Man executed in shooting death of Fort Bend
By Robbie Byrd - Huntsville Item
June 21, 2007
Lionell Rodriguez apologized to the family of the
woman he murdered some 17 years ago in downtown Houston before
becoming the 16th inmate to be executed in Texas this year. But the
family of Tracy Gee, 19 at the time of her brutal murder, had
nothing to say and simply stared ahead at Rodriguez as he was
Rodriguez was strapped to the gurney at 6:02 p.m.
and was pronounced dead at 6:19 p.m., just 8 minutes after the
lethal dose began to flow. “First off, you have every right to hate
me and every right to want to see this,” he said, turning to look
toward Gee’s two sisters and three brothers-in-law who came to
witness the execution. “None of this should have happened.”
Rodriguez apologized several times, not only for the crime but for
not expressing his remorse until he lay on the execution gurney. “I
couldn’t do this in a letter,” he said. “I had to do this face to
face, eye to eye.”
Rodriguez told Gee’s family that he asked his
family to contact them, hoping that the Gee family held no
bitterness because “they did no wrong.” “I’m responsible, I’m
responsible,” he said. “I’m sorry to you all. This never should have
happened. To ... my family, you all don’t deserve to see this (but)
it is the right thing to do.” Tearfully, Rodriguez’s brother waved
goodbye, as other family members looked ahead.
Rodriguez’s father, Henry Rodriguez, held his
hand on the glass seperating him from his son, removing it only once
to comfort his other two sons and family friends who came to witness
the execution. “We’ll see each other again,” Rodriguez said. Just
moments before losing consciousness, Rodriguez spoke a quiet prayer,
turned to his family, smiled and mouthed them a kiss.
The execution of Rodriguez, 36, was the first of
two on consecutive evenings in the nation’s most active death
The U.S. Supreme Court two months ago refused to
review Rodriguez’s case, and his lawyers said there were no legal
avenues left to try to spare him. “We did our best,” attorney Alex
Calhoun said. “Unfortunately, the courts didn’t quite agree with our
estimation of a lot of the facts.”
Rodriguez was 19 and free after serving less than
five months of a seven-year prison term for burglary and cocaine
possession when he and a cousin decided to prowl Houston to act out
fantasies they’d seen in the movies. They failed to hold up a gas
station because there were too many people around the place. They
shot at a motorist in Fort Bend County.
When they pulled up at a stoplight in Houston
alongside a car driven by Gee, a 22-year-old who was almost home on
her way back from her job at a tennis pro shop, Rodriguez wanted her
car because theirs was running low on gas. His cousin, James
Gonzales, slid back in the driver’s seat to give Rodriguez a clear
shot with a .30-caliber M-1 rifle he’d stolen from his stepfather, a
Fort Bend County police officer.
The bullet shattered the passenger side window of
Gee’s car and struck her in the head, fatally wounding her.
Rodriguez jumped into her car, pushed her body to the pavement and
drove over her as he sped away.
Gonzales, still driving his own car, soon after
tried to flee from an officer who was pulling him over for a broken
tail light. Fearing he was being stopped for Gee’s shooting, he told
officers Rodriguez was the gunman. Police then tracked down
Rodriguez near his home in Fort Bend County.
When arrested, he was in Gee’s car, the inside of
it splattered with her remains. “It’s one of those things where
there’s not a whole lot of doubt about what happened and who did it,”
said Harris County District Attorney Chuck Rosenthal, who handled
the case as an assistant prosecutor.
Rodriguez confessed. A Harris County jury
convicted him of capital murder and decided he should die. The blood
evidence and the confession were insurmountable to his defense, said
J.C. Castillo, Rodriguez’s trial lawyer. “I’d like to think I tried
everything,” he said. “But when it comes down to the day being over,
it’s basically, ‘Please spare his life, he’s so young and there’s
room for improvement.’ It didn’t help.” Gonzales received a 40-year
Rodriguez’s conviction was overturned by the
Texas Court of Criminal Appeals in 1993 because of a procedural
problem in jury selection. The following year, he was convicted a
second time and again sentenced to death.
Another inmate, Gilberto Reyes, was to follow
Rodriguez to the death chamber this evening. Reyes, 33, was
condemned for the 1998 rape-slaying of a former girlfriend, Yvette
Barraz. She was abducted, beaten and strangled after leaving her job
as a waitress in Muleshoe along the Texas-New Mexico state line.
