Summary:

Wyatt lived at the home of his girlfriend, Renee Porter, and her 3 year old son Damien. Wyatt babysat Damien after taking Porter to work.

At about 6:07 p.m., Texarkana police received a 9-1-1 call from Wyatt, asking for an ambulance for an accidental drowning victim. When emergency personnel arrived, Damien had no pulse and was not breathing. Damien was then taken immediately to a nearby hospital. He was pronounced dead at 7:24 p.m.

The medical examiner concluded that Damien was smothered to death. In a statement to authorities, Wyatt stated that he sexually assaulted the boy. Then, believing that Damien had placed something in a light socket, he whipped Damien with a belt. When Damien began screaming, Wyatt placed a plastic bag over the child’s face until he stopped screaming.

Citations:

Wyatt v. Dretke, 165 Fed.Appx. 335 (5th Cir. 2006) (Habeas)
Wyatt v. State, 23 S.W.3d 18 (Tex.Cr.App. 2000) (Direct Appeal)

Final/Special Meal:

Declined.

Final Words:

"I went home to be with my father, and I went home as a trooper. Then he addressed his victim's father and grandmother, who watched through a window a few feet from him. "I did not murder your son. I did not do it. I just want you to know that. I did not murder Damien, and I would ask for all of your forgiveness, and I will see all of you soon.''

ClarkProsecutor.org

Texas Department of Corrections

Inmate: William E. Wyatt, Jr.
Date of Birth: 12/20/1964
TDCJ#: 999255
Date Received: 2/19/1998
Education: 12 years
Occupation: corrections officer
Date of Offense: 2/4/97
County of Offense: Bowie
Native County: Detroit, Michigan
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Green
Height: 6 ft 01 in
Weight: 250

Texas Attorney General

MEDIA ADVISORY

Monday, July 31, 2006 - William Wyatt Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about William E. Wyatt, Jr., who is scheduled to be executed after 6 p.m. Thursday, August 3, 2006. Wyatt was convicted and sentenced to death for the capital murder of three-year-old Damien Willis. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

At the time of the murder, Damien and his mother, Renee Porter, were living with William Wyatt in Bowie County. On February 4, 1997, Wyatt was babysitting Damien after taking the boy’s mother to work.

At about 6:07 p.m., Texarkana police received a 9-1-1 call from Wyatt, asking for an ambulance for an accidental drowning victim. When emergency personnel arrived, Damien had no pulse and was not breathing. Damien was then taken immediately to a nearby hospital. He was pronounced dead at 7:24 p.m. The medical examiner concluded that Damien was smothered to death.

In a statement to authorities, Wyatt stated that he sexually assaulted the boy. Then, believing that Damien had placed something in a light socket, he whipped Damien with a belt. When Damien began screaming, Wyatt placed a plastic bag over the child’s face until he stopped screaming.

PROCEDURAL HISTORY

• March 5, 1997 — A Bowie County grand jury indicted Wyatt for capital murder for killing Damien Willis.

• February 13, 1998 — A jury found Wyatt guilty of capital murder and after a separate punishment hearing was sentenced to death.

• March 3, 2000 — Wyatt’s conviction and death sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.

• June 21, 2000 — Wyatt filed an application for writ of habeas corpus in the state trial court.

• March 28, 2001 — The Texas Court of Criminal Appeals denied habeas relief.

• April 2, 2002 — Wyatt filed a petition for writ of habeas corpus in the U. S. District Court for the Eastern District of Texas, Tyler Division.

• December 8, 2003 — The federal district court denied habeas relief on all but two of Wyatt’s claims. An evidentiary hearing was ordered.

• August 20, 2004 — An evidentiary hearing was held in the federal district court.

• October 18, 2004 — The federal district court denied habeas relief on the remaining two claims.

• January 31, 2006 — The 5th U.S. Circuit Court of Appeals affirmed the District Court’s denial of habeas relief.

• May 31, 2006 — Wyatt sought certiorari review and a stay of execution in the U.S. Supreme Court.

• February 21, 2006 — The trial court entered an order setting the execution date for August 3, 2006.

PRIOR CRIMINAL HISTORY

Wyatt has no prior criminal history. However, during the punishment phase of trial, two psychologists described Wyatt as a “psychopathic manipulator” whose conduct would likely continue, making him a future danger. One of the psychologists said that while it is difficult to predict the future dangerousness of someone with a non-violent past, once a person commits a violent act, the propensity to commit more violent acts in the future becomes high.

In addition, Renee Porter described her relationship with Wyatt. She detailed the rape she suffered at Wyatt’s hands in June 1996. She also explained how Wyatt limited the time she could spend with her family and controlled her relationship with Damien and that Wyatt apparently did not like the affection she showed her son.

Wyatt executed for raping, smothering child

By Michael Graczyk - Houston Chronicle

Associated Press - Aug. 3, 2006

HUNTSVILLE — Proclaiming his innocence, a former county jail officer described at his capital murder trial as a sexual sadist was put to death today for raping and smothering the 3-year-old son of his girlfriend.

In a brief final statement, William Wyatt Jr. thanked relatives for their support. "I went home to be with my father, and I went home as a trooper,'' he told them. Then he addressed his victim's father and grandmother, who watched through a window a few feet from him. "I did not murder your son,'' Wyatt said. `I did not do it. I just wan you to know that. I did not murder Damien, and I would ask for all of your forgiveness, and I will see all of you soon.''

Eight minutes later, at 6:20 p.m. CDT, he was pronounced dead.

Wyatt, 41, said he might have been irresponsible in leaving little Damien Willis alone to drown in the bathtub of his Texarkana home 9½ years ago, but didn't kill the toddler. Evidence, however, showed the boy did not drown and Wyatt's own confession after the child's Feb. 4, 1997, death, tied him to the slaying. Wyatt contended his statements to police were coerced.

Wyatt, who worked as a jailer in Bowie County, was the 17th prisoner put to death this year in Texas, the nation's most active capital punishment state. Three other condemned Texas prisoners are scheduled to die this month and are among at least nine convicted killers with execution dates through the end of the year.

Texas executes former jailer for child's murder

Reuters News

Aug 3, 2006

HUNTSVILLE, Texas (Reuters) - A former jailer was executed by lethal injection on Thursday for the 1997 murder of his girlfriend's 3-year-old son.

William Wyatt Jr., 41, was condemned for holding a plastic bag over Damien Willis' head until the boy suffocated in a Texarkana, Texas, apartment on February 4, 1997. Prosecutors said Wyatt, then an officer at the county jail in Texarkana, murdered Willis to cover up a brutal sexual assault on the boy. Wyatt originally said Willis accidentally drowned in the bathtub. Days after being arrested, he confessed to the assault and the murder. Wyatt has since claimed his confession was coerced and that he is only guilty of not watching Willis carefully while he was in the bathtub.

On Thursday, in a final statement while strapped to a gurney in the death chamber, Wyatt thanked his family and then protested his innocence. "I would also like to say to Damien's family, I did not murder your son," he said. "I did not do it. I just want you to know that. I did not murder Damien and I would ask for all of your forgiveness and I will see all you soon."

