I really don’t have
much to say. All I want to say is that when the state
introduced my sister and my niece as state witnesses, it’s
not that they testified against me. The thing is, my lawyers
would not subpoena anyone, so they allowed the state to
subpoena them to paint a picture to the jury that my own
sister and niece was testifying against me.
Linda is innocent
of this. I am innocent of this. Now all you all are seeing
in the process a perfect example of ol’ freaky deaky Bill
Clinton when he signed that anti-terrorism law to shorten
the appeals. This is a conspiracy. They used false testimony
of a woman that said I had raped her, when the test showed
that the foreign pubic hair that was found on her body
belonged to no one in that room. They found a drop of
sposmosa in the crotch of her pants that was tied to blood
type B. My blood type is A. Now the same woman there they
brought to testify against this murder case. That woman was
under indictment for possession of methamphetamine, delivery
of methamphetamine. She could have gotten out of both of
those cases. Yet, she swore under oath that she had never
been in trouble with the law and none of that mattered. So
what does that make this great state? A very high-priced
prostitute that sells itself, called justice, to the highest
I am being charged
under article 19.83 of the Texas Penal Code of murder with
the promise of remuneration. That means they got to have
three people, the one that paid, the one that killed, and
the deceased. And the alleged remunerator is out on the
streets, so how come I’m being executed today, without a
remunerator? This is a great American justice. So if you
don’t think they won’t, believe me they will. Ain’t no
telling who gonna be next. That’s all I have to say.
Especially for the people of the deceased, Sims is innocent
and so am I. So the murder is still not there. Today you are
a witness, the state (cough). Bye.
Thanks to Texas's
policy of mandatory supervision, Martin Vega had been released on
parole after serving only ONE WEEK of a two year sentence for
came after previous prison terms for burglary and drug dealing, with
him serving half of an eighteen year sentence on the drug charge.
In July of 1985 in
Luling, Texas, about fifty miles east of San Antonio, Vega shot and
killed James Williams Mims.
James, 36, was shot
eight times with a .22 caliber handgun, his skull was fractured and
he was left on the side of the road in Caldwell Co. Police said his
killer also tried to drown him.
Mims' murder went
unsolved for 2 and a half years before Vega walked into the police
station in Luling and confessed to plotting the slaying for a
$30,000 portion of Mims' insurance.
He also led
authorities to the gun. Vega said Mims' wife, whom he eventually
married, had encouraged the murder so she could pocket the remainder
of the payoff.
they were not able to corroborate his claims and never charged the
woman in her husband's slaying.
In the punishment
phase of Vega's trial, jurors heard testimony from a woman who said
Vega had raped her at gunpoint. Vega was also believed to have
committed a murder in the St. Louis area.
Martin Sauceda Vega took a gamble when he
confessed to killing his lover’s husband to split the life insurance
money, even though he later insisted that he was innocent.
James William Mims was found dead outside of Luling on July 27,
1985. He had been shot eight times.
having an affair with Mims’ wife, Linda, at the time of the murder.
They were married only three months after Mims’ death, but then
The case went unsolved for 2
years until Vega went to the police and signed documents confessing
that Linda Mims had hired him to kill her first husband. He also led
authorities to the murder weapon.
received over $235,000 from her husband’s life insurance. “The
insurance company did refuse to pay Linda for her husband’s death
for over a year because she was a suspect in his murder. Linda sued
the company to make them pay, and they finally paid her off because
she was never charged,” defense
attorney William “Bill” Rugeley said.
court, Vega insisted on pleading his innocence. Although there was
no evidence, Vega claimed that he had confessed to have the court
time in order to reveal a plot of law officers to kill him.
Vega also tried to have his attorneys fired,
claiming that he was tired of all of their lies. His paranoid
delusions appeared to get the best of him. Vega’s attorneys tried to
persuade him to plead guilty as he had already confessed to the
murder, which in turn would lessen his sentence.
Vega’s defense attorneys also tried to get him to testify against
Linda in court, but he refused and insisted that she was innocent
too. The attorneys had made a deal that if Vega testified against
his ex-wife, he would receive life in prison.
was extremely paranoid,” said Rugeley. “He thought everyone was
Linda Mims was indicted and arrested,
but made bond after only a few hours in jail. All charges were
dismissed because there was no evidence without Vega’s testimony.
Linda also refused to testify in court. “She claimed the Fifth
Amendment, and I couldn’t force her to testify,” prosecuting
attorney, Jeff Van Horn, said.