Rodriguez v. Quarterman, 204 Fed.Appx.
489 (5th Cir. 2006) (Habeas).
Background: Following affirmance of his state
court conviction of capital murder and sentence of death, and denial
of his state court habeas application, petitioner sought federal
writ of habeas corpus. The United States District Court for the
Southern District of Texas denied petition and granted certificate
of appealability (COA) in part. Petitioner appealed.
Holdings: The Court of Appeals held that:
(1) accomplice's out-of-court statement to police was admissible as
(2) such statement and defendant's jail disciplinary records were
admissible under prevailing law at time petitioner's conviction
(3) prospective juror who had previously been convicted of theft and
who had successfully completed probation was subject to challenge
(4) claim of ineffective assistance of counsel in sentencing
proceedings was not cognizable by petition for federal writ of
habeas corpus; and
(5) defense counsel did not provide ineffective assistance at
sentencing. Affirmed; certificate of appealability denied.
(Pursuant to 5th Cir. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5th Cir. R. 47.5.4.)
Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel Rehearing is
DENIED in part and GRANTED in part as reflected in the substitute
opinion filed today. No member of the panel nor judge in regular
active service of the court having requested that the court be
polled on Rehearing En Banc (Fed. R.App. P. and 5th Cir. R. 35), the
Petition for Rehearing En Banc is DENIED. We withdraw our previous
opinion and substitute the following.
Lionel Gonzales Rodriguez was convicted in Texas
state court for the murder of Tracy Gee. He now seeks habeas corpus
relief from his sentence of death. After denying habeas relief on
all claims, the district court granted Rodriguez a certificate of
appealability (“COA”) on one issue: whether Rodriguez's death
sentence violated his constitutional rights because he received
ineffective assistance of counsel (“IAC”) in the punishment phase of
his trial. We find that Rodriguez's claim is meritless and AFFIRM
the denial of habeas relief. We DENY Rodriguez's request for a COA
on all other issues.
I. These are the facts as recounted by the
Rodriguez confessed to the murder for which he
was convicted. According to Rodriguez's confession, he became
physically abusive in an altercation with his mother and sister on
the night of the murder. He then stole a shotgun and an automatic
rifle from his stepfather and drove around with his cousin, Jaime
Gonzalez, looking for a place to rob. Rodriguez unsuccessfully
attempted to rob a gas station.
While driving around, Rodriguez
became angry at another driver and repeatedly fired shots at him.
This occurred in a residential neighborhood. The other driver drove
safely away and, at a distance, turned his car around to write down
Rodriguez's license plate number. Rodriguez jumped out of his car
and fired another shot at the other driver.
Rodriguez and Gonzalez continued driving. While
stopped at a stop light, Rodriguez noticed a young woman, Tracy Gee,
sitting alone in her car. He decided to rob her and steal the car.
He confessed to shooting at her one time with the rifle. The shot
pierced the passenger side window and Gee's head fell forward. Her
car started rolling, and Rodriguez jumped out of his car and ran
over to the other car. He managed to get into the car and pushed Gee
out the driver side door onto the street. He then drove off in the
Gonzalez drove away from the scene, and a police
officer, Theron Runnels, pulled him over. Gonzalez exited the car
and, after initially approaching the officer, began to run. After a
chase, a second officer, Randy West, arrested Gonzalez for evading
arrest. In the meantime, Runnels found a rifle and shotgun in the
car. When West brought Gonzalez to Runnels so that the latter could
identify him, Gonzalez shouted that he did not kill Gee but that his
Rodriguez was arrested in the victim's car while
fleeing the scene of the crime. His pants were stained with blood,
and there was blood, bone, and brain matter inside the car.
Rodriguez had brown matter in his hair. Police also recovered a
fired bullet from the victim's car and found gunpowder residue in
Gonzalez's car. The gunpowder residue showed that a gun was fired
from inside that car.