Wyatt was the 17th person executed in Texas this year and the 372nd 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, totals that lead the nation.

Wyatt did not request a final meal.

Texas has nine executions scheduled for the rest of 2006, with three of those set for August.

Ex-jailer executed for smothering, raping Texarkana boy

By Michael Graczyk - Fort Worth Star Telegram

Associated Press - Aug. 04, 2006

HUNTSVILLE, Texas - Condemned inmate William Wyatt Jr. asked for forgiveness in the moments before he was executed for the slaying of a 3-year-old boy but insisted repeatedly from the Texas death chamber gurney that he didn't kill the child. "I did not murder your son," Wyatt, 41, told the father and grandmother of little Damien Willis as they watched him Thursday evening through a window as he received lethal injection. "I did not do it. "I just want you to know that."

Then he continued, asking "for all of your forgiveness and I will see all of you soon." He also thanked his relatives for their support. Eight minutes later, he was pronounced dead.

Wyatt was sentenced to die for raping and smothering the son of his girlfriend at their home in Texarkana 9 1/2 years ago. The child's relatives, accompanied by Bowie County District Attorney Bobby Lockhart, declined to speak with reporters after the execution, the 17th this year in Texas, the nation's busiest capital punishment state.

Wyatt had said in a recent death row interview with The Associated Press that he may have been responsible for the drowning because he left the child alone in a bathtub on Feb. 4, 1997. But Wyatt, who was caring for the child while his girlfriend was at work, echoed the sentiment he expressed Thursday, saying he didn't kill the boy. "He was kind of my son," Wyatt said. "That's how I looked at it. I wouldn't hurt him, or anybody. Period." He pointed out that he summoned emergency medical help after discovering the child unconscious in the tub.

Evidence, however, showed the toddler didn't drown but was smothered. Authorities also determined the boy had been sexually assaulted, both in the past and just before he died. Prosecutors theorized he made up the drowning story to cover up the rape and smothering.

The execution came about two hours after the U.S. Supreme Court rejected an appeal that sought to block the punishment.

A prosecution psychologist testified at Wyatt's capital murder trial the former Bowie County jailer was a sexual sadist who enjoyed inflicting pain.

Wyatt, a Detroit native known to his fellow death row inmates as "Motown," also gave police a statement acknowledging raping and smothering the boy. Wyatt argued his statements - and he gave three over three days following his arrest - were coerced by authorities.

In his first statement after his arrest, Wyatt said he found the child under water. A day later, he acknowledged not telling the truth and said he sodomized the boy before putting him in the tub. Then the following day, he changed his story again, blaming something he saw on television for prompting him to sexually assault the child and telling police of beating and smothering the boy with a plastic bag. "I felt threatened," Wyatt said, explaining his confessions.

Wyatt was arrested after physicians determined the child likely had been the victim of repeated sexual assaults. "One of the pediatricians testified it was the worst case of child abuse he'd seen," Michael Shepherd, the Bowie County district attorney who prosecuted Wyatt, said this week.

Three more executions are scheduled for this month in Texas. Next, on Aug. 17, is Richard Hinojosa, 44, condemned for the 1994 abduction and slaying of a Bexar County woman.

State puts ex-jailer to death for murder

By Brian Lacy - Hunstville Item

August 4, 2006

William Wyatt proclaimed his innocence and asked for forgiveness in the same sentence Thursday evening before being executed inside the Huntsville “Walls” Unit. Wyatt was sentenced to death eight years ago for the 1997 murder of 3-year-old Damien Willis in Texarkana.

In his final statement, Wyatt thanked his friends and family for their support. “I went home to be with my father, and I went home a trooper,” he said. He then professed his innocence to members of his victim’s family. “I did not murder your son. I did not do it,” Wyatt said. “I just want you to know that — I did not murder Damien, and I would ask for all your forgiveness and I will see all of you soon.”

A few moments after he was finished talking, Wyatt drew a deep breath and waited for the lethal dose of drugs to set in. When it did, he sputtered once and took several slow breaths before he quietly stopped breathing. He was pronounced dead seven minutes later at 6:20 p.m.

Wyatt, 41, said he may have been irresponsible in leaving little Damien Willis alone to drown in the bathtub of his Texarkana home 9 1/2 years ago, but didn’t kill the toddler. Evidence, however, showed the boy did not drown and Wyatt’s own confession after the child’s Feb. 4, 1997, death, tied him to the slaying. Wyatt contended his statements to police were coerced.

In a statement to authorities — his third version of events in the three days following his arrest — Wyatt acknowledged sexually assaulting the boy. In the first of his three statements, Wyatt said he found the child under water. A day later, he acknowledged sodomizing the boy before putting him in the tub. Then the following day, he blamed something he saw on television for prompting him to sexually assault the child and told police of beating and smothering the boy with a plastic bag.

“I felt threatened,” Wyatt said in a recent death row interview. “When they told me I was charged with killing a kid, it was like a bad nightmare. I felt helpless.” Wyatt, a Detroit native known to fellow inmates on death row as “Motown,” was watching the 3-year-old while his mother — Wyatt’s girlfriend — was at work. Wyatt was arrested after physicians determined the child likely had been the victim of repeated sexual assaults.

Michael Shepherd, the Bowie County district attorney who prosecuted Wyatt, said this week he believed the last sexual attack was so brutal it couldn’t be hidden, so Wyatt “concocted the idea of smothering the child and set up the fake drowning,” Shepherd said.

During the punishment phase of Wyatt’s trial, two psychologists described him as a psychopathic manipulator. The child’s mother testified she had been raped by Wyatt. A prosecution psychologist testified Wyatt was “a sexual sadist and presented himself as an individual that relished in not only the sexual part of it, but also with giving of pain to a victim,” Shepherd said.

Wyatt, who worked as a jailer in Bowie County, was the 17th prisoner put to death this year in Texas.

Wyatt still set to die today for boy’s death

Texas AG’s office not filing more appeals

By Lisa Bose McDermott - Texarkana Gazette

August 3, 2006

Bowie County Assistant District Attorney Michael Shepherd wants to see justice done for an area toddler’s family. Shepherd, who prosecuted Texas death row inmate William E. Wyatt Jr., is hopeful that there will be no last-minute challenges to Wyatt’s date with death by lethal injection at 6 tonight.

Wyatt repeatedly raped 3-year-old Damien Willis and smothered him by placing a plastic bag over the baby’s face, then called 911 with a fake drowning call. At the time of the crime, Wyatt was 32, 6-foot-1 and 250 pounds, while Damien weighed a mere 35 pounds.

“The last contact that I had with the Attorney General’s Office earlier this week, they had indicated that the last information that they had received was that they had no intention to file any more last-minute appeals at this point,” Shepherd said. But last-minute challenges are known to happen. The U.S. Supreme Court has been known to intervene in some cases.

