Killer is ready to die; He's not sure why he shot 5-year-old

By J.R. Gonzales - Corpus Christi Caller-Times

January 12, 2003

John Richard Baltazar is scheduled to die this week for a murder that he says was an accident and that he can't remember. But his victims remember.

Timeline of events

Sept. 27, 1997: Adriana Marines is shot to death when two men storm into her home. It is said that John Richard Baltazar - later found guilty of the killing - meant to retaliate against Adriana's uncle Narciso "Ted" Cuellar, who was absent at the time.

Dec. 4, 1997: Johnny Gonzales, who also stormed the Marines' home, is sentenced to 80 years in prison for Adriana's death. Gonzales was also sentenced to 40 years for burglary, 60 years for aggravated assault on Arturo Marines and 80 years for aggravated assault on Vanessa Marines. He is eligible for parole in 2037.

March 9, 1998: Baltazar is found guilty of killing Adriana Marines.

March 11, 1998: A 12-member jury deliberates for about three hours before sentencing Baltazar, 25, to death.

Sept. 15, 1999: Texas Court of Criminal Appeals affirms Baltazar's conviction and sentence on direct appeal.

Wednesday: Baltazar is scheduled to die.

Wednesday evening, an $86.08 pharmaceutical cocktail of lethal drugs will drip into his veins - punishment for the Sept. 27, 1997 shooting death of 5-year-old Adriana Marines. At the time of the killing, Adriana and her cousin, Vanessa Marines, 11, were watching a videotape of "Sleeping Beauty." Both Vanessa and Adriana's father, Arturo, were wounded during the break-in.

Speaking from death row last week, Baltazar, now 30, said he's ready to be executed. "I've been mentally prepared since I've been here," he said. "We all know the date's coming eventually, unless for some reason or another we get a stay or something. But that don't look promising." Baltazar will have spent not quite five years on death row since he entered the prison system for the killing, a significantly shorter time than the 10-year average in Texas.

Laws enacted at both the state and federal level have contributed to shorter stays on death row. In 1995, then-Gov. George W. Bush signed a law altering the timetables and deadlines for inmate appeals. One year later, former President Bill Clinton approved legislation that limited federal appeals by death row inmates.

With a few days remaining until his execution and with most of his appeals exhausted, Baltazar has sought the help of Austin attorney Roy Greenwood, who is seeking executive clemency from Gov. Rick Perry. Recently, Greenwood requested a minimum 90-day reprieve with the state Board of Pardons and Paroles. He is also trying to have Baltazar's sentence commuted to life in prison. In a Dec. 14 letter to the board, Nueces County Chief Prosecutor Gail Gleimer, who prosecuted Baltazar, wrote that he is a habitual felony offender and a member of the Texas Syndicate prison gang. "I see no moral reason to grant leniency," she wrote.

Decision possible Monday

An official with the board said a decision could be made Monday on Baltazar's request for executive clemency. In the meantime, the Marines family is preparing to travel to Huntsville this week to witness the execution. Since the shootings, people approach them about what happened that night. The answer Arturo and Matilda always give is that it's a long story. Until last week, Vanessa Marines, now 16, didn't want to talk about it. Not even to her mother.

Everyone's recollection about that night, including Baltazar's, is sketchy. Vanessa Marines remembered Adriana discussing upcoming birthday plans and the movie just starting when Baltazar stormed into the living room and shot them. Adriana's mother, Matilda Marines, said she heard one loud bang. She was in the bedroom watching television when Baltazar entered their home. Her husband went to find out what happened.

Chuckles at recollection

But at that point, Baltazar was near the bedroom door, gun in hand. "I remember going to the house," Baltazar said. "Then the next thing I remember is the dude jumping out of his bed, and I shot him." He chuckles when asked why he fired. "He was a male coming at me," he said. "He was pretty close to me when I shot him." Arturo Marines still has bullet fragments in his jaw, and his teeth are crooked. Vanessa Marines also carries a bullet in her chest. Doctors couldn't remove it sooner because it was lodged close to her heart. Since then, the bullet has migrated toward her back, closer to her spine. Doctors hope to remove it when she's older. Until then, the bullet is a painful, physical reminder that she feels "when the weather changes," she said.

Convicted of murder

Baltazar, who said he had been drinking since 9 a.m. the morning of the shootings, is frustrated that his intended target wasn't at the house when he fired those shots. He went there looking for Adriana's uncle, Narciso "Ted" Cuellar, who reportedly beat up Baltazar's mother earlier that day. Firing at the two girls was accidental, he said. "It might have been just reflex," he said. "It was dark. I don't know. I really don't. "I'm sorry for Adriana. There's not even enough words for me to say how sorry I am for the little girl. If I wasn't sorry I'd be one sorry dude."

