Mexican Mafia general put to death

By Vianna Davila - San Antonio Express-News

March 6, 2007

HUNTSVILLE —Robert "Beaver" Perez, a notorious leader of the prison-based Mexican Mafia gang who prosecutors linked to more than 15 San Antonio murders, was executed Tuesday night as his family looked on. In the moments before Perez, a general in the Mexican Mafia, was executed for the slayings of two men, his wife offered him up one last prayer for peace. "God Bless you," murmured Mary Perez, as two of her husband's sons, Chrisand Vicente, wept and embraced her, and his brother Ernest stood by. His wife continued, "You're still my hero. You'll always be my hero."

Perez, who in the course of his 1999 capital murder trial was linked to 15 other gang-related murders in San Antonio, only told his family members that he loved them, never to forget and to stay strong. "Take care of them," Perez directed Mary, referring to his children and family. "I love you too." Then he told the warden he was ready.

"I got my boots on," Perez said, as the administration of the dose began. "Like a cowboy." Perez was pronounced dead at 6:17 p.m. He was 48 years old. No victims or relatives of any of Perez's victims attended the execution. This was Perez's first execution setting. Last week, he lost a civil rights suit challenging his lethal injection.

Perez was sentenced to death in 1999 for the murders of Jose Travieso, wheelchair-bound from a previous shooting; and James Robert Rivasat the Mirasol Homes public housing project on the West Side. Perez wounded another man, Travieso's nephew, in the 1994attack.

During the trial, prosecutors linked Perez to 15 gang-related shootings in San Antonio, including the murders of five people at an apartment on West French Place in 1997. Those slayings were the focus of a federal trial held earlier in 1999 in which Perez was a co-defendant, along with several other alleged Mexican Mafia members.

Always at issue was whether Perez had ordered his soldiers to raid the apartment for drugs and money and if he told them to leave no witnesses behind. At least one Mexican Mafia member testified that one of the gang's lieutenants had orchestrated the burglary because he had a grudge against someone in the house. That lieutenant was found fatally shot two months after the West French Place massacre, reportedly for talking about the murders.

Perez and his co-defendants each were convicted of racketeering and conspiracy to racketeer; and Perez was sentenced to life in federal prison. The sweeping verdicts were considered a significant blow to the Mexican Mafia, an organization that has its roots within the prison system as a means of funneling money to inmates and offering them protection. Eventually, the gang's influence spilled into the streets, culminating in a period of intense bloodshed in San Antonio in the mid-1990s.

A laborer by trade with only a ninth-grade education, Perez ascended to power within the organization using his charisma and ruthlessness, prosecutors said. When Perez was arrested at his home for the Mirasol killings three years after they occurred, officers recovered $30,000 in cash, a magazine clip with ammunition and large amounts of jewelry.

Yet in a letter to his common law wife at the time, Perez wrote of one day hoping to own a home. Whether he ever got that home was unclear Tuesday. But his wife Mary hoped he'd find some rest in wherever he was going. "He's at peace," she said quietly.

Prison Gang Chief Set To Die For 1994 Slayings

Mexican Mafia Chief Robert Perez Would Be 7th Texas Death Row Inmate Executed This Year

CBS11tv.com

Associated Press - March 6, 2007

(AP) HUNTSVILLE - A leader in a notorious prison gang who authorities said sanctioned more than a dozen killings during an unprecedented wave of violence in San Antonio in the 1990s headed to the Texas death chamber Tuesday evening for a double slaying in the Alamo city.

Robert Perez, 48, who rose to the rank of general in the military-structured Mexican Mafia gang, would be the seventh prisoner executed this year in Texas, the nation's most active death penalty state, and the first of two in as many nights. Appeals were exhausted for Perez. A civil lawsuit on his behalf challenging the Texas execution procedures was dismissed in a Houston federal court last week.

Perez already was headed for a federal life prison term on racketeering and conspiracy convictions for a series of robberies, drug deals and murders in San Antonio from 1994 through 1997 when he was tried on state charges for the 1994 slayings of Jose Travieso and James Rivas. Their fatal shootings came during what authorities said was an internal power struggle within the prison gang, which lost its Texas founder and president, Heriberto "Herbie" Huerta, when he was convicted in 1994 on federal racketeering charges and sentenced to life in federal prison. Huerta's demise left a split in the group founded to provide protection for Hispanic inmates in Texas prisons.

Perez, on probation for a manslaughter conviction, took over one of the gang's factions, and the rivalry with another faction prompted the killings of Travieso, 34, who in a wheelchair with injuries from a previous shooting, and Rivas, 27. Travieso's nephew, who was at the shooting scene, testified against Perez, along with two of Perez's companions. Another witness was an informant who had served as Perez's triggerman.

Evidence also tied Perez, the father of eight, to more than a dozen other slayings, including an infamous San Antonio gangland-style execution of five people in 1997 known as the West French Place killings. The trial was moved from San Antonio to Dallas because of publicity in Perez's hometown. "We presented evidence of between 12 and 18 homicides, all of which occurred while Robert was general of the Mexican Mafia here in San Antonio," said federal prosecutor Mary Green, who was a Bexar County assistant district attorney when she tried Perez. "I found out later he never pulled the trigger after the double in April 1994. All the others were ones he ordered through the years."

Perez declined to speak with reporters in the weeks preceding his execution date. He did not testify at his capital murder trial. "That was his choice," defense lawyer David Bires said. "I felt like he had a fairly decent self-defense claim. "There had been essentially another group of people that was plotting to assassinate him and the two groups came into contact and it resulted in a shooting. There was evidence shots were fired from both sides." But Bires said without Perez's own testimony, "It was hard to make self-defense fly. ... Then the punishment phase was so horrendous, proving up 13 other homicides. The punishment phase was absolutely gruesome." Jurors sentenced him to death.