Wyatt and his legal team can ask Gov. Rick Perry to stay the execution. Another option is asking for an emergency stay by the U.S. Supreme Court. Shepherd said he is not sure Wyatt would be successful even if he tried. “I’ve watched how the last three cases set for executions have gone,” Shepherd said. But he admits the Bowie County District Attorney’s office is a tad skittish because of the Delma Banks case. “I’ve watched how the last three cases set for executions have gone,” Shepherd said. But he admits the Bowie County District Attorney’s office is a tad skittish because of the Delma Banks case.

Just 10 minutes before Banks’ scheduled execution in 2003, the U.S. Supreme Court stepped in. Banks case was tried in Bowie County. Banks, on death row for 25 years, was convicted of robbing and killing a 16-year-old. He was sentenced to death in October 1980, and that sentence was overturned in February 2004.

Shepherd, who has established a deep bond with the Willis family, said he is not attending Wyatt’s execution. Bowie County District Attorney Bobby Lockhart will be at the execution with Damien’s father, David Willis, his paternal grandmother, Johnnie Willis, and his aunt Gwen Montgomery. This is Lockhart’s first witness of a Bowie County execution since he was elected district attorney.

Renee Porter, Damien’s mother, will not be at the execution. “I spoke to with her today (Tuesday) and she wants it over. She wants to get past it because she wants closure, and I certainly understand that,” Shepherd said. “Nothing will bring back Damien. Since his murder she has had two other children and that has brought her a good deal of joy, but ... nothing will replace her first-born son.”

Shepherd, the father of a 4-year-old son of his own now, had difficulty with the heinous facts of the toddler’s death. “You can’t help but have very deep feelings about this case.”

Wyatt will be the 17th Texas prisoner executed this year and the first of four scheduled to die this month.

ProDeathPenalty.com

On 4 February 1997, Damien Willis, the three-year-old son of William E. Wyatt’s then-girlfriend, Renee Porter, with whom Wyatt lived, was left in Wyatt’s care while Renee was at work. At approximately 6:00 p.m., Wyatt called 911, reporting the child had accidentally drowned in the bathtub. When emergency personnel arrived, the child had no pulse, was not breathing, and was cold to the touch. Paramedics attempted CPR and transported the child to the hospital, where he was pronounced dead at 7:24 p.m.

The attending physician noted the child was unusually cold (his temperature was 84 degrees, when approximately 96 would have been expected) and had bruising on his forehead and thighs and both fresh and healed injuries to his rectum; and opined that the child had been sexually assaulted prior to his death. The medical examiner who performed an autopsy on the child stated that the cause of death was homicidal violence, including smothering.

Wyatt was taken to the police station, where he signed three statements over three days. His first statement (4 February) provided: he was in the laundry room while the child was bathing; Wyatt returned to the bathroom to find the child underwater; and, after attempting CPR, he called 911. On 5 February, Wyatt gave a similar statement, but, acknowledging he had not told the entire truth previously, confessed to sodomizing the child before he took a bath.

On 6 February, again acknowledging he had not been completely truthful previously because he was scared, Wyatt stated: while Porter was at work, the child wanted to take a bath; after the child began running the bath water, Wyatt saw something on the television that “made [him] feel like having sex”; Wyatt sodomized the child; Wyatt left the room and returned; believing the child had lodged something in the light socket, he hit the child with a belt five or six times; the child began screaming; to stop him, Wyatt held a plastic bag over his mouth; when the child tried to jerk away from Wyatt, the child hit his head on the tub; Wyatt left to get ice for the child’s forehead; when Wyatt returned, the child was not breathing; and after attempting CPR, Wyatt called 911. In 1998, Wyatt was found guilty of capital murder of a child under the age of six and sentenced to death.

Texas Execution Information Center by David Carson

Txexecutions.org

William E. Wyatt Jr., 41, was executed by lethal injection on 3 August 2006 in Huntsville, Texas for the sexual assault and murder of a 3-year-old boy.

On 4 February 1997, Wyatt, then 32, took his live-in girlfriend, Renee Porter, to work. While Porter was at work, Wyatt babysat her son, Damien Willis. At about 6:00 p.m., Texarkana police received a 911 call from Wyatt, who asked for an ambulance for a victim who accidentally drowned in the bathtub. When emergency personnel arrived, Damien had no pulse and was not breathing. He was taken to a hospital, where he pronounced dead at about 7:30 p.m.

The attending physician at the hospital noted that the temperature of Damien's body was 84 degrees Farenheit, when approximately 96 degrees would have been expected if the child had died around 6:00 p.m. He also found bruises on Damien's forehead and thighs, and both fresh and healed injuries to his rectum. The medical examiner determined the cause of death to be homicidal violence, including smothering. Investigators also found that the bathtub in the house was dry.

Wyatt was arrested the evening of the child's death. In his first statement to police, he said that he found Damien in the tub, underwater. After attempting CPR, he called 911. The next day, he admitted sodomizing the boy before putting him in the tub. Then, on his third day in custody, Wyatt gave a third statement. He said that while he was sitting with Damien, he saw something on television that "made me feel like having sex."

He sodomized the boy, then left the room. When he returned, it appeared to him that Damien had lodged something in a light socket, so he whipped him with a belt five or six times. He stated that Damien began screaming, so he placed a plastic bag over his face to get him to stop. Damien then jerked back, trying to get away, and hit his head on the bathtub. Wyatt then left to get ice to put on the boy's forehead. When he returned, Damien wasn't breathing. He attempted to perform CPR, then called 911.

At Wyatt's trial, Renee Porter testified that once after leaving Damien with Wyatt, she came home to find her son naked and having had a bowel movement in bed, and that he seemed afraid of Wyatt. She also testified that when bathing Damien, she noticed a scratch on him. When she asked what happened, he looked at Wyatt. Porter also testified that the day before the murder, she accused Wyatt of abusing her son.

Wyatt had no prior criminal record. Porter, however, testified that he raped her in June 1996. Wyatt did not testify, either at his trial of guilt or innocence, or at his punishment hearing. A jury convicted Wyatt of capital murder in February 1998 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 2000. All of his subsequent appeals in state and federal court were denied.

In an interview from death row, Wyatt again called Damien's death an accidental drowning, and said that all he was guilty of was leaving him alone in the bathtub. "If I was responsible for this kid's death, then it was negligence, so charge me with that," Wyatt said. "But not murder, because I didn't kill this kid." Wyatt said that Porter "knew I took very good care of her son."

Of his confession, Wyatt said that the police coerced the statement from him. "I felt threatened," he said. "When they told me I was charged with killing a kid, it was like a bad nightmare. I felt helpless."

Michael Shepherd, the Bowie County district attorney who prosecuted Wyatt, said he believed that Wyatt killed Damien because the last sexual attack was so brutal it couldn't be hidden, so Wyatt "concocted the idea of smothering the child and set up the fake drowning."

The victim's father and grandmother attended Wyatt's execution. "I did not murder your son," Wyatt told them in his last statement. "I did not do it. I just want you to know that. I did not murder Damien, and I would ask for all of your forgiveness, and I will see all of you soon." Wyatt also thanked his relatives for their support. The lethal injection was started, and he was pronounced dead at 6:20 p.m.