An autopsy revealed a massive entrance gunshot
wound to Gee's right temple that had very large lacerations
radiating around it, and an exit wound with extensive lacerations on
the left forehead. Gee's skull had massive fractures. Some of her
brain extruded through the wounds. Gee lost some bone fragments from
her skull when she was shot. The cause of death was the gunshot
During Rodriguez's sentencing, the State
presented evidence that Rodriguez shot at the other driver. Officers
Runnels and West testified that, when West brought Gonzalez to the
scene of the crime where Runnels was performing inventory on
Gonzalez's car, Gonzalez stated that his cousin, Rodriguez, killed
The State produced evidence that Rodriguez
burglarized an elementary school in January 1990. Rodriguez received
probation for the burglary, but his probation was later revoked. His
probation officer testified that Rodriguez was physically abused by
an alcoholic father during childhood. The probation officer
characterized Rodriguez as having average to somewhat above average
intelligence and having the potential to do something with his life.
The State introduced records from the Harris
County Jail naming Rodriguez as an “escape threat” and as
“aggressive towards staff,” instructing jail staff to use handcuffs
and leg irons when moving Rodriguez from his cell. A Harris County
Sheriff's Deputy testified that, during Rodriguez's incarceration at
the Harris County Jail on the capital murder charge, there was a
standing order that Rodriguez was to wear leg irons and handcuffs
when he was out of his cell.
Rodriguez became belligerent to a jail deputy
while being brought to a visit with his mother. Upon returning to
his cell, Rodriguez broke a window. There was also evidence that
while at Harris County Jail, Rodriguez was frequently disruptive,
and jail staff tried to perform a daily search of his cell for
shanks or weapons. During one of these searches, deputies found a
Veronica Vinton and her father testified that,
after Veronica refused Rodriguez's request for a date, Rodriguez
stalked her. Another witness testified that Rodriguez assaulted him
and damaged his car with a baseball bat. Other witnesses testified
that Rodriguez had a bad reputation for not abiding by the law.
Gee's sister Susan offered victim impact testimony. She testified
that her mother's health was affected by Tracy Gee's death. She also
described Tracy as a person of integrity, and one who loved children.
Rodriguez's sister, Veronica Lopez, testified on
Rodriguez's behalf. She testified that he became very angry and rude
when he was on crack. She never saw Rodriguez get violent with
anyone. She testified that Rodriguez changed dramatically in the
time between the murder and his trial. He had adapted to being in
prison and started a program creating pamphlets that he and other
inmates would send to juvenile homes and churches so that young
people could read about how the inmates wound up on death row and
could avoid the same fate.
Rodriguez's uncle testified that he is a
recovering alcoholic who became sober at age 23, the same age as
Rodriguez at the time of his trial. He testified that he saw changes
in Rodriguez, specifically in Rodriguez's desire to help others.
Rodriguez's aunt testified that Rodriguez's father, Henry, abused
drugs and alcohol and was extremely violent toward his wife and
children. She also testified that Rodriguez changed and that he had
a religious conversion while incarcerated. Rodriguez's great aunt
corroborated that he experienced a religious conversion and that he
was working to discourage kids from pursuing a path of crime.
Janie Warstler, Rodriguez's mother, testified
that Henry was very abusive and an alcoholic. She also suspected
that he was using drugs. Henry started taking Rodriguez to bars and
giving him beer to drink when Rodriguez was six or seven years old.
Rodriguez started using drugs in his early teens.
Henry threatened to kill Ms. Warstler on more
than one occasion. He choked her and pushed her against a wall,
threatened her with a knife, and tried to run her over. On one
occasion, he used a shotgun to shoot down the door of Ms. Warstler's
mother's house. He was also physically abusive to Rodriguez and his
siblings, and once threatened Rodriguez's sister with a gun. He also
abused the family pets and other animals.
When Rodriguez was fourteen, Janie left Henry,
but Rodriguez insisted on staying with his father. Some time later,
Rodriguez called his mother and told her that Henry was drunk all
the time, was not buying groceries, and was not giving Rodriguez any
lunch money. When Janie said she would come and get him, Rodriguez
told her not to because he was afraid Henry would be there and would
be violent. Janie sent her brothers to pick up Rodriguez.
Henry also testified and agreed with Janie's
testimony. He also observed that Rodriguez has changed for the
better during the time he has been in prison. Several other
witnesses testified that Rodriguez has changed while in prison,
experienced religious conversion, had no significant disciplinary
problems, and was a positive influence on others.
The jury found that: (1) Rodriguez deliberately
caused Tracy Gee's death and with the reasonable expectation that
her death would occur; (2) there is a reasonable probability that
Rodriguez would commit criminal acts of violence that would
constitute a continuing threat to society; and (3) there were not
sufficient mitigating circumstances to warrant imposition of a
sentence of life imprisonment rather than death. Accordingly, the
Harris County jury convicted Rodriguez of capital murder and
sentenced him to death on September 20, 1994.
