John R. THOMPSON
“He wanted his last words to be
with God and not anybody here,” Attorney General Jim Mattox said on
behalf of executed inmate John Russell Thompson. Although Thompson
claims to have had a “spiritual conversation” with God, he accepted
his fate to die by lethal injection on Texas’ Death Row.
Ironically, Judge Peter Michael Curry, who is
pro-death penalty, claimed that, “Thompson was the only capital
murder defendant he had tried who was ‘genuinely remorseful.’”
Evidently, Thompson wasn’t convincing enough. The jury gave him the
death penalty for the murder of Mary Kneupper.
After nearly ten years on death row, Thompson
would finally meet the maker he had claimed to become so close to.
On July 7, 1987, prisoner #610 spent his last day on death row just
like any other day. After coffee and biscuits with peanut butter,
Thompson spent the early morning hours with the prison chaplain. By
the late morning, he had visited with his parents John and Etta
Thompson, his brother James Thompson, His sister and brother-in-law,
Joetta and Robert Thorpe.
Late that afternoon, upon arrival in Huntsville,
Thompson spent the rest of the day with his attorneys and the
chaplain. At 12:04 am on July 8, Thompson was strapped to the gurney
in the death chamber. At 12:20 am, he was pronounced dead.
Thompson was a 32 year-old former laborer and was
living in San Antonio. He was a known methamphetamine user and
alcoholic. However, around the time of the murder, Thompson’s family
thought he had quit abusing drugs.
Thompson had an extensive criminal record prior
to his murder conviction. He had been arrested for theft, auto theft,
robbery, unlawful carrying of a weapon, burglary and possession of
paraphernalia. He also served two years of a six-year prison term
for burglary and theft.
On the night of the murder, Thompson constructed
an elaborate plan to rob a local savings and loan for money to buy
narcotics. With the help of accomplices Esther Cervantes, Christie
Sparks and Fernando Guerrero, Thompson thought his plan was
foolproof. However, when they arrived at the savings and loan, the
four found the office closed. Their backup plan was to go to rob an
apartment complex office. Ironically, the apartment office was
Desperate for drug money, Cervantes, Sparks and
Thompson drove to the Pioneer Store and Lock facility on Interstate
35 and Loop 410 in San Antonio, TX. Thompson went into the office
while the manager, Mary Kneupper, struggled to surrender the cash to
Thompson. After a shot in the neck with a .45 caliber pistol,
Thompson fled the scene without the cash.
A neighbor heard the shot and called the police.
After arriving at the hospital, Mary Kneupper, 70, died of a gunshot
wound to the neck. Thompson was named as a suspect and arrested
later in Plano, TX for robbery.
After two appeals, the courts offered a life
sentence in exchange for a plea bargain. They later changed their
minds as to make sure there was no chance foe parole. “We couldn’t
be assured that he would be walking the streets in twenty years,
ready to do this again,” said one of the jurors.
On July 8, 1987, John Russell Thompson was
executed by means of lethal injection for the murder of Mary
Kneupper of San Antonio, TX.
821 F.2d 1054
James A. LYNAUGH, Interim Director, Texas Department of
United States Court of Appeals,
July 3, 1987.
Appeal from the United States
District Court for the Western District of Texas.
Before RUBIN, JOHNSON, and JONES,
ALVIN B. RUBIN, Circuit Judge:
The petitioner in this habeas
corpus case has been condemned by Texas courts to be executed
for the crime of capital murder. He contends that he was
deprived of his federal constitutional rights in ten respects,
urging most strenuously the alleged insufficiency of the
evidence to show that he intended to kill a person whom he shot
during the course of an armed robbery--an insufficiency alleged
to deny him due process in two ways, both by the insufficiency
of the evidence to sustain a verdict of guilty, and its
insufficiency to satisfy the requirements of the Texas
Finding that the evidence is
sufficient to satisfy constitutional requirements in both
respects and that the petitioner's federal constitutional rights
were not violated in any of the other respects complained of, we
affirm the district court judgment denying him relief.
