Texas Attorney General
Media Advisory: David Wood scheduled for
August 13, 2009
AUSTIN – Texas Attorney General Greg
Abbott offers the following information about David Leonard Wood,
who is scheduled to be executed after 6 p.m. on Thursday, August
Wood was convicted and sentenced to death in a
Texas state court for the serial murders of Ivy Williams, Desiree
Wheatley, Karen Baker, Angelica Frausto, Rosa Maria Casio, and
Dawn Smith. The evidence presented at trial is as follows.
FACTS OF THE CRIME
The six young women disappeared from the El
Paso area between May 13, 1987, and August 27, 1987.
Between September 4, 1987, and March 14, 1988,
the bodies of these women were found buried in shallow graves in a
desert area northeast of El Paso. Five of the bodies were located
in the same one by one-half mile area; the sixth was three-quarters
of a mile away. All of the bodies were approximately thirty to
forty yards from one of the dirt roadways in the desert. Four of
the bodies were in various states of undress, indicating that the
killer had sexually abused them.
Five of the victims were seen by witnesses on
the day of their disappearance accepting a ride from a man with
either a red Harley-Davidson motorcycle or a beige pickup truck,
matching the two vehicles owned by Wood. Wood’s girlfriend
testified that he owned a burnt orange blanket and some shovels,
all of which he kept in the back of his pickup truck. A forensic
chemist later testified at trial that orange fibers found on the
clothing of one of the victims matched orange fibers taken from a
vacuum cleaner bag that Wood and his girlfriend had left in their
A woman testified that in July 1987, she had
been walking outside of a convenience store in the northeast El
Paso when a man identified as Wood, and matching his description,
asked if she needed a ride. The woman accepted his offer, but Wood
did not take her home as directed. Instead, he stopped at an
apartment complex and went inside. When he returned, a piece of
rope was hanging from one of his pockets. Wood drove northeast of
town toward the desert. After driving around the area for a period
of time, he stopped the truck, got out, and ordered the woman out
as well. She saw him get a “brownish red” blanket and shovel from
the back of his truck. After tying the woman to the front of his
truck with the rope, Wood proceeded to dig a hole behind some
bushes. Ten or fifteen minutes later, he returned with the blanket
and began ripping her clothes and forcing her to the ground. Upon
hearing what he believed were voices, Wood ordered the woman to
get back in the truck.
Wood drove to a different location in the
desert where he stopped his truck, ordered the woman out, spread
the blanket on the ground, and forced her to remove her clothes.
He gagged her, tied her to a bush, and raped her. Immediately
afterwards, Wood stated again that he heard voices, and hastily
threw his belongings back into the truck and drove away, leaving
the woman naked in the desert.
About a month and a half later, the woman
called police. On September 22, 1987, she directed them to the
scene of the rape in the desert. She also directed them to the
area where Wood had done some digging. This area was where the
other bodies were located. Wood was ultimately convicted for
sexually assaulting the woman.
The admission of the woman's testimony at trial
was upheld on appeal because it demonstrated that the offense
against her was committed by a method matching that used in the
commission of the crimes charged. The Texas Court of Criminal
Appeals found that Wood’s method was so distinctive “that it may
be considered as the defendant's ‘signature.’” The court pointed
to “the obvious similarities between the details of the sexual
assault upon the woman and the evidence surrounding the murders,”
namely that they all occurred within the same geographical area
and the same four month period.
While Wood was serving time for the sexual
assault of the woman, he told his cell mate, Randy Wells, that he
(Wood) was responsible for these murders. Wood described his
victims as topless dancers or prostitutes. Wood told Wells that he
would lure each girl into his pickup truck with an offer of drugs,
drive out to the desert, tie her to his truck, and dig a grave.
Next, he would tie the victim to a tree and rape her. Another cell
mate, James Carl Sweeney, Jr., testified that Wood had shown him
numerous clippings about the murders and confessed that he was the
one who committed them.
On July 13, 1990, an El Paso County grand jury
indicted Wood for the murders of Ivy Williams, Desiree Wheatley,
Karen Baker, Angelica Frausto, Rosa Maria Casio, and Dawn Smith.
Wood was set to be tried in El Paso, but on a defense motion for a
change of venue, the trial was moved to Dallas. On November 10,
1992, a jury found Wood guilty of the capital murders. Following a
separate sentencing hearing , the trial court on November 30,
1992, sentenced Wood to death.
Wood appealed his conviction and sentence to
the Texas Court of Criminal Appeals, which affirmed his conviction
on December 13, 1995. Wood then filed a state application for writ
of habeas corpus in the trial court on December 19, 1997. The
trial court entered findings of fact and conclusions of law
recommending that Wood be denied relief. The Texas Court of
Criminal Appeals adopted the trial court’s findings and
conclusions and denied Wood habeas relief on September 19, 2001.
