The United States Court of Appeals
For the Fifth Circuit

Linda Anita Carty (born 5 October 1958) is a woman possessing both United States and British citizenship on death row in Texas. She was convicted and sentenced to death in February 2002 for the abduction and murder of 20-year-old Joana Rodriguez, allegedly in order to steal her new born son.

Carty claims she was framed by drug dealers in response to her work as an informant and has appealed her conviction. Her appeals have been unsuccessful and the appeal procedure has been exhausted. Barring the granting of clemency, she stands to become the first female British national to be executed since Ruth Ellis in 1955, and the first British black woman executed in more than a century.

Early life

Born in St. Kitts to Anguillan parents, Carty holds British citizenship as St. Kitts was a British colony at the time of her birth. She emigrated to the United States in 1982 and is a citizen of the United States.

Drug informant

In 1992, Carty was convicted of auto theft and impersonation of an FBI agent. She was sentenced to 10 years probation, on the condition she would work as a drug informant. While working as an informant, she provided information leading to two arrests. Her services came to an end when she was arrested on drug charges.

However, in media interviews Carty has claimed that she was recruited by a friend from the Houston Police Department and that her work for the DEA helped land seizures of thousands of dollars' worth of narcotics and led to the imprisonment of scores of dealers.

The crime

According to the Texas Department of Criminal Justice:

On 16 May 2001, Carty and three co-defendants [Gerald Anderson, Chris Robinson, and Carlos Williams] invaded the home of a 25 year old female. The victim and her three day old baby were kidnapped and two other victims were beaten, duct taped, and left in the residence. The 25 year old female was hog-tied with duct tape, a bag was taped over her head, and she was placed in the trunk of a car. This victim died from suffocation.

Investigation

Investigators initially suspected Carty after they discovered that she had told people she was going to have a baby despite not appearing pregnant. While interviewing neighbors in the apartment complex, police heard from one neighbor that she sat with Carty in a car, saw a child's car seat in the car, and was told by Carty that she was pregnant; this was remarkable to the witness because Carty didn't appear pregnant.

Police then telephoned Carty and asked her to meet with them. She told them that a car she had rented and her daughter's car may have been used in the crime. She was placed under arrest. Then she directed them to a location where both cars were found: the live baby was in one, and the suffocated victim was in the back of the other. Carty's fingerprints were in both cars. They found various items of baby paraphernalia.

Trial

The following evidence was presented during the trial:

• In early May 2001, Carty and her husband separated. Carty then informed him that she was pregnant with his child.

• On the day before the murder, 15 May 2001, Carty told her neighbor, Florence Meyers that she was pregnant and that the baby was going to be born the next day. Meyers testified that Carty did not appear to be pregnant.

• Carty told her husband on 15 May that she was going to have a baby boy the next day. When he met her at the police station on 16 May after she had been arrested, he asked her if the baby had been born and she told him "not yet."

• On 15 May, Carty told Sherry Bancroft, an employee at Public Storage, that she had indeed had the baby and that he was at home with his father.

• The victim's husband testified that while the intruders were in his home, one of them answered his cell phone and said, "We are inside here. Do you want it?" Then he yelled that "she" was outside and that they had to go. The intruders left, taking the baby with them.

• Carty's cell phone records were introduced, and showed eleven calls logged between 12:50 a.m. and 2:50 a.m. on 16 May 2001, between Carty's phone and the cell phone number that led police to Gerald Anderson. Seven of those calls were placed between 1:09 a.m. and 1:14 a.m.

• Sarah Hernandez testified that she met Carty when they were both serving time in jail. Carty asked Hernandez to write a letter for her because she did not want the letter to be in her own handwriting. Carty wrote out what she wanted the letter to say, and Hernandez copied it. Hernandez said the letter was supposed to be from someone named Oscar. The letter said Carty was being set up by "Chris and Zeb," who borrowed Carty's car and put the baby in it. The letter stated they had a grudge against Carty.

• Carty's mother testified that her daughter did not mention to her that she was pregnant when they talked on 13 May or on the following days, and Carty did not appear to be pregnant around that time.

Conviction and appeals

Carty was convicted of murder on February 19, 2002. On February 21, she was sentenced to death by lethal injection.

The imposition of a death sentence in Texas results in an automatic direct appeal to the Texas Court of Criminal Appeals. This appeal was rejected on April 7, 2004. Carty then appealed to the Fifth Circuit Court of Appeals. This appeal was rejected on September 19, 2009. On 26 February 2010, Carty appealed to the U.S. Supreme Court, in which the British government filed an amicus curiae brief as a friend of the Court. However, on May 3, 2010, the Court refused to review the case, denying certiorari. The Texas Board of Pardons and Paroles has the option to recommend clemency to the Governor of Texas. However, such recommendations are rare.