As set forth by the en banc
opinion of the Texas Court of Criminal Appeals, affirming the
conviction and death sentence of John Russell Thompson,
and as supported by the record, the basic facts are these.
Thompson, Fernando Guerrero,
and Guerrero's friend Christie Sparks Moore met at another
friend's house in San Antonio, Texas, where Thompson initiated a
discussion about committing an armed robbery. Guerrero agreed,
and Thompson and Guerrero attempted to secure a gun. Their
efforts were unsuccessful, and Guerrero then enlisted Moore's
aid in secretly obtaining, from the home of Moore's stepfather,
a .45-caliber automatic pistol that belonged to her stepfather.
Thompson, who had some
familiarity with firearms, manipulated the weapon, which had
three safety mechanisms, to be certain he knew how to operate it.
Guerrero also manipulated the weapon. Either Guerrero or
Thompson, though the evidence does not show which, disengaged
the safety devices. The gun was then placed under Guerrero's
seat in the car. The three then picked up a friend of Thompson,
Esther Cervantes, who supplied a bandana and a pair of
sunglasses to be used as a disguise.
Thompson drove the group
around looking for a place to rob. After inspecting several
other places, which appeared not to be opportune targets,
Thompson drove by the office of a place of business called
Pioneer Stor & Lok. Thompson said to the group in his car that
he saw a woman inside counting money. Because several cars were
parked at the business, Thompson drove onto Loop 410, where he
encountered a pedestrian. Thompson slowed down and Guerrero
conversed with the pedestrian.
As a result, a police officer
stopped Thompson and gave him a ticket for obstructing traffic.
Thompson, slightly upset, then returned to Pioneer Stor and Lok
with his three companions. Leaving them in the car, he donned
the disguise, took the murder weapon, got out of the car, and
went into the office. Moore, who was hiding with Cervantes in
the back seat, testified at the trial that she heard "a large
bang" and Thompson then emerged from the office. He got in the
car and they drove away.
Thompson said to the group
that he hadn't taken any money because there was none. He also
said that the woman in the office (who was Mary Kneupper) had
not taken him seriously and had laughed at him when he first
entered the office and pointed the pistol at her. When she later
fled the office area through a doorway, he jumped over the
office counter and attempted to pull her back into the office
area to stop her flight. He said that the pistol had discharged
accidentally, and that he did not think he had wounded her.
Moore also testified that, when Thompson later learned from the
media that Mrs. Kneupper had died, he cried and said repeatedly
that he had shot her accidentally.
An autopsy performed on the
victim revealed a wound made by a bullet that entered the left
side of her neck, severed her spine, and exited the right side
of her head in front of her ear. The doctor who performed the
autopsy testified that it was his opinion that the wound was
caused by a large caliber bullet fired from a distance of less
than two feet, perhaps as little as a few inches. A firearms
examiner testified that in his opinion Mrs. Kneupper was shot
from a distance of three to six inches.
Ronald Ash, a friend of
Thompson and Fernando Guerrero, testified that the day after the
death of Mrs. Kneupper he spoke with Thompson and Guerrero
regarding the robbery-murder that had occurred the previous day.
Thompson told him that "they had tried to make a score and
killed an old lady," but he did not say that this was
After the jury had returned a
guilty verdict, the sentencing phase of the trial began.
Evidence was adduced that Thompson had been convicted of felony
theft in November 1972, for which he successfully terminated a
sentence of three years on probation. He had been convicted of
felony burglary of a habitation and felony theft in 1974 and was
sentenced to five-to-six years, and two-to-six years
imprisonment, respectively. When arrested for burglary, he had
been in possession of a .22-caliber pistol and several boxes of
Four days before the Pioneer
episode, the police recovered a loaded and fully operational .32
automatic pistol from a car that Thompson was driving. The state
also introduced other evidence, which it is unnecessary to
recount, of Thompson's criminal propensities. There was no
evidence that Thompson had ever previously been convicted of
robbery or had ever personally fired a weapon in the course of
Moore testified, inter alia,
that, while she had known Thompson for only four months, she had
gotten to know him very well and had never seen him do a violent
act. She did not believe that Thompson deliberately killed Mrs.