Witnesses were also
called to the stand and gave testimony of offenses by Vega that
included rape, kidnapping, burglary, heroin delivery, several
weapons charges and others.
“Vega had been tried
for a series of crimes in Bastrop before, but had been dismissed
because the victims were not found to testify,” Van Horn said. “We
found one victim that he had beaten and called her to the case to
prove how dangerous this man was.”
examined by a psychiatrist, and was considered competent to stand
trial. “Vega was fairly intelligent and knew the difference between
right and wrong, but he was definitely not a normal everyday person,”
Rugeley said. “The court has a low threshold of mental capacity. You
could almost be retarded and still be considered able to stand trial.”
Vega was found guilty of capital murder and sentenced to death. His
sentence was upheld three times.
almost 10 years on death row, Vega was executed on Jan. 26, 1999 in
Martin Vega, 37 - 99-1-26
Texas executes man who married
murder victim's wife
By Michael Graczyk, Associated Press Writer
HUNTSVILLE, JAN. 26 -- A three-time loser convicted
of killing a man so he could collect a life insurance benefit and
then marry the dead man's wife was executed Tuesday evening.
Martin Vega, 52, of Luling, was pronounced dead at
6:22 p.m., seven minutes after the lethal drugs began flowing into
In a long and rambling final statement, Vega twice proclaimed his
innocence, complained about witnesses who testified against him and
blasted the criminal justice system.
He described the legal system as a ''very high-priced
prostitute that sells justice to the highest bidder.''
''I am innocent of this,'' he said. ''Now all you all
are seeing in the process is a perfect example of ole' freaky-deaky
Bill Clinton when he signed that anti-terrorism law to shorten the
appeals. This is a conspiracy.''
''This is great American justice,'' Vega said
bitterly. ''Ain't no telling who gonna be next.''
He finished the statement by blurting out, ''Bye.''
Vega coughed and gasped as the drugs took effect,
then he stopped breathing.
was condemned for beating James William Mims and shooting the man
eight times with a .22-caliber handgun.
''I thought it was crazy,'' Mims' daughter, Jennifer,
said of Vega's statement after watching the inmate die. ''It was
just off the charts.
was always the type to take everything and make himself look like a
victim. And even in his dying breath he wanted himself to look like
a victim, although he's not.''
At the time of the July 1985 killing, Vega was under mandatory state
supervision after serving only one week of a two-year sentence for
aggravated robbery. That conviction came after previous prison terms
for burglary and drug dealing.
The body of Mims, 36, was found dumped on a Caldwell County road.
Police said his killer also tried to drown him.
The U.S. Supreme Court last week refused an emergency
request to halt Vega's punishment.
Mims' murder went unsolved for 2 years before Vega
walked into the police department in Luling, about 50 miles east of
San Antonio, and confessed to plotting the slaying for a $30,000
portion of Mims' $150,000 life insurance policy. He also led
authorities to the gun.
''Something must have gotten into him,'' Jeff Van Horn, who
prosecuted Vega, said. ''He confessed, not only in the classical
sense of giving a written and videotaped confession, ... he led them
to recovery of some of the evidence.''
Vega said Mims' wife, whom he eventually married, had
encouraged the murder so she could pocket the remainder of the
payoff. Prosecutors, however, said they never were able to
corroborate his claims and the woman never was charged in the
''It was a really
vicious murder for totally inappropriate reasons - if there are any
reasons that are appropriate,'' Van Horn said. ''And collecting
insurance proceeds and living happily ever after with the deceased's
wife is certainly not a legitimate reason.''
Jurors deciding punishment were told of Vega's
criminal past, hearing also from a woman who testified how he raped
her at gunpoint. Prosecutors also determined he was responsible for
a murder in the St. Louis area.
''It's definitely about time,'' Van Horn said. ''Ten
years is long enough. It's time for the sentence to be carried
Vega completed just
three years of schooling and described himself as a jack-of-all-trades.
Before his arrival on death row, his longest prison stay was nine
years of an 18-year sentence for selling drugs in Travis County.
Ten years ago, when Vega arrived on death row, his
notoriety was that he became the 300th condemned inmate there. Now
at least 456 inmates are awaiting execution in the state.