Democracyinaction.org

William Wyatt Jr - TX - August 3
Do Not Execute William Wyatt Jr.

William Wyatt, Jr., a 41-year-old black man, was convicted of the capital murder of his girlfriend’s three-year-old child. After an honorable discharge from the U.S. Marine Corps, Wyatt was working as a correctional officer in Texarkana. On Feb. 4, 1997, while Wyatt’s girlfriend was at work, her son was left in his care.

According to the last of Wyatt’s statements, he admits to sodomizing the child and beating him with a belt. Wyatt then placed a plastic bag over the child’s mouth to stop him from screaming, which resulted in the child struggling and hitting his head on a bathtub. Wyatt left the room to find ice for the child’s head and, upon returning, found that the child had drowned in the bathtub. There is some question as to the appropriateness of the circumstances under which Wyatt’s statement was taken.

During the appeals process, Wyatt claimed that this statement was not taken voluntarily, due to some highly aggressive tactics used by the police. In addition to threats and intimidation on the part of the officer, Wyatt asserts that his requests for a lawyer went unanswered—a clear violation of his rights.

His appeal also contested that officers fabricated parts of his statement, that they lied to him about the content of the statement he signed, and that he could not clearly read the document without his glasses. The officer denies the truth of these claims, asserting that Wyatt fully knew his rights during the interviews. Unfortunately, this is one man’s word against another’s.

Wyatt encountered further questionable tactics in court. According to the American system of justice, information presented in court should be limited to that which has probative value, or information that aids in proving or disproving the charge in question. Pieces of information containing a prejudicial effect that outweighs the probative value affects the jury by blinding them to evidence, facts, or reason, thus resulting in a verdict driven by emotion. This is what happened in Wyatt’s trial, when the prosecution displayed photographs of the three-year-old victim’s abused anus. In fact, a “significant amount of time was devoted to this subject at trial,” according to the Texas Court of Criminal Appeals.

The same court also noted that the “repulsion and horror of the general public toward offenses of this nature could potentially affect the jury in an emotional way.” And yet, this highly prejudicial piece of evidence was allowed in court, and Wyatt’s appeal was denied.

No one denies that William Wyatt, Jr. committed a heinous crime. However, executing him only perpetuates a never-ending, vicious cycle of violence and revenge. It is a tragedy that a little boy was abused and killed; but nothing, not even an execution, will bring him back.

Please write to Gov. Rick Perry on behalf of William Wyatt Jr.

Wyatt v. State, 23 S.W.3d 18 (Tex.Cr.App. 2000) (Direct Appeal)

Defendant was convicted in the trial court, Bowie County, Jack Carter, J., of capital murder of three-year-old child and was sentenced to death. On automatic appeal, the Court of Criminal Appeals, Holland, J., held that: (1) Texas police officer had jurisdiction under express terms of statute to arrest defendant inside Bi-State Criminal Justice Center without extradition; (2) totality of circumstances was sufficient to show that defendant's confessions were free and voluntary; (3) evidence of sexual assault of victim was so intertwined with murder as to allow its admission as same transaction contextual evidence; (4) witness offered by state was qualified to testify as expert regarding characteristics of sex offenders; (5) autopsy photographs were relevant; and (6) evidence was sufficient to prove intent to kill. Affirmed.

HOLLAND, J., delivered the unanimous opinion of the Court.

Appellant was convicted in February 1998 of capital murder. See T ex. Penal Code Ann. § 19.03(a)(8). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. See Article 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. See Article 37.071 § 2(h). Initially, we sustained a portion of appellant's third point of error, abated the appeal, and remanded the cause to the trial court so that it could enter its findings of fact and conclusions of law regarding appellant's confession. See Article 38.22, § 6; Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995). We now address appellant's remaining points of error.

In his first two points of error, appellant alleges that the trial court erred in failing to suppress his confessions due to the location in which they were taken. In point of error one, appellant claims that the confessions were obtained after he was illegally arrested, interrogated, and detained in the State of Arkansas in violation of the due process and equal protection clauses of the United States Constitution. He specifically argues that the arrest was illegal because the Texas police officer was outside the jurisdictional limits of his authority.

In his second point of error, appellant asserts that his confessions should have been suppressed because subchapter B of Chapter 361 is unconstitutional in that it attempts to change Texas's boundaries, see U.S. Const. art. I, § 10, cl. 3,FN2 and violates the Interstate Agreement on Detainers Act. See Art. 51.14. Appellant also argues that he was denied effective assistance of counsel because a Texas attorney could not represent him in Arkansas. The record shows that appellant was arrested inside the Bi-State Criminal Justice Center in Texarkana. The Center sits directly on the Arkansas/Texas state lines. The State concedes that appellant gave his statements and was arrested in a portion of the building that is on the Arkansas side of the state line.

* * *

The record in the instant case shows that appellant voluntarily agreed to go to the Justice Center on February 4, 1997, for questioning. Appellant was taken to the Criminal Investigation Division on the third floor where he was read his Miranda FN4 warnings and agreed to give a voluntary statement.

After completing this statement, appellant consented to having a sexual assault kit performed on him at Wadley Hospital. He was then brought back to the Justice Center where his Miranda warnings were again administered before further questioning. At the conclusion of questioning that evening, appellant was placed under arrest and held at the Justice Center.

Although we note that the evidence shows that the Justice Center sallyport and the Criminal Investigation Division are both located in the part of the building on the Arkansas side of the state line, sections 361.029(e) and (j) clearly gave the officer in question jurisdiction to arrest appellant inside the Bi-State Criminal Justice Center without extradition. The language of the statute does not attempt to alter the state borders.

Further, we find it unnecessary to reach the constitutionality issue. Appellant voluntarily went to the center and voluntarily gave his statements to the Texas police officers. See point of error three, infra. Appellant does not challenge that his arrest was properly made with probable cause and without force. Appellant did not request counsel; therefore, because he had none, counsel could not be ineffective.

Further, appellant concedes that the purpose of the Interstate Agreement on Detainers Act is to provide safeguards to fugitives from justice. Because appellant was not a fugitive, the Act did not apply in the instant case. Points of error one and two are overruled.

In his third point of error, appellant posits that the trial court erred in admitting his February 5 and 6, 1997, confessions because they were not freely and voluntarily given. See Articles 38.21 and 38.22 § 2(b). FN5 Appellant claims that the interrogating officers yelled at him, called him a “liar,” and “talked short” to him. He contends that this behavior made him feel threatened, scared, and intimidated. Appellant also asserts that his requests for counsel went unanswered.

FN5. Appellant also alleges that the confessions were inadmissible because he “was not taken before a magistrate.” However, appellant points us to nothing in the record, makes no argument, and cites no authority to support this proposition. We will not make appellant's arguments for him and hold the allegation to be inadequately briefed. See Tex. R. App. P roc. 38.1(h).

Appellant also gave a confession on February 4, 1997, but appellant concedes that it was voluntary and was not used during trial.

“At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight of their testimony.” Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App.1995); see also Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Therefore, we will not disturb the trial court's findings if those findings are supported by the record. See Penry, 903 S.W.2d at 744. Instead, “[w]e only consider whether the trial court properly applied the law to the facts.” Id.