Kneupper or that he was a cold-hearted person who could walk
into the office, kill Mrs. Kneupper, and walk out. Moore,
Thompson, and Guerrero had all agreed before the attempted
robbery that the pistol would be used only to scare the victim,
and Thompson had assured Moore that he intended to use the
pistol only in this manner.
Before beginning the trial,
Thompson filed a motion to bar the death penalty, in which he
averred that the manner in which the prosecution had elected to
seek the death penalty was arbitrary and capricious, and
consequently in violation of the Fifth, Eighth and Fourteenth
Amendments to the Constitution. A hearing was held pursuant to
this motion on the same day it was filed.
The evidence established that,
after some unsuccessful plea negotiations, the State had
previously tried Thompson for the murder of Mrs. Kneupper,
Thompson had been convicted of capital murder and sentenced to
be executed, but the conviction was reversed by the Texas Court
of Criminal Appeals on September 23, 1981. Immediately
thereafter, Gordon Armstrong, the felony chief of the District
Attorney's office, offered Thompson's counsel, Nick Rothe, a
plea bargain: a life sentence if Thompson would plead guilty.
Although Thompson did not accept the offer at this time,
Armstrong did not withdraw it.
Thompson was reindicted on
January 13, 1982. The case was assigned for trial in February.
Ed Springer, an assistant district attorney who was the lead
prosecutor in the office but had previously tried only one
capital case, was assigned to try Thompson.
Springer wanted to know if a
plea bargain was possible, so he urged Rothe to talk with
Thompson about such a deal, stating that it would be acceptable
to him but would require approval by his superiors. Springer
testified that he wanted to know whether a bargain could be
struck as soon as possible so he would have enough time to
prepare for trial.
After Springer was assigned to
the case, Rothe suggested to Springer that Thompson would plead
guilty in exchange for a sentence of thirty years. The state did
not accept this offer. Rothe subsequently suggested to both
Springer and Armstrong that Thompson would accept fifty years,
but this offer was not accepted either.
Although Rothe testified at
the later hearing in state court on Thompson's application for
habeas corpus that Springer had on several occasions "made an
offer of a life sentence," the evidence warrants the conclusion
reached by the Texas court, that Springer himself did not make
any offer. He did, however, solicit an offer from Rothe, and
indicated that he would not oppose a life sentence in exchange
for a guilty plea.
During the two weeks before
trial, Springer spent time trying to locate the transcript and
exhibits from Thompson's first trial, locating witnesses, and
trying to decide who should be called to testify.
On the Thursday preceding the
start of the second trial, which was scheduled to and did begin
the following Monday, Rothe told Springer that Thompson would
plead guilty in exchange for a promise of a life sentence.
Springer conveyed the offer to his superiors, who rejected it
and stated that the prosecution's offer of a life sentence had
The case went to trial as
scheduled, and Thompson was convicted in the guilt phase of the
trial. After the jury responded "Yes" to the sentencing
interrogatories, the court sentenced Thompson to be executed.
The conviction was affirmed on direct appeal. Thompson then
filed an application for a writ of habeas corpus in state court,
and a hearing was held. At this hearing Thompson proved that he
had signed a confession that had been suppressed at both trials
because it had been induced by promises of leniency by the state.
Thompson also showed that,
after Fernando Guerrero had been arrested, he initially refused
to give a statement. When, however, a detective showed him
Thompson's confession, which implicated him, Guerrero agreed to
and did give a statement. Guerrero, however, did not testify in
either of Thompson's trials and his statement was not adduced.
Rothe, Thompson's lawyer,
testified that, before the first trial, San Antonio Police
Officer Maurice Rose had falsely promised Thompson that, if he
confessed, his mother would not have to go through the agony of
a capital murder trial and his possibly being executed.