United States Court of Appeals for the Fifth Circuit
149 F.3d 354
July 30, 1998
JERRY E. SMITH,
Martin Vega, who
confessed to a murder-for-hire, seeks habeas corpus
relief from a sentence of death. The federal
district court denied relief. Because most of Vega's
claims are entirely meritless and the others are
barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989), we affirm.
In July 1985,
after receiving a report of a homicide, Sheriff Mike
Bading discovered the body of James Mims lying
alongside a road. Bading and other officers arriving
at the same time recovered several items belonging
to Mims, including a comb, a screwdriver-type key
chain, a pocket knife, and some change. They also
found three spent .22 caliber cartridges.
Mims's skull had
been hit with a blunt object, possibly a handgun,
and he had been shot eight times; his shirt was
saturated with blood, and the rest of his clothes
were wet from a source other than blood. One of the
bullets had passed through his lung, aorta, and
heart, probably causing his death. Two .22 caliber
bullets were removed from his body and analyzed.
Vega confessed to
the murder in January 1988. He stated that Linda
Mims had encouraged him to murder her husband,
promising to marry him afterward and to give him
$30,000 of the $150,000 life insurance proceeds.
Vega did in fact marry her and enjoyed substantial
sums of money obtained from insurance proceeds.
In one of his
statements, Vega revealed the location of the
alleged murder weapon, a .22 caliber handgun. This
weapon, along with the cartridges allegedly fired by
the handgun but not found at the murder scene, were
at the specified location and presented at trial.
Vega also explained that the victim was wet because
of a failed attempt to drown him. Vega insisted that
Linda Mims be arrested immediately upon his
Vega made one
statement in his handwriting and signed it in the
presence of two officers; subsequently he made other
statements containing details of the events relating
to the murder. He received Miranda warnings before
Vega was indicted
for capital murder in February 1988, charged with
shooting Mims for the promise of remuneration.
William Rugeley was appointed to represent Vega. The
trial court found that Vega's confession and related
statements were made voluntarily and were legally
admissible at trial.
disagreed with Rugeley about his defense, so in
August 1988 he filed a pro se motion to dismiss
Rugeley because they did "not agree with each other
and [could] not see eye to eye"; Vega claimed he had
funds to hire his own attorney who would better
serve his interests.
At a hearing held
in October, the court informed Vega that Rugeley
would continue to represent him until he retained
counsel of his own, at which time Rugeley would be
removed. At no time thereafter did Vega indicate
that he had employed counsel.
In January 1989,
eleven days before trial, Rugeley filed a motion to
withdraw, stating that Vega had refused to
communicate with him. The court allowed Vega to
state his position, which at that time was that
Rugeley had told him to plead guilty even though he
was innocent. Rugeley stated that Vega would not
cooperate with him, which would cause him to be
unprepared for trial. The court refused to remove
Rugeley at that late date.
The jury found
Vega guilty. He testified only at the punishment
phase, at which the state introduced evidence of
previous extraneous offenses as aggravating factors.
These offenses included the alleged forcible
detention and rape at gunpoint of one Shirley
Barnard in 1984. Although in that case Vega was
indicted on a sexual assault charge, the charge was
subsequently dropped when the government was unable
to locate the victim to testify.
government proceeded to trial on a felon-in-possession
charge based on Vega's supposed use of a gun in the
alleged rape. Vega was acquitted of this charge and
of the lesser included offense of unlawful
possession of a handgun.
punishment phase of the 1989 capital murder trial,
the state called Barnard to testify to the alleged
rape, emphasizing Vega's future dangerousness. The
jury apparently found this information significant,
because it asked to re-examine the evidence of the
firearm trial and Barnard's testimony. Vega was
convicted and appealed to the Texas Court of
Criminal Appeals, submitting pro se briefs and
motions in addition to those filed by Rugeley.
Vega argues that
the state violated his due process rights by
allowing the prosecution to employ, at the appellate
stage of the litigation only, Charles Kimbrough, an
attorney who had represented Vega during his felon-in-possession
trial. Although Kimbrough apparently played no role
until after that conviction was obtained, and was
limited to the trial record in his briefs and
arguments, Vega asks us to find that Kimbrough's
involvement made the murder trial fundamentally
unfair and that he is entitled to habeas relief.
Because such a holding would be an extension of
prior law about which reasonable minds could
disagree, Teague bars the relief Vega requests.
In Teague, the
Court held that federal courts may not create new
constitutional rules of criminal procedure on habeas
review. A new rule is one which was not "dictated by
precedent existing at the time the petitioner's
conviction became final." 489 U.S. at 301, 109 S.Ct.
