Executed March 19, 2014 6:31 p.m. CST by Lethal Injection in Texas
11th murderer executed in U.S. in 2014
1370th murderer executed in U.S. since 1976
3rd murderer executed in Texas in 2014
511th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Ray Jasper III
B / M / 18 - 33
|David Mendoza Alejandro
W / M / 33
Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001). (Direct Appeal)
Jasper v. Thaler, 466 Fed.Appx. 429 (5th Cir. 2012). (Federal Habeas)
Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.
Jasper spoke quietly, asking his family to "take care of each other, stay strong and faithful to God." He also thanked his supporters and told his daughter that he loved her, encouraging her to "be strong, be positive, have a great life." Jasper then asked that the "Lord God almighty in heaven Jesus Christ see my spirit. Amen"
Texas Department of Criminal Justice - Executed Offenders
TDCJ: Number 999341
Date of Birth: 08/25/1980
Date Received: 02/04/2000
Age (when Received): 19
Education Level (Highest Grade Completed): 08
Date of Offense: 11/29/1998
Age (at the time of Offense): 19
County of Offense: Bexar
Hair Color: Black
Height: 5' 9"
Weight: 139 lb
Eye Color: Brown
Native Country: Netherlands
Prior Occupation: Laborer
Prior Prison Record: None
Summary of Incident: On 11/29/98, Jasper and two co-defendants were responsible for the death of a 33-year old white male, which took place during a robbery. The victim was a musical engineer who owned a recording studio in San Antonio. Jasper had created his own record label and had his own rap group. Jasper went to the recording studio of the victim. He walked up behind the victim and grabbed him by the hair and slit his throat. The victim was then stabbed to death. Jasper covered the victim with a black sheet in order to "not have to look at him." Jasper then began loading vehicles with the equipment inside the studio, estimated to be worth between $10,000 and $30,000. Jasper and his codefendants made several trips taking the property from the studio, and upon returning to the scene of the crime, he was observed to be suspicious, and eventually apprehended by police.
Co-Defendants: Steve Russell, Doug Williams
Texas Attorney General
March 14, 2014
Media Advisory: Ray Jasper scheduled for execution
AUSTIN – Pursuant to an order from the 187th District Court of Bexar County, Ray Jasper is scheduled for execution after 6 p.m. on March 19, 2014. On Jan. 20, 2000, Jasper was sentenced to die for the Nov. 28, 1998, robbery-related capital murder of David Alejandro.
FACTS OF THE CASE
The Texas Court of Criminal Appeals described the murder as follows: David Alejandro owned and operated a music recording studio where musicians could have their music professionally recorded for a fee. This business required the use of various pieces of electronic equipment such as computers, soundboards and microphones. Jasper and some of his friends frequently recorded their rap music at the studio. At some point, Jasper decided to steal Alejandro’s equipment in order to make money from its sale. Aware that Alejandro would be able to identify him, Jasper also decided to kill Alejandro so that there would be no witnesses. He enlisted the help of two friends to assist in removing the heavy equipment from the studio.
On November 21, 1998, Jasper purchased large bags from a [sporting goods] store. A week later, he and his accomplices drove two vans to Alejandro’s studio. Jasper and one accomplice carried concealed knives. The three had made an appointment at the studio and spent about two hours there while Alejandro recorded their music before they decided it was time to kill him. Jasper slashed Alejandro’s throat from ear to ear, but did not kill him. Jasper and one accomplice continued to attack Alejandro until he died as a result of multiple stab wounds to his chest and abdomen. Jasper covered the body with a sheet taken earlier from Jasper’s bed, and the group began loading equipment into the vans. Jasper fled on foot when an off-duty police officer arrived to investigate the scene, but was apprehended days later outside his home.
On December 2, 1998, Jasper confessed to police that he had planned the crime and recruited two accomplices. His confession describes events in detail that were later corroborated by Jasper’s girlfriend, Christina Breton, police officers, security guards, and physical evidence discovered by investigators. Breton testified that several days before the commission of the crime, Jasper had told her about his plan to steal Alejandro's equipment and kill him.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.
The prosecution presented witnesses who testified (1) Jasper had been found in possession of marijuana while on school property, (2) Jasper was sent to an alternative campus and later expelled, (3) on March 20, 1997, Jasper was observed driving 62 mph in a 45 mph zone and, when a police officer attempted to pull over the vehicle Jasper was driving without a driver’s license, Jasper led the officer on a high speed chase which reached speeds exceeding ninety miles per hour and which did not end until Jasper crashed his vehicle on a set of railroad tracks, (4) on November 23, 1998, just days before David Alejandro’s murder, an off-duty San Antonio Police robbery detective spotted Jasper, who appeared to be serving as a lookout for a burglary, and when the officer approached and identified himself as a law enforcement officer, Jasper charged, repeatedly struck and assaulted the officer with such ferocity that the officer felt compelled to throw his handgun away until he could establish control over Jasper, (5) Jasper’s fingerprint was found on the exterior of a rear window, inside the backyard, of the residence where Jasper had been spotted by the officer Jasper assaulted, and (6) David Alejandro was a music composer and singer who gave many other artists a chance when they were just beginning their careers.
On June 1, 1999, a Bexar County grand jury indicted Jasper for robbery-related capital murder.
On Jan. 18, 2000, after a trial in the 187th District Court of Bexar County, jurors found Jasper guilty of capital murder.
On Jan. 20, 2000, after a punishment hearing, the judge in open court sentenced Jasper to death.
On Sept. 4, 2001, Jasper filed his first state application for habeas corpus relief.
On Nov. 28, 2001, the Court of Criminal Appeals affirmed Jasper’s conviction and sentence on appeal.
On Aug. 20, 2008, the Court of Criminal Appeals denied Jasper’s application for habeas corpus relief.
On July 31, 2009, Jasper filed a petition for habeas corpus relief in the federal court for the Western District of Texas.
On Jan. 19, 2011, the federal district court denied Jasper’s petition for habeas corpus relief.
On April 26, 2012, the Fifth Circuit affirmed the district court’s judgment denying habeas corpus relief.
On Dec. 10, 2012, the U.S. Supreme Court denied certiorari review.
On Oct. 17, 2013, the District Court of Bexar County signed an order scheduling Jasper’s execution to take place on March 19, 2014.
Texas Execution Information Center by David Carson.
Ray Japser III, 33, was executed by lethal injection on 19 March 2014 in Huntsville, Texas for the murder and robbery of a 33-year-old man.
In 1998, Jasper was the leader of a rap group in San Antonio. He and his associates, Steve Russell and Doug Williams, frequently used a studio owned and operated by Christian music recording artist David Alejandro to make their recordings. On 21 November 1998, Jasper purchased some large bags at a sporting goods store. He also made an appointment for a Sunday morning recording session at the studio. On 23 November, an off-duty robbery detective with the San Antonio Police Department noticed Jasper and believed he might be serving as a lookout for a burglary of a residence. He approached Jasper and identified himself as a police officer. Japser then began attacking the officer. His fingerprints were later found on the exterior of a window in the backyard of the residence. He was charged with assaulting a public servant and released on a $10,000 bond the next day.
On 29 November, Japser, then 18, Russell, 19, and Williams, 19 arrived at the studio in two separate vans. They brought the bags with them, along with a black bedsheet. Jasper and Russell were also carrying concealed knives taken from Jasper's kitchen. After about two hours in the studio, Jasper walked up behind Alejandro, who was sitting at the soundboard mixing a track for him. He grabbed Alejandro by the hair and slit his throat from ear to ear. Alejandro clutched his throat and started gargling. He then picked up a two-by-four board and started trying to defend himself. Jasper took the board from Alejandro and hit him in the head with it, then called to his accomplices for help. He then held Alejandro while Russell stabbed him in the chest until he died. Jasper covered the victim with the bedsheet he had brought so as "not have to look at him." He then began loading vehicles with the equipment inside the studio, estimated to be worth between $10,000 and $30,000. Jasper and his accomplices made several trips taking the property from the studio. He was at the crime scene when an off-duty police officer approached him, and he fled on foot. He was apprehended by police three days later outside his home. David Alejandro died from 25 stab wounds to his chest, back, and neck. A knife was left buried in the back of his neck. Japser confessed that he had planned the crime and recruited his two accomplices.
At his trial, Jasper's girlfriend and his child's mother, Christina Breton, testified that Jasper had told her several days before the murder about his plans to steal Alejandro's equipment. He said he needed to kill Alejandro because he would be able to identify him. Against his lawyer's advice, Jasper took the witness stand to testify at his trial. He said that he decided to rob and kill David Alejandro because he needed money to move out of his parents' house and into an apartment with Breton. He further testified that he had thoughts of pulling the court bailiff's gun.
The defense argued that Jasper could not be proven guilty of murder, as the evidence and testimony only confirmed that he inflicted the initial wound - the slicing of the victim's throat - and the medical examiner testified that would was not the cause of death. Under Texas law, a capital murder defendant can be found guilty for participating in a killing, regardless of whether he inflicted the fatal injury.
During the punishment phase of his trial, Jasper was given the chance to speak to the victim's family. "I didn't kill your son," he said. "He was one of the nicest guys I ever met, but I did not kill him." He again only admitted inflicting the first, non-fatal wound. "That man was brutally murdered. He was stabbed 25 times. I'm not a killer, and I didn't do it."
A jury found Jasper guilty of capital murder in January 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2001. All of his subsequent appeals in state and federal court were denied. His appeals alleged that a black man was excluded from the jury because of his race. Steven J. Russell and Douglas DeSean Williams are serving life sentences for capital murder. After the jury sentenced Jasper to death, Russell pleaded guilty to avoid a trial with possibly the same outcome. Williams went to trial and was sentenced to life by a jury.
While on death row, Jasper declined requests for interviews from the Associated Press and the San Antonio Express-News. In January 2014, however, he responded in writing to a questionnaire from Gawker, a media blog site. "I'm on death row and yet I didn't commit the act of murder," Jasper wrote in his seven-page, single-spaced, typed letter. "I was convicted under the law of parties. When people read about the case, they assume I killed the victim, but the facts are undisputed that I did not kill the victim."
To a question about his past and upbringing, Jasper answered, "I grew up like most young blacks at a disadvantage, susceptible to the street life out of the environment and a lack of education. For most young blacks we rebel out of subtle racism and being targeted by the police." He expressed his belief in the unfairness of the justice system and capital punishment and wrote at length about the disproportionate number of blacks in prison and the disadvantages of being black. Despite using the words "black" and "white" 47 times in his letter, Jasper wanted his readers to know, "I'm not trying to play the race card." Jasper also wrote, "I am a deeply religious person" and "I have a strong faith in Christ" and offered his views on religion, the Bible, and the death penalty.