Later, an employee of the
District Attorney's office had asked Rothe if Thompson would
discuss the matter of an art theft from a local institute
because certain theft detectives were interested in recovering
some masterpieces and believed Thompson might know something
about the theft. Rothe agreed to this discussion, and it became
clear to Rothe that, if Thompson could clear up the matter,
there would be some "slack" offered to him. However, Thompson
could provide no information.
Moore testified that, after
she was arrested, she refused to discuss the case with the
police and refused to give a statement. While under arrest she
spoke with her father, who told her she was just as responsible
as anyone and should cooperate in any way possible. Her father
made her feel very guilty, but she was still afraid to give a
One or two days later, the
police showed her the statements made by Thompson and Guerrero
and told her that it would be to her benefit to make a statement.
She then gave a written statement in order to relate her side of
the story and exonerate Esther Cervantes. Before Thompson's
second trial, Moore was tried and convicted for aggravated
robbery, and served her sentence. As already indicated, she did
testify at Thompson's second trial.
We now turn to the issues
raised by Thompson.
A. WHETHER THE EVIDENCE
ADDUCED AT THOMPSON'S TRIAL WAS SUFFICIENT TO SUPPORT HIS
CONVICTION, THAT IS, SUFFICIENT TO ENABLE A RATIONAL JUROR TO
CONCLUDE BEYOND A REASONABLE DOUBT THAT THOMPSON DELIBERATELY
CAUSED THE VICTIM'S DEATH WITH THE REASONABLE EXPECTATION THAT
DEATH WOULD RESULT.
In the guilt-innocence phase
of a trial for capital murder in Texas, the jury is required
first to consider whether the accused intentionally committed
murder. If the jury renders a verdict of guilty, the first
special issue submitted during the sentencing phase asks the
jury whether the defendant's conduct "was committed deliberately
and with the reasonable expectation that the death of the
deceased or another would result."
Proof beyond a reasonable
doubt is necessary before the jury can return an affirmative
due process clause of the federal Constitution forbids a
conviction unless the evidence reviewed in the light most
favorable to the prosecution demonstrates that a rational jury
could have found the accused guilty--i.e., that Thompson acted
deliberately and with the reasonable expectation that Mrs.
Kneupper's death would result--beyond
a reasonable doubt.
We summarize the evidence on
this issue, most of which has already been mentioned. Thompson
initiated the conversation about committing a robbery. He and
Guerrero telephoned several acquaintances to try to get a gun to
use in the robbery, to no avail. Moore then obtained her
stepfather's pistol and gave it to Thompson and Guerrero.
Although Thompson asserted that the weapon would be used only to
scare the victim, he and Guerrero loaded it and became familiar
with how it worked.
Thompson said that, if he got
caught by the police, he would not give himself up, and would
prefer to die rather than be apprehended. The murder weapon had
several safety devices and did not have a hair trigger. During
the robbery attempt, Mrs. Kneupper thought the incident was a
joke and laughed at Thompson. When she attempted to leave the
office area, Thompson pursued her and tried to prevent her
There was no evidence of a
struggle. The weapon was fired at close range. Although Thompson
told others that the weapon was accidentally fired, he spoke of
the episode to Ronald Ash on the day after the murder, telling
Ash that he had killed an old lady without stating that the
killing was accidental or unintentional. Thompson had been
arrested twice before with weapons in his possession, and four
days before the Pioneer episode the police had recovered a
loaded weapon from a car he was driving.
A jury could reasonably
conclude from this evidence that Thompson was familiar with
firearms similar to the murder weapon and knew of their
capabilities. From all of this, a rational jury could find
beyond a reasonable doubt that Thompson acted deliberately and
with the expectation that Mrs. Kneupper's death would result.
B. DOES THE CAPITAL
SENTENCING STATUTE NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE
DEATH SENTENCE AS REQUIRED BY THE CONSTITUTION?