Less than a year after the shooting, a Nueces County jury convicted Baltazar of capital murder and sentenced him to death. He was also convicted of aggravated assault and given two life sentences for shooting Vanessa Marines and Arturo Marines.

Johnny Gonzales, who also stormed into the Marineses' Panama Drive home that night, was sentenced to 80 years in prison for Adriana's death, 40 years for burglary of a habitation, 60 years for aggravated assault on Arturo Marines and 80 years in prison for aggravated assault on Vanessa Marines.

Baltazar doesn't reflect on his life as his execution date nears. "The only thing that really bothers me is that it's too fast," he said. "I wasn't notified until Nov. 19 of my execution date. And here it is, Jan. 15, that's less than two months." Baltazar's not afraid of his fate. "You got to go sometime," he said. "Only thing about mine is that I know how I'm going. I've been prepared since the beginning. Plus it's not supposed to hurt, so I've got an advantage. "Either way - give me life or execute me - it don't matter. It'd be better than being here on the row. I'm ready either way."

John Baltazar executed

UPI International

HUNTSVILLE, Texas, Jan. 15 (UPI) -- A Texas killer was executed Wednesday for shooting a 5-year-old girl to death in a 1997 spree ignited by the beating of his mother. John Baltazar, 30, was pronounced dead at 6:16 p.m. after receiving a lethal injection for the murder of Adriana Marines at her Corpus Christi home. Baltazar offered no final statement before his death.

Baltazar was out to avenge the beating of his mother by her boyfriend, according to court records. The boyfriend was known to stay at his sister's house and Baltazar went there, kicked down the door, and shot up the couch where he usually slept. Adriana Marines was sleeping on the couch and she was hit twice in the head. Her 10-year-old sister, Vanessa, and the sister's husband, Jose Arturo Marines, 19, were each shot twice but they survived. The boyfriend was not in the house.

Batazar was arrested based on a description given by Vanessa and other witnesses. Police also matched a footprint from the home to a pair of Baltazar's shoes.

Batazar was the second convicted killer executed this year in Texas and the 291st put to death since the state restored the death penalty in 1982.

Deathrow.at

John Baltazar - Executed on January 15, 2003

Letter from John :

Dearest Reader,

My name is John R. Baltazar and I am a 29 year old male. I am an have been on D / R since March of '98, but have been incarcerated since September of '97.

I am writing in hopes of obtaining pen-friends whom would like to write to a person in a situation such as myself. I am not only looking for pen-friends, but am also hoping to find / meet people who would / could be of assistance to me and my fight to get my sentence overturned.

I enjoy reading, writing, drawing, collecting photos, and meeting new people, and my interests are vast as the heavens. I can assure that I will write and keep in touch as often as possible, in hopes that our penfriend relationship will grow! I will answer all letters, even those who only would like to write and get to know about the person behind the convicted man who sits here on D / R.

What I am trying to do is get off of D / R and hopefully get a new trial. I have been sentenced to D / R, but I was not properly represented and my case is not a capital murder case. "I should have been tried for a lesser crime which should have been read to the jury, and found guilty of that .........if anything !"

I am indigent and so therefore it makes my task an even harder one, but not one that is impossible ! Anyone who is willing to write and correspond and help me during this time of need, and or just wants a lasting friendship...I am the person to write !

Truly,

JOHN R. BALTAZAR
# 999257
Polunsky Unit
3872 FM 350 South
Livingston, Texas 77351

Canadian Coalition to Abolish the Death Penalty

John's Penpal Request - Please Write !

I am a death row inmate who is looking for penfriends from all over. I am a 27 year old Hispanic male who is looking to write others that would like to correspond with an individual in my situation! I don't have anyone whom I correspond with and beleive that a penfriend(s) will help me tremendously! It would not only improve the moral support needed, but would also providea continuing form of encouragement in a trying time such as this. I love to write and meet new people. My interests are vast as the heavens, but I am much into: reading, writing, arts and crafts, / drawing, collecting photographs, listening to music and working out. I can gaurantee plenty of letters. So if you are looking for a lasting friendship, I am the person you would like to write. Lets be friends and get to know each other. May God bless you and I truly look forward to hearing from you. "Talk" to you soon. Sincerely!

