Pondexter and accomplices Ricky Bell, Deon Williams, and James
Henderson met together and discussed robbing Martha Lennox, a
wealthy 84-year-old woman in Clarksville. They parked a few blocks
On their first attempt to enter the house, they saw a
patrolling police car. The men ran back to their car, but later
returned to Lennox's house. After Pondexter kicked in the front
door, all four of them went inside and went upstairs to Lennox's
bedroom. The victim was there, sitting on her bed. Williams then
took $7 from the victim's coin purse. Lennox was then shot twice
in the head with a 9 mm pistol.
The intruders then fled in the
victim's car. Pondexter and his companions drove Lennox's car to
Dallas, using the money they stole to buy gas. The day after the
murder, they were arrested after attempting to rob a man on the
At Pondexter's trial, Deon Williams testified that
Henderson shot Lennox in the head first, then handed the gun to
Pondexter. Pondexter then shot Lennox in the head and said, "that's
how you smoke a bitch." James Lee Henderson was also convicted of
capital murder and sentenced to death. He remains on death row.
Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App. 1996) (Direct
Pondexter v. Dretke, 346 F.3d 142 (5th Cir. 2003) (Habeas).
Two fried chicken legs, two fried chicken thighs, macaroni and
cheese, biscuits, peach cobbler and lemonade.
"Well, first I want to say. They may execute me but they can't
punish me because they can't execute an innocent man. I am not mad.
Jack Herrington, I am not mad. You were given a job to do but
that's neither here nor there. I am not mad. I am disappointed by
the courts. I feel like I was upset and let down by them. But
that's O.K. I just played the hand that life dealt me. Look at my
life and learn from it. I am very remorseful about what I did. I
apologize. To my kids, Daddy loves you. Irene Wilcox, Thank you.
It's been a long journey. Thank you for being there. Tell Jack
hello. I know I am wrong but I am asking ya'll to forgive me."
Texas Department of Criminal Justice
Willie Earl Pondexter Jr.
Date of Birth: 3/5/74
Date Received: 7/25/94
Education: 11 years
Date of Offense: 3/27/95
County of Offense: Bowie (COV to Red River)
Native County: McCurtain, Oklahoma
Hair Color: Black
Eye Color: Brown
Height: 6' 02"
Prior Convictions: None
Texas Attorney General
Monday, February 23, 2009
Media Advisory: Willie Pondexter Scheduled For
AUSTIN -- Texas Attorney General Greg Abbott
offers the following information about Willie Earl Pondexter, who
is scheduled to be executed after 6 p.m. on Tuesday, March 3,
2009. Pondexter was convicted and sentenced to die for the murder
of Martha Lennox. The evidence presented at trial is as follows.
FACTS OF THE CRIME
On Oct. 28, 1993, Pondexter and four other men
discussed robbing Martha Lennox, an elderly woman. All five men
went to Lennox’s Clarksville home. One of the men left the group,
and the other four others proceeded, with Pondexter kicking in the
front door to Lennox’s home.
The four men entered Lennox’s bedroom, where
the 85-year-old Lennox was sitting on the bed. After taking
Lennox’s money, James Henderson, one of the men, shot the woman in
the head, then handed the gun to Pondexter, who also shot Lennox
in the head. Henderson and Pondexter were tried separately, and
both men were sentenced to death for the robbery and slaying of
A Red River County grand jury indicted
Pondexter on Dec. 14, 1993, for the capital murder of Martha
Lennox. The venue for the case was shifted from Red River County
to Bowie County. On July 19, 1994, a jury found Pondexter guilty
of capital murder. After a separate punishment hearing, the trial
court sentenced Pondexter to death.
On Oct. 16, 1996, the Texas Court of Criminal
Appeals affirmed Pondexter’s conviction and sentence and denied
rehearing on Jan. 29, 1997. The U.S. Supreme Court denied
Pondexter’s petition for a writ of certiorari on Oct. 6, 1997.
On Oct, 31, 1997, Pondexter filed a state
application for a writ of habeas corpus, which he later amended.
The trial court held an evidentiary hearing on Pondexter’s claims.
After a hearing, the court entered findings of fact and
conclusions of law recommending that relief be denied. On Jan. 17,
1999, the Texas Court of Criminal Appeals adopted the trial
court’s findings of fact and conclusions of law in an order
denying Pondexter’s habeas application.
On Nov. 30, 1999, Pondexter filed a federal
petition for writ of habeas corpus in U.S. district court, raising
20 claims for relief. On Sept. 26, 2002, the federal district
court granted relief on Pondexter’s first claim, concluding that
trial counsel’s decision not to consult with and offer the
testimony of a pathologist deprived Pondexter of the effective
assistance of counsel. Because the district court granted relief
on Pondexter’s first claim, it did not address his remaining
nineteen claims and dismissed them as moot. However, the Fifth
U.S. Circuit Court of Appeals later vacated the district court’s
judgment on Sept. 16, 2003, and remanded for further proceedings.
After Pondexter’s appeal was denied by the
Supreme Court, the case was remanded back to the district court,
which issued a second memorandum opinion on Sept. 27, 2006,
rejecting all of Pondexter’s claims and granting the state’s
motion for summary judgment. Thereafter, the Fifth Circuit Court
affirmed the district court’s decision and denied habeas relief on
July 29, 2008. On Dec. 9, 2008, Pondexter filed a writ of
certiorari in the U.S. Supreme Court. The petition is pending. On
Feb. 13, 2009, Pondexter filed a civil rights suit in a U.S.
district court. On Feb. 18, 2009, Pondexter asked the U.S.
district court for a stay of execution. The court denied the
request for a stay.
EVIDENCE OF FUTURE DANGEROUSNESS
In August 1991, Pondexter was seventeen-years
old when the State of Oklahoma adjudicated him a juvenile
delinquent and made him a “ward of the court” based on his
stipulation to having committed assault and battery, trespassing,
and two counts of disturbing the peace in Oklahoma.
In November 1992, a Clarksville, Texas,
policeman arrested Pondexter for unlawfully carrying a weapon.
Pondexter had in his possession a 9MM pistol and a plastic bag of
bullets. In May 1993, Pondexter committed assault and battery with
a dangerous weapon in Oklahoma. He pled no contest to the charges
that followed, and was sentenced to 12-years probation, which
Oklahoma revoked in October 1993 when Pondexter failed to report
and failed to pay supervision fees and court costs in accordance
with his probation terms.
Pondexter later bragged to a former girlfriend
that he committed an assault and battery with a dangerous weapon
offense by shooting a man during an argument. In October 1993,
Pondexter also told the ex-girlfriend that he got away with
shooting another man because his attorney successfully suppressed
his confession to that crime.
The former girlfriend once witnessed Pondexter
wield a gun while chasing someone, but by the time a police
officer arrived on the scene, Pondexter had hidden the weapon. In
June 1993, Pondexter attacked and robbed a man in Oklahoma. On
October 10, 1993, Pondexter was in Oklahoma when he robbed a woman
of her coat and stabbed her in the head, lungs, and stomach with a
pair of scissors while participating in a gang assault of her. On
October 29, 1993, the day after he killed Lennox in Clarksville,
Pondexter and his companions spent Lennox’s money on gasoline and
drove her car to Dallas, where Pondexter suggested robbing a
convenience store. They robbed nearby pedestrians instead.
Inmate executed in slaying of wealthy woman
at her Clarksville home
By Michael Graczyk - The Houston Chronicle
AP March 3, 2009
HUNTSVILLE — An Oklahoma man convicted of
shooting an 85-year-old woman to death during a burglary in far
northeast Texas in 1993 was executed Tuesday night.
From the death chamber gurney, Willie Pondexter
said he didn’t murder anyone, but expressed remorse and apologized
for his involvement in the crime. “I am not mad. I’m a little
upset and disappointed in the courts. I feel I’ve been let down,”
he said. Pondexter said that was all right. “I just played the
hand that life dealt me,” he said. He said he hoped that people
who read about him would “look at my life and learn from it.”
He looked toward the district attorney who
prosecuted him and a distant cousin of his victim and said, “I
know I’m wrong asking you to forgive me.” Before he could say
anything else, the lethal drugs took effect. At 6:18 p.m., nine
minutes after the lethal drugs began, he was pronounced dead.
Pondexter, 34, was one of two men condemned for
the murder of Martha Lennox at her home in Clarksville.
Pondexter was the ninth Texas inmate executed
this year and the first of two scheduled to die on consecutive
nights in Huntsville. Pondexter was a high school dropout from
Idabel, Okla., with an extensive criminal record that began as a
juvenile. At the time of the slaying he was a 19-year-old
unmarried father of two.
The U.S. Supreme Court refused to stop the
execution in a ruling that came less than 30 minutes before he was
scheduled to die.
Pondexter said he was in Lennox’s elegant
Victorian home near the courthouse square the night of Oct. 28,
1993, and acknowledged shooting her but said he didn’t fire the
fatal shot. “I wasn’t the guy who killed her,” he said recently
from death row. “For the part I played in it, I apologize.”
Lennox was shot twice — once in the jaw and
once in the head. A medical examiner testified that either shot
could have been fatal. Pondexter said a companion, James Leon
Henderson, 35, shot Lennox first and then gave the gun to him to
fire the second shot. “At 19, I was like, a follower,” he said.
“If I didn’t go along, you’re a punk. At 19, that’s my thought
Lennox’s family was worth millions and a
foundation in the family name continues its work although neither
she, nor her two older brothers, ever married and now have died.
Pondexter, Henderson and three others involved in the burglary and
slaying fled with less than $20 from her purse and the woman’s
Cadillac. They were arrested hours later in Dallas after trying to
rob a man walking along a street. Pondexter and Henderson received
the death penalty. The three others received prison terms.
Lennox’s home had attracted the interest of the
burglars who watched it during the day and determined she was
living there alone, said Jack Herrington, the Red River County
district attorney at the time who prosecuted Pondexter. Lennox’s
great-great grandfather was a signer of the Texas Declaration of
Independence and she had donated a forest preserve north of town
to the Nature Conservancy in Texas. The family foundation had
assets topping $16 million as of a year ago and continues to make
Less than three weeks before the Lennox
shooting, records showed Pondexter robbed and stabbed an Oklahoma
woman. She testified against him at his murder trial.
In 1997, some three years after arriving on
death row, Pondexter nearly escaped with another condemned inmate
by cutting through a recreation yard fence with a hacksaw blade.
Another condemned inmate, Kenneth Wayne Morris,
was set to die Wednesday for the slaying of a Houston man, James
Adams, who was gunned down during a burglary of his home in 1991.
Two more executions are set for next week.
On the night of October 28, 1993, Ricky Bell,
James Bell, Deon Williams, and Willie Earl Pondexter, Jr. met at
an apartment and discussed robbing “an old lady”. Following this
discussion, the group walked to a corner store, and then to Martha
Lennox's house where they checked to see what kind of car she
owned. Martha was an heiress to millions of dollars of a land-rich
Red River County family.
The group then walked to a trailer park, and
then to a friend’s house. Once there, they met with James Leon
Henderson. Pondexter borrowed a car and all five drove to Annona
to buy beer and go to a club. During the drive to and from Annona,
the five talked about robbing “the old lady”, and about “crips and
bloods and stuff”. Specifically, they discussed which crip “had
the heart” to do what they were planning to do to “the old lady”.
On the way to Martha’s house, the group stopped at a store where
they talked about which crip had the heart to knock out a man who
happened to be getting gas. Although Williams and Henderson did
get out of the car, no harm was actually done to the man.
The group drove to Martha Lennox’s house, but
parked the car a few blocks away. On their first attempt to enter
the house, they were scared away by the sight of a patrolling
police car. Four of the five ran back to the car, but James Bell
ran in another direction and was not seen by the rest of the group
again that night.
Pondexter, Henderson, Williams, and Ricky Bell
went back to Martha’s house where Pondexter kicked in the front
door. All four proceeded up the stairs and into the bedroom where
Martha was sitting on her bed. Once all four were in the bedroom,
Williams took the seven dollars that was in her coin purse.
Immediately thereafter, Henderson shot Martha in the head and
handed the gun to Pondexter. Pondexter also shot Martha in the
head, stating “that’s how you smoke a bitch”. The autopsy report,
introduced at trial, identified two gunshot wounds as the cause of
death. The medical examiner, Dr. Guileyardo, testified: both
wounds were inflicted while the victim was still alive; and either
could have killed her. Along that line, Dr. Guileyardo testified:
one bullet entered the left side of the victim’s face (the autopsy
report provided that the bullet entered “at the left aspect of the
face, 6 inches below the top of the head and 2-1/2 inches anterior
to the left ear canal”) and exited below her right ear,
perforating her oral cavity, boring a hole through her tongue, and
shattering her right jawbone; and the other bullet entered the
victim’s forehead, traveled through her brain, and exited at the
back of her head.