Thompson next attacks the
constitutionality of the Texas capital-punishment statute on the
ground that it fails properly to narrow the class of persons
eligible for the death sentence. In Texas, once a defendant has
been found guilty of capital murder, the jury must answer
special issues to determine punishment. First, the jury must
decide whether the defendant acted deliberately and with the
reasonable expectation that the death of the deceased or another
would result. Second, the jury must determine whether there is a
probability that the defendant would commit criminal acts of
violence in the future that would constitute a continuing threat
The third special issue, not
presented in this case, would require the jury to determine
whether, "if raised by the evidence," "the conduct of the
defendant in killing the deceased was unreasonable in response
to the provocation, if any, by the deceased."
If the jury answers all questions "Yes," the court must impose a
death sentence. If the jury answers any question "No," or fails
to answer any question, the court must sentence the defendant to
Thompson contends that the
constitutional defect is in the insufficiency of the evidence to
support the jury finding on the first special issue at the
sentencing part of the trial. Thompson notes that, at the guilt-innocence
stage, the jury must find that the defendant committed murder
Equating "intentionally" with "deliberately," as used in the
first special issue at the sentencing stage, Thompson asserts
that article 37.071(b)(1) is meaningless. He attempts to elevate
this to the level of a constitutional flaw by claiming that the
statute violates Furman v. Georgia
by failing to narrow the sentencer's discretion to prevent the
arbitrary imposition of the death penalty.
The Supreme Court has held
that the Texas statute defining capital murder
sufficiently narrows the class of persons subject to the death
penalty by requiring the finding of at least one aggravating
Further, the second special issue has been construed to allow a
defendant to introduce, during the punishment phase of his trial,
whatever mitigating evidence he can muster, thus ensuring that a
death sentence is not "wantonly or freakishly" applied.
Thompson has not argued that
the future dangerousness determination is by itself insufficient
to narrow the class of persons subject to the death penalty.
Thompson fails to demonstrate how the first special issue at
punishment precludes the admission of evidence in mitigation,
and thus results in the wanton or freakish imposition of a death
Thus, the Texas death penalty
scheme requires the jury to find at least one aggravating
circumstance--a future threat to society--that does not
duplicate any finding made at the guilt phase. Hence, we need
not reach the argument that the special issue about "deliberateness"
duplicates a guilt-phase issue.
The duplication argument has
arisen directly in two recent cases. The Eighth Circuit has held,
in Collins v. Lockhart,
that an aggravating circumstance that duplicates an element of
the crime does not fulfill the constitutional narrowing function.
In a Louisiana case presenting only one aggravating factor that
unambiguously duplicated an element of the crime this court held,
in Lowenfield v. Phelps,
that a state may accomplish the narrowing function by defining
the crime only in the guilt phase. Several other cases from this
court have rejected the Eighth Circuit's Collins reasoning.
The Supreme Court has granted
certiorari in Lowenfield to review the duplication issue and a
jury coercion issue. Thompson's case is readily distinguishable
from both Collins and Lowenfield by the existence of an
alternative narrowing issue at the penalty phase.15a
We therefore do not discuss
Thompson's argument that the words "deliberately," as used in
the sentencing-phase inquiry, and "intentionally", as used in
the guilt-phase inquiry, are linguistic equivalents.
C. DID THE TRIAL COURT'S
FAILURE TO DEFINE THE TERMS "DELIBERATELY" AND "REASONABLE DOUBT"
SUA SPONTE RENDER THOMPSON'S TRIAL UNFAIR?
In his third and seventh
grounds for relief, Thompson alleges that the trial court erred
when it failed to define "deliberately" and "reasonable doubt"
in its instructions to the jury. He concedes that no such
definitions were requested at trial but contends that the court
should have acted sua sponte.
While Thompson alleges in
conclusory fashion that the Sixth and Eighth Amendments are
implicated, his claim must ultimately be considered a due
process claim of denial of a fundamentally fair trial. A federal
habeas corpus court will review alleged errors in the trial
court's instructions only to determine whether the claimed
errors rendered the entire trial fundamentally unfair.
The court did not err in
failing to define the term "deliberately." As both the Texas
Court of Criminal Appeals
and this court
have held, the word in its common meaning is sufficiently clear
to allow the jury to decide the special issues on punishment.