Wood filed a federal habeas petition in a
Dallas U.S. district on May 6, 2002. On June 4, 2004, a federal
magistrate recommended that Wood’s petition be denied. The U.S.
district court adopted that recommendation and denied Wood habeas
relief on June 2, 2006. Wood then sought permission to appeal from
the United States Court of Appeals for the Fifth Circuit, but the
appellate court denied Wood permission on October 5, 2007. Wood
filed a petition for writ of certiorari in the U.S. Supreme Court
on January 3, 2008. The Supreme Court denied the petition on April
EVIDENCE OF FUTURE DANGEROUSNESS
During the punishment phase of trial, the State
presented extensive evidence of Wood’s future dangerousness. First,
the State showed that Wood had been previously convicted of
indecency with a child, rape of a child, and sexual assault. For
those crimes, he received five, twenty, and fifty-year sentences,
A prostitute testified that on September 19,
1987, Wood offered her money for sex while she was standing on a
street corner. She got into Wood’s truck and told him to go to a
motel. Instead, he pulled a knife on the prostitute and told her
he was going to sexually assault and kill her. The prostitute
jumped out while the truck was still moving and injured herself.
A woman testified that when she was thirteen-years-old,
Wood grabbed her as she was headed for home on foot and raped her
underneath a bridge.
Another woman testified that when she was
twelve-years-old, Woods approached her and asked her for help in
finding his dog. Wood eventually grabbed her and raped her.
A woman testified that when she was 23, she got
a ride home from work with Wood and another man. She said they
drove to some apartments, where both men got out. Wood came back
to the truck alone and started driving. He pulled off to the side
of a road and raped her.
Finally, a psychiatrist, testified that given
the facts of the crime and the evidence presented by the State, he
believed Wood constituted a future danger to society.
David L. Wood,
Convicted Northeast Desert Murders
Date of Interview:
Interview: Convicted Serial Killer David L.
Wood Claims Innocence
By Dee - AssociatedContenty.com
Back in 1987, several young women between the
ages of 14 through 24 were missing from El Paso Texas. The
police and officials in El Paso were baffled as to who the
killer was, but they felt they were dealing with a serial killer.
Bodies of six women were soon found in shallow graves in the
desert in El Paso, and the murders became known as The Northeast
David L. Wood wrote to me and sent paper work
about his case. Here is his story, about his case, followed by
my interview with David. He alleges that in January of 1987 he
was paroled to El Paso from a prison term of 2-20 years for a
sexual offense. He says he was picked up by police 4 times in a
3 month period and accused of crimes he didn't commit.
David alleges that when the young women began
disappearing he became a prime suspect when one of the missing
women, Cheryl Vasquez was said to have been seen with David last,
but later reports show Vasquez was at a party after she was seen
with Wood. Vasquez was never found. Wood claims because of the
high media attention this case was receiving he was under
constance surveillance. He was routinely questioned and
photographed, including photos of his tattoos. Wood says he
cooperated with police and that his truck was broken into and
clothes belonging to him were taken, but nothing else. Wood
claims he was constantly harassed by police at that time.
David claims that on September 4, 1987, two
of the missing girls bodies were found, Maria Casio, and Karen
Baker. The following month another search located the bodies of
Dawn Smith and Desiree Wheatly. The following month an even
larger search of the area produced the body of Angie
Frausto. Wood claims the last search "was massive in size" with
over 350 people helping out and with search dogs from the police
department and Texas's prison system, resulting in no finds. He
alleges that police made this fact clear on the news that "there
were no more bodies."
Wood alleges that only three days after the
last girl was found he was arrested on October 23, 1987, on
unrelated charges. He claims he wasn't aware of what he was
being arrested for, for almost sixteen hours. He claims he soon
found out he was being arrested for 2 warrants which Woods
called holdout warrants that police had on him for 2 months. He
says the first was for aggravated sexual assault of a women
named Judith Brown Kelling. Wood alleges that Kelling was a
prostitute with a heroin habit, and a self admitted police
informant with a long arrest history.
Wood claims that Kelling gave the date of the
alleged crime as "sometime between July and August", Wood claims
the statement backfired when it was learned the alleged truck
was in a wrecking yard during that time, because it had been in
an accident by Wood's brother. Wood's also claims it was then
that the date on the indictment was changed to the day
Wood alleges the second warrant was for the
alleged attempted kidnapping of Gina Gallegos. Wood says she was
also a prostitute. He claims that his trial for the Kelling case
was to begin on March, 15, 1988, and that he was going to be
tried as a habitual offender, and that if he was convicted he
would face a life sentence.
Wood claims the day before his trial another
body, Ivy Williams, was found in the same area as the "massive
search" that had previously taken place. He claims this story
made headline news the day before his trial. Wood wondered, "How
could they have missed this body?" He says it's "No Way" they
could have missed this body then find it the day before his
trial. He claims the pathologist said this girl could have been
out in the desert for more than a year, and Wood says, that was
before he had been paroled from prison.
Wood claims about three weeks before the
trial was to begin his attorney informed him that he was going
to be charged with the rape of a sixteen year old girl who lived
in his area. He claims this was one of the cases he was picked
up and questioned about right after he was paroled. Wood claims
the headlines read "Rape victim identifies desert suspect
through voice lineup." Wood claims their was much publicity
about this case, and samples had been taken from him and sent to
the DPS lab for comparison with a rape kit taken from the victim.
