Texan put to death in nation’s first execution of '09

By Michael Graczyk - The Houston Chronicle

January 15, 2009

HUNTSVILLE — A man convicted of murdering three people during a night of robberies more than 13 years ago in Fort Worth has been put to death in the nation’s first execution of the year.

Curtis Moore, 40, was pronounced dead at 6:21 p.m. on Wednesday, eight minutes after the drugs began flowing in a lethal injection. He had exhausted his appeals in the courts, and the Texas Board of Pardons and Paroles earlier this week refused a clemency petition that said he could be mentally retarded and ineligible for the death penalty. Courts earlier rejected similar mental retardation claims.

In a brief, final statement, Moore thanked a woman who administers to the spiritual needs of death row inmates. “I want to thank you for all the beautiful years of friendship and ministry,” Moore told Irene Wilcox as she watched through a window a few feet from him. Moore never acknowledged a man who survived his attacks or five relatives of the three who died.

He already made one trip to the Huntsville death house, in 2002, but was returned less than three hours before he could have received lethal injection when the U.S. Supreme Court agreed his mental retardation claims could be reviewed. In October 2008, the high court refused his appeal, clearing the way for Wednesday’s punishment date.

Moore was condemned for the fatal shootings of Roderick Moore, 24, who was not related to him, and LaTanya Boone, 21, both of Fort Worth. The two were found shot to death in a roadside ditch across from a Fort Worth elementary school in November 1995. That same night, firefighters summoned to put out a car fire found Darrel Hoyle, 21, of Fort Worth, and Henry Truevillian Jr., 20, of Forest Hill, shot and burned.

Truevillian, robbed of $5, was dead. Hoyle, robbed of $150, survived and helped lead police to the arrest of Moore and his nephew, Anthony Moore, then 17. The three men were abducted after agreeing to meet Curtis Moore and his nephew at a stable where Roderick Moore boarded and trained horses. Boone was abducted from the apartment she shared with Roderick Moore, her boyfriend.

Testimony at Curtis Moore’s trial showed the shootings culminated a drug ripoff, that he doused Hoyle and Truevillian with gasoline and ignited them as they were bound and in the trunk of a car.

Hoyle, who regained consciousness six days after he was attacked, gave information that led authorities to Moore’s nephew, who also was known as “Kojak.” Hoyle also told authorities he didn’t know the name of “Kojak’s” partner but that he drove a pink truck. Curtis Moore had such a vehicle and he and his nephew were both arrested about two weeks later.

Moore’s hands and arms still showed burns he suffered when, authorities said, he tried to keep Hoyle from fleeing the flames.

At the punishment phase, prosecutors showed jurors Moore’s violent past, including prison time for theft, robbery and weapon and drug possession. Testimony showed he was responsible for a stabbing while in jail awaiting trial. “He kept giving us more evidence,” Joetta Keene, who prosecuted Moore, recalled.

Moore blamed his nephew, who pleaded guilty to two counts of murder in exchange for two life prison terms, for the slayings and contended he tried to rescue the victims from the burning car. But he acknowledged holding them at gunpoint and ordering them hogtied and stuffed into the trunk of the car.

Moore’s trial lawyer, George Gallagher, said once jurors convicted Moore, there was little he could do to prevent them from deciding on the death penalty because Moore wouldn’t allow him to put on an aggressive case during punishment. “When he was found guilty, he said if they want to kill me, let them kill me,” Gallagher, now a state district judge, said. “He told us: Don’t put on any mitigating stuff.” He also didn’t want family members put on the stand for him or any kind of psychiatric testimony that might be favorable to him.

Moore is the first of six prisoners scheduled to die this month in Texas, the nation’s most active death penalty state.

Man who killed 3 people in 1995 Fort Worth robbery spree is executed

Dallas Morning News

AP - January 15, 2009

HUNTSVILLE, Texas – A man convicted of murdering three people during a night of robberies more than 13 years ago in Fort Worth was executedWednesday.

In a brief final statement, Curtis Moore, 40, thanked a woman who administers to the spiritual needs of death row inmates. "I want to thank you for all the beautiful years of friendship and ministry," he told Irene Wilcox as she watched through a window a few feet from him. Moore never acknowledged a man who survived his attacks or five relatives of the three who died.

Moore was the first of six prisoners scheduled to die this month in Texas, the nation's most active death penalty state.

He was condemned for the fatal shootings of Roderick Moore, 24, who was not related to him, LaTanya Boone, 21, and Henry Truevillian Jr., 20, in November 1995. Twenty-one-year-old Darrel Hoyle was shot and burned, but he survived.

Curtis Moore

ProDeathPenalty.com

Darrel Hoyle and his friends Henry Truevillian and Roderick Moore (no relation) met Curtis Moore late in the evening of Nov. 29, 1995. Curtis was with his nephew, Anthony Moore, then 17 years old. The five men agreed to meet to make a cocaine deal at a house on Pate Street that belonged to Curtis' sister. Henry and Roderick rode with Darrel in his beige, four-door Cutlass and Curtis and Anthony rode in a blue Oldsmobile that Curtis said he borrowed from a friend.

