Summary:

Around 8 a.m. Toni Rhodes discovered that her five year old daughter Maggie was missing from her bed in their apartment at the Arlington Village Apartment complex.

The window above Maggie’s bed was raised and the glass pane was broken from the outside. The child’s blood was found on the window ledge, torn curtains, and on the wall below the window.

Maggie had apparently been abducted from her bed through the window in the middle of the night.

Maggie's body was found on the side of a road in Grand Prairie hours later, with tire tracks on the her body.

The cause of death could be attributed to two sources: being run over by a car and smothering or strangulation.

The medical examiner also determined that Maggie had been sexually assaulted while alive.

Police learned that on the night of the murder, Jackie Wilson was driving in his brother-in-law’s red Mercury Cougar with some friends.

Police recovered the car, and noted that the tread on tires on the vehicle were consistent with the tread marks on the child’s body. Investigators found hair inside and under the car that matched the victim’s.

Fingerprints left on the pieces of glass found inside and outside the victim’s apartment were positively identified as Wilson’s.

Citations:

Wilson v. State, 863 S.W.2d 59 (Tex.Crim.App.1993) (Direct Appeal)
Wilson v. Cockrell, Not Reported in F.Supp.2d, 2002 WL 32590134(N.D.Tex.,2002) (Habeas)
Wilson v. Cockrell, 75 Fed.Appx. 983 (5th Cir. 2003) (Habeas)

Final Meal:

Cheeseburger, onion rings, a beef enchilada, tea, Coca-Cola, a whole onion, a whole tomato and lemon pie.

Final Words:

"Honey, I love you. Be strong and take care of yourselves. Thanks for being there. Thank you for being there for me and all these people here will find the one who did this damn crime.I am going home to be with God."

ClarkProsecutor.org

Texas Department of Corrections

Inmate: Jackie Barron Wilson
Date of Birth: 02/12/67
TDCJ#: 957
Date Received: 11/21/89
Education: 12 years
Occupation: Bricklayer
Date of Offense: 10/30/88
County of Conviction: Dallas County
Race: White
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5 ft 08 in
Weight: 265

Texas Attorney General

Media Advisory

Friday, April 28, 2006 - Jackie Barron Wilson Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Jackie Barron Wilson, who is scheduled to be executed after 6 p.m. Thursday, May 4, 2006.

Wilson was convicted and sentenced to death for the November 1988 murder of 5-year-old Lottie Margaret Rhodes.

FACTS OF THE CRIME

The body of five-year-old Lottie Margaret Rhodes (“Maggie”) was found on the side of a road in Grand Prairie on the morning of November 30, 1988. Police found tire tracks on the child’s body.

The medical examiner determined that cause of death could be attributed to two sources: being run over by a car and smothering or strangulation. The medical examiner also determined that Maggie had been sexually assaulted while alive.

Around 8 a.m. on the day the child’s body was found, the victim’s mother, Toni Rhodes, discovered that her daughter was missing from her bed in their apartment at the Arlington Village Apartment complex.

The window above Maggie’s bed was raised and the glass pane was broken from the outside.

The child’s blood was found on the window ledge, torn curtains, and on the wall below the window. Police learned that on the night of the murder, Jackie Wilson was driving in his brother-in-law’s red Mercury Cougar with some friends.

Police recovered the car, and noted that the tread on tires on the vehicle were consistent with the tread marks on the child’s body. Investigators found hair inside and under the car that matched the victim’s.

Fingerprints left on the pieces of glass found inside and outside the victim’s apartment were positively identified as Wilson’s

PROCEDURAL HISTORY

Wilson was indicted in Dallas County for the capital murder of Lottie Margaret Rhodes. Wilson was convicted of capital murder on June 8, 1994, and sentenced to death on June 14, 1994.

 Wilson’s motion for a new trial was overruled on June 28, 1994.

The Texas Court of Criminal Appeals affirmed the judgment and sentence of the trial court on February 12, 1997.

The U. S. Supreme Court denied Wilson’s petition for writ of certiorari on October 6, 1997.

The Court of Criminal Appeals denied Wilson’s state application for writ of habeas corpus on March 31, 1999.

Wilson filed his federal application for writ of habeas corpus on January 11, 2000. A U.S. district court denied relief on September 23, 2002.

Wilson’s application for certificate of appealability (COA) was denied by the U.S. district court on December 11, 2002.

Wilson’s application for COA in the 5th U.S. Circuit Court of Appeals was denied on July 1, 2003. The Supreme Court denied certiorari review again on February 23, 2004.

Wilson then sought post-conviction DNA testing from the state trial court, but his request was denied. The Texas Court of Criminal Appeals affirmed the state court’s denial on March 1, 2006. An execution was set for May 4, 2006.

PRIOR CRIMINAL HISTORY

During the sentencing proceeding, the State presented evidence of Wilson’s prior criminal record:

• Wilson was arrested for disorderly conduct as the result of a domestic dispute. Wilson’s mother called the police because Wilson was arguing with his sister. Wilson appeared intoxicated, belligerent, was using loud, abusive language, and refused to calm down despite warning by the police. After arrest, Wilson refused to give his name or date of birth, and was verbally abusive towards the officers.

• Wilson was arrested and charged with a traffic violation, driving without insurance, driving without an on operator’s license, and evading arrest as a result of a traffic stop. Wilson tried to run when a second officer responded to the scene. The second officer chased Wilson and eventually tackled him. Wilson resisted while being placed under arrest.

• Wilson was arrested and charged with driving on the sidewalk, running a stop sign, driving on the wrong side of the street, a seat belt violation, driving without an operator’s license or insurance, resisting arrest, and giving a fictitious name.

The arrest resulted after an officer stopped Wilson for driving erratically. The officer had to chase Wilson for at least ten blocks, sometimes at high speeds, and had to use the sirens and lights to get him stopped. Wilson, who did not have a license or proof of insurance, was uncooperative and verbally abusive to the officer throughout the encounter. Wilson hit the officer in the face, twice, breaking her tooth and causing her to fall down.

The officer chased Wilson, jumped on his back and placed a carotid restraint hold on his neck, causing him to temporarily pass out. Wilson refused to walk back to the car, and had to be carried back where he behaved more violently and uncooperative than before. He yelled at the officer and her assistant in Spanish; tried to kick, head-butt, and spit on them; and tried to kick the car radio.

Wilson eventually head-butted the assistant, and knocked her out of the car; the officer had to chase and subdue Wilson a second time. Wilson had to be carried back to the car again where he continued to behave violently, and verbally abused the officer for being a woman. Wilson ceased the abuse once a male officer arrived and began crying

• Wilson was arrested while riding in the back of a stolen truck, with three other men. The truck contained items from a recent burglary of another car. When arrested, Wilson gave the officers a false name.

The State presented evidence of unadjudicated criminal activity by Wilson prior to his arrest for the present crime:

• Wilson broke into the home of a friend’s family and stole a VCR.

• Wilson was observed in the parking lot of the Arlington Village Apartments unloading guns from his car. Wilson refused to sell one of the weapons to witness Larry French because he did not know him, however, Wilson came to French’s apartment several months later, and offered to sell him marijuana.

• Another witness saw Wilson with a bag of white powder, some of which he offered to give her.

• A witness testified that in 1984, Wilson coerced her into leaving a bar with him, and then raped her in the parking lot. When the woman’s boyfriend tried to save her, Wilson and two other men threw rocks at him. Wilson and the two other men put her into a truck and drove around for about fifteen minutes before letting the victim go. Finally, the State presented evidence of Wilson’s violent conduct after his arrest and incarceration for the present offense.

• A female sheriff’s deputy escorting Wilson to a holdover cell following court proceedings, agreed to change Wilson’s handcuffs to the front so that he would be more comfortable. After one cuff was removed, Wilson tried to jerk away from the deputy. Wilson began screaming and cursing the deputy, and the two engaged in a “tug of war” over the handcuffs until a male deputy entered the room. At that time, Wilson allowed himself to be handcuffed, and laughed at the female deputy. After this incident, only male officers were permitted to transport Wilson.

• While imprisoned at Ellis One, Wilson was always kept in a high-security area, and was never allowed in a work-capable unit. Wilson was known to cause problems for the corrections officers. Belligerent behavior, such as cursing, was a fairly regular occurrence with Wilson. Wilson was considered dangerous and was written up for disciplinary violations on many occasions.

• Wilson received a fifteen-day cell restriction, a thirty-day property restriction, and a thirty-day commissary restriction – the maximum punishment allowed – for attacking an unarmed, helpless inmate with a wooden “shank.”

Wilson stabbed the inmate several times with the wooden “shank,”which had been sharpened to a point and was approximately six-and-a-quarter inches long. Wilson refused to drop the weapon, despite being ordered, and continued to chase after the other inmate, who received a puncture wound to his side and bruising.

Irving man executed in girl's death

By Juan Lozano - Houston Chronicle

Associated Press - May 4, 2006

HUNTSVILLE - A former laborer was executed Thursday night for the 1988 rape and murder of a 5-year-old North Texas girl. "Be strong and take care of yourselves," Jackie Barron Wilson said to his wife, sister and friends as they watched from a nearby window. "Thanks for being there. Thank you for being there for me and all these people here will find the one who did this damn crime. "I am going home to be with God."

Before he began his last statement, Wilson turned his head and looked toward the family of his victim. But he did not acknowledge them again. He was pronounced dead at 6:20 p.m., eight minutes after the drugs began to flow.

Wilson, 39, was the eighth prisoner put to death this year in Texas and the first of four this month in the nation's busiest capital punishment state.

Wilson was condemned for the slaying of Lottie Margaret Rhodes, known by the nickname "Maggie." After breaking into her bedroom, he kidnapped Maggie from her Arlington apartment in the early morning hours of Nov. 30, 1988, then sexually assaulted the little girl before killing her.

Authorities said Wilson, who lived in nearby Irving, strangled Maggie before running over her with a car.

Next on the execution schedule is Derrick O'Brien, one of five gang members condemned for the rape-slayings of two teenage girls in Houston in 1993. He is set to be executed May 16.

Texas man executed for 1988 murder

Reuters News

Thu May 4, 2006

HUNTSVILLE, Texas (Reuters) - A Texas man was executed by lethal injection on Thursday for the 1988 murder of a 5-year-old girl abducted from her bed in Arlington, Texas.

Jackie Wilson, 39, was condemned for taking Maggie Rhodes to a field on November 30, 1988, and raping and suffocating her. Wilson then drove over the girl's body.

Wilson has maintained his innocence since being charged in the crime. Wilson's DNA was found on the girl's body. His fingerprints were found on the apartment's broken bedroom window and Rhodes' hair was found in and on the underside of the car Wilson was driving.

Wilson was tried twice for the murder. His first conviction was thrown out because a juror was improperly dismissed.

On Thursday, in a final statement while strapped to a gurney in the death chamber, Wilson spoke to his family and friends while proclaiming his innocence. "Honey, I love you," he said to his wife, Maria. "Thank you for being there for me and all these people here will find the one who did this damn crime. I am going home to be with God."

Wilson was the eighth person executed in Texas this year and the 362nd put to death since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban, a total that leads the nation.

For his final meal, Wilson requested a cheeseburger, onion rings, a beef enchilada, tea, Coca-Cola, a whole onion, a whole tomato and lemon pie.

Man put to death in girl's killing

By Mark Agee - Fort Worth Star Telegram

Fri, May. 05, 2006

HUNTSVILLE -- His tattooed arms strapped to a gurney, Jackie Barron Wilson used his last words Thursday night to deny that he had kidnapped, raped and killed 5-year-old Maggie Rhodes of Arlington.

Wilson, 40, said he hopes, "all these people here will find the one who did this damn crime. I am going home to be with God."

During a minute-long speech before the state executed him for the murder of the Roark Elementary kindergartner, it was the only time he acknowledged the Rhodes family.

Maggie's mother, Toni Rhodes, watched Wilson die through reinforced glass, along with her brother and sister and two police officers who worked the case. "I know he's lying and that he did do it," Toni Rhodes said later. "If that's how he wanted to go, then that's his choice."

After being given the lethal injection, Wilson's breathing slowed and he gasped, "I love you," to family members before he gurgled and began to fade. His wife, Maria, and two family members cried and recited the Lord's Prayer.

Wilson was pronounced dead at 6:20 p.m. His last meal was a cheeseburger, onion rings, Coke and a whole onion.

Mike Bosillo, the lead Arlington detective on the case 18 years ago, said Wilson looked at him and smirked as he denied, for the last time, that he killed Maggie. "I expected him to behave this way," Bosillo said. "Jackie Barron Wilson faced his death the same way he lived his life -- as a coward."

Wilson was convicted of capital murder in 1989, but his conviction was overturned by an appeals court because of a procedural violation. He was convicted again in 1994 and sentenced to die.