II. On direct appeal, the Court of Criminal
Appeals affirmed Rodriguez's conviction and sentence. Rodriguez v.
State, No. 71,974 (Tex.Crim.App. Feb. 5, 1997). Rodriguez did not
seek certiorari review in the Supreme Court of the United States.
Instead, he timely filed a state habeas application on March 27,
1998. Rodriguez's application was denied by the Texas Court of
Criminal Appeals based on the trial court's findings of fact and
conclusions of law. Ex parte Rodriguez, No. 50,773-01 (Tex.Crim.App.
Oct. 23, 2002).
On July 3, 2003, Rodriguez timely filed an
amended federal writ of habeas corpus.FN1 Rodriguez v. Dretke, No.
H-03-317 (S.D.Tex.2005). On March 29, 2005, the district court
ordered that all habeas relief be denied, and granted a COA on one
claim. Rodriguez filed notice of appeal on May 19, 2005. Rodriguez
appeals the denial of a COA on six claims and presents one claim on
FN1. Rodriguez filed a skeletal petition at
first, and then, with leave of court, filed an amended application.
III. Because Rodriguez's habeas petition was
filed in the district court after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254, AEDPA governs his petition. See Lindh v. Murphy, 521
U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We will
consider Rodriguez's COA request first, followed by the issue for
which the district court granted COA.
* * *
Rodriguez argues that reasonable jurists would
find it debatable that: (1) the admission of Gonzalez's statement
and Rodriguez's jail disciplinary records did not violate
Rodriguez's Sixth Amendment right, (2) the challenge for cause of
potential juror Anita Rodriguez did not violate Rodriguez's right to
due process, and (3) the ineffective assistance of counsel he
received with respect to each of the aforementioned alleged errors
did not violate his Sixth Amendment right. Each claim will be
addressed in turn.
1. Admission of Accomplice Statements and Jail
Rodriguez claims a COA should issue because
reasonable jurists could debate whether his Sixth Amendment right
was violated by the district court's admission of Gonzalez's
statement implicating Rodriguez as Gee's murderer as an “excited
utterance.” He also argues the admission of his jail disciplinary
records and Gonzalez's statement violated the Sixth Amendment under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
Rule 803(2) of the Texas Rules of Criminal
Evidence FN2 states that an “excited utterance” is a “statement
relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.”
Tex.R. Evid. 803(2). The “critical factor” for determining whether a
statement is an excited utterance is “ ‘whether the declarant was
still dominated by the emotions, excitement, fear, or pain of the
event.’ ” Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005)
(citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App.2003)).
FN2. After Rodriguez's trial, the Texas Rules of
Criminal Evidence changed its title to the Texas Rules of Evidence.
Reasonable jurists would not debate the district
court's determination that Gonzalez's statement was an excited
utterance, and that its admission did not violate the Sixth
Amendment. In the district court, Rodriguez argued the facts are
insufficient to show that Gonzalez's statement was spontaneous and
unreflective, because of the period of time that had elapsed between
Gonzalez's flight and his return to his vehicle.
The district court
concluded that Rodriguez's argument fails because an “excited
utterance” is not defined by the period of time elapsed between the
startling event and the statement made about it. See Zuliani, 97 S.W.3d
at 596 (“[I]t is not dispositive that the statement is an answer to
a question or that it was separated by a period of time from the
startling event; these are simply factors to consider in determining
whether the statement is admissible under the excited hearsay
The district court noted that: (1) Gonzalez
blurted out his remarks concerning Tracy Gee's murder after fleeing
a routine traffic stop, being chased by police officers, and being
apprehended while weapons from within his vehicle were being
inventoried by police, and (2) Gonzalez actually observed the events
he described and his intervening actions, including hiding in a
swimming pool and in someone's vehicle, and demeanor were known to
the two officers. Rodriguez fails to make a substantial showing that
he was denied his constitutional right.
Rodriguez also argues that reasonable jurists
could debate the district court's determination that the
introduction of both Gonzalez's statement and the jail disciplinary
records do not violate Crawford, FN3 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). See also U.S. Const. amends. VI, XIV.