The statement of an accused may be used in evidence against him if it appears that it was freely and voluntarily made without compulsion or persuasion. See Article 38.21. “The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition.” Penry, 903 S.W.2d at 744 .

The following information was elicited at the suppression hearing: Upon request on February 4, 1997, appellant voluntarily went to the Bi-State Justice Center to give a statement to police. Texarkana Police Officer Larry Parker read appellant his warnings pursuant to Miranda and Article 38.22. Appellant also signed warning forms acknowledging that he had received and understood those rights. During the statement, Parker received information from the hospital that the child victim had been sexually assaulted, but finished taking the statement already in progress.FN6

Parker then asked appellant if he would agree to have a “sexual assault kit” taken. Appellant voluntarily complied, and Parker accompanied him to the hospital. After the kit had been completed and appellant had returned to the Justice Center, Parker again read appellant his rights and then placed him under arrest.

FN6. This first confession was made before appellant learned that the child victim had died from his injuries and began before the authorities learned that the child had not drowned, but had been sexually assaulted and asphyxiated.

Around 9:00 a.m. on February 5, Parker interviewed appellant once more. Parker read appellant his warnings, and appellant again signed an acknowledgment form. Appellant did not request an attorney nor did he ask for the interview to cease at any time, and Parker stated that the interview would have ceased immediately had appellant requested either. The written statement appellant gave included a recitation of appellant's rights and an acknowledgment that he knowingly and voluntarily waived those rights.

Additionally, appellant was allowed to review the statement and make any changes to the statement that he felt were necessary. Appellant initialed all changes that were made. Parker testified that although he was upset by the death of a small child, he did not yell at, coerce, threaten, or promise appellant anything at any time.

Parker did not deny that he “talked short” with appellant or that he told appellant that he thought appellant was a liar. But Parker also testified that he did not do so until after appellant had completed his statement. Parker further testified that he requested that another officer take appellant's statement on February 6 because of Parker's feelings about the case.

Texarkana Officer Ronnie Sharp took appellant's February 6 statement. Sharp advised appellant of his rights, and appellant voluntarily signed an acknowledgment form. Appellant did not request an attorney nor did he ask to stop the interview at any time. Sharp stated that the interview would have stopped had appellant requested either. Sharp also testified that he felt appellant was aware of his rights and understood them. As with the previous day, the written statement included a recitation of appellant's rights at the top and included an acknowledgment that appellant knowingly, intelligently, and voluntarily waived those rights.

Appellant reviewed the statement and made changes to the statement that he felt were necessary. Appellant initialed all changes made. Sharp further testified that he did not raise his voice or curse at appellant; he felt that appellant was very cooperative during the entire process and did not appear to be scared.

Appellant, a high-school graduate and former local jailor, testified that, although he voluntarily made a statement on February 4, he did not voluntarily make any other statements. He claimed that he did not voluntarily sign the waiver forms on February 5 or 6, and he also asserted that the officers made up the statements.

He stated that he signed one statement because he was scared, but then he later stated that he signed it because the officer told him that it was the same statement that he had made on February 4. Appellant further testified that the officers yelled at him, cursed him, threatened him, and intimidated him into signing the statements.

He asserted that his requests for a lawyer went unanswered, and he also stated that he did not read the statements before signing them and did not make any corrections because he did not have his glasses with him. Appellant did, however, admit that he could see well enough to sign the forms and statements on the lines provided. He also conceded that all the initialing and signatures were, in fact, his handwriting.

As the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, we conclude the trial court's findings and conclusions are supported by the record. See Penry, 903 S.W.2d at 744. The trial court noted that appellant's testimony vacillated as to why he signed the statements, and we note that appellant never claimed that he did not understand his rights. Viewing the totality of the circumstances, the trial court did not err in holding that appellant's confessions were free and voluntary. See id. Point of error three is overruled.

In his fourth point of error, appellant asserts that the trial court erred by admitting evidence of the sexual assault that accompanied the instant murder of a three-year-old child because appellant was tried only for capital murder of a child under six years of age and not for the sexual assault itself.

Specifically, appellant complains that the trial court: (1) did not redact the portion of his confession in which he states that he sexually assaulted the child before smothering him, and (2) did not redact the portion of the autopsy report that stated “the decedent was sodomized and smothered with a plastic bag.” Appellant contends that the sexual assault was an extraneous offense and that the evidence was more prejudicial than probative. FN7

FN7. Appellant also makes a statement that the autopsy report is hearsay, however, he makes no argument regarding this allegation. We will not make appellant's arguments for him and hold the allegation to be inadequately briefed. See Tex. R. App. Proc. 38.1(h).

Texas Rule of Criminal Evidence 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith.FN8 But the “other crime, wrong, or act” may have relevance “apart from character conformity; that it tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident.” Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex.Crim.App.1990) (op. on reh'g).

Additionally, same transaction contextual evidence may be admissible where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, ···, of any one of them cannot be given without showing the others.” Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993).

In fact, this Court has held that “it has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986).

FN8. At the time of the instant trial, the Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence had not yet been combined into a single set of rules.

Under Rule 404(b), however, same transaction contextual evidence is admissible “only to the extent that it is necessary to the jury's understanding of the offense.” Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App.1996) (quoting England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App.1994)). It is admissible “only when the offense would make little or no sense without also bringing in the same transaction evidence.” Id.

We conclude that the trial court did not err. The evidence of the sexual assault was so intertwined with the murder that the jury's understanding of the offense would have been obscured without it. Appellant confessed to smothering the child to death with a plastic bag shortly after sexually penetrating the child's anus. Appellant then called “9-1-1” and claimed that the child had drowned in the bathtub.

Other evidence showed that when the child was taken to the hospital, medical personnel noticed that sexual abuse had taken place and determined that the child had not drowned, alerting the hospital staff and the authorities that foul play had taken place.

Further, admission of the sexual assault evidence tended to establish some evidentiary fact, such as motive, opportunity or preparation. See Montgomery, 810 S.W.2d at 388-89. In the instant case, the State's theory was to prove that the murder of the three-year-old child was intentional by showing that the sexual assault was the motive for the murder.

Appellant also objected that the sexual assault evidence was more prejudicial than probative. Again, we must disagree. A Rule 403 balancing test includes the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable-a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way;” (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. See Montgomery, 810 S.W.2d at 389-90.

This Court will reverse only upon a clear abuse of discretion. See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App.1996); see also Montgomery, 810 S.W.2d at 390 (stating that “[s]o long as the trial court ··· operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be.”).

First, we note that the evidence presented by the prosecution to show appellant in fact committed the offense of sexual assault was strong: appellant confessed to the sexual assault of the victim, and the medical evidence supported appellant's statement. Additionally, appellant does not dispute this fact on appeal. On the other hand, we note the repulsion and horror of the general public toward offenses of this nature which could potentially affect the jury in an emotional way.

Also, a significant amount of time was devoted to this subject at trial. This evidence, however, was important to the prosecutor's contention that appellant intentionally committed the murder on the day of the sexual assault.