Defense claims

Carty, her lawyers and her supporters contend that she has been unjustly sentenced to death for a murder that she did not commit. Reprieve claims that her defence attorney did not present mitigating evidence. They assert that no forensic evidence exists that places her at the scene of the crime, although Carty's fingerprints were found in the car containing the victim's body.

Carty has claimed that she was framed by three men for her work as an informant with the Drug Enforcement Administration. Carty stated that "...it was too difficult just to kill me, so they hatched this plot." "Anderson, Robinson, and Williams, the other co-defendants in the kidnapping and murder, were given prison terms but none received the death penalty after testifying against Carty.

Baker Botts, the law firm handling Carty's appeal, have argued that her trial attorney, Jerry Guerinot, handled her defense in an incompetent manner. Michael Goldberg of Baker Botts accuses Guerinot of failing to call any witnesses who might have persuaded the jury that she did not deserve execution.

In addition, they assert that Guerinot met with Carty for only one fifteen-minute interview. This has been rejected by Guerinot's co-counsel. Carty also claims that on one occasion she was interviewed without counsel being present.

Additional information

Carty's case received media attention in September 2009 when her image was placed on the fourth plinth in Trafalgar Square by her British supporters. However, there has been little media coverage in the U.S.

Carty is presently being held at the Mountain View Unit of the Texas Department of Criminal Justice; the unit contains the state's female death row.

Carty was the subject of a Channel 4 documentary, called The British Woman on Death Row. It first aired on Channel 4 in the UK on 28 November 2011. In 2012, she appeared on a segment of Werner Herzog's series On Death Row, broadcast on Discovery Channel's Investigation Discovery.

Wikipedia.org

High court nixes death-row appeal of woman in Houston slaying

Supreme Court rejects plea from British woman on death row

By Renée C. Lee - The Houston Chronicle

May 3, 2010

The Supreme Court has refused to review the case of a British woman sentenced to death for killing a Houston mother and stealing her baby in 2001.

The justices rejected an appeal from Linda Carty, who complained her trial lawyers were deficient.

Twenty-year-old Joana Rodriguez had just given birth days earlier when four men busted into her Houston apartment on May 16, 2001, pistol-whipped her husband and abducted her and her newborn.

Rodriguez's body was later found in the trunk of a car with a plastic bag over her head. Her arms and legs were bound with duct tape and her mouth and nose also had been covered with tape. An autopsy revealed she suffocated.

Authorities said Carty, a neighbor, plotted the kidnapping because she wanted Rodriguez's baby in a desperate attempt to keep her common-law husband.

Carty, 51, was found guilty of capital murder in February 2002. She is one of 10 women on Texas death row. The British government and anti-death penalty groups have taken up her cause.

Carty, who claims she had ineffective counsel and maintains her innocence, was optimistic before the ruling.

“I think there's a possibility they will take it,” Carty said during an interview last week at the Texas Department of Criminal Justice Mountain View Unit, just west of Waco.

Texas officials will now set an execution date and Carty, a British citizen, will become the only woman to have a slot on the state's execution calendar. It could be years before she's actually put to death.

It is rare for women to get the death penalty in the United States and even rarer for them to be put death. Fifty-four women are on death row and in the modern era (1973 to 2009) of the death penalty, only 11 women have been executed.

Part of the reason is that few women commit capital offenses, but Ohio Northern University law professor Victor Streib, who has studied women and death penalty for 25 years, suggests there's a secondary reason.

The justice system, Streib said, treats women differently than men.

“Women aren't sentenced to death at trial as often as you think,” Streib said. “And once they're sentenced to death, they're more likely to have the sentence reversed by an appellate court. As a society, we're nervous about taking women's lives.”

That's even true in Texas, the nation's death penalty capital, he said. The state has executed only three women since 1973. The last female execution in the U.S. was in Texas in 2005. Francis Newton, of Harris County, was put to death for killing her husband and children in 1987. She sat on death row for nearly 20 years.

Bias denied, but . . .

Most prosecutors and judges deny there's a bias, but the statistics show otherwise, said Streib, who publishes an annual report, Death Penalty for Female Offenders.

Harris County District Attorney Pat Lykos declined to comment on the issue because of pending death penalty cases, but other prosecutors who have handled capital cases involving women said they review them the same as they do those involving men.

“Our policy has always been if we feel someone committed a crime that merits the death penalty, we're going to seek it no matter who they are or what their gender is,” said Bob Gill, assistant chief of the criminal division of the Tarrant County District Attorney's Office.