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PETITION FOR WRIT OF HABEAS CORPUS

I. BACKGROUND HISTORY OF CASE

Petitioner was convicted of the offense of capital murder, in the District of Nueces County, and assessed the death penalty for the offense of murder. See Section 19.03(a)(8, Penal Code. The conviction and sentence of the Petitioner are presently pending on appeal.

On June 10,1998, the Court of Criminal Appeals entered an order appointing Attorney at Law Roy E. Greenwood as counsel for applicant under the provisions of Article 11.071, V.A.C.C.P.

Petitioner's Petition For Writ Of Habeas Corpus was filed in a timely manner. The state subsequently filed its Answer in this matter, and this court, after reviewing the pleadings of the parties, entered an order on July 8,1999, ordering several persons to file affidavits with regard to the allegations made by petitioner in this case. On or about August 30,1999, the state obtained and filed these affidavits with this court. Thereafter, this court determined that there were no unresolved fact issues" that needed to be resolved in an evidentiary hearing, and entered an order on October 11, 1999, making such a determination. This court further then instructed the parties to submit proposed findings of fact and conclusions of law to this court on or before November 10,1999,

II. PETITIONER'S HABEAS ALLEGATiONS

The habeas corpus application filed by petitioner raises the following grounds for habeas corpus relief, to wit:

GROUND FOR HABEAS RELIEF NO.1

THE PETITIONER WAS DEPRIVED OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHEN HE WAS SUBJECTED TO AND ILLEGAL ARREST AND SEARCH AND SEIZURE, AND WHERE CRUCIAL EVIDENCE WAS SEIZED PURSUANT TO THAT ARREST.

GROUND FOR HABEAS RELIEF NO.2

THE PETITIONER WAS DEPRIVED OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS UNDER ARTICLE 1, SECTION 10, TEXAS CONSTITUTION, WHEN HE WAS SUBJECTED TO AND ILLEGAL ARREST AND SEARCH AND SEIZURE, AND WHERE CRUCIAL EVIDENCE WAS SEIZED PURSUANT TO THAT ARREST.

GROUND FOR HABEAS RELIEF NO.3

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.4

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, AS GUARANTEED BY ARTICLE I, SECTION 10, TEXAS CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.5

EVIDENCE OF CO-DEFENDANT RAMSEY GONZALES' "NEGOTIATED DEAL" WITH THE STATE WAS SUPPRESSED FORM THE DEFENSE, IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

GROUND FOR HABEAS RELIEF NO. 6

EVIDENCE OF CO-DEFENDANT RAMSEY GONZALES3 "NEGOTIATED DEAL" WITH THE STATE WAS SUPPRESSED FORM THE DEFENSE, IN VIOLATION OF ARTICLES I, SECTION 10, AND ARTICLES 14 AND 19, TEXAS CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.7

PETITIONER WAS DENIED DUE PROCESS OF LAW, UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, WHEN THE STATE FAILED TO CORRECT THE FALSE TESTIMONY OF RAMSEY GONZALEZ, MADE BEFORE THE JURY, AFTER HE DENIED THAT HE HAD BEEN "CHARGED" AT ANY TIME AS A PARTY IN THIS CASE, AND FURTHER DENIED RECEIVING - ANY "DEALS" FROM THE REPRESENTATIVES OF THE STATE, WHERE IT WAS ALSO SHOWN THAT THE WITNESS WAS ON "JUVENILE PROBATION", AND THUS SUBJECT TO REVOCATION OF THAT PROBATION SHOULD HE NOT COOPERATE WITH THE STATE BY TESTIFYING AGAINST PETITIONER. SEE DAVIS VS. ALASKA, 94 $.CT. 1105 ;GIGLIO VS. UNITED STATES, 405 U.S. 150.

GROUND FOR HABEAS RELIEF NO.8

PETITIONER WAS DENIED DUE PROCESS OF LAW, UNDER ARTICLE I, SECTIONS 14 AND 19, TEXAS CONSTITUTION, WHEN THE STATE FAILED TO CORRECT THE FALSE TESTIMONY OF RAMSEY GONZALEZ, MADE BEFORE THE JURY, AFTER HE DENIED THAT HE HAD BEEN "CHARGED" AT ANY TIME AS A PARTY IN THIS CASE, AND FURTHER DENIED RECEIVING ANY "DEALS" FROM THE REPRESENTATIVES OF THE STATE, WHERE IT WAS ALSO SHOWN THAT THE WITNESS WAS ON "JUVENILE PROBATION", AND THUS SUBJECT TO REVOCATION OF THAT PROBATION SHOULD HE NOT COOPERATE WITH THE STATE BY TESTIFYING AGAINST PETITIONER. SEE DAVIS VS. ALASKA, 94 S.CT. 1105; GIGLIO VS. UNITED STATES, 405 U.S. 150.