In reaction to Jasper's letter, David Alejandro's brother, Steven Alejandro, posted a message to a blog. He wrote that Jasper's position that he was not guilty of capital murder "is based in a fantasy that Jasper has convinced himself of." He also stated that, contrary to Jasper's portrayal of himself as disadvantaged in life and poorly represented in court, he came from a stable home and was defended by "a well paid for and well known private practice firm." Steven stated that he is opposed to the death penalty, although when Jasper's attorney asked him about that in court, he answered, "I don't think it's relevant what my opinion is." Steven wrote that despite his contradictory feelings about Jasper, he remained opposed to the death penalty. "I have to say to my fellow death penalty opponent friends: Keep up your fight. It is an honorable one. But do not use this man, Ray Jasper, as your spokesperson, as your example of why the death penalty should be abolished. The death penalty should be abolished because it is wrong to kill another human being. Not because a Medical Examiner said your knife wound did not cause immediate death."
No one attended Jasper's execution other than prison employees and members of the news media. In his last statement, Jasper told his family to "take care of each other, stay strong and faithful to God." He thanked his supporters and told his daughter that he loved her, encouraging her to "be strong, be positive, have a great life." He concluded his statement with the words, "Lord God Almighty in Heaven Jesus Christ see my spirit. Amen." The lethal injection was then started. He was pronounced dead at 6:31 p.m.
Columbia Journalism Review
"A letter from death row backfires on Gawker." (07:50 AM - March 11, 2014)
"The site let Ray Jasper whitewash the brutal killing he helped commit," by Ryan Chittum
Gawker has long delighted in thumbing its nose at journalism convention, and that’s fine. On the other hand it makes no bones about it being a journalism organization, and it certainly is. Flouting convention is one thing. Allowing a death-row inmate to whitewash the facts of his case, and his role in a grisly murder, without any vetting is another matter altogether. As part of its “Letters From Death Row Series,” it ran a long missive from Ray Jasper, who is scheduled to be executed by the state of Texas next Wednesday. It had all the stuff of a compelling story: injustice, racism, an underprivileged man quoting Thoreau and Aristotle, Texas, God, etc. It went viral, and currently has 1.7 million pageviews. Hamilton Nolan says Jasper was “convicted of participating in the 1998 robbery and murder of recording studio owner David Alejandro.” Fine, so far.
But this is how Jasper himself puts it: I’m on death row and yet I didn’t commit the act of murder. I was convicted under the law of parties. When people read about the case, they assume I killed the victim, but the facts are undisputed that I did not kill the victim. The one who killed him plead guilty to capital murder for a life sentence. He admitted to the murder and has never denied it. Under the Texas law of parties, they say it doesn’t matter whether I killed the victim or not, I’m criminally responsible for someone else’s conduct. But I was the only one given the death penalty. And that’s the sum and substance of the facts of the case in the Gawker post.
Except to say those facts are in dispute would be a wild understatement. They are a grotesque misrepresentation of a record clearly established at trial. This record came to light on Gawker only after the murdered man’s brother wrote to Gawker in protest, a letter he should never have been forced to write. Here’s what really happened (emphasis mine): Ray Jasper knew well that he could not rob David’s studio equipment without being fingered to the police by him later. So it was, seven to ten days prior, Jasper made the decision to end David’s life. He enlisted the help of two others. That night (and this is all from on-the-record courtroom testimony and statements he gave police in his confession) the three men made the recording appointment. They were there for roughly two hours working, recording, David sitting at the control console. Jasper admits to then grabbing David by his hair, yanking his head back and pulling the kitchen knife he brought with him across David’s throat, slicing it open. David jumped up and grabbed at his own throat from which blood was flowing. He began to fight for his life. At this point Jasper called to one of his accomplices who rushed into the room with another knife. His accomplice then stabbed David Mendoza Alejandro 25 times. David collapsed, already dead or dying—we will never know. The final stab wound was at the back of David’s neck; the knife plunged in and left there…
At one point while he was on the stand testifying, he asked to speak to us— David’s family members. He looked us square in the eye and exclaimed “I didn’t kill your son. He was one of the nicest guys I ever met, but I did not kill him.” Jasper’s reasoning was that since the M.E. cited the 25 stab wounds as the cause of death and not the throat slit committed by Jasper, he was technically not guilty of murder. Oh. Alejandro’s version is supported by a judge’s sentencing opinion drawing on the facts of the trial, which Gawker links to but doesn’t quote. So we learn, belatedly, that Nolan short-armed his account of Jasper’s crime and then allowed Jasper to mislead the world about it. And this is not some Texas railroading. Jasper confessed to slitting David Alejandro’s throat. But hey, Gawker got some clicks!
(UPDATE: Gawker Editor John Cook says suggesting they ran the letter for clicks is “galactically stupid.” Fair enough. My point is, Gawker got them, and it almost certainly wouldn’t have had the post not glossed over Jasper’s crime. I’ve moved up the following three paragraphs from the bottom of the post to make that point clearer.) If the true facts of the case had been made clear, it’s doubtful that Jasper’s letter would have merited publishing at all. Or if it did, it would have been a very different column with a very different response. It’s worth noting that none of Gawker’s other posts in its Letters From Death Row series, most of which included more detail on the crimes (“On Christmas day, he suffocated the child to death, and later buried her in a shallow grave outside of Houston”) went nearly as big.
Alejandro’s rebuttal, “A discussion of the Ray Jasper Death Row issue from a family member of the victim,” hasn’t gone quite as viral. It has gotten about 2 percent of the tweets Jasper’s sob story got. At the very least, Gawker should update Jasper’s piece with a link to Alejandro’s, but it hasn’t even done that much. This isn’t to say that there’s no value in soliciting and running letters from prisoners facing execution. Clearly there is. But a letter is basically an opinion column, and while columnists should have wide latitude, wholesale distortion of an established record—a record to which Gawker had easy access—is far out of bounds. Just because The Wall Street Journal op-ed page does it doesn’t make it right. It’s an old issue. How much latitude do you give opinion writers? It’s a judgment issue, but Gawker didn’t use any. And no, allowing the facts to be fixed later, in a separate post—by the victim’s brother, no less—doesn’t make it okay.
"Ex-rapper put to death for studio owner's killing," by Michael Graczyk. (Associated Press | March 19, 2014)
HUNTSVILLE, Texas (AP) — A former San Antonio rap musician was executed Wednesday for a knife attack and robbery more than 15 years ago that left a recording studio owner dead. Ray Jasper, 33, was injected with a lethal dose of pentobarbital for the November 1998 stabbing death of David Alejandro.
Before being put to death, Jasper spoke quietly, asking his family to "take care of each other, stay strong and faithful to God." He also thanked his supporters and told his daughter that he loved her, adding that she "be strong, be positive, have a great life." Jasper then asked that the "Lord God almighty in heaven Jesus Christ see my spirit." As the drug started to take effect, he took a couple of deep breaths, then began snoring — each snore less noticeable until all movement stopped. He was pronounced dead at 6:31 p.m. CDT — 20 minutes after being given the lethal dose. A printed statement from Jasper that was similar to what he said as his final words was handed out after the execution.
During his case, Jasper had acknowledged he slit Alejandro's throat to steal equipment from the San Antonio studio, but he insisted a partner was responsible for Alejandro's fatal stab wounds. Alejandro's brother, Eddie Alejandro Jr., was listed as a witness to Jasper's execution but did not attend. A statement from him was released after Jasper's death. "Justice is a dish best served by the state," Eddie Alejandro wrote in the statement. "This sociopath treated people like a baby treats a diaper with no regard for neither my family and friends, nor his family and friends. "Years of happiness were wiped away in one night for me. He might as well have dug that cold knife in me, too, cause he murdered my heart that night." None of Jasper's family members or friends witnessed the execution. He didn't select anyone to be present.
His lethal injection was the third in Texas this year. Another is set for next week before the state — the nation's most active when it comes to the death penalty — begins using a new batch of pentobarbital obtained through a different pharmacy. Prison officials have refused requests from The Associated Press to disclose which pharmacy is providing the drugs, arguing that information must be kept secret to protect the safety of its new supplier. Lawyers for Jasper, who was black, argued unsuccessfully to the courts that a review of juror questionnaires that they say only became available recently showed a black potential juror at Jasper's San Antonio trial in 2000 was questioned and disqualified improperly because of race. The U.S. Supreme Court rejected the argument about 30 minutes before Jasper was taken to the death chamber in Huntsville. State attorneys argued the juror questionnaires long had been accessible and that race was not a factor in jury selection.
A Bexar County jury deliberated only 15 minutes before convicting Jasper of Alejandro's slaying. The panel then took less than two hours to decide he should be put to death. The Netherlands-born Jasper, whose father was in the U.S. Air Force, was 18 at the time of the attack on Alejandro and had a criminal record beginning about age 15 when his family moved from California to San Antonio. Jasper had previous dealings with the 33-year-old Alejandro, who was the lead singer of a San Antonio Christian-based music group in addition to running his recording studio. Two other men were convicted in Alejandro's slaying along with Jasper. Doug Williams, now 35, was convicted and sentenced to life in prison. Steven Russell, 34, also is serving life after taking a plea deal.
"Ex-rapper put to death for studio owner’s killing," by Cody Stark. (Wed Mar 19, 2014, 11:11 PM CDT)
HUNTSVILLE — A former San Antonio musician became the third condemned inmate to be executed in Texas this year Wednesday for the slaying of a recording studio owner during a robbery 15 years ago. Ray Jasper, 33, was put to death by lethal injection for the stabbing death of 33-year-old David Alejandro in November 1998. Jasper, whose final appeal was denied by the U.S. Supreme Court less than an hour before the execution, told his family to “stay strong” and “faithful to God.” He also told his daughter to “have a great life” and that he loved her before softly saying a prayer. “May the Lord God Almighty in heaven Jesus Christ see my spirit. Amen,” he said before telling the warden he was ready. Jasper’s breathing became heavy and he started gurgling and snoring as the single dose of pentobarbital was administered intravenously. He lost consciousness and was pronounced dead at 6:31 p.m., 20 minutes after the lethal dose began.