In a 1993 interview with The Associated Press, Wilson denied being the killer. Authorities said Wilson's fingerprints were found on both sides of broken glass at the scene of the kidnapping; his DNA was on Maggie's clothes; her DNA was found on the inside and outside of the car he was driving; and a rare tire on the car matched a track on Maggie's body. "I'm not going to die for something I didn't do," Wilson said in 1993. "This is kind of hard for me to believe." Last week Wilson declined an interview request from the Star-Telegram.

Jim Greenwell, an Arlington police officer who was a crime scene investigator on the case, attended the execution and said he wasn't surprised at Wilson's deathbed denial in the face of overwhelming evidence. "It was his pattern. He lied then, he lied today, and I'm going to assume that's how he lived his whole life," Greenwell said.

Wilson's attorney, Robin Norris of El Paso, said his client had a tough childhood, including physical abuse, and had witnessed the murder of his baby sitter.

Norris filed a request for a new punishment hearing because evidence of those possibly mitigating factors was not presented at trial. The Texas Court of Criminal Appeals rejected that request Monday.

A federal claim filed by the anti-death penalty Innocence Network, which claimed that lethal injection is cruel and unusual because the drugs mask horrible pain, was denied a hearing by the U.S. Supreme Court on Thursday afternoon.

Wilson -- who knew Maggie because he had lived in the same apartment complex and was a friend of her baby sitter -- broke a window at the ground-floor apartment where the girl slept early Nov. 30, 1988, police said.

Wilson snatched her from her bed and drove her from the Arlington Village Apartments near Abram Street and Texas 360 to a field near an abandoned road in Grand Prairie, police said.

Wilson sexually assaulted Maggie and killed her by driving a red Mercury Cougar over her as he fled, police said. Maggie's body was found hours later by a truck driver.

She would have turned 23 on Sunday. Rhodes, who bowed her head during Wilson's final moments, said she was talking to Maggie. "I said, 'You're free. You can go,'" Rhodes said. "And then I thanked God for the strength to stand there."

Wilson was the eighth Texas inmate executed this year and the 363rd since executions resumed in 1982.

Man convicted of killing 5-year-old set to die

By Mark Agee - Fort Worth Star Telegram

Tue, May. 02, 2006

ARLINGTON -- In the cold hours before dawn on a morning in November 1988, Jackie Barron Wilson broke a window of the ground-floor apartment where Maggie Rhodes slept.

As the Roark Elementary kindergartner lay next to her puppy, Wilson pulled her from her bed, which was pushed against the window.

He drove her from the Arlington Village Apartments near Abram Street and Texas 360 to a field near an abandoned road in Grand Prairie, said police, who believe that Maggie was still alive after Wilson sexually assaulted her. Then Wilson drove the car over Maggie as he fled in the red Mercury Cougar he had borrowed from his sister's boyfriend.

Maggie's body, clad in shorts and a Muppet T-shirt, was found hours later by a truck driver just north of the now-closed International Wildlife Park. Wilson, 40, is set to die by injection after 6 p.m. Thursday. The execution will come four days after what would have been Maggie's 23rd birthday.

"I'll just be glad when it's over with," said Maggie's mother, Toni Rhodes, who lives in Grand Prairie. She plans to attend the execution. "It will be hard watching someone die. "But she was only 5 years old. She didn't have a chance to live. He did."

Wilson had two trials. His first capital murder conviction, in 1989, was overturned on appeal because a juror was wrongfully dismissed during voir dire, the process in which prospective jurors are questioned and challenged for bias. Wilson was tried and convicted again in 1994.

Jerri Sims, then a Dallas County prosecutor who worked on both trials, said authorities were even more focused on securing the death penalty the second time around.

Wilson knew how to reach Maggie because he had lived in the same apartment complex, in the 2700 block of Harriett Street, and he was friends with her baby sitter. "I don't know that it makes anything worse," Sims said. "But the fact that he had been around and watched her play, in my mind that makes it worse." Wilson's guilt was never in doubt, said Mike Bosillo, who led the investigation as an Arlington police detective.

Wilson was caught days after the killing. His fingerprints were on the broken bedroom window, according to police reports and court testimony. Maggie's hair was in the car, and his DNA was on her clothes.

Maggie's hair and blood were on the underside of the car. And a rare Korean tire from the Cougar matched a tire track on the child's body.

Several women testified at Wilson's trial that he had raped them or attempted to rape them. "And this has been going on 18 years now," said Bosillo, who is now deputy chief investigator for the Dallas County district attorney. "He's gotten a free ride. But it ends soon."

From his cell on Death Row, Wilson refused an interview request from the Star-Telegram. His attorney, Robin Norris of El Paso, said that the Texas Court of Criminal Appeals declined Monday to hear a petition alleging that Wilson had inadequate counsel at trial. Norris said Wilson has two avenues left to spare his life.

There is a clemency petition pending before the parole board, Norris said. And the Innocence Network filed a civil case on Wilson's behalf in federal court last week claiming that lethal injection is unconstitutional because it is cruel and unusual, said David Dow, a professor at the University of Houston Law Center. Human rights groups have claimed that the drugs used in lethal injection disguise excruciating pain.

The U.S. Supreme Court heard a similar case from Florida last week. The Innocence Network's claim was rejected Monday morning, but Dow said they were appealing to a higher court, hoping for a stay of execution.

Rhodes said she was asked to write a letter to the parole board, offering her view on clemency for Wilson. She said she wrote the letter in one draft. It took just a few minutes. "I just want to know that my child's death did not go unpunished. I believe he forfeited his life the day that he took Maggie's life," Rhodes wrote of "the man who took my first-born child's life for his own sick pleasure." "I'm a single mom with three jobs, and I struggle every day to have what I have," Rhodes said. "It makes me so mad that my taxes are paying to keep him alive."

Maggie had also been abducted and sexually assaulted in June 1987 but released within an hour. Investigators never found a link between that case and Wilson. News stories at the time said Maggie won a prize for best story in her kindergarten class and idolized rock star Joan Jett.

She liked pork chops and mustard sandwiches. She was buried in Minnie Mouse earrings and a blue velvet dress that she would have unwrapped Christmas morning.

When she died, she had one little brother. Now, she would have been the oldest of four children. Rhodes has two daughters, 15 and 10 years old, whom she calls blessings because they were born after Maggie died. Her son, who was sleeping in the same room with Maggie the night she was taken, is now 20.

Rhodes remembers him coming to her on the morning of Nov. 30. "He said, 'Him hit Maggie! Him hit Maggie!'" Rhodes said. "Maggie did all of his talking for him. I could never understand what he said, but she always could."

The prosecutors and investigators who worked the case -- most of whom are in different jobs now -- all remember the case vividly. Toby Shook, now chief of the Dallas County district attorney's office's felony division, was the assistant prosecutor in the second trial. He called the case "every parent's worst nightmare."

"He stole her out of her bed in the middle of the night and left her on the side of the road like a piece of trash," Shook said. "We were all dedicated to putting him on Death Row."

Sims is now the deputy criminal chief over narcotics and violent crime for the U.S. attorney's office for the Northern District of Texas. She keeps a photograph of Maggie in her desk. It's a school picture. On the back, Maggie had written her name and age.

Bosillo and Arlington police officer Jim Greenwell, who was the crime scene investigator on the case, plan to attend the execution. "I saw what that animal did to that girl," Greenwell said. "It was a nightmare. I want to see justice played out. There's no nice way to put this -- it's going to be a good day."

Rhodes has kept in touch with them, often calling on the anniversary of Maggie's death or on her birthday. "They knew her very well in death, but they didn't know her in life. I like to tell them about her," Rhodes said. "It's not just another case to them." Bosillo said he'll never forget. "At the trial, the prosecutors talked about the boogeyman -- the bad guy in her dreams," Bosillo said. "But to Maggie Rhodes he was real. And he came in the form of Jackie Barron Wilson."

ProDeathPenalty.com

Lottie Margaret Rhodes was a five-year old kindergarten student who was known as Maggie.

On the morning of November 30, 1988, Maggie's body was found face-down on the side of a road in a secluded area of Grand Prairie.

A truck driver had spotted her body in the bushes along the street. Her shorts had been pulled down, exposing her buttocks.

It was immediately apparent that she had been run over by a car. A further examination revealed that she had been both vaginally and anally raped, strangled, and suffocated.

There were tire marks on her body which reflected two distinct tire patterns. A pair of semen-stained panties were found near Maggie's body.

Investigators discovered Maggie’s identity when they learned that Maggie, who lived in an apartment complex with her mother, brother, and a live-in baby sitter, had been reportedly abducted from her bedroom the night before. The window in her bedroom had been broken from the outside.

Maggie’s mother had gotten up early to be at work by 7 am and had found that Maggie was missing after she noticed a draft in the room. Whoever kidnapped Maggie had put stuffed animals under her covers to make it appear that she was in bed asleep. The babysitter had last checked on Maggie around 2 am.

Earlier in the evening, the babysitter had cared for Maggie and her 3-year-old brother while their mother worked at a dinner until about 11:30 pm. Maggie’s mother had also checked on her daughter before going to bed around midnight.

Several pieces of glass recovered from inside and outside Maggie's bedroom had Jackie Wilson’s fingerprints on them.

Several witnesses testified that they saw Wilson driving a red spray-painted Mercury Cougar on the night of the murder, and in a statement he gave police, Wilson admitted to driving the car that evening.

The two types of tire tracks found on Maggie's body were consistent with the two types of tires on the Cougar.

Thirty-eight human hairs, which were found to be microscopically consistent with Maggie's hair, were recovered from the undercarriage of the Cougar, and fibers mixed in with those hairs were consistent with the Cougar's carpet fibers.

Nineteen additional hairs were recovered from inside the Cougar, and they were found to be consistent with Maggie's hair. A chest or pubic hair recovered from Maggie's genitalia was consistent with a racial group that includes Hispanics; Wilson is Hispanic.

Additional evidence involved a similar crime committed by Wilson the same evening that Maggie was murdered. Namely, an additional complainant from the same apartment complex testified that Wilson broke into her apartment and sexually assaulted her as she slept on the couch. When she awoke, she ordered Wilson to leave.

The complainant testified that it appeared that Wilson had entered through a window. He offered her drugs in exchange for sex; declining, she again ordered Wilson to leave, which he did.

There was also testimony from several witnesses who saw Wilson drive toward the apartment complex (instead of heading home in the other direction) just before midnight the evening of Maggie's murder. These witnesses further testified that Wilson had been drinking heavily and using cocaine before he departed.

When investigators were given Wilson’s name by another child living in the apartment complex, a police officer went to Wilson’s residence to question him. Upon the officer's arrival, Wilson fled.

Wilson was identified as a friend of the Rhodes family live in babysitter. Friends and neighbors described Maggie as bright, pretty and outgoing.

In 1987, Maggie had been kidnapped by an unknown assailant and released. Then aged 4, she had been found wandering about five miles from her home. She told police that a thin black-haired man about 19 had kidnapped her from outside her apartment in the morning of June 22, 1987.

The man released her about an hour later. Medical evidence indicated that Maggie may have been sexually assaulted in the first kidnapping, but police never apprehended the perpetrator in that case.

National Coalition to Abolish the Death Penalty

Do Not Execute Jackie Wilson!

Jackie Wilson - May 4, 2006 - Texas

Jackie Wilson, a 39-year-old Latino man, is scheduled to be executed on May 4 for the 1988 murder of Dallas County resident Lottie Margaret Rhodes. After spending the evening ingesting alcohol, cocaine, and marijuana, Wilson is alleged to have broken into Rhodes’ bedroom during the night through her window. He is said to have abducted her, after which he raped and sodomized her.

Finally, Wilson is alleged to have suffocated Rhodes before running her over with his car. Whether she died from asphyxiation or trauma from the car is uncertain.

One point that Wilson argued before the 5th Circuit Court of Appeals is the prosecution’s failure to prove his intent to murder Lottie Rhodes.

He claims that reasonable doubt exists as to why he suffocated and ran over Rhodes. What’s more, he had been consuming no less than three drugs before the abduction and he was likely impaired.

Not only might this be a mitigating circumstance in terms of forming intent to commit the abduction and rape, but it might explain how actions that Wilson did not intend to be fatal became fatal.

For instance, under the effects of the drugs Wilson might not have realized how hard he was holding his hand over Rhodes’ mouth, or his reaction time may have been so reduced as to make him unable to avoid hitting her when driving away.

Furthermore, the nature of the crime is so heinous and needlessly violent that it strongly suggests a severe mental disorder in Wilson. Granted, this may not translate to legal insanity to the extent that Wilson ought to be found not guilty, but it is the kind of mitigating factor that can make the difference between a death sentence and a life sentence.

This kind of diminished intent and mental illness will not cause Wilson’s guilty verdict to be overturned, nor are they intended to. Nevertheless, the jury instructions given in this case did include the line “Unless you find from the evidence beyond a reasonable doubt that the defendant… specifically intended to kill the victim… you cannot convict him of the offense of capital murder.” (Emphasis added.)