On an Internet site inmates use to seek penpals, Perez said he couldn't promise letter writers much more than friendship and a "vow to be honest, respectful, understanding and a very good listener. I give you my loyalty in all aspects."

Jeff Mulliner, who was an assistant Bexar County district attorney who also helped prosecute Perez, said Perez was "someone who did bad things and has a whole dimensional shading to his character." But Mulliner, now in private practice, also found Perez to have "an abundance of charisma, a keen intellect, a sharp wit and a sense of humor." "I kind of appreciated all those things about him," Mulliner said. "Other than French Place, which is a footnote, I believe part of the honor of Robert Perez is he was not dangerous to an elderly lady trying to cross the street or to a young man on the bus to work. I think the only people in danger from Robert Perez were people he was associated with that didn't follow the rules."

Set to follow Perez to the death chamber Wednesday evening was Joseph Nichols, convicted in the fatal shooting of a Houston convenience store clerk more than 25 years ago.

Prison gang leader executed in double killing

Houston Chronicle

Associated Press - March 6, 2007

HUNTSVILLE — A leader in a notorious prison gang who authorities said sanctioned more than a dozen killings during a wave of violence in San Antonio in the 1990s was executed Tuesday evening for a double slaying in the Alamo City.

Robert Perez, 48, who rose to the rank of general in the military-structured Mexican Mafia gang, was the seventh prisoner executed this year in Texas. A civil lawsuit on Perez's behalf challenging the Texas execution procedures was dismissed last week.

Perez already was headed for a federal life prison term on racketeering and conspiracy convictions for a series of robberies, drug deals and murders in San Antonio from 1994 through 1997 when he was tried on state charges for the 1994 slayings of Jose Travieso and James Rivas. Their fatal shootings came during what authorities said was an internal power struggle within the prison gang after its Texas founder and president, Heriberto "Herbie" Huerta, was convicted in 1994 on federal racketeering charges and sentenced to life in federal prison. Huerta's demise left a split in the group founded to provide protection for Hispanic inmates in Texas prisons.

Perez, on probation for a manslaughter conviction, took over one of the gang's factions, and the rivalry with another faction prompted the killings of Travieso, 34, who was in a wheelchair with injuries from a previous shooting, and Rivas, 27. Travieso's nephew, who was at the shooting scene, testified against Perez, along with two of Perez's companions. Another witness was an informant who had served as Perez's triggerman.

Evidence also tied Perez, the father of eight, to more than a dozen other slayings, including an infamous San Antonio gangland-style execution of five people in 1997 known as the West French Place killings. The trial was moved from San Antonio to Dallas because of publicity in Perez's hometown. "We presented evidence of between 12 and 18 homicides, all of which occurred while Robert was general of the Mexican Mafia here in San Antonio," said federal prosecutor Mary Green, who was a Bexar County assistant district attorney when she tried Perez. "I found out later he never pulled the trigger after the double in April 1994. All the others were ones he ordered through the years."

Perez declined to speak with reporters in the weeks preceding his execution date. He did not testify at his capital murder trial. "That was his choice," defense lawyer David Bires said. "I felt like he had a fairly decent self-defense claim.

"There had been essentially another group of people that was plotting to assassinate him and the two groups came into contact and it resulted in a shooting. There was evidence shots were fired from both sides." But Bires said without Perez's own testimony, "It was hard to make self-defense fly. ... Then the punishment phase was so horrendous, proving up 13 other homicides. The punishment phase was absolutely gruesome." Jurors sentenced him to death.

On an Internet site inmates use to seek pen pals, Perez said he couldn't promise letter writers much more than friendship and a "vow to be honest, respectful, understanding and a very good listener. I give you my loyalty in all aspects."

Jeff Mulliner, who was an assistant Bexar County district attorney who also helped prosecute Perez, said Perez was "someone who did bad things and has a whole dimensional shading to his character." But Mulliner, now in private practice, also found Perez to have "an abundance of charisma, a keen intellect, a sharp wit and a sense of humor." "I kind of appreciated all those things about him," Mulliner said. "Other than French Place, which is a footnote, I believe part of the honor of Robert Perez is he was not dangerous to an elderly lady trying to cross the street or to a young man on the bus to work. I think the only people in danger from Robert Perez were people he was associated with that didn't follow the rules."

Set to follow Perez to the death chamber tonight is Joseph Nichols, convicted in the fatal shooting of a Houston convenience-store clerk more than 25 years ago.

Prison gang chief executed for 1994 double slaying

Dallas Morning News

AP - March 6, 2007

HUNTSVILLE, Texas – A leader in a notorious prison gang who authorities said sanctioned more than a dozen killings during an unprecedented wave of violence in San Antonio in the 1990s was executed Tuesday evening for a double slaying in the Alamo city.

Robert Perez greeted his wife, two sons and a brother with a big smile as they entered the death chamber. "Tell all the kids I love them and never forget," he said in a brief final statement. "Tell everybody I love them. Stay strong. Bye-bye." After exchanging "love you" with his relatives, he remarked, "I got my boots on like the cowboys." Just before slipping into unconsciousness after the lethal dose began, Perez said he could "taste it." Seven minutes later, at 6:17 p.m., he was pronounced dead. No friends or relatives of the victims chose to attend.

Perez, 48, who rose to the rank of general in the military-structured Mexican Mafia gang, was the seventh prisoner executed this year in Texas, the nation's most active death penalty state, and the first of two in as many nights. A civil lawsuit on Perez's behalf challenging the Texas execution procedures was dismissed in a Houston federal court last week.

