U.S. district
June 8, 2005 -- The federal district court
denied Martinez the relief requested in his federal habeas
petition, and also denied a certificate of appealability (COA).
August 9, 2005 -- Martinez filed an
application for COA with the Fifth U.S. Circuit Court of Appeals.
March 31, 2006 -- The Fifth Circuit Court
affirmed the judgment of the district court and refusing to
grant Martinez the requested COA.
May 19, 2006 -- Martinez again petitioned the
U. S. Supreme Court for a writ of certiorari.
October 16, 2006 -- The Supreme Court denied
Martinez's petition for certiorari.
August 19, 2008 -- The trial court issued an
order setting Martinez's execution date for Tuesday, March 10,
PRIOR CRIMINAL HISTORY
According to the Texas Department of Criminal
Justice, Martinez had one prior arrest for possessing prohibited
weapons and served 180 days in the Tarrant County Jail before his
current incarceration and death sentence for capital murder.
Fort Worth man executed for double slaying
By Michael Graczyk - The Houston Chronicle
AP March 10, 2009
HUNTSVILLE, Texas A Fort Worth man convicted of
opening fire with an assault rifle to gun down a woman and a
friend after stalking her to collect a debt was executed Tuesday
James Edward Martinez told his mother and
sister, who were watching through a nearby window, that he loved
them and thanked them for everything they had done for him. “I
hope y’all can move on after this,” he said. “I’ll be fine. I’m
fine.” Martinez told them all again that he loved them and added,
“take care, OK?” He then told the warden he had nothing else to
say. As the drugs began taking effect, his mother was overcome
with emotion, sobbing and scratching at the glass that separated
them. “James don’t leave me, you can’t die. Don’t leave me,” she
cried. Officers brought a wheelchair into the room and removed her
and her daughter before Martinez was pronounced dead at 6:17 p.m.
CDT, nine minutes after the lethal drugs began.
Martinez, 34, was condemned for the 2000 fatal
shootings of Sandra Walton, 29, whom he dated briefly, and Michael
Humphreys, 19, a friend of the woman, outside her Fort Worth
Martinez was the 11th Texas inmate executed
this year and the first of two set to die on consecutive nights
The U.S. Supreme Court, some 4½ hours before
Martinez was scheduled for execution, rejected an appeal to halt
the punishment and review Martinez’s case Attorneys for the former
welder and laborer had argued they had a new witness who backed
Martinez’s claim he was at home the night of the slayings.
Prosecutors contended the argument wasn’t new and that a Tarrant
County jury didn’t believe the alibi claim at Martinez’s capital
Walton was shot at least nine times as she
returned home from a late-night fast-food run. Humphreys, from
Arlington, was hit eight times. At the shooting scene, authorities
found 27 shell casings from a high-powered Austrian-made military-type
rifle. “This was a calculated and premeditated act,” said Robert
Foran, an assistant district attorney who prosecuted Martinez. “He
destroyed two people in a matter of seconds. When he was arrested,
he had an arsenal of weapons as well as literature. He was
fascinated with the idea of death.”
Inside a storage bin Martinez rented,
detectives found more than 3,000 rounds of ammunition, bomb-making
components, pistols, illegal knives, illegally modified firearms
and books on killing techniques and body disposal.
Martinez and Walton had dated briefly and
during the relationship he loaned her $1,000. When they broke up,
he demanded repayment quickly. Walton gave him a promissory note,
but told friends Martinez continued to harass and threaten her.
At his trial, Martinez contended a friend was
responsible for the shootings. “It was stored in a rental facility
and another person had access to the store room,” Reagan Wynn, who
defended Martinez at his trial, said of the murder weapon. “All of
us should take pause before we charge forward with the death
penalty. This was a circumstantial case.”
Foran said the case was solid and defense
claims that someone other than Martinez was responsible were
“contradicted by evidence at trial and our investigation.”
Evidence showed Martinez pounded on the door of Walton’s apartment
shortly before the shooting and threatened to break it down.
She and Humphreys, who knew Walton from her job
at an Arlington pool hall, left to get food. When they returned,
gunfire erupted and witnesses saw a man dressed in black, carrying
an assault rifle and running away. Walton was found dead inside
her car. Humphreys was dead about 10 feet away on the apartment
lawn. “I’ve done a lot of murder scenes,” prosecutor Alan Levy
said. “That crime scene was the worst I’ve ever seen.”
Martinez became an early suspect after Walton’s
friends and relatives told authorities how he’d been stalking her.
Authorities examining his cell phone records traced calls to a
ranch in Parker County, just west of Fort Worth, where friends
told investigators about a bag Martinez had asked to be buried.
When the bag was retrieved, detectives found the murder weapon,
black clothing and a pipe bomb. DNA linked Martinez to the
clothing. “We had a pretty compelling case,” Foran said.
Martinez’s mother, Marta, also has a criminal
history. She was given 10 years probation in 1984 for the fatal
shooting of her ex-husband and his fiancee. Humphreys’ father,
Brad Humphreys, also witnessed the execution Tuesday night. It was
his second trip to the death chamber. In 2001, he watched the
convicted killer of his father be given lethal injection. Jeffery
Tucker, 41, was executed for gunning down Wilton Humphreys, 65,
during a robbery.
On Wednesday night, another death row inmate,
Luis Salazar, was set to die for fatally stabbing Martha Sanchez,
28, after crawling through the window of the woman’s San Antonio
home in 1997.
Fort Worth man put to death for late-night
By Melody McDonald - Fort Worth Star Telegram
March 17, 2009
HUNTSVILLE — James Edward Martinez, the Fort
Worth killer condemned for ambushing a woman he once dated and her
male friend, went to his death Tuesday night, thanking his mother
and sister and telling them that he loved them. "I hope you can
move on after this," Martinez told them from the gurney in the
death chamber. "I’ll be fine. I’ll be OK. I love you, too."
Moments later, as the drugs took effect, Martinez took two deep
breaths and closed his eyes.