Wood claims when the test came back about a week later, he was
cleared 100%. Wood alleges that district attorney Richard Jukes
told the judge that he was completely cleared but he asked the
judge to order that the results be kept out of the media. Wood
says they did not want the media to know that he was cleared,
and called this "an example of dirty politics." Wood was
sentenced to 50 years for "non-aggraved " and claims
after his conviction the charges with the Gallegos case were
dropped, and feels that she was just backup if they needed it.
Woods claims that Kelling's pending charges were dropped.
Wood claims while in prison serving the 50
year term, Steve Simmons the head DA tried to get him indicted
on the Northeast Murders, but was twice denied by the grand jury.
Woods states that he had given 6 vials of blood, head and pubic
hair, fingernail clippings, skin scrapings, and saliva, all
before he was even charged with these murders. He alleges that
every scientific test known in 1987 had been done to him, his
truck, (taking dirt and rocks from his tires), to compare to
samples taken from the crime scenes. Woods claims he has FBI and
DPS lab reports of tests that had been conducted and that in his
words "Could not find one single match of evidence from me and
the evidence found with any of the six victims."
There was questions about what police
described as orange fiber, that Wood's claims he can explain.
Woods claims the orange fiber in question came from the Wheatly
crime scene. Woods claims that when Wheatly was found buried,
the detectives set up around the crime scene, did a preliminary
search, exhumed the body, and left. He claims the police work
was incompetent, and that the grave site was left open to the
public for 8 days before they returned to look for evidence. He
claims one of the four that went to look for evidence was from
the bomb squad, one was an ID sergeant, and none were the
detectives that were working on the case.
Woods claims that 3 days after Wheatly was
found and he was arrested they impounded his truck and totally
dismantled it, including taking the seat out of the truck and
placing it in the evidence room. Five days later Woods claims
that when 4 police sergeants returned to the Wheatly crime scene
to look for evidence they found a clump of fibers, and found
another clump of fibers the following day. Woods also claims
that during his murder trial the states own expert witness
testified that it is unusual to find that amount of fibers at a
crime scene. He says this is in his trial records.
Woods alleges that they made a link between
the orange fibers and himself, and claims they said the alleged
fibers came from underneath his car seat. He says it did
not come from the wall to wall shag carpet, the seat covers, or
the numerous other fibers througout his truck. He claims this
orange fiber was only found at the Wheatly crime scene. Because
they had no warrant to cover it in the search of his truck,
Wood's said the fibers could not be used as evidence, and he
alleges they came up with another plan.
Wood's alleges that on November 28, Detective
Guerrero got a warrant to search the garage where he had been
living with his girlfriend. He found several items and left. A
couple of days later the land lady called him to tell him about
a Hoover vacuum she had found in the garage. Wood claims the
detective got another warrant, returned to the garage and took
only the vacuum cleaner bag. Wood's claims there were no
fingerprints taken to determine if the vacuum cleaner belonged
to him. Woods said "Well, magic, as only cops can do, the orange
fiber miraculously turned up in the vacuum cleaner bag." He goes
on to say that the "really odd thing about this is that this was
a full sized stand up vacuum cleaner," He states that
none can explain how one kind of fiber got from underneath his
truck seat, and into a full size, stand up vacuum cleaner.
Wood's states that three years later a reward
was being offered to find the murderer of these girls. Wood's
states the total reward money was $26,000. Wood's alleges that
this was when jail house informers came into the picture. Wood's
claims that James Carl Sweeny and Randy Lee Wells both ex-cons,
and both were cell mates of his while he was serving the 50 year
sentence. Wood's alleges that Sweeny was doing a 69 year
sentence for drug possession and forgery. Woods states that
Sweeny was a self proclaimed jail house lawyer who did legal
work for inmates, and offered to do legal work about his case,
and file a civil rights lawsuit for him. Wood's alleges that
Sweeny wanted all his information, and also said he had to pay
him. Wood's alleges that he found out Sweeny had contacted a DA
in Dallas about another inmates case he was working on. He
alleges that Sweeny tried to get help on his own prison sentence
but the DA didn't want to be bothered.Woods claims that one day
in the cell Sweeny was reading about the $26,000 reward on the
Northeast desert Murder cases, and allegedly said "Well, your
screwed now because there's going to be a witness against you."
Woods claims the very next day when Sweeny went to work and the
warden was called. He states the warden then called the
detectives. Wood's claims that after Sweeny talked to
detectives, they started looking up all the "cellies" he had,
and that is when they found Randy Lee Wells.
Wood's claims Wells was a habitual offender
with a long record. Wood's alleges Wells was told he would get
his charges dropped to a lesser crime, the $26,000 reward money,
and the rights to any book or movie deal that may come out of
his testimony against him. Wood's stated that he feels the last
promise was laughable but that it can be verified in trial
transcripts. Woods claims that Sweeny and Wells were moved into
a protective cell together for 5 days. Wood's claims they were
both taken to the crime scene, both visited detectives together,
and all before they went before the Grand jury. Wood's said "They
were practically handed a script to read from." It was at this
point that Wood's was finally indicted for the Northeast Desert
Murders. He was found guilty and is now residing on Texas 's
death row, Polunsky Unit. David has an enormous amount of paper
work concerning his case, and documents to prove what he has
said. He proclaims his innocence.