The four drove to Dallas and were later
arrested in Martha’s car. James Henderson was tried separately
prior to Pondexter's trial and was also convicted of capital
murder and sentenced to death. Martha's home, land and money were
placed in a foundation for charities in Red River and Lamar
counties. There is a nature trail dedicated to Martha's memory
near Paris, Texas.
UPDATE: From the death chamber gurney, Willie
Pondexter said he didn't murder anyone, but expressed remorse and
apologized for his involvement in the crime. "I am not mad. I'm a
little upset and disappointed in the courts. I feel I've been let
down," he said. Pondexter said that was all right. "I just played
the hand that life dealt me," he said. Pondexter said he hoped
that people who read about him would "look at my life and learn
from it." He looked toward the district attorney who prosecuted
him and a distant cousin of his victim and said, "I know I'm wrong
asking you to forgive me."
Texas Execution Information Center by David
Willie Earl Pondexter Jr., 34, was executed by
lethal injection on 3 March 2009 in Huntsville, Texas for the
murder of a woman during a home invasion robbery.
On the night of 28 October 1993, Pondexter,
then 19, Ricky Bell, James Bell, and Deon Williams met together
and discussed robbing Martha Lennox, a wealthy 84-year-old woman
in Clarksville, which is about 50 miles west of Texarkana. Later
that night, they were joined by James Henderson, 20. Pondexter
borrowed a car, and the men went out to buy beer and go to a club.
They again discussed robbing "the old lady" and discussed which
one of them "had the heart" to do what they planned to do to her.
On the way to Lennox's house, they stopped at a store and
discussed robbing a man who was getting gas there. Again, they
questioned which one of them "had the heart" to do it. Henderson
and Williams then got out of the car, but the group left without
doing any harm to the man. The group then continued to Lennox's
They parked a few blocks away. On their first
attempt to enter the house, they saw a patrolling police car. Four
of the five ran back to their car, but James Bell ran in a
different direction and was not seen again by the others that
night. Pondexter, Henderson, Williams, and Ricky Bell then
returned to Lennox's house. After Pondexter kicked in the front
door, all four of them went inside and went upstairs to Lennox's
bedroom. The victim was there, sitting on her bed. Williams then
took $7 from the victim's coin purse. Lennox was then shot twice
in the head with a 9 mm pistol. The intruders then fled in the
Pondexter and his companions drove Lennox's car
to Dallas, using the money they stole to buy gas. The day after
the murder, they were arrested after attempting to rob a man on
At Pondexter's trial, Deon Williams testified
that Henderson shot Lennox in the head first, then handed the gun
to Pondexter. Pondexter then shot Lennox in the head and said, "that's
how you smoke a bitch."
The prosecution then called another witness,
Michael Kendricks, who was in jail with Pondexter on unrelated
charges. Kendricks testified that Pondexter told him he shot
Lennox in the jaw after she was already dead.
The medical examiner, Dr. Guileyardo, testified
that the victim was shot twice in the head. One bullet entered the
left side of her face and exited below her right ear, shattering
her right jawbone. The other bullet entered her forehead, traveled
through her brain, and exited at the back of her head. Guileyardo
testified that both wounds were inflicted while the victim was
alive, and either could have killed her.
Pondexter's defense was twofold. First, his
lawyers claimed that Pondexter did not shoot the victim at all.
Second, they stated that if Henderson shot the victim in the head
first as Williams testified, then she would have already been dead
when Pondexter shot her. Under Texas law, a jury can find a
defendant guilty of capital murder if it believes he bears
responsibility for the victim's death, even if he does not inflict
the fatal wound. The state did not rely on this "law of parties",
either in its prosecution of Pondexter or its instructions to the
Pondexter had a prior conviction in Oklahoma
for unauthorized use of a motor vehicle. He served two years of a
seven-year sentence before receiving parole in 1992. In May 1993,
Pondexter committed assault and battery with a dangerous weapon in
Oklahoma and was sentenced to 12 years of probation. His probation
status was revoked in October 1993, shortly before Lennox's murder,
for failure to report and pay the required fees. Further testimony
at Pondexter's punishment hearing indicated that he had committed
numerous assaults, batteries, and robberies with weapons in 1993.
A jury convicted Pondexter of capital murder in
July 1994 and sentenced him to death. The Texas Court of Criminal
Appeals affirmed the conviction and sentence in October 1996.
In a subsequent appeal in state court,
Pondexter presented a pathologist, Dr. Bolesta, who distinguished
the two bullet wounds. Bolesta stated that whereas the shot to the
victim's brain was "universally fatal", the shot to her face -
which he said was the second shot fired - was only "potentially
fatal". In response, Dr. Guileyardo testified that either of the
wounds could have caused the victim's death, and she most likely
died from a combination of the two wounds. While Guileyardo said
it could not be determined which wound was inflicted first, he did
state that the presence of blood in the victim's mouth and throat
indicated that her heart was still beating when she was shot in
the face. And, while he agreed with Dr. Bolesta that the brain
wound the victim suffered "is usually a fatal wound", he said that
it would not necessarily be instantly fatal. He further stated
that there was no blood found in the victim's lungs, due to the
swelling of her tongue and the loss of control of her jawbone.
This, he said, was persuasive evidence that the shot to the face
eliminated any possibility of survival. On cross-examination,
Bolesta admitted that the victim's heart "could have" or "might
have" still been beating when she was shot in the face, and that
no doctor would have declared her dead if her heart was still
beating. The appeals court ruled in the state's favor.
In September 2002, a federal district court
vacated the guilty verdict in Pondexter's case, finding that he
received ineffective assistance from his trial lawyer, who neither
consulted a pathologist for the trial, nor did he interview
witness Michael Kendricks. The following year, however, the U.S.
Fifth Circuit Court of Appeals reversed the district court's
decision and reinstated his guilty verdict. All of his subsequent
appeals in state and federal court were denied.
James Lee Henderson was also convicted of
capital murder and sentenced to death. He remains on death row as
of this writing. According to the Associated Press, Deon Williams
and Ricky and James Bell received prison terms. "I wasn't the guy
who killed her," Pondexter stated in an interview from death row
the week before his execution. He admitted that he shot the victim
after Henderson handed him the gun. He blamed himself for being "a
follower". "For the part I played in it, I apologize."
Martha Lennox was a multimillionaire at the
time of her killing, but neither she nor either of her brothers
ever married. Her family fortune is now under the control of a
charitable foundation that has supported the Nature Conservancy in
"I am not mad," Pondexter said in his last
statement at his execution. "I'm a little upset and disappointed
in the courts. I feel I've been let down." He said he hoped that
people would learn from his life. He then looked toward the
district attorney who prosecuted him and a distant cousin of his
victim and said, "I know I'm wrong asking you to forgive me." The
lethal injection was then started. He was pronounced dead at 6:18
Posted by Brian Stull, Capital Punishment
CAPITAL PUNISHMENT: Texas’s Failed Clemency
Yesterday evening at 6:18 p.m. CST, the State
of Texas executed a man who posed no danger to society; a man who
was universally understood to have undergone complete
transformation and rehabilitation since his 1993 conviction for
burglary and murder. Willie Earl Pondexter, executed two days shy
of his 35th birthday, was a changed man.
Undisputedly, Texas did not execute the same
violent, young person who committed his crime over 15 years ago.
In the words of a corrections officer who had come to know
Pondexter during his incarceration, he "could safely live out his
days in a structured environment." The officer stated, "You would
be hard-pressed to find anyone to say something bad about
Texas justifies its death sentences on a jury’s
finding that a convicted capital murderer will constitute a threat
of future danger if not executed. In 1976, in Jurek v. Texas, the
Supreme Court approved this sentencing scheme, stating that a
jury’s determination of future dangerousness is no "different from
the task performed countless times each day throughout the
American system of criminal justice." The Court cited bail as but
one example. But while a wrong bail decision can later be modified
if turns out a defendant is not a flight risk or risk to the
public, there is no solution when it turns out a jury’s
determination of future dangerousness — and resulting death
sentence — has proven wrong.
Texas law provides no formal mechanism for
revisiting a jury’s determination of future dangerousness —
something that could well spare a condemned person who, like
Pondexter, turns out not to be violent. That leaves the state’s
executive clemency process, the procedure the U.S. Supreme Court
in Herrera v. Collins, called our criminal justice system’s "fail
But the fail safe utterly failed in Pondexter’s
case. The State of Texas thwarted the clemency process by
reportedly harassing Pondexter’s legal team. His attorneys sought
to interview corrections officers and obtain statements that would
affirm his transformation during incarceration. But according to
published accounts and a lawsuit filed by Pondexter’s attorneys,
two Harvard law students who had sought to interview a corrections
officer in Polk County, near Texas’s death row, were reportedly
directed by a sheriff’s deputy to the sheriff’s office, issued
trespassing warnings, interrogated, told they likely would be
jailed if they returned to the guard’s property, and told to
advise the sheriff’s office before returning to the county. Other
officers whom the defense team approached said they feared being
written up or fired if they spoke with the defense team about
Pondexter or signed an affidavit in his favor.
Without the information the guards had to
impart about Pondexter, of course, neither the Texas Board of
Pardons and Parole nor the Governor could make an accurate
determination of whether Pondexter’s extraordinary rehabilitation
warranted sparing him the death penalty in favor of living out the
rest of his days in prison. Pondexter had no meaningful access to
the "fail safe" of clemency.
If Texas’ process for determining who lives and
who dies cannot be relied upon — and Pondexter’s case clearly
exposes that it cannot be — then the state should forfeit its
right to execute anyone.
First of all I would like to say that I hope
and pray that you all are able to greet each day with a simile.
Helen Rice once wrote that friendship is a
priceless gift that cannot be bought or sold but its value is far
greater then a mountain of gold: And this is my reason for this
introduction letter. I am seeking this precious and priceless gift
and if anyone out there can assist me in this endeavour I would be
I was born March 5th 1974. I like to think of
myself as a man with principles and self-respect for myself and
for others. I don’t lie or play head games. I am ambitious despite
standing in death’s shadow here on death row, unlike many men here
I strive to live my life to the fullest every day. I am interested
in getting to know someone and in turn have them to get to know me
and if anyone can appreciate these qualities, then please let
yourself be known. I am seeking someone to not be behind me but
beside me every step of the way. And I am not asking for anything
that I am not willing to give in return. You know sometimes when
we’re at a difficult time in our lifes we don’t reach out for help,
maybe it’s because we’re proud. Maybe we think we’d be bothering
someone with our troubles. Perhaps we’re embarrassed or we might
think that what’s troubling us has never bothered anyone else
before, and we’re afraid to show our fears and our feelings, well
this used to be me, but now I realize that one man can not do this
alone, but am I too late in my realization? I am a stranger in
this prison world and there is a severe solitude and painful
lonesomeness in my exile, is there anyone out there to help break
these chains that have me tied up.
My dear readers please allow me to ask you all
a few questions. Let’s say that you all are going mountain
climbing with a group and one of the guys accidentally slips and
falls over the edge, but when ya’ll look over, you all see that he
is holding on by nothing but his fingernails and you all know that
there is only a certain amount of time before all of his energy is
reduced to nothing and he’s forced to give up and let go. Could
you all as human beings stand there and watch knowing that you all
have the power to save this mans life? Look at him, you all can
see the fear in his eyes. You all can hear the pleading and terror
in his voice as he begs for help. Could you all stand there and
watch all of his strength being zapped away by fatigue and
desperation? Could you all stand there and watch as each finger
slips its hold one by one? And then all of a sudden he looks at
you with tears in his eyes and says: “Tell my children I love them”,
as his last finger slips its hold and he’s falling rapidly towards
the jagged rocks below. So now I ask you, could you sleep at night
knowing that you could’ve played a part in saving a man’s life by
simple throwing him a rope / lifeline?
Please don’t misunderstand me my dear readers.
I am not writing this to make anyone feel a sense of guilt. I am
writing this to say, weather it’s raising a child or running a
corporation or moulding the character of a cell mate. Everyone has
the power and opportunity to impact someone’s life, even if it’s
something as simple as sending a “thinking-of-you-card”. You see
my dear readers. I am that man that is hanging over the edge by
nothing more then my fingernails. My name is Willie E. Pondexter
Jr. and I’ve been sentenced to die by lethal injection for a crime
I did not do, and being here is the equivalence to hanging onto
the side of a cliff. Is there anyone out there to throw me a rope
/ lifeline? I once read that it takes two of us to discover truth:
one to utter it, and one to understand it. Well, I am willing and
ready to utter it, but is there anyone out there willing and ready
to understand it? If there is, please contact me at:
Willie E. Pondexter Jr. #999111
3872 F.M. 350 South
Livingston, Texas 77351 U.S.A.