Additionally, a defendant as deranged as Wilson ought not to have been given the death penalty. Wilson may be guilty of murder, but we ought not to let the state put him to death.

Please write to Gov. Rick Perry on behalf of Jackie Wilson

Irving man executed for rape, murder of 5-year-old girl

By Tori Brock - Itemonline.com

CNHI News Service

Not only did convicted murder Jackie Barron Wilson not acknowledge killing 5-year-old Lottie Margaret “Maggie” Rhodes, he proclaimed his innocence in his final words. Looking at his family and friends witnessing his execution, Wilson told them to take care of themselves. “Thank you for being there for me and all these people here will find the one who did this damn crime,” he said. “I am going home to be with God.” After the lethal dose began, he looked at one point at his family and laughed, a short time later, he sputtered and died. He was pronounced dead at 6:20 p.m., eight minutes after the drugs began to flow.

Wilson, 39, was condemned the rape and murder of 5-year-old Rhodes. After breaking into her bedroom, he kidnapped her from her home in Arlington in the early morning hours of Nov. 30, 1988, then sexually assaulted the little girl before killing her. Authorities said Wilson, who lived in nearby Irving, strangled Maggie before running over her with a car.

Being allowed to say good-bye to his family was more than he deserved, according to Toni Godbee Latham, mother of the victim. Latham witnessed the execution and gave a press conference afterward. “He was able to go to sleep,” she said, her voice cracking as she fought back tears. “I didn’t see him suffer any pain or anything remotely (close) to what my daughter went through.

“He took that right away from her,” she said. “I am thankful that justice was finally carried out the way it should be. Her death has not gone unpunished.”

Rhodes’ battered body was found about five miles from her home a few hours after she was kidnapped. She was face down in a muddy ditch next to a rural road in Grand Prairie. Wilson has said he knew Rhodes but denied he kidnapped or killed her.

Next on the execution schedule is Derrick O’Brien, one of five gang members condemned for the rape-slayings of two Houston teenage girls in 1993. He is set to be executed May 16.

Man to be executed for rape, murder of 5-year-old girl

By Juan A. Lozano - Herald Democrat.com

Associated Press - May 4, 2006

HOUSTON — Dressed in Muppets pajamas with her pet puppy under her arm, 5-year-old Lottie Margaret Rhodes slept in her North Texas apartment bedroom in the early morning hours of Nov. 30, 1988, unaware of the danger just outside her window.

Fueled by a night of heavy drinking, cocaine and a failed sexual assault about an hour or so before, Jackie Barron Wilson broke into the little girl’s room and kidnapped her.

The victim, nicknamed “Maggie,” was sexually assaulted, suffocated, beaten and run over by a car. Maggie’s battered body was found a few hours later about five miles from home, face down in a muddy ditch next to a rural road in Grand Prairie. The truck driver who found the girl told authorities she looked like a doll tossed on the side of the road.

Wilson, 39, was convicted of capital murder and is set to be executed Thursday night in Huntsville. He would be the eighth prisoner put to death this year in Texas and the first of four this month in the nation’s busiest capital punishment state.

The condemned inmate was originally convicted and sentenced to death in September 1989. An appeals court overturned his conviction on a legal technicality. He was retried in June 1994 and again found guilty and returned to death row.

“It’s just a nightmare scenario of a sleeping child taken from her bed by a stranger in the dead of night and brutally murdered and left on the roadside like a piece of trash,” said Dallas County prosecutor Toby Shook. Maggie’s cause of death was strangulation and head injuries from being run over by a car.

The vast amount of forensic evidence left no doubt Wilson committed the crime, Shook said. Several pieces of glass recovered from inside and outside the girl’s bedroom had Wilson’s fingerprints.

Wilson acknowledged to authorities he drove a red Mercury Cougar on the night of the murder. The two types of tire tracks found on Maggie’s body were consistent with the two types of tires on the vehicle. Police also found human hairs both inside the car and underneath it that matched the victim.

Shook said just before Wilson kidnapped Maggie, he had broken into another apartment at the same complex and tried to sexually assault a woman. She chased him out but did not call authorities. Wilson declined a recent interview request from The Associated Press.

In a 1993 interview with the AP, Wilson said he had lived in Maggie’s apartment complex but denied kidnapping and murdering her. Authorities said Wilson, who lived in nearby Irving at the time of the slaying, had been in the girl’s apartment before because he knew her live-in baby sitter. “I’m not going to die for something I didn’t do. This is kind of hard for me to believe,” he said.

The Texas Board of Pardons and Paroles on Tuesday rejected requests to commute Wilson’s sentence to life or halt the execution.

This week, a federal judge in Houston and the 5th U.S. Circuit Court of Appeals denied a request from his attorneys to delay the execution by lethal injection because the combination of drugs constitutes cruel and unusual punishment. Wilson has appealed to the U.S. Supreme Court. Similar appeals in recent Texas death penalty cases were unsuccessful.

Robin Norris, one of Wilson’s attorneys, said his client had an extremely tough childhood, including being neglected and abused by family members and witnessing the murder of a caregiver.

Norris asked for a new punishment hearing because evidence of his client’s personal history, which might have swayed jurors from handing down a death sentence, wasn’t presented at his trials. The Texas Court of Criminal Appeals turned down the request on Monday.

Shook said Wilson’s long history of criminal violence, including raping a Lubbock woman in 1984 and stabbing an inmate while he was on death row, show the jury made the right decision. “He is just a remorseless killer,” he said.

Next on the execution schedule is Derrick O’Brien, one of five gang members condemned for the savage rape-slayings of two Houston teenage girls in 1993.

CCADP.org

Jackie Barron Wilson - Texas Death Row

Purpose: I hope to gain world-wide attention of the injustice imposed on me and my case, due to lack of Adequate Legal Representation and failure to conduct a meaningful Investigation in my Capital Case. Let me express, "I am not guilty of this crime." Please help me obtain my freedom.

Hello! I greet any and all of you in peace and prosperity !

My name is Jackie Barron Wilson, #000957, I'm on Death Row at Charles Terrell Unit in Livingston, Texas. I'm 33 years of age, never been married nor have children, arrived here on Death Row 11/21/89. I was falsely accused and according to the jury "found guilty" and was sentenced to death.

I'm supposed to be guilty of knowingly and intentionally causing the death of the victim by striking with motor vehicle as well as attempting to commit the offense of abduction. This crime was committed in Dallas County.

The conviction was based on Circumstantial Evidence. Tests were performed on my clothing and other samples, but there was no match. I'm not guilty of this crime and desperately wish to prove my innocence. However, I do not possess the qualifications or expertise in legal research to develop a proper investigation.

Also, due to total isolation and deprivation of meaningful access to Law Library priveleges (as Death Row is not allowed to physically enter the Law Library.) and trained Legal Assistance is impossible to adequetly address a claim of Insufficient Legal Representation. In addition, my indigent status prevents me from obtaining a competent (paid) lawyer.

Therefore, I have formed a Legal Defense Fund in hopes it enables me to hire an attorney that will assist me prove my innocence but without you it will be impossible to accomplish my mission. That is why I'm asking for monetary contributions. I will appreciate any contribution you can send to my defense fund from $1.00 to any amount you may be able to afford. Please include Account #004772991647 on check or money order. All monetary contributions will be used solely for Jackie B Wilson's legal costs. Receipts and any requested information regarding the use of your money will gladly be provided by contacting Ms Belcher.

Contact:
Marie Belcher
PO Box 170925
Dallas Texas 75217 USA

Please send contributions to :

Bank Of America /Jackie B Wilson Defense Fund
Acct # 004772991647
PO Box 620020
Dallas Texas 75262-0020

Thank you in advance for your generosity. However, your moral support and prayers will also be acknowledged. My interests: Reading, writing / reading poetry, painting, and drawing. I enjoy listening to a wide variety of music from Mozart to Country. I am friendly and respectful to people, their ideas and opinions. Since my life is on the hands of the State of Texas, and my time is running out, I ask that only serious people contact me by writing or sending email to : Jackwilsonmb4@yahoo.com

TEXAS DEATH ROW
FROM THE EYES AND MIND OF JACKIE WILSON

First, I feel that its of grave importance to make clear that I'm not guilty of the crime for which the State of Texas sentenced me to death. Second, let me remind you that this could happen to you. All it takes is being in the wrong place at the wrong time, especially if you are poor or a minority. I realize that there are misconceptions concerning the derath penalty issue and the living conditions at the prisons. Hopefully, by the time you finish reading this page, I will have brought awareness concerning the Death Row living conditions and the Justice System.

I have been on Death Row since 1989. Before I was accused of the crime I did not committ, my occupation was Brick Mason and Auto Mechanic. I have never been married nor have children. I enjoy reading, writing, poetry and doing calisthenics.

I enjoy reading history of my anestors, biography, and literature. However, my favorites are Archaeology, Astronomy and Fiction as well as law books. Sports: I like football, basketball and handball (allowed only to read about.) I also enjoy drawing/painting with pencil, pen and oils. I'm intelligent, have good sense of humor, friendly and respectful to people, ideas and opinions.

The living conditions here at the Charles Terrell Unit in Livingston Texas are not pleasant, contrary to what some people believe and what politicians say. At this unit most of the guards and high rank personnel treat us without respect or basic human rights.

According to them, they are always right. We are expected to follow rules or suffer the consequences, but they do not go by the rules when applying punishment, especially when sending us to Level II or III.

In these two levels we are deprived of many things. Radios, typewriters, mirrirs, shaving razors, can goods and electrical appliances (a small fan in hot weather) are not allowed in the cell. I will not mention the humiliation we experience especially when sent to these two levels.

In addition, sometimes we are kept on each level for longer than three months in total isolation. Also, opposite of what some people believe, we are not at any time allowed to play sports, purchase a television, and no longer allowed to build arts and crafts.

We are expected to recreate by ourselves with no physical contact. If allowed, we are placed inseperate recreation rooms or in outdoor wired cages for one hour. I do not understand the purpose of the deprivation since according to psychologists, "human contact is vital to maintain sanity."

The media states that a high percentage of society support the Death Penalty. If the media is correct, I hope those in support, their children or grandchildren, do not ever face the nightmare imposed on me. Please keep an open mind concerning my situation because some of us were wrongfully convicted.

Thank you for your time and God bless you.

Hello! I greet any and all of you in peace and prosperity! My name is Jackie Barron Wilson, #000957. I am a Death Row inmate here at the Charles Terrell Unit in Livingston, Texas. I am 33 years of age, arrived here on 11/21/89. I was falsely accused and according to the jury "found guilty" and sentenced to death. I am suppose to be guilty of knowingly and intentionally causing the death of the victim, by striking her with a motor vehicle and attempting to commit the offense of abduction. This crime was committed in Dallas County. The conviction was based on Circumstantial Evidence.

Tests were done on my clothing and other samples, but there was no match... Purpose: I hope to gain world-wide attention of the injustice imposed on me and my case, due to lack of Adequate Legal Representation and Investigation in my Capital Case. Let me express, "I am not guilty of this crime." Please help me obtain my freedom.

Wilson v. State, 863 S.W.2d 59 (Tex.Crim.App.1993) (Direct Appeal)

Defendant was convicted in the Criminal District Court No. 3, Dallas County, Mark Tolle, J., of capital murder, and he appealed. The Court of Criminal Appeals, Baird, J., held that: (1) finding that defendant knowingly and intentionally caused victim's death was supported by evidence; (2) finding that defendant caused victim's death in course of committing and attempting to commit kidnapping was supported by evidence; and (3) grant of state's challenge for cause on ground that prospective juror could not affirmatively answer second punishment issue solely on facts that particular offense was error. Reversed. Miller, J., concurred and filed an opinion in which Meyers, J., joined. McCormick, P.J., and White, J., dissented. Campbell, J., dissented with note.

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2).FN1 The jury returned affirmative answers to the two issues submitted pursuant to Tex.Code Crim.Proc.Ann. Art. 37.071(b). FN2 Punishment was assessed at death. Id. at (e). Appeal to this Court is automatic. Id. at (h). Appellant presents twenty points of error including a challenge to the sufficiency of the evidence.FN3 We will reverse.

FN1. Tex.Penal Code Ann. § 19.03 provides in part: (a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping ···

FN2. Appellant was convicted on September 27, 1989. However, on September 1, 1991, Tex.Code Crim.Proc.Ann. art. 37.071 was amended. All references herein will be to the statute as it appeared at the time of appellant's trial.

The first issue asked: Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

The second issue asked: Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

FN3. Appellant's brief discusses twenty-one points of error, however, the text omits an eighteenth point of error. Therefore, we will respond according to the twenty points of error as numbered in appellant's table of contents.