His mother, Marta, stood against the window,
clawing the glass, wailing and screaming. "Don’t go James! You
can’t die. I need you," she cried. "You died for a lie. James,
James come back!" Minutes later, Marta Martinez collapsed and had
to be taken away in wheelchair. She and her daughter, Nancy Grulke,
were not present when the doctor pronounced his time of death at
Martinez, 34, did not acknowledge the family of
his victims, who watched him die from a separate room. "It is a
shame to think all of this could have been avoided," said Brad
Humphreys, whose son, Mike, was killed.
In the early part of 2002, Martinez was
sentenced to death for killing Sandra "Sandy" Walton, 29, a woman
he once dated, and her friend, Mike Humphreys, 20, of Arlington.
Walton was Martinez’s intended target; Humphreys was in the wrong
place at the wrong time. According to court testimony, Martinez
had been harassing and threatening to kill Walton, demanding that
she repay the $1,000 he gave her while dating. Walton filed
numerous police reports against Martinez but was unable to get a
protective order because she had never married, lived with or had
a baby with Martinez.
In the early morning hours of Sept. 21, 2000, a
group of people were hanging out at Walton’s apartment in the 5000
block of Ridglea Lane when Walton and Humphreys decided to go on a
late-night food run to a nearby Wendy’s. When the pair pulled back
into Walton’s west Fort Worth apartment complex just after 1 a.m.,
a man clad in black and armed with a rare assault rifle sprayed
them with at least 27 bullets before trotting away. Walton’s
bullet-torn body was found in her car; Humphreys was in the grass
After the shooting, authorities said Martinez
drove to a Parker County ranch and left a duffel bag containing
the murder weapon and black clothing with longtime friend Casey
Ashford, who buried it. Ashford later told detectives about the
bag and cooperated with prosecutors in exchange for three years’
deferred adjudication probation.
Martinez declined a request for an interview.
But Martinez’s mother, Marta, steadfastly maintained her son’s
innocence in a recent interview, saying her son was home with her
at the time of the killings and that Ashford was the one who
committed the crimes.
Marta Martinez said she was holding out hope
until the last moment that her son would be vindicated and the
truth would come out. "I don’t want my son to die over a lie,"
Marta Martinez said recently. "He is innocent." Although Martinez
filed some last-minute appeals, all were denied.
Martinez spent his final hours sleeping,
reading, drawing, and visiting with his friends and family. He
requested a final meal of three chili cheese hot dogs with extra
cheese on the side, fried okra with ketchup on the side, french
fries with ketchup on the side and vanilla coke or regular coke.
Just after 6 p.m., Martinez’s mother and sister
filed into a room reserved for them to witness his last moments.
When the warden asked Martinez if he had any final words, he said:
"Yes, sir. I want to tell my mom that I love her and thank her for
everything she has done for me," he said. "Tell my sister that I
love her, too, and thank her for everything she has done for me."
Nearly 25 years ago, Martinez’ mother also
found herself on the wrong side of the law when she was convicted
of murder for killing her ex-husband and his fiancée. She was
given probation, however, after jurors heard that she killed to
protect herself from a beating and was a devoted, hardworking
mother who regularly attended church. The victim’s families
watched Martinez execution through a window in a separate room in
the death chamber.
Witnesses representing Walton’s family included
her mother, Dorinda March, and her sister, Sheila Lomprey. After
Walton was killed, the pair successfully lobbied the Texas
legislature to strengthen the laws on family violence so that
people in dating relationships could obtain court orders against
lovers who threaten violence. The witnesses from Humphreys family
included his mother, Lois, brother, Brandon, stepmother, Carol,
and father, Brad.
For Brad Humphreys, this was his second time to
witness an execution, marking the first time prison officials can
recall a victim witnessing two executions for two separate,
unrelated murders. Twenty years ago, his father was gunned down in
a bizarre robbery committed by an ex-con named Jeffery Tucker.
Tucker was given the death penalty - a sentence that was carried
out on Nov. 14, 2001.
Currently, there are 347 inmates on Texas’
Death Row. Martinez was the eleventh person executed this year.
The next Tarrant County inmate scheduled to die is Terry Lee
Hankins, who killed his wife and his two children in August 2001.
After his arrest, Hankins told authorities where to find the
bodies of his father and his sister, whom he murdered in 2000.
James Edward Martinez briefly dated Sandra
Walton, and gave or loaned her money from time to time. In May of
2000, Sandra signed a promissory note reflecting that she owed
Martinez $1,000. Martinez became fixated on obtaining repayment
from her, stalking, harassing, and threatening Sandra on numerous
On the night of her murder, Martinez pounded on
Sandra's door, threatening to break it down if she did not open
the door. He had earlier told Sandra that her time was almost up.
Sandra and Michael Humphreys, who was visiting, went out to get
something to eat. When they returned, at approximately 1:00 a.m.
on September 21, 2000, they were shot to death with a high-powered
Witnesses saw a man dressed in black trotting
away from the scene. Police found twenty-seven shell casings at
the scene. Sandra was shot nine or ten times; Michael was shot
eight times. On the night of the murders, Martinez called Casey
Ashford, a long-time friend, several times. Martinez drove to the
farm where Ashford was staying to deliver a black canvas bag for
Ashford to keep. Ashford looked in the bag and saw the rifle later
determined to be the murder weapon, among other items. He buried
the bag, but later disclosed its location to police.
Ashford later pleaded guilty to tampering with
evidence and received three years deferred adjudication. When
police opened the bag, they found the rifle, a bag of fertilizer,
a fuse, dark clothing, combat boots, gloves, a pipe bomb, a ski
mask, a double-edged knife, a bulletproof vest, and ammunition. At
trial, Martinez tried to pin the blame for the murders on Ashford.
His mother and brother testified that he had
been at home on the night of the murders. He also showed that
Ashford lied several times when dealing with the police and that,
prior to the murders, Ashford had had access to the murder weapon.
At the punishment phase of the trial, the State introduced items
that had been kept by Martinez in a storage facility. They
included bomb-making components, over 3000 rounds of ammunition,
other weapons, including two pistols, several illegal knives,
illegally modified shotguns, and several rifles. Also introduced
were four books bearing the notation “completed reading by James
Martinez”: Be Your Own Undertaker: How to Dispose of a Dead Body;
Master's Death Touch: Unarmed Killing Techniques; 21 Techniques of
Silent Killing; and Dragon's Touch: Weaknesses of the Human
The State also offered victim-impact testimony
by Humphreys' father, mother, and stepmother, and Walton's mother.