Collin County's first assistant district attorney, Gregory Davis, tried two death penalty cases against women when he worked for the Dallas County District Attorney's Office from 1992-2002.

Darlie Routier, the North Texas mother sentenced to death for killing her children in 1996, was one of them. Davis said he had some hesitation about pursuing the death penalty against Routier only because it had never been done before in the county.

“From a practical standpoint, you have to take into account the attitude of jurors and the jurisdiction,” Davis said. “But in the Routier case, I didn't feel that was significant because of the terrible brutality and lack of remorse.”

He said he believes there is a public perception that women are not as violent as men, and jurors are sometimes less likely to impose death sentences against women. And when looking at mitigating factors, they are also more prone to listen to emotional appeals from women than men, he said.

“They have a hard time finding these women are a future danger,” Davis said.

Streib said it's difficult to pinpoint why some women get the death penalty and others do not because the justice system is not a rational process. But women who kill like men (kill strangers or commit a senseless act) or commit a brutal, bloody crime tend to get a death sentence, he said.

Roe Wilson, who handles post-conviction writs for the Harris County District Attorney's Office, described the facts in Carty's case as “heinous.” Carty, who pretended to be pregnant, had planned to cut the baby out of Rodriguez's stomach and had brought surgical supplies to do it, Wilson said. When she learned the woman already had the baby, she abducted her, she said.

Witnesses also said they saw Carty put the plastic bag over the mother's head while she lay in the trunk.

Was she framed?

Carty, who came to the United States in the early 1980s, contends that she was framed by the other suspects who learned she was an informant with the U.S. Drug Enforcement Agency. One of them had borrowed her car the day of the crime, she said.

She said the state's case is fabricated and had she had proper counsel during her trial, she wouldn't be on death row. In lower court appeals filed by her appellate attorneys with Baker Botts law firm, Carty claims her state-appointed attorney met with her two weeks before her trial for only 15 minutes. He also failed to properly investigate her case, to interview and inform her common-law husband of his right to spousal immunity and to notify the British consulate about her case.

While the lower courts denied her requests for a new trial, they admitted there were mistakes made in her defense, said Michael Goldberg, a partner with Baker Botts.

The law firm is representing Carty for free at the request of the British government.

“I believe with all my heart that she deserves to have a trial so a jury can hear a real case with a real defense on her behalf,” Goldberg said. “We have 20 key witnesses who were never called and could have testified that Linda is not a murderer and not a danger to society."

In the Court of Criminal Appeals of Texas

No. 74,295

Linda Carty, Appellant
v.
The State of Texas

On Direct Appeal of Harris County

Price, J., delivered the opinion for a unanimous Court.

O P I N I O N

The appellant was convicted in February 2002 of capital murder. ⁽¹⁾ 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), ⁽²⁾ the trial judge sentenced the appellant to death. ⁽³⁾ Direct appeal to this Court is automatic. ⁽⁴⁾ The appellant raises eleven points of error. We shall affirm.

In points of error one and two, the appellant claims the evidence of her guilt is legally and factually insufficient because it rests exclusively on uncorroborated accomplice-witness testimony. She would have us apply legal and factual sufficiency standards to our review of the accomplice-witness testimony under Article 38.14. The appellant's argument confuses a review of evidence under the accomplice-witness rule as set out in Article 38.14 with legal and factual sufficiency reviews. ⁽⁵⁾ We will review the evidence under the standard appropriate to Article 38.14.

Article 38.14 provides, "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Under this rule, the reviewing court eliminates all of the accomplice testimony from consideration and examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. ⁽⁶⁾ The corroborating evidence need not be sufficient by itself to establish guilt; there simply needs to be other evidence tending to connect the defendant to the offense. ⁽⁷⁾ We have noted that "unlike extrajudicial confessions, testimony of an accomplice need be corroborated only as to facts 'tending to connect the defendant with the offense committed[,]' and not as to the corpus delicti itself." ⁽⁸⁾ And "[t]he non-accomplice evidence does not have to directly link the appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt . . . . [T]here must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment." ⁽⁹⁾

The appellant claims that Chris Robinson, Josie Anderson, Marvin "Junebug" Caston, and Zebediah Combs were accomplices as a matter of law. ⁽¹⁰⁾ We will assume, without deciding, that the appellant is correct. Even if we set aside the testimony provided by these witnesses, the evidence sufficiently tends to connect the appellant to the offense to satisfy the requirements of Article 38.14. The following is a summary of the non-accomplice-witness testimony.

The appellant's cell phone records led police to Gerald "Baby G" Anderson who eventually gave a statement and was charged with capital murder in this case. The appellant's cell phone records were introduced, reflecting eleven calls logged between 12:50 a.m. and 2:50 a.m. on May 16, 2001, between the appellant's phone and the cell phone number that led police to Anderson. ⁽¹¹⁾ Seven of those calls were placed between 1:09 a.m. and 1:14 a.m.