I. THE FACTS

A thorough review of the record is necessary to address the points of error raised by appellant. The indictment alleged in part: [Appellant] knowingly and intentionally cause[d] the death of [deceased] ··· by CAUSING THE ASPHYXIATION OF THE [Deceased] IN SOME WAY OR MANNER, AND BY MEANS, INSTRUMENTS, OR WEAPONS THE EXACT NATURE AND DESCRIPTION WHICH IS TO THE Grand Jurors unknown and by crush force injury to the [deceased] caused by striking the [deceased] with a motor vehicle and the [appellant] intentionally did cause the death of the [deceased] while the said [appellant] was in the course of committing and attempting to commit the offense of KIDNAPPING [deceased]····”

On November 30, 1988, at approximately 6:55 a.m., a truck driver spotted what appeared to be a doll to the side of a narrow two lane road in Grand Prairie.

Upon closer inspection, the driver discovered the deceased and stopped a passing school bus, whose driver then reported the discovery.

At approximately 7:00 a.m., Grand Prairie motorcycle police officer Kim Wolf arrived at the scene. Wolf described the location as an isolated area, without houses, and “not widely traveled or used.” The deceased was very cold and covered with frost.

A crime scene technician testified that the deceased was wearing a tee shirt and shorts. A pair of blood-stained panties, later identified as belonging to the deceased, was found at the scene.

The deceased was lying face down and appeared to have been run over by an automobile. Distinct tire imprints were visible across the deceased. The dirt and grass around the deceased also showed distinct tire tracks.

Dr. M.G.F. Gilliland, medical examiner at the Southwest Institute of Forensic Sciences, performed an autopsy on the deceased.

Gilliland observed injuries indicating an asphyxial injury that came about by either a compression pressure on the neck, the blocking of the nose or mouth, or some combination of the two.

Gilliland found numerous incidental injuries, all associated with strangulation or smothering. Gilliland also found what she described as “extensive breaking of the bones of the skull ··· down, through the base of the skull, which is a fairly dense bone····”

Gilliland's testimony also indicated that part of the brain was torn away and that the deceased had inhaled blood through a wound to the airway.

The deceased was covered with grease and grime. Gilliland observed tire tread marks in both the dust on the body and in the skin. Specifically, Gilliland found a tire mark with a distinctive “V” pattern on the inside of the deceased's right leg.

Along with the “V” pattern, Gilliland also found a different set of marks that had “line like,” right angled, marks. The marks appeared as a “very sharp set of marks, [forming a] very distinctive pattern” in the deceased's skin.

According to Gilliland, the deceased's vagina had extensive internal and external injuries, including “a tear up high, in the vagina, next to the neck of the womb, the cervix.”

The deceased's anus had very extensive bruising and splitting of the skin as well as evidence of tearing. There was also bleeding inside the rectum that extended up two inches.

Gilliland testified that the injuries were consistent with a grown man having anal intercourse with the deceased and might be consistent with the digital penetration of the vagina. The injuries occurred before the deceased's death.

Gilliland attributed the deceased's death to asphyxia and blunt force and crushing injuries to the head and concluded that either the asphyxia or the head injury could have caused the deceased's death. According to Gilliland, if one injury had not caused the deceased's death, the other injury would have. [p. 836].

The injuries were illustrated to the jury through photographs and diagrams. Carolyn Van Winkle, a forensic serologist from the Southwest Institute of Forensic Sciences, testified that spermatozoa were detected on the vaginal and anal swabs from the deceased even though no seminal fluid was recovered.

However, seminal fluid was recovered from the deceased's panties, but not in sufficient quantity to analyze.

Officer Jim Greenwell, a member of the crime scene search unit of the Arlington Police Department, testified that he went to the Arlington Village Apartments to investigate a report of a missing five year old girl.

The deceased lived in apartment fourteen, and, as will be discussed infra, was last seen alive in her bedroom at approximately 1:30-2:00 a.m. on November 30, 1988.

After hearing of the discovery of the deceased, Greenwell left the apartment and drove approximately twelve minutes to the deceased's location. Near the deceased, Greenwell found “acceleration marks,” described as “the transfer of burnt rubber on the grass,” just west of a blood spot.

Greenwell testified that someone driving a vehicle would have enough time and distance to maneuver their vehicle to avoid hitting the deceased. Several days after the deceased's death, the police acquired appellant's name and fingerprints.

When appellant was arrested on December 7 at an Irving apartment, police noticed a red, 1975 Mercury Cougar (hereafter referred to as “the vehicle”) at that location.

The police obtained a consent to search from the vehicle's owner, Frank Uriqueza, and impounded the vehicle. The vehicle had three Eagle G.T. tires and one Nito tire.

Upon a more thorough examination, Greenwell found the Nito tread pattern appeared consistent with the pattern on the deceased's leg and the G.T. pattern appeared consistent with the pattern on the deceased's shoulders.

Greenwell's examination of the undercarriage of the vehicle discovered hair imbedded in the grease behind the left front wheel, on the transmission housing between the two front wheels, near the left rear wheel, the rear axle, and below the driver's door.

Greenwell also found what appeared to be flesh and hair near the left rear tire. On the fender just behind the front left tire, Greenwell found what appeared to be blood.

Evidence from the undercarriage was examined, photographed, removed where possible, and submitted to the Institute of Forensic Sciences for examination and analysis. Greenwell obtained tire tread impressions from the vehicle and testified to the differences between Nito and G.T. tire treads and to the placement of the tires on the vehicle.

After examining the exterior, Greenwell systematically searched and vacuumed the interior of the vehicle. The search produced loose hairs from the front left quadrant of the interior.

The material Greenwell collected was turned over to the Institute of Forensic Sciences for analysis. Charles Linch, a trace evidence analyst with the Southwestern Institute of Forensic Sciences, testified that he received a number of evidence samples in connection with the instant case including the samples collected by Greenwell in the search of the vehicle.

For comparison purposes, Dr. Gilliland submitted a known “hair standard” from the deceased. Linch compared the various hair and fiber samples with the known hair standard. Linch concluded that the hair samples from the vehicle came from the deceased. Additionally, carpet fibers from inside the vehicle and a hair from deceased were found in a sample from the vehicle's undercarriage.

Linch agreed that such a finding was consistent “with the head hair of [deceased] coming into contact at some point in time, with those [carpet] fibers inside the vehicle.”

Max Courtney, an expert in tire tread comparisons and impressions, testified concerning the vehicle's tread marks. Courtney examined the tires on the vehicle and compared their tread patterns with photographs of the tire tread impressions on the deceased.

Courtney concluded that the Nito tire impression on deceased's leg shared “a correspondence of class characteristics” with the Nito tire tread pattern on the vehicle. Additionally, all “observable class characteristics” of the vehicle's Eagle G.T. tires matched the impressions on the deceased's shoulders.

Class characteristics, those identifying features common to all tires of that class, were preserved in the deceased's skin.

However, the deceased's body was not conducive to the preservation of “individual characteristics,” which would identify which particular tire of a given class actually caused the injuries.

Frank Uriqueza, the vehicle's owner, testified that he bought three Eagle G.T. tires for the vehicle and those tires had been on the vehicle for two months prior to the search of the vehicle.

Uriqueza testified that appellant borrowed the vehicle on November 29, 1988, and returned the vehicle and awakened Uriqueza shortly before 4:40 a.m. on November 30, 1988.

Uriqueza got out of bed and asked appellant where the vehicle was parked. Appellant responded that the vehicle was parked in a different place than usual.

The deceased's mother came home from work about 11:20 p.m. on November 29, 1988. Both of her children slept in one bedroom. Joe Martinez, the live-in babysitter, slept on the couch in the living room. At midnight, the deceased was asleep in bed.

The deceased's mother testified that the temperature was warm in the deceased's bedroom, indicating that the window immediately above the deceased's bed was closed.

The deceased's mother further testified that the window in the children's room had a lock at the top of the window that she had installed herself in addition to the regular lock at the bottom of the window. Additionally, the apartment complex had repaired the window in the children's bedroom one month prior to the deceased's death.

The deceased's mother had cleaned the deceased's bedroom before going to work on November 29, and had noticed that the window was locked. The window had no screen.

Early on November 30, Martinez and two friends were outside the apartment near the deceased's window. The deceased's mother talked to Martinez and friends for a “couple of minutes” through her bedroom window and then saw them leave through a gate. The deceased's mother went to sleep sometime after 1:25 or 1:30 a.m. after telling Martinez to come inside.

After the deceased's mother awoke at 8:00 a.m., she felt a cold draft coming from the children's bedroom, went in to locate the draft, and realized the deceased was missing.

The deceased's mother noticed that the window pane by the deceased's bed was broken. The curtains were torn and “messed up.” When she and Martinez could not find the deceased, she called the Arlington Police Department.

Arlington police detective Mike Bosillo arrived at the apartment at 8:40 a.m. and noticed the opened, broken window pane and bent curtain rod above the deceased's bed. While at the apartment, Bosillo learned that a young girl's body had been found in Grand Prairie.

Bosillo carried a photograph of the deceased to Grand Prairie, nine miles from the deceased's apartment in Arlington, and identified the body as the deceased. Arlington Police crime scene search officer Glenn Cole examined the deceased's apartment for evidence.

The examination revealed fingerprints on several pieces of broken glass from the bedroom window. Cole found a patent fingerprint on a piece of glass under a doll beneath the bed covers.FN4

Cole testified the window was broken from the outside. Outside the deceased's window, Cole collected a piece of weather stripping pulled from the window and found fingerprints on several pieces of glass.

FN4. A “patent” fingerprint is one apparent to the naked eye without need for developing. A “latent” print is one that must be treated to become visible.

Cole compared the recovered fingerprints to known fingerprints of appellant and matched the fingerprint on the glass found in the deceased's bed to appellant. Cole also matched fingerprints from two other pieces of glass to appellant.

On a piece of glass found outside, Cole determined that appellant's thumb print appeared on one side of the fragment and the appellant's index and middle fingerprints appeared on the other side of the same fragment.

Cole testified that the evidence was consistent with appellant breaking out a portion of the window, placing his thumb on one side of a piece of broken glass and his second and third fingers on the other side of the same piece of glass, and lifting the glass out of the window.

Along with the broken glass, police also recovered five blood samples from the apartment area. Cole collected three suspected blood samples from the window sill in the deceased's bedroom and one from the wall by the deceased's bed. Cole recovered a fifth blood sample from the outside window sill.

Cole submitted the samples for analysis, however, the Institute determined the samples were too small to fully analyze. Van Winkle, the Institute serologist, testified that examination of the samples confirmed human blood, but could not reveal any person's identity.

An eleven-year-old witness testified that in June, 1988, appellant and the deceased attended a birthday party at the apartment complex.

During the party, appellant stroked the deceased's hair and commented on how pretty the deceased's hair was.

Martinez, the deceased's babysitter, testified that appellant had lived in the apartment complex previously.

According to Martinez, the deceased avoided appellant when appellant was around the apartment. Martinez last saw appellant in the complex on Halloween, 1988, approximately one month before the deceased's death.

Martinez testified that the deceased's mother returned home from work on November 29 at about 11:30 p.m. Around 11:50, the deceased was asleep in her bed. Martinez left the apartment.

When Martinez returned at approximately 2:00 a.m., he noticed that the deceased was uncovered. Martinez covered the deceased and noticed that the window above the deceased's bed was closed and locked.

Antonio Lopez testified that appellant and Victor Herrera arrived at Lopez's apartment on November 29 with a twelve pack of beer and a bottle of Seagram's liquor. Lopez testified that appellant and Herrera arrived in the vehicle. Lopez saw appellant ingest one line of cocaine.

Appellant told Lopez that the vehicle was a “fast car” before appellant “peeled out” of the parking lot. Lopez observed the smoke caused by the vehicle's spinning tires at approximately 10:45 p.m. as appellant and Herrera drove away. Appellant was driving the vehicle.

Carol Gonzales testified that appellant and Herrera arrived at her apartment at approximately 11:00 p.m. on November 29 with beer and Seagram's. Gonzales requested that appellant leave after appellant became angry and got into an argument with a friend of Gonzales. Appellant told Gonzales that he did not feel welcome, and left some time between midnight and 1:00 a.m.

Appellant “peeled out” when leaving in the vehicle. Able Loya worked at an Arlington gas station approximately one mile from Gonzales' apartment and was working his regular shift, from 4:00 p.m. to midnight, on November 29.

Loya was still at the station at approximately 12:30 a.m. on November 30 when appellant and Herrera drove into the station.

Loya remembered seeing the vehicle before and observed that appellant was driving the car when it pulled into the station. Loya had also seen appellant driving the vehicle on prior occasions.

Appellant got out of the car and pumped $2.00 worth of gas. Loya talked to appellant briefly and accepted payment for the gas. Appellant also gave Loya a beer.

Victor Herrera testified that he was with appellant on November 29, and that at about 6:30 p.m., appellant asked Herrera if he wanted to buy some cocaine. Appellant was aware that Herrera was carrying $110.00.

