Texas Department of Criminal Justice

Inmate: Reyes, Gilberto Guadalupe
Date of Birth: 9/19/73
TDCJ#: 999352
Date Received: 4/5/00
Education: 11 years
Occupation: laborer
Date of Offense: 3/12/98
County of Offense: Bailey
Native County: Bailey County, Texas
Race: Hispanic
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 05' 05"
Weight: 129 lb
Co-defendants: None

Texas Attorney General

Friday, June 15, 2007

Media Advisory: Gilberto Reyes scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about 33-year-old Gilberto Reyes, who is scheduled to be executed after 6 p.m. Thursday, June 21, 2007, for the 1998 kidnaping and murder of Yvette Barraz.

FACTS OF THE CRIME

On the morning of March 12, 1998, the parents of Yvette Barraz contacted authorities after their 19-year-old daughter failed to come home the night before from her waitress job at a restaurant in Muleshoe, Texas. Police investigators found blood and loose change in the restaurant parking lot, but Barraz’s gray Mitsubishi was not there.

Meanwhile, border officers in Presidio, approximately 450 miles south of Muleshoe, documented Gilberto Reyes, Barraz’s former boyfriend, crossing a border check-point on foot heading toward Mexico. The next day, Presidio authorities received a teletype informing them that Reyes was connected to Barraz’s disappearance and that it was possible that he used a gray 1996 Mitsubishi to get to Presidio.

Presidio authorities located Barraz’s car parked behind a store near the border. Barraz’s body was found in the hatchback area of the car under some articles of clothing. Her pants and underwear were pulled down to her knees. She had multiple head wounds and a laceration on her hand.

Officials recovered a knife and a claw hammer from the car. Authorities found bloodstains in and on the car. An autopsy determined that Barraz had been struck in the head six times by a claw hammer. The cause of death was strangulation and the blows to the head. Barraz had been sexually assaulted at or near the time of death.

Reyes was arrested in Portales, New Mexico, on June 7, 1998, in possession of keys matching Barraz’s car and residence. DNA testing revealed that the bloodstains in the restaurant parking lot, the vehicle, and on the claw hammer came from Barraz. Reyes’s DNA matched a semen stain on Barraz’s underwear. Reyes was subsequently convicted of capital murder and sentenced to death in the 287th Judicial District Court of Bailey County.

PROCEDURAL HISTORY

• January 2000 -- Reyes was convicted of capital murder and sentenced to death in Bailey County, Texas.

• September 2002 -- Texas Court of Criminal Appeals affirmed the conviction and sentence.

• October 2002 -- The Court of Criminal Appeals denied Reyes’s application for writ of habeas corpus.

• April 2005 -- A U.S. district court denied federal habeas corpus petition.

• August 2006 -- The 5th U.S. Circuit Court of Appeals affirmed a district court’s denial of federal habeas corpus relief.

• November 2006 -- The U.S. Supreme Court denied Reyes’s petition for writ of certiorari.

CRIMINAL HISTORY

In addition to his capital murder conviction, Reyes was arrested and charged with aggravated assault in July 1992 for driving a truck into a group of men, injuring one of them. Reyes received deferred adjudication, which was revoked in 1995 after he was convicted of an October 1994 DWI offense. Reyes served about six months in state prison. Then, on February 9, 1998—about one month before the capital murder—Reyes chased Yvette Barraz, her ten-year-old sister, and her infant daughter with a rifle from a Muleshoe convenience store to Barraz’s house. Reyes was arrested and charged with aggravated assault with a deadly weapon, DWI, and unlawful possession of a firearm by a felon. After posting bail, Reyes abducted and killed Barraz the following month.

West Texas man executed for stalking, killing ex-girlfriend

By Michael Graczyk - Houston Chronicle

Associated Press - June 22, 2007

HUNTSVILLE, Texas — With a big grin on his face, a West Texas man quietly went to his death for killing the ex-girlfriend he stalked before raping, strangling and using a claw hammer to beat her. Gilberto Reyes, 33, on Thursday became the 17th inmate executed this year in the nation's most active capital punishment state and the second in as many days. Another execution is set for next week.

"I love y'all and I'm going to miss y'all," he said in a brief final statement, smiling but never looking at the parents and other relatives of his victim watching through a window. They showed no reaction. Eight minutes later, Reyes was pronounced dead.

The U.S. Supreme Court refused in March to review Reyes' case, and a federal lawsuit on his behalf challenging the constitutionality of the Texas lethal injection procedure was dismissed Monday by a federal judge in Houston. No additional appeals were filed to try to block the punishment.

Reyes, from Muleshoe, in Bailey County along the Texas-New Mexico state line northwest of Lubbock, was condemned for the slaying of Yvette Barraz. Her parents reported their 19-year-old daughter missing when she failed to return home from work at a Muleshoe restaurant in March 1998. "In this particular case, there's no question of his guilt by any stretch of the imagination," David Martinez, who was Reyes' trial lawyer, said Thursday. "We kept hoping with his age and his boyish looks, I might be able to convince a jury to give him life, but I wasn't able to."

Reyes already was known to police in the town of about 4,500. A month earlier, apparently obsessed with Barraz, he chased her and shot at her with a rifle, wound up getting arrested and was free on bond. "He stood in the middle of the roadway and was shooting at her," Martinez recalled. "When all was said and done, it was one of those deals where the jury just perceived him as saying: 'If you're not going to be my girl, you're not going to be anyone else's.' "Apparently he had a lot of feelings toward that girlfriend. It might have been the only real girlfriend he ever had, and that's why the emotions were so strong."

Authorities investigating Barraz's disappearance wanted to question Reyes but couldn't find him, adding to suspicion he was involved. Two days after she was last seen, Barraz's battered body was found stuffed under clothing in the hatchback area of her car some 450 miles to the south in Presidio, along the Rio Grande across from Mexico.

Blood evidence found outside the restaurant where Barraz worked led police to believe she was attacked there. Before dawn the next morning, border police questioned Reyes as he was walking across the International Bridge at Presidio. He was carrying as much as $100 in coins but authorities could determine no reason to detain him. He was allowed to continue into Mexico.

Reyes at some point returned to the United States and police, acting on a tip, arrested him in Portales, N.M., about three months after the slaying.

At his trial, witnesses told of Reyes and Barraz having a stormy relationship. A police officer testified Barraz had complained about Reyes stalking her two weeks before she disappeared. DNA evidence from Reyes was found on the victim's clothing.

Reyes' execution came 24 hours after another inmate, Lionell Rodriguez, 36, apologized profusely, sought forgiveness from his victim's family and then was executed for killing a 22-year-old Houston woman, Tracy Gee, during a carjacking. Next week, Patrick Knight, 39, is set to die for the slayings of Walter and Mary Werner, a couple who lived next door to him outside Amarillo. Knight has gained notoriety for his request that people send him jokes so he can pick one and make it part of his last statement before he's put to death Tuesday evening.