Thus, even without the testimony of the witnesses who were potentially accomplices, the evidence "tends to connect" the appellant to the commission of the crime. ⁽¹²⁾ Points of error one and two are overruled.

In points of error three and four, the appellant claims that the evidence is legally and factually insufficient to establish that Anderson, Caston, and Combs were not accomplices. The appellant argues these points together with her first and second points, on the theory that the evidence does not sufficiently "tend to connect" the appellant to the crime without the testimony of these accomplices. Because we hold the evidence tends to connect the appellant to the crime without relying on the testimony of any of the alleged accomplices, points of error three and four are moot. We also note that legal and factual sufficiency reviews are appropriate for assessing the sufficiency of the evidence to support an element of the offense charged. ⁽¹³⁾ Whether a witness is an accomplice is not an element of the offense. Points of error three and four are overruled.

The right to confrontation might be denied when appropriate cross-examination is improperly limited. ⁽¹⁴⁾ However, a trial court maintains broad discretion to impose reasonable limits on cross-examination "to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence." ⁽¹⁵⁾

Here, the appellant was permitted to impeach Robinson and Combs with the contents of their statements made to the police. Additionally, she was permitted to (and did) call to the stand the officers who took the statements to question them about inconsistencies between the witnesses' statements and their trial testimony. The appellant sought to have the videotapes played in their entirety and did not make any effort to edit the tapes or identify which portions of the tapes were appropriate for impeachment. It is not the responsibility of the trial court "to sort through and edit the videotapes in order to determine which statements might impeach the witness." ⁽¹⁶⁾

Moreover, the appellant does not demonstrate the proper predicate was laid to establish the impeachment value of the tapes. Under the Rules of Evidence, the use of extrinsic evidence of a prior inconsistent statement "is contingent upon the witness's response when confronted with the alleged inconsistent statement." ⁽¹⁷⁾ Under former Rule of Criminal Evidence 612(a), which was identical to the present Rule 613(a), ⁽¹⁸⁾ we laid out the predicate to the admission of the inconsistent statement:

The proper predicate for impeachment by prior inconsistent statement requires that the witness first be asked if he made the contradictory statement at a certain place and time, and to a certain person. If the witness denies making the contradictory statement, it can then be proved by the prior inconsistent statement. If the witness admits the prior inconsistent statement, however, the prior statement is not admissible. ⁽¹⁹⁾

The rationale behind the predicate is that "[w]hen the contradictions are confessed, evidently there is no use or purpose for the impeaching testimony; for this work [the witness] performs upon himself." ⁽²⁰⁾

The appellant argues that the trial court did not permit her to lay the proper predicate because it would not allow her to play the videotaped statements for the witnesses to review. However, Rule 613(a) does not require that a witness be allowed to review a prior inconsistent statement, but only that a prior inconsistent written statement be provided to opposing counsel on request. ⁽²¹⁾

In her ninth point of error, the appellant claims the trial court abridged her right to confrontation as embodied in the Sixth Amendment to the United States Constitution when it refused to permit defense counsel to cross-examine Caston, an alleged accomplice-witness, using his prior inconsistent videotaped statement. The appellant did not offer Caston's videotaped statement for record purposes. By failing to make an offer of proof, the appellant failed to preserve this issue for review. ⁽²²⁾ Point of error nine is overruled.

In points of error six, eight, and ten, the appellant claims the same violations under the Texas Constitution that are alleged in points of error five, seven, and nine under the United States Constitution. Because the appellant does not provide separate argument and authority under the Texas Constitution, she has forfeited these claims. ⁽²³⁾ Points of error six, eight, and ten are overruled.

In her eleventh point of error, the appellant claims her counsel was ineffective by failing to make an offer of proof of Caston's videotaped statement. To establish a claim of ineffective assistance of counsel, the appellant must show (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the appellant. ⁽²⁴⁾ In proving prejudice, the appellant must show a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. ⁽²⁵⁾ Review of counsel's performance is highly deferential and there is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. ⁽²⁶⁾

As discussed previously, when a witness admits to a prior inconsistency, extrinsic evidence of the inconsistency is not allowed. ⁽²⁷⁾ In the absence of argument and authority demonstrating that the extrinsic evidence was admissible, the appellant fails to demonstrate that counsel's performance was deficient in failing to offer the extrinsic statement for record purposes. In addition, the appellant fails to prove how the outcome of her appeal would have been different had counsel preserved the issue. Point of error eleven is overruled.

27. Tex. R. Evid. 613(a).