GROUND FOR HABEAS RELIEF NO.9

THE APPLICATION OF THE DOCTRINE OF "TRANSFERRED lNTENT," UNDER SECTION 6.04 (B)(2), PENAL CODE, IN A CAPITAL MURDER PROSECUTION UNDER SECTION 19.03(8),PENAL CODE, DENIES PETITIONER DUE PROCESS OF LAW AND SUBJECTS PETITIONER TO CRUEL AND UNUSUAL PUNISHMENT, UNDER THE 5TH, 6TH, 8TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.10

THE APPLICATION OF THE DOCTRINE OD "TRANSFERRED INTENT," UNDER SECTION 6.04 (B)(2), PENAL CODE, IN A CAPITAL MURDER PROSECUTION UNDER SECTION 19.03(8),PENAL CODE, DENIES PETITIONER DUE PROCESS OF LAW AND SUBJECTS PETITIONER TO CRUEL AND UNUSUAL PUNISHMENT, UNDER ARTICLE I, SECTIONS 10,13,14, AND 19, TEXAS CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.11

PETITIONER HAS BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL, AS GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.12

PETITIONER HAS BEEN DENIED THE EFFECTIVE ASSlSTANCE OF COUNSEL ON APPEAL, AS GUARANTEED UNDER ARTICLE I, SECTION 101 TEXAS CONSTITUTION.

GROUND FOR HABEAS RELIEF NO.13

TRIAL COUNSEL FOR PETITIONER, GRANT JONES AND MICKEY KOLPACK HAD NOT BEEN QUALIFIED AND CERTIFIED AS COMPETENT TO DO DEATH PENALTY TRIAL WORK, AS IS REQUIRED BY THE PROVISIONS OF ARTICLE 26.052, V.A.C.C.P. AND THE ORDERS OF THE ADMINISTRATIVE JUDGES OF THE FIFTH JUDICIAL DISTRICT OF TEXAS, JUDGE DARRELL HESTER, THUS RENDERING THE THESE ATTORNEYS PRESUMPTIVELY DISQUALIFIED, AS A MATTER OF LAW, TO REPRESENT PETITIONER AT TRIAL, THUS VIOLATING ARTICLE I, SECTION 10, TEXAS CONSTITUTION.

GROUND FOR HABEAS RELIEF - NO.14

TRIAL COUNSEL FOR PETITIONER, GRANT JONES AND MICKEY KOLPACK HAD NOT BEEN QUALIFIED AND CERTIFIED AS COMPETENT TO DO DEATH PENALTY TRIAL WORK, AS is REQUIRED BY THE PROVISIONS OF ARTICLE 26.052, V.A.C.C.P. AND THE ORDERS OF THE ADMINISTRATIVE JUDGES OF THE FIFTH JUDICIAL DISTRICT OF TEXAS, JUDGE DARRELL HESTER, THUS RENDERING THE THESE ATTORNEYS PRESUMPTIVELY DISQUALIFIED, AS A MATTER OF LAW, TO REPRESENT PETITIONER AT TRIAL, THUS VIOLATING THE SIXTH AND FOURTEENTH AMENDMENT GUARANTEES OF THE UNITED STATES CONSTITUTION.

III. NO EVIDENTIARY HEARING NECESSARY

This court, having reviewed the petitioner's application for writ of habeas corpus, and the attachments and exhibits thereto, and the Respondent State of Texas' Reply to the petition, and having reviewed their attached exhibits, concludes that no evidentiary hearings are necessary, and this court has entered an order dated October 11,1999, advising the parties that no evidentiary hearing that will be scheduled in this case.

The petitioner has requested an evidentiary hearing, but this court hereby denies said request for an evidentiary hearing on these issues.

IV. TRIAL COURT'S FINDINGS OF FACT

Issues Nos. 1 - 2

Petitioner contends that his constitutional rights to be free from an illegal arrest, search and seizure were violated, under State and Federal constitutional principles.