Yvette Barraz, the victim.

West Texas man executed in murder

By Robbie Byrd - Huntsville Item

June 22, 2007

A West Texas man who kidnapped his ex-girlfriend and beat her to death with a claw hammer was executed Thursday afternoon for the 1998 crime. Gilberto Guadalupa Reyes, 33, was pronounced dead at 6:17 p.m., eight minutes after the leth dose began to flow.

Reyes did not look at the family of his victim, 19-year-old Yvette Baiz, as they stood near the head of the execution gurney, separated by glass and metal bars. “I love ya’ll and I miss ya’ll,” Reyes said, beaming from ear to ear with a smile. He did not specify to whom he was speaking. Baiz’s mother, father, brother, sister and uncle all stared ahead in silence, seemingly unmoved by the scene.

Reyes requested BBQ turkey and brisket for his last meal, along with a bowl of cheddar cheese and avocados.

On March 11, 1998, Barraz did not return home from a restaurant in Muleshoe, Texas, a town along the Texas-New Mexico state line northwest of Lubbock, where she worked as a waitress. Baiz was found in the back of Reyes’ car, parked behind a store in Presidio, a Texas border town. Reyes had left the gray 1996 Mitsubishi hatchack at the Budget Dollar Store and crossed the border on foot in Presidio, some 450 miles south of Muleshoe.

Reyes, 33, was the 17th inmate executed this year in the nation’s most active capital punishment state and the second in as many days. Another execution is set for next week.

The U.S. Supreme Court in March refused to review Reyes’ case, and a federal lawsuit on his behalf challenging the constitutionality of the Texas lethal injection procedure was dismissed Monday by a federal judge in Houston. No additional appeals were filed by his lawyer. “I think that’s what he wants,” attorney Paul Mansur said after meeting with Reyes on death row this week. “Just let it go.”

Reyes already was known to local police. A month earlier, he chased Barraz around town, took a shot at her with a rifle, wound up getting arrested and was free on bond. “We certainly wanted to find him and visit with him,” recalled Don Carter, the former Muleshoe police chief. “I don’t think you have to be in law enforcement to figure that deal out. And the fact was we never could find him, which just made him even more so a suspect.”

Blood evidence found outside the restaurant where Barraz worked led police to believe she was attacked there. Before dawn the next morning, border police questioned Reyes as he was walking toward Mexico across the International Bridge at Presidio. He was carrying as much as $100 in coins but authorities could determine no reason to detain him and allowed him to continue into Mexico.

It would take another nearly three months before police arrested Reyes in Portales, N.M., about 40 miles west of Muleshoe. When picked up, he was carrying keys to Barraz’s car and home. “The sad part about it was he crossed over by the time she was determined to be a missing person,” said Carter, now a captain with the Lubbock County Sheriff’s Department. “So we were just behind him, and since he got across the border, it delayed apprehension.”

Reyes at some point returned to the United States and acting on a tip, authorities arrested him about three months after the slaying in Portales.

At his trial, witnesses told of Reyes and Barraz having a stormy relationship. A police officer testified Barraz had complained about Reyes stalking her two weeks before she disappeared. DNA evidence from Reyes was found on the victim’s clothing. A Bailey County jury deliberated about two hours before convicting him of capital murder. They took another two hours before deciding on the death penalty.

“She was a beautiful, vivacious, respectful young lady,” said Victor Leal, a former Muleshoe mayor who ran the restaurant where Barraz had been working for several months. “I regret the fact apparently he’d been stalking her and she did not tell me that. “I’ve always looked back and thought if I had taken time, sat down and known her a little better, maybe she would have shared that with me and I would have done something like make sure she was getting walked out to her car.”

Txexecutions.org

Gilberto Guadalupe Reyes, 33, was executed by lethal injection on 21 June 2007 in Huntsville, Texas for the abduction, rape, robbery, and murder of his ex-girlfriend.

Yvette Barraz and Gilbert Reyes dated for about eight months before their relationship ended in January 1998. On 9 February, Reyes chased Barraz, her ten-year-old sister, and her infant daughter with a rifle. He was arrested and charged with aggravated assault with a deadly weapon, driving while intoxicated, and unlawful possession of a firearm by a felon. He was released after posting bail. He then continued to harass and stalk Barraz.

On 26 February, Barraz went to the Muleshoe Police Department and gave a written statement. She stated that on 13 February, Reyes stole her jacket. On 22 February, her house was broken into. No valuables were taken, but her bed and most of the blinds and screens on the windows were "messed up." Also, "they had gone through my underwear drawer." The next day, Reyes kept following her in his car wherever she went and flashed his headlights at her. "Then I came to the police department and spoke with Officer Benny Parker," the statement read. "Gilbert Reyes keeps driving by my residence and any place that I happen to be at. This has been going on for several weeks. I am afraid of Gilbert Reyes."

At about 6:00 p.m. on 11 March 1998, Barraz, 19, left her parents' house for her job as a waitress at Leal's Restaurant. At the end of her shift, she walked out to her car. Her front apron pocket was full of coins and small bills from the tips she received that night. Wielding a knife, Reyes, then 24, abducted her from the parking lot and put her in her car - a gray Mitsubishi. He then drove to a remote area behind a business. There, he raped Barraz, strangled her, and hit her in the head six times with a claw hammer. He then drove - with the victim's body in the car - about 400 miles south to Presidio, on the Mexican border. He left the car behind a building and proceeded to cross the border on foot.

At the time, officers at the border crossing were looking for people who were involved in a series of recent burglaries in the Presidio area. Sometime between 3:30 and 4:00 a.m., Reyes was stopped and asked to empty his pockets. He had in his possession two sets of keys, a large amount of currency including one and five dollar bills, and some handfuls of change. Reyes told the officers that one of the sets of keys was to his girlfriend's car. Once a records check was completed and officers determined that he was not involved in the Presidio burglaries, he was permitted to cross the bridge into Mexico.

The next morning, when Barraz failed to return home from work, her parents called the police. Police officers went to the restaurant, where they discovered blood on the ground, with some loose change nearby. They then began looking for Reyes.

On 13 March, the Presidio County Sheriff's Office received a bulletin that Reyes was connected to a missing person and may have driven a gray Mitsubishi to Presidio. Barraz's car was then found about a half a mile from the border. Her body was in the hatchback area, underneath some clothing. Her pants and underwear were pulled down to her knees. She had multiple head wounds and a laceration on one of her fingers. There was a knife on the floorboard of the back seat and a claw hammer on the passenger side between the seat and the door. There was blood in the passenger seat area and pools of blood in the back seat and in the hatchback. Reyes was arrested in Portales, New Mexico on 7 June. The keys to Barraz's residence and car were in his possession.