God Bless You.
Attorneys for Willie Pondexter have filed this
petition with the U.S. Supreme Court, today. He is scheduled to be
executed tomorrow evening.
Last week, Pondexter's attorneys filed a
federal civil rights lawsuit complaining that the Polk County
Sheriff's office and TDCJ were interfering with their ability to
gather evidence to plead for clemency from the Texas Board of
Pardons and Paroles. The U.S. Fifth Circuit Court of Appeals
dismissed the suit without ruling on the questions presented in
Earlier coverage of the harrasment by Polk
County officials is here.
Pondexter's case for clemency is based on
rehabilitation and not being a future danger. Backing that up is
one TDCJ guard who has urged that Pondexter's death sentence be
commuted to life in prison. The Board of Pardons and Paroles would
have to make such a recommendation and the governor would have to
approve the recommendation.
Texas' unique reliance of predictions of future
behavior does not allow any judicial remedy for a faulty
conclusion reached by trial jurors. Only the BPP with the
governor's agreement can make such a correction under the Texas
I discussed this unique Texas criminal justice
problem last October in this post. Here's an excerpt:
Even in Texas the death penalty is supposed to
be reserved for the worst of the worst. One of the unique aspects
of Texas criminal law is a reliance on predictions of future
behavior in determining whether or not a person is sentenced to
death. In order for any person to receive a death sentence, all 12
jurors must agree that the individual will represent a continuing
threat; a future danger. Some have likened it to a ticking time
bomb, bound to explode.
That charge to the jury, “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society,” is
written into the Texas Criminal Code.
Keep in mind that means being a continuing
threat in a prison setting, one of the most secure, locked down
environments on the planet. It means being a danger to cause harm
not to the general public, but to other inmates, prison employees
Eric Nenno assaulted and killed a child in
1995. When he was convicted in Harris County in 1996, all 12
jurors voted that he would be a future danger, and Nenno was
sentenced to death. He faces a scheduled execution tonight in
Huntsville. But what if that prediction was wrong?
Executive clemency in Texas has been criticized
by many criminal justice watchers as failing to live up to its
historic responsibility as a failsafe. The facts of Eric Nenno’s
case called out for serious review by the Board. He has proven on
a daily basis over the past 160 months that he has not been a
continuing threat. He has demonstrated that he is not the worst of
the worst. But the Board of Pardons and Paroles rejected Nenno's
clemency petition, as noted in this earlier post.
The prediction answered in 1996 got it wrong.
It seems that the Texas Board of Pardons and Paroles was not
interested in revisiting the question or how to set it right.
This reliance on predictions of future behavior
was the subject of Texas Defender Service's, "Deadly Speculation:
Misleading Texas Capital Juries with False Predictions of Future
Dangerousness." It was published in 2004.
In 2005, Texas Appleseed and the Texas
Innocence Network published, "The Role of Mercy: Safegaurding
Texas Justice Through Clemency Reform," which examined best
practices in executive clemency.
Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App.
1996) (Direct Appeal).
Defendant was convicted upon jury verdict in
the 102nd Judicial District Court, Red River and Bowie Counties,
Webb Biard, J., of capital murder and was sentenced to death.
Defendant appealed. The Court of Criminal Appeals, Overstreet, J.,
held that: (1) defendant did not establish prima facie violation
of requirement that there be fair cross-section of community
represented on venire; (2) trial court's finding that prosecutor's
use of peremptory strikes on minority veniremembers was
constitutional was not clearly erroneous; (3) evidence of
defendant's gang affiliations and activities was irrelevant and
inadmissible; but (4) erroneous admission of gang affiliations and
activities evidence was harmless; and (5) imposition of death
penalty did not constitute cruel and unusual punishment. Affirmed.
Appellant was indicted for the offense of
capital murder pursuant to V.T.C.A. Penal Code § 19.03(a)(2),
alleging murder in the course of committing and attempting to
commit burglary of a habitation or robbery, alleged to have
occurred on or about October 29, 1993, in Red River County. Prior
to trial, venue was changed from the 6th Judicial District Court
of Red River County to the 102nd Judicial District Court of Red
River and Bowie Counties. In July of 1994, in a trial by jury,
appellant was found guilty of capital murder. The jury answered
the two statutory special issues submitted pursuant to Texas Code
of Criminal Procedure Article 37.071 “yes” and “no” respectively.
The trial court assessed punishment at death. Appeal to this court
is automatic pursuant to article 37.071 § 2(h) V.A.C.C.P. In his
appeal to this court, appellant raises twenty four points of
I. SUMMARY OF PERTINENT FACTS
On the night of October 28, 1993, Ricky Bell,
James Bell, Deon Williams, and appellant met at an apartment and
discussed robbing “an old lady.” Following this discussion, the
group walked to a corner store, and then to the decedent's house
where they checked to see what kind of car she owned. The group
then walked to a trailer park, and then to a friend's house. Once
there, they met with James Henderson. Appellant borrowed a car and
all five drove to Annona to buy beer and go to a club. During the
drive to and from Annona, the five talked about robbing the old
lady, and about “crips and bloods and stuff.” Specifically, they
discussed which crip “had the heart” to do what they were planning
to do to the old lady. On the way to the decedent's house, the
group stopped at a store where they talked about which crip had
the heart to knock out a man who happened to be getting gas.
Although Williams and Henderson did get out of the car, no harm
was actually done to the man. The group drove to the decedent's
house, but parked the car a few blocks away. On their first
attempt to enter the house, they were scared away by the sight of
a patrolling police car. Four of the five ran back to the car, but
James Bell ran in another direction and was not seen by the rest
of the group again that night. Appellant, Henderson, Williams, and
Ricky Bell went back to the decedent's house where appellant
kicked in the front door. All four proceeded up the stairs and
into the bedroom where the decedent was sitting on her bed. Once
all four were in the bedroom, Williams took the seven dollars that
was in the decedent's coin purse. Immediately thereafter,
Henderson shot the decedent in the head and then handed the gun to
appellant, who also shot the decedent in the head. They took the
decedent's car, and drove to Dallas where they were arrested in
the decedent's car.
II. VOIR DIRE
In points of error six and seven appellant
contends that the trial court violated the Sixth Amendment and the
Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution by refusing to dismiss the petit jury array.
Appellant contends that because there was undisputed statistical
evidence to show that African-Americans made up twenty-two percent
of Bowie County and less than ten percent of the veniremembers on
the petit jury array were African-American, the venire did not
represent a fair cross-section of the community as required by
Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579
(1979) and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51
L.Ed.2d 498 (1977).
Prior to trial, appellant filed a motion
challenging the jury array, and a hearing was held. Appellant
introduced evidence that minorities comprised only about ten
percent of the panel, while African-Americans made up about twenty-two
percent of the population of the county. The State countered first
by reminding the court that under Article 35.07 of the Code of
Criminal Procedure, a party may challenge the array only on the
ground that the officer summoning the jury has willfully summoned
jurors with a view to securing a conviction or acquittal. The
State also argued that appellant had not met its burden under the
second and third prongs of Duren.
As set out in Duren, in order to establish a
prima facie violation of the requirement that there be a fair
cross section of the community represented, appellant must show:
1) that the group alleged to be excluded is a “distinctive” group
in the community; 2) that the representation of this group in
venires from which juries are selected is not fair and reasonable
in relation to the number of such persons in the community; and 3)
that this underrepresentation is due to systematic exclusion of
the group in the jury selection process. Duren, 439 U.S. at 364,
99 S.Ct. at 668.
In the instant case, appellant did meet the
first prong of Duren, because the group allegedly excluded is
distinctive; African-Americans. However, for the following reasons,
appellant fails to carry his burden in meeting prong two, a
showing of unfairness and unreasonableness, and prong three, a
showing of systematic exclusion. The record shows that
veniremembers were chosen randomly, by computer through voter
registration, driver's license and identification card
registration lists. There was no evidence introduced by appellant
that showed that the difference between the percentage of African-Americans
in the county and the percentage on the jury panel was in fact not
fair and reasonable. While on its face, ten percent of the array
versus twenty-two percent county-wide raises an inference of
unfairness or unreasonableness, appellant failed to show that the
number of African-Americans who qualified for the selection
process (registered voters, and those with driver's licenses or
identification cards) were of the same or similar percentages as
the population of the county.
Appellant also failed to show “systematic
exclusion.” Appellant brought forth information relating only to
the venire in this case. In May v. State, 738 S.W.2d 261, 269 (Tex.Cr.App.1987),
we stated that “disproportionate representation in a single panel
does not demonstrate the systematic exclusion of distinctive
groups in violation of appellant's rights under the Sixth
Amendment.” Additionally, as previously stated, the veniremembers
were chosen through voter registration, driver's license and
identification card registration by computer. Appellant simply
offered no evidence that the selection process operated in any way
to systematically exclude African-Americans from the panel.
Appellant also complains regarding a violation
of the Equal Protection Clause of the Fourteenth Amendment.
Castaneda, 430 U.S. at 492, 97 S.Ct at 1279, requires a showing of
intentional discrimination. In the instant case, appellant fails
to demonstrate in any manner that the underrepresentation of
African-Americans was caused by intentional acts of the State.
Appellant's sixth and seventh points of error are overruled.
In point of error eight, appellant contends
that the trial court erred in failing to call a new jury array due
to the prosecutor's purposeful use of peremptory challenges
against veniremembers of the same race as appellant. The record
establishes that appellant is African-American and that the State
used peremptory challenges to remove all racial minorities from
the panel. Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), once appellant has established a prima facie
case, the burden shifts to the State to provide race-neutral
reasons for striking the veniremembers in question. Appellant then
has the burden of showing that the race-neutral reasons
articulated by the State were in fact a pretext for discrimination.
Williams v. State, 804 S.W.2d 95 (Tex.Cr.App.1991).
The record supports that appellant did
establish a prima facie case by showing that all of the African-American,
and in fact all racial minority, veniremembers were peremptorily
struck by the State. The State offered the following reasons for
exercising peremptory strikes on the minority veniremembers. The
State explained that veniremember Anthony was struck because of a
health problem that could affect her service as a juror. This
veniremember stated that her problem would affect her ability to
concentrate and be fair. The State explained that veniremember
Brown was struck because she answered in her questionnaire that
she was “pretty much totally against the death penalty,” later
vacillated in her answers concerning the death penalty, and stated
she was a State employee, and that she did not want to serve on
this jury. The State explained that veniremember Sanchez was
struck because she held the belief that based on the fact that
life means life, she would lean towards assessing a life sentence
and therefore may have problems following the law, and that she
believed that the criminal justice system is fair “sometimes.”
Finally, the State explains that veniremember Steptoe was struck
because she held a Masters Degree in Psychology and has had
professional contact with psychologists that may testify in this
In examining a Batson claim on appellate review,
the reviewing court must determine whether the trial court's
findings were clearly erroneous by examining the evidence in the
light most favorable to the trial court's ruling. Williams, supra.
Additionally, “absent some other evidence which rebuts the State's
race-neutral explanation, we will not disturb the trial court's
finding that the State's explanation is legitimate....” Chambers
v. State, 866 S.W.2d 9, 25 (Tex.Cr.App.1993).
After reviewing the record under the above
standards, appellant failed to meet his burden of rebutting the
race-neutral reasons articulated by the State. In fact, there was
no cross-examination of the prosecutor by appellant to invalidate
any of the grounds enunciated by the State. In appellant's only
attempt to meet his burden of persuasion, he did assert that there
were caucasian veniremembers who also had health problems or who
had concerns about the fact that life meant life, and were not
struck by the State. In other words, appellant argued that the
veniremembers who were struck were treated differently than others
with the same problem. However, we have previously held, that “
‘disparate treatment’ as such, cannot automatically be imputed in
every situation where one of the State's reasons for striking a
veniremember would technically apply to another veniremember whom
the State found acceptable.” Adanandus v. State, 866 S.W.2d 210,
224-25 (Tex.Cr.App.1993). Furthermore, we have held that when “the
State has offered numerous race-neutral reasons for its challenge,
we cannot say that the fact that there were other acceptable
jurors possessing one or more of the objectionable attributes, is
sufficient to establish disparate treatment.” Cantu v. State, 842
S.W.2d 667, 689 (Tex.Cr.App.1992). And in all of the State's
explanations, the prosecutor asserted several race-neutral reasons
for challenging each of the veniremembers. After examining the
record, appellant's rebuttal was insufficient to establish that
the State's reasons were a pretext, and we therefore find that the
trial court's finding was not clearly erroneous. Appellant's
eighth point of error is overruled.