The following is my interview with David. l.
Wood. Some of his answers have already been answered in the
above summary of his case, but I wanted to show the complete
What were you convicted for and what is
I was convicted for (6) six murders in El
Paso Texas and I was given the death penalty.
Did you have any prior record, and what
what it for?
I have two prior prison sentences both for
sexual offenses. (Actually it was three/ but one of those was
the Kelling case which in tied with this case.)
Could you tell us a little about the
The bio included with this letter will
explain the circumstances
involved with this case and no one knows what actually happened
to the victimes including the police. There was only one that
they suspected was stabbed. In one of the cases the body 'and
all her cloths were destroyed 'before' evidence could be taken
Are you innocent?
Am I innocent? Damn right! But let my case
speak for itself! If people will only listen to what is actually
involved they'll see the case for what it really is. A 'built"
case from nothing! As for proof there is NO proof in a 'circumstantial
case. Either against the defendant or the defendant trying to
clear himself. That is 'why' it is so easy to get a conviction
and given the death penalty. Again if ALL of the facts are
included and listened too then 'that' should be enough to
Do you have any thoughts on who might
have done this crime and why?
"I" have no thoughts as to who may have been
involved or no idea of why they were done.
How did they get the conviction and the
I was tried convicted and sentenced to death
on the testimony of (3) informants working for the state
prosecutors for favoritism in their own legal situations. Also I
was tried for ALL six cases in the same trial it is a part of my
trial transcripts that the head DA Steve Simmons quoted in a
memo to the D.A.'s over my case "There is only one way to get
any convictions on Wood we need to try all the cases at once in
.the same trial for the prejudice (or prejudicial) factor and we
also need to do it with 'inmate testimony, (known as jail house
snitches) Also I had two court appointed attorneys who were more
worried about 'offending' the people they work with then
defending me and there is some proof to that issue. Also my case
was moved to Dallas Texas highly against my wishes because at
the time Dallas was the leading city in the country for handing
out the death penalty. I even refused to participate in my trial
because of this move.
What has it been like on death row all
Being on death row has been one of the
hardest experiences I've ever known not only for the factor that
I did NOT kill these people/ and I have been turned down at
every turn for justice from the courts but the conditions, here
are the worst that I have ever seen in the prison system. I've
been told that I had aged twenty years in eight years and there
are many here who have become the same way. I have been on death
row since early 1993 but we have been here on the Polunsky lock
down segregation unit going on nine years now.
At what point is your appeals at?
MY appeals are at the Supreme court level,
and this is my last shot at hope before they execute me. Every
court before them have all turned me down NOT on evidence but
false testimony given by criminals. 90% of the people involved
in this case had some type of criminal record. Also the courts
have stated"That even though they agree that inmate testimony
tainted it is still evidence in the court of law, and it is the
burden of the defendant to 'prove that said testimony is false."
This in itself is an almost impossible act to achieve if the
snitch) is protected by the state and he won't admit his
testimony is a lie how can the defendant prove it is?
How can the public help you?
Wow this is the question isn't it? They say
that once you get to the supreme court on your case thats pretty
much it if they don't want to help you. I would like to think
and hope that is not the case. Before I am executed for this
crime I would at least like to have to chance to have all the
facts an issues heard. About how it got started how it
progressed how I was arrested. tried, and convicted. The rules
of Police conduct and rules of law did not come into effect in
this case. This is a border town that is used to doing things
their own way without any outside help. In fact in this case
they 'refused outside help from other agencies including the
FBI. I would like enough attention on my case that it would
bring enough pressure to my lawyers to do their job the way
their suppose too also enough attention needs to be brought
against El Paso in this case and have it investigated for the
police corruption and corrupted coercion tactics they used to
get statements, and people involved. They should at least be
investigated for their illegal and lack of use of proper police
procedures. I might not be liked because of my past crimes but 'if'
I did not commit these murders then the state should not be
allowed to so easily pass out the death penalty. This is the
final punishment if later it was found out that someone was
innocent theres no correcting it. its to late for that.
David ended his letter with these words "Thats
about all I can give you for now if you have any questions and I
mean anything don't hesitate to ask. because I'm suppose to be a
professional liar and con I don't expect you to just 'believe'
what I have to say so what ever you ask and will send whatever 'proof'
that I can with that answer. I do have police reports
supplements, DNA reports at least everything 'they' wanted us to
have. Again thank you, and take care.
David can produce documents, newspaper
clippings, paperwork, etc. for all he has said, and can be
reached at this address:
David Wood #999051
Polunsky Unit Death row
3872 FM 350 South
Letters from David Wood, Documents and legal
paperwork, with written permission from Wood to use
David Leonard Wood
El Paso, like so many other cities
in America, has seen its share of runaways in recent years. With
drugs and broken homes, the promise of excitement to be found in
other cities, other states, uncounted teens have fled their
homes and schools to search for fame and fortune on the road. A
few make good, some wander back in time, but nearly all leave
tokens of themselves behind, some indication of their motive for
though, a rash of disappearances around El Paso baffled parents
and police as normal, well-adjusted girls and women dropped from
sight, without a trace.