Rodriguez's arguments are barred by the non-retroactivity doctrine
of Teague v. Lane. Lave v. Dretke, 444 F.3d 333, 337 (5th Cir.2006)
(holding that the rule in Crawford is not to be applied
retroactively); see also Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989) (holding that, except in very limited
circumstances, a federal habeas court cannot retroactively apply a
new rule of criminal procedure).
FN3. Crawford v. Washington held that out-of-court
testimonial statements are per se inadmissible against a criminal
defendant unless the defendant has had a prior opportunity to cross
examine the declarant. 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d
Reasonable jurists would not debate the district
court's determination that the state court admitted both Gonzalez's
statement and the jail disciplinary records under prevailing law at
the time that Rodriguez's conviction became final. The district
court found that the officers' testimonies recounting Gonzalez's
statement satisfied the Confrontation Clause because they qualified
under a firmly-rooted hearsay exception. See White v. Illinois, 502
U.S. 346, 355 n. 8, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
Rodriguez has not shown that a COA should be granted on this issue.
See Teague, 489 U.S. at 301, 109 S.Ct. 1060.
As to the jail disciplinary records, the district
court determined that the trial court admitted the jail disciplinary
records, over objection, under the business records exception to the
general rule barring hearsay. The business records exception was
applicable at the time of Rodriguez's trial and direct appeal.
Tex.R.Crim. Evid. 803(6). Rodriguez fails to make a substantial
showing that his constitutional right was denied by the admission of
either of these pieces of evidence.
* * *
Rodriguez contends that trial counsel neither
investigated nor presented evidence in relation to the etiological
origins of his brain damage and the link between the damage to his
brain's frontal lobes and his impulsive nature. Rodriguez's evidence
consists of written statements found in the institutional records of
the Orchard Creek Hospital, a psychiatric facility where Rodriguez
was treated prior to his trial for Gee's murder, that were known to
his counsel but were not presented at his trial.
Rodriguez complains that his jury did not hear a neuro-psychologist's
opinion that his abusive upbringing, lengthy drug addiction, and use
of cocaine damaged his brain's frontal lobes. He argues that this
unproffered evidence could have persuaded one juror to vote against
the death penalty.
Rodriguez admitted that his counsel at his state
habeas proceeding did not provide this claim to the state court.
Pursuant to 28 U.S.C. § 2254(b)(1), Rodriguez should have fully
exhausted remedies available to him in state court before proceeding
to federal court; he should have presented the substance of his
claim in the state court. Nobles v. Johnson, 127 F.3d 409, 420 (5th
Cir.1997). “A habeas petitioner fails to exhaust state remedies
‘when he presents material additional evidentiary support to the
federal court that was not presented to the state court.’ ” Kunkle
v. Dretke, 352 F.3d 980, 988 (5th Cir.2003), cert. denied, 543 U.S.
835, 125 S.Ct. 250, 160 L.Ed.2d 56 (2004) (quoting Graham v. Johnson,
94 F.3d 958, 968 (5th Cir.1996)). See also Moore v. Quarterman, 454
F.3d 484, 491 (5th Cir.2006) (“Evidence is not material for
exhaustion purposes if it supplements, but does not fundamentally
alter, the claim presented to the state courts.”) (internal
quotations and citation omitted) (emphasis in original).
In assessing the exhaustion of Rodriguez's IAC
claim as it pertains to his counsel's failure to investigate
Rodriguez's brain damage, we look to Rodriguez's diligence at the
state habeas level: “[A] failure to develop the factual basis of a
claim is not established unless there is a lack of diligence....
Diligence ... depends upon whether [petitioner] made a reasonable
attempt, in light of the information available at the time, to
investigate and pursue claims in state court....” Williams, 529 U.S.
at 430-32, 435, 120 S.Ct. 1479.
Rodriguez claims that he could not present these
pieces of evidence in the state habeas proceedings because he was
not provided enough resources to conduct his investigation. However,
the record shows that the Texas Court of Criminal Appeals granted
Rodriguez $4000 for investigative services in connection with his
state habeas proceeding.FN6 As noted by the district court,
Rodriguez does not explain why he did not obtain at least some
neurological or psychological tests with the funds granted him. It
is unclear whether Rodriguez exercised sufficient diligence at the
state habeas level.
