Jesus Romero, Petitioner-Appellee,
James A. Lynaugh, Director, Texas Department of
United States Court of Appeals,
October 5, 1989
Appeals From the United States District Court
Southern District of Texas.
Before CLARK, Chief Judge,
GARWOOD, and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM,
In this death penalty case,
the State of Texas appeals from the grant of
Jesus Romero's application for writ of habeas
corpus. The United States District Court for the
Southern District of Texas concluded that
Romero's lawyer so abbreviated the closing
argument and otherwise failed to offer
mitigating circumstances in the sentencing phase
of the trial that he failed to render
constitutionally required assistance. The court
ordered the death sentence commuted to life,
persuaded that the ordered relief was within the
broad remedial power of a federal court to
fashion appropriate relief for constitutional
Texas appeals, contending
that counsel was effective and that in any event
the district court exceeded its authority in
commuting the sentence to life. Romero defends
the ordered relief; he also appeals, contending
that the district court erred in not finding
that his lawyer was ineffective in thirteen
We are persuaded that Texas
gave Romero a fair trial and that the efforts of
his lawyer met the constitutional standard of
effective counsel. We reverse the grant of
relief and remand with instruction to enter an
order denying Romero's petition for a writ of
habeas corpus. We do not reach the question of
authority of a federal habeas court to commute a
death sentence, leaving it for a case requiring
* On July 20, 1985, a Texas
jury found Jesus Romero guilty of the capital
murder of Olga Lydia Perales during the course
of aggravated sexual assault. The jury gave
affirmative answers to the two questions
required by Tex.Code Crim.Proc.Ann. art. 37.071
(Vernon Supp.1988), and punishment was set at
death. The judgment and sentence were affirmed
on direct appeal. Romero v. State, 716 S.W.2d
The United States Supreme
Court denied certiorari. Romero v. Texas,
479 U.S. 1070 , 107 S.Ct. 963, 93 L.Ed.2d
1011 (1987). On March 20, 1987, six days
before his scheduled execution, Romero filed an
application for writ of habeas corpus in the
state trial court pursuant to Tex.Code
Crim.Proc.Ann. art. 11.07 (Vernon Supp.1988).
The trial judge found no questions of fact and
forwarded the application to the Court of
Criminal Appeals. That court stayed execution
and remanded the case to the trial court with
instructions to conduct a hearing on the issue
of effective counsel. Ex parte Romero, No.
16,943-01 (Tex.Crim.App. March 24, 1971).
On May 28, 1987, following
the ordered hearing, the trial court filed
detailed findings of fact and conclusions of law.
These findings by the judge who presided at
Romero's trial are significant and we will
return to them. The Court of Criminal Appeals
denied Romero's petition for relief without
written order. Ex parte Romero, No. 16,943-01 (Tex.Crim.App.
June 9, 1987) and the trial court set Romero's
execution for July 22, 1987.
On July 16, 1987, Romero
filed a petition for writ of habeas corpus with
the United States District Court for the
Southern District of Texas and on July 17, 1987,
that court granted his unopposed request for
stay of execution. The federal district court
did not conduct an evidentiary hearing, but
relied upon the transcript of the hearing before
the state trial judge. It rejected Romero's
broad gauged attack on the constitutionality of
the Texas death penalty statutes, and rejected
asserted errors in the failure of the trial
judge to instruct the jury, sua sponte,
regarding mitigating factors to be considered at
the sentencing phase, and to define the meaning
of the words "deliberately" and "proof beyond a
reasonable doubt." It then rejected thirteen
specifications of ineffective assistance of
counsel at trial, concluding that they failed to
"pass the 'deficiency' prong of the Strickland
analysis." Romero and Texas appeal only the
rulings on ineffective assistance.
We will first describe the
events at trial and then turn to the habeas
findings of the state trial judge regarding the
performance of Romero's lawyer. Finally, we will
address the district court's decision regarding
each of the asserted failures.