The two purchased cocaine from a friend of appellant's and ingested some. Herrera and appellant had used cocaine and other drugs on previous occasions.

On January 4, 1989, police obtained a warrant to search appellant's apartment for specific articles of clothing. At trial, Herrera identified an exhibit as the sweatshirt worn by appellant on the night of November 29, 1988, and described appellant's pants.

However, the described pants were not discovered in the search of appellant's apartment. Herrera also identified the vehicle in which Herrera and appellant travelled on November 29.

Herrera testified that appellant was the person driving the vehicle on the night of November 29 and the morning of November 30.

Appellant and Herrera bought beer and Seagram's at a liquor store. While waiting for Tony Lopez to arrive home, the two drank beer and liquor and ingested three or four lines of cocaine.

After Lopez arrived, the trio continued drinking and ingesting cocaine and marijuana until about 10:30 p.m. Herrera requested that appellant take him home and the two left.

However, appellant took Herrera to Gonzales' apartment. Herrera again wanted to leave and go home because he was bored and did not know any of appellant's friends.

After leaving the apartment, the pair stopped by a gas station and then appellant took Herrera home. Herrera returned home at 12:20 a.m.

Susan Jennings, one of the deceased's neighbors, testified that appellant and two companions came to her apartment some time after 1:00 a.m. on November 30. A neighbor visiting Jennings left after appellant appeared.

Appellant and his companions chatted in Jennings's apartment for a few minutes before Jennings asked them to leave. Jennings locked the door behind the trio, but did not check her window which she knew was locked before appellant arrived. After appellant left, Jennings laid down fully clothed on her couch and went to sleep.

Jennings awakened when she realized someone was fondling her. At first, Jennings thought it was her husband, but when she awakened from her “groggy” state, she recognized appellant and started screaming.

Jennings noticed that her window was up. Appellant began claiming that Jennings had let him in. Jennings became more irate and ordered appellant out of the apartment.

Appellant offered Jennings some “speed” in return for sexual favors. Jennings again ordered appellant out of her apartment and noticed that appellant headed in the direction of deceased's apartment. Jennings was unaware of any other incident until the next morning, when the Arlington police came to her door to inquire about Jennings' knowledge of the missing deceased.

II. SUFFICIENCY OF THE EVIDENCE

In points of error one, two and thirteen, appellant contends the evidence is insufficient: a) to show that he knowingly and intentionally caused the death of the deceased; b) to show that he caused the death in the course of committing and attempting to commit kidnapping; and c) to support an affirmative finding to the first punishment issue.FN5

FN5. Appellant's first point of error states: The evidence is insufficient to establish that appellant knowingly and intentionally caused the death of the decedent. Appellant's second point of error states: The evidence is insufficient to establish that appellant caused the death of the decedent while appellant was in the course of committing and attempting to commit the offense of kidnapping. Appellant's thirteenth point of error states: The evidence was insufficient to support the jury's finding as to the first special issue.

To determine the sufficiency of the evidence, appellate courts must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316-319, 99 S.Ct. 2781, 2783-2788, 61 L.Ed.2d 560 (1974); Butler v. State, 769 S.W.2d 234, 239 (Tex.Cr.App.1989).

Cases based on circumstantial evidence are reviewed under the same standard as direct evidence cases. Butler, 769 S.W.2d at 238; Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983).

If the reviewing court finds a reasonable hypothesis other than the guilt of the accused, the reviewing court cannot say that the guilt was proven beyond a reasonable doubt. Willis v. State, 785 S.W.2d 378, 380 (Tex.Cr.App.1989) (and cases cited therein).

However, as we said in Carlsen: It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis is a reasonable one consistent with the circumstances and the facts proved. [citations omitted.]

Each fact need not point directly and independently to the guilt of the accused, as the cumulative effect of all the incriminating facts may be sufficient to support the evidence. [citations omitted.] However, proof which amounts only to a strong suspicion or mere probability is insufficient. [Emphasis added.] FN6

FN6. We are using the Carlsen standard because this case was tried prior to our decision in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991). Carlsen, 654 S.W.2d at 447.

Finally, in reviewing the sufficiency of the evidence, an appellate court's role is not to reweigh the evidence as the thirteenth juror. Blankenship v. State, 780 S.W.2d 198, 207 (Tex.Cr.App.1990) (op. on reh'g.).

A. Knowingly and Intentionally Cause The Death

The evidence clearly establishes that appellant drove the vehicle from the night of November 29, 1988, until shortly before 4:40 a.m. on November 30, 1988, within the time frame of the deceased's disappearance and death.

Appellant was in the deceased's apartment complex some time after 1:00 a.m. on November 30, when Jennings threw appellant out of her apartment. Jennings last saw appellant heading towards the deceased's apartment. The deceased was last seen safely in her bed as late as 2:00 a.m. on November 30, 1988.

The evidence demonstrates that appellant broke the deceased's bedroom window leaving his fingerprints on various pieces of glass, including one found in the deceased's bed. The carpet fiber and hair comparisons establish that the deceased was inside the vehicle.

The evidence shows the person driving the vehicle would have had enough time and distance to avoid running over the deceased. Gilliland testified that the deceased's death was caused by either asphyxiation or blunt trauma to the head, or both.

The hair samples from the undercarriage of the vehicle and the vehicle's two different tire imprints found on the deceased establish that the deceased was struck by the vehicle.

The only reasonable hypothesis from the record before us is that appellant knowingly and intentionally ran over the deceased with the vehicle causing the blunt trauma which resulted in the deceased's death.

After viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. 307, 316-319, 99 S.Ct. 2781, 2787-2788, 61 L.Ed.2d 560 (1974); Butler, 769 S.W.2d 234, 239 (Tex.Cr.App.1989). Indeed, we find that a rational trier of fact could not have found another hypothesis consistent with the facts proved. Appellant's first point of error is overruled.

B. The Kidnapping

Appellant's second point of error contends the evidence is insufficient to demonstrate that the deceased died while appellant was in the course of committing or attempting to commit the offense of kidnapping.

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. Tex.Penal Code Ann. § 20.03(a). “Abduct” means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or, (B) using or threatening to use deadly force. Tex.Penal Code Ann. § 20.01(2). “Restrain” means to restrict a person's movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Tex.Penal Code Ann. § 20.01(1). Restraint is without consent if it is accomplished by: (A) force, intimidation, or deception; or, (B) any means, including acquiescence of the victim, if he is a child less than fourteen years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement. Tex.Penal Code Ann. § 20.01(1).

The law imposes no minimum requirement for restraint other than that the interference with the person's liberty be substantial. Rogers v. State, 687 S.W.2d 337, 342 (Tex.Cr.App.1985).

Where a defendant forcibly drives another person to various parts of a city and keeps that person isolated with intent to prevent liberation by anyone who might be capable of helping the person, abduction is proven.

In such a situation, the claim that the person was not secreted or held in a place where the person was not likely to be found is of no importance. Fann v. State, 696 S.W.2d 575 (Tex.Cr.App.1985). [6]

We hold that the evidence in the case at bar is sufficient to establish that appellant kidnapped the deceased.

The evidence establishes that appellant abducted the deceased by intentionally restraining her in a place where she was not likely to be found, namely by taking her from her bedroom in Arlington to an isolated area of Grand Prairie.

The deceased could not consent to the restraint because she was under the age of fourteen and the deceased's mother did not consent to appellant taking the deceased from the apartment. See, Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991).

The only reasonable hypothesis from the record is that appellant removed the deceased from her bedroom and drove the deceased to the isolated area of Grand Prairie where her body was later discovered.

When viewed in the light most favorable to the verdict, we find the evidence sufficient to establish beyond a reasonable doubt that appellant caused the death of the deceased while in the course of committing and attempting to commit the offense of kidnapping. Jackson, 443 U.S. 307, 316-319, 99 S.Ct. 2781, 2787-2788, 61 L.Ed.2d 560 (1974); Butler, 769 S.W.2d 234, 239 (Tex.Cr.App.1989). Therefore, appellant's second point of error is overruled.

C. The First Punishment Issue

The first punishment issue under Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) asks: Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; Both appellant and the State rely primarily on their arguments in the first point of error.

As noted in part I. of this opinion, Dr. Gilliland observed an asphyxial injury that was caused by either a compression pressure on the neck, the blocking of the nose or mouth, or some combination of the two.

Gilliland also found numerous injuries associated with strangulation or smothering. Furthermore, the deceased suffered extensive breaking of the bones of the skull, down through the base of the skull.

According to Gilliland the deceased's death was caused by either the asphyxia or the head injury. If one injury had not caused death, the other injury would have. In short, the record reveals the defendant inflicted injuries sufficient to cause the death in either of two ways.

He caused the death by smothering the deceased and running over her with the vehicle. When viewed in the light most favorable to the jury's answer to the first punishment issue, we find the evidence sufficient to establish beyond a reasonable doubt that appellant's conduct in causing the death was committed deliberately and with the expectation that the death of the deceased would occur. See, Milton v. State, 599 S.W.2d 824 (Tex.Cr.App.1980). Appellant's thirteenth point of error is overruled.

III. VENIRE MEMBER LEWIS

Appellant's contends, in his fourteenth point of error, that the trial judge erred in granting the State's challenge for cause to venire member Boyd Lewis.FN7 During its voir dire examination, the State inquired whether Lewis could answer the second punishment issue affirmatively based solely on the facts of the case before him: FN7.

Specifically, appellant's Fourteenth Point of Error states: The trial court erred in granting the State's challenge to juror Boyd Lewis for cause where there was no showing that the juror would be biased against the law that the State was entitled to rely on.

STATE: ··· The law contemplates that a juror could answer that question yes, based just on the facts of the crime itself, the one he's on trial for. In other words, that a jury could learn enough about an individual from that one period of time there that he's on trial for to answer that question yes. In other words, how he acted, the type of victim he chose, how unnecessarily violent or cruel was the killing, how he acted afterwards. Do you think that can be done; or would you think that you would have to see some kind of prior track record or history, as you say, to answer that? How would you feel about that, if all the evidence you had were just the facts of the offense itself? LEWIS: No, I don't think so. I couldn't come to a conclusion. STATE: Okay. You would have to know how a person lived their life up until that point and then, as you said, even afterwards? LEWIS: Yes. STATE: Okay. You know, its possible-And the law contemplates this also. -that you could have a defendant found guilty of capital murder that had no prior bad acts at all, had been a choir boy up until then···· Let's say you heard about a horrible crime, the facts were very bad, but you were to hear during punishment from either the State or the defense that the defendant had never been in trouble before, there's no one to come in and tell you he's got a bad reputation. If you didn't hear anything like that and even though the facts of the crime itself were very bad, do you think that you could never answer that question yes? Or tell me what-how you feel about that? LEWIS: You're talking about Question Number 2; right? STATE: Yes, sir. LEWIS: Okay. An act of violence-of criminal violence, with just the act itself- STATE: Yes, sir. LEWIS: -and proven that it was committed, you can come to a conclusion, yes or no. Yes. STATE: Okay. So, you think you could answer that question. If the person had no prior history, or no prior criminal record or bad acts, you could base your answer and answer it yes in some circumstances on just the facts of the case itself, just the facts you had heard about the killing in question. LEWIS: You could answer the question, but you-it's a decision you would have to make. You can't-And you could be wrong or you could be right because you cannot-Well, I could not say that because an individual committed a crime once that they would do it again; so, I-I couldn't answer it. It would just be a judgment. Both the judge and the State continued this line of questioning. Lewis restated he could, with evidence additional to the facts of the instant case, affirmatively answer the second issue. The State inquired further: STATE: What I'm wanting to know is would you always require-before you could ever answer that second question yes, would the State have to bring you some type of prior history or criminal record of the defendant for you to answer it yes? LEWIS: And after the-the criminal offense had been committed. I cannot say that someone would be a continuing threat to society····

* * * * * *

STATE: ··· Do you think that you could say-or answer that question that there's a probability that he'll constitute a continuing threat to society if you had the facts of the case and you also had a prior history, like you knew he had been in trouble before? Are there some situations that you believe that question-you could answer that question? LEWIS: Yes. Yes. Lewis later stated he could affirmatively answer the second issue if the State provided sufficient evidence “without a reasonable doubt,” that appellant was guilty and capable of committing other acts of violence against society. [2353]

After the conclusion of Lewis' voir dire, the State challenged Lewis for cause because he could not answer the second issue solely based upon the circumstances of the offense before him. The State argued: ··· He stated he could never answer that question-we could never prove to him to his satisfaction that he would be a-that the defendant would be a future danger and continuing threat unless we brought to him prior-in fact, he stated prior history and then history after the offense, that he could never answer that question based on the facts and circumstances alone.