In point of error nine, appellant contends that
the trial court erred in failing to require the prosecution to
deliver its notes taken during jury selection to him for use in
cross-examination concerning the credibility of the prosecution's
explanation for his peremptory challenges. As previously stated,
once the State has supplied the court with its race-neutral
explanations, the burden is on the defendant to show that these
reasons are a pretext for racial discrimination. Appellant asserts
that in order to meet this burden, he is entitled to cross-examine
the prosecutor, as well as examine the notes taken by the State
during voir dire. To substantiate this contention, appellant cites
Rules 611, and 614(a) of the Texas Rules of Criminal Evidence. The
State replies by noting that appellant failed to preserve this
point of error by failing to object under Rules 611 or 614(a) at
trial. Additionally, the State insists that the prosecutor was
never called as a witness during this hearing, and that the notes
that were taken do not constitute a “statement” under Rule 614,
and that the notes constituted privileged work product.
Rule 611 provides that when a “witness uses a
writing to refresh his memory for the purpose of testifying either
while testifying or before testifying, an adverse party is
entitled to have the writing produced at the hearing to inspect it,
to cross-examine the witness thereon, and to introduce in evidence
those portions which relate to the testimony of the witness.”
Tex.R.Crim.Evid. 611. The State asserts that the prosecutor was
never called as a witness at this hearing, but we can not agree
with this. Although the prosecutor was not actually sworn as a
witness, he did give testimony to the court regarding the reasons
for his peremptory strikes. However, appellant is only entitled to
the notes if they were actually used by the prosecutor to refresh
his memory. Since there is no evidence from the record to
establish that the prosecutor did in fact use his notes to refresh
his memory during or before his testimony, appellant's contention
under Rule 611 must fail.
Rule 614(a) of the Texas Rules of Criminal
Evidence provides that once a witness has testified on direct
examination, the party who did not call that witness is entitled
to examine and use “any statement of the witness” that relates to
the subject matter of the witness' testimony. According to
appellant, this means that appellant was entitled to the
prosecutor's notes. Appellant failed to mention section (f) of the
same rule. Rule 614(f) provides the definition of a “statement”
for the purpose of this rule. A statement is defined as “a written
statement made by the witness that is signed or otherwise adopted
or approved by him.” Tex.R.Crim.Evid. 614(f). Again, the record
does not establish that the prosecutor's notes were signed or in
any way adopted by him. And even though appellant argues that the
trial court erred in not preserving the notes as part of the
record, it was appellant's duty to request the court to include
the notes as part of the record. Appellant did not make such a
request of the court. For all of the above reasons, the trial
court did not err in failing to require the prosecution to turn
over his notes to appellant, and appellant's ninth point of error
In point of error ten, appellant contends that
the trial court erred in overruling his motion to excuse
veniremember Hall for cause based on her inability to disregard
appellant's failure to testify during the trial. Appellant asserts
that under Article 35.16(c)(2) of the Texas Code of Criminal
Procedure, a challenge for cause should be sustained if the
prospective juror “has a bias or prejudice against any of the law
applicable to the case upon which the defense is entitled to rely[.]”
According to appellant, veniremember Hall testified that she was
unable to set aside her personal beliefs that an accused should
testify on his own behalf if he is indeed innocent of the accused
The State however, is correct in asserting that
appellant has failed to preserve this point of error for review by
this Court. It is well established that “error is preserved only
if the defendant exhausts his peremptory challenges, is denied a
request for an additional peremptory challenge, identifies a
member of the jury as objectionable and claims that he would have
struck the juror with a peremptory challenge.” Nelson v. State,
848 S.W.2d 126, 134 (Tex.Cr.App.1992); Demouchette v. State, 731
S.W.2d 75, 83 (Tex.Cr.App.1986). The record demonstrates that
appellant only used thirteen of his fifteen peremptory challenges.
Since appellant has failed to properly preserve error by
exhausting his peremptory strikes, appellant's tenth point of
error is overruled.
In points of error one, two, three and five,
appellant contends that the trial court erred in admitting
evidence of appellant's purported gang affiliations and activities.
Appellant contends that by admitting this evidence, Rules 401, 403
and 404 of the Rules of Criminal Evidence were violated. Over
defense objection, witness Williams testified that appellant and
his accomplices made statements throughout the night about the
crips gang. They talked about the fact that the crips and bloods
fought one another, and discussed which crip had the heart to do
what they were planning to do to the old lady. Additionally, there
was testimony from this same witness that the group discussed
which crip had the heart to knock out a man who was pumping gas at
a gas station, and that two of the individuals involved performed
a crip handshake after the murder. The State maintains that the
testimony of witness Williams is both relevant under Rule 401 and
as an exception to the general inadmissibility of extraneous acts
under Rule 404(b), and therefore admissible.
Rule 404 explains that generally, evidence of
other crimes, wrongs and bad acts is not admissible during the
guilt/innocence stage of the trial, but § (b) of the rule does
provide for some exceptions to this general rule. FN1 We must also
remember that under Rule 402, in order for any evidence to be
admissible, it must be relevant. This includes Rule 404 evidence,
and so in order to address appellant's 404 claim, we must also
determine if the gang evidence is relevant under Rule 401.
FN1. Rule 404(b) provides that: Evidence of
other crimes, wrongs, or acts is not admissible to prove character
of a person in order to show that he acted 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, upon timely
request by the accused, 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.
The State argues that this evidence of
appellant's gang affiliations and activities is relevant as same
transaction contextual evidence which is an exception to the
general rule prohibiting admissibility of extraneous offenses. The
State claims that in this case it was essential for the jury to
know of the conversations and acts regarding gangs in order for
the jury to have a clear and complete picture of the way the
murder took place. The State is correct in stating that we have
held in the past that the list of exceptions under Rule 404(b) is
“neither mutually exclusive nor collectively exhaustive,” and that
we have previously addressed the issue of same transaction
contextual evidence, finding such to be admissible in certain
cases. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Cr.App.1990);
Rogers v. State, 853 S.W.2d 29, 33 (Tex.Cr.App.1993); and Moreno
v. State, 721 S.W.2d 295 (Tex.Cr.App.1986). In fact, we held that
“it has long been the rule in this State that the jury is entitled
to know all relevant surrounding facts and circumstances of the
charged offense; an offense is not tried in a vacuum.” Moreno v.
State, 721 S.W.2d at 301. And furthermore, “where several crimes
are intermixed, or blended with one another, or connected so that
they form an indivisible criminal transaction, and full proof by
testimony ... of any one of them cannot be given without showing
the others,” this evidence is evidence of same transaction
contextual evidence which is an exception to Rule 404(b) and is
thus admissible. Rogers v. State, 853 S.W.2d at 33. However, in
addressing this issue, it is important that we also take into
consideration the fact that this Court has held that “same
transaction contextual evidence,” is admissible under Rule 404(b)
“only to the extent that it is necessary to the jury's
understanding of the offense.” England v. State, 887 S.W.2d 902,
915 (Tex.Cr.App.1994). Such evidence is admissible only “when the
offense would make little or no sense without also bringing in the
same transaction evidence.” Id.
After examining all of the facts surrounding
the murder in the instant case, we find that the evidence in
question had no tendency to make more probable the existence of
any fact of consequence; the evidence was not relevant under Rule
401. This evidence was introduced simply as an attempt to connect
appellant to gangs in order to show his bad character.FN2 Since
this evidence is inadmissible under Rule 401, there is no need for
a 403 or 404 analysis. Even if we were to assume that the evidence
did pass the requirements of 401, the evidence is still not
admissible as same transaction contextual evidence. Undoubtedly,
the prosecution could have presented a clear and understandable
case explaining how appellant planned to rob and murder the
decedent, without interjecting the unnecessary information about
the gangs. Had the State put on its case without mentioning this
testimony of appellant's connection with gangs, the jury surely
would have had no problems in following and understanding the
sequence of events of the night of the murder. For example,
testimony regarding the crip handshake which occurred after both
the murder and robbery, clearly could not be necessary in placing
the criminal events into context. Because all of the testimony
that was offered about appellant and gangs was not necessary to
the jury's understanding of the capital murder, this testimony was
not same transaction contextual evidence, and thus not admissible
as an exception under Rule 404(b). The trial court erred in
admitting this evidence.
FN2. In oral argument, the State argued that
our holdings in Beasley v. State, 902 S.W.2d 452 (Tex.Cr.App.1995)
and Anderson v. State, 901 S.W.2d 946 (Tex.Cr.App.1995) support
its position that the evidence of appellant's purported gang
activities was correctly admitted by the trial court. In Beasley,
902 S.W.2d at 456, we held that the evidence regarding a
defendant's gang membership is relevant because it relates to his
character and reputation. The critical difference between that and
the case at bar is that in Beasley, we found the gang evidence
relevant and admissible during the punishment phase of the trial.
In the instant case, the evidence connecting appellant with gangs
was introduced at the guilt/innocence phase of the trial. We did
not then, and do not now, hold that evidence of a defendant's gang
affiliations is admissible as character evidence during the guilt/innocence
phase of a trial.
In finding that the trial court erred in
admitting evidence of appellant's gang affiliations and activities,
we must now conduct a harm analysis. Reversal is required, unless
after examining the record, it is determined that the error made
no contribution to the conviction, beyond a reasonable doubt.
Tex.R.App.Pro. 81(b)(2); Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989).
Several factors must be considered by an appellate court before
reaching a decision. Under Harris, the court should: examine the
source of the error, the nature of the error, whether or to what
extent it was emphasized by the State, and its probable collateral
implications. Further, the court should consider how much weight a
juror would probably place upon the error. In addition, the court
must also determine whether declaring the error harmless would
encourage the State to repeat it with impunity. Id. at 587.
Although there is no doubt that the State was
the source of the error by introducing irrelevant evidence of
character conformity, other facts must also be considered. First,
there is no indication in the record that the State emphasized
this gang related evidence. For example, the State made no mention
of appellant's gang activities during either its opening or
closing arguments. In deciding how much weight the jury may have
given this testimony, we must examine the other evidence
introduced at trial. There was only one witness, Williams, who
testified to these gang activities. Furthermore, this was only a
portion of Williams' testimony. He also testified that he actually
saw appellant shoot the decedent. There was further testimony that
appellant told another inmate that he had in fact shot the
decedent. Finally, the jury heard testimony that placed appellant
in possession of the weapon shortly before the murder, and that he
was found and arrested in the decedent's car. Taking all of this
information as a whole, the introduction of the evidence was
harmless beyond a reasonable doubt. After reviewing all of the
evidence, we find that the trial court's error in admitting
evidence of appellant's gang affiliations made no contribution to
the guilty verdict or punishment and was therefore harmless error
in this case. Points of error one, two, three, and five are
FN3. Appellant has also raised a supplemental
point of error which likewise claims reversible error in allowing
the State to introduce character evidence, i.e. of the above-discussed
gang related conversations and handshakes, at guilt/innocence
though he had not put his character in issue. In light of our
conclusion that the admission of such evidence was harmless error
pursuant to Rule 81(b)(2), supra, this supplemental point is
In point of error four, appellant contends that
the trial court violated the First Amendment and Due Process
Clause of the Fourteenth Amendment by admitting evidence of
appellant's purported gang affiliations and activities. It is
clear from the record that appellant made no objection at trial on
this basis. Therefore, appellant has failed to preserve error for
review. Tex.R.App.Pro. 52(a). Point of error four is overruled.
In point of error eleven, appellant contends
that the trial court erred in overruling his hearsay objection and
allowing into evidence a police report. Through the commander of
the property auto pound section of the Dallas Police Department,
the State proffered a copy of a computer generated invoice record
of property, that itemized what was seized from co-actor Henderson
and stored in the property room, as a business record. Appellant
objected that the report was hearsay, and was inadmissible as a
police report which contained matters observed by police officers
or other law enforcement personnel. Appellant's objection was
overruled by the trial court.
We know that the reason for Federal Rule of
Evidence 803(8)(B), after which the Texas rule was modeled, was
the presumed unreliability of observations that are made by
officers at the scene of a crime. United States v. Quezada, 754
F.2d 1190 (5th Cir.1985); Garcia v. State, 868 S.W.2d 337 (Tex.Cr.App.1993).