During his case, Jasper had acknowledged he slit Alejandro’s throat to steal equipment from the San Antonio studio, but he insisted a partner was responsible for Alejandro’s fatal stab wounds. There were no personal or victim witnesses present at Wednesday’s execution. Eddie Alejandro Jr., the victim’s brother did release a written statement concerning his thoughts, not those of his family, on Jasper’s death. “Comes a time when wisdom surpasses the need for vengeance. Justice is a dish best served by the state,” he wrote. “This sociopath treated people like a baby treats a diaper with no regard for neither my family and friends nor his family and friends — my condolences to his mother. Having met her, I feel she did not deserve this from him. But I truly believe that like most cold-blooded killers, he harbored a desire for murder and carried out this heinous act to quench that desire. If it had not been my brother it would have been another. There are more like him out there, like sharks in the water searching for an unsuspecting victim.”
A Bexar County jury deliberated only 15 minutes before convicting Jasper of David Alejandro’s slaying. The panel then took less than two hours to decide he should be put to death. The Netherlands-born Jasper, whose father was in the U.S. Air Force, was 18 at the time of the attack on Alejandro and had a criminal record beginning about age 15 when his family moved from California to San Antonio. Jasper had previous dealings with Alejandro, who was the lead singer of a San Antonio Christian-based music group in addition to running his recording studio.
Two other men were convicted in Alejandro’s slaying along with Jasper. Doug Williams, now 35, was convicted and sentenced to life in prison. Steven Russell, 34, also is serving life after taking a plea deal. Another execution is set for next week before the Texas begins using a new batch of pentobarbital obtained through a different pharmacy. Prison officials have refused requests from The Associated Press to disclose which pharmacy is providing the drugs, arguing that information must be kept secret to protect the safety of its new supplier. The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general’s office, which has said the state’s open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections. “We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” said Texas Department of Criminal Justice spokesman Jason Clark.
A discussion of the Ray Jasper Death Row issue from a family member of the victim
Previously, a post from Hamilton Nolan on Gawker shared a statement from a Texas Death Row inmate named Ray Jasper. The letter from Jasper is touted as the last statement Jasper may make on earth. Huffpo has it as a must read. Jasper is on Death Row for his involvement in a stabbing murder committed during a robbery in November of 1998. I'm about to comment on Jasper's statement without having read it. In fact more than likely I will never read it. I imagine it is not much more than the statement he made in court to my family. My name is Steven Alejandro, and it is our brother, son, grandchild and cousin, the forever 33 year old, David Mendoza Alejandro who was killed by Jasper and his two accomplices.
The facts of the case are readily available on the internet, but allow me to plainly restate them here. David was killed on November 29 1998. It was roughly seven to ten days before this date when, unbeknownst to him, David received his death sentence. Jasper, according to his testimony, needed money so that he could move out of his parents house and into an apartment with the mother of his child, his girlfriend. Jasper decided to rob David. Jasper was an aspiring rapper who had been recording music at David's self owned recording studio. (An important note here is that Jasper was not a business partner of David's as has been claimed elsewhere.) This was a self-made independently owned recording studio, by the way. David had leased an old apartment complex office, and with his own hands, and the help of our father, fashioned it into a affordable space for struggling local musicians. He offered low rates for artists who, much like himself, could not afford more spacious digs. My brother had no apartment of his own; he would crash on a couch at our parents house or, more often, sleep on a makeshift bed on the floor in the studio. He eschewed nicer living quarters so that he could pour his available money into the studio.
Ray Jasper knew well that he could not rob David's studio equipment without being fingered to the police by him later. So it was, seven to ten days prior, Jasper made the decision to end David's life. He enlisted the help of two others. That night (and this is all from on-the-record courtroom testimony and statements he gave police in his confession) the three men made the recording appointment. They were there for roughly two hours working, recording, David sitting at the control console. Jasper admits to then grabbing David by his hair, yanking his head back and pulling the kitchen knife he brought with him across David's throat, slicing it open. David jumped up and grabbed at his own throat from which blood was flowing. He began to fight for his life. At this point Jasper called to one of his accomplices who rushed into the room with another knife. His accomplice then stabbed David Mendoza Alejandro 25 times. David collapsed, already dead or dying—we will never know. The final stab wound was at the back of David's neck; the knife plunged in and left there. He was then covered with a sheet and the three men proceeded to tear out as much equipment as they could and load it all into the van they drove there. As they were loading they were spotted by an off-duty Sheriff who called out to them. They took off running, and were eventually caught. The evidence was overwhelming; DNA, fingerprints, confessions. This is and was an open and shut case, as they say in all the cheesy TV murder investigation shows. One defendant was offered the choice of a trial by jury, which could end in a death sentence, or he could avoid the death penalty by admitting his guilt. He chose to admit his guilt. Jasper, given the same choice, apparently decided to take his chance with a jury trial.
During the trial, testimony from the Medical Examiner revealed that it was not technically Jasper's injury to David that caused death, but the subsequent 25 stab wounds. Jasper's defense team seized upon this as a defense tactic against a murder charge, and Jasper joined that opinion. Never mind that Jasper delivered the first attack. At one point while he was on the stand testifying, he asked to speak to us— David's family members. He looked us square in the eye and exclaimed "I didn't kill your son. He was one of the nicest guys I ever met, but I did not kill him." Jasper's reasoning was that since the M.E. cited the 25 stab wounds as the cause of death and not the throat slit committed by Jasper, he was technically not guilty of murder. You can make of that what you will, but it seems any reasonable person would hold Jasper as culpable in the murder as the other defendant who finished off David. So the long and short is this final statement is based in a fantasy that Jasper has convinced himself of. All evidence to the contrary, it seems he denies he is a murderer and therefore he feels he should not be executed for the crime.
And now to the Death Penalty issue. I must stress that I speak only for myself here and for no other family member. Our extended family is much like the rest of the United States. We are a large American family. There are Liberals and there are Conservatives in our midst. There are pro-death penalty and anti-death penalty folks in our tree as well. I am one of those opposed to the death penalty. As far as I can remember I have been in opposition to it. My brother David was not opposed to the implementation of the death penalty. We used to debate the topic often. Sometimes vigorously. During the trial the prosecutors in the case decided to use me on the witness stand in an effort to give David a voice. David was one year older than me. We had been roommates the whole time we lived with our parents. I was the Best Man at his wedding. I hesitate to say I was happy to testify, since it remains the hardest thing I have ever done in my life. But I willingly agreed to testify on David's behalf. At the trial, the first thing the prosecution wanted to do was to introduce David to the Jury through my words, so I was the first witness called.
After I was sworn in and sat in the chair, the prosecutor handed me a picture of David. It was a postmortem picture. It was a close up of David's face from the neck up. His eyes still open. The gash from Jasper's knife visible. I let out a gasp and when the Prosecutor asked me what the picture was of I told him, "it's my brother, David." Through tearful testimony, I tried my best to bring my brother back to life in that courtroom. When I got off the stand I reached for my father's embrace and sobbed as I had never before and have not since.
As I wrote earlier, this was an open and shut case and the jury did not take long to return a guilty verdict. All that was left was the punishment. During the punishment phase the prosecutor outlines the State's case for the death penalty and, of course, the defense argues for the sparing of the defendant's life. I'm sure if you asked, under the Freedom Of Information Act, you would be able to wade through the trial documents; the prosecutor's case was convincing for a death penalty verdict from the jury. Ray Jasper did not grow up on the wrong side of the tracks, he came from a family wherein his father, a career military man, and his mother were still happily married. Jasper was not defended by a court appointed lawyer; his defense was comprised of a well paid for and well known private practice firm. Jasper had a history of arrests and in fact was out on bail when he participated in the murder of David. He had, weeks before, assaulted an off-duty police officer who had stumbled upon Jasper attempting to break into a house.
During the trial somehow, apparently, the defense team got the idea that some of our family might be opposed to the death penalty and called my father to the stand. Nothing my father said could help their defense. When they called me to the stand the defense attorney asked me what my thoughts on the death penalty were. I knew what he was doing. He was hoping I would confess my opposition to the death penalty, thus maybe sparing Ray Jasper's life. And I could not assist him in good conscience. I've thought often in the years since If I did the right thing. If, when push came to shove, I suppressed my own true thoughts in an effort to avenge David's murder. This is what happened. The defense asked me what my opinion of the death penalty was. And I said, "I don't think it's relevant what my opinion is." And I paused. And I don't know where it came from, but I then said, "but I can tell you what David thought of the death penalty." And the defense attorney asked me, "what was David's opinion?" And I said, "he always told me that if there was no question of the guilt of a murder defendant, that the death penalty was a just punishment." I'll never know for sure, but it's a pretty good bet David's words uttered through me sealed Ray Jasper's fate.
After everything, I'm still opposed to the death penalty. I have no intention of witnessing Jasper's execution but I have no intention of fighting to stop it either. Does this make me a hypocrite? Maybe, but that's for me to live with. I harbor no illusions that Jasper's ceasing to exist will ameliorate the pain I feel daily from the loss of David. The truth is I rarely think of Jasper or the other defendants. I think of David more. Those thoughts are more important to me than anything else. Certainly more important than any last statement from Ray Jasper. Though I purposefully skipped reading Jasper's statement, I did read through the comments. I have to say to my fellow death penalty opponent friends: Keep up your fight. It is an honorable one. But do not use this man, Ray Jasper, as your spokesperson, as your example of why the death penalty should be abolished. The death penalty should be abolished because it is wrong to kill another human being. Not because a Medical Examiner said your knife wound did not cause immediate death. Ray Jasper is not worthy of your good and kind hearts. He has never accepted culpability or expressed remorse. He is responsible for viciously ending the life of "the nicest man he ever met." Responsible for ending the life of the nicest man my family ever met, David Mendoza Alejandro.
Update: I would like people reading my letter to know that I have since read Ray Jasper's letter. I've lived most of my life trying to be open minded and fair. And I realized I was letting my emotions get in the way of this. So I have read Jasper's letter. I am aware of the truths that Jasper writes of. The fact remains, however, that he is still unrepentant and blind to his guilt. It is hard to swallow calls for empathy from a person who lacks it themselves. I pray for Ray Jasper's family and all those truly innocent who have been victimized and will continue my own fight against injustice as best as I can. I stand by my response
David Alejandro owned and operated a music recording studio where musicians could have their music professionally recorded for a fee. David was also the lead singer of a San Antonio Christian-based music group in addition to running his recording studio. The business required the use of various pieces of electronic equipment such as computers, soundboards and microphones. Ray Jasper and some of his friends frequently recorded their rap music at the studio.