Marjorie Knox was the first to go, reported missing from nearby
Chaparral, New Mexico, on February 14, 1987. Three weeks later,
on March 7, 13-year-old Melissa Alaniz vanished from El Paso,
police noting that both girls had parents working at the
Rockwell plant, outside of town.
15, disappeared in El Paso on June 7, last seen in the company
of a man with heavily-tattooed arms. Three days later, Karen
Baker's disappearance seemed to break the pattern. At 20, she
was a legal adult, but police learned that her mother worked in
the same Rockwell plant, with a nodding acquaintance to Marjorie
Knox. Was there some hidden link between the missing girls, thus
far unknown to the police?
On June 28, 19-year-old
Cheryl Vasquez-Dismukes vanished from El Paso, followed on July
3 by 17-year-old Angela Frausto. Maria Casio, age 24, was
staying with friends when she failed to come home on the night
of August 19. They reported her missing next day, and her car
was found on August 21, without a trace of the missing woman.
On August 28,
14-year-old Dawn Smith left her El Paso home, promising to "keep
in touch," and abruptly dropped out of sight. On September 4,
utility workers unearthed Maria Casio's remains in the desert
northwest of El Paso. Police were summoned to the scene, and
they soon found Karen Baker buried in a shallow grave 100 yards
away. With no obvious wounds on either body, the cause of death
for both victims was listed as "apparent strangulation."
On October 20,
1987, hikers found the remains of Desiree Wheatly and Dawn Smith
within a mile of the other grave sites. Two weeks later, desert
prospectors found Angela Frausto in a nearby shallow grave.
Marjorie Knox, Melissa Alaniz and Cheryl Vasquez-Dismukes are
still missing, but all are now presumed dead by authorities.
Police, meanwhile, have focused their attention on a suspect in
19, 1987, an El Paso prostitute complained to police that one of
her "tricks" had driven her into the desert, near the grave
sites, where he pulled a knife and threatened her before she
fled on foot. Another hooker, raped some weeks before, came
forward after the report was published, both women remarking on
their assailant's numerous tattoos.
A search of
police tattoo files led to the October 22 arrest of David
Leonard Wood, an ex-convict with a history of violence against
females. Born in 1957, Wood logged his first arrest at age 19,
for the attempted rape of a 12-year-old girl. In court, he pled
guilty to a reduced charge of indecency with a minor and spent
three years in prison, paroled in January 1980.
later, he raped a 13-year-old stranger and a 19-year-old
acquaintance, the latter mistake earning him concurrent prison
terms of 20 years on each charge. He was paroled again in
January 1987, days before El Paso's string of deaths and
Wood denies any
involvement in the spate of murders, and he has never been
charged in the case. (Conviction of kidnapping and rape, in
March 1988, has returned him to prison with a new 50-year
In the absence
of an indictment, authorities note that Woods - and his tattoos
- perfectly match descriptions of the man last seen with Desiree
Wheatly in June 1987. He was also seen riding a motorcycle with
Karen Baker, several months before she died, and witnesses have
placed Woods at a local convenience store where Cheryl Vasquez-Dismukes
was last seen alive on June 28. (Wood admits hearing "rumors"
that Cheryl's family suspected him of her murder, and claims he
"went searching" for her, all in vain.)
friends of Wood have identified photos of Maria Casio and Dawn
Smith as friends of the suspect, a claim Wood dismisses as
simple "mistaken identity." Hanging tough in the face of
mounting suspicion, Wood granted an interview to local
journalists in March 1988, prior to his sentencing on the kidnap
and rape charges. Avoiding the question of guilt or innocence,
he harped on the killer's apparent carelessness in disposing of
victims. "If I am going to kill somebody," he declared, "I'm
going to put them 15 feet under, up in the mountains, where the
coyotes can't get to them."
United States Court of Appeals
For the Fifth Circuit
WOOD v. QUARTERMAN
David Leonard WOOD, Petitioner-Appellant,
Nathaniel QUARTERMAN, Director, Texas Department of Criminal
Correctional Institutions Division, Respondent-Appellee.
October 05, 2007
Before HIGGINBOTHAM, BENAVIDES and DENNIS,
Michael Dennis Samonek, John Thomas Haughton,
Law Office of John T. Haughton, Denton, TX, for Wood.Woodson Erich
Dryden, Asst. Atty. Gen., Austin, TX, for Quarterman.
This case involves an application for a
certificate of appealability (“COA”) filed by Petitioner David
Leonard Wood (“Petitioner”) to appeal the district court's denial
of habeas corpus relief under 28 U.S.C. § 2254. Petitioner seeks
a COA to appeal the denial of his claims that (1) the indictment
was defective because it did not state a capital offense; (2)
trial and appellate counsel provided ineffective assistance of
counsel; and (3) the trial court erred in admitting evidence of
an extraneous offense during the guilt phase of the trial.