Jesus Romero's role in the
rape and slaying of Olga Lydia Perales are set
out in the opinion of the Court of Criminal
[Romero], along with Jose
Cardenas, Davis Losada and Rafael Leyva were
indicted for the offense of capital murder of
the victim, a fifteen-year-old junior high
student in San Benito. Said offense was alleged
to have occurred on December 23, 1984.
Codefendant Leyva, who was
sixteen years of age at the time, went to his
juvenile probation officer on January 8, 1985
and reported the instant offense. Texas Ranger
Bruce Casteel, District Attorney Alvarado and an
attorney for Leyva, Horacio Berrera (who
continued to represent Leyva) were summoned.
Leyva made a statement at that time about the
offense in which he admitted his presence at the
offense but denied any other involvement.
At trial Leyva testified on
behalf of the State. The testimony of Leyva at
trial reflected the following.
A party, which was attended
by the deceased, was held at Ray Amaya's house
in San Benito on the night in question. Cardenas,
Losada and [Romero] approached Leyva in downtown
San Benito in Cardenas' car and invited him to
go to a party with them. Prior to arrival at
Amaya's house they went "cruising" for about an
hour during which time all of them were drinking
beer and smoking marijuana.
Upon arrival at Amaya's house
it was discovered that the party had broken up
and only Amaya and the deceased were present.
The deceased came out and "started going to the
car slowly ... all of a sudden Jesse [Romero]
pushed the girl [the deceased] inside the car."
Cardenas was in the driver's seat and [Romero]
pushed the deceased into the passenger side of
the front seat. "Jesse [Romero] was holding the
girl's head down.... He was holding it with the
right hand on her head pushing to her knees ...
he was telling her just to keep quiet."
The testimony of Leyva
reflects that they drove to a place beside the
lake called La Piedra. During that time [Romero]
was holding the deceased's head down and telling
her to be quiet. The deceased was asking to "leave
her alone" and "take her home." Davis Losada
first had sex with the deceased. Davis put "a
knife to her neck ... and she got on 'four'
giving Davis a blow job ... the girl was saying
to take her home and just to leave her alone and
Davis was telling her to shut up and if she
didn't shut up something was going to happen to
her, and the girl was kind of like weeping ..."
[Romero] "unzipped his pants
and got inside the car while the girl was on 'four,'
and still gave Davis the blow job, he got in
through the back and started having sex with
her." After [Romero] finished, Leyva "started
having sex with her in the back." The deceased
continued to ask to be taken home and Cardenas
removed a pipe from the car that "looked like a
A discussion ensued as to
whether the deceased would tell anyone and the
deceased insisted that she would keep quiet and
say nothing. Leyva testified that he told the
others that she would keep quiet and they kept
telling him "That's no good. She's going to say
something and we are going to get in trouble."
Cardenas handed Leyva the
pipe and Leyva hit the girl on the forehead with
the pipe. The deceased did not fall down and
[Romero] grabbed the pipe out of Leyva's hand
and "started hitting the girl ... he was hitting
her head with both hands on the pipe." The
deceased fell to the ground after [Romero] hit
her the second time and after she fell to the
ground Romero hit her "three or four or five
times at the most."
The girl stopped making noise
after [Romero] "finished hitting her." Someone
else hit her "three or four times." Leyva then
observed Cardenas hitting the girl "with both
hands on the pipe." "Jesse [Romero] was giggling
while he was hitting the girl." Losada told
Leyva to "grab the girl." Losada and [Romero] "both
came at me with knives." [Romero] then observed
the girl move and Losada said "Just to make sure
she's dead, I'll stab her."
Losada again told Leyva to
drag the girl into the bushes and after dragging
her "halfway," Davis told [Romero] "to give me a
hand" and "my [sic] and Jesse [Romero] dragged
the girl way back in the bushes." [Romero] with
a knife in his hand told Leyva "Stab her or I'll
stab you." Leyva stabbed the girl "from the
waist to her chest" and gave the knife back to
Leyva and his three
companions returned to the car and they left the
scene and Losada said, "We all did it, you know.