Any evidence presented by the State is generally prejudicial to the defendant; however, because the two crimes here were so intertwined, the evidence of one was necessarily probative of the other. In light of these facts, we hold that the trial judge did not abuse his discretion in concluding that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. See Montgomery, 810 S.W.2d at 387. Point of error four is overruled.

In appellant's fifth point of error, he alleges that the trial court violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not requiring the State to produce an exculpatory statement by the deceased's mother until after she had been called as a witness. Appellant maintains he was harmed because he could not use this statement to cross-examine her.

The U.S. Supreme Court has held that the prosecution violates due process when it suppresses evidence in its possession favorable to an accused “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194.

Impeachment evidence, as well as exculpatory evidence, is included within the scope of the Brady rule. See U.S. v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence withheld by a prosecutor is “material” if there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.” Id. at 682, 105 S.Ct. 3375. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id.

Thus, a due process violation has occurred if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. See Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992). The information about which appellant complains was never in the possession of the State, but was in an investigator's file in the pathologist's office. The investigator's report, which was made prior to the pathologist's receipt of the victim's body, stated that the “next of kin denies boyfriend ever hurt deceased or would sexually assault him.”

Even if we assume, arguendo, that this was evidence the State was required to turn over under Brady as favorable to the accused, appellant still cannot show the outcome of the proceedings would have been different had the statement been disclosed. During trial, the victim's mother testified on direct examination that, prior to the instant crime, she trusted appellant and did not believe appellant would have hurt her child. This information is materially the same as that contained in the pathologist's report.

The defense was able to cross-examine the victim's mother with the knowledge that she previously trusted appellant with the care of her child. Therefore, we conclude that there is no reasonable probability that, had the complained-of evidence been disclosed to the defense, the outcome of the proceeding would have been different. See id. Point of error five is overruled.

In point of error six, appellant contends that the trial court erred in allowing State's witness Sann Thompson to testify as an expert regarding sexual offenders. Specifically, he complains that she was not an expert because she was not “licensed,” she did not interview appellant, and she did not directly classify appellant as a sexual deviant.

The record shows that, during the punishment phase, two psychiatric experts testified that appellant was a psychopathic manipulator and that psychopathic manipulators include sex offenders. The State then offered Thompson's testimony, not to elicit any opinions about appellant specifically, but to enlighten the jury as to the general characteristics of sex offenders, their high recidivism rate, and the lack of successful treatments.

“The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.” Penry, 903 S.W.2d at 762; see also Tex. R. Crim. Evid. 702; Holloway v. State, 613 S.W.2d 497, 501 (Tex.Crim.App.1981). The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion. Absent a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not be disturbed. See Penry, 903 S.W.2d at 762. “The party proffering the expert witness bears the burden of showing that the witness is qualified on the specific matter in question.” Id.

Appellant objected that Thompson had not been qualified as an expert in the area of sexual offenders. The State, however, asked various questions regarding Thompson's experience and training in the areas of sexual offenders and sexual deviation. In response to these questions, Thompson testified that she had worked in the field for nineteen years and held a Bachelor's Degree with a double major in Psychology and Sociology with twenty-four hours towards her Master's as a Psychological Associate.

She was employed with the Texas Department of Human Services for eight years where she received extensive training in working with sex offenders' families and sexual abuse. Thompson received training from experts recognized in the field of sexual deviancy and also from the F.B.I. She annually completes forty hours of training on sexual deviancy and provides training for students seeking certification in the area of sex offenders. Further, Thompson is a member of the National Treatment for Sexual Abusers and currently works with sex offenders as a community supervision officer for the court system.

Therefore, we hold that the trial court did not abuse its discretion in allowing Thompson to testify as an expert regarding the characteristics of sex offenders and their high recidivism rate. The testimony clarified previous testimony from the State's medical experts and demonstrated the increased probability that this type of individual would be a future danger. Point of error six is overruled.

In his seventh point of error, appellant maintains that the trial court erred by allowing the State “to continually and repeatedly lead the State's witnesses” over the objection of defense counsel. See Tex. R. C rim. Evid. 610(c).FN9 Further, he complains that the trial court did not admonish the State until a motion was filed, causing him to be prejudiced and irreparably harmed. FN9. Now codified as Texas Rule of Evidence 611(c).

Texas Rule of Criminal Evidence 610(c) does not forbid the asking of leading questions; it states that leading questions “should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” Tex. R. Crim. Evid. 610(c) (emphasis added). The rule clearly contemplates that some leading questions are acceptable at the trial court's discretion.

Prior to the adoption of rule 610(c), this Court held in a long line of cases that permitting leading questions on direct examination is a matter within the sound discretion of the trial court. Abuse of discretion cannot be shown “unless [appellant] can show that he was unduly prejudiced by virtue of such questions.” Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App.1982); see also Navajar v. State, 496 S.W.2d 61, 64 (Tex.Crim.App.1973); Ortega v. State, 493 S.W.2d 828, 831 (Tex.Crim.App.1973).

The adoption of rule 611(c) does not appear to have changed this long-standing proposition. Appellant does not specifically point out any of the “numerous” leading-question violations allegedly committed by the State. We do note, however, that at the hearing on appellant's motion regarding the State's leading questions, the trial judge made it clear that he had been sustaining any objections to leading questions when appropriate, asking the State to rephrase its questions, or admonishing them not to lead. The trial judge further assured appellant that he would continue to do the same for any further violations if and when they arose.

Appellant cites no instances either at the hearing or on appeal wherein any particular questions prejudiced him or caused him irreparable harm. On appeal, he makes only a general accusation that the trial court's actions were insufficient. Appellant makes no showing that the trial court abused its discretion or that appellant was prejudiced in any way. Therefore, we overrule appellant's seventh point of error.

In his eighth point of error, appellant complains that the trial court abused its discretion and committed reversible error by limiting the time for closing arguments to forty-five minutes per side. Appellant claims that this was an insufficient amount of time for him to argue the issue of intent, confront the State's evidence, and fully argue his defenses. We hold that appellant has forfeited his right to complain on appeal. Evidence at the hearing on appellant's motion for new trial reveals that defense counsel used only thirty-eight of his forty-five minutes.FN10

Counsel was not cut-off by the trial court, he did not request additional time, nor did he identify matters that he was unable to discuss with the jury. Therefore, appellant fails to establish why he required more than the time allotted. Point of error eight is overruled.

FN10. At the hearing, defense counsel conceded that he did not use his allotted time, stating, “I think I used about forty-four minutes.” The record shows that defense counsel completed his argument before the time that the trial judge would normally warn counsel as to his time remaining.

In point of error nine, appellant contends that the trial court erred by allowing two pictures of the victim's anus to be introduced into evidence. He claims these photos were irrelevant and more prejudicial than probative. A photograph is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Crim. Evid. 401. The admission of photographs into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. See Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.1993).