1060. A new rule is created if the rule is, "in
light of this Court's precedent, 'susceptible to
debate among reasonable minds.' " O'Dell v.
Netherland, 521 U.S. 151, ----, 117 S.Ct. 1969,
1974, 138 L.Ed.2d 351 (1997) (citing Butler v.
McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108
L.Ed.2d 347 (1990)).
must examine existing precedent and decide whether,
under that precedent, relief is required. If
reasonable minds could differ on whether current law
requires relief, we may not grant relief without
creating a "new rule" barred by Teague.
No court of which
we are aware has considered the fact scenario
presented here. In general, our jurisprudence has
considered two relevant types of conflict-of-interest
claims: "multiple representation" and "switching
sides." Multiple representation occurs when an
attorney represents multiple parties with
conflicting interests, possibly influencing him to
reject a strategy that would produce optimal results
for one client, in order to improve results for
another. See, e.g., Cuyler v. Sullivan, 446 U.S.
335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
occurs when an attorney starts out representing one
party, then represents an adverse party in the same
or related litigation. The extent to which
jurisprudence developed in the multiple
representation context may be applied to the
switching sides context is currently unresolved.
This is a case of
switching sides, but not of doing so in the course
of a single litigation matter. In such a case, the
ethical duty of loyalty prevents Kimbrough from
acting against Vega's interests. That duty lasted
only as long as the litigation matter, however, and
then ceased to restrict Kimbrough's options. See,
e.g., McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S.Ct. 2204, 115 L.Ed.2d 158 (1991). Once the matter
ended, Kimbrough's only duty was to protect
confidential information he received in his capacity
If Kimbrough had
represented Vega in the possession case and then
prosecuted him at the trial level here, we would
have to ask only whether the matters were
substantially related. If so, the potential for
abuse of confidential information obtained through
the prior representation would be high, and Vega's
trial likely would be deemed fundamentally unfair if
Vega had called this conflict to the trial court's
attention, or the conflict was obvious to the court.
See Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct.
1173, 55 L.Ed.2d 426 (1978). Because neither this
circuit nor the Supreme Court has considered a
situation in which a prosecutor formerly represented
the defendant, however, even this might require a
divorced from existing precedent is the scenario
presented here. Not only have we never held that a
defendant's former attorney may not handle an appeal
against him in a subsequent case, but we would be
unlikely to do so without applying a harmless error
standard. Unlike the multiple representation
standard addressed in Holloway, where prejudice is
both likely and difficult to identify, the situation
here presents little risk of harm to Vega's
interests, and there is an easy way to spot abuse
should it occur.
limited to the trial record on appeal and could not
supplement it with facts or observations taken from
his prior representation. The only way to abuse his
confidential information would be to introduce such
extraneous information and hope that the appellate
court, while pretending to ignore it as outside the
record, would be influenced.
Yet Vega fails to
point out any instances in which information outside
the record was introduced on appeal. Because we
could easily identify such a use of confidential
information were it present, the argument against
harmless error set forth in Holloway does not apply.
Vega points to
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828,
106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), for the
proposition that even the appearance of impropriety
requires reversal. That case involved the reversal
of a state supreme court decision written by a
justice whose opinion would have provided precedent
favorable to him in a lawsuit he had pending at the
time of writing.
The Court held
that the justice had a conflict of interest and
should have been disqualified; its statement that "the
'appearance of justice' will best be served by
vacating the decision and remanding for further
proceedings" in no way suggested that a decision
should be reversed on the basis of a speculative
conflict merely in order to maintain the appearance
of justice. Id.
To the contrary,
the Court suggested otherwise in Cuyler, where it
held that a defendant who fails to object to
multiple representation must show more than a "mere
possibility of a conflict of interest" in order to
obtain relief. See Cuyler, 446 U.S. at 350, 100 S.Ct.
Vega makes no
effort to explain how the possession of confidential
information could have helped the prosecutor's
office, and harmed him, at the appeals stage. Even
assuming he could demonstrate some possibility of
prejudice, however, reasonable minds could differ as
to whether current precedent supported relief. Under
Teague, we are barred from creating a new rule of
law in order to grant relief on this issue.