Reyes' cousin's husband, Natividad Ovalle Jr., testified at his trial that at around 11:45 p.m. on 11 March, Reyes arrived at his home and asked him how to get to Ojinaga, Mexico. Ovalle testified that Reyes was driving a "small gray car." A forensic expert for the Texas Department of Public Safety testified that the victim's DNA matched the blood in the restaurant parking lot, in the vehicle, and on the claw hammer. He also testified that Reyes' DNA matched a semen stain on the victim's underwear.

Reyes, who was a member of a "social club" called the 8th Street Posse, had a previous conviction for aggravated assault for driving a truck into a group of men in a rival "social club," injuring one of them, in July 1992. He received deferred adjudication, which was revoked after he was convicted of driving while intoxicated in 1994. He served about six months in a state boot camp program.

A jury convicted Reyes of capital murder in January 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2002. All of his subsequent appeals in state and federal court were denied.

Victor Leal, who operated the restaurant where Barraz had worked for about three months, said in an interview that he did not know Reyes was stalking her. "I regret the fact apparently he'd been stalking her and she did not tell me that," Leal said. "I've always looked back and thought if I had taken time, sat down, and known her a little better, maybe she would have shared that with me and I would have done something like make sure she was getting walked out to her car."

Reyes did not have any family members or witnesses in attendance at his execution. "I love y'all and I'm going to miss y'all," he said, grinning. He did not look at Barraz's parents and other family members, who watched from a nearby room. The lethal injection was then started. He was pronounced dead at 6:17 p.m.

ProDeathPenalty.com

A West Texas man who stalked his ex-girlfriend after their breakup was executed Thursday evening for raping, strangling and using a claw hammer to fatally beat the woman.

"I love y'all and I'm going to miss y'all," Gilberto Reyes said with a big grin on his face in his brief final statement. Reyes had no witnesses on his side of the death chamber. He never looked at the parents or other relatives of his victim, who watched through a window. He was pronounced dead at 6:17 p.m.

Reyes, 33, was the 17th inmate executed this year in the nation's most active capital punishment state and the second in as many days. Another execution is set for next week.

When the parents of 19-year-old Yvette Barraz reported her missing after she failed to return home from work more than nine years ago, police wanted to ask Reyes, her ex-boyfriend, about her disappearance.

Reyes already was known to authorities in Muleshoe in Bailey County along the Texas-New Mexico border about 70 miles northwest of Lubbock.

A month earlier, Reyes had chased Barraz around town and took a shot at her with a rifle. "We certainly wanted to find him and visit with him," recalled Don Carter, the former Muleshoe police chief. "I don't think you have to be in law enforcement to figure that deal out. And the fact was we never could find him, which just made him even more so a suspect."

Two days after she was last seen, Barraz's battered body was found stuffed under clothing in the hatchback area of her car some 450 miles to the south in Presidio, along the Rio Grande across from Mexico. She'd been beaten with a claw hammer, strangled and raped.

It would take another nearly three months before police arrested Reyes in Portales, N.M., about 40 miles west of Muleshoe. When picked up, he was carrying keys to Barraz's car and home. Lawyers for Reyes filed suit in federal court challenging the Texas lethal injection procedures as unconstitutionally cruel. The suit was dismissed by a judge in Houston.

Blood evidence found outside the restaurant where Barraz worked led police to believe she was attacked there as she left work the evening of March 12, 1998. Then before dawn the next morning, border police questioned a man identified as Reyes as he was walking toward Mexico across the International Bridge at Presidio. He was carrying as much as $100 in coins but authorities had no reason to detain him and allowed him to continue into Mexico after a background check showed no warrants were out for him.

They later speculated the coins were Barraz's tip money. "The sad part about it was he crossed over by the time she was determined to be a missing person," said Carter, now a captain with the Lubbock County Sheriff's Department. "So we were just behind him, and since he got across the border, it delayed apprehension." At some point, Reyes returned to the United States. Acting on a tip, authorities arrested him June 7, 1998, in Portales.

At his trial, witnesses told of Reyes and Barraz having a stormy relationship. A police officer testified Barraz had complained about Reyes stalking her two weeks before she disappeared. DNA evidence from Reyes was found on the victim's clothing.

A Bailey County jury deliberated about two hours before convicting him of capital murder. They took another two hours before deciding on the death penalty. "She was a beautiful, vivacious, respectful young lady," Victor Leal, who ran the Muleshoe restaurant where Barraz had been working about three months, said this week. "I regret the fact apparently he'd been stalking her and she did not tell me that. I've always looked back and thought if I had taken time, sat down and known her a little better, maybe she would have shared that with me and I would have done something like make sure she was getting walked out to her car."

Leal, a former mayor of Muleshoe, said the slaying was a jolt to his community. "When you have an employee abducted and attacked and eventually killed in your own parking lot, it takes away what you perceived was some safety in a small town," he said.

Reyes v. State, 84 S.W.3d 633 (Tex.Cr.App. 2002) (Direct Appeal).

Defendant was convicted in the 287th District Court, Bailey County, Jack D. Young, J., of capital murder, and was sentenced to death. Appeal was automatic. The Court of Criminal Appeals, Meyers, J., held that: (1) evidence was sufficient to support conviction of murder in course of committing or attempting to commit kidnapping; (2) state capital sentencing scheme was not unconstitutional on its face or as applied; (3) defendant waived any objection to admission of victim's written statement to police; and (4) punishment phase jury was not improperly prevented from considering mitigating evidence. Affirmed.

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

On January 31, 2000, appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises four points of error, including a challenge to the sufficiency of the evidence at the guilt/innocence phase of the trial. The sufficiency point will be addressed first, followed by the remainder of the points in the order in which they are raised. We will affirm.

Appellant was indicted for murdering Yvette Barraz while in the course of committing or attempting to commit kidnapping. The evidence at trial showed that appellant and Barraz had dated for approximately eight months before their relationship ended in January 1998.

At around 6:00 p.m. on March 11, 1998, nineteen-year-old Barraz left her parents' house for her waitressing job at Leal's Restaurant in Muleshoe, Texas, driving her 1996 silver Mitsubishi Eclipse.FN2 Yolanda Jaramillo, Barraz's co-worker, testified that after work Barraz had left the restaurant before Jaramillo had and that Barraz's car was not in the parking lot when Jaramillo left approximately twenty minutes later.

FN2. Barraz's mother testified that Barraz's vehicle could be described as either gray or silver in color.

When Barraz failed to return home by the next morning, Barraz's parents called the police. Upon receipt of the call, police officers went to the parking lot of Leal's Restaurant where they discovered blood on the ground with some loose change nearby. Barraz's mother testified that Barraz generally kept the coins and dollar bills that she received as tips in the apron that she wore as part of her waitress outfit.

At around 11:45 p.m. on March 11, 1998, appellant arrived at his cousin's home in Pecos, Texas. Appellant spoke with Natividad Ovalle, Jr., his cousin's husband, and asked him how to get to Ojinaga, Mexico. Ovalle testified that when appellant left his home, he observed appellant drive away in a “small gray car.”