When they arrived at the Pate Street house, Darrel and Anthony waited outside and talked. The three other men went inside. About five minutes later, Darrel and Anthony entered the house. The five men talked in the kitchen for a while and then Curtis and Anthony went into the bathroom together. Moments later, Curtis came out of the bathroom shouting, "This is a jack," which in street language means a robbery. Curtis took $150 from Darrel and $5 from Henry.

While Curtis held a gun on Darrel, Henry and Roderick, he told Anthony to tie up the three men. Anthony tied the victims' hands and feet. Curtis then put Darrel and Henry in the trunk of Darrel's car. From what Darrel could ascertain from inside the trunk, Curtis drove, Anthony rode in the front passenger seat and Roderick rode in the back seat. After a while, the car stopped and Darrel heard Curtis say that the car was out of gas. Curtis went to get gasoline and told Anthony to keep the gun pointed at Roderick. Curtis returned about 10 minutes later, put the gasoline in the car, and drove on.

The car stopped sometime later and Darrel assumed that they were at Roderick's house because he heard Roderick's girlfriend, LaTanya Boone, scream after hearing a gun shot. Darrel assumed that LaTanya and Roderick were put into another car because he did not hear them again. The car stopped again, this time Curtis asked Darrel and Henry if they were trying to get loose. Curtis then drove on.

Around 2:00 a.m. on November 30, the car stopped again on Wilbarger Street in southeast Tarrant County. Darrel heard Curtis get out of the car and moments later the trunk opened. Curtis fired a gun at Darrel and Henry and then closed the trunk. Darrel heard Henry say, "Oh, I'm hit." Curtis opened the trunk again and poured gasoline on Darrel and Henry. Curtis closed the trunk until it was open only enough to stick in his hand. Darrel heard the flick of the lighter and then his and Henry's clothes caught on fire. Curtis tried to close the trunk but Darrel kicked until it opened. Darrel pulled Henry and himself out of the trunk and ran. When he realized that he was on fire, Henry dropped to the ground and rolled.

Curtis then gave chase, while Darrel ran into the woods on the other side of the street. When Curtis caught up to him, he stepped on Darrel's neck and threatened his life. Darrel played dead and Curtis left him alone and walked back to the cars. Darrel then got up, ran farther into the woods and found a hiding place. He watched his car burn and then saw what appeared to be an explosion.

When Curtis realized that Darrel was gone, Curtis removed his shirt and yelled that he was going to kill Darrel. Darrel heard sirens and saw Curtis run toward the highway. He saw a blue Oldsmobile that looked like the one Curtis had been driving earlier, drive toward the highway. When the fire trucks and police arrived, Darrel ran up to them. He was able to tell a fireman his and Henry's name, but was unable to tell them anything else because he was in shock and burned on about 60 percent of his body.

Henry Truevillian died later of multiple gunshot wounds in the chest and abdomen, burns and smoke inhalation, authorities said. Later that morning, the police were called to a crime scene on David Strickland Street, not far from the Wilbarger site, where the bodies of LaTanya and Roderick were found shot with a 9 mm gun. Darrel gave a statement to the police when he regained consciousness six days after he was shot and burned. When Darrel gave his statement to the police, he told them Anthony's street name -- Kojak -- and that Anthony attended O.D. Wyatt High School. He also told police that he did not know Curtis' name, but he knew Curtis drove a pink truck.

With that information, the police were able to find Curtis and Anthony and arrest them on December 12. After his arrest, Anthony led police to the 9 mm gun that a ballistics expert testified had been used to kill LaTanya and Roderick.

At age 12, Curtis Moore was detained for running away, resulting in confinement at a juvenile detention center. He was subsequently released to his parents. He was again detained for incorrigibility at age 13, resulting in a voluntary commitment to Boysville Juvenile Home in San Antonio, Texas. He was released to his parents after six months. At age 15, Moore was detained for theft of a bicycle and committed to the Texas Youth Commission. After six months, he was released on juvenile parole, which he successfully completed.

In 1985, Moore was sentenced to six years for robbery by threats. He was released on mandatory supervision in March of 1987, but was returned to custody in September 1987 with a subsequent two year sentence for theft of property over $750. He was released on parole in July 1988. Moore returned to TDCJ as a parole violator in October 1988 on a 15-year sentence for theft from a person. He was released on parole in April 1990, but returned as a parole violator in January of 1991 on a 15-year sentence for possession of cocaine and possession of a weapon by a felon (.357 magnum pistol). He returned as a parole violator in November of 1996 for the current offense.

TDCJ records indicate that while incarcerated, Moore had one minor and one major violation for refusing to groom. Moore also stabbed another inmate in the jaw with an ink pen during a game of dominoes, exclaiming, "I am going to kill your punk ass like I killed your home boys." "This is a very, very bad man," said Chip Wilkinson, the Tarrant County assistant district attorney who is handling the final stages of Moore's case. Anthony Moore, now 24, pled guilty to two counts of murder under a plea agreement and is serving two life prison sentences. Moore had a prior execution date of August 6, 2003 but received a stay.