Martinez called a number of people to testify that they had not
known him to be a violent person and did not believe he would
commit any more crimes in the future. None of them seemed to know
Martinez very well, except his mother and brother, and most of
them did not know (or admit that they knew) about his extensive
collection of weapons and the books Martinez had read. Wilton
Humphreys, the grandfather of Michael Humphreys had been murdered
12 years before Michael's death. Michael's father Brad Humphreys
had witnessed the execution of Jeffrey Tucker just months before
Michael was killed by Martinez.
UPDATE: James Martinez was executed by
lethal injection. James Edward Martinez told his mother and sister,
who were watching through a nearby window, that he loved them and
thanked them for everything they had done for him. “I hope y’all
can move on after this,” he said. “I’ll be fine. I’m fine.”
Martinez told them all again that he loved them and added, “take
care, OK?” He then told the warden he had nothing else to say.
Execution Information Center by David Carson
James Edward Martinez, 34, was executed by
lethal injection on 10 March 2009 in Huntsville, Texas for the
murder of two people in their car.
Martinez had a brief relationship with Sandra
Walton in 2000, during which he loaned her $1,000. After the
relationship ended, Martinez began stalking, harassing, and
threatening Walton, and demanding repayment of the loan. On 21
September 2000, Martinez, then 26, went to Walton's condominium in
Fort Worth. He stayed outside for about 20 or 30 minutes, knocking
on Walton's door and telling her, "Your time is almost up." Later
that evening, Martinez confronted Walton, 29, and her friend,
Michael Humphreys, 19, as they were returning from a trip to buy
fast food. He fired 20 to 27 shots from a .223-caliber rifle into
their car, hitting Walton nine times and Humphreys eight times.
Walton died in the driver's seat of her car. Humphreys died about
10 feet from the car.
Police found pistols, illegally modified
firearms, illegal knives, bomb-making components, and more than
3,000 rounds of ammunition in a storage unit Martinez had rented.
The storage unit also contained four books: "Be Your Own
Undertaker: How to Dispose of a Dead Body", "Death Touch: Unarmed
Killing Techniques", "21 Techniques of Silent Killing", and "Dragon's
Touch: Weaknesses of the Human Anatomy". All four books were
signed, "completed reading by James Martinez". A promissory note
for $1,000 that Walton gave to Martinez in May 2000 was also in
the storage unit.
At Martinez's trial, Casey Ashford testified
that a few hours after the murders took place, Martinez went to
the ranch where Ashford lived and asked him to keep a black canvas
bag for him. The next day, Ashford heard of the murders and looked
inside the bag. He saw a rifle, and decided to bury the bag under
a water tank on the ranch. Some time later, Ashford told Pat
Machak, the owner of the ranch, about the bag. Machak then
contacted the police. When police opened the bag, they found a
Steyr/Aug .223-caliber rifle, ammunition, a bullet-proof vest, a
double-edged knife, a pipe bomb, a fuse, a bag of fertilizer, dark
clothing, and a ski mask.
Martinez had a prior arrest for possessing
prohibited weapons. He served 180 days in county jail for that
A jury convicted Martinez of capital murder in
January 2002 and sentenced him to death. The Texas Court of
Criminal Appeals affirmed the conviction and sentence in November
2003. All of his subsequent appeals in state and federal court
At his execution, Martinez expressed love to
his mother and sister. The lethal injection was then started. He
was pronounced dead at 6:17 p.m.
Martinez v. State, Not Reported in
S.W.3d, 2003 WL 22508081 (Tex.Cr.App. 2003) (Direct Appeal).
Background: Defendant was convicted in the
trial court, Tarrant County, of capital murder and was sentenced
Holdings: On automatic direct appeal, the Court
of Criminal Appeals, Cochran, J., held that: (1) defendant waived
error on appeal, on the issue that the indictment charging him
with capital murder was fundamentally defective because it did not
allege future dangerousness; (2) out-of-court statements of
eyewitnesses were inadmissible under the hearsay exception of
excited utterances; (3) unauthenticated hearsay accusation by an
unidentified witness, made eleven years earlier, could not be
admitted to establish that witness had knowledge of how to make
pipe bomb; and (4) defendant was not entitled to a mistrial.
COCHRAN, J., delivered the opinion of the
In February of 2002, appellant was convicted of
capital murder for the shooting deaths of a man and woman in Fort
Worth. Tex. Pen.Code Ann. § 19.03(a). The evidence showed that
appellant was angry at the woman because she allegedly owed him
money. Pursuant to the jury's answers to the special issues set
forth in Texas Code of Criminal Procedure Article 37.071, § 2(b)
and 2(e), the trial judge sentenced appellant to death. Art.
37.071 § 2(g). FN1 Direct appeal to this Court is automatic. Id.,
§ 2(h). Appellant raises eight points of error. We affirm.
FN1. Unless otherwise indicated this and all
future references to articles refer to the Texas Code of Criminal
In his first point of error, appellant claims
that the indictment was fundamentally defective because it did not
allege future dangerousness. He relies on Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to
support his contention.
The United States Supreme Court issued its
opinion in Apprendi in 2000, approximately two years before this
case went to trial. Appellant did not object to the indictment
prior to trial. Thus, he has waived error on appeal with respect
to his argument regarding Apprendi. Tex.R.App. P. 33.1.; Studer v.
State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990).
Ring, which was issued after appellant was
convicted, requires that any fact (other than prior convictions)
that increases the maximum penalty be proved beyond a reasonable
doubt. Ring, 536 U.S. at 600. The Supreme Court focused on facts
which would increase punishment over the statutory maximum. The
statutory maximum punishment in Texas capital murder cases is
death. Tex. Pen.Code § 19.03(b). Including the issue of future
dangerousness in the indictment would not allow the State to seek
a more severe punishment. Accordingly, Ring does not apply. See
Resendiz v. State, 112 S.W.3d 541 (Tex.Crim.App.2003); Allen v.