The reasons for the possible impairment of judgment are not
implicated in situations where officers are conducting routine
business matters, such as the recording of “objective observations.”
Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990). Since this is a
situation where the police officer was performing his ordinary,
routine, duties of recording the property that was taken in and
out of the property room, his observations, and notation should be
presumed reliable. The case at bar is not unlike United States v.
Brown, 9 F.3d 907, 911-12 (11th Cir.1993), where the court held
that the evidence was not inadmissible under 803 because the
property “[wa]s not the type of evidence contemplated by the
exclusion of Rule 803(8)(B).” We agree with the State that this
rationale should be applied in the case at bar. Since the trial
court did not err in admitting the records from the property room,
point of error eleven is overruled.
In point of error twelve, appellant contends
that the trial court erred in allowing the testimony from the
police officer who arrested appellant because probable cause for
such arrest was not put into issue by appellant during the trial.
Appellant asserts that because he stipulated to the fact that
probable cause existed for his arrest, the police officer's
testimony was irrelevant. Officer Antribus testified to the fact
that while on patrol on the night in question, he noticed a blue
cadillac at a closed gas station. After running the cadillac's
license plate, i.e. conducting a computerized registration check,
officer Antribus followed the car to an apartment complex where he
arrested appellant and an accomplice. The entirety of this
testimony was certainly relevant in placing appellant in the
decedent's car in Dallas on October 29, 1993, and corroborating
the testimony of one of the accomplices (Williams). Appellant's
twelfth point of error is overruled.
In point of error thirteen, appellant contends
that the trial court erred in overruling his objection to the
introduction of bullets seized during appellant's arrest.FN4
Appellant claims that the bullets should not have been introduced
into evidence because they were not properly authenticated.
According to appellant, under Rule 901 of the Texas Rules of
Criminal Evidence, before evidence is admissible, it must be
proven that the evidence actually is what the proponent claims it
is, and the police officer could only testify that these bullets
appeared to be the same type as those that were retrieved during
appellant's arrest, not that these were in fact the same bullets.
Courts of appeals have held that evidence should be admitted if
the trial court found that a reasonable juror could find that the
evidence was authenticated. Pena v. State, 864 S.W.2d 147, 152 (Tex.App.-Waco
1993, no pet.); Coleman v. State, 833 S.W.2d 286, 289 (Tex.App.-Houston
[14th Dist.] 1992, pet. ref'd). At trial, Officer Mitchell
testified that he seized a gun and two loaded magazines with 9
millimeter ammunition. He placed all of this evidence in his trunk,
and took it to the property room, where he put them in envelopes
and affixed the completed property tags. Given these facts, there
is no doubt that a reasonable jury could have found that the
police officer's testimony showed that the evidence was
authenticated. Appellant's thirteenth point of error is overruled.
FN4. Though appellant's brief references the
bullets as being seized during his arrest, the record reflects
that the bullets were actually seized during the arrest of co-actor
In point of error fourteen, appellant contends
that the Texas capital sentencing statutes violate the Eighth and
Fourteenth Amendments to the United States Constitution in that
they fail to require that jurors be informed that a single holdout
juror on any special issue would result in an automatic life
sentence. Appellant argues that Article 37.071, § 2(a), which
prohibits informing jurors of the effects of their failure to
agree on the special issues, is unconstitutional. This court has
addressed this issue several times, and has repeatedly held that
there is no constitutional violation in failing to instruct jurors
on the effects of their individual answers. Emery v. State, 881
S.W.2d 702, 711 (Tex.Cr.App.1994); Draughon v. State, 831 S.W.2d
331 (Tex.Cr.App.1992); Nobles v. State, 843 S.W.2d 503, 508-10 (Tex.Cr.App.1992);
Davis v. State, 782 S.W.2d 211, 221-22 (Tex.Cr.App.1989). Point of
error fourteen is overruled.
In point of error fifteen, appellant contends
that the death penalty as currently administered in Texas, is
cruel and unusual punishment under the Eighth and Fourteenth
Amendments to the United States Constitution; and in point of
error sixteen, he contends that the Texas death penalty scheme has
been arbitrarily imposed in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. To substantiate his
contentions, appellant argues that the present Texas capital
sentencing scheme is unconstitutional because it allows open-ended
discretion that is prohibited by the Supreme Court's decision in
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972). The Court in Furman prohibited open-ended discretion by
demanding that sentencing statutes narrow the category of people
who are eligible for capital punishment, and provide a means by
which a determination as to a defendant's death worthiness is done
on an individual basis. The Texas capital sentencing statute meets
these requirements. There is a set category of people who are
eligible for the death penalty. The Supreme Court upheld the
constitutionality of the Texas capital sentencing scheme in Jurek
v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
Points of error fifteen and sixteen are overruled.
In point of error seventeen, appellant contends
that the statutory Penry special issue is facially
unconstitutional under the Eighth and Fourteenth Amendments to the
United States Constitution. It is his assertion that this special
issue allows the type of open-ended discretion that was condemned
by the Supreme Court's decision in Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In actuality, the Court
in Furman was concerned with the open-ended discretion of the
statutes that failed to narrow the list of who was eligible for
the death penalty. There is no prohibition against allowing juries
to decide what evidence is mitigating, and how much weight they
are going to give it. In fact, this Court and the Supreme Court
have both held that this job is best left for the jury to decide.
Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d
750 (1994); Colella v. State, 908 S.W.2d 437 (Tex.Cr.App.1995);
Morris v. State, 940 S.W.2d 610, 614 (Tex.Cr.App.1996). Point of
error seventeen is overruled.
In point of error eighteen, appellant contends
that the admission of unadjudicated extraneous offenses during the
sentencing phase violated the Eighth and Fourteenth Amendments to
the United States Constitution. Under Article 37.071 of the Code
of Criminal Procedure, evidence “as to any matter that the court
deems relevant to sentence” may be presented during the punishment
phase of a capital murder trial. This Court has previously upheld
the constitutionality of allowing evidence of unadjudicated
offenses during the punishment phase of a capital trial. Adanandus
v. State, 866 S.W.2d at 233; Lewis v. State, 815 S.W.2d 560, 566 (Tex.Cr.App.1991);
Kinnamon v. State, 791 S.W.2d 84, 93 (Tex.Cr.App.1990). Because
appellant offers no support from the Constitution for overruling
this line of cases, point of error eighteen is overruled.
In point of error nineteen, appellant contends
that the evidence at trial was insufficient to support the jury's
negative answer to the Penry special issue. Appellant maintains
that this Court should conduct a sufficiency review of the
evidence to determine if the jury's answers to the special issues
were appropriate. In Colella v. State, 908 S.W.2d 437, 448 (Tex.Cr.App.1995),
we refused to conduct such a review. We held that “because the
weighing of ‘mitigating evidence’ is a subjective determination
undertaken by each individual juror, we decline to review the
evidence for sufficiency.” Id. at 448. Because of the subjective
nature of this determination, we defer to the jury's findings.
Point of error nineteen is overruled.
In points of error twenty and twenty-one
appellant makes two related contentions about the Texas death
penalty scheme. First, appellant claims that the trial court's
instructions on the Penry special issue makes meaningful appellate
review of the sufficiency of the evidence supporting that special
issue impossible. Secondly, appellant argues that Texas Code of
Criminal Procedure Article 44.251(a), when interpreted in
conjunction with Article 37.071, § 2(e), is facially
unconstitutional under the Eighth and Fourteenth Amendments to the
United States Constitution. Appellant argues that because the
Penry special issue does not list mitigating and aggravating
factors, and does not require jurors to make specific findings in
that regard, this Court is unable to identify which, if any, of
the factors the jury considered, and consequently, meaningful
appellate review, which is required under the Constitution, is
Appellant is wrong in asserting that meaningful
appellate review is impossible by this Court in capital cases. It
is simply not true that appellate review is impossible in capital
cases simply because there is no definition of mitigation. As is
required by the Eighth and Fourteenth Amendments, Texas does
provide appellate review as a safeguard to ensure that the death
penalty is not arbitrarily or irrationally imposed. Parker v.
Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). The
Texas scheme does adhere to the requirements of Pulley v. Harris,
465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) in providing for
a prompt, automatic review of a death penalty sentence.
Furthermore, a sufficiency review is conducted by this court when
examining the jury's answer to the future dangerousness special
issue. As explained above however, because of the subjective
nature in determining what constitutes mitigating evidence, this
Court does not second-guess that portion of the jurors' decisions.
Chambers v. State, 903 S.W.2d 21 (Tex.Cr.App.1995); Colella v.
State, 908 S.W.2d 437 (Tex.Cr.App.1995). Points of error twenty
and twenty-one are overruled.
In point of error twenty-two, appellant
contends that the Due Process Clause of the Fourteenth Amendment
requires this Court to engage in proportionality review in death
penalty cases. The Supreme court addressed the issue of whether or
not proportionality review in capital cases in required, and has
stated that “we certainly did not hold that comparative review was
constitutionally required,” and there “is no basis in our cases
for holding that comparative proportionality review by an
appellate court is required in every case in which the death
penalty is imposed....” Pulley v. Harris, 465 U.S. 37, 50-51, 104
S.Ct. 871, 879, 79 L.Ed.2d 29 (1984). Although the Supreme Court
recognized that the most logical basis for this claim was under
the Eighth Amendment, it is clear from a thorough reading of
Pulley, that it found no constitutional proportionality review
requirement. Furthermore, in Hughes v. State, 897 S.W.2d 285, 294
(Tex.Cr.App.1994), this Court interpreted the holding of Pulley as
requiring no proportionality review in capital cases under both
the Eighth and the Fourteenth Amendments. Point of error twenty-two
In point of error twenty-three, appellant
contends that the trial court's punishment charge, which
instructed the jury to answer the first special issue
affirmatively if jurors believed that appellant's mitigating
evidence militated in favor of a life sentence, was fundamental
error. Appellant failed to object at trial to the trial court's
instructions on this basis, even though there was an opportunity
for him to do so. For this reason, appellant waives review of this
error. Appellant also claims that this error was fundamental, and
therefore this contention may be raised for the first time on
appeal. There is no basis for appellant's claim that this is
fundamental error. Point of error twenty-three is overruled.
In point of error twenty-four, appellant
contends that the trial court committed reversible error by
refusing to instruct jurors that they should not consider
mitigating evidence in aggravation of punishment. No error was
committed in failing to give the requested instruction to the jury
since such an instruction would have been a misstatement of the
law. As we held in Curry v. State, 910 S.W.2d 490 (Tex.Cr.App.1995),
and Morrow v. State, 910 S.W.2d 471 (Tex.Cr.App.1995), Penry only
requires that juries be provided with a vehicle in which they can
consider mitigating evidence. It is for the jury to determine what
evidence, if any, constitutes mitigating evidence, and how much
weight it should be given. Colella v. State, 908 S.W.2d 437 (Tex.Cr.App.1995).
Point of error twenty-four is overruled.
Having reviewed all of appellant's points of
error, we affirm the trial court's judgment and sentence.
MCCORMICK, P.J., and CLINTON, J., concur in the result.
BAIRD, J., concurs: I concur in the resolution
of point of error eleven, believing the error was cured when the
same evidence was admitted through other sources. I disagree with
the treatment of points of error nineteen, twenty and twenty-one
for the reasons stated in Morris v. State, 940 S.W.2d 610, 616 (Baird,
J., dissenting). I join the remainder of the majority opinion.
MANSFIELD, Judge, concurring.
I join the opinion of the Court. However, for
the reasons expressed herein, I write separately with respect to
points of error numbers one, two, three and four. These points of
error concern the relevancy of evidence of purported gang
membership of the appellant during the guilt-innocence phase of
Evidence presented at trial established
appellant and three other individuals met at an apartment to plan
a robbery of the victim's house. They subsequently walked to the
residence of a fifth individual and then drove to a convenience
store to get some beer. During the drive, the five talked about
the planned robbery and about “Crips and Bloods and stuff.” On the
way to the victim's house they stopped at a store, where they saw
a man pumping gas. They talked about which Crip “had the heart” to
knock out and rob the man. However, no attempt was made to assault
or rob the man, though there was testimony that two of the five
did get out of the car and walked toward the man. Other testimony
at trial showed the five made statements about gangs before and
after commission of the offense and performed “Crip handshakes.”
Deon Williams testified he had no personal knowledge about whether
appellant was a member of the Crips or any other gang. Williams
earlier had testified he had “heard on the street” appellant was
in a gang.
Appellant, prior to trial, filed a motion in
limine to exclude evidence and testimony about gang membership.