1. This court finds that no objection was made during the trial on the grounds of illegal arrest, search or seizure, and therefore, this complaint has been "waived" for the purposes of habeas corpus review. 2. The Texas Court Of Criminal Appeals will have, in this habeas corpus review, the entire statement of facts and record reflecting the evidence concerning the validity of this arrest, therefore, if the Court of Criminal Appeals wishes to determine that he arrest and search of petitioner were invalid, they may do so as part of their habeas corpus review under Article 14.071 , and there is no need for this court to make a separate "finding of law" concerning the validity of this search, because the court of criminal appeals is not bound by any rulings on questions of law entered by this court.

Issue No.3 and 4.

Petitioner contends in these two complaints that he was deprived of the effective assistance of counsel at trial, as guaranteed by state and federal constitutional principles. this court finds that the following facts are evident from this record:

1. Even though the offense occurred on September 27,1997, the attorneys for Petitioner, having been appointed on Qctober 6,1997, agreed to go to Trial and began the jury selection on February 2,1998, a period of time barely four (4) months from the date of the appointment. No motion for continuance was requested.

2. Counsel at trial did not request the services of investigator in this case, even though there were numerous witnesses mostly of Hispanic origin to be interviewed for their testimony.

3. Counsel at trial did not request the appointment of any expert witnesses to review and challenge the State's evidence at guilt-innocence, i.e, either on expert testimony concerning identification of the shoe prints found at the scene; nor any expert witnesses on identification.

4. Mr. Jones, the lead counsel interviewed the Petitioner personally only on two or three times prior to the trial of this case, assigning his Second Chair Attorney, Mickey Kolpack, to have all contacts with Petitioner.

5. with the exception of the normal discovery motions, and a motion to suppress the identification, no other substantial motions were filed by the defense.

6. There was an issue concerning the admission into evidence of expert testimony concerning the shoes worn by Petitioner at the time of the crime, linking him to the scene of the crime, where such shoes had been obtained from Petitioner as a result of illegal arrest, but where no motion to suppress was filed by trial counsel, and where trial counsel admitted that the Petitioner personally asked him to file such motion to suppress. See and Compare Jackson V. State 973 S.W.2d 954.

7. Trial counsel raised an issue of proper identification procedure, at the pretrial hearing, during which 3 witnesses identified Petitioner in the trial of this case, even though all three witnesses had failed to make an identification of the Petitioner in a photographic lineup within three days of the offense, and the record shows that the witnesses did not participate in an actual personal lineup procedure. Trial counsel not only made no objection to the witnesses identification procedure during a pretrial hearing, but in fact affirmatively waived any complaint about the reliability of the identifications.

8. There are four network television stations in the Corpus Christi area, ABC, NBC, CBS and the local Spanish network, from October 2,1997, the date of the arrest of petitioner, until December 19, 1997, the date that the pretrial hearing on identification was conducted. The Marines family was watching television at the time of the shooting incident occurred.

9. At no time during the identification hearing did trial counsel Grant Jones, the lead attorney for petitioner, ever ask any of the Marines family alleged eyewitnesses whether or not they had been exposed to television news shows, or newspapers, which portrayed a likeness, photograph or videotape of Petitioner. Further, counsel specifically waived any complaint to the identification, even though no questions were asked of the witnesses whether their identification had been impacted by seeing television shows or reading newspapers prior to the evidentiary hearing conducted.

10. On at least 31 occasions during the jury selection in this case, counsel for Petitioner at trial stated that he had "no objection" to the State challenging various jurors for cause, thus preventing any such claim later on appeal or habeas corpus that these jurors were not qualified or prejudiced to serve on this panel, and further, the jury selection in this case reflects that counsel for petitioner during the selection did, in fact, make seven (7) challenges for cause to various jurors during the jury selection procedure, or objected to challenges made by the state.

11. Grant Jones, the lead counsel at trial for petitioner, was also appointed to represent petitioner in the appeal of this case. The brief was due on behalf of appellant on January 10,1999, and was, in fact, filed on January 8,1999, in a timely manner. The brief filed raises only two issues, and raises no complaints concerning jury selection procedures.

12. The State utilized oral statements made by the Petitioner, while the petitioner was in jail, charged with this offense, and after the petitioner had been appointed counsel, to show the jury, during the punishment phase of the trial, that the Petitioner was a member of the Texas Syndicate, a notorious Hispanic criminal enterprise gang. The record affirmatively shows that Grant Jones was appointed as counsel for petitioner on October 6,1997, six days after the petitioner was arrested, and had requested counsel. During the punishment hearing, deputy Silva was called (Volume 23, p.80, et seq) who related without objection that he had talked to petitioner, and that petitioner head admitted being a member of the Texas Syndicate prison gang, with the state offering said report of this conversation into evidence as State's Exhibit No.58. No objection was made on any grounds to the admission of this evidence.