At some point, Jasper decided to steal David Alejandro's equipment in order to make money from its sale. Aware that David would be able to identify him, Jasper also decided to kill Alejandro so that there would be no witnesses. He enlisted the help of two friends to assist in removing the heavy equipment from the studio. On November 21, 1998, Jasper purchased large bags from an Academy store. On November 30, he and his accomplices drove two vans to David's studio. Jasper and one accomplice carried concealed knives. The three had made an appointment at the studio and spent about two hours there while David recorded their music before they decided it was time to kill him. Jasper slashed David's throat from ear to ear, but did not kill him. Jasper and one accomplice continued to attack David Alejandro until he died as a result of multiple stab wounds to his chest and abdomen. Jasper covered the body with a sheet taken earlier from Jasper's bed, and the group began loading equipment into the vans. Jasper fled on foot when an off-duty police officer arrived to investigate the scene, but was apprehended days later outside his home.
On December 2, 1998, Jasper confessed to police that he had planned the crime and recruited two accomplices. His confession describes events in detail that were later corroborated by Jasper's girlfriend, Christina Breton, police officers, security guards, and physical evidence discovered by investigators. Breton testified that several days before the commission of the crime, Jasper had told her about his plan to steal David Alejandro's equipment and kill him. During the punishment phase of the trial, the State introduced evidence of Jasper's criminal history and bad acts, beginning at age fifteen, including offenses and bad acts such as theft of a bicycle, drug possession, attempted burglary, and an incident of violence against an off-duty police officer. The jury took only 15 minutes to decide that Jasper was guilty of the offense and, after the penalty phase testimony, two hours to answer the questions that led to t he sentence of death.
Doug Williams, 35 at the time of Jasper's execution, was sentenced to life in prison. Steven Russell, 34, also is serving life after taking a plea deal.
The Texas Court of Criminal Appeals notes that the "facts of this crime were brutal and demonstrated calculated deliberation. Jasper planned well in advance the stabbing murder of someone he would later describe as 'one of the nicest people he ever met in his life.' He allowed Alejandro to assist him with recording for two hours, knowing he was about to kill him. As Alejandro sat unaware at the soundboard mixing a track for Jasper, Jasper pulled his head back and, taking a kitchen knife from his jacket, slit his throat from ear to ear. When that wound did not kill him, one of Jasper's accomplices joined the attack until Alejandro was dead. Alejandro suffered twenty-five stab wounds. Jasper quickly loaded equipment into the vans and instructed one stunned accomplice to hurry up and help. In addition to the facts of the crime itself, evidence of prior criminal history and lack of remorse support the jury's finding. Jasper's criminal history included incidents beginning at the age of fifteen, when he stole a bicycle. He was expelled from school for possession of marijuana and expelled from alternative school. More recently, he attempted a residential burglary and attacked the off-duty police officer who attempted to detain him and also attempted to evade police at a traffic stop, leading them on a high-speed chase. The evidence shows a pattern of escalating criminal activity and an increasing proclivity to break laws posing threats to the safety of others. Furthermore, the evidence showed a lack of remorse. Immediately after killing Alejandro, Jasper began loading the vans. At the punishment phase of the trial, when asked if he had anything to say to Alejandro's family, Jasper replied that he wanted the family to know that he did not kill Alejandro because, according to the autopsy, the only wound he claims to have been inflicted by his hand (slicing the victim's throat, as opposed to the twenty-five stab wounds), was not enough to kill him."
UPDATE: Before being put to death, Jasper spoke quietly, asking his family to "take care of each other, stay strong and faithful to God." He also thanked his supporters and told his daughter that he loved her, adding that she "be strong, be positive, have a great life." Jasper then asked that the "Lord God almighty in heaven Jesus Christ see my spirit."
Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001). (Direct Appeal)
Defendant was convicted in the 187th District, Bexar County, Raymond Angelini, J., of capital murder, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Meyers, J., held that: (1) evidence was legally sufficient to establish continuing threat to society, at punishment phase; (2) evidence did not warrant spousal privilege; (3) trial court's remarks during defense counsel's cross-examination did not bear on presumption of innocence or vitiate impartiality of jury; (4) evidence established race neutral reason for peremptory strike; and (5) any violation of defendant's right to be present when two prospective jurors were excused was harmless. Affirmed.
MEYERS, J., delivered the opinion of the Court, joined by KELLER, P.J., PRICE, JOHNSON, HOLCOMB, and COCHRAN J.J.
Appellant was convicted in January 2000 of capital murder. Tex. Pen.Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Tex.Code Crim. Proc. Ann. art. 37.071 §§ 2(b) and 2(e), the trial court sentenced appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises five points of error including a challenge to the sufficiency of the evidence supporting the jury's finding that appellant would be a continuing threat to society. See Article 37.071 § 2(b). The sufficiency point will be addressed first. We affirm. FN1. Unless otherwise indicated all future references to Articles refer to Texas Code of Criminal Procedure.
David Alejandro owned and operated a music recording studio where musicians could have their music professionally recorded for a fee. This business required the use of various pieces of electronic equipment such as computers, soundboards and microphones. Appellant and some of his friends frequently recorded their rap music at the studio. At some point, appellant decided to steal Alejandro's equipment in order to make money from its sale. Aware that Alejandro would be able to identify him, appellant also decided to kill Alejandro so that there would be no witnesses. He enlisted the help of two friends to assist in removing the heavy equipment from the studio. On November 21, 1998, appellant purchased large bags from an Academy store. A week later, he and his accomplices drove two vans to Alejandro's studio. Appellant and one accomplice carried concealed knives. The three had made an appointment at the studio and spent about two hours there while Alejandro recorded their music before they decided it was time to kill him. Appellant slashed Alejandro's throat from ear to ear, but did not kill him. Appellant and one accomplice continued to attack Alejandro until he died as a result of multiple stab wounds to his chest and abdomen. Appellant covered the body with a sheet taken earlier from appellant's bed, and the group began loading equipment into the vans. Appellant fled on foot when an off-duty police officer arrived to investigate the scene, but was apprehended days later outside his home.
On December 2, 1998, appellant confessed to police that he had planned the crime and recruited two accomplices. His confession describes events in detail that were later corroborated by appellant's girlfriend, Christina Breton, police officers, security guards, and physical evidence discovered by investigators. Breton testified that several days before the commission of the crime, appellant had told her about his plan to steal Alejandro's equipment and kill him. During the punishment phase of the trial, the State introduced evidence of appellant's criminal history and bad acts, beginning at age fifteen, including offenses and bad acts such as theft of a bicycle, drug possession, attempted burglary, and an incident of violence against an off-duty police officer.
In his third point of error, appellant claims the evidence presented was legally insufficient to support the jury's finding that he would constitute a continuing threat to society. See Art. 37.071 § 2(b)(1). The proper standard when reviewing sufficiency of the evidence at punishment requires the court to look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v. State, 850 S.W.2d 471 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). We have also held that the facts of the crime alone can be sufficient to support an affirmative finding to the special issue. Allridge, 850 S.W.2d at 488. A jury may infer future dangerousness from the brutality and depravity of the crime committed by a criminal defendant. Trevino v. State, 991 S.W.2d 849, 854 (Tex.Crim.App.1999). The facts of this crime were brutal and demonstrated calculated deliberation. Appellant planned well in advance the stabbing murder of someone he would later describe as “one of the nicest people [he] ever met in [his] life.” He allowed Alejandro to assist him with recording for two hours, knowing he was about to kill him. As Alejandro sat unaware at the soundboard mixing a track for appellant, appellant pulled his head back and, taking a kitchen knife from his jacket, slit his throat from ear to ear. When that wound did not kill him, one of appellant's accomplices joined the attack until Alejandro was dead. Alejandro suffered twenty-five stab wounds. Appellant quickly loaded equipment into the vans and instructed one stunned accomplice to hurry up and help.
In addition to the facts of the crime itself, evidence adduced at trial of prior criminal history and lack of remorse support the jury's finding. Appellant's criminal history included incidents beginning at the age of fifteen, when he stole a bicycle. He was expelled from school for possession of marijuana and expelled from alternative school. More recently, he attempted a residential burglary and attacked the off-duty police officer who attempted to detain him and also attempted to evade police at a traffic stop, leading them on a high-speed chase. The evidence introduced by the State at trial shows a pattern of escalating criminal activity and an increasing proclivity to break laws posing threats to the safety of others. Furthermore, the evidence showed a lack of remorse. Immediately after killing Alejandro, appellant began loading the vans. At the punishment phase of the trial, when asked if he had anything to say to Alejandro's family, appellant replied that he wanted the family to know that he did not kill Alejandro because, according to the autopsy, the only wound he claims to have been inflicted by his hand (slicing the victim's throat, as opposed to the twenty-five stab wounds), was not enough to kill him. Based on the facts of the offense and other evidence of escalating criminal activity and lack of remorse, a rational jury could have found beyond a reasonable doubt that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness special issue. Point of error three is overruled.
In point of error one, appellant claims the trial court reversibly erred in failing to rule that appellant was married to a key state witness, Christina Breton. Facts adduced at trial showed that Breton had been living with appellant at his parents' home since the age of fifteen and that the two had a child together. While there has been no marriage ceremony, appellant claims he and Breton were informally married at the time of her testimony. If appellant and Breton were married, Texas Rule of Evidence 504, Husband Wife Privileges, would have been applicable. FN2. Under Rule 504(a), Confidential Communication Privilege, an accused has a privilege “to refuse to disclose and to prevent another from disclosing confidential communication made to the person's spouse while they were married.” Rule 504(b), Privilege Not to Testify in Criminal Case, provides that “[i]n a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state.” Tex.R. Evid. 504(a)(b).
The existence of an informal marriage may be proven in a judicial proceeding one of two ways. There can be a showing that a declaration of marriage has been signed. If there is no declaration, there must be evidence that the man and woman first agreed to be married and then lived together in Texas as husband and wife while representing to others that they were married. Tex. Fam.Code § 2.401(a)(1)(2) (Vernon 1998).FN3 In a hearing outside the presence of the jury, appellant's trial attorney attempted to prove the latter. At the end of the hearing, the trial judge informed appellant that he thought all the evidence had shown was an agreement to be married in the future. Breton was subsequently called by the State to testify.
FN3. Section 2.401, Proof of Informal Marriage, provides: (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (c) A person under 18 years of age may not: (1) be a party to an informal marriage; or (2) execute a declaration of informal marriage under Section 2.402.
It should be noted that although it was not argued at the hearing, both appellant and the State address the issue in their briefs of whether or not Ms. Breton in fact possessed the legal capacity to enter into an informal marriage. Ms. Breton testified that she did not turn eighteen until after the date appellant was arrested and incarcerated for this offense. Since we are upholding the trial court's ruling in regards to § 2.401(a)(2), further analysis under subsection (c) is unnecessary.