FN6. In total, Rodriguez requested more than
$11,000 for investigative services, almost half of which was
requested just days before his petition for writ of habeas corpus
However, even if Rodriguez had exhausted his
state remedies, his claim for IAC fails. See 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”) Again, Strickland
governs Rodriguez's IAC claim. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). In order to prevail, Rodriguez must meet both the
deficiency and prejudice prongs of the Strickland test. Id. at 687,
104 S.Ct. 2052. As discussed, to prevail on the deficiency prong,
Rodriguez must demonstrate that counsel's representation fell below
an objective standard of reasonableness. Id.
In order to prove prejudice, Rodriguez must show
a reasonable probability that but for his counsel's deficient
performance, the “additional mitigating evidence [was] so compelling
that there is a reasonable probability that at least one juror could
reasonably have determined that, because of [the defendant's]
reduced moral culpability, death was not an appropriate sentence.”
Neal v. Puckett, 286 F.3d 230, 241 (5th Cir.2002) (en banc), cert.
denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003); see
also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 (“[T]he question is
whether there is a reasonable probability that, absent the errors,
the sentencer-including an appellate court, to the extent it
independently reweighs the evidence-would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691,
104 S.Ct. 2052 (emphasis added). “[A] particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments.” Id. “In assessing counsel's investigation, we must
conduct an objective review of their performance, measured for
reasonableness under prevailing professional norms, which includes a
context-dependent consideration of the challenged conduct as seen
from counsel's perspective at the time.” Wiggins v. Smith, 539 U.S.
510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal quotation
marks and citations omitted); see Rompilla v. Beard, 545 U.S. 374,
381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (noting that “hindsight
is discounted by pegging adequacy to ‘counsel's perspective at the
time’ investigative decisions are made”) (quoting Strickland, 466
U.S. at 689, 104 S.Ct. 2052).
The evidence does not support Rodriguez's
contention that his trial counsel performed deficiently by not
presenting evidence of his brain damage. Trial counsel pursued a
mitigation case that described Rodriguez as a changed person. The
jury heard abundant evidence lessening Rodriguez's moral culpability
and humanizing him. They heard from witnesses who described
Rodriguez as having reformed his conduct through religious studies
following his incarceration in 1991 and that he had a good
disciplinary record while incarcerated. It is a reasonable
conclusion, and within trial counsel's purview of professional
judgment, that evidence of brain damage to explain Rodriguez's
violent behavior would counteract counsel's mitigation strategy.
Evidence of Rodriguez's permanent brain damage presents the
proverbial double-edged sword: it could bolster the State's case on
future dangerousness without significantly reducing, if at all,
Rodriguez's moral blameworthiness. See Martinez v. Dretke, 404 F.3d
878, 889 (5th Cir.), cert. denied, --- U.S. ----, 126 S.Ct. 550, 163
L.Ed.2d 466 (2005) (“As we have held, evidence of organic brain
injury presents a ‘double-edged’ sword, and deference is accorded to
counsel's informed decision to avert harm that may befall the
defendant by not submitting evidence of this nature.”). Thus, trial
counsel's decision not to introduce evidence of brain damage, given
the availability of other, less damaging, mitigating evidence, falls
within the bounds of sound trial strategy. See id. at 890.
Rodriguez insists that trial counsel's strategic
decision not to introduce evidence of brain damage was unreasonable
because trial counsel failed to investigate brain damage. In support
of this failure to investigate claim, Rodriguez points to the
institutional records of the Orchard Creek Hospital and a neuro-psychologist's
opinion that his abusive upbringing, lengthy drug abuse, and use of
cocaine damaged his frontal lobes.FN7
The state habeas court found:
that trial counsel was aware of the institutional records at Orchard
Creek Hospital but decided not to introduce them; that trial counsel
objected to the State's attempt to admit the Orchard Creek Hospital
records, “in part, because trial counsel did not want the jury
informed of a diagnosis of sociopathy for [Rodriguez], and that
trial counsel instead offered extensive evidence of [Rodriguez's]
character change and his good deeds in prison to persuade the jury
that [Rodriguez] would not be a future danger”; and that the
institutional records were used by the State for the limited purpose
of cross-examining Rodriguez's mother and that the records did not
present the jury with a diagnosis of sociopathic behavior.
habeas court further found that “trial counsel presented extensive
testimony ... of [Rodriguez's] home life, his father's abuse, and
its affect on [Rodriguez],” and that trial counsel presented
evidence of Rodriguez's drug problem, including Rodriguez's anger
when he used crack cocaine. Rodriguez has not rebutted the
presumption of correctness of the state court's factual findings,
and we defer to these findings in ruling on the merits. See 28 U.S.C.