Perez already was headed for a federal life prison term on racketeering and conspiracy convictions for a series of robberies, drug deals and murders in San Antonio from 1994 through 1997 when he was tried on state charges for the 1994 slayings of Jose Travieso and James Rivas. Their fatal shootings came during what authorities said was an internal power struggle within the prison gang, which lost its Texas founder and president, Heriberto "Herbie" Huerta, when he was convicted in 1994 on federal racketeering charges and sentenced to life in federal prison. Huerta's demise left a split in the group founded to provide protection for Hispanic inmates in Texas prisons.

Perez, on probation for a manslaughter conviction, took over one of the gang's factions, and the rivalry with another faction prompted the killings of Travieso, 34, who was in a wheelchair with injuries from a previous shooting, and Rivas, 27.

Travieso's nephew, who was at the shooting scene, testified against Perez, along with two of Perez's companions. Another witness was an informant who had served as Perez's triggerman.

Evidence also tied Perez, the father of eight, to more than a dozen other slayings, including an infamous San Antonio gangland-style execution of five people in 1997 known as the West French Place killings. The trial was moved from San Antonio to Dallas because of publicity in Perez's hometown. "We presented evidence of between 12 and 18 homicides, all of which occurred while Robert was general of the Mexican Mafia here in San Antonio," said federal prosecutor Mary Green, who was a Bexar County assistant district attorney when she tried Perez. "I found out later he never pulled the trigger after the double in April 1994. All the others were ones he ordered through the years."

Perez declined to speak with reporters in the weeks preceding his execution date. He did not testify at his capital murder trial. "That was his choice," defense lawyer David Bires said. "I felt like he had a fairly decent self-defense claim.

"There had been essentially another group of people that was plotting to assassinate him and the two groups came into contact and it resulted in a shooting. There was evidence shots were fired from both sides." But Bires said without Perez's own testimony, "It was hard to make self-defense fly. ... Then the punishment phase was so horrendous, proving up 13 other homicides. The punishment phase was absolutely gruesome." Jurors sentenced him to death.

On an Internet site inmates use to seek penpals, Perez said he couldn't promise letter writers much more than friendship and a "vow to be honest, respectful, understanding and a very good listener. I give you my loyalty in all aspects."

Jeff Mulliner, who was an assistant Bexar County district attorney who also helped prosecute Perez, said Perez was "someone who did bad things and has a whole dimensional shading to his character." But Mulliner, now in private practice, also found Perez to have "an abundance of charisma, a keen intellect, a sharp wit and a sense of humor." "I kind of appreciated all those things about him," Mulliner said. "Other than French Place, which is a footnote, I believe part of the honor of Robert Perez is he was not dangerous to an elderly lady trying to cross the street or to a young man on the bus to work. I think the only people in danger from Robert Perez were people he was associated with that didn't follow the rules."

Set to follow Perez to the death chamber Wednesday evening was Joseph Nichols, convicted in the fatal shooting of a Houston convenience store clerk more than 25 years ago.

Prison gang leader executed in deaths of San Antonio men

By Stewart Smith - The Huntsville Item

March 07, 2007

The leader of a notorious prison gang was all smiles before being put to death by lethal injection Tuesday evening. Robert Martinez Perez’s sons, wife and brother greeted him with smiles and waves as they entered the viewing chamber. “Ernest, Christopher, Ochente, Mary and Jennifer, tell all the kids I love them and never forget,” Perez said in his final statement. “Tell Bobby, Mr. Bear will be dancing for them. Tell Bear not to feel bad. My love always, I love you all. Stay strong, Mary. Take care of them.”

Perez was convicted of the 1994 shooting death of two Hispanic males, Joe Travieso and Robert Rivas in San Antonio. Perez shot both of them with a .380-caliber pistol, 9-millimeter pistol and a .38-caliber pistol during an internal power struggle within the Mexican Mafia. Police arrested Perez at his home in November 1994 — seven months after the shootings — where they discovered $30,000 in U.S. currency, a magazine clip with ammunition and a large quantity of jewelry. No members of the victims’ families were present.

Perez, 48, who rose to the rank of “general” in the military-structured Mexican Mafia gang, was the seventh prisoner executed this year in Texas, the nation’s most active death penalty state, and the first of two in as many nights. A civil lawsuit on Perez’s behalf challenging the Texas execution procedures was dismissed in a Houston federal court last week.

Perez already was headed for a federal life prison term on racketeering and conspiracy convictions for a series of robberies, drug deals and murders in San Antonio from 1994 through 1997 when he was tried on state charges for the 1994 slayings of Travieso and Rivas. Their fatal shootings came during what authorities said was a struggle within the gang, which lost its Texas “founder and president” Heriberto “Herbie” Huerta when he was convicted in 1994 on federal racketeering charges and sentenced to life in federal prison.

Huerta’s imprisonment left a split in the group founded to provide protection for Hispanic inmates in Texas prisons. Perez, on probation for a manslaughter conviction, took over one of the gang’s factions and the rivalry with another faction prompted the killings of Travieso, 34, who was in a wheelchair with injuries from a previous shooting, and Rivas, 27. Travieso’s nephew who was at the shooting scene testified against Perez, along with two of Perez’s companions. Another witness was an informant who had served as Perez’s triggerman.

Evidence also tied Perez — a father of eight — to more than a dozen other slayings, including an infamous San Antonio gangland-style execution of five people in 1997 known as the West French Place killings. The trial was moved from San Antonio to Dallas because of publicity in Perez’s hometown.