Appellant's objections to Williams' testimony concerning
appellant's alleged gang activities were overruled; the trial
court granted appellant a running objection.
“Relevant evidence” is evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence. Tex.R.Crim.Evid. 401.
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of
cumulative evidence. Tex.R.Crim.Evid. 403. Character evidence is
generally admissible at the punishment phase of trial pursuant to
Texas Rule of Criminal Evidence 404(c); use of character evidence
at the guilt-innocence phase of trial is restricted by the
provisions of Texas Rule of Criminal Evidence 404(a).
In Anderson v. State, 901 S.W.2d 946 (Tex.Crim.App.1995),
and in Beasley v. State, 902 S.W.2d 452 (Tex.Crim.App.1995), this
Court found evidence of gang membership to be admissible at the
punishment phase of the defendant's trial as relevant character
evidence. We acknowledged that testimony as to gang membership and
as to the criminal activities of the gang may have been
prejudicial. However, the testimony was not unfairly prejudicial
because the jury was only required to determine the defendant's
character based on his gang membership and they were not required
to determine whether the defendant was guilty of the misconduct or
bad acts of the gang. Anderson, supra, at 950. FN1 Therefore, we
held evidence of gang membership was admissible as character
evidence at punishment under Texas Rule of Criminal Evidence
404(c) and Texas Code of Criminal Procedure Article 37.07, Section
3(a). Anderson, supra, at 952 (Mansfield, J., concurring). We did
not address, in Anderson and Beasley, whether evidence of gang
membership of an accused is admissible at the guilt-innocence
phase of his trial.
FN1. In Anderson, Ferguson, a Fort Worth police
officer, testified as to his personal knowledge of defendant's
membership in a gang called the Canine Posse. Officer Ferguson
testified he observed the defendant on several occasions wearing a
Canine Posse tee shirt. He further testified he saw the defendant
“hanging out” with other Canine Posse members. Finally, Officer
Ferguson testified as to his personal knowledge that the Canine
Posse was involved in the distribution of illegal drugs in and
around the Caville Apartments. In the present case, however, the
only testimony that appellant belonged to a gang was the testimony
of Williams, who admitted he had no first-hand knowledge appellant
was a gang member. There was some testimony appellant and his
accomplices talked about gangs and even performed a gang handshake,
but none of this testimony was evidence of actual gang
membership.FN2 Indeed, this testimony is best characterized as “bragging,”
rather than as probative or reliable. Even assuming, arguendo,
that evidence of gang membership is admissible as relevant under
Rule 401 at the guilt-innocence phase of trial, it is my opinion
that this evidence was erroneously admitted and should have been
excluded under Rule 403, given its lack of reliability and given
its highly prejudicial nature.
FN2. Compare to Anderson, where a police
officer witness testified as to his first-hand knowledge that the
defendant belonged to a gang. However, applying the harmless error
analysis set forth in Bishop v. State, 869 S.W.2d 342, 346-347 (Tex.Crim.App.1993),
it is my opinion the error in admitting the gang-related testimony
in the present case was harmless beyond a reasonable doubt. Tex.
Rule App. Proc. 81(b)(2). First, we note appellant was observed
shooting the victim in the head by Williams, who so testified at
trial.FN3 Second, Michael Kendricks, a fellow inmate of appellant,
testified appellant told him he shot the victim. Third, appellant
was arrested while driving the victim's car. Fourth, several
witnesses linked appellant to the weapon used to shoot the victim.
This evidence, taken together, is overwhelming evidence of
FN3. Appellant contends that he shot the victim
in the jaw and that this was not a fatal wound. (Another
individual shot the victim in the brain.) The medical examiner
testified the wound to the victim's jaw could have been mortal.
While overwhelming evidence of guilt is a factor to be taken into
account, we have held that if the error was of a magnitude that it
disrupted the juror's orderly evaluation of the evidence, then the
conviction is tainted and reversal is required, no matter how
overwhelming the evidence of guilt might have been. Harris v.
State, 790 S.W.2d 568, 588 (Tex.Crim.App.1989). In my opinion, the
gang-related testimony did not disrupt the jury's orderly
evaluation of the evidence. The testimony itself consisted solely
of “gang-talk” among appellant and his “homies,” plus Williams'
testimony as to his second-hand knowledge of appellant's gang
membership. Additionally, the State did not introduce any evidence
as to violent or illegal activities engaged in by gangs such as
the Crips, which would have made the testimony of appellant's
alleged gang membership more prejudicial. Finally, the testimony
was introduced primarily to place the instant offense in context,
i.e., the possible motivation behind its commission. Perhaps most
significantly, the State did not mention gangs or appellant's
alleged gang membership during its closing argument; given this
record it is apparent the State was not attempting to taint the
trial process by emphasizing the gang related testimony at one of
the most critical stages of the trial-closing argument.FN4
FN4. In Harris, supra, at 587, this Court held,
in conducting a harmless error analysis, the reviewing court must
determine whether declaring a particular error harmless would
encourage the State to repeat it with impunity. I do not see,
logically, how such a determination can be made and urge that we
reexamine this aspect of Harris. Because, in my opinion, the
erroneous admission of gang-related testimony did not contribute
to appellant's conviction or punishment as it did not
impermissibly taint appellant's trial for the reasons given above,
I conclude beyond a reasonable doubt the error was harmless.
With these comments, I join the opinion of the
KELLER, Judge, concurring.
My first difficulty with the majority opinion
is with regard to its treatment of point of error nine. I believe
that the prosecutor's voir dire notes are work product, and the
State should not be required to turn voir dire notes over to the
defense during a Batson hearing.
I also disagree with the majority's analysis of
the points of error dealing with evidence of gang membership. The
majority says the evidence of gang membership in this case was not
relevant. Gang membership may or may not be relevant during guilt-innocence.
As is true with any other evidence, gang membership is relevant if
it has any tendency to make the existence of any fact of
consequence more probable or less probable than it would be
without the evidence. Tex.R.Crim. Evid. 401. This determination
must be made on a case-by-case basis.FN1
FN1. In Anderson v. State, 901 S.W.2d 946 (Tex.Crim.App.1995)
and Beasley v. State, 902 S.W.2d 452 (Tex.Crim.App.1995) we
considered whether evidence of gang membership is admissible at
punishment. The issue in this case concerns the admission of such
evidence at guilt/innocence.
In the instant case, the evidence of the
discussions of which crip “had the heart” to kill the victim and
to knock out the man at the gas station, and of the crip handshake
after the murder, was relevant to show a possible motive for the
murder of Martha Lennox. Certainly the evidence tends to make
sense of evidence that is otherwise unaccountable: the co-defendant,
after shooting the victim in the head, handed appellant the gun
and appellant shot the victim after she had already been shot.
According to the majority, the State could have
presented a clear and understandable case without the evidence-but
surely that is not the test for relevance. Under the facts of this
case, gang membership was not merely an incidental aspect of
appellant's life; it was part of the reason for the murder and it
was part of the explanation for why the murder occurred as it did.
Had the State been required to excise the gang-membership aspect
of the murder, its case against appellant would have been less
coherent and less believable.
Events do not occur in a vacuum. The jury has a
right to have an offense placed in its proper setting so that all
evidence may be realistically evaluated. Burks v. State, 876 S.W.2d
877, 900 (Tex.Crim.App.1994), citing Mann v. State, 718 S.W.2d
741, 743 (Tex.Crim.App.1986), cert. denied 481 U.S. 1007, 107 S.Ct.
1633, 95 L.Ed.2d 206 (1987). In a prosecution for capital murder
where consideration of the behavior of the defendant is critical,
the entire context of the offense showing his actions is vital. Id.
In the instant case the testimony that indicated that Lennox's
murder was part of a gang undertaking allowed the jury to view the
offense in the proper setting, the way it actually occurred. The
trial court did not err in admitting this evidence.
I concur in the opinion of the Court.
Pondexter v. Dretke, 346 F.3d 142
(5th Cir. 2003) (Habeas).
Petitioner, convicted in state court of murder
and sentenced to death, having exhausted state-court appeals, 942
S.W.2d 577, and postconviction remedies, sought federal habeas
relief. The United States District Court for the Eastern District
of Texas, T. John Ward, J., granted petition. State appealed. The
Court of Appeals, Benavides, Circuit Judge, held that state habeas
court's determination that petitioner was not prejudiced by
counsel's failure to call pathologist was not unreasonable
application of federal law. Vacated and remanded.
BENAVIDES, Circuit Judge:
Petitioner Willie Earl Pondexter, Jr., (Pondexter)
was convicted of capital murder in Texas and sentenced to death.
After exhausting his remedies in state court, Pondexter filed a
petition for federal habeas corpus in district court. In an
unpublished opinion, the district court granted relief with
respect to the claim that trial counsel rendered ineffective
assistance by failing to consult with and offer the testimony of a
pathologist during the guilt-innocence phase of trial. The
Director appeals from this judgment. Concluding that the district
court failed to afford proper deference to the state court's
decision, we hold that the state court did not unreasonably apply
clearly established federal law and vacate the judgment of the
district court and remand for further proceedings not inconsistent
with this opinion.
FN1. The facts of the offense are taken in
large part verbatim from the opinion of the Texas Court of
Criminal Appeals on Pondexter's direct appeal. Pondexter v. State,
942 S.W.2d 577, 579-80 (Tex.Crim.App.1996).
On the night of October 28, 1993, Ricky Bell,
James Bell, Deon Williams, and Pondexter met at an apartment and
discussed robbing “an old lady.” Following this discussion, the
group walked to a corner store, and then to Martha Lennox's house
where they checked to see what kind of car she owned. The group
then walked to a trailer park, and then to a friend's house. Once
there, they met with James Henderson.FN2 Pondexter borrowed a car
and all five drove to Annona to buy beer and go to a club. During
the drive to and from Annona, the five talked about robbing “the
old lady,” and about “crips and bloods and stuff.” Specifically,
they discussed which crip “had the heart” to do what they were
planning to do to “the old lady.”
On the way to the victim's house,
the group stopped at a store where they talked about which crip
had the heart to knock out a man who happened to be getting gas.
Although Williams and Henderson did get out of the car, no harm
was actually done to the man. The group drove to the victim's
house, but parked the car a few blocks away. On their first
attempt to enter the house, they were scared away by the sight of
a patrolling police car. Four of the five ran back to the car, but
James Bell ran in another direction and was not seen by the rest
of the group again that night. Pondexter, Henderson, Williams, and
Ricky Bell went back to the victim's house where Pondexter kicked
in the front door. All four proceeded up the stairs and into the
bedroom where the victim was sitting on her bed.
FN2. Henderson was tried separately prior to
Pondexter's trial and convicted of the capital murder of Martha
Lennox and sentenced to death.
Once all four were in the bedroom, Williams
took the seven dollars that was in the victim's coin purse.
Immediately thereafter, Henderson shot the victim in the head and
handed the gun to Pondexter. Pondexter also shot the victim in the
head, stating “that's how you smoke a bitch.” The four drove to
Dallas and were arrested in the victim's car.
During the guilt-innocence phase of trial, Dr.
Guileyardo, the Chief Medical Examiner for Dallas County,
testified that he performed the autopsy on the victim. He
testified that she had been shot twice and that the cause of death
was “gunshot wounds to the head.” One bullet entered “through the
[left] side of her skull, it went into her mouth, it went through
her tongue, it went down and struck her jawbone on the right side
and shattered that jawbone on the right side and then the bullet
came out beneath her right ear....” Another bullet entered through
the forehead and “went all the way through the brain and came out
the back of her head.” Although Dr. Guileyardo could not determine
the order of the gunshots, he concluded that the one that
shattered her jawbone was fired from a closer range than the other
shot. He opined that “[b]oth of these [wounds] are killing wounds.
Both could be fatal wounds. Either one of these [wounds] could
have killed her.” When asked whether it could be determined if
Martha Lennox was dead at the time either wound was inflicted, Dr.
Guileyardo testified that the gunpowder stippling marks on both
gunshot wounds were red and had the appearance of inflammation,
indicating a vital reaction, not a postmortem reaction. A vital
reaction occurs when the skin is injured, and the wound is red
because of the blood flowing through the skin. Dr. Guileyardo
further testified that if a dead person's skin is injured, the
wound is “sort of a yellow, dry appearance, because there is no
blood flow going through the skin.” Thus, based on the appearance
of the wounds, Dr. Guileyardo believed that the victim was alive
at the time of each gunshot. On cross-examination, Dr. Guileyardo
admitted that it was possible to survive the face wound and that
his autopsy report did not report any hemorrhaging from the wound
caused by the bullet that entered her face.