Because we conclude that Petitioner has failed to make a
substantial showing of the denial of a constitutional right, we
deny his application for a COA.
The district court set forth the relevant facts
This case stems from the disappearances of six
women from the El Paso, Texas area between May 13, 1987 and August
27, 1987. Between September 4, 1987 and March 14, 1988, the
bodies of these women were found buried in shallow graves in the
same desert area northeast of El Paso. Five of the bodies were
located in the same one by one-half mile area; the sixth was
three-quarters of a mile away. All of the bodies were
approximately 30 to 40 yards from one of the dirt roadways in the
desert. Four of the bodies were in various states of undress,
indicating that the killer had sexually abused them. Five of the
victims were seen by witnesses on the day of their disappearance
accepting a ride from a man with either a red Harley-Davidson
motorcycle or a beige pickup truck, matching the two vehicles
owned by Petitioner. Petitioner's girlfriend testified that he
owned a burnt orange blanket and some shovels, all of which he
kept in the back of his pickup truck. A forensic chemist later
testified at trial that orange fibers found on the clothing of one
of the victims matched orange fibers taken from a vacuum cleaner
bag which Petitioner and his girlfriend had left in their old
Petitioner's cell mate, Randy Wells, testified
that Petitioner told him about the murders, describing his victims
as topless dancers or prostitutes. Petitioner told him that he
would lure each girl into his pickup truck with an offer of drugs,
drive out to the desert, tie her to his truck, and dig a grave.
Next, he would tie the victim to a tree and rape her. Another
cell mate, James Carl Sweeney, Jr., testified at Petitioner's
trial that Wood had shown him numerous clippings about the El
Paso, Texas murders and had confessed to him that he was the one
who had committed the murders.
The testimony of Judith Kelly (“Kelly”)
regarding an extraneous criminal offense committed by Petitioner
played a crucial role at the guilt phase of the trial and in the
opinion of the Court of Criminal Appeals. Kelly, a prostitute
and heroin addict, testified that in July 1987 she had been
walking outside of a convenience store in the northeast part of El
Paso when a man identified as Wood, and matching his description,
asked if she needed a ride. She accepted his offer but Wood did
not take her home as directed. Instead, he stopped at an
apartment complex and went inside. When he returned, a piece of
rope was hanging from one of his pockets. Petitioner drove
northeast of town toward the desert, and after driving around the
area for a period of time, stopped the truck, got out, and ordered
Kelly out as well. She saw him get a “brownish red” blanket and
shovel from the back of his truck. After tying her to the front
of his truck with the rope, Petitioner proceeded to dig a hole
behind some bushes. Ten or fifteen minutes later he returned
with the blanket and began ripping her clothes and forcing her to
the ground. Upon hearing voices, Petitioner ordered Kelly to get
back in the truck. Wood drove to a different location in the
desert where he stopped his truck again, ordered Kelly out, spread
the blanket on the ground, and forced the victim to remove her
clothes. He gagged her, tied her to a bush, and raped her.
Immediately afterwards, Petitioner stated that he heard voices,
and hastily threw his belongings back into the truck and drove
away, leaving Kelly naked in the desert. His final words to her
were, “Always remember, I'm free.”
Wood v. Dretke, 2006 WL 1519969, **1-2 (N.D.Tex.
Jun. 2, 2006).
On November 30, 1992, Petitioner was convicted
by a jury of capital murder and was sentenced to death by lethal
injection. He appealed his conviction and sentence to the Texas
Court of Criminal Appeals (“TCCA”), which affirmed his conviction
and death sentence in an unpublished opinion. See Wood v. State,
No. 71,594 (Tex.Crim.App. Dec. 13, 1995). He then filed a state
application for writ of habeas corpus on December 19, 1997. The
TCCA denied relief in an unpublished order. See Ex Parte Wood,
No. 45,746-01 (Tex.Crim.App. Sept. 19, 2001). On May 6, 2002,
Petitioner filed an initial federal petition for writ of habeas
corpus and an amended petition on October 2, 2002. In his
amended petition, he argued, inter alia, that (1) his indictment
was constitutionally defective, (2) trial and appellate counsel
were ineffective by failing to object to the alleged technical
defects in the indictment; and (3) the trial court erred in
admitting evidence of an extraneous offense. The district court
denied each claim on the merits and subsequently denied a COA.
Petitioner filed a notice of appeal and the instant application
for a COA.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the
applicant has made a substantial showing of the denial of a
constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120
S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)).
According to the Supreme Court, this requirement includes a
showing that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’ ” Id. at 483-84, 120
S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4,
103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court
The COA determination under § 2253(c) requires
an overview of the claims in the habeas petition and a general
assessment of their merits. We look to the District Court's
application of AEDPA to petitioner's constitutional claims and ask
whether that resolution was debatable amongst jurists of reason.
This threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims. In fact,
the statute forbids it. When a court of appeals side steps this
process by first deciding the merits of an appeal, and then
justifying its denial of a COA based on its adjudication of the
actual merits, it is in essence deciding an appeal without
Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2002).