Everybody had a part in it." Losada threw the
knife "into some canal." [Romero] then handed
his knife to Losada so he could throw it out.
Cardenas stopped on a bridge and Losada threw
the girl's clothes out. Leyva was instructed by
Losada to not tell anyone that they were
together. The remaining three were going to say
"all we know is that we dropped the girl off at
the Azteca." Losada warned Leyva "Just keep your
mouth shut and if you don't the same thing is
going to happen to you."
[Romero] made a written
confession, the following portions of which were
admitted into evidence.
Omitting the warning and
formal parts, the confession recites:
The party started to break up
around 11:00 or 11:30 p.m. We left in Joe's [Cardenas]
car. Joe was driving. Davis [Losada] and Rafa
[Leyva] were in the back seat. We drove out to
what is known as La Piedra and drove down a
narrow road from a bigger road for approximately
one city block in distance. Davis, with the
knife in one hand, forced [deceased] to make out
with him, Rafa made out with her, then Joe made
out with her. Davis got a pipe and started
hitting [deceased] about the head. Rafa hit her
also. Joe did hit her. Afterwards, [deceased]
was laying there and Davis stabbed her. After
Davis stabbed her Rafa got a hold of one leg and
I got a hold of the other leg and we pulled her
into the bushes. I don't know what happened to
the pipe and didn't see it anymore when we left
When we left the area Joe was
driving. Rafa and I were in the back seat, and
Davis was in the front passenger side. As we
traveled down a dirt road, Davis got rid of the
knife that was used to stab [deceased] and also
got rid of another knife. He did this by
throwing the knives out the window. We then
traveled some more and we then stopped on a
small bridge that goes over a drainage ditch
there by the overpass that is close to the
Valley Buick Company located just southeast of
San Benito. When we stopped there Davis gave
Rafa some other items and Rafa threw those out
in the drainage ditch also.
Rafa was dropped off first by
the Bertha Cavazos School.
"I have been shown two photos
by Investigator Joe Alvarado of the District
Attorney's Office and I have identified both
pictures as being # 1, that of [deceased], the
way we left her that night there in the bushes.
Photo # 2 is the way we left [deceased] after
Rafa and I dragged her into the bushes. I have
initialed, dated, and placed the time on both
A search of [Romero's]
residence resulted in the recovery of a man's "blooded
underwear" at the bottom of a garbage bag. Raul
Guajardo, a chemist with the Department of
Public Safety, testified his analysis revealed
that human blood was on the sides of the
underwear. The findings were consistent with
either Type A or Type AB. Blood samples from the
deceased and [Romero] were both type A. Blood
samples of the three codefendants showed all of
them to be type O.
As part of his plan to
persuade the jury of Romero's lesser involvement,
Wood attacked the credibility of the state's
witness, Leyva and argued in closing at the
guilt phase that Romero's involvement was more
limited than Leyva had testified. Wood offered
two witnesses, his sister Leticia Esparza and
Alejandro Espinoza, a lab technician.
Wood, consistent with his
plan, attempted by this testimony to offer an
innocent explanation for the shorts with blood
stains of his type, found in a search of the
home following the murder. The sister testified
that Sylvia, one of Romero's three other sisters,
and one of ten children, was Mongoloid and
lacked full ability to care for herself; that
she had found Sylvia's blood stained briefs at
home on previous occasions. The technician
testified that Sylvia's blood sample tested
At the sentencing phase,
convicted of capital murder, Romero's difficult
situation became even more grim. The state
presented witnesses who testified concerning
other assaults of women by Romero. Marianne
Alvarez testified that less than three weeks
before Olga Perales's murder Romero, armed with
a pistol, attempted to force her into a stolen
car. When she resisted he beat her in the face
with his fist stopping only when a passing
motorist produced a pistol and fired at a then
The state then produced Norma
Charles who testified that only eight days
before Olga Perales's murder Romero assaulted
her as she walked home, knocking her to the
ground and hitting her fifteen to twenty times
in the face with his fists and beating her head
on the pavement.