Vega contends that
collateral estoppel prevented the state from
introducing, at the penalty phase, evidence of his
possession of a handgun and sexual assault. He
points out that the sexual assault and felon-in-possession
charges were brought together, that the sexual
assault charge was dropped, that the alleged sexual
assault was nevertheless discussed at his felon-in-possession
trial, and that he was acquitted of being a felon in
possession. Because evidence of prior acts may be
introduced despite an acquittal if the standard of
proof in the second prosecution is lower, Vega's
claim must fail.
In Ashe v. Swenson,
397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970),
the Court held that collateral estoppel is a
requirement of due process under the double jeopardy
doctrine. In Dowling v. United States, 493 U.S. 342,
349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), however,
the Court held that "an acquittal in a criminal case
does not preclude the Government from relitigating
an issue when it is presented in a subsequent action
governed by a lower standard of proof."
Extraneous offenses offered at the punishment phase
of a capital trial need not be proven beyond a
therefore, that the state would have been
collaterally estopped from prosecuting Vega for the
sexual assault charge, introducing evidence of the
offense at the punishment phase of his capital
murder trial was not improper. Similarly, although
the felon-in-possession charge certainly could not
have formed the basis of a new prosecution, it could
be introduced as evidence of Vega's future
dangerousness, because the jury decided only that
the government had not proven the elements of the
felon-in-possession offense beyond a reasonable
doubt, and had not considered the evidence under any
lower standard of proof.
Dowling allows the introduction of evidence in a
subsequent prosecution "if the prior acquittal did
not determine an ultimate issue in the present
case." 493 U.S. at 348, 110 S.Ct. 668. In Dowling,
evidence of a prior robbery was appropriately
introduced, because the former alleged victim had
seen the defendant and could testify as to his
identity. This information could have been relevant
to the jury, even if it did not believe that the
defendant committed the crime previously charged. Id.
Moreover, we held
in Brackett that evidence of intent to possess
marihuana could be offered at a subsequent trial for
conspiracy to possess with intent, despite a prior
acquittal at the actual-possession trial.
although the government reintroduced evidence of the
defendant's actual possession, it did so only as
evidence to support his agreement to engage in a
conspiracy; because the actual possession was not
necessary to a conspiracy conviction, the prior
acquittal did not determine an ultimate fact in the
conspiracy trial. See Brackett, 113 F.3d at 1400-01.
In this case,
therefore, the evidence is obviously admissible. Not
only did the prior acquittal fail to determine the
ultimate fact at issue here--whether Vega posed a
threat of future dangerousness to society--and not
only did the prior acquittal fail to resolve any
questions with respect to the sexual assault, but
the evidence was admissible also because the
standard of proof at the punishment hearing was
lower than that at the original criminal trial.
Vega claims the
trial court erred by failing to appoint new counsel
when Vega called to the court's attention a conflict
with his appointed counsel. This claim is meritless,
because the court had no duty to appoint new counsel.
conflict was that his attorney recommended he plead
guilty, whereas Vega wanted to continue asserting
his innocence. Had the attorney refused to allow him
to enter a not guilty plea, he would have violated
his ethical duty to allow Vega to choose the broad
limits of the representation. See, e.g., Jones v.
Barnes, 463 U.S. 745, 753, 103 S.Ct. 3308, 77 L.Ed.2d
In fact, however,
the attorney proceeded to trial on a not guilty plea,
and although he expressed concerns that Vega refused
to communicate with him, thereby reducing his
efficacy, neither he nor Vega claimed any practical
conflicts. In addition, Vega and his counsel were
often seen conferring at trial, and Vega points to
no aspects of the representation that he asked to
have done differently.
never asked the court to appoint another lawyer. He
did file a motion requesting leave to retain his own
counsel, and the court stated that the request would
be granted, and his appointed counsel removed, as
soon as Vega informed the court he had retained
counsel of his choosing.
Eleven days before
trial, appointed counsel asked to withdraw, stating
that no counsel had been appointed and that Vega had
refused to communicate with him. It was only at this
time that Vega identified the philosophical
differences between himself and his attorney. Even
then, however, he failed to request the appointment
of new counsel. The court's inability to read his
mind certainly does not constitute a constitutional
attempts to put the onus on the court to investigate
the potential conflict by citing Holloway, Vega
confuses "conflict" in its generic sense with the
term of art "conflict of interest." When an attorney
labors under a conflict of interest, he is prevented,
by his own self interest or by his interest in
another's welfare, from vigorously promoting the
welfare of his client. Vega does not allege that his
counsel was so burdened.