In sum, Petitioner need not show that his
habeas petition will ultimately prevail on the merits in order for
this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact,
the Supreme Court has specifically instructed that a court of
appeals should not deny a COA simply because the petitioner has
not demonstrated an entitlement to relief. Id. Instead, “where
a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Id. at 338, 123 S.Ct.
1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595).
For claims that were adjudicated on the merits
in state court, deference to the state court's decision is
required unless the adjudication was “contrary to, or involved an
unreasonable application of, clearly establish Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2); see also Ladd v. Cockrell,
311 F.3d 349, 357 (5th Cir.2002).
A. Sufficiency of the Indictment Claim
The first issue raised by Petitioner is whether
the indictment in this case is constitutionally defective. This
court has held that “[t]he sufficiency of a state indictment is
not a matter of federal habeas relief unless it can be shown that
the state indictment is so defective that it deprives the state
court of jurisdiction.” McKay v. Collins, 12 F.3d 66, 68 (5th
Cir.1994) (citation omitted); see also Yohey v. Collins, 985 F.2d
222, 229 (5th Cir.1993); Alexander v. McCotter, 775 F.2d 595, 598
(5th Cir.1985). That question is foreclosed to federal habeas
review, however, if “the sufficiency of the [indictment] was
squarely presented to the highest court of the state on appeal,
and that court held that the trial court had jurisdiction over the
case.” Millard v. Lynaugh, 810 F.2d 1403, 1407 (5th Cir.1987) (quoting
Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984)). Here, the
sufficiency of the indictment was squarely presented to the TCCA,
which adopted the state habeas court's express findings that the
indictment was not fundamentally defective and that even if the
indictment failed to allege a necessary element, it was still an
indictment under state law.1
Because the sufficiency of the indictment was squarely presented
to the highest state court and that court held that the trial
court had jurisdiction over this case, this claim is foreclosed to
federal habeas review. Millard, 810 F.2d at 1407 (quoting Liner,
731 F.2d at 1203).
Even if we were to reach this issue on the
merits, we would find it beyond debate that Petitioner has failed
to make a substantial showing of the denial of a constitutional
right. Texas law defines murder as “intentionally or knowingly
caus[ing] the death of an individual.” Tex. Penal Code
§ 19.02(b)(1). A person commits capital murder if he or she
“murders more than one person ․ during different criminal
transactions but the murders are committed pursuant to the same
scheme or course of conduct.” Tex. Penal Code § 19.03(a)(7)(B). The
indictment charges Petitioner with “unlawfully, intentionally and
knowingly caus[ing] the death of more than one person, during
different criminal transactions, pursuant to the same scheme and
course of conduct.” It then lists the six victims and the manner,
if known, in which they were killed. We simply fail to see how
the indictment is insufficient in charging Petitioner with capital
murder. See McKay, 12 F.3d at 69 (“An indictment should be found
sufficient unless no reasonable construction of the indictment
would charge the offense for which the defendant has been
convicted.”) (citing United States v. Salinas, 956 F.2d 80, 82
(5th Cir.1992)). Accordingly, we conclude that it is beyond
debate that Petitioner has not made a substantial showing of the
denial of a constitutional right with respect to his sufficiency
of the indictment claim.
B. Ineffective Assistance of Counsel Claim
The second issue raised by Petitioner is
whether trial and appellate counsel provided ineffective
assistance by failing to object to the alleged technical defect in
the indictment. Petitioner frames the issue as follows: “Did Mr.
Wood's trial and appellate counsel provide ineffective assistance
within the meaning of Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App.2005)?”
We first note that “federal habeas corpus relief does not lie
for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67,
112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers,
497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). As
the Supreme Court emphasized, “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions.” Id. at 67-68, 112 S.Ct. 475.
Assuming that Petitioner intended to raise a
federal claim for ineffective assistance of counsel, the Supreme
Court has set forth a familiar two-prong test for examining such
First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Sonnier v.
Quarterman, 476 F.3d 349, 356 (5th Cir.2007).
This court has held, however, that “[f]ailure
to raise meritless objections is not ineffective lawyering; it is
the very opposite.” Clark v. Collins, 19 F.3d 959, 966 (5th
Cir.1994); see also Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir.1990) (“This Court has made clear that counsel is not required
to make futile motions or objections.”). Because we find that
Petitioner's sufficiency of the indictment claim plainly lacks
merit, the performance of his trial and appellate counsel cannot
be considered constitutionally deficient for failing to raise the
same claim at trial and on appeal.2
C. Due Process Claim
The third and final issue raised by Petitioner
is whether the trial court erred in admitting evidence of an
extraneous offense during the guilt phase of the trial. Although
Petitioner alludes to a due process violation, his central
argument is that the admission of Judith Kelly's testimony
violated Texas law. “Such an inquiry, however, is no part of a
federal court's habeas review of a state conviction.” McGuire,
502 U.S. at 67, 112 S.Ct. 475; see also Derden v. McNeel, 978
F.2d 1453, 1458 (5th Cir.1992) (“Errors of state law, including
evidentiary errors, are not cognizable in habeas corpus.”);
Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983) (“We have
repeatedly admonished that we do not sit as a super state supreme
court on a habeas corpus proceeding to review error under state
law.”) (quoting Mendiola v. Estelle, 635 F.2d 487, 491 (5th
Cir.1981)). Instead, the only relevant inquiry is whether the
admission of this testimony violated Petitioner's federal
constitutional rights. Id. Moreover, the TCCA has already held
that the admission of this testimony was not erroneous under Texas
law. The Supreme Court has “repeatedly held that a state court's
interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting
in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct.