He fled when her boyfriend,
Henry Thomas came upon the scene. Thomas also
testified at the punishment phase, corroborating
Norma Charles's testimony. Three local police
officers then testified to Romero's bad
reputation, and of Romero and his brothers
fighting with their father. They testified that
Romero's family was very violent. Romero did not
testify at trial.
Romero's lawyer had argued
extensively at the guilt phase and offered only
the following in closing at the sentencing phase:
Defense Counsel: Ladies and
Gentlemen, I appreciate the time you took
deliberating and the thought you put into this.
I'm going to be extremely brief. I have a
reputation for not being brief.
Jesse, stand up. Jesse?
The Defendant: Sir?
Defense Counsel: Stand up.
You are an extremely
intelligent jury. You've got that man's life in
your hands. You can take it or not. That's all I
have to say.
There were three witnesses at
the evidentiary hearing before the state trial
judge on Romero's state habeas petition. Two
attorneys testified as expert witnesses,
responding to hypothetical questions. Jon Wood,
Romero's lawyer at trial and on appeal,
testified, explaining his trial plan. The trial
judge found that Wood was licensed in 1974; that
his experience included three years as a Cameron
County prosecutor and the trial of hundreds of
criminal cases including many capital cases.
The court found that while
Wood had not filed discovery motions the
prosecutor had opened his entire file to Wood,
except the statements of its witnesses and the
report of its chief investigator; that Wood
otherwise had obtained the statements of
witnesses as well as the case report by virtue
of a Juvenile Certification hearing of Rafael
The state trial judge found
that Wood had seen the case tried three times
having sat throughout the trials of Davis,
Losada, and Cardenas. He found that Wood had
requested and obtained the appointment of a
psychiatrist whose report ruled out any insanity
defense. After rejecting each of the asserted
deficiencies in Wood's work, the trial court
concluded that none, in any event, met the test
of prejudice set out in Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,
2065, 80 L.Ed.2d 674 (1984).
The federal district court
rested its grant of relief upon the failure of
Wood to offer more extensive argument. The court
was persuaded that "the decision to not present
a more extensive argument at punishment 'precluded
the jury from considering any mitigating factors
and waived [Romero's] constitutional rights
guaranteed by Lockett...." It concluded that,
according to the record, Wood could have argued
that Romero was a teenager; that Romero was
intoxicated at the time of the offense; and that
his family background might have made his acts "understandable"
if not "justifiable."
The court observed that the
decision "not to present any argument at the
sentencing phase" was so "patently unreasonable"
as to constitute a deficiency under Strickland.
Finally, it concluded that there was "a
reasonable probability that absent this
deficiency, the jury would have sentenced Romero
to life imprisonment rather than death." The
district court then ordered that the death
sentence be "commuted to life imprisonment."
The district court summarily
rejected Romero's first thirteen allegations of
ineffective assistance with the observation that
they failed to meet either the "deficiency" or "prejudice"
prongs of Strickland. We turn first to the basis
for the grant of relief and then to the thirteen
rejected specifications of ineffective
assistance of counsel.
Our "judicial scrutiny of
counsel's performance must be highly deferential."
Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). We are
to make every effort to eliminate "the
distorting effect of hindsight." Id.
Finally, we are to "indulge a
strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance." Id. * It is not clear whether the
district court's finding of ineffective
assistance of counsel faulted only the lawyer's
decision to argue as he did in sentencing or
whether the court was also critical of the
decision to not offer evidence at the sentencing
phase. As we read its ruling, the perceived
fault was in not presenting mitigating factors
that were available, a failure curable by
This reading is supported by
the district court's observation that "If
defense counsel had merely decided not to offer
evidence at the sentencing phase, the standards
set forth in [Bell v. Lynaugh, 828 F.2d 1085
(5th Cir.), cert. denied,
484 U.S. 933 , 108 S.Ct. 310, 98 L.Ed.2d
268 (1987) ] would lead the court to
defer to defense counsel's judgment ... defense
counsel not only failed to put on evidence but
also failed to make any substantial final
statement at the sentencing phase of the trial."