Rather, he alleges
that his counsel gave him advice he did not want to
hear. Given that the attorney accepted Vega's
decision not to take that advice, the existence of
any "conflict" worth mention is dubious. At most,
Vega and his attorney had a "conflict" with respect
to trial strategy, a problem with no constitutional
significance as long as Vega's wishes were respected
on ultimate issues such as pleading guilty and
Vega claims he was
denied the right to present his own defense under
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975), because the trial court
refused to investigate his allegations that
conflicts existed between himself and Rugeley. He
claims it is "well documented before, during and
after trial that Petitioner's desired defense was
not being pursued."
He offers no facts
from the record to support this contention, however;
it appears his only expression of discontent was a
complaint that Rugeley recommended he plead guilty--a
recommendation that was not followed, as the case
proceeded to trial. Vega's claim fails, because he
did not provide sufficient notice to the court that
his desired defense was not being pursued, and
because to grant relief we would have to extend the
Faretta right of self-representation beyond its
current boundary as established by the Supreme Court
and by this court, creating a new rule of law barred
primarily on Moreno v. Estelle, 717 F.2d 171 (5th
Cir.1983), yet in that case we denied relief under
facts similar to these. Moreno told the court on the
day of trial that he wanted his retained attorney to
withdraw from the case because "[s]he isn't helping
me. I have asked her to do things for me and
everything and I can't get her to do anything. My
people pay her and I don't want her." Id. at 174. We
denied relief because Moreno made no attempt to
request that he be able to proceed pro se and did
not explicitly inform the court of the defenses his
attorney had allegedly refused to investigate or
present. Id. at 174-76.
despite Vega's characterization to the contrary,
Moreno did not establish that a defendant has a
right to force his attorney to present his defenses.
At most, we suggested that once the court is
notified that counsel refuses to present a
defendant's preferred defenses, Faretta may require
the court to ensure that the defendant knows of his
option to represent himself rather than continue to
accept the services of his uncooperative attorney.
Id. at 175.
Even there, our
statement was too weak to establish a rule of law
about which reasonable minds would not disagree: "If
the defendant can state particular instances of
disagreement ... as to viable defenses, the
defendant's Sixth Amendment rights as defined in
Faretta are arguably implicated." Id.
this court nor the Supreme Court has held that a
defendant may force his attorney to present a
defense with which the attorney does not agree or
acquire new court-appointed counsel until he finds
an attorney who agrees with him. See Jones v. Barnes,
463 U.S. at 753, 103 S.Ct. 3308 (counsel need not
present every nonfrivolous argument suggested by the
In United States
v. Moore, 706 F.2d 538 (5th Cir.1983), a
conscientious district court allowed Moore to
replace his court-appointed counsel with different
court-appointed counsel three times before finally
finding that he had waived his right to counsel.
Moore's contention that he had a right to an
attorney who agreed with him and would present his
case in the way Moore thought proper: "A defendant
is entitled to an attorney who will consider the
defendant's views and seek to accommodate all
reasonable requests with respect to trial
preparation and trial tactics.... [H]e has no right
to an attorney who will docilely do as he is told."
Id. at 540.
Vega's citation to
Henderson v. Sargent, 926 F.2d 706, 711 (8th
Cir.1991), for the proposition that the choice not
to present a defense is not part of trial strategy
is inapposite: In that case, the defendant's
attorney failed to investigate a promising defense
that the defendant did not allege he had suggested
but which would have been discovered with proper
among possible defenses is unquestionably part of
trial strategy and therefore is subject to
considerable deference, the failure properly to
investigate possible defenses is part of adequate
preparation and receives stricter examination.
Even if we were to
find that Vega did present sufficient evidence to
the trial court that his attorney refused to present
his defenses, therefore, Teague would bar relief,
because a constitutional right to relief under those
circumstances has not been established.
Vega also argues
that the state court erred by refusing his request
to represent himself on appeal. A defendant does
have a right to submit briefs pro se on appeal. See
Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993).
Because Myers was
not decided until after Vega's appeal became final,
however, it was not available to the state court
when ruling on Vega's request. Pre-Myers caselaw did
not mandate the result in that case, so Myers
created a new rule of constitutional law, and we
will not grant habeas relief because the state court
failed to predict its creation.