Several hours later, on the morning of March 12, sometime between 3:30 a.m. and 4:00 a.m., appellant was observed by officers at the border check point in Presidio, Texas walking on the highway heading towards Mexico. Because of a series of recent burglaries that had occurred in the area, the Presidio Sheriff's Office had previously advised officers at the check point to be on the lookout for any persons who were crossing the port of entry “under unusual circumstances.”

Officers stopped appellant and asked him to empty his pockets. Appellant had in his possession a couple of sets of keys, a large amount of currency including one dollar bills and five dollar bills, and a couple of handfuls of change. Appellant told the officers that one of the keys was the key to his girlfriend's car. Once a records check was completed on appellant, and it was determined that appellant was not involved in the Presidio burglaries, he was permitted to cross the bridge into Mexico.

On March 13, 1998, authorities at the Presidio County Sheriff's Office received a teletype informing them that appellant was connected to a missing person and that it was possible that he used a gray 1996 Mitsubishi to get to Presidio. The authorities located Barraz's car parked behind a store about half a mile from the border in Presidio. Barraz's body was found in the hatchback area of the vehicle under some articles of clothing. Her pants and underwear were pulled down to her knees. She had multiple head wounds and a laceration on one of the fingers of her left hand. There was a knife on the back floorboard of the car and a claw hammer on the passenger side between the seat and the edge of the door rail.

Sergeant Dusty McCord, a Sergeant with the Texas Ranger Division of the Department of Public Safety, testified that he observed bloodstains on the passenger-side seat belt and “blood pooling” in the hatchback area and on the floorboard behind the passenger seat. It appeared to McCord that “the body had been moved around two or three locations in the back of the vehicle.”

Appellant was arrested in Portales, New Mexico, on June 7, 1998. He had in his possession some keys. One of the keys matched the lock at the Barraz residence, and another key appeared to be a duplicate of the extra key to Barraz's Mitsubishi Eclipse. Samples of appellant's blood and hair were collected once he was transported back to Texas.

Javier Flores, a forensic serologist for the Texas Department of Public Safety Laboratory, performed DNA testing on the evidence collected from the crime scene and on the samples taken from appellant. Flores testified that Barraz's DNA matched the bloodstains in the restaurant parking lot, inside the vehicle, and on the claw hammer. He also found that appellant's DNA matched a semen stain on Barraz's underwear. Flores testified that the frequency of this particular DNA in the current world population was “one in less than 5.7 billion.”

Glen Groben, the deputy medical examiner in Lubbock County who performed an autopsy on Barraz, testified that Barraz had six separate blunt force injury wounds to her head that were consistent with being struck by a claw hammer. Groben concluded that Barraz's death was caused by blunt force trauma to the head but also noted that there was evidence of strangulation.FN4

He further concluded that Barraz was alive both when she was strangled and beaten. Groben also determined from his examination of Barraz that she had been sexually assaulted at or near the time of death. Based on his observation of a crime scene photograph at Leal's Restaurant, Groben testified that while it appeared that Barraz was initially injured in the restaurant parking lot, there was not enough blood in the parking lot to suggest that she died there. Because of this, Groben concluded that Barraz was still alive and bleeding in the car “at some point in time.”

FN4. Barraz wore a necktie as a part of her waitress outfit. Groben stated that “in addition to being hit in the head, somebody had strangled her, either using her tie, which is most likely, or using their hands.”

In his second point of error, appellant argues that the evidence was legally insufficient to support his capital murder conviction because the State failed to prove that he committed the underlying offense of kidnapping. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Here, the State was required to prove that appellant murdered Barraz in the course of committing or attempting to commit kidnapping. Tex. Penal Code Ann. § 19.03(a)(2). A person commits the offense of kidnapping when he knowingly or intentionally abducts another person. Tex. Penal Code Ann. § 20.03(a). “Abduct” means to restrain a person with the intent to prevent her liberation by either: (1) secreting or holding her in a place where she is not likely to be found, or (2) using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2). “Restrain” means to restrict a person's movements without consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her. Tex. Penal Code Ann. § 20.01(1).

Appellant contends that “any restraint of [Barraz] was ‘part and parcel’ of, and inseparable from the murder.” Thus, he argues, that because the restraint of Barraz “merged” into the murder, it cannot be said that the murder was “in the course of committing or attempting to commit” kidnapping. Appellant relies on the Fourteenth Court of Appeals' opinion in Hines v. State, 40 S.W.3d 705 (Tex.App.Houston [14th Dist.] 2001) for support. Hines, however, has since been reversed. See Hines v. State, 75 S.W.3d 444 (Tex.Crim.App.2002).

Hines involved a conviction for aggravated kidnapping. On direct appeal to the Fourteenth Court the appellant argued that the evidence was legally insufficient to support the verdict. Specifically, the appellant argued that the evidence presented at his trial was insufficient to establish that an abduction had occurred. Identifying the operative word in the definition of “abduct” as “restrain,” the Fourteenth Court explained that in order to resolve the appellant's point of error, it would have to determine the meaning of the word “restrain.” Hines, 40 S.W.3d at 709. In order to do this, the Fourteenth Court determined that it would first have to decide the level of conduct necessary to constitute substantial interference. Id.

The Fourteenth Court concluded that substantial interference under section 20.01(1) of the Texas Penal Code “requires more than temporary confinement or slight movement which is part and parcel of the commission or attempted commission of another substantive criminal offense.” Id. at 713-14.

On discretionary review, we reversed the decision of the Fourteenth Court. We held that it erred in concluding that to “interfere substantially” requires more than temporary confinement or slight movement that is part and parcel of the commission of another substantive offense. Hines, 75 S.W.3d at 447.

We further concluded that nothing in the kidnapping statute requires the State to prove that a defendant moved a victim a certain distance or held him for a specific length of time before he can be found guilty of kidnapping. Id. We further held that there is “no per se bar to a kidnapping prosecution for conduct that occurs during the commission of another offense.” Id. at 448.

Rather, we explained that the fact-finder should look at all of the circumstances surrounding an offense in order to determine whether it meets the statutory definition of a kidnapping. Id. Accordingly, we will examine the facts of appellant's case in order to determine whether the evidence presented at trial established that appellant kidnapped Barraz.

Viewed in the light most favorable to the verdict, the evidence presented at trial shows that Barraz was initially assaulted in the parking lot of Leal's Restaurant. Jaramillo testified that Barraz left work before she had on the night of March 11, 1998. When Jaramillo arrived in the parking lot approximately twenty minutes later, Barraz's car was no longer there. The evidence at trial further supported a conclusion that Barraz did not die in the parking lot and that she was alive at some point while she was in the Mitsubishi.

Moreover, Groben testified that based on his examination of Barraz, she had been assaulted three different ways, two of which occurred while she was still alive, and one that occurred at or near the time of death. Thus, we conclude that a rational jury could have found beyond a reasonable doubt that appellant murdered Barraz in the course of committing a kidnapping. Appellant's point of error two is overruled.

