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United States Court of Appeals
For the Fifth Circuit

Edgar Arias Tamayo v. William Stephens, Director

Texas Attorney General

Media Advisory: Edgar A. Tamayo scheduled for execution

AUSTIN – Pursuant to a court order from the 209th District Court of Harris County, Edgar Arias Tamayo is scheduled for execution after 6 p.m. on Jan. 22, 2014.

On Nov. 1, 1994, Tamayo was sentenced to die for the shooting death of Houston Police Officer Guy Gaddis.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described Gaddis’s murder as follows:

Tamayo and another man were arrested in the parking lot of a bar in Harris County, Texas on January 31, 1994, for robbing another patron. After the men were searched and handcuffed, Officer Guy Gaddis of the Houston Police Department placed them in a patrol car, with Tamayo seated behind Officer Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed to the other passenger that he had a gun in his waistband. Tamayo managed to remove the gun from his waistband despite the fact that he was handcuffed. When Officer Gaddis returned to the vehicle and drove away, Tamayo shot Officer Gaddis multiple times. The patrol car crashed into a residence, and Tamayo escaped through a broken window. The police were called to the scene and captured Tamayo as he ran down the street near the crash, still handcuffed. Officer Gaddis was taken to the hospital immediately, but he was pronounced dead upon arrival.

Tamayo gave two written statements admitting that he had the gun in the police car, that he shot Gaddis, and that he knew Gaddis was a police officer. At trial, the evidence indicated that Tamayo, rather than the other passenger, was the shooter. The State also presented evidence that Tamayo had purchased the gun several days before the murder.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the punishment phase of Tamayo’s trial, the State offered evidence of Tamayo’s criminal history and convictions, which included threatening bodily harm to several people. The State also offered evidence that Tamayo fired a gun in a mobile home park in the direction of other mobile homes and, on another occasion, was spotted chasing a man while in possession of a gun.

As mitigation evidence, Tamayo’s counsel offered the testimony of three bailiffs who escorted Tamayo to and from the courtroom, who stated that he was respectful and had never been violent. Two former co-workers testified that Tamayo worked with them and that they had no trouble with him.

Finally, Tamayo’s parents testified that Tamayo had not been in trouble as a child and that he never wanted for food or shelter. Both parents indicated that they were sorry for the pain their son caused Gaddis’s family and pleaded with the jury to spare Tamayo’s life. In rebuttal, the State called a fourth bailiff who testified that Tamayo was aggressive and uncooperative.

PROCEDURAL HISTORY

• On Sept. 27, 1994, a Harris County grand jury indicted Tamayo.

• On Oct. 27, 1994, after a trial in the 209th District Court of Harris County, jurors found Tamayo guilty of capital murder.

• On Nov. 1, 1994, after a punishment hearing, the court sentenced Tamayo to death.

• On Dec. 11, 1996, the Court of Criminal Appeals affirmed Tamayo’s conviction and sentence.

• On Feb. 23, 1998, Tamayo filed first state application for habeas corpus relief.

• On June 11, 2003, the Court of Criminal Appeals denied Tamayo’s first state application for habeas corpus relief.

• On June 17, 2003, Tamayo filed his first subsequent state writ application.

• On Sept. 10, 2003, the Court of Criminal Appeals dismissed Tamayo’s first subsequent writ application.

• On Sept. 11, 2003, Tamayo filed his petition for federal habeas corpus relief.

• On Mar. 21, 2005, Tamayo filed his second subsequent state writ application.

• On July 2, 2008, the Court of Criminal Appeals dismissed Tamayo’s second subsequent writ application.

• On Mar. 8, 2010, Tamayo filed his third subsequent state writ application.

• On June 9, 2010, the Court of Criminal Appeals dismissed Tamayo’s third subsequent writ application.

• On Mar. 25, 2011, the federal district court for the Southern District of Texas denied habeas corpus relief.

• On April 4, 2011, Tamayo filed his notice of appeal.