Thompson's assertion that the
jurors would have been unable to define "deliberately" so as to
distinguish that term from the mental state "intentionally" is
belied by the record. Each of Thompson's jurors who was
requested at voir dire to draw a distinction between the terms
was able to do so, and the prosecutors and defense counsel
eloquently argued that the question of deliberateness is
distinct from the previously answered question of Thompson's
intent. Thus, the fact that the term "deliberately" was not
defined in the court's charge did not render Thompson's trial
Similarly, the failure to
include a definition of "reasonable doubt" does not deprive a
defendant of due process. Although the jury must be instructed
that the state bears the burden of proving the defendant's guilt
beyond a reasonable doubt, attempts by trial courts to define "reasonable
doubt" have been disfavored by this court.
Such attempts often result in
using the term itself in the definition and serve only to
confuse the concept in the minds of jurors.
Thompson was not denied due process by the exclusion of a
definition of "reasonable doubt" from the court's jury
D. WAS THE EVIDENCE ADDUCED
AT THOMPSON'S TRIAL SUFFICIENT TO ENABLE ANY RATIONAL JUROR TO
CONCLUDE BEYOND A REASONABLE DOUBT THAT THOMPSON INTENTIONALLY
KILLED THE VICTIM?
Texas defines capital murder
as murder committed in the course of committing or attempting to
commit certain other defined offenses.
Murder is defined as intentionally or knowingly causing the
death of an individual.
In determining whether the
evidence is sufficient, a reviewing court must examine the
evidence in the light most favorable to the state. The evidence
is sufficient if it can be said that "any rational trier of fact
could have found the essential elements of the crime beyond a
Based on our discussion of
Issue I, we conclude that the evidence was sufficient to enable
any rational juror to conclude beyond a reasonable doubt that
Thompson had in mind the conscious objective of killing Mrs.
Kneupper when he fired the fatal shot.
E. WERE THOMPSON'S
CONSTITUTIONAL RIGHTS VIOLATED WHEN THE PROSECUTOR INFORMED
JURORS DURING VOIR DIRE THAT A PRESUMPTION OF INTENT TO KILL
ARISES FROM USE OF A DEADLY WEAPON?
During the prosecutor's voir
dire, he incorrectly advised the jurors that they could presume
intent to kill from the fact that the defendant used a pistol.
Thompson objected to this, and contends that this statement
amounted to an "instruction" that "substantially diminished" the
state's burden of proof on the intent element and thereby
violated due process as recognized in Sandstrom v. Montana.
The trial court explicitly
instructed the jury that it must find beyond a reasonable doubt
that Thompson shot the deceased during the course of committing
or attempting to commit robbery with the intention of killing
her in order to find him guilty of capital murder. Intent was
properly defined in the charge in accordance with state law.
Moreover, the court instructed the jury that, if it believed the
shooting was the result of an accidental discharge of the gun
while Thompson was reaching or grabbing for the deceased, it
must acquit him.
It instructed the jury that
they were bound by the law given in the court's charge and that
the burden of proof is on the state. The only presumption
mentioned in the court's charge is the presumption that a
defendant is presumed to be innocent until his guilt is
established beyond a reasonable doubt. Nowhere in the charge is
there any reference to a presumption arising from the use of a
deadly weapon. There was no Sandstrom error in the charge.
F. DID THE ADMISSION,
DURING THE PUNISHMENT STAGE OF TRIAL, OF UNCORROBORATED
ACCOMPLICE TESTIMONY THAT THOMPSON HAD COMMITTED EXTRANEOUS
OFFENSES DEPRIVE HIM OF A FUNDAMENTALLY FAIR TRIAL?
The state-law requirement that
accomplice witness testimony be corroborated has no independent
Moreover, on direct appeal, the Texas Court of Criminal Appeals
affirmed that the corroboration requirements of article 38.14 of
the Texas Code of Criminal Procedure are inapplicable to the
testimony of accomplice witnesses as to extraneous offenses at
the punishment phase of a capital murder trial.