“We presented evidence of between 12 and 18 homicides, all of which occurred while Robert was general of the Mexican Mafia here in San Antonio,” said federal prosecutor Mary Green, who was a Bexar County assistant district attorney when she tried Perez. “I found out later he never pulled the trigger after the double (murders) in April 1994. All the others were ones he ordered through the years.” Perez declined to speak with reporters in the weeks preceding his execution date. He did not testify at his capital murder trial. “That was his choice,” defense lawyer David Bires said. “I felt like he had a fairly decent self-defense claim. “There had been essentially another group of people that was plotting to assassinate him and the two groups came into contact and it resulted in a shooting. There was evidence shots were fired from both sides.”

But Bires said without Perez’s own testimony, “It was hard to make self-defense fly. ... Then the punishment phase was so horrendous, proving up 13 other homicides. The punishment phase was absolutely gruesome.” Jurors sentenced him to death.

On an Internet site inmates use to seek penpals, Perez said he couldn’t promise letter writers much more than friendship and a “vow to be honest, respectful, understanding and a very good listener. I give you my loyalty in all aspects.”

Jeff Mulliner, who was an assistant Bexar County district attorney who also helped prosecute Perez, said Perez was “someone who did bad things and has a whole dimensional shading to his character.” But Mulliner, now in private practice, also found Perez to have “an abundance of charisma, a keen intellect, a sharp wit and a sense of humor.” “I kind of appreciated all those things about him,” Mulliner said. “Other than French Place, which is a footnote, I believe part of the honor of Robert Perez is he was not dangerous to an elderly lady trying to cross the street or to a young man on the bus to work. I think the only people in danger from Robert Perez were people he was associated with that didn’t follow the rules.”

Set to follow Perez to the death chamber Wednesday evening was Joseph Nichols, convicted in the fatal shooting of a Houston convenience store clerk more than 25 years ago.

Texas Execution Information Center by David Carson.

Txexecutions.org

Robert Anthony Martinez Perez, 48, was executed by lethal injection on 6 March 2007 in Huntsville, Texas for the gang-related murder of two men.

In 1994, Herbert Huerta, the founder and president of the Mexican Mafia in Texas, was sentenced to life in federal prison. Huerta named Diane "Laura" Guzman as general of the San Antonio division. A rival, Luis "Blue" Adams, challenged Guzman's appointment, and the organization split in two. On 17 April 1994, Perez, then 41, Robert Herrera, and Frank Estrada, who were Huerta supporters, spotted Adams' car in San Antonio. After going home to arm themselves, they returned to the area and saw three of Adams' supporters - Jose and Jesse Travieso and Robert Rivas. They then opened fire, killing Jose Travieso and Robert Rivas, and wounding Jesse Travieso.

Over the next few years, Perez rose in the Mexican Mafia, or "Eme," in San Antonio, attaining the rank of general. He ordered and planned a successful hit on Adams several months after Travieso and Rivas were killed. He was also connected to one of the most bloody and notorious crimes in San Antonio history, when five people were killed in a West French Place apartment in 1997. Perez also ordered the killings of four members of his own organization, for disobeying orders or for talking about their activities. In all, prosecutors linked Perez to at least 15 murders in San Antonio. When Perez was arrested at his home, officers recovered $30,000 in cash and large amounts of jewelry.

His trial for the Travieso and Rivas murders was held in Dallas County. Jesse Travieso testified against Perez, as did a member of Perez's gang who turned into an informant. Perez did not testify in his defense.

Perez had a previous conviction for attempted manslaughter for stabbing a man numerous times in the heart and stomach during a domestic disturbance in October 1986. He was sentenced to ten years in prison. He was paroled in August 1990. While on parole, Perez received convictions for aggravated assault and evading arrest. He was returned to prison for a short while in 1992, but was paroled again after four months. (At the time, parole for repeat offenders was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) He was on parole at the time of the murders.

A jury convicted Perez of capital murder in May 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2001. All of his subsequent appeals in state and federal court were denied.

Before being tried for the Travieso and Rivas murders, Perez was a co-defendant in a federal trial for the West French Place murders. He was convicted of racketeering and conspiracy and was sentenced to life in federal prison - a sentence he never served, since he received the death penalty in his state trial. David Bires, Perez's lawyer, told reporters he thought Perez should have testified at his trial. "I felt like he had a fairly decent self-defense claim," Bires said. "There had been essentially another group of people that was plotting to assassinate him, and the two groups came into contact, and it resulted in a shooting. There was evidence shots were fired from both sides."

Jeff Mulliner, who was an assistant Bexar County district attorney during Perez's trial, said that Perez had "an abundance of charisma, a keen intellect, a sharp wit, and a sense of humor." "I kind of appreciated all those things about him," Mulliner said. "Other than French Place, which is a footnote, I believe part of the honor of Robert Perez is he was not dangerous to an elderly lady trying to cross the street or to a young man on the bus to work. I think the only people in danger from Robert Perez were people he was associated with that didn’t follow the rules."

Perez declined to be interviewed by reporters while he was on death row. Perez's brother, wife, and two sons attended the execution. As he entered the execution chamber, his wife, Mary, said, "God bless you. You're still my hero. You'll always be my hero." Perez greeted all of his visitors by name and expressed love and encouragement to them. "Take care of them," he said to Mary. "I love you too." Perez then told the warden that he was ready to receive the lethal injection. "I got my boots on, like a cowboy." He was pronounced dead at 6:17 p.m.

Perez v. Dretke, 393 F.Supp.2d 443 (N.D.Tex. 2005) (Habeas).

LINDSAY, District Judge.
Petitioner Robert Martinez Perez, by and through his counsel of record, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application is denied.