As we have stated, the federal district court
observed that "the record reveals that defense
counsel had sufficient grounds to argue ...
several mitigating factors ..." including youth,
intoxication and family background. In short,
the district court quarreled with Wood's
decision to handle the sentencing phase as he
We are persuaded that the
district court failed to give Wood, an
experienced trial lawyer, the latitude necessary
to try a difficult case. Wood's task was
formidable. His client had confessed to
participating in a brutal rape and killing of a
fifteen year old girl. Leyva, a sixteen year old
participant, testified for the state and the
physical facts corroborated his testimony.
Within weeks of the charged crime Wood's client
had assaulted two other females. The client did
nothing to help his own cause. Indeed, at trial
the lawyer found his client laughing in the
presence of the jury at the grisly details of
There is no question that
Wood engaged in substantial preparation for
trial. He obtained access to the prosecutor's
file, even the report of the state's
investigator, and observed each of the three
trials of Romero's confederates. He knew the
jury. He knew the community. As for the events
of trial, there is nothing to suggest that any
mitigating facts were not before the jury.
Romero's youth was obvious. Romero's sister,
while testifying at the guilt phase, told the
jury of the family size and of the handicapped
sister. Unfortunately for Romero, not all the
product of inquiry into Romero's home life was
Police officers testified at
the sentencing hearing that the family was
violent and the brothers were fighting with the
father. Jurors might view this evidence as
explanatory of Romero's violence or the jury
might see it as further evidence of unchecked
aggression. There was also evidence that Romero
and the others were drinking at the time of the
offense. At the same time, any suggestion that
Romero was so intoxicated that the jury was
likely to give it substantial weight in
considering his moral culpability is belied by
the record. In sum, while Romero's lawyer did
not present evidence at the sentencing phase of
trial, the fact is that the evidence of possible
mitigating factors was before the jury. It
follows that the relevant inquiry is whether
Wood's dramatic ploy in the sentencing hearing
fell off the constitutional range.
Given his difficult situation,
we are not prepared to fault Wood's effort to
highlight the heavy responsibility of the jury
by not burdening them with the obvious and
avoiding the risk of losing them by arguing the
absurd. To do so comes close to insisting on a
pro forma argument in every case. Had the jury
returned a life sentence the strategy might well
have been seen as a brilliant move. That it did
not does not mean that it was outside the range
of reasonable professional assistance.
We turn to Romero's argument
that the district court erred in not finding
that Wood was ineffective in thirteen additional
respects. First, Romero argues that Wood filed a
notice of intent to raise an insanity defense
but did not do so. This ignores the fact that
the notice accompanied a request for examination
by a psychiatrist, which was granted.
The filed report of
examination found Romero was competent to stand
trial; that he suffered no mental disease or
defect which would impair his ability to
distinguish right from wrong; and that while he
was intoxicated at the time of the offense, he
was able to realize the consequences of his
Romero next complains of the
district court's rejection of his contention
that Wood was ineffective in not moving to
suppress the results of the search of Romero's
house or to suppress Romero's confession. There
is nothing in the record to suggest a basis for
such motions and Romero suggests none. There was
Romero next argues that Wood
failed to file a discovery motion, to object to
photographs, or to request a change of venue. We
have otherwise described the actual discovery
obtained by Wood. It exceeds the discovery
obtainable by formal motion. There was no error.
The photographs were admitted in the trial of
Davis Losada, attended by Wood, and he had
Wood elected to focus his
efforts on reducing the number of photographs of
the deceased put before the jury and objected
that proffers were duplicative and cumulative.
Nothing suggests that an objection footed on
prejudice would have been fruitful. To the
contrary, at least some of the photographs were
highly relevant evidence of the nature and
severity of injury inflicted. We cannot fault
Wood elected to leave the
trial in Cameron County, persuaded that Romero's
chances with a jury were not improved by a
change of venue. We are pointed to nothing to
fault this judgment call.