In order to determine the appropriate standard of review to apply when reviewing a trial court's ruling involving “mixed questions of law and fact,” it is important to determine whether or not the trial court's resolution of those questions turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). If the resolution turns on an evaluation of credibility and demeanor, then appellate courts should afford almost total deference to the trial court's finding of fact and view the evidence in the light most favorable to the trial court's ruling. When, however, the ultimate resolution of “mixed questions of law and fact” does not turn on an evaluation of credibility and demeanor, then appellate courts may decide to review the trial court's decisions de novo. Id. Since it is apparent from the record that in the present case the trial court reached its decision by evaluating the credibility of the witnesses, we will view the evidence in the light most favorable to the court's ruling. See id.
Four witnesses were called by appellant to testify about the alleged informal marriage between appellant and Breton. The witnesses at the hearing provided contradictory testimony. For example, although Breton testified that she and appellant held themselves out as husband and wife, she also referred to appellant as her boyfriend. Reverend Patterson, appellant's family pastor, was also called to the stand. Like Breton, Reverend Patterson provided conflicting testimony. Upon questioning by appellant's attorney, Reverend Patterson testified that appellant and Breton held themselves out as being husband and wife. However, he also stated that he considered them to be a couple with intentions of getting married. The third witness called to the stand, appellant's father, was also unclear as to the status of appellant and Breton. On one hand he would refer to Breton as appellant's “soon-to-be wife” but also stated that he considered Breton to have already been his son's wife. The last witness to be called by appellant's attorney was appellant. On direct-examination by his attorney, appellant testified that he considered Breton to be his wife and that he held her out to be his wife to his family and friends. However, during cross-examination, the State produced a bank document dated September 24, 1998, on which appellant referred to Breton as his girlfriend.
After appellant finished questioning his witnesses, the State called appellant's mother to the stand. As with the prior witnesses, her testimony did little to establish whether or not appellant and Breton were informally married. At the conclusion of the hearing, the trial judge ruled that he did not believe the testimony that appellant and Breton held themselves out as husband and wife. Viewing the evidence in the light most favorable to the trial court's ruling, we agree that the testimony failed to establish that an informal marriage existed between appellant and Breton. Point of error number one is overruled.
In appellant's second point of error, he claims his right to a fair trial by an impartial jury was violated by comments of the trial judge. Appellant did not object, but it is the province of this Court to “take notice of fundamental errors affecting substantial rights although they were not presented to the court,” pursuant to Texas Rule of Evidence 103(d). Appellant specifically objects to the following two exchanges during trial. In the first, appellant cross-examined a twelve-year-old witness with respect to the witness's identification of appellant. In his statement, the witness said he saw two men who were both six feet tall. Appellant was asked to stand, and the witness admitted that he only looked about five-nine or five-ten.
Defense counsel: And when [appellant] stood up, you said that he looked to be like five-eight or five-nine. You were pretty sure that he was not, in fact, six feet tall - Court: He said five-nine, five-ten, but go ahead. Defense counsel: Five-eight, five-nine, five-ten. But you're pretty sure that he is not six feet tall; is that correct? Witness: He looked like he was pretty tall at the time. Defense counsel: If that was in fact him. It could have been— Witness: Because my cousin is like around six feet tall, and my brother too, and he looked the same size as my brother. Defense counsel: Okay. Okay. As you look at this picture here, does that appear to fairly and accurately represent the Defendant? (Exhibit proffered to witness). Witness: Does it look— Court: Come on, Mr. Reece. Knock it off. State: I object. Court: Ladies and gentlemen of the jury, step outside. The photograph appellant had shown to the witness was not one of appellant, but of another man indicted for his participation in the same crime. The second exchange occurred during cross-examination of a later witness. Defense counsel: Were your conversations with [the State's attorney], were those statements put into written form, to your knowledge? Witness: I believe so. Defense counsel: And do you have a copy of those with you? Witness: No. Defense counsel: Judge, I request the State to provide a copy if they have a written statement. Court: I think he told you that they didn't have one. Defense counsel: I think she indicated that the State— Court: Ladies and gentlemen of the jury, step outside. If you want to put [the State's attorney] on the stand, we'll be glad to do it. State: So would I. (Jury excused). State's counsel was sworn in and appellant questioned him. When the jury returned, the judge told them, “there's no statement from this witness that have [sic] been reduced to writing.”
In Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App.2000)(plurality op.), a plurality of the Court held that a trial judge's comments “which tainted [the defendant's] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” Even if we were bound to follow that plurality opinion, the first interchange of which appellant complains does not rise to this level. It is not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of previously admitted testimony. Further, a trial judge's irritation at the defense attorney does not translate to an indication as to the judge's views about the defendant's guilt or innocence. The second episode to which appellant objects also lacks those elements that would prejudice the jury to the degree discussed in Blue. A trial judge has broad discretion in maintaining control and expediting the trial. These comments were aimed at clearing up a point of confusion. None of the trial judge's comments rose to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury. Point of error two is overruled.
In his fourth point of error, appellant claims the trial judge reversibly erred in failing to grant appellant's Batson challenge to the State's striking of one venireperson. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits race-based jury selection. Batson, supra. A Batson challenge proceeds by the following steps: First, the defendant makes a prima facie case that a venireperson was excluded on the basis of race. Then, the prosecution must come forth with race-neutral reasons for exercising the peremptory challenge. The defendant has the opportunity to rebut those reasons. The burden of persuasion remains with the defendant. Finally, the judge rules on whether the neutral reasons given for the peremptory challenge were contrived to conceal racially discriminatory intent. Keeton v. State, 749 S.W.2d 861, 868 (Tex.Crim.App.1988).
In the instant case, the State presented various facially race-neutral reasons for exercising its peremptory challenge against the venireperson in question. Appellant claims that the trial court's determination that those reasons were sufficient should be overturned. Because a trial court is in a unique position to make such a determination, the judge's decision is accorded great deference and will not be overturned unless it is clearly erroneous. Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000).
During voir dire examination, the venireperson responded to questions from the prosecutor that he could not “play the role of God” or “send nobody [sic], you know, to death.” When asked if he could answer the special issues in such a way as to dictate the death penalty, he replied, “I don't believe I can, but if I have to, I can make a decision.” The prosecutor cited this response as one reason for his peremptory challenge. The fact that a venireperson vacillates as to whether or not he or she is capable of imposing the death penalty despite personal beliefs is a valid and neutral reason to strike that person. See id. Furthermore, a number of answers to questions in the venireperson's written questionnaire indicated that he would require the State to prove a criminal history, and stated his belief that the death penalty is misused and used too often, is never justified, and is not an acceptable method for dealing with crime. Although appellant was able to rehabilitate him to some extent during voir dire examination, the venireperson continued to qualify his answers, and the prosecutor testified that he noticed mannerisms demonstrating uncertainty with some answers elicited by defense counsel. Numerous written answers in the pre-voir dire questionnaire indicating a bias against the imposition of the death penalty can constitute a valid reason to exercise a peremptory challenge. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994). The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). The record supports the prosecutor's reasons for exercising a peremptory challenge against the venireperson in question. After viewing the evidence in the light most favorable to the trial court's ruling, we hold that the finding was not clearly erroneous. Point of error four is overruled.
In his fifth point of error, appellant claims the trial court reversibly erred in conducting a portion of the trial in appellant's absence. The record of the voir dire examination in the instant case begins with the trial court informing the prospective jurors that they “have been summoned for a capital murder case.” Following a general discussion of the voir dire process, the court proceeded with statutory exemptions, excusing two potential jurors. Appellant and his counsel entered the courtroom immediately thereafter, at which time the trial court reminded the potential jurors that this was a capital murder case, and introduced appellant and all of the attorneys. Appellant claims the trial court erred by conducting this portion of the voir dire in his absence, and claims he was harmed because “the veniremen were exempted from jury service for exemptions that did not track the standard legal exemptions and since the attorneys for both sides did not assent to the exemptions of the veniremen in the absence of Appellant,” citing Bath v. State, 951 S.W.2d 11 (Tex.App.—Corpus Christi, pet. ref'd), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 62 (1998).
Generally, when prospective jurors are initially summoned, they are assembled in a general jury pool or general assembly. George E. Dix, Robert O. Dawson, 43 Texas Practice § 35.13 (2001). Members of the general assembly are qualified on their ability to serve and exemptions and excuses are heard and ruled on by the judge presiding over the general assembly. Prospective jurors who are not disqualified, exempt, or excused are divided into trial panels and sent to the individual courts trying the cases. At that point, attorney voir dire will result in the jury that will ultimately hear the case. Id. The general assembly portion of jury selection is not considered part of “the trial” and therefore the accused is not entitled to be present. Moore v. State, 999 S.W.2d 385, 399 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000); Chambers v. State, 903 S.W.2d 21, 31 (Tex.Crim.App.1995). We have stated that the general assembly is not part of a defendant's particular trial because “prospective jurors who are summoned to a general assembly have not been assigned to any particular case [and][t]he judge presiding over the general assembly is assigned for that purpose only at that time and has no given case in mind.” Chambers, 903 S.W.2d at 31. In the instant case, however, the trial judge assigned to preside over appellant's trial appears to have functioned as a general assembly judge over prospective jurors already assigned to appellant's specific case. Before addressing qualifications and excuses, the judge told the prospective jurors that they had been summoned for a capital murder case, although he did not introduce appellant until after ruling on the qualifications and excuses. We will therefore assume that appellant's trial had begun at the time of the exemptions, excuses and qualifications, and therefore we will assume that to be the case for purposes of addressing this point of error.
Article 33.03 requires, in all felony prosecutions, the personal presence of the defendant “at the trial” unless he voluntarily absents himself after pleading to the indictment or information or after the jury has been selected. Moreover, we have recognized that under the Sixth Amendment to the United States Constitution and Article I, § 10 of the Bill of Rights in the Constitution of Texas, “the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him....” Miller v. State, 692 S.W.2d 88, 90 (Tex.Crim.App.1985) (quoting Baltierra v. State, 586 S.W.2d 553 (Tex.Crim.App.1979)). Thus, it was statutory and constitutional error for the trial court to proceed with the excuses and qualifications in appellant's absence. The question is one of harm. Because we are faced with non-constitutional and constitutional error, we will apply the standard of harm for constitutional error. Tex.R.App. Proc. 44.2(a). In the case of constitutional error, we need not reverse appellant's conviction if we determine that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Tex.R.App. Proc. 44.2(a). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error was not harmless beyond a reasonable doubt. Appellant points to two prospective jurors who were excused, and argues he was harmed because they were not excused for “standard legal exemptions under Section 62.106 of the Texas Government Code.”