I. Factual and Procedural Background

Petitioner Robert Martinez Perez (“Petitioner”) was indicted on charges of capital murder for the 1994 murders of Jose Travieso and Robert Rivas, members of a San Antonio, Texas street gang called the Mexican Mafia. Petitioner was convicted of capital murder, and sentenced to death on May 21, 1999, in the 144 Judicial District Court of Bexar County, Texas. His conviction*446 and sentence were affirmed on direct appeal. Perez v. State, No. 73,457 (Tex.Crim.App. Sept. 19, 2001). Petitioner also filed an application for state post-conviction relief during the pendency of his appeal. The application was denied in an unpublished order. Ex parte Perez, Writ No. 55,333-01 (Tex.Crim.App. April 30, 2003). Petitioner then filed this action in federal court.

II. Issues Presented

In two grounds for relief, petitioner contends that he was denied due process of law when the trial court: (1) allowed the state to introduce cumulative, inadmissible extraneous offense evidence; and (2) permitted a plainclothes officer to stand near two prosecution witnesses in plain view of the jury.

*****

IV. Extraneous Offense Evidence

Petitioner first complains that the trial court allowed the state to present evidence about a street gang known as the “San Antonio Mexican Mafia,” including evidence of disputes within the organization and criminal acts perpetrated by gang members. According to petitioner, none of these extraneous matters was connected to him and should have been excluded from his trial.

A. Applicable Law

The First Amendment to the United States Constitution protects an individual's rights to join groups and associate with others holding similar beliefs. See Dawson v. Delaware, 503 U.S. 159, 163, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). The Constitution, however, does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations simply because those beliefs and associations are protected. See id. at 165, 112 S.Ct. 1093. In cases involving gang membership, the admission of such evidence is constitutional error only where the membership is prejudicial and not relevant to any of the issues being decided. Id. at 164-67, 112 S.Ct. 1093; see also Fuller v. Johnson, 114 F.3d 491, 497-98 (5th Cir.), cert. denied, 522 U.S. 963, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997).

B. Discussion

Petitioner cites seven pieces of evidence that he believes should not have been admitted by the trial court because they were not connected to him “in any way.” See Hab. Pet. at 6-7. To the extent petitioner relies on the “cumulative error” doctrine, his claim is without merit. The Fifth Circuit has held that:

[F]ederal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors “so infected the entire trial that the resulting conviction violates due process.” Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.1992), cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The Derden court, however, also recognized that the “cumulative error” doctrine was not clearly established under existing Supreme Court precedent. Id. at 1456 (“That the constitutionality of a state criminal trial can be compromised by a series of events none of which individually violated a defendant's constitutional rights seems a difficult theoretical proposition and is one to which the Supreme Court has not directly spoken.”). Under the AEDPA,*448 a federal court may grant habeas relief only with respect to a state court adjudication which results in a decision that is contrary to or involves an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.FN1 28 U.S.C. § 2254(d)(1). Because the “cumulative error” doctrine has not been clearly established by the Supreme Court, habeas relief is not available to petitioner under that doctrine.

FN1. The AEDPA standard of review is similar, but not identical, to the defense of non-retroactivity set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

In addition, petitioner cannot obtain federal habeas relief merely because this evidence is irrelevant or is more prejudicial than probative. As the Fifth Circuit stated in Fuller:

The issue in this case is not whether the Aryan Brotherhood evidence was relevant to Fuller's future dangerousness in the sentencing phase, nor whether the evidence was more probative than prejudicial. Those are not constitutional issues but evidentiary issues, properly considered under the Texas Rules of Criminal Evidence on direct appeal. The fact that irrelevant evidence may have been admitted at trial does not rise to constitutional error. Romano v. Oklahoma, 512 U.S. 1, 10-12, 114 S.Ct. 2004, 2011, 129 L.Ed.2d 1 (1994). The jurisdiction of this court on habeas review of a state prosecution is limited to constitutional issues under 28 U.S.C. § 2254(d)(1), as amended by the AEDPA. Fuller, 114 F.3d at 498.

The only colorable constitutional argument raised by petitioner with respect to this claim is that the admission of his gang membership violated his First Amendment right to freedom of association. In order to prevail on this claim, petitioner must prove that such membership is prejudicial and not relevant to any of the issues being decided. Dawson, 503 U.S. at 164-67, 112 S.Ct. 1093. Petitioner cannot meet this heavy burden. The evidence admitted at trial showed that petitioner's membership in the San Antonio Mexican Mafia formed the motive and reason for the underlying murders. More particularly, this evidence consisted of: (1) testimony concerning the organization and operation of the San Antonio Mexican Mafia; FN2 (2) correspondence between members of the organization, including a prosecution witness and petitioner, regarding schisms, killings and criminal conduct by the organization; FN3 and (3) testimony by a San Antonio police detective regarding the large number of homicides attributed to the organization. FN4 Such evidence supports the state's theory that petitioner killed the two victims to succeed in a power struggle within the San Antonio Mexican Mafia by establishing that: (1) petitioner was a leader in the organization; (2) there was a dangerous power struggle within the organization at the time of the killings; (3) the victims were on the opposite side of that power struggle; (4) the organization's rules required petitioner to carry out the murders; and (5) the victims were killed because of the power struggle. In reviewing this evidence, the Texas Court of Criminal Appeals stated that the record “overwhelmingly demonstrated that the murders resulted from the rift within the mafia, an organization notorious for *449 committing homicides, and in accordance with provisions of the Mexican Mafia's constitution.” Perez, No. 73,457, slip op. at 8. Petitioner has failed to demonstrate that this decision is unreasonable in light of the evidence presented at trial.