State, 108 S.W.3d 281 (Tex.Crim.App.2003). Appellant's first point
of error is overruled.
In his second point of error, appellant
contends that the Texas death penalty scheme is unconstitutional
because it fails to assign a burden of proof to the State to show
a lack of mitigation under the first special issue. We have
previously rejected this identical claim. Jackson v. State, 33 S.W.3d
828, 840 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1068, 121
S.Ct. 2221, 150 L.Ed.2d 213 (2001). Appellant makes no argument
that Jackson was wrongly decided or should be overruled. His
second point of error is overruled.
In his fourth point of error, appellant claims
that the trial court erred in excluding hearsay testimony from a
police detective regarding descriptions of the assailant made by
three witnesses. He contends the witness statements should have
been allowed into evidence as excited utterances.
Detective McCaskill testified that on September
20, 2000, he was called to the scene of a double murder. When he
arrived, he interviewed an eyewitness, Lisa Collins. There were
two other eyewitnesses and, although McCaskill did not interview
them, he was familiar with their statements. On cross-examination
during the guilt or innocence phase of trial, appellant asked
McCaskill to relate to the jury the descriptions of the assailant
given by each eyewitness. The State objected to the question as
eliciting hearsay, and the objection was sustained. Appellant made
a bill of exception in an attempt to show that the eyewitness
statements were excited utterances, and therefore, admissible as
an exception to the hearsay rule. After appellant made the bill,
the State re-urged its hearsay objection, and appellant again
argued that the statements were excited utterances. The trial
court sustained the State's objection and excluded the evidence.
Hearsay is a statement made by someone other
than the declarant that is offered to prove the truth of the
matter asserted. Tex.R. Evid. 801(d). Hearsay is inadmissible
unless it falls under one of the exceptions to the hearsay rule.
Tex.R. Evid. 802. An excited utterance, an exception to the
hearsay rule, is a “statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” Tex.R. Evid. 803(2).
The three eyewitnesses in this case gave
conflicting descriptions of the assailant. One described him as
tall and thin, while the other witnesses described him as big and
heavy.FN2 The only argument upon which appellant relies, that the
statements were excited utterances, is not sufficiently supported
by the record. The record shows that Detective McCaskill arrived
at the crime scene about an hour and a half after the murders. He
testified that he believed that the statements the eyewitnesses
gave were made while they were still excited from observing the
murders. When one of the eyewitnesses testified, she agreed with
defense counsel that she was “pretty excited” when she spoke to
Detective McCaskill. Although this is some modicum of evidence
that the eyewitnesses were in an excited frame of mind when they
spoke to the officer, it is thin indeed. There was no evidence
that the eyewitnesses had been in a sustained “excited” state of
mind since the event or that their capacity for reflection and
careful consideration had been stilled. The basis for the excited
utterance exception is that
FN2. When appellant cross-examined McCaskill
regarding the eyewitness statements, he was not offering the
statements to prove the truth of the matter assertedthat appellant
was tall, thin, big or heavy. Rather, the statements were offered
to show conflicting descriptions of the shooter. As such, the
eyewitness statements are not hearsay. Tex.R. Evid. 801(d).
However, appellant did not urge this argument at trial or on
appeal as he is required to do. Tex.R.App. 33.1 & 38.1(h).
“when a man is in the instant grip of violent
emotion, excitement or pain, he ordinarily loses the capacity for
reflection necessary to the fabrication of a falsehood and ‘the
truth will come out.’ “ Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003)
(quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.Crim.App.1972)).
One may become excited at a football game, at an accident scene,
or during a political debate, but that excitement does not mean
that the person has necessarily lost the capacity for mental
reflection and careful thinking as a result. The trial court did
not abuse its discretion in excluding the eyewitnesses' out-of-court
statements because the record supports a finding that appellant
failed to meet the foundation requirements for the excited
utterance exception. Compare Zuliani, 97 S.W.3d at 596 (upholding
trial court's ruling admitting out-of-court statement as an
excited utterance because record supported that ruling).
Even if the trial court erred in its ruling,
harm is not shown. Tex.R.App. 44.2. Two of the witnesses who gave
conflicting descriptions of the shooter testified about their
descriptions at trial. Thus, the jury was aware of the conflicting
descriptions even without McCaskill's testimony. Appellant's
fourth point of error is overruled.
In his third point of error, appellant claims
that the trial court erred in excluding evidence that a State's
witness, Casey Ashford, knew how to make a pipe bomb. Appellant
argues that this evidence should have been admitted under Rule
404(b) to show Ashford might have committed the capital murders in
Ashford testified at the guilt or innocence
phase of trial that he and appellant were long-time friends. In
the early morning hours on the day after the murders, appellant
went to the ranch where Ashford lived and asked him to keep a
black canvas bag. Ashford agreed to keep the bag, and appellant
left. The next day, Ashford heard of the murders and looked inside
the bag. He saw a rifle and decided to bury the bag under a water
tank on the ranch. Some time later, Ashford told Pat Machak, the
owner of the ranch, about the bag. Unbeknownst to Ashford, Machak
contacted the police. When the police interviewed Ashford and told
him they knew about the bag, he told them its whereabouts.FN3 When
the police opened the bag, they found a rifle, a bag of fertilizer,
a fuse, dark clothing, a pipe bomb, a ski mask, a double-edged
knife, a bullet-proof vest, and ammunition.
FN3. Ashford pleaded guilty to tampering with
evidence and received three years deferred adjudication.
On voir dire examination, appellant asked
Ashford if he had ever made a pipe bomb. Ashford replied that he
had not, but he admitted that he had been arrested for possessing
one as a juvenile eleven years earlier. However, the record
reflects that what Ashford actually possessed was a snuff can
filled with .22 caliber bullets and gun powder stuffed into a
candle. It did not resemble the pipe bomb in this case which was a
foot-long piece of “PVC” pipe wrapped in duct tape, which was
capped on both ends, and contained nails. One end of the pipe had
a cannon fuse coming out of it. Appellant then asked Ashford if he
had been expelled from school for selling pipe bombs. He replied
that he had not. Appellant produced an unsigned, undated document
which was titled, “Pipe Bomb,” and asked Ashford if he wrote it.