Moore v. Quarterman, 517 F.3d 781 (5th Cir. 2008) (Habeas).

Background: Following affirmance of capital murder conviction and sentence and denial of habeas claim, petitioner's motion to file successive habeas application was granted. The United States District Court for the Northern District of Texas, John H. McBryde, J., 2007 WL 1965544, denied relief. Petitioner sought certificate of appealability (COA).

Holding: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that petitioner's claim that he was mentally retarded and thus ineligible for death penalty under Texas law did not warrant COA. Application denied.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Curtis Moore was convicted of capital murder in Texas and sentenced to death. After his conviction and sentence were affirmed on direct review, Moore unsuccessfully sought state and federal habeas relief. Following the Supreme Court's decision in Atkins v. Virginia,FN1 Moore sought state habeas relief on a mental retardation claim. The state courts rejected his claim on the merits. Moore then filed a motion for authorization to file a successive habeas application based on the Atkins claim, which we granted. FN2

The district court denied Moore relief on his claim,FN3 and denied Moore's application for a Certificate of Appealability (COA). Moore now seeks a COA from this court. We deny his application for a COA. FN1. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). FN2. See In re Moore, No. 07-10168, 217 Fed.Appx. 350 (5th Cir. Feb.9, 2007) (unpublished). FN3. See Moore v. Quarterman, No. 4:07-CV-077-A, 2007 WL 1965544 (N.D.Tex. July 6, 2007).

Under 28 U.S.C. § 2253(c)(2), a habeas petitioner must obtain a COA in order to appeal the district court's denial of relief. “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’ ”FN4 “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”FN5 “To make such a showing, a petitioner ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ”FN6 FN4. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). FN5. 28 U.S.C. § 2253(c)(2). FN6. ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

As the Supreme Court has explained, “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason.”FN7 FN7. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

In Atkins, the Supreme Court held that the Constitution prohibits executing the mentally retarded.FN8 “The Court ... left ‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,’ but cited with approval the American Association on Mental Retardation (‘AAMR’) definition of mental retardation.”FN9 The Texas courts have adopted a test for mental retardation that mirrors the AAMR definition, and thus require an applicant claiming mental retardation to demonstrate (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; and (3) onset prior to the age of eighteen.FN10 “To state a successful claim, an applicant must satisfy all three prongs of this test.”FN11 FN8. See 536 U.S. at 321, 122 S.Ct. 2242 (“Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender.” (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986))). FN9. In re Salazar, 443 F.3d 430, 432 (5th Cir.2006) (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242). FN10. Id.; see Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004). FN11. Salazar, 443 F.3d at 432.

Because the state court decided Moore's Atkins claim on the merits, the state court decision receives AEDPA deference.FN12 The district court concluded that the state court judgment could not be disturbed: FN12. See 28 U.S.C. § 2254(d), (e).

In short, having independently reviewed all of the evidence, the court concludes that, while there is evidence indicative of perhaps mild mental retardation, there is ample evidence that Moore is not mentally retarded. Consequently, the state court's finding that Moore is not mentally retarded was not unreasonable. See 28 U.S.C. § 2254(d)(2). Moreover, these findings are presumed to be correct unless controverted by Moore with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Moore has failed to meet that burden here. FN13. Moore, 2007 WL 1965544, at *6.

The court also explained that it “views the issue of Moore's mental capacity as one of fact. Even if viewed as a mixed issue of fact and law, the state-court decision on this issue was not contrary to or otherwise involved an unreasonable application of clearly established federal law.”FN14 Id. at *6 n. 13.

Moore presented a thin case of mental retardation. Moore's IQ has been tested numerous times: as reported by Moore, a WISC-R test in 1980 yielded a full-scale score of 68;FN15 a WISC-R in 1981 a full-scale score of 72; a WISC-R in 1984 a full-scale score of 72;FN16 a WAIS-R in 1996 a full-scale score of 76; a WAIS-III in 2003 a full-scale score of 63; and, finally, a WAIS-III in 2004 a full-scale score of 76. While these scores could support a finding of subaverage intellectual functioning, the scores can also sustain a finding that Moore is not retarded. Furthermore, there was conflicting expert evidence introduced at the state habeas proceeding concerning these scores; that is, while some expert opinion supported a finding of subaverage intellectual functioning, there was other expert evidence indicating that Moore did not suffer from such functioning and that he underperformed on at least some of the tests. FN15.

The district court, based on the trial court findings, reported this score as 67 and not 68. Id. at *5 & n. 8. The difference is not material to the outcome. FN16. Moore argues that the result of this test should be heavily discounted because the examiner and circumstances of the test “are unknown and the report is not in evidence.” Discounting the result does not change the outcome.

The evidence as to deficits in adaptive functioning cuts both ways, and the evidence in support of a finding of adaptive limitations is not without problems. Although Moore presented affidavits from those who knew him and the expert opinion of Dr. Rosin describing deficits, there was also credible evidence, both expert and not, that Moore did not suffer from deficits in adaptive functioning. Given the conflicted nature of the evidence, and the weaknesses in the evidence in Moore's favor, Moore cannot overcome the state court's findings.