* * * * * *

··· That's what he's going to require as proof. Obviously, if we prove that to him and give him that type of evidence he can answer it yes, but up until then he will-he says he cannot answer that question. Although the State failed to articulate a legal basis for the challenge at the time of the voir dire examination, the State now contends the challenge was proper under Tex.Code Crim.Proc.Ann. art. 35.16. Art. 35.16 provides, in part: (b) A challenge for cause may be made by the State for any of the following reasons: 3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. Appellant's attorney objected to the State's challenge for cause. The trial judge overruled the objection and Lewis was excused.

B.

Appellant contends Lewis specifically stated that he could consider evidence of appellant's continuing threat to society and could, with sufficient evidence, answer the second issue affirmatively.

Appellant further contends while a jury may consider the evidence of the instant offense sufficient to affirmatively answer the second issue, the law does not require that the juror must consider the evidence of the offense sufficient without hearing additional testimony.

The State contends the trial judge properly granted the State's challenge for cause because Lewis could never answer the issue affirmatively based only on the facts of the case.

The State contends they are entitled to rely on law that holds that the second issue can be proved based on the facts of the charged offense alone. Substantial case law allows the facts of a particular capital case, if “severe enough,” to support an affirmative jury verdict on the second punishment issue. Garrett v. State, 851 S.W.2d 853, 859 (Tex.Cr.App.1993), and cases cited therein. However, there is no requirement that an individual juror answer the second issue affirmatively solely on the facts of that particular offense. Id. ··· [T]hat the law permits jurors to find future dangerousness in some cases on the facts of the offense alone does not mean that all jurors must do so, or even consider doing so.

A particular juror's understanding of proof beyond a reasonable doubt may lead him to require more than the legal threshold of sufficient evidence to answer the second special issue affirmatively···· [A]n individual juror must determine what proof beyond a reasonable doubt means to him, for the law does not tell him. Id., at 859.

··· That an individual venireman would set his threshold of reasonable doubt higher than the minimum required to sustain a jury verdict does not indicate he has a bias or prejudice against the law. Id., at 860. [9] As we recently held in Garrett, a venireman is not subject to challenge for cause because he believed, under the reasonable doubt standard, evidence in addition to the offense before him was needed to answer the second punishment issue affirmatively. Garrett, at 860. Error in granting a State's challenge for cause in a capital case is reversible.

It is irrelevant whether the State had peremptory challenges remaining at the conclusion of the voir dire. Grihalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981), Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986). Garrett, at 861.

Finding the disposition of this case controlled by Garrett, the judgment is reversed and the cause is remanded to the trial court. McCORMICK, P.J., and WHITE, J., dissent. CAMPBELL, J., dissents for the reasons stated in his dissenting opinion in Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993).

*****

MILLER, Judge, concurring.

I agree with the majority opinion that the fourteenth point of error in this cause is governed by our recent pronouncement in Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993), motion for reh'g denied. This cause is factually indistinguishable from Garrett, and thus the legal result the same. I therefore join the majority opinion. I write separately to articulate my reasoning on this point.

In Garrett, the State challenged for cause a prospective juror who stated he could not answer affirmatively the second punishment issue based on the facts of the capital offense alone. The trial judge granted the State's challenge, which ruling the defendant objected to at trial and challenged on appeal.

On direct appeal, the State relied upon case law from this Court FN1 addressing the sufficiency of the evidence to support the jury's affirmative answer to the second punishment issue and held that the facts of the offense, if severe enough, will support a jury's affirmative answer on this issue.

The Court noted that this is an appellate standard of review, the minimum legal threshold of sufficient evidence to answer the second punishment issue, and it was not error for a prospective juror to require more evidence than that in his understanding of proof beyond a reasonable doubt. Id., at p. 859.

Thus, the Court held the trial judge reversibly erred in granting the State's challenge for cause. After reconsidering the Garrett opinion in the cause at bar, I am convinced its reasoning is sound. FN1. See Garrett, at p. 859, n. 3, 4.

Our interpretation of Texas' sentencing statute recognizes that more evidence than the mere facts of the offense may be necessary for the State to prove beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

The “facts of the offense” is the minimum amount of evidence the State must present to legally obtain an affirmative answer to the second special issue. A juror does not evidence a bias against the law upon which the State is entitled to rely merely because he would require more than the minimum amount of evidence.FN2

As the juror in this cause and in Garrett indicated, they could consider the death penalty as an appropriate punishment for one convicted of capital murder but they needed more evidence than just the facts of the case to determine that the convicted defendant deserved the death penalty.

These prospective jurors did not reveal an inability to follow the law and their oath. Neither did their viewpoint of when the death penalty would be appropriate punishment substantially impair their ability to serve as jurors in a capital case. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

The juror who requires more evidence than the facts of the offense in order to answer special issue # 2 affirmatively does not show an inability to consider the entire range of punishment (life or death) in the capital case; this type juror just needs more evidence to make a reasoned decision regarding the ultimate penalty. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

FN2. At the punishment phase of a capital murder trial, the State (and the defendant) may present evidence “as to any matter that the court deems relevant to sentence[.]” Art. 37.071, § 2, V.A.C.C.P. This evidence may include the prior criminal record of the defendant, his general reputation, his character, psychiatric testimony, etc.

The State may, however, choose not to introduce any evidence at punishment but merely re-offer its evidence from guilt/innocence. In my view, a venireperson who would require evidence that falls outside the realm of evidence that the State generally is allowed to bring (i.e. that the defendant testify or that matters privileged under Article V of the Rules of Criminal Evidence be introduced) probably does evidence a bias against the law upon which the State is entitled to rely.

The same is true where a venireperson requires evidence that constitutes another crime, e.g., where the venireperson requires in a Penal Code § 19.03(a)(2) capital murder case that the State show a serial killing as contemplated by § 19.03(a)(6).

The State is not entitled to a death sentence upon the defendant's conviction for capital murder. Nor is the State entitled to twelve jurors who would only require the legal, minimum quantum of evidence for assessment of the death penalty.FN3

The State is only entitled to jurors who can consider the entire range of punishment in an appropriate case, and the jurors' concept of an appropriate case may encompass evidence that the State is permitted to introduce at trial, such as prior criminal record, character evidence, etc.

Neither the juror in this case nor in Garrett expressed during his voir dire examination an inability to assess the death penalty per se; each merely expressed his opinion that a person who commits capital murder does not, without more, merit a finding that he will be a continuing threat to society as contemplated by special issue # 2. I find no bias against the law on the part of these prospective jurors; indeed, I believe that they would be thoughtful, conscientious jurors.

FN3. The State may, however, peremptorily strike those prospective jurors who could give the death penalty (i.e. answer the punishment issues affirmatively) but only on a greater quantum of proof. With these comments, I join the majority opinion.

MEYERS, J., joins this opinion.

Wilson v. Cockrell, Not Reported in F.Supp.2d, 2002 WL 32590134(N.D.Tex.,2002) (Habeas)

BUCHMEYER, J.
r making an independent review of the pleadings, files and records in this case, and the findings, conclusions and recommendation of the United States Magistrate Judge, the Court finds that the findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and conclusions of the Court. Petitioner's objections to the findings and conclusions of the Magistrate Judge are overruled.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

STICKNEY, Magistrate J.

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:

I. NATURE OF THE CASE

A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.

II. PARTIES

Petitioner, Jackie Barron Wilson, is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is the Director of TDCJ-ID.

III. PROCEDURAL HISTORY

A jury convicted Petitioner of capital murder, and his punishment was assessed at death by lethal injection. State v. Wilson, Cause No. F89-96282-J (Criminal District Court No. 3 of Dallas County, Tex. June 14, 1994).

The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the conviction and death sentence in an unpublished opinion. Wilson v. State, No. 71,947 (Tex.Crim.App. Feb. 12, 1997), cert. denied,522 U.S. 829 (1997).

Petitioner subsequently filed a state application for writ of habeas corpus on June 2, 1997.

The Court of Criminal Appeals denied relief in a written order, based upon the trial court's findings of fact and conclusions of law and its own review of the record. Ex parte Wilson, No. 40,438-01 (Tex.Crim.App. March 31, 1999).

Petitioner filed his initial federal petition for writ of habeas corpus on January 11, 2000, and a supplemental brief on April 28, 2000. Respondent filed an answer and motion for summary judgment on September 25, 2000, and furnished the state court records, and Petitioner filed a reply brief on November 14, 2000.

IV. RULE 5 STATEMENT

Respondent states that Petitioner has exhausted all of his state court remedies.

V. ISSUES

In eight claims for relief, Petitioner raises the following six allegations: A. Petitioner's conviction and sentence violate the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution because the parties agreed to excuse most minorities from the jury panel over Petitioner's objection; B. The evidence is insufficient to support Petitioner's capital murder conviction; C. The evidence is insufficient to support Petitioner's death sentence because the evidence is insufficient to support the jury's finding that he deliberately killed the victim; D. Petitioner was denied effective assistance of counsel at trial in violation of the Sixth Amendment to the U.S. Constitution; E. Petitioner was denied effective assistance of counsel on appeal in violation of the Sixth Amendment to the U.S. Constitution; and F. Petitioner's constitutional rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution were violated because the jury was not informed about Petitioner's parole eligibility if given a life sentence.

Moreover, Petitioner argues that he is entitled to an evidentiary hearing in this court with respect to his first ground for relief.

* * *

VII. FACTUAL BACKGROUND

The evidence presented at trial established that the victim, five-year-old Lottie Maggie Rhodes (“Maggie”), was kidnapped from her bedroom in the middle of the night, sexually assaulted, strangled, and run over by a car.

Her body was found in a field in a remote area of Dallas County early in the morning of November 30, 1988, by a truck driver who was driving by on a nearby road. (R. 77:14-18, 35).

Petitioner knew the victim as he had lived until recently in the same apartment complex as the victim's family and was a friend of the victim's live-in babysitter, Joe Martinez. (R. 77:122-27; 78:437-42).

Petitioner's fingerprints were found on pieces of glass found both inside and outside of the victim's broken bedroom window. (R. 78:291-93, 306, 331-36).

The two tire tracks on the victim's body matched two distinct types of tires that were on the car that Petitioner was seen driving and that Petitioner himself acknowledged driving the night before and early morning of the murder. (R. 79:498, 505, 562, 580, 709, 742-43; 81: 971-74, 1039-47, 1134-38, 1144-49).

Hair found on the undercarriage of the car had the same characteristics as the victim's hair, and carpet fibers from underneath the car matched those from the carpet inside of the car. (R. 82:1183-89, 1202-03).

Finally, DNA testing on seminal fluid found on the victim revealed that 1 in 2083 Hispanic males shared the DNA characteristics found on the anal swab and that Petitioner could not be excluded as the contributor of this DNA. (R. 82:1255-62).

VIII. EXAMINATION OF THE ISSUES - A. Voir Dire

In his first ground for relief, Petitioner claims that his rights under the Fourteenth Amendment were violated by an agreement between the prosecution and the defense to exclude the majority of minority veniremembers from the jury.

Respondent argues in response that Petitioner is procedurally barred from raising this issue because he did not object at trial, that Petitioner does not have standing to assert a violation of the constitutional rights of the excused minority jurors, and that Petitioner has failed to prove that any jurors were excused on the basis of their race.

Relevant Facts

The record before this Court, as evidenced by the pleadings filed in state habeas court, their supporting exhibits, and the record of the trial itself, indicates that the defense counsel and prosecutors in the instant case entered into various agreements to exclude certain potential jurors from the jury panel either before the jurors were individually questioned by the attorneys in the voir dire process or during the individual questioning of the jurors.

With both his state habeas application and his federal habeas petition, Petitioner has submitted as exhibits two affidavits from law school students who examined all of the questionnaires that were completed by potential jurors that were called and reported for jury service in this case as well as the record of the trial.

These two individuals swear in their affidavits, and their statements have not been contradicted by either the State at the state level or Respondent before this Court, that copies of the jury questionnaires were provided to them by one of Petitioner's trial attorneys, and that there were 840 individuals who comprised the venire in the instant case, 166 of whom listed their race as black or African-American on their questionnaires, forty who listed themselves as Hispanic, ten who indicated that they were members of another minority group, and twenty people who did not indicate their race on their questionnaires.

These two individuals further state in their sworn affidavits that the State and the defense agreed to excuse 775 of the 840 people in the venire, that 211 of the 216 minority members of the venire were excused by agreement, rather than peremptorily struck or successfully challenged for cause, that the State removed the remaining two African-Americans by way of peremptory challenges, that the State further successfully challenged for cause one of the three remaining Hispanics on the panel, and that defense counsel successfully challenged for cause the final two remaining Hispanic veniremembers for cause. Thus, the jury that decided Petitioner's case was an all-white jury. (Petition, exhibits A & B).

As exhibits filed along with its response to the state habeas application, the State submitted affidavits from all three prosecutors in the case, one of the two defense attorneys, and the trial judge who presided over the voir dire process. All of these people state that they were unaware of any agreement between the parties to excuse people from the jury panel on the basis of race.