602, 163 L.Ed.2d 407 (2005) (citing McGuire, 502 U.S. at 67-68,
112 S.Ct. 475; Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct.
1881, 44 L.Ed.2d 508 (1975)). Thus, the issue of whether the
admission of Kelly's testimony violated Texas law is simply not
before us and has already been answered by the TCCA.
According to the Supreme Court, the admission
of evidence may violate the Due Process Clause of the Fourteenth
Amendment if the evidence is “so unduly prejudicial that it
renders the trial fundamentally unfair.” Payne v. Tennessee, 501
U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing
Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986)); see also Porter, 709 F.2d at 957 (quoting
Mendiola, 635 F.2d at 491). This court has stated that “[a]n
extraneous offense may be admitted into evidence without violating
the due process clause if the government makes a ‘strong showing
that the defendant committed the offense’ and if the extraneous
offense is ‘rationally connected with the offense charged.’ ” Story
v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991) (quoting Enriquez
v. Procunier, 752 F.2d 111, 115 (5th Cir.1984)). Still, “the
erroneous admission of prejudicial evidence will justify habeas
relief only if the admission was a crucial, highly significant
factor in the defendant's conviction.” Neal v. Cain, 141 F.3d
207, 214 (5th Cir.1998). Finally, “[a]ssuming arguendo that the
admission of [this evidence] was constitutional error, [the] claim
still fails [if the petitioner] has not shown that the testimony
had a ‘substantial and injurious effect or influence in
determining the jury's [ ] verdict.’ ” Janecka v. Cockrell, 301
F.3d 316, 328-29 (5th Cir.2002) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
As previously noted, Judith Kelly, a prostitute
and heroin addict, testified that she accepted a ride from
Petitioner, but that he instead took her to the desert, tied her
to his truck, and proceeded to dig a hole. She further testified
that after hearing voices, Petitioner moved her to another
location, gagged her, tied her to a bush, and raped her. In
addressing the admissibility of this evidence, the TCCA found that
Kelly's testimony tended to demonstrate that Petitioner had a
unique system of committing criminal acts. The TCCA emphasized
the striking similarities between the Kelly rape and the six
murders, including the proximity of the found bodies to the area
where Kelly was raped, the use of a beige truck to transport the
victim, the evidence of sexual abuse of the several victims, the
use of a blanket and rope, and the fact that Petitioner dug a hole
prior to raping Kelly. The TCCA also noted the similarities
between the Kelly rape and testimony given by one of Petitioner's
cell mates that Petitioner described all of his victims as topless
dancers and prostitutes, that he would tie the women to his truck
while he dug a grave and then tie them to a tree and rape them,
and that he was worried about his tattoos because one girl had
escaped. Finally, the TCCA held that any prejudicial effect of
admitting the testimony did not substantially outweigh its
probative value because identity was a hotly contested issue, the
evidence that Petitioner raped Kelly was “unassailable,” the
evidence of rape was much less severe than the murders, the amount
of time presenting the evidence was minimal in relation to the
entire length of the trial, and the evidence was extremely
important to the state's case.
Because the state has made a strong showing
that Petitioner committed the extraneous offense-Petitioner does
not deny raping Kelly-and because the extraneous offense is
rationally connected to the offense charged, the admission of
Kelly's testimony did not violate Petitioner's due process rights.
Story, 920 F.2d at 1254 (quoting Enriquez, 752 F.2d at 115).
Thus, we conclude that it is beyond debate that Petitioner has not
made a substantial showing of the denial of a constitutional right
with respect to his due process claim.
For the foregoing reasons, the application for
a COA is denied.
Texas Constitution provides that the “presentment of an indictment
or information to a court invests the court with jurisdiction of
the cause.” Texas Constitution, Art. 5, § 12(b). Based on this
provision, Texas courts have held that “failure to include an
essential element of the crime charged, which constitutes a defect
of substance, does not deprive the trial court of jurisdiction.” McKay,
12 F.3d at 69 (citing Studer v. Texas, 799 S.W.2d 263 (Tex.Crim.App.1990)).
also note that trial counsel filed two motions to quash the
indictment on the bases that it did not allege the cause of death
of five of the victims and did not allege what different criminal
transactions occurred or what acts constituted the same scheme or
course of conduct. Trial counsel also filed a motion to dismiss
the indictment on the basis that it did not define “criminal
transactions” or “same scheme or course of conduct.” Thus, we
agree that trial counsel provided reasonably effective assistance
of counsel by attacking the validity of the indictment on several
DENNIS, Circuit Judge