Thompson concedes, as he must,
that the Texas court has resolved this issue against him, but
nevertheless argues that the issue should be examined by this
court because the admission of uncorroborated accomplice
testimony violated his rights to equal protection and due
Capital defendants are not a "suspect
class" for equal protection purposes.
Thus, under rational-basis scrutiny, the Texas rule treating
capital defendants differently by allowing uncorroborated
accomplice testimony during the punishment phase of a capital
trial need only rationally promote a legitimate governmental
objective. The equal protection clause is offended only if the
classification rests on grounds wholly irrelevant to the
achievement of the state's objective.
The stated purpose of Tex.Code
Crim.Proc.Ann. art. 37.071 (Vernon Supp.1987) is to place all
relevant evidence regarding the defendant, both in aggravation
and mitigation, before the jury to facilitate its ability to
answer the special issues.
The rule on non-corroboration clearly promotes a legitimate
state objective: to have all relevant facts regarding a
defendant's character before the jury prior to its determination
whether or not to impose a death sentence.
The evidence received from
Christie Sparks Moore regarding Thompson's commission of
numerous prejudicial extraneous offenses was clearly relevant,
and Thompson does not claim to the contrary. Nor did the
admission of this evidence render Thompson's trial fundamentally
unfair, as the evidence, which was admitted only at the
punishment phase, was subject to standards of relevance and
sufficiency of proof.
The district court properly rejected Thompson's claim regarding
the admission of this evidence.
G. DID THE TRIAL COURT
VIOLATE THOMPSON'S CONSTITUTIONAL RIGHTS BY FAILING TO INSTRUCT
THE JURY SUA SPONTE THAT IT COULD NOT CONSIDER THE LAW OF
PARTIES IN THE PUNISHMENT PHASE?
As his eighth claim for relief,
Thompson contends that it was error for the trial court to have
failed sua sponte to instruct the jury that it could not
consider the law of parties in the punishment phase of the trial
in determining whether Thompson acted deliberately. Review of
this claim is barred in these proceedings because Thompson did
not timely object to the court's failure to give the instruction,
nor did he request the instruction himself.
When a defendant fails to
follow a state procedural rule and review of his claim of error
is refused by state courts, federal habeas review of his
constitutional claim is barred unless he can demonstrate cause
for, and prejudice resulting from, his failure.
Texas requires that objections to the court's jury instructions
be made before the court reads the charge to the jury.
Thompson did not object at
trial to the omission of an instruction that the jury could not
consider the law of parties in deciding whether he acted
deliberately. When Thompson raised this claim for the first time
in his state habeas application, the trial court noted his
procedural default and declined to address the merits of his
The Court of Criminal Appeals denied relief without written
order based on the findings of the trial court.
Thompson now asserts that
there was good cause for his failure to object because state law
in effect at the time of his trial allowed the law of parties to
be applied at the punishment phase of a capital trial. He
further asserts that he can now demonstrate prejudice, inasmuch
as, because he was never acting alone in the attempted
commission of several robberies prior to the murder, the jury "probably"
considered the law of parties in assessing a death sentence.
These explanations do not
excuse the procedural default. Futility of objection, even in
the face of established legal precedent, will not constitute
good cause to excuse a procedural default.
Moreover, Thompson demonstrates no prejudice inasmuch as the two
special issues submitted to the jury clearly focus on his
conduct and character, the law of parties was never raised at
the guilt-innocence phase of trial, and neither side argued to
the jury that the law of parties was applicable either at guilt-innocence
or in answering the special issues on punishment. Thus, because
the state applied its procedural bar to considering Thompson's
claim, federal habeas corpus review is unavailable.
H. WAS THOMPSON DENIED DUE
PROCESS BY THE STATE'S UTILIZATION OF EVIDENCE DERIVED FROM A
POLICE OFFICER'S FALSE PROMISE OF LENIENCY TO HIM? WAS THIS
CLAIM BARRED BY PROCEDURAL DEFAULT BECAUSE THOMPSON FAILED TO
LODGE A CONTEMPORANEOUS OBJECTION TO THE ADMISSION OF SUCH
Thompson next asserts that he
was deprived of due process of law and was subjected to cruel
and unusual punishment by the state's improper use of evidence
derived from his confession, which was induced by a police
officer's false promise of leniency. He concedes that the state
did not introduce his confession, which was suppressed at his
first trial, in either of his trials.