The two prosecutors who primarily conducted the voir dire process on behalf of the State both state in their sworn affidavits that the 775 people who were excused from the jury panel were excused because of their beliefs about the death penalty as evidenced in their answers to certain questions in the questionnaire or because of other answers given, not on the basis of their race.

These two people explain in their affidavits that the two parties would have conferences in which they would agree to excuse both “State-minded” and “defense-minded” jurors as evidenced by their beliefs about the death penalty, to trade other jurors based on answers given to other questions posed in the questionnaires, and to question some jurors. Both of the prosecutors who participated in the voir dire process swear that these excusals were all based on the jurors' answers to questions on the questionnaires, not on the jurors' races. (SHTr.:231-35).

Defense attorney Doug Parks states in his affidavit that neither he nor his co-counsel Wayne Huff ever conspired with the State's attorneys or the trial judge to discriminate against the veniremembers on the basis of race and that all decisions regarding voir dire matters were made with Petitioner's advice and consent. (SHTr.:242-43).

Finally, both the lead prosecutor in the case and the trial judge who presided over the voir dire process state in their affidavits that they did not collude to excuse any veniremembers on the basis of race and were unaware of any such agreement. Judge John Bradshaw, the presiding judge during the voir dire process, further states in his sworn affidavit that he would not have tolerated or condoned any such agreement. (SHTr.:237-41).

* * *

B. Sufficiency of Evidence-Guilt

In his second ground for relief, Petitioner asserts that the evidence is insufficient to support his guilty verdict. Specifically, Petitioner argues that the evidence presented at trial is insufficient to prove that Petitioner committed capital murder because the evidence is insufficient to prove that Petitioner actually intended to kill the victim by either asphyxiating her or by running her over with a car when he choked her and ran over her with a car.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court enunciated the standard of review when a state prisoner challenges the sufficiency of the evidence in a federal habeas corpus proceeding.

The Court defined the issue to be, “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 320. In applying this standard, all of the evidence is to be considered in the light most favorable to the prosecution. Id.

The Supreme Court went further to state that, “[t]his familiar standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. And, this Court must give great weight to the state courts' determinations that the evidence was sufficient to support the jury's verdict. Parker v. Procunier, 763 F.2d 665 (5th Cir.1985), cert. denied,474 U.S. 855, 106 S.Ct. 159, 88 L.Ed.2d 132 (1985).

Petitioner contends that, although all of the evidence presented by the State is consistent with its theory that Petitioner intended to kill Maggie Rhodes, the evidence is not legally sufficient to prove Petitioner's intent to kill the victim because “[a]ny number of other scenarios are equally plausible given the State's evidence.” (Petition at 36).

Petitioner suggests that he may have smothered Maggie with his hand in an effort to quiet her while he sexually assaulted her, but did not intend to kill her, and he may have run her over with the car in an effort to leave the scene quickly but again without the intent to kill her. (Petitioner at 37).

Contrary to this argument, however, under the Jackson standard, a federal habeas court may find sufficient evidence to support a conviction even though the facts may also support another reasonable hypothesis consistent with a claim of innocence. Gibson v. Collins, 947 F.2d 780, 783 (5th Cir.1991).

In the instant case, there was evidence presented through the testimony of the medical examiner that the victim had a fatal head injury, that there were tire tracks across her the back of her shoulder and one of her legs, that she was run over while she was lying down on her stomach, and that she was alive when she was run over by a car. (R. 80:818-24).

The medical examiner also testified that the victim was strangled because there were hemorrhages at her eyelids, there were mouth injuries including a split lip, and there was bruising inside of the neck. (R. 80:825-26).

The medical examiner could not, however, determine whether the victim was smothered with someone's hands or with a pillow or some other object. (R. 80:828). But, the medical examiner testified that the injuries from both the strangulation and the car were fatal on their own. (R. 80:818-19, 878).

There was also testimony presented that a truck driver discovered the victim's body at 6 A.M. on November 30, 1988, in a field by an isolated road with little or no traffic and that there was frost on her body, indicating that she had been there for some time. (R. 77:15, 33-5, 68).

Through photographs and a diagram admitted into evidence at trial, it was established that the victim's body was found approximately nine feet south of the nearby road, Oakdale, and that the tire burn caused by the back tires on the car Petitioner was driving was twenty-eight feet and nine inches west of the location of the victim's body. (R. 87:State's ex. # 1, 3, 6, 7, 8, 37).

Finally, there was evidence presented that the victim was anally raped, that the DNA evidence extracted from the sexual assault kit matched Petitioner's DNA blood test, and that Petitioner knew the victim as he had recently lived in the apartment complex in which she lived and was a friend of her babysitter. (R. 77:122-27; 78:437-42; 82:1255-62).

The jury in Petitioner's case was instructed that, in order to find Petitioner guilty of capital murder, the jury had to find beyond a reasonable doubt that, in the course of committing or attempting to commit the offense of kidnapping, Petitioner caused the death of the victim by asphyxiating her or by striking her with a motor vehicle and that he specifically intended to kill her when he asphyxiated her or struck her with a motor vehicle. (Tr.:29).

Viewing the evidence presented at trial in the light most favorable to the jury's verdict, as is required under the Jackson v. Virginia standard, any rational jury could have found beyond a reasonable doubt that Petitioner, when he kidnapped a girl who knew him in the middle of the night from her home, anally raped her either before or after he took her to a remote location with little or no traffic, suffocated her so severely that the suffocation in and of itself was fatal, placed her in a grassy field several feet from the nearest road either before or after suffocating her, and ran her over with a car parked several feet from her body in such a manner that the vehicle left tire marks on both her shoulder and her leg and caused a fatal wound to her head, intended for her to die either by suffocation or by being hit by his car.

On direct appeal, the Court of Criminal Appeals held that the evidence is legally sufficient to prove that Petitioner intended to kill Maggie Rhodes either by strangulation or running her over with a car. Wilson, slip op. at 2. This is not an unreasonable application of the Jackson v. Virginia standard. Accordingly, Petitioner's second ground for relief is without merit, and it is recommended that it be denied.

C. Sufficiency of Evidence-Punishment

In his third ground for relief, Petitioner contends that his federal constitutional rights under the Fourteenth Amendment have been violated because the evidence does not support the jury's finding at the punishment phase of the trial that he killed the victim deliberately.

Specifically, Petitioner asserts that, even if the evidence is deemed legally sufficient to support his conviction for the intentional murder during the course of a kidnapping, there is insufficient evidence to sustain the jury's determination that he not only intentionally killed the victim, but also killed her in a deliberate manner. FN2 Respondent contends that Petitioner is procedurally barred from raising this issue, that this issue is not cognizable on federal habeas review, and that at any rate Petitioner's claim is without merit.

FN2. Pursuant to state law, the jury in Petitioner's case was required to answer the following three questions at the punishment phase of the trial: Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result? Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, is there a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? (Tr.:46). SeeTex.Code Crim. Proc. Ann. art. 37.0711 § 3(b)(e) (Vernon Supp.1993).

The jury in this case answered the first two questions “yes” and the third “no,” thereby assessing a death sentence. In this ground for relief, Petitioner alleges that the evidence is legally insufficient to support the jury's unanimous “yes” answer to the first question.

Respondent initially asserts that Petitioner is procedurally barred from raising this issue because the state habeas court decided this claim on an independent and adequate state procedural ground.

The state habeas court, before denying this claim on its merits, concluded that Petitioner was procedurally barred from raising this issue on state habeas review because it was not, and should have been, raised on direct appeal, and because a sufficiency of the evidence claim was not cognizable at the state habeas level. (SHTr.:323).

A federal habeas court is precluded from addressing a claim made by a state prisoner when a state court decided the claim on an independent and adequate state procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

To satisfy the independent and adequate requirements, the dismissal of a claim must “clearly and expressly” indicate that it rests on state grounds which bar relief, and the bar must be strictly and regularly followed by state courts and applied to the majority of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001), citing Amos v.. Scott, 61 F.3d 333, 338-39 (5th Cir.1995).

Petitioner does not argue that the state habeas court failed to clearly and expressly state that its decision rested on a state ground that barred relief, but Petitioner does contend that Texas does not strictly and regularly follow the state procedural ground and contends instead that Texas does not have a “well-settled” procedural default rule regarding federal constitutional claims not raised on direct appeal. (Petitioner's Reply at 13).

But, contrary to this argument, the Fifth Circuit has held that Texas' procedural bar against raising legal sufficiency arguments at the state habeas level and its requirement instead that such claims be raised, if at all, on direct appeal is an independent and adequate state procedural ground. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir.1996); Renz v. Scott, 28 F.3d 431, 432 (5th Cir.1994).

This Court is, of course, bound by Fifth Circuit precedent holding that the procedural ground on which the state habeas court relied is an independent and adequate ground.

Accordingly, unless Petitioner can establish both cause for failing to raise this issue on direct appeal in state court and prejudice as a result of the alleged violation of federal law or establish that a fundamental miscarriage of justice would occur if this Court did not address the merits of Petitioner's third ground for relief, federal habeas review of this claim is barred. Coleman v. Thompson, 501 U.S. at 750.

Petitioner has failed to allege, much less argue, that either cause and prejudice for his procedural default has been shown or that a fundamental miscarriage of justice will occur if this Court does not address Petitioner's claim that the evidence is insufficient to support the jury's answer to the first punishment special issue. Accordingly, Petitioner is procedurally barred from obtaining federal habeas relief based on this claim.

Moreover, even if Petitioner had not defaulted this claim, it is without merit.FN3 When the Fifth Circuit has analyzed a claim that the evidence is insufficient to support a death sentence because the evidence is insufficient to establish that a defendant killed a victim deliberately, the Court has noted that, in order to prove that a murder was committed deliberately, the State is not required to prove that a capital murder defendant carefully weighed, considered, or studied the situation immediately before killing the victim, but instead there must be a “moment of deliberation and determination on the part of the actor to kill.”

Moreover, this determination “must necessarily be found from the totality of the circumstances.” Johnson v. Collins, 964 F.2d 1527, 1530-1 (5th Cir.1992), citing Cannon v. State, 691 S.W.2d 664, 677 (Tex.Crim.App.1985); see also Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir.1999).

FN3. Respondent further argues that a claim that the evidence to support a death sentence is legally insufficient is not constitutionally required and therefore not cognizable on federal habeas review. When the Fifth Circuit was most recently confronted with this argument, the Court noted that it had, on several occasions, addressed the legal sufficiency of the evidence supporting a death sentence.

The Fifth Circuit then assumed, without deciding, that such a claim was cognizable on federal habeas corpus review and preceded to address a claim that the evidence was not legally sufficient to support a jury's finding that the murder was committed deliberately. Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir.1999). Following the Fifth Circuit's lead, this Court will also assume that such a claim is a cognizable one on federal habeas review.

When the state habeas court decided the merits of this claim, that court, citing state cases that speak about the time and effort required to strangle someone to death, concluded that the evidence was legally sufficient to support the jury's unanimous finding that Petitioner deliberately caused the victim's death. (SHTr.:325).

This is not an unreasonable application of the Jackson v. Virginia standard. The sole basis for Petitioner's argument is that, because the evidence is insufficient to establish that he intentionally killed the victim, and deliberately means something more than intentional, see Nichols v. State, 754 S.W.2d 185, 201 (Tex.Crim.App.1988), the evidence is therefore insufficient to prove that he deliberately killed the victim. (Petition at 42).

But, as this Court found earlier, the state court's determination that the evidence is sufficient to support a conviction for capital murder is not an unreasonable application of federal law. And, from the evidence presented at trial any reasonable jury could have concluded beyond a reasonable doubt not only that Petitioner intentionally killed Maggie Rhodes, but that he also deliberately caused her death.

The medical examiner testified at trial that the victim, when hit by the car, tumbled underneath the car for a time, that during that time her shoulder and back were run over by a tire of a car, as was her leg, and that she was lying down when she was struck. (R. 80:818-23).

The medical examiner further testified that the victim's skull was crushed and the brain was torn. (R. 80:825). From this testimony, any reasonable jury could conclude beyond a reasonable doubt that Petitioner ran over the victim with his car in a deliberate manner, such that her skull was crushed and this caused her death.

Moreover, as noted by the state habeas court, to kill someone, even a child, by strangling her takes both time and effort. Given that Petitioner not only took the time to suffocate the victim to death but also ran over her with his car such that she sustained injuries from the car ranging from the fatal injury to her head to the tire track visible on her leg, when the jury verdict is viewed in the light most favorable to the verdict, the evidence is sufficient to support the jury's finding that Petitioner deliberately killed the victim. Petitioner's third ground for relief is without merit, and it is recommended that it be denied.