In his first point of error, appellant challenges the constitutionality of the Texas capital sentencing scheme. Specifically, appellant contends that since the kidnapping portion of section 19.03(a)(2) of the Texas Penal Code fails to sufficiently narrow the class of death eligible cases and defendants, imposition of the death penalty based upon that statute violates the Eighth and Fourteenth Amendments to the United States Constitution. See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

In Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the United State Supreme Court held that the Texas capital murder scheme sufficiently narrows the class of death-eligible defendants. Thus, appellant's general challenge to the constitutionality of the Texas capital sentencing scheme fails.

Appellant further argues that the capital sentencing scheme is unconstitutional as applied to him. Specifically, he argues that because the facts in this case involve a restraint that is part and parcel of the murder, the imposition of death for a crime of murder in the course of kidnapping results in a violation of the Eighth and Fourteenth Amendments of the United States Constitution. For the reasons set out in point of error two and in Jurek, 428 U.S. at 276, 96 S.Ct. 2950, we find appellant's argument to be unpersuasive. Appellant's point of error one is overruled.

In point of error three, appellant contends that the trial court erred in admitting Barraz's written statement into evidence.

On February 26, 1998, approximately two weeks before she was murdered, Barraz went to the Muleshoe Police Department to report a robbery. She provided a written statement to Sergeant Joe Orozco in which she not only described the circumstances surrounding the robbery, but she recounted the problems that she had recently been having with appellant:

On February 13, 1998 Gilbert Reyes got into my car at Town and Country East, and stole my jacket. The clerk at Town and County [sic], my friend, Melissa Morales and I saw Gilbert take it. I told him to get out of my car. I got into my car and he took my jacket and got out of my car.

On February 22, 1998 someone broke into my house. There was a lot of valuable stuff in the house that was not taken. My bed was messed up, and they had gone through my underwear drawer. All the screens in the house were torn. Only a few were not touched. The window in my room was unlocked and the blinds were messed up. Also one of the blinds was messed up in the livingroom.

On February 23, 1998 I was with my brother and some friends in my friends [sic] car and Gilbert Reyes kept following us and was flashing us with his headlights. He also kept showing up everywhere we went. Then I came to the Police Department and spoke with Officer Benny Parker. Gilbert Reyes keeps driving by my residence and any place that I happen to be at. This has been going on for several weeks. I am afraid of Gilbert Reyes.

During the punishment phase of the trial, the State called Orozco to testify about the contents of the report. Orozco testified without objection about all three incidents of which Barraz complained in her written statement. The State then sought to introduce Exhibit 66, which consists of Barraz's statement and Orozco's offense report, into evidence. Appellant made a hearsay objection and the trial court overruled appellant's objection.

Appellant now argues that the trial court erred in allowing the State to introduce Barraz's written hearsay statement into evidence. However, a defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source. See Stoker v. State, 788 S.W.2d 1, 12 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); see also Moore v. State, 999 S.W.2d 385, 402 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000) (explaining that the admission of the same evidence from another source without objection forfeits previously stated complaints).

In the present case we find that the contents of Barraz's statement had already been made known to the jury through the testimony of Orozco. Thus, even if the State's exhibit was hearsay, any error was not preserved because the same substantive evidence was elsewhere introduced without objection. Appellant's point of error three is overruled.

Appellant alleges in his fourth point of error that the trial court denied him due process of law by preventing him from presenting mitigating evidence at his trial.FN5 At the punishment phase of his trial, appellant called Dr. Walter Quijano, a psychologist, to give his expert opinion on appellant's risk of future dangerousness.

During direct examination of Quijano, defense counsel asked Quijano to tell the jury what he considered to be mitigating factors in appellant's case. The State objected and the trial court sustained the objection. Appellant presented a bill of exception outside the presence of the jury to show that Quijano would have testified that there were three mitigating factors: “the dependent relationship that developed between the defendant and the victim”; “the history of alcoholism”; and “a stable work history.”

FN5. Specifically, appellant alleges that “[t]he trial court denied [him] due process of law by erroneously excluding testimony offered in mitigation of sentence.”

Appellant argues that, because the trial court sustained the State's objection to Quijano's testimony, the jury was prevented from considering the mitigating evidence in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We find appellant's argument to be without merit.

All of the evidence that was presented in appellant's bill of exception was also presented to the jury. Quijano testified about appellant's dependency in his relationship with Barraz, his alcoholism, and his stable employment history. The only thing that Quijano could not do was tell the jury that he considered all of these factors to be mitigating. Moreover, other defense witnesses at the punishment hearing testified that appellant was a hard worker who supported his family after his father had died and that Barraz was mentally and physically abusive toward appellant while they were dating.

The fact that Quijano was prevented from giving an opinion as to whether this evidence should be considered mitigating does not mean that the jury was prevented from considering and giving effect to this evidence in their determination of the mitigation special issue. Appellant's point of error four is overruled.

We affirm the judgment of the trial court.

Reyes v. Quarterman, 195 Fed.Appx. 272 (5th Cir. 2006) (Habeas).

Background: After conviction and death sentence for capital murder were affirmed on direct appeal, 84 S.W.3d 633, and state habeas corpus petition was denied, prisoner filed federal petition for writ of habeas corpus based on claim that trial counsel was ineffective for failure to adequately investigate and present mitigating evidence at sentencing. The United States District Court for the Northern District of Texas denied relief. Prisoner requested certificate of appealability (COA).

Holdings: The Court of Appeals held that:
(1) prisoner was not entitled to evidentiary hearing on habeas corpus petition, and
(2) prisoner was not entitled to appeal denial of petition. Request for COA denied.

PER CURIAM: Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Petitioner Gilberto Reyes was convicted in Texas of capital murder and sentenced to death. Reyes now seeks a certificate of appealability (“COA”) from this Court to appeal the district court's denial of his petition for habeas corpus relief. He contends that reasonable jurists could debate that his Sixth and Fourteenth Amendment rights to the effective assistance of counsel were not violated by his trial counsel's failure to investigate and to present significant mitigating evidence, including, but not limited to, evidence that he sustained substantial abuse as a child.

Because the district court's conclusion that Reyes cannot make a substantial showing of the denial of a constitutional right is not debatable among reasonable jurists, we DENY his application for a COA. We also find that the district court did not abuse its discretion by not holding an evidentiary hearing on Reyes's ineffective assistance of counsel (“IAC”) claim.

I. BACKGROUND

A summary of the facts as recounted by the Texas Court of Criminal Appeals and adopted by the district court will suffice:

Reyes dated Yvette Barraz for approximately eight months before their relationship ended in January 1998. At around 6:00 p.m. on March 11, 1998, Barraz left her parents' house for her job as a waitress at Leal's Restaurant (“Leal's”) in Muleshoe, Texas. At trial, Yolanda Jaramillo, Barraz's co-worker, testified that Barraz left Leal's before she did, and that Barraz's silver/gray, 1996 Mitsubishi Eclipse was not in the parking lot when she left the restaurant.