The document appears to give handwritten instructions for making a
pipe bomb. At the bottom of the document, there is a handwritten
notation that “Mrs. Carter” found the document in “Joey's billfold”
and turned it over to the Crowley Police Department. It states
further that Mrs. Carter “says that this came from Casey Ashford.”
Ashford denied writing the instructions and the trial court
excluded the evidence.
On appeal, appellant argues that the document
shows that Ashford knew how to make a bomb and therefore, could
have been the one who made the pipe bomb found in the canvas bag.
He states further that if this were true, Ashford could have been
the killer in this case because the rifle and the pipe bomb were
found together buried near Ashford's residence.
This Court reviews the trial court's ruling to
exclude evidence under an abuse of discretion standard and will
not reverse the trial court's ruling unless it falls outside the
zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141,
151 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127,
151 L.Ed.2d 82 (2001); Moreno v. State, 22 S.W.3d 482, 487 (Tex.Crim.App.1999).
Rule of Evidence 404(b) states that: Evidence
of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided
that upon timely request by the accused in a criminal case,
reasonable notice is given in advance of trial of intent to
introduce in the State's case-in-chief such evidence other than
that arising in the same transaction.
Even assuming, arguendo, that Rule of Evidence
404(b) applies to witnesses, the trial judge was within his
discretion to rule that an unauthenticated hearsay accusation by
an unidentified witness eleven years earlier did not establish
that Ashford had any knowledge of how to make a pipe bomb like the
one found in appellant's bag. See Salazar, 38 S.W.3d at 151.
Appellant's third point of error is overruled.
In his fifth point of error, appellant claims
that the trial court erred by denying a mistrial when a police
detective testified that appellant took a polygraph test. During
cross-examination of Detective Thomas Boetcher, the following
occurred: [DEFENSE COUNSEL]: Detective Boetcher. When did you say
you talked to Ms. Martinez? [WITNESS]: When I took James [appellant]
home after the polygraph exam-I'm sorry-after my interview with
him. [DEFENSE COUNSEL]: You took him home-first of all, I'm going
to object that's nonresponsive. [THE COURT]: Sustained. [DEFENSE
COUNSEL]: I'd ask the jury be instructed to disregard. [THE COURT]:
The jury is instructed to disregard the last answer of the witness.
[DEFENSE COUNSEL]: I'll ask for a mistrial. I don't think your
instruction can cure the error. [THE COURT]: Denied.
This Court has held that, “where a witness
gives an unresponsive answer which mentions a polygraph test but
does not mention the results of such test, there is no error in
failing to grant a mistrial where the objection is sustained and
the jury instructed to disregard.” Richardson v. State, 624 S.W.2d
912, 914-15 (Tex.Crim.App.1981). The trial court did not err in
declining to grant a mistrial in this situation. Appellant's fifth
point of error is overruled.
In his sixth point of error, appellant claims
that the Texas death penalty scheme is unconstitutional because it
“leads the State to execute an unacceptable number of innocent
defendants.” He relies on United States v. Quinones, 205 F.Supp.2d
256 (S.D.N.Y.2002), to support his argument.
In Quinones, a federal district judge held the
federal death penalty statute unconstitutional. Appellant predicts
that the Second Circuit Court of Appeals will uphold the decision
in Quinones, that the United States Supreme Court will grant a
writ of certiorari, hear arguments in the case, agree with the
Second Court of Appeals and overturn the federal death penalty
statute. However, the Second Circuit reversed the district court's
holding in Quinones after appellant filed his brief. United States
v. Quinones, 313 F.3d 49 (2nd Cir.2002), reh'g denied, 317 F.3d 86
(2003). Regardless, we will not declare the Texas death penalty
scheme unconstitutional based on appellant's prediction as to how
the United States Supreme Court will dispose of a particular
federal death penalty case. Appellant's sixth point of error is
In his seventh point of error, appellant
alleges that the Texas death penalty scheme violates the Eighth
Amendment prohibition against cruel and unusual punishment because
it allows the jurors too much discretion in deciding who receives
the death penalty and who does not. This claim has previously been
raised and rejected. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999);
McFarland v. State, 928 S.W.2d 482, 519 (Tex.Crim.App.1996).
Appellant's seventh point of error is overruled.
In his eighth point of error, appellant claims
that under Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150
L.Ed.2d 9 (2001), the Texas death penalty scheme is
unconstitutional because the mitigation issue “sends mixed signals
to the jury thereby rendering any verdict reached in response to
that special issue intolerably unreliable.” Penry is
distinguishable because the jury in that case received a
judicially crafted nullification instruction. Penry, 532 U.S. at
789-90. Here, appellant received the statutorily prescribed
instruction required under Article 37.071 § 2(e)(1) which does not
contain a nullification instruction. Art. 37.071 § 2(e)(1). Thus,
there is no error. See McFarland, 928 S.W.2d at 488-89.
Appellant's eighth point of error is overruled.
We affirm the judgment of the trial court.
Martinez v. Dretke, 173 Fed.Appx. 347
(5th Cir. 2006) (Habeas).
Background: State inmate who had been sentenced
to death filed petition for habeas corpus relief. The United
States District Court for the Northern District of Texas, 2005 WL
1383350, McBryde, J., denied the petition. Inmate sought
certificate of appealability (COA).
Holdings: The Court of Appeals held that: (1)
trial counsel's failure to argue accomplice witness theory was not
ineffective assistance; (2) trial counsel's presentation of
testimony of corrections expert and psychologist during punishment
phase was not ineffective assistance; (3) claim that trial court
violated inmate's constitutional rights by issuing a jury
instruction that did not perfectly track the mitigation special
issue was procedurally barred; (4) state was not constitutionally
required to bear the burden of proving beyond a reasonable doubt a
negative answer to the mitigation special issue; and (5)
punishment phase jury instruction on special issue of future
dangerousness was not impermissibly vague. Petition denied.
FN1. 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.
James Martinez was convicted and sentenced to
death for the murders of Sandra Walton and Michael Humpreys.