• On July 20, 2011, Tamayo sought permission to appeal by filing his application for certificate of appealability in the Fifth Circuit.

• On Dec. 21, 2011, the Fifth Circuit denied Tamayo’s application for a certificate of appealability.

• On Jan. 17, 2012, Tamayo petitioned for rehearing.

• On Feb. 15, 2012, Tamayo’s petition for rehearing was denied.

• On May 14, 2012, Tamayo sought certiorari review with the U.S. Supreme Court.

• On Nov. 13, 2012, the U.S. Supreme Court denied certiorari review.

Mexican man executed for HPD officer's death

By Allan Turner - Chron.com

January 22, 2014

HUNTSVILLE — Edgar Tamayo, the Houston cop killer whose case rallied advocates from Mexico to Washington, D.C., went to his death without a word Wednesday in the state's Huntsville death house.

He was the first Texas killer to be executed this year; the first of four Harris County murderers set to die in the next four months.

Tamayo, 46, was condemned for the January 1994 murder of Houston police officer Guy Gaddis, 24. Tamayo, who had been imprisoned in California for aggravated robbery, shot the officer three times with a pistol hidden in his clothing as he was being taken to jail.

The execution was delayed three hours as the U.S. Supreme Court considered whether to take up his final appeals based on mental retardation and the violation of his United Nations treaty rights to contact his consulate.

As Tamayo was escorted to the execution room, police officers who had come to demonstrate support of the victim's family revved their motorcycles.

The lethal injection was administered at 9:15 p.m. and Tamayo was declared dead 17 minutes later.

Tamayo made no final statement, but earlier Wednesday he told prison officials that he was "ready to go."

"Twenty years is too long," he said of the time he had spent on death row.

Gaddis family speaks

After the execution, members of the Gaddis family addressed the media. As reporters waited for them to take the stand, representatives of the Mexican government expressed support for the killer's family and decried the execution.

Then Gayle Gaddis, walking with apparent difficulty, approached the microphone. "A little bit of my shredded heart is feeling better," she said.

Speaking in English and Spanish, the officer's brother, Gary Gaddis, offered condolences to the Tamayo family, but said those gathered "should remember the real victim."

Outside the death house, Tamayo's supporters held aloft a framed picture of Jesus and prayed in Spanish. "Honor Dr. King Stop Executions," their placards read. "Father, Son, Brother. Edgar is Loved By Many."

On the prison's other end, about 50 policemen - part of the usual motorcycle motorcade that arrives when killers of police are executed - talked quietly, awaiting the execution hour.

Gun hidden in clothes

Events leading to Gaddis' death began early on the morning of Jan. 21, 1994, when a man flagged down the officer's car to report that he had been robbed by two men in the parking lot of the Topaz Club in southwest Houston.

Gaddis found Tamayo and the second man at the scene.

The men repeatedly were subjected to pat-down searches, but police overlooked a pistol hidden in Tamayo's waistband. Both were handcuffed and placed in the squad car's back seat.

After extricating the pistol, Tamayo told Gaddis he didn't want to go to jail. Then he opened fire. Two slugs shattered the policeman's skull, a third lodged in his neck. Tamayo escaped by breaking a squad car window but was apprehended a short distance away.

"It's the police officer's fault for not having searched me good," Tamayo later told police.

Gaddis, who had wanted to become a policeman since age 10, had been told just four days before his death that he would become a father.

Tamayo's case gained international attention because authorities failed to tell him that he could contact his nation's consulate under provisions of a United Nations treaty.

Had Tamayo talked with Mexican officials in Houston, his lawyers said, efforts to locate witnesses in Mexico could have begun in a timely manner.

Such testimony, they contended, might have established mitigating circumstances during his trial's punishment phase and saved his life.

State's refusal

The Mexican Consulate was apprised of Tamayo's case about 10 days before his trial.

Intensifying the controversy was the state's refusal to give Tamayo a court hearing to determine how his lost chance to contact Mexican officials affected his trial, his lawyers said.