* * *

RECOMMENDATION

Petitioner has failed to make a substantial showing of the denial of a federal right. The state court adjudication on the merits neither resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Petitioner's petition for a writ of habeas corpus should be DENIED. N.D.Tex.,2002.

Wilson v. Cockrell, 75 Fed.Appx. 983 (5th Cir. 2003) (Habeas)

After federal habeas relief was denied Texas state prisoner Jackie Barron Wilson, concerning a Texas capital murder conviction for which he received a death sentence, the district court declined to grant him a Certificate of Appealability (COA). See28 U.S.C. § 2253(c).

Accordingly, Wilson seeks a COA from this court, asking that we certify five issues for appeal: (1) whether the district court erred in not conducting an evidentiary hearing to determine whether agreed-prospective-juror excusals, pursuant to Texas law, violated the Equal Protection Clause of the Fourteenth Amendment and (2) whether such agreed conduct violated that clause; (3) whether the evidence was legally sufficient to show specific intent to cause death; and (4) at trial and (5) on appeal, whether Wilson received ineffective assistance of counsel. Each COA request is DENIED. I.

Early on the morning of 30 November 1988, the body of a five-year-old girl was found in a remote area. She had been kidnapped from her bedroom earlier that morning; sexually assaulted (including anally-raped and some form of vaginal penetration); asphyxiated (smothered or strangled); and run over by an automobile.

Around 8:00 a.m. that day, the victim's mother discovered her daughter was missing. The window above the child's bed was raised and the glass pane broken.

The medical examiner determined that the cause of death could be attributed to: a major crush-force injury to the head, caused by the tire of an automobile running over it; and asphyxiation from smothering or strangulation. Either was sufficient to cause her death. Bruising indicated the victim was still alive both when sexually-assaulted and when run over by the vehicle.

Wilson knew the victim. He had recently lived in the apartment complex (the apartments) where the victim lived with her mother, brother, and live-in babysitter. Wilson was an acquaintance of both the mother and the babysitter. (Wilson was not living at the apartments at the time of the murder.)

On 29 November, the evening prior to the victim's death, Wilson consumed alcohol, marijuana, and cocaine.

Later that evening, Wilson was seen driving an automobile in the direction of, and was placed at, the apartments, including in one of them, after midnight (early morning of 30 November; the victim was found later that morning).

Wilson's fingerprints were found on both sides of pieces of glass from the victim's broken bedroom window. Tire tracks on the victim's body matched two distinct types of tires that were on the automobile Wilson admitted to driving the night before, and early morning of, the murder.

Hair found on the undercarriage of the vehicle and inside it had the same characteristics as the victim's hair, and carpet fibers from underneath the automobile matched those from the carpet inside it. Wilson, a Hispanic male, could not be excluded as the contributor of DNA found on the victim (one in 2083 Hispanic males shared characteristics of DNA found on anal swab).

A chest or pubic hair recovered from the victim's genital area was determined to be Mongoloid, a racial group that includes Hispanics.

Wilson was convicted on 27 September 1989 of murder in the course of a kidnapping, a capital offense under Texas Penal Code § 19.03(a)(2); he was sentenced to death.

The Texas Court of Criminal Appeals reversed the conviction and remanded the case for a new trial. Wilson v. State, 863 S.W.2d 59 (Tex.Crim.App.1993) (State's challenge-for-cause of venire member constituted reversible error).

At the remand trial in 1994, Wilson was again convicted and sentenced to death. The Court of Criminal Appeals affirmed. Wilson v. State, No. 71,947 (Tex.Crim.App. 13 Feb.), cert. denied,522 U.S. 829, 118 S.Ct. 93, 139 L.Ed.2d 49 (1997). Wilson filed a state habeas application in June 1997.

The next February, finding no controverted, previously unresolved facts, the convicting court entered an order, inter alia, denying Wilson an evidentiary hearing; that September (1998), it adopted the State's proposed findings of fact and conclusions of law in their entirety.

The Court of Criminal Appeals, adopting the convicting court's recommended findings and conclusions, denied relief. Ex Parte Wilson, No. 40,438-01 (Tex.Crim.App. 31 Mar. 1999).

Wilson filed for 28 U.S.C. § 2254 federal habeas relief in January 2000. Following the State's moving for summary judgment, the matter was referred to a magistrate judge, who submitted an extremely comprehensive report, with a recommended denial of habeas relief. Wilson v. Cockrell, No. 3:99-CV-809, Findings, Conclusions, and Recommendation of the Magistrate Judge (N.D. Tex. 31 July 2002) (Magistrate Judge's Report).

The district court adopted that report and denied relief. Wilson v. Cockrell, No. 3:99-CV-809, Order Adopting Findings, Conclusions, and Recommendation of U.S. Magistrate Judge (N.D. Tex. 25 Sept. 2002). In December 2002, the district court denied Wilson's COA request.

* * *

Wilson next requests a COA for whether the evidence was legally sufficient to show specific intent to cause death; such intent must be proved beyond a reasonable doubt for a capital murder conviction.

The evidence at trial demonstrated, inter alia: the victim was kidnapped from her bedroom and viciously raped; the victim knew (and could identify) Wilson, because he had lived in the apartments, was an acquaintance of the victim's mother and babysitter, and at a birthday party earlier that year, had touched the victim's hair and spoken to her (causing her to jerk away); the cause of death was both asphyxiation and a major crush force injury to the head, caused by an automobile tire running over it; the victim was found in a remote, secluded area; the asphyxiation and major crush force injury were “fairly close together in time”; the body was directly in front of the vehicle prior to being run over; the rear tires of the vehicle left an acceleration mark approximately 29 feet from a pool of blood (where the victim's head was located), in a direct line with the victim's body; and the police believed that, from this distance, the driver would have had ample time to avoid an object.

Wilson contends the evidence was not legally sufficient to prove his intent to kill the victim because, given the evidence, any number of other scenarios are equally plausible.

He notes that the State was unable to prove the exact circumstances surrounding the death and suggests he may have smothered the victim with his hand in an effort to quiet her while he sexually assaulted her (but did not intend to kill her) and may have run over her with his automobile in an effort to leave the scene quickly (again, without intent to kill her).

Wilson first raised this claim on direct appeal. Applying Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (establishing standard for sufficiency), the Court of Criminal Appeals, viewing the evidence “in the [requisite] light most favorable to the verdict”, had “no trouble concluding that any rational trier of fact could conclude beyond a reasonable doubt that [Wilson] intentionally caused the death of the victim either by strangulation or running over the victim with [an automobile]”. Wilson, No. 71,947 at 1-2.

Wilson raised the same issue in his state habeas proceeding. The Court of Criminal Appeals determined, as a matter of law, that, because it had already considered and rejected this issue on direct appeal, Wilson was procedurally barred from raising it in his state habeas application. Nevertheless, it likewise determined, as a matter of law, that the evidence was legally sufficient on the issue of intent.

The district court noted that, “under the Jackson standard, a federal habeas court may find sufficient evidence to support a conviction even though the facts may also support another reasonable hypothesis consistent with a claim of innocence”. See Magistrate Judge's Report at 16 (citing Gibson v. Collins, 947 F.2d 780, 783 (5th Cir.1991), cert. denied,506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992)). It determined, under that standard:

[A]ny rational jury could have found beyond a reasonable doubt that [Wilson], when he kidnapped a girl who knew him in the middle of the night from her home, anally raped her either before or after he took her to a remote location with little or no traffic, suffocated her so severely that the suffocation in and of itself was fatal, placed her in a grassy field several feet from the nearest road either before or after suffocating her, and ran her over with a car parked several feet from her body in such a manner that the vehicle left tire marks on both her shoulder and her leg and caused a fatal wound to her head, intended for her to die either by suffocation or by being hit by his car. Id. at 17-18.

Observing that the Court of Criminal Appeals, on direct appeal, had held the evidence legally sufficient on intent to kill, the district court concluded this was not an unreasonable application of the Jackson standard. See id. at 18.

Wilson contends the district court failed to address his contention that, when the circumstantial evidence is “ambiguous” with respect to the applicable culpable mental state, rather than in conflict ( i.e., where there is circumstantial evidence to support more than one inference), and the State presents no further circumstantial evidence that, if credited, would resolve the ambiguity, due process will not tolerate a capital conviction. He contends the State failed in its burden of production on the issue of intent, as well as in its overall burden of proof.

Again, the State need not disprove every hypothesis, so long as it produces evidence that allows a reasonable jury to infer the elements of a crime beyond a reasonable doubt. See, e.g., Gibson, 947 F.2d at 783. Jackson instructs that “a federal habeas court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”. 443 U.S. at 326.

Wilson offers no legal theory or factual basis to support a distinction between “conflicting” and “ambiguous” evidence. Jurists of reason would not debate the district court's determination that the Court of Criminal Appeals reasonably applied Jackson.

In other words, reasonable jurists would agree with the district court's determination that the Court of Criminal Appeals was reasonable in determining that the evidence, viewed in the light most favorable to the conviction, was sufficient to allow a reasonable juror to find, beyond a reasonable doubt, the requisite intent to kill.

* * *

On direct appeal, the Court of Criminal Appeals held the trial court erred at the guilt phase by admitting evidence of Wilson's extraneous misconduct on the night of the offense.

Specifically, it held erroneous the admission of the testimony of an adult resident of the apartments that Wilson broke into her apartment that night through a window, began to fondle her, and offered her drugs in exchange for sex. It held this admission was violative of Rule 404(b) of the former Texas Rules of Criminal Evidence. Wilson, No. 71, 947 at 33-37. Nevertheless, it concluded that other substantial evidence supported the conviction and held the error was harmless beyond a reasonable doubt under Tex.R.App. P. 81(b)(2). Id.

Wilson's counsel did not seek rehearing following this appellate ruling. Wilson bases ineffective assistance of counsel on counsel's not doing so. (The State maintains Wilson had no constitutional right to the assistance of counsel for such rehearing request; we assume arguendo that he did.)

Wilson contends that, when conducting this harm analysis on direct appeal, the Court of Criminal Appeals mischaracterized the other evidence presented by the State and these mischaracterizations led to that court's conclusion that such other evidence was more substantial than it was.

The claimed misstatements were: (1) Wilson gave a written confession-instead, he gave a written statement but did not confess to the crime; (2) Wilson's blood and fingerprints were found inside and outside the victim's bedroom window-instead, the victim's blood was found in the bedroom along with Wilson's fingerprints on the inside and outside of the window; (3) there were two distinct sets of tires-instead, there were three tires of one type and one of another; (4) hair, blood, and tissue samples from the undercarriage of the vehicle were matched to the victim-instead, hair and hair pieces found were consistent with the victim's hair; and (5) the victim was strangled-instead, asphyxiation could have been due to either smothering or strangulation. See id. at 36-37.

Therefore, Wilson claims: a properly conducted harm analysis may have yielded a determination that the extraneous misconduct error was not harmless (resulting in a new trial); and, accordingly, appellate counsel was ineffective by failing, through a request for rehearing, to bring these distortions to the attention of the appellate court.

On state habeas review, the Court of Criminal Appeals concluded that Wilson failed to establish a valid Strickland claim. It determined there was no deficient performance: Wilson received meaningful appellate review (appellate brief presenting 45 points of error, motion to supplement record, supplemental brief with additional points of error, and petition for writ of certiorari with the Supreme Court of the United States); appellate counsel submitted a credible affidavit stating that, although the harm analysis did contain a few inaccuracies, he made a reasoned judgment that they were not significant enough to change the outcome of the appeal (especially because the Court of Criminal Appeals had heard the appeal twice and was familiar with the facts), so he focused instead on the certiorari petition; and the alleged mischaracterizations were reasonable deductions from the evidence, such that a motion for rehearing would have been an exercise in futility.

The Court of Criminal Appeals also determined Wilson had suffered no prejudice because he had failed to show a different outcome would have resulted had appellate counsel requested rehearing.

The district court determined that the performance by Wilson's appellate counsel was not deficient and that Wilson did not suffer prejudice from the alleged omission. See Magistrate Judge's Report at 36-40. According to the district court, Wilson failed to show the strategy described in his counsel's affidavit was not reasonable. See id. at 36-37.

In addition, he failed to establish a reasonable probability that the result would have differed had these inaccuracies been brought to the attention of the Court of Criminal Appeals by a rehearing request. See id. at 37.

The district court noted that, even when the misstatements were corrected, overwhelming evidence of guilt remained. See id. at 37-39. Therefore, it concluded that the state habeas court's application of both prongs of Strickland was reasonable. See id. at 36.

Reasonable jurists would agree that the district court was correct in holding that the Court of Criminal Appeals' application of Strickland was reasonable.

In other words, they would not debate whether appellate counsel rendered deficient performance by not seeking rehearing, nor would they debate whether not seeking rehearing caused prejudice to Wilson.

For the foregoing reasons, the COA requests are DENIED.

Jackie Barron Wilson

The victim

Lottie Margaret Rhodes, 7.