A court is not restricted to excusing prospective jurors for enumerated exemptions only. Exemptions are distinguishable from excuses. FN4 Article 35.03 provides that “the court shall hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.” We have repeatedly held that a trial court has broad discretion to excuse prospective jurors for good reason under article 35.03. Wright v. State, 28 S.W.3d 526, 533 (Tex.Crim.App.2000) (citing Butler v. State, 830 S.W.2d 125 (Tex.Crim.App.1992)), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001); Black v. State, 26 S.W.3d 895, 899 (Tex.Crim.App.2000); Fuentes v. State, 991 S.W.2d 267, 277–78 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999); see also Tex. Gov't.Code § 62.110. The only statutory restriction on excuses is that an excuse cannot be given for “an economic reason” without the presence and approval of both parties. Tex. Gov't.Code § 62.110(c). FN4. Government Code section 62.106 lists exemptions from jury service. Exemptions are enumerated reasons a prospective juror is exempt from service as a matter of law. Excuses are not specifically enumerated, but are considered on a case by case basis within the broad discretion of the court. Compare Tex.Crim. Proc.Code art. 35.03 (excuses); Tex. Gov't.Code § 62.110 (excuses) with Tex.Crim. Proc.Code art. 35.04 (exemptions); Tex. Gov't.Code § 62.106 (exemptions).
The first prospective juror was excused because the trial court determined she was a “caretaker.” FN5 The second prospective juror, who was pregnant, was excused upon explaining that she was within six weeks of her due date. Neither of these excuses was for an economic reason. Even if appellant had been present and objected to the excusals, the trial court would have been well within its discretion in overruling the objections. Thus, we are confident in concluding that appellant's absence at the time of these excuses was harmless beyond a reasonable doubt. Point of error five is overruled. FN5. It is not completely clear from the record whether the caretaker was the prospective juror or whether the caretaker was appearing on behalf of the patient, who might have been the prospective juror. Following is the brief exchange: (Venireperson comes forward)
Venireperson: I'm a caretaker for him and he's starting surgery. He has to go for two weeks every day [sic]. This is an excuse for him, doctor's excuse. (Emphasis added). Court: What number are you? Venireperson: 40. Court: I'm excusing 40. She's a caretaker. Gloria Martinez is her name. The judgment of the trial court is affirmed.
WOMACK and KEASLER, J.J., concur. HERVEY, J., not participating.
Jasper v. Thaler, 466 Fed.Appx. 429 (5th Cir. 2012). (Federal Habeas)
Background: Following affirmance of state court murder conviction and death penalty, 61 S.W.3d 413, and denial of state habeas corpus relief, defendant sought certificate of appealability (COA). The United States District Court for the Western District of Texas granted COA on Batson claim. Defendant pressed appeal on Batson claim and requested COA on various other grounds.
Holdings: The Court of Appeals held that: (1) defendant failed to establish Batson violation based on prosecutor's striking black juror, and (2) defendant was not entitled to COA on remaining claims. Affirmed.
PER CURIAM: FN* 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.
Ray Jasper was convicted of a robbery-related murder and sentenced to death. He presses his appeal to this court on the single ground that the district court granted a certificate of appealability (“COA”)—a potential Batson violation—while also requesting a COA on various issues that the district court rejected. We reject his Batson claim, deny the COA on the remaining issues, and AFFIRM the district court in all regards.
FACTS AND PROCEEDINGS
Jasper was found guilty of robbery-related capital murder with a deadly weapon and sentenced to death. He planned and carried out the murder of an acquaintance and later confessed to his crime. The Texas Court of Criminal Appeals on direct review outlined the facts of the murder. David Alejandro owned and operated a music recording studio where musicians could have their music professionally recorded for a fee. This business required the use of various pieces of electronic equipment such as computers, soundboards and microphones. [Jasper] and some of his friends frequently recorded their rap music at the studio. At some point, [Jasper] decided to steal Alejandro's equipment in order to make money from its sale. Aware that Alejandro would be able to identify him, [Jasper] also decided to kill Alejandro so that there would be no witnesses. He enlisted the help of two friends to assist in removing the heavy equipment from the studio.
On November 21, 1998, [Jasper] purchased large bags from an Academy store. A week later, he and his accomplices drove two vans to Alejandro's studio. [Jasper] and one accomplice carried concealed knives. The three had made an appointment at the studio and spent about two hours there while Alejandro recorded their music before they decided it was time to kill him. [Jasper] slashed Alejandro's throat from ear to ear, but did not kill him. [Jasper] and one accomplice continued to attack Alejandro until he died as a result of multiple stab wounds to his chest and abdomen. [Jasper] covered the body with a sheet taken earlier from [Jasper's] bed, and the group began loading equipment into the vans. [Jasper] fled on foot when an off-duty police officer arrived to investigate the scene, but was apprehended days later outside his home. On December 2, 1998, [Jasper] confessed to police that he had planned the crime and recruited two accomplices. His confession describes events in detail that were later corroborated by [Jasper's] girlfriend, Christina Breton, police officers, security guards, and physical evidence discovered by investigators. Breton testified that several days before the commission of the crime, [Jasper] had told her about his plan to steal Alejandro's equipment and kill him. Jasper v. State, 61 S.W.3d 413, 417 (Tex.Crim.App.2001).
On direct review, the Texas Court of Criminal Appeals affirmed his conviction and his sentence. Id. Jasper did not seek certiorari review from the U.S. Supreme Court. His application for state habeas corpus relief for ineffective assistance of counsel was denied. Ex parte Jasper, No. WR–68832–01, 2008 WL 3855114, 2008 Tex.Crim.App. Unpub. LEXIS 536 (Aug. 20, 2008). Jasper sought a COA in the district court for the Western District of Texas asserting fourteen grounds for relief. In a comprehensive 187–page opinion, the district court denied all but one claim. Jasper v. Thaler, 765 F.Supp.2d 783 (W.D.Tex.2011). The district court granted a COA on his Batson equal protection claim for allegedly race-based use of peremptory challenges during voir dire. Jasper presses his appeal on that front while also seeking a COA on various other grounds.
The sole issue on which Jasper was granted a COA was an alleged Batson violation. In Batson, the Supreme Court held that the use of a peremptory strike against a venire member on racial grounds violated the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It also established a process by which defendants may contest the use of a purportedly racially motivated peremptory strike. [A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race ... [T]he defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. ... Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause.... The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. Id. at 96–98, 106 S.Ct. 1712 (internal citations and quotation marks omitted). The Court has refined this process in subsequent cases. In Purkett v. Elem, the Court stated that an implausible or unbelievable justification for the strike must be found to be a pretext for purposeful discrimination. 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The party alleging purposeful discrimination ultimately bears the burden of persuasion. United States v. Webster, 162 F.3d 308, 349 (5th Cir.1998).
Jasper raises a Batson challenge to the peremptory strike of venire member Vernon Galloway. All members of the venire filled out a lengthy questionnaire prior to individual voir dire. Unfortunately, the questionnaires were not made part of the direct appellate record and have been lost for review. The transcript of the voir dire examination of Mr. Galloway is the only way to examine his answers to the questionnaire.
Galloway made numerous statements under questioning by the prosecutor. • He said that he believed the death penalty was appropriate in some cases but that he could never return a verdict which assessed the death penalty. In response to a question by the prosecution on that answer he responded by saying, “Well, it's just that I can't play the role of God. I can't send nobody, you know, to death.” • In reference to the prosecutor saying that “you personally could not be involved as one of the twelve jurors who would ever answer those questions in such a way as a man's life would be taken,” Galloway answered, “I don't believe I can. But if I have to, I can make a decision.” • To follow up, the prosecutor asked: “If you were selected to sit as a juror in this case, could you answer those three punishment questions in such a way that you would know that the result of the way you answered those question that a man would be sentenced to death?” Galloway replied, “Yes.” • It was revealed that he had answered “Yes” and “too often” in reference to a question of whether the death penalty was ever misused. On follow up, he indicated that he thought innocent men had been executed and their innocence was not discovered until it was too late. • According to the questionnaire, Galloway's greatest fear was that he would not have enough evidence to decide a case. Upon explanation by the prosecution of the burden of proof required in the trial, Galloway indicated that he would have to personally ask questions to eliminate reasonable doubt in his mind if he felt there was not “enough evidence.” • Upon explanation by the prosecution that he would not be able to ask questions, he explained that he would ask them to the other jurors. • He checked on his questionnaire that “capital [punishment] is absolutely never justified.” On follow-up the prosecutor asked him “when it would not be too harsh?” (emphasis added). He responded “When you don't have enough evidence.” • He indicated on his questionnaire that he thought “capital punishment is the most hideous practice of our time.” • He stated that he strongly agreed that if someone is accused of capital murder, he should “have to prove his innocence.” When the prosecutor explained that the burden was on the prosecution to prove guilt, he responded by saying, “I believe people have to prove it strongly.” He then went on to relate a story where an assaulter would have to prove, through the help of his lawyers, that he had not committed the crime • He responded on the questionnaire that his friends describe him as “crazy.” In voir dire, he indicated that he meant that he “joke[d] a lot.” • Finally, he indicated during voir dire that he could answer the three sentencing questions in such a way that he would know he was sentencing someone to death.
During the defense portion of the voir dire, Galloway was again told the appropriate burden of proof that applied to the case. He indicated that he could impose the death penalty if he felt there was enough evidence. At that point, defense counsel pointed out to Galloway that the defendant was black and that Galloway was the only black member of the panel. He then started to ask him if he would treat the defendant any differently. The prosecution objected and the court sustained the objection. During defense voir dire Galloway indicated that: • he could assess capital punishment if given enough evidence; • sometimes the criminal deserves capital punishment; • we must have capital punishment for some crimes; • capital punishment is wrong but it is necessary in an imperfect civilization; • he had not understood the prosecution's question about his questionnaire answer agreeing with the statement “that capital punishment cannot be regarded as a sane method for dealing with crime”; • he had not understood the prosecution's question about whether the death penalty was never justified; • he agreed with his questionnaire answer that “capital punishment may be wrong but it is the best preventative to crime”;
After the prosecutor exercised his peremptory challenge and the judge had dismissed Galloway, Jasper's attorney belatedly raised a Batson challenge. The district court told him that he was supposed to make the challenge before the venire member was dismissed, but nevertheless let him lodge his challenge. After arguing with the trial judge that the prosecution had struck all the black members of the venire, the defense lawyer was permitted to question the prosecution's decision to strike Galloway. The prosecutor cited a variety of race-neutral factors, including his: • belief that Galloway's first impression of the death penalty was not positive, stating, “I believe Mr. Galloway believes that the death penalty is appropriate in some cases. [Although Galloway also stated,] ‘But I can never return a verdict which addressed the death penalty.’ ”; • unease with Galloway's answer that the defendant would have had to have a prior run-in with the law before assessing the death penalty; • unease with Galloway's answer that capital punishment is absolutely never justified; • unease with Galloway's answer that capital punishment is the most hideous practice of our time; • uncertainty whether Galloway trusted the criminal justice system in Bexar County, Texas; • concern about Galloway's answer that his best friends describe him as crazy. The prosecutor stated, “It was somewhat tempered by his explanation, but it still left me feeling a little bit unsettled in terms of the decorum I would want to have on a jury in this case;” • opinion that Galloway's gold-hoop earing was a little bit of “an outlier” for a fifty-two year old man, and that he was not interested in having jurors that are “outliers of the norm;” • thought that Galloway might have been influenced by the inappropriate insinuation by the defense; • dislike of Galloway's demeanor when he was asked by defense counsel about the death penalty being a sane method to deal with crime. The prosecutor explained that “there was something at that moment in his mannerisms that suggested to me that he still does not believe that it is a sane method of dealing with crime.”