During closing argument at the guilt-innocence
phase, Pondexter's counsel first argued that Williams, the
accomplice who testified that Pondexter fired the second shot into
the victim, was not credible. Instead, counsel argued that Rhoda
Briley's testimony that Pondexter participated in the burglary/robbery
but did not shoot the victim was more credible. Counsel argued
that Williams was biased because he was a convicted felon who had
participated in this crime and received a deal for his testimony.
Unlike Williams, Briley was not charged with the instant crime. In
the alternative, defense counsel argued that if the jury believed
Williams's testimony, the jury should find that the victim had
instantly died from the first shot and thus Pondexter's shot did
not kill her, absolving him of any responsibility for her
death.FN3. Inexplicably, the jury was not instructed with respect
to the Texas law of parties, although, it appears such an
instruction would have been available to the State.
The jury found Pondexter guilty of capital
murder. Tex. Penal Code § 19.03. After the punishment phase of the
trial, the jury affirmatively answered the special issues set
forth in Article 37.071(b) of the Texas Code of Criminal Procedure,
and the trial court sentenced Pondexter to death. The Texas Court
of Criminal Appeals affirmed the conviction and sentence.
Pondexter v. State, 942 S.W.2d 577 (Tex.Crim.App.1996), cert.
denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997).
Pondexter filed a state habeas petition
challenging his conviction and death sentence. After conducting an
evidentiary hearing, the state trial court entered findings of
fact and conclusions of law recommending that relief be denied.
The Court of Criminal Appeals adopted the findings of fact and
conclusions of law and denied relief. Ex parte Pondexter, No.
39,706-01 (Tex.Crim.App. Jan. 27, 1999). Thereafter, Pondexter
filed the instant federal habeas petition raising twenty claims.
The district court granted relief concluding that trial counsel's
failure to consult with and offer the testimony of a pathologist
deprived Pondexter of the effective assistance of counsel. FN4 The
Director now appeals.
FN4. Because the District Court granted habeas
relief on Pondexter's first claim, it did not address Pondexter's
remaining claims and dismissed them as moot.
II. STANDARD OF REVIEW
Pursuant to the federal habeas statute, as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d), we defer 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.” 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. Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 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. at 1521. Additionally, pursuant to
section 2254(e)(1), state court findings of fact are presumed to
be correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence. See
Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).
III. EFFECTIVE ASSISTANCE OF COUNSEL
The only issue before us is whether the
district court erred in granting federal habeas relief based upon
Pondexter's claim of ineffective assistance of counsel. The
Supreme Court has recently reaffirmed the familiar two-prong test
for ineffective assistance of counsel:
First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. (Terry) Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)). To demonstrate that counsel was ineffective, a petitioner
must establish that counsel's representation fell below an
objective standard of reasonableness. See id. To show prejudice,
he must show that there is a reasonable probability that, but for
counsel's error, the result of the proceeding would have been
different. See id. at 1511-12.
Here, the district court held that trial
counsel rendered ineffective assistance based upon the failure to
call a pathologist to testify during the guilt-innocence phase of
trial in support of Pondexter's alternative defensive theory.FN5
Pondexter's alternative theory of defense at trial was that,
because the first gunshot fired by codefendant James Henderson
into the victim's brain would have instantly killed her, the shot
he fired seconds later into her face was not culpably lethal.FN6
More specifically, Pondexter now argues that the district court
properly granted habeas relief based on his claim that had counsel
called a pathologist to testify that the victim was dead at the
time he shot her, there is a reasonable probability that the jury
would not have found him guilty of killing the victim. In support
of his theory, he relies upon the testimony of Dr. Stephen Bolesta,
a pathologist he called to testify as an expert witness at the
state habeas evidentiary hearing.
FN5. Pondexter's primary defensive theory was
that although he participated in the burglary/robbery, he did not
shoot Martha Lennox.
FN6. On appeal before us, Pondexter argues that
the record does not establish the amount of time that elapsed
between the two gunshots. It could have been minutes, according to
Pondexter. Although in his trial testimony Williams does not
estimate the time that elapsed between shots, the description he
provided of the murder indicates that Pondexter fired within
seconds of Henderson. There is no basis to infer that minutes
elapsed between the shots. Moreover, the district court stated in
its opinion that it was undisputed that the shot to the face was
within a few seconds of the shot to the brain.
The Director contends that the district court's
judgment does not accord the state court's decision the
substantial deference mandated by AEDPA. The Director argues that
the district court erred in rejecting the state court's
credibility determinations and substituting its own views of the
credibility of witnesses, i.e., the two pathologists, Dr.
Guileyardo, the pathologist who performed the autopsy on the
victim and testified at trial, and Dr. Bolesta, the pathologist
who testified as Pondexter's expert witness during the state
habeas evidentiary hearing. Thus, the Director asserts the
district court erred in concluding that trial counsel performed
deficiently and that such deficient performance resulted in the
We agree that the district court failed to
afford the factual findings of the state court proper deference.
Because we conclude that Pondexter failed to show he was
prejudiced by counsel's failure to call a pathologist, we do not
address the deficiency prong of Strickland. Assuming arguendo that
the state court's conclusion is erroneous, we are convinced that
the district court erred in finding unreasonable the state court's
conclusion that counsel did not render ineffective assistance with
respect to this particular claim.
We begin by explaining that Pondexter's claim
of ineffective assistance of counsel involves only the alternative
theory of defense, not the primary defensive theory.FN7
Pondexter's primary defensive theory was that although he
participated in the burglary/robbery and was present during the
murder, he did not shoot the victim. Instead, his codefendant
James Henderson fired both shots. Thus, he argued that the jury
should not find him guilty of murder, only of the lesser offense.
Although codefendant Deon Williams testified that Pondexter fired
the second shot, there was evidence to support Pondexter's primary
defensive theory that Henderson fired both shots into the victim.
Rhoda Briley, Pondexter's girlfriend at the time of the offense,
testified that after the murder Pondexter admitted to her that he
had stolen from the victim but he did not shoot the victim. Indeed,
defense counsel argued to the jury that “by far and away the more
credible story ... was told by Rhoda Briley that [Pondexter]
didn't shoot anyone.”
The undisputed evidence was that Pondexter
handed the murder weapon to James Henderson as they entered the
victim's home (prior to the first shot), and the weapon was seized
by the police from Henderson when he was arrested the next morning
in Dallas, giving counsel a basis for arguing that Henderson, not
Pondexter, possessed the weapon for the entire relevant time
period. Additionally, during closing argument, defense counsel
emphasized to the jury that Pondexter's fingerprints were not
found on the murder weapon.
FN7. Contrary to Pondexter's argument, counsel
did not build his “entire case around” the alternative defensive
theory that the victim was deceased when he fired the shot. As set
forth in the text of the opinion, the instant claim of ineffective
assistance of counsel does not involve his primary defense theory
that he fired no shots.
We now turn to the district court's opinion.
The district court concluded its analysis by opining that: “Dr.
Bolesta was a qualified expert, and his opinion that Ms. Lennox
died instantaneously from the wound through her brain appears just
as plausible on its face as Dr. Guileyardo's opinion that the
brain wound, while fatal, was not instantaneously so.”FN8 The
district court then opined that the state court correctly denied
Pondexter's actual innocence claim, but “did not directly address
the issue of the relative plausibility of the contrary expert
opinions.” The district court further opined that the state court
did not issue any findings of fact that “establish that one
expert's opinion was more or less plausible than the other's.
Accordingly, the Court concludes that it was unreasonable for the
State court to find that there was not a reasonable probability
that at least one juror would have voted ‘not guilty’ had Dr.
FN8. Clearly, in light of state court findings
of fact which are set forth below, this “plausibility” finding was
not within the district court's province to make, even prior to
In other words, the district court's opinion is
based upon the following analysis: the state court's failure to
make certain, explicit findings of fact rendered unreasonable the
state court's conclusion that Pondexter had failed to demonstrate
that, had counsel presented Dr. Bolesta's testimony during trial,
there is a reasonable probability of a different outcome. As set
forth below, we believe that the state court's factual findings
with respect to the experts' opinions are sufficient to sustain
the state court's conclusion. Here, the bottom line is that the
state court's denial of relief indicated that presentation of Dr.
Bolesta's testimony would not have resulted in a reasonable
probability of a different outcome. Even assuming that the state
court failed to express certain factual findings that necessarily
underlie its conclusion that Pondexter failed to demonstrate
prejudice, a presumption of correctness would apply “to those
unarticulated findings which are necessary to the state court's
conclusions of mixed law and fact.” Valdez, 274 F.3d at 948 n. 11.
Additionally, although the district court
initially set forth the correct prejudice query, the district
court also stated that to demonstrate Strickland prejudice,
Pondexter “only [has] to establish that Dr. Bolesta's and Dr.
Guileyardo's opinions about the cause of Ms. Lennox's death were
more or less equally plausible.” Of course, to satisfy the
prejudice prong Pondexter had to demonstrate that, had counsel
presented Dr. Bolesta's testimony during trial, there is a
reasonable probability of a different outcome. We have explained
that a reasonable probability “means a probability sufficient to
undermine confidence in the outcome.” Neal, 286 F.3d at 241.
Assuming arguendo the district court's interpretation or phrasing
of the Strickland prejudice standard is correct, we are convinced
that the district court failed to properly defer to the state
court's findings of fact in making its prejudice determination.
As this Court has explained, “[i]t seems clear
to us that a federal habeas court is authorized by Section 2254(d)
to review only a state court's ‘decision,’ and not the written
opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230,
246 (5th Cir.2002) (en banc). “[W]e conclude that our focus on the
‘unreasonable application’ test under Section 2254(d) should be on
the ultimate legal conclusion that the state court reached and not
on whether the state court considered and discussed every angle of
the evidence. The latter approach appears unduly formalistic
considering that the federal habeas court has the full record
before it and is competent to determine whether Strickland has
been unreasonably applied to the case before it.” Id.
Here, as in Neal, “[t]he precise question, then,
is whether the [state] court's ultimate conclusion-that there was
no prejudice and, consequently, no ineffective assistance of
counsel under the Strickland test-is objectively unreasonable.”
Neal v. Puckett, 286 F.3d at 246. “The statute compels federal
courts to review for reasonableness the state court's ultimate
decision, not every jot of its reasoning.” Santellan v. Cockrell,
271 F.3d 190, 193 (5th Cir.2001).
As set forth previously, pursuant to section
2254(e)(1), state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence. See
Valdez, 274 F.3d at 947. The district court expressly recognized
this standard of review.FN9 However, as discussed below, the
district court's parsing of the state habeas court's findings does
not conform to the spirit or the letter of AEDPA's deferential
FN9. After setting forth this standard of
review, the district court, citing Marshall v. Lonberger, 459 U.S.
422, 432, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), stated that
“[f]acts are rebutted by clear and convincing evidence if they
lack even fair support in the record.” Op. at 14. Lonberger
addressed an exception to the presumption of correctness afforded
state factual findings in the pre-AEDPA federal habeas statute, 28
U.S.C. § 2254(d)(8). Pursuant to then-effective § 2254(d)(8), an
exception to the presumption of correctness existed when a state
court's factual determination was not fairly supported by the
record. This Court has indicated that AEDPA requires “increased
deference to state court factfindings.” Graham v. Johnson, 168
F.3d 762, 784 n. 16 (5th Cir.1999); accord Gachot v. Stalder, 298
F.3d 414, 418 (5th Cir.2002) ( “AEDPA only strengthens the
stricture imposing a strong requirement of deference for a state
court's findings of fact.”). Likewise, the Eleventh Circuit has
noted that, after AEDPA, the federal habeas statute “not only
retains the presumption of correctness but also adds that the
petitioner has ‘the burden of rebutting the presumption of
correctness by clear and convincing evidence.’ ” Fugate v. Head,
261 F.3d 1206, 1215 n. 11 (11th Cir.2001) (quoting § 2254(e)(1)).
In sum, it is not clear to us that simply determining whether the
state court's finding is fairly supported by the record is
sufficient to overcome the presumption of correctness afforded by
AEDPA. Nonetheless, because we are persuaded that the district
court erred in not affording proper deference to the factual
findings under either formulation, we need not determine whether
the district court's formulation was a proper interpretation of
The state habeas court expressly made a factual
finding that Pondexter's expert witness, Dr. Bolesta, was less
credible than the state's medical examiner who testified at trial,
Dr. Guileyardo. State court finding of fact number 18 provides as
follows: “Based on [Dr.] Bolesta's affidavit and in-court
testimony, the court finds that the testimony of Dr. E. Stephen
Bolesta is less credible than the in-court testimony of Dr.