Reyes arrived at his cousin's home in Pecos, Texas at approximately 11:45 p.m. on March 11, 1998. He asked Natividad Ovalle, Jr., his cousin's husband, how to get to Ojinaga, Mexico. Ovalle testified that when Reyes left the home, he observed Reyes drive away in a small gray car.

Between 3:30 a.m. and 4:00 a.m. on March 12, officers at the border check point in Presidio, Texas observed Reyes walking on the highway heading towards Mexico. The officers stopped Reyes and asked him to empty his pockets. Among Reyes's possessions were a couple of sets of keys, a large amount of currency in one-dollar bills and five-dollar bills, and a couple of handfuls of change. Reyes explained to the officers that one of the keys was the key to his girlfriend's car. Once a records check revealed that Reyes was not involved in a string of burglaries in Presidio that had the officers on heightened alert, Reyes was permitted to cross the bridge into Mexico.

On March 12, because Barraz failed to return home, her parents called the police. Upon receiving the call, police officers went to the parking lot at Leal's where they discovered blood and loose change on the ground.

On March 13, 1998, the Presidio County Sheriff's Office received a teletype informing them that Reyes was connected to a missing person and that it was possible that he used a gray 1996 Mitsubishi to get to Presidio. Presidio Sheriff's Officers found Barraz's car parked behind a store in Presidio located about a half of a mile from the border. They found Barraz's body in the hatchback area of the vehicle under some articles of clothing. Her pants and underwear were pulled down to her knees, and she had multiple head wounds and a laceration on one of the fingers of her left hand.

Officers found a knife on the back floorboard of the car and a claw hammer on the passenger side between the seat and the edge of the door rail. Sergeant Dusty McCord, a Sergeant with the Texas Ranger Division of the Department of Public Safety, testified that he saw bloodstains on the passenger-side seat belt and blood pooling in the hatchback area and on the floorboard behind the passenger seat.

Reyes was arrested in Portales, New Mexico, on June 7, 1998. Among his possessions were keys that matched the locks to Barraz's residence and vehicle.

Javier Flores, a forensic serologist for the Texas Department of Public Safety Laboratory, performed DNA testing on the evidence collected from Barraz's car and the parking lot at Leal's. Flores testified that Barraz's DNA matched the bloodstains in the parking lot at Leal's, inside the vehicle, and on the claw hammer. Flores also testified that Reyes's DNA matched a semen stain on Barraz's underwear with an accuracy level of one in less than 5.7 billion.

Glen Groben, the deputy medical examiner who performed an autopsy on Barraz, testified that Barraz had six separate blunt force injury wounds to her head that were consistent with being struck by a claw hammer. Although Groben found that Barraz's death was caused by blunt force trauma to the head, he also noted that there was evidence of strangulation.

Groben determined that Barraz was alive when she was strangled and beaten, and that she had been sexually assaulted at or near the time of death. Based on a crime scene photograph of Leal's, Groben testified that while it appeared that Barraz was initially injured in the restaurant's parking lot, there was not enough blood in the parking lot to suggest that she died there.

The court appointed counsel to represent Reyes at trial and during the punishment proceeding. On January 31, 2000, a jury found Reyes guilty of murdering Barraz while in the course of kidnaping her, in violation of Tex. Penal Code § 19.03(a)(2).

During the punishment stage, the prosecution called eight witnesses. Evidence from these witnesses demonstrated that Reyes was charged with driving while intoxicated and aggravated assault with a deadly weapon on February 9, 1998, after an individual who observed someone shoot at a car with a rifle called the Muleshoe police. Reyes was also observed chasing Barraz and her sister into their parents' home. The investigating officer found Reyes with a rifle in his truck and bullets in his pocket.

Evidence also demonstrated that Reyes was a member of the 8th Street Posse, a “social club” that sometimes engaged in fights with another “social club.” Reyes was charged with aggravated assault and placed on deferred adjudication supervision for driving a truck over a curb and into Robert Rodriguez, a member of a “social club” in Muleshoe. Because he was subsequently charged with driving while intoxicated, Reyes's deferred adjudication was revoked, and he was sent to a state, military-style boot camp program.

Finally, Dr. Gripon, a psychiatrist, testified that he believed Reyes to be a continuing threat to society because Reyes's behavior had increased in its progression towards violence, he had been involved in gang-related activity, and he had abused substances.

During the punishment phase, Reyes's trial counsel presented nine witnesses: Hector Arzola, Margie Lopez, Don Carter, Nicky Chavez, Maria Reyes, Nora Gonzales, Chris Ramos, Jesse Reyes, and Dr. Walter Quijano. Arzola, Lopez, and Carter were called to rebut evidence against Petitioner regarding an aggravated assault charge. Maria Reyes and Jesse Reyes testified that Petitioner supported his family after his father died, Barraz abused Petitioner, and Petitioner often took care of Barraz's daughter. Nicky Chavez, Chris Ramos, and Nora Gonzales testified that Petitioner was a hard worker and a good employee.

Lastly, Dr. Quijano testified that Reyes would not be a continuing threat or a future danger to society. Following the punishment hearing, the jury answered the punishment special issue regarding Reyes's future dangerousness affirmatively, and it answered the punishment special issue regarding mitigating evidence negatively. See Tex.Code Crim. Proc. art. 37.071 § 2. Consequently, on February 2, the trial court sentenced Reyes to death.

The court appointed an attorney to represent Reyes on direct appeal. The Texas Court of Criminal Appeals denied relief and affirmed Reyes's conviction and sentence. Reyes v. State, 84 S.W.3d 633 (Tex.Crim.App.2002).

While Reyes did not file a petition for a writ of certiorari to the United States Supreme Court, during the pendency of his direct appeal, he filed an application for a writ of habeas corpus with the state habeas court. Reyes's new court appointed attorney argued that, inter alia, Reyes was deprived of his Sixth and Fourteenth Amendment rights because his trial counsel failed to adequately investigate and present mitigating evidence at trial. On October 9, 2002, the Texas Court of Criminal Appeals adopted the trial court's recommendation to deny relief. Ex parte Reyes, No. 52,801-01 (Tex.Crim.App. Oct. 9, 2002).

Reyes filed his original petition for a writ of habeas corpus in federal district court on September 19, 2003. He argued, inter alia, that he was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments because trial counsel failed to investigate and/or present mitigating evidence at trial.

In the district court, Reyes presented affidavits from two investigators, two attorneys, and four witnesses who testified in the state habeas court. The district court acknowledged that those affidavits include the following information which Reyes claimed should have been presented as mitigating evidence:

Michael Ward, a licensed private investigator hired by state habeas counsel to assist in the investigation for Reyes's trial, stated that he contacted Vince Gonzales who relayed that Gonzales had been contacted by trial counsel to conduct a mitigation investigation after trial had commenced. He also corroborated Gonzales's statement that trial counsel worked the case alone.