The trial court was justified in finding the evidence relevant to material issues in the case. Evidence regarding the context of the crime and evidence of motive to show an intent to kill are certainly facts that are of consequence to the determination of the action. See point of error four, supra. State's exhibits 20 and 21 depict a portion of the deceased's body at the autopsy. These were relevant to show the sexual assault injuries that were sustained prior to the child's death and also to corroborate appellant's confession.

When determining whether the trial court erred in admitting the relevant photographs into evidence, our review is limited to determining whether the probative value of the photos is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. See Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App.1991) (citing Montgomery, 810 S.W.2d at 389); see also T ex. R. Crim. Evid. 403.

A court may consider many factors in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. These factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, and whether the body depicted is clothed or naked. See Long, 823 S.W.2d at 272. A court, however, should not be limited by this list. The availability of other means of proof and the circumstances unique to each individual case should also be considered. See id.

In reviewing the two autopsy photographs, we note that they were color, 4” by 6” in size, and showed some blood at the opening of the child's anus. Appellant complains only that the pictures were inflammatory and prejudicial because they specifically showed the child's anus and the injury represented an extraneous offense. We addressed the appropriateness of the sexual assault evidence in point of error four, supra.

The photos were used at trial to show the wound and some bruising caused by the assault. The pictures are not particularly offensive, they were not enhanced in any way, and they portrayed no more than the gruesomeness of the injuries inflicted. See Narvaiz v. State, 840 S.W.2d at 429. After reviewing the photographs, we hold that the trial court did not abuse its discretion in admitting the exhibits. Point of error nine is overruled.

In appellant's tenth point of error, he complains that the trial court erred in failing to grant his motion for instructed verdict at the end of the guilt/innocence phase. He argues that the evidence was insufficient to prove his intent to kill the three-year-old victim because his confession shows that the killing was accidental.

The standard for judging the legal sufficiency of the evidence is whether, viewed in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995). “The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony.” Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.1994).

Likewise, “reconciliation of conflicts in the evidence is within the exclusive province of the jury.” Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). The jury may choose to believe some testimony and disbelieve other testimony. See id. If there is enough credible testimony to support appellant's conviction, the conviction will stand. See id.

In his statement, appellant confessed to smothering the child with a plastic bag shortly after sexually penetrating the child's anus. Appellant then called “9-1-1” and claimed that the child had drowned in the bathtub. Appellant kept up this charade until medical examiners realized that the child had not drowned and discovered that the child's anus was torn and bloody.

The only evidence pointing towards an accidental death is appellant's self-serving statements in his confession. A reasonable person could infer that appellant murdered the child and faked the drowning in an attempt to cover up the sexual assault. Therefore, we conclude that appellant's statements, the physical evidence, and the medical testimony support a clear and reasonable inference of intent whereby a rational jury could have found all the elements of the offense beyond a reasonable doubt. Point of error ten is overruled.

Finally, in point of error eleven, appellant combines each of his previous arguments to assert that the cumulative effect of the errors denied him the right to a fair trial. Having rejected each of appellant's arguments individually, we likewise reject the combination. Point of error eleven is overruled. Finding no reversible error, we affirm the judgment of the trial court.

Wyatt v. Dretke, 165 Fed.Appx. 335 (5th Cir. 2006) (Habeas)

Background: State prisoner filed petition for writ of habeas corpus, challenging conviction of capital murder, affirmed at 23 S.W.3d 18. The United States District Court for the Eastern District of Texas denied petition, but granted petitioner a certificate of appealability (COA).

Holdings: The Court of Appeals held that:

(1) petitioner was not entitled to a COA with respect to denial of his claim that the Texas death-penalty system violated the Equal Protection clause;
(2) notebook of victim's mother was not material, and, thus, prosecution's failure to disclose notebook to petitioner was not a Brady violation; and
(3) District Court did not violate Supreme Court's holding in Ring by analyzing petitioner's ineffective assistance of counsel claim under the Strickland standard, which required court, and not jury, to determine whether counsel's alleged deficient performance prejudiced petitioner. Affirmed.

William E. Wyatt was convicted in Texas state court of capital murder of a child under the age of six and sentenced to death. After denying habeas relief on all claims, the district court granted Wyatt a certificate of appealability (COA) for two issues: (1) whether the State's failure to produce a notebook prepared by the victim's mother (after her child's death) violated due process, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding prosecution's suppression of favorable material evidence violates due process) ( Brady 3-claim); and (2) whether Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding Sixth Amendment right to jury trial violated when trial judge determines presence of aggravating circumstances for imposition of death penalty), is inconsistent with the prejudice prong for ineffective assistance of counsel (IAC) under Neal v. Puckett, 286 F.3d 230 (5th Cir.2002) (en banc) (holding that, to establish IAC, defendant must satisfy two elements stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) counsel's performance was deficient; and (2) that deficiency caused prejudice), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). Wyatt v. Dretke, No. 1:01-cv-00212 (E.D.Tex.2004) (USDC Opn.).

In addition, relying on Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (holding Equal Protection Clause requires uniform and specific standards for vote counting), Wyatt requests a COA from this court on a third issue: whether the Texas death penalty statute violates equal protection because it provides no uniform standards for when prosecutors should seek that penalty. For this third issue, a COA is DENIED. For the two issues for which the district court granted a COA, the denial of habeas relief is AFFIRMED.

On 4 February 1997, Damien Willis (the child), the three-year-old son of Wyatt's then-girlfriend, Renee Porter, with whom Wyatt lived, was left in Wyatt's care while Porter was at work. At approximately 6:00 p.m., Wyatt called 911, reporting the child had accidentally drowned in the bathtub. When emergency personnel arrived, the child had no pulse, was not breathing, and was cold to the touch. Paramedics attempted CPR and transported the child to the hospital, where he was pronounced dead at 7:24 p.m.

The attending physician noted the child was unusually cold (his temperature was 84 degrees, when approximately 96 would have been expected) and had bruising on his forehead and thighs and both fresh and healed injuries to his rectum; and opined that the child had been sexually assaulted prior to his death. The medical examiner who performed an autopsy on the child stated that the cause of death was homicidal violence, including smothering.

Wyatt was taken to the police station, where he signed three statements over three days. His first statement (4 February) provided: he was in the laundry room while the child was bathing; Wyatt returned to the bathroom to find the child underwater; and, after attempting CPR, he called 911.

On 5 February, Wyatt gave a similar statement, but, acknowledging he had not told the entire truth previously, confessed to sodomizing the child before he took a bath.

On 6 February, again acknowledging he had not been completely truthful previously because he was scared, Wyatt stated: while Porter was at work, the child wanted to take a bath; after the child began running the bath water, Wyatt saw something on the television that “made [him] feel like having sex”; Wyatt sodomized the child; Wyatt left the room and returned; believing the child had lodged something in the light socket, he hit the child with a belt five or six times; the child began screaming; to stop him, Wyatt held a plastic bag over his mouth; when the child tried to jerk away from Wyatt, the child hit his head on the tub; Wyatt left to get ice for the child's forehead; when Wyatt returned, the child was not breathing; and after attempting CPR, Wyatt called 911.