13. Grant Jones, the lead counsel at trial for petitioner never even considered having the Petitioner interviewed by a mental health expert.

14. During the Trial of this case, it was undisputed that the shooting incident in this matter occurred at 10: 40 p.m. on September 27 1997. According to the evidence, petitioner was, of course, under electronic monitoring on the evening of September 27th. Counsel for petitioner never utilized any evidence with regard to any attempt to perfect an imperfect alibi for petitioner.

15. Ramsey Gonzales testified that he had been promised nothing for his testimony, yet the record reflects that Ramsey Gonzales in fact was arrested, on October 6,1997, and charged with capital murder in this case, and wound up giving two statements to police. See Petitioner's Exhibits No.13 (10/2197) and 14 (10/6/97), with their being in conflicts between statements. Vol.20, pages 25-81. However, none of this information concerning the arrest, the charges, or Ramsey Gonzales' attorney were brought out on cross-examination.

16. During the testimony of Ramsey Gonzales , counsel for petitioner, on cross-examination, asked Ramsey Gonzales if any consideration had been given to him a for his testimony, i.e., "a deal" by the state. The witness responded, on two separate occasions, that no such promises or deals had been made. See Volume, 20 p.50-52. No further questions were asked by Attorney Jones with regard to the background of this witness's arrest, or the charges filed against him, or any negotiations that he had with the representatives of the state.

17. Ramsey Gonzalez was arrested and charged with this capital murder offense, and the evidence further it shows, by his own admission, that he was present at the scene of the shooting, and in fact, may have known in advance that a shooting was to occur. However, at no time it did the defense ever request that the Court instruct the jury that Gonzalez was an accomplice under the provisions of the law. No request was made that the Court instruct the jury either on the factual issue, or on the legal issue as to whether Gonzalez was an accomplice. Therefore, this jury was permitted to accept the testimony of Gonzalez without limitation.

18. There were no jury charge complaints made about the court's instructions on the transferred intent charges given to jury.

19. No Use of Provocation Evidence By Petitioners Counsel was offered during the punishment phase.

Issues Nos. 5, 6, 7 and 8

In four separate complaints, petitioner contends that the District Attorney's Office negotiated a deal with state's witness Ramsey Gonzalez to testify against petitioner, and that evidence of such a "deal" was suppressed from the defense counsel and the jury, with Petitioner also claiming that Gonzales gave false testimony before the jury concerning the lack of any such "deal".

This court finds:

1. Ramsey Gonzales testified for the State, and provided substantial incriminating evidence against Petitioner.

2. Gonzales testmed that he had been promised nothing for his testimony, and further denied that he had ever been arrested or charged in this case. See Volume, 20 p.50-52.

3. The record reflects that Ramsey Gonzales in fact was arrested, on October 6,1997, and charged with capital murder in this case, and wound up giving a statement to police. In fact, Ramsey Gonzales gave two separate statements, one on October 2nd, and another on October 6, with the statements being in conflict.