The Texas attorney general's office said it offered Tamayo a court review, but the killer rejected the offer.

In 2004, an international court ruled that the cases of Tamayo and other prisoners whose treaty rights were violated should be granted hearings. Mexican and U.S. officials, including Secretary of State John Kerry, repeatedly called for such a hearing.

A spokeswoman for Gov. Rick Perry responded that killers committing their crimes in Texas would answer to Texas laws.

Mexican National Edgar Tamayo Executed

By Michael Graczyk - Associated Press

HuffingtonPost.com

January 22, 2014

HUNTSVILLE, Texas (AP) — The execution of a Mexican national was at least temporarily put on hold Wednesday as the U.S. Supreme Court considered appeals to keep 46-year-old Edgar Tamayo from the Texas death chamber.

Tamayo's execution had been scheduled for 6 p.m. CST Wednesday for the slaying 20 years ago of a Texas police officer, Guy Gaddis, 24. The state still could execute Tamayo before midnight if the Supreme Court rules in its favor.

Texas officials have opposed appeals to stop the scheduled lethal injection, despite pleas and diplomatic pressure from the Mexican government and the U.S. State Department.

Tamayo's attorneys and the Mexican government contend Tamayo's case was tainted because he wasn't advised under an international agreement that he could get legal help from his home nation after his arrest. Legal assistance guaranteed under that treaty could have uncovered evidence to contest the capital murder charge or provide evidence to keep Tamayo off death row, Mexican officials have said.

Records show the consulate became involved or aware of the case just as his trial was to begin.

Secretary of State John Kerry previously asked Texas Attorney General Greg Abbott to delay Tamayo's punishment, saying it "could impact the way American citizens are treated in other countries." The State Department repeated that stance Wednesday.

But Abbott's office and the Harris County district attorney opposed postponing what would be the first execution this year in the nation's most active capital punishment state, where 16 people were put to death in 2013.

The high court was considering at least two appeals. One focused on the consular issue. The other was related to whether Tamayo was mentally impaired and ineligible for the death penalty. The execution warrant remains in effect until midnight.

Tamayo's lawyers went to the Supreme Court after the 5th U.S. Circuit Court of Appeals said an appeal this week renewing an earlier contention that Tamayo was mentally impaired and ineligible for execution was filed too late.

The Texas Board of Pardons and Paroles on Tuesday rejected Tamayo's request for clemency.

"It doesn't matter where you're from," Perry spokeswoman Lucy Nashed said. "If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty."

Gaddis, who had been on the force for two years, was driving Tamayo and another man from a robbery scene when evidence showed the officer was shot three times in the head and neck with a pistol Tamayo had concealed in his pants. The car crashed, and Tamayo fled on foot but was captured a few blocks away, still in handcuffs, carrying the robbery victim's watch and wearing the victim's necklace.

At least two other inmates in circumstances similar to Tamayo's were executed in Texas in recent years.

The Mexican government said in a statement this week it "strongly opposed" the execution and said failure to review Tamayo's case and reconsider his sentence would be "a clear violation by the United States of its international obligations."

Tamayo was in the U.S. illegally and had a criminal record in California, where he had served time for robbery and was paroled, according to prison records.

"Not one person is claiming the suspect didn't kill Guy Gaddis," Ray Hunt, president of the Houston Police Officers' Union, said. "He had the same rights as you and I would have.

"This has been looked at, heard, examined and it's time for the verdict of the jury to be carried out."

Tamayo was among more than four dozen Mexican nationals awaiting execution in the U.S. when the International Court of Justice in The Hague, Netherlands, ruled in 2004 they hadn't been advised properly of their consular rights. The Supreme Court subsequently said hearings urged by the international court in those inmates' cases could be mandated only if Congress implemented legislation to do so.

"Unfortunately, this legislation has not been adopted," the Mexican foreign ministry acknowledged.