In 1998, Wyatt was found guilty of capital murder of a child under the age of six, pursuant to Texas Penal Code Ann. § 19.03(a)(8), and sentenced to death. The Texas Court of Criminal Appeals affirmed. Wyatt v. Texas, 23 S.W.3d 18 (Tex.Crim.App.2000). Wyatt did not seek review by the Supreme Court of the United States.

Wyatt sought state habeas relief, raising, inter alia, IAC claims and a Brady-claim concerning the State's failure to produce a hand-written notebook created by Porter after her child's death and in preparation for testifying at trial. The state habeas trial court filed findings of fact and conclusions of law, recommending denial of relief. Texas v. Wyatt, 97-F-159-005 (Dist. Ct. Bowie County Tex.2000).

That court concluded, inter alia: Wyatt received effective assistance of counsel; and his Brady-claim had no merit because there was not a reasonable probability disclosure of the allegedly suppressed evidence would have resulted in a different outcome at trial. Id. The Texas Court of Criminal Appeals denied relief. Ex Parte Wyatt, No. 97-F-159-5-A (2001).

In March 2002, Wyatt requested federal habeas relief, presenting approximately 20 claims. In December 2003, the district court awarded summary judgment to the State on all but two of those claims and ordered an evidentiary hearing for those two: (1) whether Wyatt's trial counsel rendered IAC by failing to inform Wyatt he could testify during the penalty phase; and (2) whether the cumulative effect of errors by trial counsel constituted IAC. USDC Opn., 3 Dec. 2003 Order at 5-6, 34 ( USDC Opn. I ). Following that hearing, the district court denied habeas relief. USDC Opn., 18 Oct. 2004 Order at 8 ( USDC Opn. II ). Wyatt appealed and requested a COA on six claims; the district court granted a COA for two issues, encompassing three of the claims. USDC Opn., 9 Dec. 2004 Order at 2 ( USDC Opn. III ).

* * *

The first contention concerns an entry about “red mark[s]” on the child, which Porter attributed to Wyatt. Porter testified these injuries were severe and involved “welts on his legs and his butt” and bleeding. According to Wyatt, with the notebook, he could have impeached Porter on the severity of the injuries and left the jury with the impression she was embellishing, affecting her credibility. The State maintains the entry, when read in context, is not significantly different from her testimony. The notebook stated: “He showed me his butt[.] [There] were a lot more mark[s] there”. As the state habeas court found, this is not substantially different from Porter's testimony.

Second, Porter's notebook reflects that, prior to the day of the child's death, Wyatt denied whipping the child when Porter confronted Wyatt. In her testimony, Porter did not mention Wyatt's denial. He claims that, because that testimony went unchallenged, it left the impression Wyatt admitted causing the child's injuries. With the notebook, Wyatt contends he could have presented his denial and challenged the impression he caused the injuries.

The State responds that Wyatt would have known he denied whipping the child and, thus, could have used that information to impeach Porter, even without the notebook. In any event, this omission provides, at best, minor impeachment value in the light of Wyatt's confession to sexually abusing the child. (Additionally, use of this evidence for impeachment would have been minimal in the light of the testimony of Porter and David Willis, the child's father: both admitted they had each previously beaten the child on at least one occasion.)

Third, Porter testified that, after leaving the child alone with Wyatt and coming home to find the child naked and having had a bowel movement in bed, she noticed he seemed afraid of Wyatt. For this specific instance, the notebook does not mention that fear. Wyatt claims: without Porter's testifying the child seemed afraid, there would be no inference his bowel movement was a result of Wyatt's sodomizing him; and Wyatt could have impeached Porter for embellishing her trial testimony. The State points to portions of the notebook that record Porter's noticing a change in the child's attitude toward Wyatt and his being afraid of him. For this point, in the light of these statements taken as a whole, the notebook would have had no impeachment value.

Fourth, Porter testified she noticed a scratch while giving the child a bath, and, when she asked the child what happened, he looked at Wyatt, but Wyatt did not offer an explanation. The notebook does not mention that. Had he had the notebook, Wyatt maintains he could have impeached Porter with her failure in the notebook to mention the scratch and Wyatt's failure to explain it. Again, this omission does not rise to the level of an inconsistency; any impeachment value is minimal.

Fifth, Porter testified to two instances, the day before the child's death, when he appeared afraid of Wyatt. The notebook does not mention either instance. Wyatt maintains that, based on such non-entries, he would have been able to demonstrate to the jury that Porter was fabricating her testimony. According to the State, as for many of the passages in the notebook on which Wyatt relies, Wyatt was present during the events about which Porter testified; he would, therefore, have had all the information needed to impeach Porter if her testimony was false. Again, this omission is not an inconsistency that provides meaningful impeachment value.

Sixth, Porter testified that, after leaving the child alone with Wyatt, Porter came home earlier than expected and found Wyatt, with his shirt off, standing at the child's door. According to Wyatt, he could have impeached Porter for her failure to mention this in the notebook. The State again notes Wyatt would have known if Porter's description of the facts was untrue, and, if so, could have impeached her. Wyatt also contends this testimony left unchallenged the inference Wyatt was about to sexually abuse the child. In any event, Wyatt confessed that he sexually abused the child just before his death. In the light of Wyatt's confession, this omission has little, if any, impeachment value.

Finally, the notebook does not mention Porter's impression, about which she testified at trial, that Wyatt was not upset when he called her at work to tell her the child was injured (the injuries from which he died). Wyatt contends he could have used this omission to demonstrate Porter's testimony was contrived to harm Wyatt. As the State points out, however, Porter's testimony in this regard was already impeached by testimony of one of the first officers to respond to Wyatt's 911 call. That Porter omitted this from the notebook is of no additional impeachment value.

Having evaluated each notebook entry, or omission, cited by Wyatt, we now evaluate their cumulative effect for purposes of the requisite Brady materiality. As discussed, evidence is material for that purpose only if there is a reasonable probability that, had the evidence been disclosed, the result would have been different. Bagley, 473 U.S. at 682, 105 S.Ct. 3375.

Pursuant to AEDPA, and considering the notebook as a whole, Wyatt has not demonstrated as unreasonable the state habeas court's conclusion that the notebook entries or omissions do not undermine confidence in the jury verdict. First, the notebook was written in preparation for Porter's trial testimony, well after Wyatt's abuse of the child.

Because it was not written contemporaneously, the notebook, as a whole, merely recounted Porter's memory of the events. If Porter's testimony was inconsistent with Wyatt's memory, he could have impeached Porter without the use of the notebook. Again, the jury was not aware of the notebook. It is not as if the jury had it, but Wyatt was not allowed to question Porter about it.

Furthermore, the notebook does not present any new evidence that is meaningfully inconsistent with Porter's trial testimony. The differences and omissions cited by Wyatt are insignificant in the light of the record as a whole, especially in the light of Wyatt's confessing to having sexually assaulted the child, whipping him, and covering his face with a plastic bag just prior to his death.

In sum, Wyatt fails to demonstrate that the state habeas court's decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts in [the] light of the evidence presented in the State Court proceeding”.

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Wyatt's request for a COA is DENIED; the denial of habeas relief is AFFIRMED.