Martinez initially raised 11 claims for relief in his state habeas
petition, and later sought to supplement his petition with
additional claims. After denial of relief in the state court,
Martinez filed his federal habeas petition in the district court,
raising 29 claims for relief. The district court denied relief and
sua sponte denied a certificate of appealability, and Martinez now
seeks a certificate of appealability to appeal the district
court's denial of relief under 28 U.S.C. § 2254.FN2 For the
reasons stated below, we deny COA.
FN2. Martinez ostensibly raises two “issues,”
denominated “Ineffective Assistance of Trial Counsel” and
“Unconstitutionality of Texas Death Procedures as applied to
Appellant.” Each issue, however, comprises several related and
overlapping questions and subparts, some of which are repeated
verbatim from Martinez' initial petition, and some of which are
reformulated and combined versions of issues previously raised.
Because the issues as presented by Martinez are repetitive and
overlapping, certain issues are grouped for purposes of discussion.
Martinez was indicted, convicted, and sentenced
to death in Tarrant County, Texas, for the September 21, 2000,
murders of Sandra Walton and Michael Humphreys. Martinez's
conviction and sentence were affirmed on direct appeal by the
Texas Court of Criminal Appeals, Martinez v. State, No. 74,292,
2003 WL 22508081 (Tex.Crim.App. Nov.5, 2003), and certiorari was
denied by the United States Supreme Court, Martinez v. Texas, 543
U.S. 822, 125 S.Ct. 32, 160 L.Ed.2d 33 (2004).
Martinez filed his state application for writ
of habeas corpus in October of 2003, raising eleven grounds for
relief. In December 2003, Martinez filed a motion to supplement
his writ with additional claims. The trial court entered findings
of fact and conclusions of law recommending that relief be denied
on Martinez's original claims, and that his supplemental claims be
dismissed as a subsequent application. The Court of Criminal
Appeals ultimately adopted those findings. Ex parte Martinez, No.
59,313-01 (Tex.Crim.App. Sept. 22, 2004). The motion for leave to
add claims was treated as a subsequent application and dismissed.
Ex parte Martinez, No. 59,313-02 (Tex.Crim.App. Sept. 22, 2004).
FN3 Martinez's related petition for writ of certiorari was denied.
Martinez v. Texas, 543 U.S. 1189, 125 S.Ct. 1401, 161 L.Ed.2d 193
FN3. The order stated, in pertinent part: This
Court has reviewed the record with respect to the eleven
allegations made by Applicant in his initial application. We adopt
the trial judge's findings and conclusions. Based upon the trial
court's findings and conclusions and our own review, the relief
sought is denied.
With respect to Applicant's two subsequently
filed allegations, we conclude that Applicant has failed to show
the factual or legal bases of his claims were unavailable to him
at the time he filed his initial application. Therefore, those
claims are dismissed pursuant to Code of Criminal Procedure
Article 11.071 § 5. Ex parte Graves, 70 S.W.3d 103 (Tex.Crim.App.2002).
Ex parte Martinez, Nos. 59,313-01 & 59,313-02,
slip op. at 2 (Tex.Crim.App. Sept. 22, 2004). Martinez filed his
petition for federal habeas relief in the federal district court
in January of 2005 and included 29 related and overlapping claims
for relief. The district court denied Martinez's petition,
rejecting each of Martinez's claims in a thorough and reasoned
order. Martinez timely filed a notice of appeal, and although not
requested, the district court sua sponte denied COA as to each of
the 29 claims. This request for COA followed.
The district court succinctly summarized the
facts of Martinez's offense:
Martinez briefly dated Walton, and gave or
loaned her money from time to time. In May of 2000, Walton signed
a promissory note reflecting that she owed Martinez $1,000.
Martinez became fixated on obtaining repayment from her, stalking,
harassing, and threatening Walton on numerous occasions.
On the night of her murder, Martinez pounded on
Walton's door, threatening to break it down if she did not open
the door. He had earlier told Walton that her time was almost up.
Walton and Humphreys, who was visiting, went out to get something
to eat. When they returned, at approximately 1:00 a.m. on
September 21, 2000, they were shot to death with a high-powered
rifle. Witnesses saw a man dressed in black trotting away from the
scene. Police found twenty-seven shell casings at the scene.
Walton was shot nine or ten times; Humphreys, eight.
On the night of the murders, Martinez called
Casey Ashford (“Ashford”), a long-time friend, several times.
Martinez drove to the farm where Ashford was staying to deliver a
black canvas bag for Ashford to keep. Ashford looked in the bag
and saw the rifle later determined to be the murder weapon, among
other items. He buried the bag, but later disclosed its location
to police. When police opened the bag, they found the rifle, a bag
of fertilizer, a fuse, dark clothing, combat boots, gloves, a pipe
bomb, a ski mask, a double-edged knife, a bulletproof vest, and
At trial, Martinez tried to pin the blame for
the murders on Ashford. His mother and brother testified that he
had been at home on the night of the murders. He also showed that
Ashford lied several times when dealing with the police and that,
prior to the murders, Ashford had had access to the murder weapon.
Martinez v. Dretke, 2005 WL 1383350, *2 (N.D.Tex. June 8, 2005)
The district court also summarized the evidence
introduced during the punishment phase of trial: At the punishment
phase of the trial, the State introduced items that had been kept
by Martinez in a storage facility. They included bomb-making
components, over 3000 rounds of ammunition, other weapons,
including two pistols, several illegal knives, illegally modified
shotguns, and several rifles. Also introduced were four books
bearing the notation “completed reading by James Martinez”: Be
Your Own Undertaker: How to Dispose of a Dead Body; Master's Death
Touch: Unarmed Killing Techniques; 21 Techniques of Silent Killing;
and Dragon's Touch: Weaknesses of the Human Anatomy. The State
also offered victim-impact testimony by Humphreys' father, mother,
and stepmother, and Walton's mother.
Martinez called a number of people to testify
that they had not known him to be a violent person and did not
believe he would commit any more crimes in the future. None of
them seemed to know Martinez very well, except his mother and
brother, and most of them did not know (or admit that they knew)
about his extensive collection of weapons and the books Martinez
had read. Martinez also presented testimony of a former custodian
of records for the Texas Department of Criminal Justice, who
testified generally about daily prison routines and classification
Martinez also presented the testimony of Dr.