Upon questioning by the defense regarding Galloway's assertion that he was rushed in answering the questionnaire, the prosecutor responded that there was no one rushing him and the fact Galloway felt rushed also entered into his mind as a reason for striking him. After more discussion between the prosecutor and defense counsel about the questionnaire and why the prosecutor had asked Galloway about certain questions on the questionnaire and not others, the judge ruled against the Batson challenge stating that he believed the prosecutor had given racially-neutral reasons.
On direct appeal, the Court of Criminal Appeals rejected Jasper's equal protection claim and upheld his conviction and sentence. Jasper, 61 S.W.3d at 424. The court stated that “numerous written answers in the pre-voir dire questionnaire indicating a bias against the imposition of the death penalty can constitute a valid reason to exercise a peremptory challenge” and that “the record support[ed] the prosecutor's reasons for exercising a peremptory challenge against the venireperson in question.” Id. at 422. When Jasper raised the equal protection claim in state habeas proceedings, the convicting court held it would not revisit the issue since it had been heard on appeal and thus could not form the basis for state habeas relief. The Court of Criminal Appeals accepted the convicting court's findings and denied relief. Ex parte Jasper, 2008 WL 3855114, 2008 Tex.Crim.App. Unpub. LEXIS 536. The district court for the Western District of Texas reviewed the state court's analysis and denied relief but granted a COA on the Batson issue for several reasons. Jasper, 765 F.Supp.2d at 877. First, the state trial judge made no express factual finding regarding the credibility of the prosecution's race neutral reasons for striking Galloway. Id. Second, there were no copies of the juror questionnaires available to the state appellate court or to the district court. Id. Third, Galloway's answers with regard to the death penalty differed so widely between his written statements and his oral voir dire that the district court felt this placed particular significance on the trial court's “favorable credibility determinations of the prosecution's race-neutral explanations.” Id. Fourth, the prosecution accepted another venire member who had expressed reluctance about the death penalty. Id. Fifth, the district court wanted guidance on how to handle the lack of venire members' questionnaires and whether or not failure to preserve those questionnaires effectively waives a Batson claim. Id.
A. BATSON VIOLATION
Jasper's Batson claim is subject to review under the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). Under AEDPA, a federal court may not grant habeas relief for a defendant convicted of a state court judgment unless the constitutional adjudication by the state court a) “was contrary to federal law then clearly established in the holdings of [the Supreme Court];” b) “involved an unreasonable application of such law;” or c) “was based on an unreasonable determination of the facts in light of the record before the state court.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (internal citations and quotation marks omitted). Under Williams v. Taylor, a “run-of-the-mill” state court decision applying the correct precedent to the facts of the case is reviewed for an “unreasonable application.” 529 U.S. 362, 406–07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Federal habeas relief is only warranted where the state-court decision is both incorrect and objectively unreasonable, “whether or not [this Court] would reach the same conclusion.” Woodford v.Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
Even seemingly strong cases do not necessarily merit relief from the reviewing court because the state court's contrary conclusion may not have been unreasonable. Richter, 131 S.Ct. at 786. The Fifth Circuit has previously held that a federal court reviews only the state court's ultimate decision-not every link in the state court's reasoning. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc); see also Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir.2002) (“[W]e review only the state court's decision, not its reasoning or written opinion.”). Finally, lower courts are not permitted to establish a new principle of constitutional law under AEDPA review. See Williams, 529 U.S. at 381, 120 S.Ct. 1495.
Appellant's arguments focus on the supposed disparate treatment of Galloway compared to other, non-black jurors who gave similar answers on the questionnaire. As Jasper points out, the constitution forbids striking even a single prospective juror for a discriminatory purpose. Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008); Reed v. Quarterman, 555 F.3d 364, 381 n. 12 (5th Cir.2009). Jasper argues that white jurors who gave similar answers on their questionnaires but changed those answers in oral voir dire were accepted by the prosecution and that Galloway was not.
As he did at the district court, Jasper suggests comparing the way other jurors were treated to see if Galloway's strike was racially motivated. See Snyder, 552 U.S. at 483, 128 S.Ct. 1203. Jasper argues that we should compare Galloway to two different groups of people: the other black venire members, and to other, non-minority venire members. FN1. Contrary to Jasper's attorney's contention during voir dire with Galloway, there was in fact one other black venire member, Natasha Hagans.
Analysis of Hagans' answers compared with Galloway's
On his first point of suggested comparison, Jasper's argument is weak. Jasper argues that Hagans was struck because she was black. Jasper's briefing on this point is exceedingly convoluted but he appears to make an illogical leap that even though Hagans gave different answers between the questionnaire and voir dire, striking her somehow shows racial bias in the dismissal of Galloway, the other black member of the venire. He contends that the Prosecutor's further questioning of Galloway and Hagans regarding the different answers they gave on their questionnaires compared to their voir dire answers, somehow shows bias towards Galloway because of his race. He states “[b]ut when Mr. Galloway testified opposite to his questionnaire, the prosecutor didn't accept those [voir dire] answers as valid.” This muddled reasoning aside, any comparison to Hagans is especially unpersuasive when reviewing some of the answers that Hagans gave during voir dire.
Ms. Hagans testified during her voir dire, in pertinent part: (1) she had a number of teenage friends (four or five) who had been murdered when she lived in Virginia and she felt the police in Virginia had failed to properly investigate those crimes and bring the perpetrators to justice, (2) in her experience, police officers were intimidating, (3) she had a younger brother who was in jail for violating parole and writing bad checks, (4) her daughter's father sold crack and marijuana while they were together and had served time in jail for his drug dealing but resumed drug dealing once he got out of jail, and (5) she believed a person who committed murder should get life in prison. At that point, the prosecution exercised a peremptory challenge and petitioner's defense counsel raised a Batson objection. Jasper, 765 F.Supp.2d at 816. During the Batson challenge regarding Hagans, the prosecutor cited her hostility toward police officers, who she described as “intimidators”, her romantic relationship with a crack dealer, her belief that her brother should receive a second chance despite his long criminal record, and her oral testimony that she believed convicted murderers should receive life in prison. Id. at 817. The judge then overruled the Batson challenge and removed her from the venire. The comparison between Galloway and Hagans is of little use. Hagans gave multiple answers which could cause a prosecutor to hesitate to have her on any jury, and her anti-death penalty answers were similar to Galloway's thus supporting the prosecution's argument that Galloway was dismissed for race-neutral reasons.
Analysis of prosecutor's questioning of non-black members compared to Galloway
Jasper's second point of comparison under the Snyder standard is a comparison between Galloway and other, non-black, venire members. He cites multiple instances in which non-black members of the venire gave similar answers on the questionnaire or during oral testimony, including expressing opposition to the death penalty. According to Jasper, these answers did not disqualify them from serving, but did disqualify Galloway, demonstrating racial motives behind the peremptory strike. The district court analyzed the voir dire exchanges in detail and found that, contrary to Jasper's argument, none of the other potential jurors came close to giving a pattern of answers similar to Galloway's. See id. at 817; see also Snyder, 552 U.S. at 483, 128 S.Ct. 1203 (“[A] retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In this situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of the trial might have shown that jurors in question were not really comparable.”). It is not surprising that some individual answers were similar or identical to Galloway's because of the length of the questionnaires and the number of questions involved. As the district court explained:
This Court's independent review of the voir dire of all the venire members reveals no instances in which Black venire members were questioned in a manner dramatically different from the questioning of venire members of other ethnic groups. Unlike the situation in Miller–El, there does not appear to have been a blatant use of graphic voir dire questions about the process of carrying out an execution in Texas at the commencement of voir dire for Black venire members. Nor did this Court identify anything else that was different about the way the prosecution chose to conduct voir dire of Black venire members, as opposed to non-Black venire members. The state trial court could reasonably have concluded there was nothing about the prosecution's questioning of the jury venire as a whole which supported a finding the strike of Mr. Galloway was racially motivated. Jasper, 765 F.Supp.2d at 819. The district court went on to explain: “The prosecution appeared to question every member of the jury venire who gave any questionable answers on their juror questionnaires regarding their views on the efficacy of the death penalty in a similar, open-ended manner.” Id. at 821. We agree with the district court's conclusions. Further, Jasper fails to demonstrate that any other juror expressed as many reservations about the death penalty as Galloway did on his questionnaire.
Conclusions Regarding the Batson Challenge of Galloway
Jasper's claim that Galloway was removed for racial reasons in violation of the Fourteenth Amendment is unpersuasive. Although he established a prima facie case, the failure to preserve the questionnaires in the record makes the comparative analysis he seeks difficult to conduct. Jasper has the burden of proving that the discrimination was purposeful. See Woodward v. Epps, 580 F.3d 318, 338 (5th Cir.2009) (noting that petitioner must carry burden of proving purposeful discrimination but declining to find waiver of comparative analysis). The record does not indicate why the questionnaires were not included in the trial court record, but that does not negate the fact that the burden is on the plaintiff to demonstrate that the prior findings were erroneous. There is nothing which would indicate that Jasper has met this burden, especially in light of AEDPA's demanding standards. The trial court determined that there were non-racial reasons for the peremptory strike and Jasper did not satisfy his burden of overturning this conclusion. There is no indication that the trial court's analysis was an unreasonable application of law. “[O]n appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Snyder, 552 U.S. at 477, 128 S.Ct. 1203. Galloway gave a variety of answers that would trouble a prosecutor in a capital murder trial and potentially presented himself with a demeanor that would make a prosecutor credibly question his seriousness for the task. As such, we affirm the ruling below.