FN2. Hab. Pet. at 6; 26 RR 5-9, 48-55, 55-65; St. Exh. 350; Perez, No. 73,457, slip op. at 3. FN3. Hab. Pet. at 7; 26 RR 70-81, 98-102; St. Exhs. 257, 257A, 259, 259A, 260, 260A; Perez, No. 73,457, slip. op. at 7. FN4. Hab. Pet. at 7; 26 RR 143-49; Perez, No. 73,457, slip op. at 3.

Because each item of disputed evidence was relevant to the issues being decided, the admission of such evidence did not violate petitioner's First Amendment right to freedom of association. Thus, there is no constitutional error.

V. Courtroom Security

In his second claim, petitioner contends that the presence of a plainclothes officer near the witness stand during the testimony of Jesse “Chuy” Torres and Frank Esparza violated his right to due process.FN5

FN5. The state court record does not support petitioner's assertion that the officer was present during the testimony of a Frank “Esparza.” Instead, the record shows only that the officer was present during the testimony of Jesus “Jessie” Travieso. See 28 RR at 81-82. On direct appeal, the Texas Court of Criminal Appeals surmised the petitioner probably meant to refer to Frank Estrada, although “the record does not clarify whether [the officer] sat through Estrada's testimony, Travieso's testimony, or both of their testimonies.” Perez, No. 73,457, slip op. at 13. Respondent makes no complaint regarding any misidentification other than to suggest the correct name of the witness. Resp. Ans. at 16 n. 14.

A. Applicable Law

“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); accord Chavez v. Cockrell, 310 F.3d 805, 808 (5th Cir.2002), cert. denied, 538 U.S. 915, 123 S.Ct. 1501, 155 L.Ed.2d 241 (2003). As the Supreme Court and the Fifth Circuit have recognized, “[t]he physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence.” Chavez, 310 F.3d at 808 (citing Estelle, 425 U.S. at 504, 96 S.Ct. 1691) (noting that a defendant's appearance before a jury may “affect a juror's judgment” because prison clothing serves as a “constant reminder of the accused's condition”). Therefore, certain security practices such as shackling an accused before a jury “pose such a threat to the ‘fairness of the factfinding process' that they must be subjected to ‘close judicial scrutiny.’ ” Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (quoting Estelle, 425 U.S. at 503-04, 96 S.Ct. 1691). Extreme security measures, however, may be justified upon balancing these concerns with the court's “obligation to ‘protect the court and its processes, and to attend to the safety and security of those in the courtroom.’ ” Chavez, 310 F.3d at 808-09 (quoting United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988)).

By contrast, the use of security personnel is more freely permitted. Even the conspicuous deployment of security guards in a courtroom is not the sort of inherently prejudicial practice that should be permitted only when justified by an essential state interest specific to each trial. See Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. Instead, the question is whether the presence of security personnel was so inherently prejudicial that the accused was thereby denied his constitutional right to a fair trial. Id. at 570, 106 S.Ct. 1340. As the Supreme Court stated in Holbrook:

The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers' presence. *450 While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant's special status. Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm. Id. at 569, 106 S.Ct. 1340; see also Nicholson, 846 F.2d at 279 (holding that the presence of three plainclothes deputies, including one who sat next to defendant, was warranted and not unduly prejudicial to the accused).

B. Discussion

The record shows that Jesse “Chuy” Torres and Frank Esparza were under the protection of the United States Marshal's witness protection program when they testified at trial. See 26 RR at 82-89, 28 RR at 80-82. John Josey, a plainclothes officer, stood by the witness stand during their testimony. Josey's weapon was not visible, and he wore nothing to distinguish himself from any other civilian in the courtroom. See 26 RR at 84-87, 28 RR at 81-82; see also Perez, No. 73,457, slip op. at 14-15. Josey testified outside the presence of the jury that it was the policy of the United States Marshal Service to provide security to a witness under protection and to sit close to the witness, especially if there are defendants in custody or an audience in the courtroom. See 26 RR at 85, 88-89, 28 RR at 81-82.

Even if the jury was able to discern that Josey was present to provide security for Torres and Esparza, no unfairness has been shown. In fact, the presence of the extra security could be consistent with factors unrelated to any danger posed by petitioner. See Holbrook, 475 U.S. at 569, 106 S.Ct. 1340. The critical inquiry does not focus on the jurors' consciousness of a prejudicial effect, but whether “an unacceptable risk is presented of impermissible factors coming into play.” Id. at 570, 106 S.Ct. 1340. The trial court conducted the proper inquiry outside the presence of the jury and its actions appear warranted by the circumstances reflected in the state court record.

Petitioner has failed to demonstrate that the presence of a plainclothes officer during the testimony of Torres and Esparza was so inherently prejudicial that he was denied his constitutional right to a fair trial. This ground for relief is overruled.

VI. Conclusion

Based on the foregoing, Petitioner's Petition for Writ of Habeas Corpus is denied. It is so ordered.

Martinez Perez v. Dretke, 172 Fed.Appx. 76 (5th Cir. 2006) (Habeas).

Background: Petitioner convicted in state court of capital murder and sentenced to death filed application for writ of habeas corpus. The United States District Court for the Northern District of Texas, 393 F.Supp.2d 443, denied application, and then denied request for certificate of appealability (COA). Petitioner sought COA from The Court of Appeals.

Holdings: The Court of Appeals held that:
(1) presence of inspector with United States Marshal Service near two prosecution witnesses within view of jury did not violate petitioner's right to fair trial;
(2) Court of Appeals would not consider claims challenging admission of gang evidence in state capital murder trial that were not exhausted by state courts;
(3) evidence of criminal street gang's operation, organization, constitution, and number of gang-related homicides was relevant; and
(4) admission of such evidence did not violate petitioner's First Amendment right to freedom of association. Request for certificate of appealability denied.