Mark Cunningham (“Cunningham”), a clinical and forensic
psychologist who testified about recidivism rates for capital
murderers with Martinez's characteristics. Cunningham testified
that there was only a small chance that a person like Martinez
would commit future acts of violence in prison. In rebuttal, the
state offered the testimony of an investigator with the prison
prosecution unit, who testified about violence within the prison
Because Martinez initiated his federal habeas
proceedings after April 24, 1996, his petition and the instant
appeal are governed by AEDPA. Slack v. McDaniel, 529 U.S. 473,
478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In order to appeal
the denial of his petition by the district court, Martinez “must
first seek and obtain a COA” as a jurisdictional prerequisite.
Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003). A COA will only issue if Martinez makes a
substantial showing of the denial of a constitutional right, which
requires a showing that “reasonable jurists could debate whether”
the court below should have resolved the claims in a different
manner or that this court should encourage Martinez to further
litigate his claims in federal court. Id. at 336, 123 S.Ct. 1029 (quoting
Slack, 529 U.S. at 483-84, 120 S.Ct. 1595); Dowthitt v. Johnson,
230 F.3d 733, 740 (5th Cir.2000). The COA determination “requires
an overview of the claims in the habeas petition and a general
assessment of their merits” but not “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.
This court has emphasized that in making the
COA determination, the court must be cognizant of the deferential
standard of review the district court applies under AEDPA. Miniel
v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003), cert. denied, 540
U.S. 1179, 124 S.Ct. 1413, 158 L.Ed.2d 81 (2004). The district
court defers to a state court's adjudication of a petitioner's
claims on the merits unless the state court's decision was: (1)
“contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States;” or (2) “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Id. at 336-37 (quoting
28 U.S.C. § 2254(d)). A state court's decision is deemed contrary
to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts. Id. at 337 (citing
Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000)). A state court's decision constitutes an unreasonable
application of clearly established federal law if it is
objectively unreasonable. Id. (citing Williams, 529 U.S. at
407-08, 120 S.Ct. 1495).
Additionally, AEDPA provides that the state
court's factual findings “shall be presumed to be correct” unless
the petitioner carries “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). “The presumption of correctness not only applies to
explicit findings of fact, but it also applies to those
unarticulated findings which are necessary to the state court's
conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d
941, 948 n. 11 (5th Cir.2001). We now turn to a consideration of
Martinez's specific claims.
Martinez first alleges in his federal habeas
petition that he was denied the right to effective assistance of
counsel because his trial counsel failed to argue that Casey
Ashford was an accomplice witness. Martinez also argues that trial
counsel never informed him of the implications such a theory might
have for his case.
Counsels' primary defense theory in the
liability phase of the trial was that Ashford had acted alone and
that Martinez was not involved in the murders. For obvious reasons,
trial counsel did not conduct voir dire on the accomplice witness
theory, nor request a jury charge on accomplice witness testimony.
In order to prevail on an ineffective
assistance of counsel ground, Martinez must show (1) that his
counsels' performance fell below an objective standard of
reasonableness and (2) that there is a reasonable probability that,
but for his counsels' unprofessional errors, the result of the
proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both
prongs of the Strickland test must be met to demonstrate
ineffective assistance. Id. at 697. Judicial scrutiny of this type
of claim must be highly deferential and Martinez must overcome a
strong presumption that his counsels' conduct fell within the wide
range of reasonable professional assistance. Id. at 689.
As a threshold matter, the district court
observed that the state trial court made extensive findings of
fact and conclusions of law related to the performance of
Martinez's counsel, finding that trial counsel engaged in sound
strategy. Those findings were adopted by the Court of Criminal
Appeals in the habeas proceedings. Martinez makes no attempt,
either in his federal petition or in the instant application for
COA, to show that those findings are not entitled to a presumption
of correctness under 28 U.S.C. § 2254(e)(1). Martinez also makes
no attempt to show that the state court's application of
Strickland was “contrary to, or involved an unreasonable
application” of that precedent.
Moreover, the district court independently
concluded that the record supports the conclusion that Martinez's
counsel employed sound trial strategy. Also, according to
Martinez's trial counsel they raised with Martinez the possibility
of arguing that he and Ashford had acted together, and Martinez
declined to agree with pursuing this strategy. The record fully
supports the district court's conclusion that counsel followed a
conscious and informed decision on trial tactics. Such a decision
cannot be a basis for constitutionally ineffective assistance of
counsel unless it is so ill-chosen that it permeates the entire
trial with obvious unfairness. Crane v. Johnson, 178 F.3d 309, 314
(5th Cir.1999). Martinez fails to make any such showing. Because
reasonable jurists could not debate whether the district court's
conclusion was correct, we deny COA on this issue.
Martinez next argues that his trial counsel
rendered ineffective assistance during the punishment phase. He
complains that his attorneys presented the testimony of two
witnesses, a corrections expert and a psychologist, on the issue
of future dangerousness which was damaging to his defense. The
district court agreed with the state habeas court and concluded
that counsel employed sound trial strategy consistent with
Strickland in deciding to call these witnesses. Again, Martinez
makes no effort to demonstrate that the factual findings of the
state court are not entitled to the presumption of correctness
under 28 U.S.C. § 2254(e)(1), or that the state court's
application of Strickland was “contrary to, or involved an
unreasonable application” of that precedent.
The State's brief exhaustively discusses trial
counsels' decision to elicit the testimony of these two witnesses.
Counsel ultimately determined that the best punishment phase
strategy would be to present evidence tending to show that
Martinez was most likely going to be a “good” and “nonviolent”
inmate in prison. The record makes clear that trial counsel
carefully and deliberately consulted with several experts and
attorneys who had presented similar testimony in death penalty
trials before arriving at the strategic decision to follow this
Moreover, although parts of the witnesses'
testimony was negative, in that both witnesses acknowledged that
there were opportunities for violence in prison, neither
affirmatively testified that Martinez himself posed a threat of
future dangerousness. Even disregarding Martinez's failure to
address the relevant standard of review in evaluating counsels'
strategic decision, Martinez has failed to demonstrate either that
his trial counsel was deficient or that he was prejudiced, both of
which are required under Strickland. Because reasonable jurists
could not debate whether the district court should have reached a
different conclusion, we deny COA on this issue.