4. The attorney for Ramsey Gonzales, Mr. Kevin Hanna, related that the following circumstances occurred with regard to the negotiations between counsel and the representatives of the state in order to secure Ramsey Gonzales' testimony against Petitioner: 1. Sometime in October, 1997, Mr. Hanna was appointed by one of the local judges to represent Ramsey Gonzales, who had been detained in the local juvenile facility, and who was charged with the offense of capital murder. 2. The charge of capital murder filed against Gonzales involved the same transaction for which petitioner Baltazar was eventually charged, convicted and assessed the death penalty, and Gonzales was a witness for the state against petition &-Baltazar at the trial. 3. At the time of his appointment to represents, Gonzales was on some form of juvenile "probation", as Mr. Hanna was advised that there had been some possibility of the filing a motion to revoke his juvenile "supervision', due to the possibility of "alcohol violations" and other supervision terms violations. 4. According to Mr. Hanna, prosecutor Deanie King informed him that even though the state did not have sufficient evidence to prosecute Gonzales on a capital murder case, that they were still going to "keep the charge on him", so they could keep him in "protective custody", prior to his testimony against petitioner. 5. Hanna advised Gonzales, prior to the trial of petitioner, that he still may have to go before the juvenile judge for a revocation hearing on his juvenile probation situation. 6. Hanna indicated to me that he and Ramsey Gonzales spent a considerable amount of time with the District Attorneys office staff preparing Gonzales to be a witness at the trial of Johnny Gonzales, the co-defendant of petitioner. While Mr. Hanna did not know if his client had ever been to the District Attorney's office without his being present, several discussions were conducted with members of the District Aftorney staff about his future testimony in these capital murder trials. 7. Mr. Hanna indicated that he was not concerned about the criminal liability of Mr. Gonzales, at as he knew that the capital murder charges filed against Ramsey would either "be dismissed", or had "already been dismissed" at some point in the proceedings before Ramsey Gonzales testified. 8. Hanna made clear that these capital murder charges would be "dropped" against Ramsey Gonzales if he testified, therefore Hanna was on the opinion that Gonzales did not need any further active "representation" when he testified. As a result, Mr. Hanna did not appear to assist or advise his client Ramsey Gonzales during the trial of petitioner. 9. Mr. Hanna recalled that he did remember discussing this situation with co-counsel for petitioner, Mickey Kolpack, but that he did not recall this conversation as being of any particular length or substance. 10. Mr. Hanna specifically denied that any overt or specific promises were made to him, or directly to Mr. Gonzales in his presence, offering any consideration directly for his testimony against petitioner and/or Johnny Gonzales; however, it was obvious that Mr. Hanna knew that his client, Ramsey Gonzales, had in fact been arrested and charged with capital murder, and as a juvenile, could have received many years in confinement for his role in this murder, and that Gonzales was subject to some form of 'juvenile" probation "supervision" criminal liability, i.e. probation revocation, and that even though he did not believe that any specific "promises or deals" were made to him by the state, it is clear that Gonzales had been assured, in advance by representatives of the state prosecution, that his client would not be subject to further prosecution, if he testified against petitioner in these cases.

5. None of this was brought out by trial counsel Jones to impeach witness Ramsey Gonzales before the jury in this case;

6. The State ever make an attempt to correct the false impression given by Gonzales before the jury.

Issues Nos. 9-10

Petitioner contends, in two separate complaints, that the jury instructions applying the law of "transferred intent" to this capital murder prosecution deprived petitioner of due process of law, and subjected him to cruel and unusual punishment.

1. This court finds that no objections were made to the court's jury instructions during the trial of this case, and that no such issue was raised in the direct appeal of this case, thus these issue is being raised, for the first time, on post conviction habeas corpus.

2. This court finds that the questions presented by these two complaints are questions of "law" and not factual questions, and thus, the Court Of Criminal Appeals, in its habeas corpus review under Article 11.071, has the jurisdiction to determine whether this jury charge was unconstitutional as applied to petitioner in this case, and since such question is a "question of law", any such findings of law made by this court are not binding on the Court Of Criminal Appeals, thus this court declines to make any findings with regard to these issues.

Issues Nos. 11-12

Petitioner contends, in two separate complaints, that he has been denied the effective assistance of counsel on appeal, in violation of State and Federal protections, because the failure of Grant Jones to properly brief and represent petitioner in the appeal of this case. 1. This court finds that the appeal of this case has just recently been affirmed by the Court of Criminal Appeals; 2. Because the Court Of Criminal Appeals has affirmed this conviction, this court does not believe it proper at to make any findings concerning "ineffective assistance" in a proceeding before the Court.

Issues Nos. 13-14

Petitioner contends, in two separate complaints, that it has not been shown that his trial counsel had not been properly qualified and certified under the provisions of Article 26.052, Texas Code Of Criminal Procedure, to represent petitioner in a "capital murder trial" of an offense occurring after September 1,1995.

1. This court finds that the provisions of Article 26.052 were applicable to this case, and that under those provisions, attorneys representing defendants in death penalty cases at trial are required by statutory mandate to be "certified" as competent to represent such death penalty defendants.

2. This court finds that, according to exhibits submitted to this court by the state, a committee of persons were impaneled by Judge Darrell Hester, Administrative Judge Of The Fifth Judicial District of Texas, at some time prior to this trial, pursuant to Article 26.052, Code Of Criminal Procedure, and a set of guidelines for qualifications of counsel were enacted by that committee. See Appendix C, p.1 of the Supplemental Answer filed by the state in this case.

3. According to the attached exhibits submitted by the state, an "Amended List" of attorneys qualified for appointment in death penalty cases, under Article 26.052 was certified, on or before November 24,1997, for attorneys in the Fifth Administrate District of Texas. See Exhibit C, pages 2-3.

4. On the list of qualified attorneys for Nueces County, Grant Jones has been certified as qualified for practice in death penalty cases in that County.