Convicted in Texas state court of capital murder for murdering more than one person during the same criminal transaction and sentenced to death, Robert Martinez Perez requests a certificate of appealability (COA) on two habeas claims denied by the district court. Those underlying claims are that he was denied due process of law when the trial court: (1) permitted an inspector with the United States Marshal Service near two prosecution witnesses, in view of the jury; and (2) admitted inadmissible, cumulative evidence. COA DENIED.

Perez was convicted of capital murder in 1999 and sentenced to death for the 1994 murders of Jose Travieso and Robert Rivas, members (as was Perez) of the “Mexican Mafia”, a violent street gang in San Antonio, Texas. His conviction and sentence were affirmed on direct appeal. Perez v. State, No. 73,457 (Tex.Crim.App. 19 Sept. 2001) (unpublished). Perez did not seek a writ of certiorari from the Supreme Court of the United States.

During the pendency of his direct appeal, Perez filed a state habeas application, challenging his conviction and sentence on 45 grounds. In March 2003, the habeas trial court entered findings of fact and conclusions of law, recommending denial of habeas relief. That April, the Court of Criminal Appeals denied relief, adopting the findings and conclusions in an unpublished order. Ex parte Perez, Writ No. 55,333-01 (Tex.Crim.App. 30 Apr. 2003) (unpublished).

Perez filed for federal habeas relief in October 2003, raising the two claims for which he now seeks a COA. Relief was denied in June 2005. Perez v. Dretke, 393 F.Supp.2d 443, 448 (N.D.Tex.2005). That August, the district court denied Perez's COA request. Perez v. Dretke, No. 3:03-CV-1073-L (N.D. Tex. 2 Aug. 2005) (unpublished).

*****

Underlying Perez's first COA request is his claimed denial of due process when the trial court permitted an inspector with the United States Marshal Service (the Marshal) to be near two prosecution witnesses within view of the jury (Marshal's presence).

Outside the presence of the jury, Perez's attorney objected that the Marshal's presence: put an aura on the witnesses' testimony, suggesting they were so important that they had their own private guard; made Perez look dangerous because the witnesses needed a guard in order to be in the same room with him; and was unnecessary because of the courtroom's other security measures. The objections were overruled.

On direct appeal, Perez claimed the Marshal's presence denied him due process-a fair and impartial trial. (Although Perez raised this issue again in his state habeas petition, the habeas trial court ruled the claim had already been decided adversely to Perez on direct appeal. As noted, the Court of Criminal Appeals adopted the habeas trial court's findings and conclusions.) Perez raised the same claim in his federal habeas petition. This claim's having been exhausted, we consider whether Perez is entitled to a COA. See 28 U.S.C. § 2254(b)(1).

“The physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence.” Chavez, 310 F.3d at 808. To protect that fundamental requirement for a fair trial, safeguards are placed on the defendant's appearance. See, e.g., Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (“Courts have, *80 with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system.”) (internal footnote omitted). These safeguards are balanced, however, with the court's need “to protect the court and its processes, and to attend to the safety and security of those in the courtroom”. United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988). Accordingly, courts have been more liberal in allowing security personnel in the courtroom. See id. (holding that the presence of plainclothes deputies in front of the jury did not unfairly prejudice the defendant).

Outside the presence of the jury, the Marshal testified: for the record, he was dressed in a suit and tie and his firearm was not exposed; although he was wearing a red badge with the letters “SCO”, he would remove it while in court; he was assigned to protect the two witnesses as part of the witness security program; and that program's policy is to allow officers to sit close to witnesses for their protection, especially if the defendant is in custody or there is an audience in the courtroom. The trial judge found: the Marshal wore a “snappy outfit of civilian nature”; and the jury could have seen him “as a civilian sitting over there by the door”.

On direct appeal, the Court of Criminal Appeals held Perez did not meet his burden of demonstrating the Marshal's presence caused either actual or inherent prejudice. Likewise, on federal habeas, the district court denied relief, ruling Perez “failed to demonstrate that the presence of a plainclothes officer during the testimony of [the two witnesses] was so inherently prejudicial that he was denied his constitutional right to a fair trial”. Perez, 393 F.Supp.2d at 450.

Whether the Marshal's presence prejudiced Perez's right to a fair trial is a mixed question of law and fact. Accordingly, under AEDPA, the district court was required to defer to the state court's adjudication “unless”, as discussed supra, it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1). In the light of this standard, Perez has failed for COA purposes to make the requisite substantial showing that the Marshal's presence prejudiced his right to a fair trial.

On the merits, pursuant to 28 U.S.C. § 2254(e)(1), a state-court finding of fact is “presumed to be correct[;][t]he applicant [has] the burden of rebutting the presumption of correctness by clear and convincing evidence”. Perez has not made the requisite showing for COA purposes that the jury knew the Marshal was an inspector with the United States Marshal Service.

Even if the jury did discern that the Marshal was an armed guard, prejudice would not be shown automatically: “Our society has become inured to the presence of armed guards in most public places”. Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). The jurors were exposed to numerous other security measures. Further, the Marshal's presence ensured that protection-program witnesses received adequate security, pursuant to witness-security-program policies.

Accordingly, Perez has failed to show reasonable jurists could debate the district court's ruling: (1) that the Marshal's presence did not deprive Perez of a fair and impartial trial; or (2) that the claim is not “adequate to deserve encouragement to proceed further”. See *81 Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal citations and quotation marks omitted).

The underlying basis for the other requested COA is Perez's claimed denial of a fair and impartial trial because the trial court admitted evidence he asserts is inadmissible and cumulative. His claim concerns seven items of evidence regarding the Mexican Mafia.

As discussed below, it appears part of this claim was not exhausted. If so, we cannot consider that part. See 28 U.S.C. § 2254(b)(1)(A). In any event, a COA is denied.