Martinez next argues that the state trial court
violated his Eighth and Fourteenth Amendment rights by issuing a
jury instruction that did not perfectly track the mitigation
special issue, and that his trial counsel rendered ineffective
assistance by failing to object to the instruction. Martinez
complains that the trial court's instruction did not track the
special issue on mitigation the trial court required the jury to
The Texas statute calls for a response to a
special issue that asks “[w]hether ... there is sufficient
mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than death sentence be
imposed.” In explaining the special issues, the trial judge
instructed the jury to “consider all evidence ... that militates
for or mitigates against imposition of the death penalty.” (emphasis
added). As we understand the argument, Martinez objects to the
language in the charge, designed to explain the mitigation special
issue, that refers to evidence that “militates for” the death
Martinez admits in his application for COA that
these claims were neither raised on direct appeal nor in his first
state writ application. Instead, these claims were presented for
the first time in the late supplement to his first state habeas
application, which the Court of Criminal Appeals found to be
procedurally barred and dismissed as a subsequent writ. Martinez
made no effort in his federal habeas petition to overcome the
procedural bar, and therefore the district court denied relief
based on the procedural default.
Procedural default of a petitioner's federal
habeas claim occurs where the last state court to consider a claim
“clearly and expressly” dismisses it based upon a state procedural
rule that provides an adequate basis for denial of relief,
independent of the merits. Coleman v. Thompson, 501 U.S. 722, 729,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243
F.3d 215, 218 (5th Cir.2001); Nobles v. Johnson, 127 F.3d 409, 422
(5th Cir.1997). The “independent” and “adequate” requirements are
satisfied where the court clearly indicates its dismissal of a
particular claim rests upon a state ground that bars relief, and
that bar is strictly and regularly followed by the state courts.
Finley, 243 F.3d at 218.
In this case, the Texas Court of Criminal
Appeals expressly based its dismissal of Martinez's new claims
raised in his subsequent state writ application on an independent
procedural bar. Martinez, therefore, may not obtain federal habeas
relief absent a showing of cause for the default and actual
prejudice that is attributable to the default. Murray v. Carrier,
477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986);
Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d
However, Martinez has made virtually no effort
to show cause for his failure to bring these claims in his first
state writ petition. Instead he asserts, without elaboration or
citation to the record, that the default was “due to the fault of
appointed state habeas corpus counsel.” However, error by counsel
committed in a post-conviction proceeding, where there is no
constitutional right to counsel, cannot constitute cause. Jones v.
Johnson, 171 F.3d 270, 276-77 (5th Cir.1999); Irving v. Hargett,
59 F.3d 23, 26 (5th Cir.1995). Martinez has completely failed to
offer any cause sufficient to meet the requirements to overcome
the procedural bar on these claims, and no reasonable jurists
could debate whether the district court should have reached a
different conclusion. We therefore deny COA on this issue.FN4
FN4. On the merits, we also see no error in the
instruction that approaches constitutional error. The instruction
attempts to give the jury a balanced explanation of their duty to
consider all the relevant evidence.
Martinez next argues, based on a strained
reading of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), that the State must bear the burden
of proving beyond a reasonable doubt a negative answer to the
mitigation special issue. Martinez's theory is incorrect. Apprendi
requires that “other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
In Ring, the Supreme Court applied Apprendi to
the Arizona death penalty scheme, and concluded that to the extent
the sentencing scheme allowed “a sentencing judge, sitting without
a jury, to find an aggravating circumstance necessary for the
imposition of the death penalty,” it was unconstitutional. Ring,
536 U.S. at 609, 122 S.Ct. 2428.
However, the same requirements are not imposed
on the consideration of mitigating facts. The Supreme Court
specifically concluded in Walton v. Arizona that the burden of
proof may lie on a defendant to establish by a preponderance of
the evidence the existence of mitigating circumstances
sufficiently substantial to call for leniency. 497 U.S. 639,
649-51, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (“So long as a
State's method of allocating the burdens of proof does not lessen
the State's burden to prove every element of the offense charged,
or in this case to prove the existence of aggravating
circumstances, a defendant's constitutional rights are not
violated by placing on him the burden of proving mitigating
circumstances sufficiently substantial to call for leniency.”),
overruled in part on other grounds, Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Martinez's theory that the State must prove
beyond a reasonable doubt a negative answer to the mitigation
special issue has been clearly rejected by both the Supreme Court
and the Fifth Circuit. We therefore deny COA on this issue.
Finally, Martinez argues that the punishment
phase jury instruction on the special issue of future
dangerousness fails to give the jury sufficient guidance in
understanding the term “probability.” FN5 However, as the district
court noted, Martinez failed to raise these claims in either his
direct appeal or his state habeas application, so that they are
unexhausted and procedurally barred. Finley v. Johnson, 243 F.3d
215, 218 (5th Cir.2001). As with the barred claims discussed above,
Martinez makes no effort to overcome this procedural bar by
showing any cause for his failure to bring these claims before the
state courts. Moreover, even if Martinez were able to overcome the
procedural bar, his theory is clearly incorrect. As the district
court found, it is well established that the Texas punishment
issues are not impermissibly vague as they have a “common-sense
core of meaning.” Pulley v. Harris, 465 U.S. 37, 50 n. 10, 104
S.Ct. 871, 79 L.Ed.2d 29 (1984); Milton v. Procunier, 744 F.2d
1091, 1095-96 (5th Cir.1984). Reasonable jurists could not debate
either the application of the procedural bar nor the conclusion
that Martinez's substantive argument is flawed. We therefore deny
COA on this issue.
FN5. During the sentencing phase of Martinez's
trial, the jury was charged with answering the following special
Do you find from the evidence beyond a
reasonable doubt that there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society? Tex.Code Crim. Proc. Art. 37.071 §
The claims asserted in Martinez's request for
COA are wholly without merit or clearly subject to procedural bar.
Because we conclude that the district court's denial of relief is
not debatable by jurists of reason, the petition for certificate
of appealability is denied.
James Edward Martinez