Vega claims that
the right to self-representation created by Faretta
dictated that he be allowed to represent himself on
appeal. More significantly, the Texas courts have
repeatedly held that a criminal defendant has a
right to submit pro se briefs on appeal, although he
has no right to present oral argument. See, e.g.,
Webb v. State, 533 S.W.2d 780 (Tex.Crim.App.1976).
Texas courts have
also held, however, that the right to self-representation
on appeal is protected where the defendant is
permitted to submit pro se briefs and his motions to
copy the record and receive notifications are
granted. See Hathorn v. State, 848 S.W.2d 101, 123 (Tex.Crim.App.1993).
Vega apparently made no attempt to copy the record
or receive other information, but he did submit
briefs and motions, some of which were granted, so
the right to self-representation as developed by the
Texas courts was not infringed.
Because the extent
and requirements of the right of self-representation
on appeal have yet to be established in Texas or in
this circuit, a rule holding that the right was
violated in these circumstances would be a new rule
of constitutional law barred by Teague.
Even assuming that
the right to present pro se briefs on appeal is
established for Teague purposes, we have not
established a rule requiring the court to remove the
defendant's previous attorney from the case or
spontaneously to provide him with the trial record
and other documents he might find helpful in writing
his briefs. Nor have we established what relief is
appropriate where the defendant is permitted to
exercise his right only partially. Because the
answers to both these questions remain open to
debate among reasonable minds, Vega's claim is
barred by Teague.
Vega's claims of
ineffective assistance are easily dismissed. He
chastises his counsel for failing to move for a
directed verdict at the close of the government's
evidence on the ground that his confession was not
He also claims his
counsel erred in failing to file a motion for new
trial on the basis that the sexual assault evidence
should have been barred by collateral estoppel.
Vega's claims fail, because his counsel did not err
in either of these respects, and because his second
claim is procedurally barred.
Vega suggests that
the state failed properly to corroborate his
confession because it allegedly did not corroborate
it with respect to each element of the "corpus
delicti" of capital murder. Texas law appears to
require that the state present evidence tending to
prove that "a crime was committed" and that in the
case of a confession to capital murder, the "corpus
delicti" includes the crime making the murder
capital, as well as the homicide itself. See Gribble
v. State, 808 S.W.2d 65, 71 (Tex.Crim.App.1990).
The court stressed,
however, that the evidence need not be sufficient to
prove any element of the offense, but rather that
the evidence must render the corpus delicti more
probable than it would be without the evidence. Id.
at 72. This is a low evidentiary standard, and
counsel did not act unreasonably in concluding that
the prosecution had met it.
established that Vega and Linda Mims began a
relationship prior to the murder and were married
shortly thereafter; that Linda Mims received
substantial life insurance proceeds and other moneys
from the victim's estate; and that Vega shared the
benefits of this income. A reasonable jury certainly
could have found these facts sufficient to
corroborate Vega's detailed confession.
Vega's claim that
counsel should have filed a motion for new trial on
grounds of collateral estoppel was not presented in
his state habeas petitions. It is therefore
unexhausted and procedurally barred under Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir.1997), cert.
denied, --- U.S. ----, 118 S.Ct. 1845, 140 L.Ed.2d
1094 (1998), and Emery v. Johnson, 139 F.3d 191, 196
In addition, given
the Court of Criminal Appeals's finding that the
estoppel issue was without merit, Vega's counsel
could hardly have committed an egregious error in
failing to make the argument before the trial court.
At trial, the
state failed to disclose that Shirley Barnard, who
testified that Vega brutally raped her at gunpoint,
had a pending felony indictment. Vega claims the
failure to disclose this information deprived him of
a fair trial. His claim can succeed, however, only
if the prosecution knew or should have known of this
evidence, and if it was "material either to guilt or
punishment." Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963).
To prevail on a
Brady claim, the defendant must demonstrate that (1)
the prosecution suppressed evidence; (2) the
evidence was favorable to him; and (3) the evidence
was "material either to guilt or punishment." Brady,
373 U.S. at 87.
are unaware of the information, the defendant must
show that the prosecution could have obtained the
information through "a routine check of FBI and
state crime databases, including a witness' state 'rap
sheet.' " East v. Scott, 55 F.3d 996, 1003 (5th
Cir.1995). Vega's argument fails, because the
information was not material, exculpatory evidence
and because he did not demonstrate that the
prosecution knew, or should have known, of it.
The existence of
an indictment, as opposed to a conviction, is not
generally admissible to impeach.