Romero next contends that the
district court erred in rejecting his assertion
that Wood was ineffective in his handling of
jury selection; that he failed to challenge for
cause five veniremen when he might have done so,
and was "inattentive to the requirements of
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968)."
The Witherspoon allegation is
no more than a conclusion. We are pointed to
nothing in the record to support it. The
selection of the jury was explored in the
evidentiary hearing before the state trial judge
on Romero's habeas petition. At that hearing
Wood, while unable to recall all the reasons for
his actions taken some two years earlier,
explained his reasons in general terms, pointing
out that he had a personal history of the
veniremen. The state trial judge found that Wood
"prepared extensively for his voir dire
examination of the jury and was knowledgeable of
the panel by the time of voir dire." The record
supports this finding.
Romero points to Cynthia Ann
Noyala, an Hispanic female, who had initially
stated that she would not consider the minimum
punishment of five years for murder. But she
wxplained, in response to questions by the state,
that she could do so for a mercy killing. She
had read or heard that one codefendant had been
give a death sentence and another was sentenced
to life. It is by no means plain that this
information was harmful to Romero's cause.
Andres Flores explained that
she could not consider the minimum penalty for
murder but she gave other favorable responses
such as a willingness to consider intoxication
and distrust of accomplice testimony.
Romero argues that Wood
should have urged the exclusion for cause of
Ramon Munoz because he had formed an opinion of
Romero's guilt. However, Munoz's testimony was
that he had doubts that Romero was as innocent
as anyone in the courtroom, which was the
question asked. He stated that he would not call
it an opinion; that he had talked about the case
with co-workers who expressed the view that
Romero was very young.
Finally, Romero points to
Jane Bristow and Lucia Garcia. Bristow stated
that where a defendant did not consider the life
of the victim the death penalty would be a more
humane punishment than life imprisonment. But
she also was skeptical of accomplice testimony
and Wood's line of defense was to discredit
Rafael Leyva's testimony and convince the jury
of Romero's lesser role in the crime. Garcia had
expressed shock that such a crime occurred in
her hometown of San Benito, but she had formed
no opinion regarding Romero's guilt and believed
in the presumption of innocence.
We are persuaded that none of
these decisions by trial counsel fall outside
the range of acceptable judgment. The selection
of a jury is inevitably a call upon experience
and intuition. The trial lawyer must draw upon
his own insights and empathetic abilities.
Written records give us only shadows for
measuring the quality of such efforts. Indeed,
we recognize this cold fact of life by our
standard for reviewing the rulings of judges
presiding over jury selection.
The Supreme Court in
Wainwright v. Witt,
469 U.S. 412 , 105 S.Ct. 844, 83 L.Ed.2d
841 (1985), pulled back from earlier
language in Witherspoon suggesting a de novo
review of such decisions, requiring that federal
habeas courts review by a clearly erroneous
standard. The point is not that we review claims
of ineffectiveness by a similar standard but
rather that the standard by which we review
decisions by trial judges accepts the reality
that the selection process is more an art than a
science, and more about people than about rules.
While our review of the ultimate decision
regarding effectiveness of counsel is
essentially de novo, our willingness to second
guess them must be informed by the reality of
their task and the limits of the recording of
their work before us.
Romero points to seven
instances in which Wood is said to have failed
to block the receipt of evidence. In each
instance, the evidence was either clearly
admissible or duplicative of evidence properly
received. It is unnecessary to review them
seriatim. We agree with the trial court that
there has been no showing of prejudice under
Strickland even were we persuaded, and we are
not, that Wood erred in the manner asserted.
In sum we are persuaded that
Jesus Romero was represented by competent
counsel and received a fair trial. We affirm the
district court's decision rejecting claims of
the petition for habeas corpus. We vacate the
stay of execution, reverse the decision granting
relief, and remand the case to the district
court with instruction to dismiss the petition
for writ of habeas corpus.
Affirmed in part, reversed in
part, and remanded.