FN7. Even though it is questionable whether
Rodriguez exercised sufficient diligence at the state habeas level
to exhaust his failure to investigate claim, we may still deny his
writ of habeas corpus on the merits. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”).
Most of the evidence that Rodriguez claims
resulted in an unreasonable investigation by trial counsel was
actually presented by trial counsel and heard by the jury. As found
by the state court, the jury heard evidence of Rodriguez's home life,
his father's abuse, his drug abuse, and the fact that he got angry
when he used crack cocaine. The jury did not hear evidence of
Rodriguez's institutional records at Orchard Creek Hospital.
decision not to introduce those records and to forego further
investigation into those records probably was not unreasonable in
light of other potentially conflicting mitigating evidence, what
trial counsel knew at the time of Rodriguez's 1994 trial, what the
State introduced into evidence, and the “heavy measure of deference”
owed to counsel's investigative judgments. See Strickland, 466 U.S.
at 691, 104 S.Ct. 2052; see also Wiggins, 539 U.S. at 523, 123 S.Ct.
The only remaining evidence that Rodriguez proffers-the
opinion of the neuro-psychologist in post-conviction proceedings-is
irrelevant to determining the reasonableness of trial counsel's
perspective (and thus investigation) in Rodriguez's 1994 trial. See
Martinez, 404 F.3d at 886 (stating that testimony of experts and
family members not involved in the defendant's 1989 trial
proceedings is “irrelevant to counsel's perspective in 1989 ”); see
also Rompilla, 545 U.S. at 381, 125 S.Ct. 2456.
Even if counsel's strategies in failing to
further investigate or present evidence of brain damage could be
described as deficient, they cannot form the basis of a
constitutional ineffectiveness assistance of counsel claim because
Rodriguez cannot affirmatively demonstrate prejudice. See Strickland,
466 U.S. at 695, 104 S.Ct. 2052. In other words, there is no
evidence that trial counsel's strategies, even if they fell below
professional norms, prejudiced Rodriguez or “ ‘permeated [his]
entire trial with obvious unfairness.’ ” Martinez, 404 F.3d at 890 (quoting
United States v. Jones, 287 F.3d 325, 331 (5th Cir.), cert. denied,
537 U.S. 1018, 123 S.Ct. 549, 154 L.Ed.2d 424 (2002)). “In assessing
prejudice, we ‘must consider the totality of the evidence before the
judge or jury.’ ” Id. (quoting Strickland, 466 U.S. at 695, 104 S.Ct.
In addition to the mitigation evidence presented
by the defense, the jury had before it evidence of Rodriguez's
execution of the crime of conviction. The jury heard evidence that
on the night of the murder, Rodriguez stole a shotgun and an
automatic rifle from his stepfather and was driving around looking
for a place to rob. The jury heard that Rodriguez unsuccessfully
attempted to rob a gas station, and that he repeatedly fired shots
at another driver in a residential neighborhood before shooting Gee
and stealing her car.
The State produced evidence that Rodriguez
burglarized an elementary school in 1990. The State also produced
evidence of Rodriguez's Harris County Jail records depicting
Rodriguez as an “escape threat” and “aggressive towards staff.” The
jury found there was not sufficient mitigating evidence to warrant
imposition of a life sentence in lieu of the death sentence. It is
not reasonably probable that this outcome would change if, assuming
arguendo, his counsel had not erred in investigating or presenting
this additional evidence. See Strickland, 466 U.S. at 695, 104 S.Ct.
2052 (“[T]he question is whether there is a reasonable probability
that, absent the errors, the sentencer-including an appellate court,
to the extent it independently reweighs the evidence-would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.”). The nature of the evidence
against Rodriguez advises against a prejudice finding. Cf. Martinez,
404 F.3d at 890.
For the foregoing reasons, we DENY Rodriguez's
request for a COA on all issues, and we AFFIRM the denial of habeas
relief on Rodriguez's ineffective assistance of counsel claim for
failure to investigate and present evidence of brain damage
pertaining to the penalty phase of Rodriguez's trial. COA DENIED;
Habeas Relief DENIED; Judgement of the district court is AFFIRMED.