The crux of Thompson's
argument is that the state utilized Thompson's confession to
obtain confessions from Fernando Guerrero and Christie Sparks
Moore. While Guerrero did not testify and his confession was not
introduced, Thompson argues that the nature of Guerrero's
involvement became known to the state through Thompson's
confession. Thompson further argues that Moore's confession was
obtained through use of his and Guerrero's confessions. He
implies that her testimony at trial was also derived from his
obtained in violation of the Fifth Amendment may not of course
be introduced at trial.
Likewise, evidence derived from constitutional violations may
not be utilized at trial, for the "fruit of the poisonous tree"
is itself tainted.
The state points out that
Thompson failed to lodge a contemporaneous objection to Moore's
testimony at trial, and that he has failed to allege any facts
to support his claim of cause and prejudice for failing to
object. The state court declined to address the merits of this
claim when Thompson first raised it on collateral review because
of the procedural default.
Even had this issue been
properly raised, we would find no error in the court's failure
sua sponte to exclude Moore's testimony. In determining the
admissibility of testimony allegedly derived from an involuntary
confession, the Supreme Court held in Harrison v. United States,
"The ... question is whether the petitioner's trial testimony
was in fact impelled by the prosecution's wrongful use of his
illegally obtained confessions."
Based on this criterion,
Thompson must prove that his involuntary confession "impelled"
Moore's testimony. There is certainly evidence that Moore would
not have confessed if Thompson had not confessed. Thereafter,
however, Moore was herself convicted of aggravated robbery. Only
after she had served her sentence did she testify at Thompson's
trial. Thompson has alleged no facts to show the requisite
causation between his confession and her ultimate testimony.
Whether or not Moore had been
convicted, the state could have subpoenaed her and forced her to
appear at Thompson's trial. Moore might have invoked her Fifth
Amendment right against self-incrimination at Thompson's trial
had she not already been tried, convicted and punished. But
there is neither an allegation nor any evidence to indicate that
she would have done so--or that, if she had, she would not have
been afforded immunity.
I. WAS THE STATE BARRED
FROM SEEKING THE DEATH PENALTY BECAUSE IT HAD MADE AN OFFER OF A
Thompson finally contends that
the state was precluded from seeking the death penalty because
it had previously offered a plea bargain of life imprisonment in
exchange for a plea of guilty. This offer was made soon after
the case was remanded from the Court of Criminal Appeals for
retrial. The record reflects that Thompson did not accept this
offer and that he instead counter offered thirty, and then fifty
or sixty, years.
A few days before trial,
Thompson offered to plead guilty in exchange for life
imprisonment. The prosecutor then informed Thompson that the
offer of life imprisonment had been withdrawn and that
Thompson's offer was rejected. The record supports the state
court's conclusion that no plea bargain was reached because at
no time did both the state and Thompson reach mutual assent.
The real issue here is whether
the state was precluded from withdrawing its offer once made
absent some judicially reviewable reason that would support the
withdrawal. The Supreme Court has upheld the validity of plea
even in capital cases.
To hold that an offer of a life sentence precludes the state
from seeking the death penalty at trial would in effect preclude
the state from bargaining.
Once the state had made such
an offer, the defendant could go to trial with the certainty
that, even if convicted, he could not be sentenced to death
unless some circumstance developed after the offer was made to
make his crime more egregious or the evidence against him more
In the absence of any
allegation or evidence of a racially invidious or other
unconstitutional motive, the Supreme Court's decisions on plea
bargaining preclude our review of the sufficiency of the state's
reasons for withdrawing its offer.
For these reasons the district
court's denial of the application for writ of habeas corpus is
affirmed and Thompson's request for a stay of execution is