Alexander Calhoun, an attorney, stated that in his professional opinion an attorney in a capital murder trial is derelict in his duties if he waits until after trial has started to begin conducting a mitigation investigation.

Nicky Chavez stated that although she testified at trial, she was not contacted until after trial started. She stated that neither trial counsel nor the investigator discussed her testimony with her before she testified. She also stated that Reyes's mother neglected her children, often left them unsupervised, did not clean the family's house, and did not ensure that the children were clean. Chavez also said that Reyes was one of her husband's trusted employees, Reyes provided for his family after his father's death, and that she did not believe that he would commit a violent crime in the future.

Lenny Pineda stated that Reyes provided for his family after his father's death, Reyes's mother neglected her home and her children, Reyes's mother was emotionally abusive towards him, and that Barraz “played around” on Reyes. He also stated that while he was present at the incident involving Robert Rodriguez, Reyes's brother was not present and that the incident did not involve yelling or threats. Lastly, Pineda affirmed that while he was told that there was a subpoena for him, he was never contacted by anyone from Reyes's defense team.

Chris Ramos stated that although he testified at trial, defense counsel spent about ten minutes with him before he testified and never asked him about Reyes's family or childhood. He observed Reyes's mother neglect the home and the family, call Reyes names, and otherwise emotionally abuse Reyes. He also stated that Barraz and Reyes had a bad relationship, and that Barraz used Reyes for money.

Ismael Reyes, Reyes's brother, stated that he was never contacted by any of his brother's attorneys. He stated that he and his brother began inhaling gasoline, freon, and paint almost daily when they were fifteen years old. Ismael Reyes stated that his brother had been hit in the head several times and was abusing cocaine daily right before murdering Barraz. He also stated that Barraz treated his brother poorly and had hit Reyes in the face.

Lisa Milstein, a private investigator retained by Reyes's state habeas counsel, stated that she interviewed Reyes's brothers, Ismael and Marcos, Reyes's mother, Maria, and Nicky Chavez. She also stated that she interviewed several jurors who stated that they did not learn anything about Reyes or why he would have killed Barraz.

The district court denied habeas relief and refused to issue a COA. This application for a COA followed. Reyes now asks this Court to grant a COA on the issue of whether his trial counsel's failure to investigate and present mitigating evidence deprived him of effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. He also claims that the district court erred in not holding an evidentiary hearing on his IAC claim.

II. DISCUSSION

A. Standard of Review

Reyes's habeas claim is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), because he filed his original habeas petition under 28 U.S.C. § 2254 on September 19, 2003, after AEDPA's April 24, 1996 effective date. See Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir.1999) (citing Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under the AEDPA, a state habeas petitioner may appeal a district court's denial of habeas relief only if the district court or the court of appeals first issues a COA. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (characterizing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005).

In deciding whether to grant a COA, the Supreme Court has emphasized that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of [the petitioner's] claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029.

We will only issue a COA “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to satisfy this standard, Reyes must establish that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029.

While the issuance of a COA “must not be pro forma or a matter of course,” a petitioner meets the burden under § 2253(c) by “demonstrat[ing] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Lastly, any doubt as to whether a COA should issue in a death-penalty case must be settled in favor of the petitioner. Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir.2004); Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004).

In deciding whether the district court's denial of Reyes's petition was debatable, we recognize the deferential standard of review that the AEDPA requires a district court to apply when considering a petition for habeas relief. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (“With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review.”); see also Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003).

Under the AEDPA, a federal court must not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the court determines that the state court's adjudication “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).

A state court's decision is contrary to Supreme Court precedent if: (1) “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law”; or (2) “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of O'Connor, J.) (interpreting and explaining the statutory language “contrary to, or involved an unreasonable application of”). “A state court's decision is an unreasonable application of clearly established federal law whenever the state court identifies the correct governing legal principle from the Supreme Court's decisions but applies that principle to the facts of the prisoner's case in an objectively unreasonable manner.” Young v. Dretke, 356 F.3d 616, 623 (5th Cir.2004) (internal quotation marks omitted); accord Williams, 529 U.S. at 409, 120 S.Ct. 1495. “An unreasonable application may also occur if ‘the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’ ” Young, 356 F.3d at 623 (alteration in original) (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495).FN1

FN1. Reyes contends that the district court should not have afforded deference to the state habeas court's determination because the district court decided that the state court's application of law was objectively reasonable on different grounds than those used by the state court. However, § 2254's deferential standard applies because “[t]he statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001).

In addition, “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hence, regardless of whether the state habeas court had provided no reasons or unsatisfactory ones, “authority under AEDPA is still limited to determining the reasonableness of the ultimate decision.” Santellan, 271 F.3d at 193.

“[A] determination of a factual issue made by a State court shall be presumed to be correct” unless the petitioner rebuts the presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). In addition to explicit findings of fact, the presumption of correctness also attaches to “unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (quoting Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.2001)). A writ of habeas corpus may issue if the state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

B. Evidentiary Hearing.

Before we address whether reasonable jurists would find it debatable that Reyes received effective assistance of counsel, we consider Reyes's assertion that the district court erred by not holding an evidentiary hearing on his IAC claim. Based on our review of the record, it is arguable that Reyes did not properly preserve this issue in district court.FN2 While Respondent does not claim that this narrow issue is raised for the first time on appeal, “we, not the parties, select the appropriate standard of review, including whether an issue will even be addressed if not raised in district court.” Guidry v. Dretke, 397 F.3d 306, 319 (5th Cir.2005), cert. denied, --- U.S. ----, 126 S.Ct. 1587, 164 L.Ed.2d 326(2006).

FN2. Reyes only tersely mentioned the issue in his supplemental brief to the district court. Out of an abundance of caution, we will address Reyes's procedural concern which serves as a precursor to our discussion of his IAC claim for a COA. However, a COA is not required to review whether the district court erred by not granting Reyes an evidentiary hearing because that decision was neither made by a state court nor does it seem to otherwise fall within the underlying deference framework required by AEDPA.

The district court's decision to not grant an evidentiary hearing is reviewed for abuse of discretion. McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998). The court found that a hearing was not required because Reyes did not demonstrate any factual dispute whose favorable outcome would have entitled him to relief, and each of his claims could be resolved by reference to the state court record. Neither in the district court nor in this court did Reyes attempt to satisfy the statutory requirements that would justify an evidentiary hearing.

Under 28 U.S.C. § 2254(e)(2), an applicant who has failed to develop the factual basis of a claim in the state habeas court may not obtain an evidentiary hearing in federal habeas proceedings unless two conditions are met. First, the petitioner's claim must rely on a new rule of constitutional law, or on a factual predicate that could not have been previously discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(ii).

Second, “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). However, these requirements do not work against a petitioner unless the petitioner's failure to develop facts was due to “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.” Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000)(quoting Williams, 529 U.S. at 432, 120 S.Ct. 1479), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001).