5. Mickey Kolpack, co-counsel in this case, sitting as second chair, has not been certified as qualified to take an appointment as lead counsel, in a death penalty case.

6. The exhibits mentioned above, submitted by the all state, do not reflect a date that these orders were entered or these qualifications lists were set, but there is a fax transmission date reflecting that these documents were in existence on November 24,1997.

V. TRIAL COURT'S CONCLUSIONS OF LAW

This Court, after entering the Findings of Fact, above, now makes the following Conclusions Of Law with regard to these findings and the issues raised by petitioner, to wit:

Issues Nos. 1, 2,

1. This court believes that this issue has been waived for habeas corpus review, because no objection was made on the grounds of search and seizure or in the trial of this case.

2. However, in the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.

Issue No.3-4

1. This court finds that there are facts alleged by petitioner which, if true, would entitle petitioner to relief on a claim of denial of ineffective assistance of counsel.

2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.

Issues Nos. 5-6-7-8

1. This court finds that there are sufficient facts alleged by the by petitioner which, if true, would entitle petitioner to relief on a claim of that the witness committed perjury and that evidence was pressed from the defense.

2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.

Issues No.9-10

1. This court finds that no objections were made to the court's jury instructions during the trial of this case, and that no such issue was raised in the direct appeal of this case, thus these issue is being raised, for the first time, on post conviction habeas corpus.

2. This court finds that the questions presented by these two complaints are questions of "law" and not factual questions, and thus, the Court Of Criminal Appeals, in its habeas corpus review under Article 11.071, has the jurisdiction to determine whether this jury charge was unconstitutional as applied to petitioner in this case, and since such question is a "question of law", any such findings of law made by this court are not binding on the Court Of Criminal Appeals, thus this court declines to make any findings with regard to these issues.

Issues No.11-12

1. This court finds that there are sufficient facts alleged by the petition filed by petitioner which, if true, might entitle petitioner to relief on a claim of denial of ineffective assistance of counsel on appeal.

2. In the event that the Court Of Criminal Appeals determines that there are additional fact circumstances that need to be considered with regard to these issues, the Court Of Criminal Appeals can remand this case for further hearings on these matters.

Issues No.13-14

1. This court finds that there was no apparent violation of the provisions of Article 26.052, Texas Code Of Criminal Procedure, in that procedures were formulated for the qualifications of counsel in death penalty cases in Nueces County.

2. This court further finds that, even though there is no date on the exhibits showing exactly when the approval of the qualifications of attorneys to represent death penalty defendants was created, or that the list of attorneys so qualified in Nueces County were qualified prior to October 6,1997, the date that counsel was appointed to represent petitioner in this case, that these qualifications were in place and effective in November, 1997, prior to the trial in this matter, therefore this court the believes that since Grant Jones was so certified according to the statutory provisions prior to this trial, no substantial violation of the statue occurred.

3. This court finds that the questions presented by these two complaints are questions of "law" and not factual questions, and thus, the Court Of Criminal Appeals, in its habeas corpus review under Article 11.071, has the jurisdiction to determine whether this possible violation of Article 26.052, V.A.C.C.P. is worthy of review on habeas corpus; further, since such question is a "question of law", any such findings of law made by this court are not binding on the Court Of Criminal Appeals, thus this court declines to make any legal findings with regard to these issues.

V. RECOMMENDATIONS TO COURT OF CRIMINAL APPEALS

This Court, considering the Findings Of Fact and Conclusions Of Law made herein, recommends to the Court Of Criminal Appeals that several issues raised in this Application For Writ Of Habeas Corpus present questions of possible Constitutional magnitude, under the provisions of the Federal and State Constitutions, therefore this Court recommends that he Court Of Criminal Appeals "file and set" this case to further consider the merits of these claims as presented by petitioner herein.

VI. ORDER TO TRANSMIT RECORD

The Clerk of this Court is therefore ordered to prepare a transcript of this cause, including therein all the pleadings and motions filed by petitioner, all pleadings and motions filed by the state, including copies of all exhibits filed by the parties, the docket sheet, all orders of the Court in this case, the proposed Findings Of Fact and Conclusions Of Law filed by both parties, and the final ORDER of the Court herein, and transmit said transcript to the Court Of Criminal Appeals pursuant to the provisions of Article 11.071, Code Of Criminal Procedure, providing copies of this transcript to both the representatives of the state and to the counsel for petitioner.

The victim, five-year-old Adriana Marines, who was killed
by two shots to her head.