It appears two letters (from gang members Luis “Blue” Adames and Herb “Star” Huerta) were challenged for the first time in Perez's federal petition. Id. Because it appears they were not challenged in state court, the district court may have erred in considering them. In any event, their being admitted at trial does not alter the reasons for our COA denial.

At trial, Perez objected on a variety of bases to the other five items. They are: (1) testimony by a prosecution-witness (former gang member) relating to the gang's organization and operations; (2) its constitution; (3) reading portions of the constitution that discussed its members killing traitors to the gang; (4) letters to Perez from the former gang member regarding schisms, killings, and criminal conduct by the gang; and (5) testimony by a Detective that he could not remember the exact number of Mexican Mafia homicides he had investigated because there had been so many.

In his federal petition, Perez claims the admission violated “Rule 404(b)”, presumably of the Texas Rules of Evidence, which mirrors Federal Rule of Evidence Rule 404(b) (character evidence generally not admissible to prove conduct). Although it is arguable whether each item was objected to on the grounds now presented, and although, pursuant to 28 U.S.C. § 2254(b)(3), the State has not waived the exhaustion requirement, the bases for the objections are sufficient to permit our review of this COA application for the five items.

On direct appeal, Perez claimed his due process rights were violated by the trial court's admitting cumulative improper evidence regarding the gang. (Again, although Perez also made this claim in his state habeas application, the habeas trial court ruled the claim had already been decided adversely to Perez on direct appeal, and the Court of Criminal Appeals adopted the trial court's findings and conclusions.) Perez raised the same claim in his federal petition.

On direct appeal, Perez challenged the admissibility of evidence pertaining to the gang under Texas Rules of Evidence 403 (exclusion of relevant evidence on special grounds) and 404(b). The Court of Criminal Appeals held: “[T]he evidence overwhelmingly demonstrated that the murders resulted from the rift within the [gang], an organization notorious for committing homicides, and in accordance with provisions of [its] constitution ”. Perez, No. 73,457 at 8 (emphasis added). Accordingly, it upheld the admission of the evidence.

To support his cumulative-error COA request, Perez relies on Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir.1992) (en *82 banc), cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993), which held:

[F]ederal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors “so infected the entire trial that the resulting conviction violates due process”. Id. at 1454 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)) (emphasis added).

In deciding this claim, the district court concluded that, under 28 U.S.C. § 2254(d)(1), “[b]ecause the ‘cumulative error’ doctrine has not been clearly established by the Supreme Court, habeas relief is not available”. Perez, 393 F.Supp.2d at 448. In doing so, it failed to address this court's holding that, although rare, instances of cumulative trial-court errors resulting in federal habeas relief “fit the Supreme Court's description of a denial of due process as ‘the failure to observe that fundamental fairness essential to the very concept of justice’ ”. Derden, 978 F.2d at 1457 (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941)). In the alternative, as discussed infra, the district court denied the claim on the merits, holding that, because the challenged evidence was relevant to the issues being decided, there was no constitutional error.

For COA purposes, Perez fails to make the requisite substantial showing that his claim falls within the cumulative-error doctrine. Under this doctrine, “errors of state law, including evidentiary errors, are not cognizable in habeas corpus”. Id. at 1458 (emphasis added). Instead, such errors are of the requisite constitutional nature only if they “infuse[ ] the trial with unfairness as to deny due process of law”. Id. (quoting Lisenba, 314 U.S. at 228, 62 S.Ct. 280).

Perez claims evidence was improperly admitted based on lack of relevance, unfair prejudice, and prior criminal conduct. For COA purposes, we cannot consider the state court's rulings on these state-law bases. See Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“In conducting [federal] habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).

In conjunction with his due process cumulative-error COA request, Perez's only colorable non-state-law claim is that his First Amendment right to freedom of association was violated by the trial court's allowing evidence of his gang involvement. In support, Perez cites Dawson v. Delaware, 503 U.S. 159, 167, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). In Dawson, however, the defendant's First Amendment rights were violated because of the admission of evidence at sentencing that proved nothing more than his “abstract beliefs”. Id. In contrast, Perez's gang involvement concerned the motive and reason for the murders. See Vasquez v. State, 67 S.W.3d 229, 239 (Tex.Crim.App.2002) (holding “gang-affiliation is relevant to show a motive for a gang-related crime”).

In this regard, as described supra, the challenged evidence involves: (1) the gang's organization and operation in San Antonio; (2) killings and criminal conduct by the gang; and (3) the number of homicides associated with it. The district court ruled this evidence support[ed] the state's theory that [Perez] killed the two victims to succeed in a power struggle within the San Antonio Mexican Mafia by establishing that: (1)[he] was a leader in the organization; *83 (2) there was a dangerous power struggle within the organization at the time of the killings; (3) the victims were on the opposite side of that power struggle; (4) the organization's rules required [Perez] to carry out the murders; and (5) the victims were killed because of the power struggle. Perez, 393 F.Supp.2d at 448. Obviously, if there was no error in admitting the challenged evidence, there was no cumulative error.

Perez's challenge to the admission of this evidence is a question of law. United States v. Meserve, 271 F.3d 314, 327 (1st Cir.2001) (“[T]he district court's construction of evidentiary rules is a question of law”.) (internal citation omitted). Accordingly, on the merits, the district court was required by AEDPA to defer to the state court's “adjudicat[ion] on the merits ... unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1). Perez has failed to show reasonable jurists could debate the district court's ruling: (1) that Perez's gang affiliation was relevant to the murders for which he was convicted; or (2) that the issue is not “adequate to deserve encouragement to proceed further”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal citations and quotation marks omitted).