B. COA ON OTHER POINTS OF ERROR
Jasper asks for a COA for numerous alleged errors, all of which were previously denied by the district court, including: 1) ineffective assistance of counsel for failure to raise his immaturity during sentencing; 2) ineffective assistance of counsel for allowing him to testify without prior knowledge of his testimony; 3) denial of due process by the trial court for failing to investigate a supposed disagreement between Jasper and his attorneys; 4) insufficient evidence was presented to demonstrate that Jasper would be a continuing threat to society if given a life sentence; 5) whether trial counsel was ineffective for failing to provide a vehicle for mitigating evidence; 6) violation of due process for failing to conduct a proportionality review in a death penalty case; 7) that Texas' Capital Sentencing statute is unconstitutional because it does not inform jurors that a single juror can hold out; 8) that the Texas Capital Sentencing structure is unconstitutional because it gives jurors “open-ended discretion;” 9) that, as applied, the mitigating evidence special issue is unconstitutional, under Apprendi, because the state does not have to prove it beyond a reasonable doubt.
Under AEDPA, before a petitioner may appeal the denial of a federal habeas corpus claim, he must obtain a COA. “[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing § 2253(c)(1)). To grant a COA, the court of appeals must be satisfied that the petitioner has made a “substantial showing of the denial of a constitutional right.” Id. A petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. (alteration in original) (internal quotation marks omitted). “A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere ‘good faith’ on his or her part.” Id. at 338, 123 S.Ct. 1029 (internal quotation marks omitted). The question for the court of appeals looking at a COA application is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Jasper has not made the necessary showing to merit a COA on any of the issues he raises.
Jasper's age and immaturity
Jasper cites the recent Supreme Court decision in Roper v. Simmons which prohibited the death penalty for minors. 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Jasper claims that his attorney failed to argue his age and immaturity as mitigating factors. Even though Jasper was over eighteen at the time of the murder, he cites to the proposition in Roper that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Id. at 574, 125 S.Ct. 1183. Jasper fails to explain his supposed immaturity and simply argues that he is more mature now than he was at the time of the crime. Conclusory statements aside, Jasper presents no evidence that was immature enough to fall within Roper's dicta. The problem with this argument is three-fold. First, Jasper was over the age of eighteen at the time he committed the murder so Roper is inapplicable on its face. Second, Jasper is arguing that his counsel was ineffective for not presenting evidence of his immaturity, but the record indicates that his lawyers did in fact present such evidence, including testimony from his father about his age and evidence from a psychiatrist that he was relatively immature. Third, a Strickland ineffective assistance claim under AEDPA is an exceedingly high bar because Jasper must show that his counsel was objectively unreasonable, that the unreasonableness prejudiced him, and still pass AEDPA's requirements. If there is any reasonable argument that counsel satisfied Strickland's deferential standard, the claim must be dismissed. See Harrington, 131 S.Ct. at 788. Jasper has not satisfied this standard.
Testifying at trial with inadequate preparation by attorney
He contends that his trial counsel's failure to prepare him to testify is evidence of ineffective assistance of counsel. Jasper testimony included denying his part in the actual death of the victim and testifying about thoughts of pulling the court bailiff's gun while on the stand. The district court dealt with this issue extensively. See Jasper, 765 F.Supp.2d at 857–63, and there is no indication that it reached the wrong conclusion. This argument is unavailing. The record indicates that his trial counsel advised him of his right to testify and that there could be pitfalls in testifying. Further, trial counsel stated that Jasper insisted on testifying despite his advice. Counsel also had no knowledge that Jasper was going to testify as he did. See United States v. Fields, 565 F.3d 290, 295 (5th Cir.2009) (“Clairvoyance is not a required attribute of effective representation.”). Jasper gives no reason to believe that his representation was objectively unreasonable. As such, we deny his application for a COA.
Trial court's failure to inquire about the conflict between Jasper and his lawyer
He also alleges that the trial court violated his due process rights by failing to inquire into an alleged conflict between him and his attorneys. He failed to raise this point on direct appeal or during his state collateral attack and therefore the claim is procedurally defaulted. Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Under AEDPA, federal courts, absent special circumstances, lack the power to grant habeas relief on claims that have not been exhausted. See Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003); Orman v. Cain, 228 F.3d 616, 619 (5th Cir.2000). Having failed to raise this point at the state level, Jasper's claim must be dismissed.
Despite this fact, the district court sufficiently addressed this claim on the merits: [T]here is no merit to petitioner's fourth claim. A criminal defendant's generalized statement of dissatisfaction with the performance of his trial counsel does not, standing alone, necessitate intervention by a trial court to inquire into the reasons for that dissatisfaction. Moreover, under the facts of petitioner's case, it was evident to the state trial court why petitioner was expressing impatience and even hostility toward his own trial counsel-said trial counsel were attempting to help petitioner obtain a life sentence despite petitioner's refusal to accept any responsibility for David Alejandro's murder. Jasper, 765 F.Supp.2d at 785 (citations omitted). We agree with the district court's conclusion that even if the claim had not been procedurally defaulted, it would not warrant the issuance of a COA and deny his request for a COA on this issue.
Insufficient evidence of future dangerousness
Jasper seeks a COA on the claim that there was insufficient evidence of future dangerousness presented to the jury. This claim was presented on direct appeal and in state habeas proceedings, as well as in the district court. It is wholly without merit. The conclusions of the Texas Court of Criminal Appeals dispel this claim best: The facts of this crime were brutal and demonstrated calculated deliberation. Appellant planned well in advance the stabbing murder of someone he would later describe as “one of the nicest people [he] ever met in [his] life.” He allowed Alejandro to assist him with recording for two hours, knowing he was about to kill him. As Alejandro sat unaware at the soundboard mixing a track for appellant, appellant pulled his head back and, taking a kitchen knife from his jacket, slit his throat from ear to ear. When that wound did not kill him, one of appellant's accomplices joined the attack until Alejandro was dead. Alejandro suffered twenty-five stab wounds. Appellant quickly loaded equipment into the vans and instructed one stunned accomplice to hurry up and help.
In addition to the facts of the crime itself, evidence adduced at trial of prior criminal history and lack of remorse support the jury's finding. Appellant's criminal history included incidents beginning at the age of fifteen, when he stole a bicycle. He was expelled from school for possession of marijuana and expelled from alternative school. More recently, he attempted a residential burglary and attacked the off-duty police officer who attempted to detain him and also attempted to evade police at a traffic stop, leading them on a high-speed chase. The evidence introduced by the State at trial shows a pattern of escalating criminal activity and an increasing proclivity to break laws posing threats to the safety of others. Furthermore, the evidence showed a lack of remorse. Immediately after killing Alejandro, appellant began loading the vans. At the punishment phase of the trial, when asked if he had anything to say to Alejandro's family, appellant replied that he wanted the family to know that he did not kill Alejandro because, according to the autopsy, the only wound he claims to have been inflicted by his hand (slicing the victim's throat, as opposed to the twenty-five stab wounds), was not enough to kill him.
Based on the facts of the offense and other evidence of escalating criminal activity and lack of remorse, a rational jury could have found beyond a reasonable doubt that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness special issue. Jasper, 61 S.W.3d at 418. We deny him a COA on this issue.
Ineffective assistance of counsel for failing to explain the mitigating evidence
He seeks a COA on the claim that his trial counsel should have objected to the punishment phase jury charge or requested supplemental instructions informing the jury that it could give mitigating effect to petitioner's evidence. He argues that counsel's failure to do so amounted to ineffective assistance. There is no indication that the jury instruction was defective, and Jasper does not even attempt to explain what a proposed jury instruction would have included. Any such objection at the trial level would have been deemed meritless. As such, the failure of Jasper's trial counsel to object does not meet the high threshold of Strickland. See Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir.2009) (failure to raise a meritless objection does not satisfy the deficient performance prong of Strickland ). Therefore the state's rejection of this claim during Jasper's state habeas corpus proceeding was neither contrary to existing law nor an unreasonable application of that law, and does not rise to the level necessary for the issuance of a COA.
Structural problems with the Texas death penalty scheme
Finally, Jasper argues that there are numerous constitutional defects with the Texas sentencing scheme, all of which have previously been rejected by the Supreme Court or this court. Each one of these claims was extensively discussed by the district court and dismissed. The district court's summary of these challenges (after comprehensive analysis of each point) states: Petitioner's constitutional challenges to the Texas capital sentencing scheme present claims this Court and the Fifth Circuit have consistently rejected for more than half a decade. Petitioner made no effort to distinguish the rulings by this Court or the many opinions by the Fifth Circuit Court of Appeals rejecting those constitutional complaints on the merits.... This Court has also rejected those same claims as bases for a CoA. See, e.g., Bartee v. Quarterman, 574 F.Supp.2d at 712–14[ (W.D. Tex.2008) ] (denying CoA on many of the same claims asserted by petitioner in his eighth through fourteenth claims herein); Moore v. Quarterman, 526 F.Supp.2d at 740[ (W.D.Tex.2007) ] (denying CoA on many of the same constitutional challenges to the Texas capital sentencing scheme raised by petitioner herein). Petitioner is not entitled to a CoA on any of his [Texas death penalty scheme] claims. Jasper, 765 F.Supp.2d at 875.
According to Jasper, the Texas scheme: a) fails due process because it does not include a proportionality review (rejected in Martinez v. Johnson, 255 F.3d 229, 241 n. 17 (5th Cir.2001)); b) fails to inform the jury that a holdout will lead to a life sentence (rejected in Jones v. United States, 527 U.S. 373, 384, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)); c) gives the jurors open ended discretion (rejected in Sonnier v. Quarterman, 476 F.3d 349, 367 (5th Cir.2007)); and d) violates ApprendiFN2 and its progeny because it places an unconstitutional burden on the defendant for mitigating evidence (rejected in Ortiz v. Quarterman, 504 F.3d 492, 504–05 (5th Cir.2007)). Jasper gives no new reasons to accept his claims on these grounds nor does he distinguish his case from previously rejected challenges to the Texas death penalty scheme. As such his request for a COA on these grounds is denied. FN2. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Conclusion on denial of a COA
Jasper presents no arguments to refute the diligent and comprehensive analysis by the district court on all these issues. The district court meticulously analyzed each one of these claims and properly concluded that there was no reason to issue a COA on any of his claims alleging ineffective assistance of counsel, due process violations, or the unconstitutionality of the Texas death penalty scheme. We agree.
We AFFIRM the ruling of the district court on the Batson violation claim, and deny a COA on all other claims.