This determination depends on “whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Williams, 529 U.S. at 435, 120 S.Ct. 1479.

The district court acknowledged that while at least one of Reyes's federal habeas attorneys also represented him in state habeas proceedings, federal habeas counsel did not provide an explanation for failing to submit an affidavit from the mitigation investigator to the state habeas court or any information regarding trial counsel's strategy at the punishment phase to either the state court or the district court.

However, even assuming that Reyes made a reasonable attempt to investigate and pursue his claims in the state habeas court, we find that the district court did not abuse its discretion in refusing to hold an evidentiary hearing. When “[t]he district court ha[s] sufficient facts before it to make an informed decision on the merits of [the habeas petitioner's] claim” it does not abuse its discretion in failing to conduct an evidentiary hearing. McDonald, 139 F.3d at 1060.

Moreover, we have previously expressed that “[a] full and fair hearing does not necessarily require live testimony.” Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir.2000) (explaining that this Court has repeatedly stated that a paper hearing is sufficient especially where, as here, the trial court and the state habeas court were one and the same). Accordingly, because we conclude that the district court did not abuse its discretion by not holding a hearing on Reyes's IAC claim, we turn to Reyes's request for a COA.

C. Would reasonable jurists find it debatable that Reyes received effective assistance of counsel?

Reyes seeks a COA because he contends that reasonable jurists could debate whether his Sixth and Fourteenth Amendment rights to effective assistance of counsel were violated. Specifically, Reyes argues that trial counsel rendered IAC by failing to investigate and to present significant mitigating evidence, including, but not limited to, evidence that he sustained substantial abuse as a child. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs IAC claims. See Williams, 529 U.S. at 390-91, 120 S.Ct. 1495.

In order to establish IAC, a petitioner must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. The absence of either deficient performance or prejudice will defeat an IAC claim. Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.2005).

Trial counsel's performance is deficient only when “representation [falls] below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. We measure reasonableness against “prevailing professional norms,” viewed in light of all of the circumstances at the time of the performance. Id. at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's performance is highly deferential .... a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.FN3

FN3. Moreover, we have stated that courts “must be particularly wary of ‘arguments that essentially come down to a matter of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing.’ ” Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir.2000)(quoting Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.1999)), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001).

Although “we consider it indisputable that, in the context of a capital sentencing proceeding, defense counsel has the obligation to conduct a ‘reasonably substantial, independent investigation’ into potential mitigating circumstances[,]” Neal v. Puckett, 286 F.3d 230, 236-37 (5th Cir.2002) (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir.1983)), counsel's failure to do so is not per se deficient performance. Moore v. Johnson, 194 F.3d 586, 615 (5th Cir.1999). “[O]ur principal concern in deciding whether [defense counsel] exercised ‘reasonable professional judgmen[t],’ is not whether counsel should have presented a mitigation case.... Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

The Supreme Court has referred to the American Bar Association's (“ABA”) standards for capital defense work as “ ‘guides to determining what is reasonable’ ” Id. at 524, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “The ABA Guidelines provide that investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Id. (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added)). However, in assessing reasonableness a court must consider whether the known evidence would lead a reasonable attorney to investigate further. Id. at 527, 123 S.Ct. 2527.

While Strickland does not require attorneys to investigate every possible line of mitigating evidence irrespective of its potential usefulness, or to present such evidence in every case, “ ‘strategic choices made after less than complete investigation[s] are reasonable’ only to the extent that ‘reasonable professional judgments support the limitations on investigation.’ ” Id. at 533, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

Even if counsel's performance was deficient, conduct is only prejudicial if, “but for counsel's errors, there is a reasonable probability that the final result would have been different and confidence in the reliability of the verdict has been undermined.” Leal, 428 F.3d at 548.

In the district court, Reyes alleged that his attorney's failure to investigate and present mitigating evidence cannot be attributed to trial strategy because trial counsel did not contact an investigator to conduct an investigation into evidence for the punishment phase until the “Thursday or Friday” before the punishment phase's commencement on the following Monday.

The district court reasoned that, assuming arguendo that trial counsel's performance was objectively deficient because a reasonably prudent attorney would have conducted an investigation into punishment before starting a capital murder trial and that Reyes has proffered mitigating evidence that was not presented at trial, Reyes still failed to demonstrate prejudice.

The district court found that: (1) much of the evidence revealed to the state habeas court had already been heard by the jury; and, (2) while the aggravating evidence was as strong as the evidence in Wiggins and Williams, the two major Supreme Court cases offering guidance on how to dispose of Reyes's claim, the mitigating evidence was far weaker than the substantial abuse apparent in those cases. See, e.g., Hood v. Dretke, 93 Fed.Appx. 665, 668 (5th Cir.2004).

Accordingly, the district court ultimately concluded that the state court's decision on Reyes's IAC claim was not contrary to, and did not involve, an unreasonable application of clearly established federal law. We conclude that reasonable jurists would not find it debatable that Reyes was not prejudiced by a deficient presentation of mitigating evidence.

While there was evidence that Reyes's mother neglected her home and her children, and was emotionally abusive towards Reyes, the mitigating evidence was far weaker than the substantial abuse apparent in Wiggins and Williams. In Wiggins, counsel failed to present evidence to the jury that: (1) Wiggins's alcoholic mother frequently left him and his siblings alone for days, forcing them to beg for food and to eat paint chips and garbage; (2) Wiggins's mother had sex with men while her children slept in the same bed and that she had once forced Wiggins's hand against a hot stove, causing him to be hospitalized; (3) Wiggins was physically abused by two foster mothers, raped by a foster father, and gang-raped by boys in another foster home; and, (4) Wiggins was sexually abused by a supervisor in his Job Corps program. Wiggins, 539 U.S. at 516-17, 123 S.Ct. 2527.

In Williams, counsel failed to present evidence to the jury that: (1) Williams's parents had been imprisoned for criminally neglecting Williams and his siblings; (2) Williams had been severely and repeatedly beaten by his father; (3) Williams had been placed in an abusive foster home; and, (4) Williams was borderline mentally retarded. Williams, 529 U.S. at 395-96, 120 S.Ct. 1495.

In light of the district court's application of Williams and Wiggins, we conclude that Reyes has not established that jurists of reason could disagree with the district court's resolution of his constitutional claims or that reasonable jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.FN4 Accordingly, we deny Reyes's application for COA on his IAC claim.

FN4. We also note, as previously mentioned, that the district court acknowledged that while at least one of Reyes's federal habeas attorneys also represented him in state habeas proceedings, federal habeas counsel did not provide an affidavit (or an explanation for failing to submit one) from Reyes's trial counsel regarding his strategy at the punishment phase to either the state court or the district court. Had an affidavit been so presented, the record would be far better developed for review.

III. CONCLUSION

For the foregoing reasons, we DENY Reyes's application for a COA. We also find that the district court did not abuse its discretion by not holding an evidentiary hearing on Reyes's IAC claim.