Under Texas law, the existence of the indictment
becomes admissible only if the witness, on direct
examination, misrepresents himself as having "no
trouble with the law." See, e.g. Prescott v. State,
744 S.W.2d 128, 130-31 (Tex.Crim.App.1988). Here,
the statement was made on cross-examination.
The only other
exception, for witnesses whose testimony might be
affected by the indictment, does not apply, because
Vega has alleged no relationship between that
prosecution and his case. See, e.g., Moore v. Kemp,
809 F.2d 702 (11th Cir.1987) (witness received a
deal for testifying). Accordingly, the information
would not have been admissible and could not have
been material information for the defense.
district court found that Vega had submitted
insufficient evidence to support his claim that the
prosecution knew or should have known of the pending
indictment in another county. Specifically, the
court found that Vega had not alleged the
prosecution knew about the indictment; had not
demonstrated that the prosecution could have
discovered the indictment with a routine state and
FBI criminal history check; and had not produced
evidence sufficient to demonstrate conclusively that
the person named in the indictment was the same
Shirley Barnard who testified at his trial. We
accord a presumption of correctness to these
findings and see no reason to disturb them. See 28
U.S.C. § 2254(d) (1997).
Vega asserts that
"because he is innocent of the unadjudicated
extraneous aggravated sexual assault and the St.
Louis murder alleged by the state during the capital
punishment phase his conviction and death sentence
need to be vacated." At best, he makes a claim that
he is ineligible for the death penalty; the
underlying conviction would be unaffected. In
addition, his claim of actual innocence fails
because he does not raise new evidence demonstrating
his innocence of these alleged offenses, and we will
not disturb the jury's implicit finding that he
committed these crimes.
To support his
claim that he is innocent of the sexual assault of
Barnard, Vega offers the "rape report" held
inadmissible at trial but considered at the
evidentiary hearing in August 1994. This evidence
was available for trial, but held inadmissible. He
also refers to a report, admitted at trial, prepared
by criminologist J.R. Urbanovsky for the Texas
Department of Public Safety. Finally, he refers to
alleged conflicts between Barnard's testimony at his
sentencing hearing and the testimony of Lindsey
Thomas at the felon-in-possession trial.
was available to Vega at trial. To the extent that
any of this information could have affected the
jury's conclusion regarding the alleged sexual
assault, it was either available or excluded as a
matter of law. Accordingly, we have no basis for
setting aside the verdict.
Vega also alleges
that he is innocent of the St. Louis murder to which
he had confessed. As in the case of the sexual
assault, any evidence on this subject was presumably
available at trial; we cannot be certain of this,
because Vega fails to specify what evidence he
relies upon to prove his assertion. With neither a
legal nor a factual basis for considering this
contention, we reject it.
Vega cites several
cases to support his final claim, none of which
offers him support. In Johnson v. Mississippi, 486
U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988),
the Court ordered habeas relief where, after the
jury had imposed a death sentence, an assault
conviction considered by the jury was vacated. This
new evidence, the Court held, created doubt about
the validity of the sentence. Id. at 585, 108 S.Ct.
1981. Here, in contrast, no new evidence suggests
Vega's innocence of the extraneous offenses.
Vega relies on two
other inapposite cases: Townsend v. Burke, 334 U.S.
736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), which
involved a guilty plea obtained through
misrepresentation by the prosecution and/or
misreading of information by the court, and Hance v.
Zant, 696 F.2d 940, 950-53 (11th Cir.1983), which
involved prosecutorial misconduct in the nature of
inflammatory presentation of the evidence. Neither
of these cases is remotely relevant.
ignores Lucas v. Johnson, 132 F.3d 1069, 1074 (5th
Cir.1998), cert. dismissed, 1998 U.S. LEXIS 4460 (U.S.
July 17, 1998) (No. 97-9463), in which we stated the
"extraordinarily high threshold" for newly
discovered evidence demonstrating actual innocence,
which includes the requirement that the evidence be
newly discovered and unknown to the defendant at the
time of the trial and the requirement that the
evidence be "material, not merely cumulative or
impeaching." Vega also alleges baldly that the use
of his St. Louis murder confession was "unfair,"
ignoring this court's repeated holding that such
unadjudicated extraneous offenses may be admitted.
Vega has failed to
offer sufficient factual and legal justification for
any of his claims. We therefore AFFIRM the denial of
habeas corpus relief.