Guileyardo.” (emphasis added).
The district court expressly
recognized that this finding is a credibility determination.
Nonetheless, the district court, assuming arguendo that the
credibility determination was fairly supported by the record,
opined that the finding “does not by itself establish that Dr.
Bolesta's and Dr. Guileyardo's opinions as to the cause of Ms.
Lennox's death are more or less equally plausible.” Op. at 30 (emphasis
added). The district court clearly did not perceive the words
“plausible” and “credible” to be synonyms. However, in the context
of determining whether a state court's finding should be presumed
correct under AEDPA, this Court apparently used the terms
plausible and credible as synonyms. See Ladd v. Cockrell, 311 F.3d
349, 356 (5th Cir.2002). Also, Merriam-Webster's online thesaurus
lists the words credible and plausible as synonyms.FN10
event, although we recognize that the two words do not have
identical definitions, in light of the deference to be afforded
the state court's finding with respect to the credibility of the
expert witnesses and the lack of evidence to rebut the instant
finding, we do not believe the district court afforded proper
weight to it in making the prejudice determination.FN11. In his
brief, the Director admits that the state court was not
necessarily responsible for resolving the dispute between the
experts. As this Court has explained, in addressing the prejudice
prong of a claim of ineffective assistance based on counsel's
failure to present expert testimony at trial, it is the court's
task “to see what evidence might have been adduced and to gauge
any prejudice resulting from trial counsel's failure to present it.
[Nonetheless,] [t]he rejection of the evidence is relevant because
it casts doubt on its persuasiveness and hence its force before
the jury.” Belyeu v. Scott, 67 F.3d 535, 542 (5th Cir.1995). In
Belyeu, we were referring to the task of the federal district
court. Here, we are addressing the task of the state habeas court.
Nevertheless, because both courts are conducting the same analysis,
the reasoning in Belyeu appears applicable to the instant case.
State court finding of fact number 20 provides
that: Even assuming Dr. Bolesta's hypothesis as to the order (and
persons who fired) the shots is correct, Dr. Bolesta admitted that
the victim “could have” or “might have” been alive at the time the
second shot was fired. Dr. Bolesta agreed that the victim's heart
could have still been beating when the second shot was fired and
that no doctor would have declared her dead when her heart was
The district court recognized that this finding
“is fairly supported by the record” but opined that it only
demonstrated that Dr. Bolesta did not find Dr. Guileyardo's
testimony “implausible.” According to the district court, this
finding did “not establish Dr. Guileyardo's and Dr. Bolesta's
opinions as to the cause of Ms. Lennox's death are not more or
less equally plausible.” Although the district court did not
accord much, if any, weight to this finding, Dr. Bolesta's
admission that it is possible that the victim was alive at the
time of Pondexter's shot certainly has relevance to the prejudice
inquiry in that it weighs in favor of finding no prejudice.
State court finding of fact number 21 provides
as follows: [T]he court finds that Dr. Bolesta's definition of the
“peri-mortem” state, and [his testimony] as to the presence or
absence of red “stippling” or powder tattooing, still does not
prove that the victim was dead at the time of the second shot. The
court believes that Dr. Guileyardo's explanation, based upon
studies conducted by Dr. Vincent DeMaio, that powder tattooing is
an antemortem (prior to death) phenomenon, is correct. Dr. Bolesta
cited no study or authoritative treatise, other than his own
theory that red stipple marks could be caused by powder residue
striking the skin of a dead person.
With respect to this State court finding, the
district court acknowledged that the fact that Dr. Guileyardo's
premise, unlike Dr. Bolesta's premise, was supported by a treatise
“is a valid grounds [sic] for finding Dr. Guileyardo's opinion as
to the cause of Ms. Lennox's death more credible than Dr.
Bolesta's opinion.” The district court further stated that all of
finding of fact number 21 was supported by the record except the
statement that Dr. Bolesta cited no study or authoritative
treatise other than his own theory with respect to the red stipple
marks. The district court believed that Dr. Bolesta's testimony
that another pathologist, Dr. Charles Hirsch, “was of the same
line” as his opinion qualified as other scientific authority. Op.
at 34. We are not of the view that Dr. Bolesta's hearsay testimony
regarding another pathologist's opinion rebutted with clear and
convincing evidence the state court's finding that Bolesta cited
no study or authoritative treatise in support of his own theory.
State court finding of fact number 22 reads as
follows: The court further finds that Dr. Guileyardo's explanation
as to the absence of blood in the victim's lungs due to the
swelling of the victim's tongue, the swelling of the victim's
mouth and the loss of control of the victim's mandible caused by
its fragmentation, is persuasive evidence that the second shot (assuming
that the second shot which struck the victim was through the jaw
and tongue) contributed to the death of the victim. The court
believes that the shot to the jaw virtually eliminated any chance
of survival that the victim might have had.
The district court found that the last sentence
was not “fairly supported” by the record because “[b]oth Dr.
Guileyardo and Dr. Bolesta testified that Ms. Lennox had
absolutely no chance whatsoever of surviving the brain wound.”
After reading the record, it is unclear whether Dr. Guileyardo
unequivocally testified that the victim had no chance of surviving
the brain wound. Dr. Guileyardo did testify at trial that the
brain wound “is usually a fatal wound, but we don't know when it's
going to be fatal.” (emphasis added). Dr. Guileyardo further
testified that it can be fatal “almost instantaneously” or “on the
other hand, we see people who survive days with this type of wound.”
Indeed, when defense counsel specifically asked Dr. Guileyardo
whether he had any doubt that the brain wound would have caused
the victim's death, Dr. Guileyardo did not answer that question
but responded that both wounds had the potential to kill a person.
Similarly, at the state evidentiary hearing, Dr. Guileyardo
testified that “I think it took both [wounds] in this particular
case for her to die right at that time.” Even assuming arguendo
that the district court's interpretation of Dr. Guileyardo's
testimony-the victim had no chance of surviving the brain wound-is
correct, we do not believe that is particularly relevant. Here,
the material question is not whether Martha Lennox would have
ultimately survived the brain wound but whether she survived long
enough after the first gunshot for the second shot to contribute
to her death. The thrust of the above state court finding is that
the wound to the face contributed to the victim's death. Pondexter
has not rebutted this finding with clear and convincing evidence.
During its discussion of the above factual
finding, the district court next recognized that Dr. Bolesta
admitted that if Ms. Lennox was alive after the first gunshot, the
second shot could have contributed to Ms. Lennox's death. We note
that Dr. Bolesta's admission lends support to the state court's
conclusion of no prejudice.
State court finding of fact number 23 provides
that: Because Dr. Bolesta could not eliminate the possibility that
the victim's mandible [as a result of the second gunshot] did, in
fact, contribute to the victim's skull fractures by slamming into
the base of the victim's skull, Pondexter has not shown that [Dr.]
Guileyardo's testimony was not believable. In fact, given that Dr.
Guileyardo conducted the autopsy his testimony is more believable
than that of Dr. Bolesta.
The district court acknowledged that the first
sentence of the above finding is supported by the record. The
district court next opined that the fact that Dr. Guileyardo
performed the autopsy of the victim could be a reason to credit
his testimony over the testimony of Dr. Bolesta. Nonetheless, the
district court refused to so credit the testimony because “[w]hen
Dr. Guileyardo testified, he never stated that he remembered the
autopsy itself; he testified from reviewing his report, just as
Dr. Bolesta did.” This quote from the district court is a prime
example of its failure to accord the state court findings the
deference mandated by AEDPA. The fact that Dr. Guileyardo
performed the actual autopsy clearly supported the state court's
decision to credit his opinion over that of Dr. Bolesta regardless
of whether Dr. Guileyardo expressly testified that he remembered
performing the actual autopsy.
State court finding of fact number 30 provides
that “Based on the greater weight of the evidence in this
proceeding, the court finds that the victim was alive at the time
both shots were fired into the victim and that each shot
contributed to her death.” The district court discerned that this
finding is fairly supported by the record and that the state court
was free to find Dr. Guileyardo's opinion more credible than Dr.
Bolesta's opinion. Without further discussion, the district court
opined that “this finding does not establish that the two expert
opinions were not more or less equally plausible.” Again, we do
not believe that the district court afforded this very important
factual finding proper weight in making the prejudice
FN12. Relatedly, the Director contends that the
district court impermissibly substituted its interpretation of
Texas law of concurrent causation with respect to state court
conclusion of law number 41, which provides as follows: “Because
both shots were sufficient to cause the death of the victim,
Pondexter cannot show that he was not responsible for the capital
murder. Tex. Penal Code § 6.04(a).” Section 6.04(a) provides that
“[a] person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was
clearly sufficient to produce the result and the conduct of the
actor clearly sufficient.”
The district court ruled that the state
court's conclusion of number 41 was based upon an incorrect
application of state law. According to the district court, the
state court incorrectly concluded that because each wound could
have caused the victim's death, the wound inflicted by Pondexter
did cause her death. Contrary to the district court's opinion,
state court conclusion of law number 41 is not based upon the
finding that each wound alone could have caused the victim's death;
instead, the conclusion is based on the previously quoted state
court finding of fact that “the victim was alive at the time both
shots were fired into the victim and that each shot contributed to
her death.” Thus, the district court erred in holding that
conclusion of law number 41 is based upon an incorrect application
of state law.
State court finding of fact number 38 provides
that: “Dr. Bolesta's affidavit and evidentiary hearing testimony
... admit that both wounds were capable of causing the death of
the victim.” The district court “adopt[ed] it.” Op. at 16. This
admission by Pondexter's expert witness certainly weighs in favor
of finding no prejudice.
State court finding of fact number 39 provides
that: [M]uch of the testimony provided by Dr. Bolesta, while
critical of Dr. Guileyardo's conclusions on what “could have”
happened, see 20 SF 161, does not substantially differ from many
of the admissions given by Dr. Guileyardo on cross examination.
See e.g. 20 SF 171 (bullet which entered brain stopped breathing
and brain activity); 20 SF 174 (no way to separate out which
bullet fractured skull); 20 SF 176-77 (very little blood in her
The district court found that most of finding
of fact 39 was fairly supported by the record. However, it did
disagree that Dr. Bolesta's testimony was consistent with Dr.
Guileyardo's admission on cross-examination that there was no way
to separate out which bullet fractured Ms. Lennox's skull. The
court below found that this part of the finding lacked support in
the record because although Dr. Bolesta testified that it was
possible that a jaw wound could cause a fracture in the base of
the skull, Dr. Bolesta was never asked which gunshot actually
caused the fracture in the base of the skull. Here again, we
believe the district court was failing to accord proper deference
to the fact finding. As indicated, the state court's factual
finding was not that Dr. Bolesta testified that it was impossible
to determine which bullet caused the fracture. Instead, the state
court found that Dr. Bolesta's testimony was “not substantially
differ[ent]” from certain admissions made by Dr. Guileyardo during
cross-examination. Pondexter did not rebut this finding with clear
and convincing evidence. This finding is perhaps the most
significant of all the factual findings in that if Dr. Bolesta's
testimony is not substantially different from admissions made by
Dr. Guileyardo during cross-examination, then such a finding leads
almost inexorably to finding no prejudice.
In conclusion, we find that Pondexter has not
shown a probability sufficient to undermine our confidence in the
outcome of his trial in view of the ineffective assistance claim
relating solely to Pondexter's alternative, more inculpatory
defensive theory, Pondexter's apparent belief that the victim was
alive as he shot her,FN13 and most importantly, the following
unrebutted state court factual findings: (1) that Dr. Guileyardo's
testimony was more credible and, unlike Dr. Bolesta's testimony,
supported by scientific authority; (2) that Dr. Bolesta's
testimony does not substantially differ from certain key
admissions Dr. Guileyardo made during cross-examination; and (3)
that Dr. Bolesta's affidavit and evidentiary hearing testimony
concede that both wounds were capable of causing the death of the
victim. See Johnson v. Scott, 68 F.3d 106, 111 (5th Cir.1995) (“Although
[the petitioner's] experts may have been able to weaken some of
the state's evidence, there is not a reasonable probability that
their testimony would have given jurors a reasonable doubt
respecting guilt.”). Applying the deferential AEDPA standard, we
hold that the state court's conclusion was not contrary to, or an
unreasonable application of, established federal law.
FN13. As previously set forth, Pondexter shot
the victim and stated “that's how you smoke a bitch.”
For the above reasons, the district court's
judgment is vacated and remanded for further proceedings. VACATED
Willie Earl Pondexter Jr.